Daily Case Update

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  This page is updated regularly.  We also keep an archive of our summaries.

If you would like to receive a daily e-mail with same-day case updates, please join our Members-Only discussion list.  Not a member?  Join today!

Oct. 26th - 28th, 2009

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Habeas corpus / Sentencing
- Habeas corpus / Mandamus to compel his release from prison
- Mandamus / Vexatious litigator
- Plea / Voluntary, knowing, or intelligent / Motion to withdraw
- Community control violation / Sentencing / Abuse of discretion standard
- Affidavit of bias and prejudice
- Civil Procedure / Deposition filed correctly
- Adjudicated Delinquent / Evidnence / Manifest weight
- Plea / Involuntary / Ineffective Counsel / Speedy tiral
- Abuse of discretion / Community Control violation / Incarceration
- Testimony / Ineffective Counsel / Evidence insufficient / Prosecutorial misconduct
- Community-control / Concealed-carry permit / Evidence / Witness interrogation /  Fair trial
- Jurisdiction / Motion to vacate and set aside
- Criminal Rule 32.1 / Motion for relief / Time served
- Real Estate Settlement Procedures Act / OH Consumer Sales Practices Act / Damages / Attorney Fees / Jurisdiction
- Subject-matter jurisdiction / Indemnification claims / Securities law
- JUdge request / Sentencing / Appealable
- United States Sentencing Guidelines Range
 

Ohio Supreme Court

 

Hughley v. Saunders (Slip Opinion)(Oct. 28, 2009)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-5585.pdf
-  Habeas corpus — Adequate remedy exists for raising claim of sentencing error — Court of appeals’ dismissal of petition affirmed.

State ex rel. Jones v. Bradshaw (Slip Opinion)(Oct. 28, 2009)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-5586.pdf
-  Habeas corpus — Mandamus — Dismissal of habeas claim affirmed because petitioner did not attach all pertinent commitment papers — Mandamus claim dismissed — Mandamus not appropriate vehicle to seek release from prison.

State ex rel. Watley v. Pfeiffer (Slip Opinion)(Oct. 28, 2009)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-5587.pdf
-  Mandamus — Vexatious litigator — R.C. 2323.52 — Failure to seek leave to file action requires dismissal — Judgment affirmed.

Turner v. Brunsman (Slip Opinion)(Oct. 28, 2009)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-5588.pdf
-  Habeas corpus — Dismissal affirmed — Sentencing error not cognizable in habeas corpus.
 

First District Court of Appeals

[Search Other Ohio Districts]
 
*** Judgment Entries ***

State of Ohio vs. Seandell McCrary (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081164_10282009.pdf
-  McCrary appeals his convictions for aggravated robbery and having a weapon while under a disability. McCrary asserts that the trial court erred (1) when it accepted his guilty plea because it was not voluntary, knowing, or intelligent, and (2) when it denied his motion to withdraw his plea. Judgment AFFIRMED.

State of Ohio vs. Sir William Abernathy (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-090067_10282009.pdf
-  Abernathy pleaded guilty to drug possession and to violating a community-control sanction that had been imposed for an earlier conviction. The trial court imposed a one-year prison sentence for the drug-possession charge. The court terminated community control and imposed a concurrent 18-month sentence for the community-control violation. Abernathy argues that the trial court erred by sentencing him to prison. Judgment AFFIRMED.

Craig Cumberland vs. Patricia Mirande (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-090020_10282009.pdf
-  Plaintiff-appellant Craig Cumberland appeals the trial court’s judgment holding him in contempt of court and finding defendant-appellee Patricia Mirande not in contempt of court. The crux of all his assigned error is that the trial court’s judgment must be reversed because the court was prejudiced against him. Judgment AFFIRMED.
t.28, 2009)

Joan Vonderhaar vs. City of Cincinnati (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-090012_10282009.pdf
-  Vonderhaar appeals from the summary judgment entered by the Hamilton County Court of Common Pleas in favor of the city of Cincinnati. Vonderhaar argues that the trial court’s grant of summary judgment must be reversed on a narrow but dispositive ground. She argues that the city relied solely on statements made in her deposition to support its motion for summary judgment, but that it never filed her deposition with the trial court. Consequently, the trial court erred in granting the city’s motion for summary judgment when it had no evidentiary materials before it that supported the city’s motion. Judgment REVERSED and REMANDED.

In Re: Travis Middleton (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081299_10282009.pdf
-  Travis Middleton appeals his delinquency adjudication in the Hamilton County Juvenile Court for the offense of felonious assault with a gun specification. Judgment AFFIRMED.

State of Ohio vs. William Davis (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081293_10282009.pdf
-  William Davis entered a guilty plea to drug trafficking, in violation of R.C. 2925.03(A)(2). In exchange for the plea, the state dismissed a drug-possession charge and recommended a four-year prison sentence, which the trial court imposed. Davis contends that his plea was involuntary due to ineffective counsel and the state violated his right to a speedy trial. Judgment AFFIRMED.

State of Ohio vs. Anthony Hardaway (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081169_10282009.pdf
-  Hardaway appeals the trial court’s judgment revoking his community control and imposing sentence. Hardaway asserts that the trial court abused its discretion in revoking Hardaway’s community control when it understood that Hardaway had been incarcerated at the time he had failed to meet his scheduled Judgment AFFIRMED.

State of Ohio vs. Dakota Smith (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081158_10282009.pdf
-  Dakota Smith appeals his convictions for trafficking in marijuana. Smith asserts that (1) the trial court erred when it allowed witnesses to testify that Smith was a member of the Down the Way Boys, (2) he was deprived of the effective assistance of counsel, (3) his conviction was based on insufficient evidence, and (4) he was deprived of a fair trial due to prosecutorial misconduct. Judgment AFFIRMED.

State of Ohio vs. Courtney A. Smith (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081056_10282009.pdf
-  Courtney A. Smith challenges the common pleas court’s judgment denying the relief sought in his “Motion to Vacate and Set Aside Judgments of Conviction and Sentence.” In his motion, he cited (1) the Ohio Supreme Court’s 2008 decision in State v. Cabrales in support of his challenge, under R.C. 2941.25, to the separate prison terms imposed for aggravated robbery and robbery and for both felonious-assault charges, and (2) the supreme court’s 2008 decision in State v. Colon in support of his contention that the counts of his indictment charging aggravated robbery and robbery were void because they had omitted the mens rea elements of the offenses. Judgment AFFIRMED.

State of Ohio vs. Thomas Howell (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-081010_10282009.pdf
-  Howell appeals the trial court’s judgment convicting him of aggravated menacing. The court imposed two years of community control, with conditions that included a suspended term of 180 days in the Hamilton County Justice Center; 100 hours of community service; no gun ownership; and the revocation of Howell’s concealed-carry permit. The court also ordered the confiscation and destruction of the weapon used in the offense, and further ordered that Howell could not apply for a concealed-carry permit in the future. Howell now argues that his conviction for aggravated menpported by sufficient evidence and was against the manifest weight of the evidence. Howell also claims that the trial court coached Evans’s response to a question asked by the court, in violation of Evid.R. 614(B), and that as a result he was entitled to a new trial under Crim.R. 33(A)(1). The community-control condition that prohibited Howell from applying for concealed-carry permit “in [the] future” clearly exceeded the scope of the court’s sentencing authority, because the lifetime ban exceeded the two-year term of community control. We modify Howell’s sentence by deleting the phrase “in [the] future.” Judgment AFFIRMED as modified.

State of Ohio vs. Cameron McGlothin (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080956_10282009.pdf
-  McGlothin challenges the common pleas court’s judgment denying the relief sought in his “Motion to Vacate and Set Aside Unmerged Judgments of Conviction and Sentence Imposed Without Jurisdiction.” His direct appeal from his judgment of conviction had divested the trial court of jurisdiction over his case, except to act in aid of the appeal or in a manner not inconsistent with our jurisdiction. And because we did not remand the case, the trial court did not regain jurisdiction after we had decided the appeal. Judgment AFFIRMED.

State of Ohio vs. Robert Schneider (Oct.28, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080826_10282009.pdf
-  Schneider challenges the Hamilton County Common Pleas Court’s judgment overruling his Crim.R. 32.1 motion to withdraw his guilty pleas. Schneider sought by his motion not merely an order permitting him to withdraw his guilty pleas, but an order dismissing the charges against him. Thus, Schneider sought by his motion relief that Crim.R. 32.1 does not afford. And because the relief that Crim.R. 32.1 does afford would not require Kentucky to credit his Ohio time against his Kentucky time, Schneider failed to demonstrate that withdrawing his guilty pleas was necessary to correct a manifest injustice. Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

Calvin Pettrey v. Enterprise Title Agency, Inc. (Oct. 27, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0373p-06.pdf
-  Given that the plaintiffs have settled and released all of their claims against the defendants, this case is moot. Therefore, this appeal must be dismissed for lack of jurisdiction because there is no justiciable case or controversy under Article III of the Constitution.

Todd Delay v. Rosenthal Collins Group, LLC (Oct. 27, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0375p-06.pdf
-  Todd Delay filed this suit against his former employer, Rosenthal Collins Group, LLC (RCG), seeking indemnification for legal expenses incurred in successfully defending a prior suit brought against him under the Commodities Exchange Act (CEA), 7 U.S.C. § 1 et seq. The district court dismissed Delay’s claim, finding it preempted by federal law. We respectfully disagree, and thus vacate and remand.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Jerry Hebert  (Oct. 26, 2009) (Appeal from W.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0372p-06.pdf
-  The question before us in this direct criminal appeal after a guilty plea to bank robbery is whether the following request by the sentencing judge to the Bureau of Prisons is appealable under 18 U.S.C. § 3742 or any other provision of federal law.

USA v. Errol Washington (Oct. 27, 2009) (Appeal from M.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0374p-06.pdf
-  Defendant Errol Eugene Washington appeals the district court’s order denying, in part, his motion to reduce and modify his otherwise valid sentence pursuant to 18 U.S.C. § 3582(c)(2). Washington’s appeal presents an issue of first impression in our circuit: whether the district court, in modifying a sentence pursuant to § 3582(c)(r United States v. Booker, 543 U.S. 220 (2005), to reduce a sentence beyond the retroactive United States Sentencing Guidelines amendment range For the reasons explained below, we hold that the district court does not have such authority and therefore affirm the judgment of the district court.
 

Daily Case Updates