01/12/2023
Case Caption | Case No. | Topics and Issues | Author | Decided | WebCite |
|---|---|---|---|---|---|
| Richie v. Home Depot | 111394 | Summary judgment; constructive notice. The trial court did not err in granting the appellee’s motion for summary judgment because the appellant did not demonstrate that the appellee had constructive notice of any defects of the PVC pipes. | Laster Mays | 1/12/2023 | 2023-Ohio-68 |
| State v. McCollum | 111370 | Motion for mistrial; jury instructions; peremptory challenge; sufficiency of the evidence; aggravated murder; prior calculation and design; aggravated robbery; robbery; identity; manifest weight of the evidence; constitutionality of the Reagan Tokes Act. Defendant’s convictions for aggravated murder and associated offenses are affirmed. Eyewitnesses saw defendant shoot the victim and beat him in the face and head with a claw hammer. The defendant was arrested after coming out of the house with the shotgun and claw hammer. Defendant’s emotional outburst during opening arguments cannot be the basis for a mistrial. | Forbes | 1/12/2023 | 2023-Ohio-69 |
| Buskirk v. Buskirk | 111399 | Divorce; allocation of debt and assets; child support; extracurricular activities and fees; mental health; retirement account; guardian ad litem fees. - In a divorce proceeding, trial court did not abuse its discretion in allocating the parties’ marital debt and assets, ordering that Husband pay Wife child support, not considering the children’s extracurricular activities and fees when calculating child support where no evidence of any extracurricular activities was offered, not considering the mental health of the parties and children in rendering the divorce decree where their mental health was never placed into issue, ordering the sale of the marital home, telling Husband that he could not take money from his retirement account during the pendency of the divorce proceedings, and allocating payment for the guardian ad litem fees equally between Husband and Wife. | Keough | 1/12/2023 | 2023-Ohio-70 |
| Cleveland Police Patrolmen's Assn. v. Cleveland | 111419 | R.C. Chapter 2721; declaratory relief; civil service commission; disciplinary grievance procedure; binding arbitration. The decision of the trial court is reversed. The CPPA cannot use the Declaratory Judgment Act to circumvent binding contractual and administrative procedures, and because the relief the CPPA sought is not contemplated under R.C. Chapter 2721, the trial court should have dismissed the action. | S. Gallagher | 1/12/2023 | 2023-Ohio-71 |
| State v. Burks | 111423 | Guilty plea; Crim.R. 11; knowing, intelligent, voluntary; recommended sentence; ineffective assistance of counsel; presentence investigation. Appellant’s guilty plea was knowing, intelligent, and voluntary where the record demonstrates that the trial court complied with Crim.R. 11 and conducted a thorough plea colloquy. The trial court was not required to explicitly ask appellant whether any threats or promises had been made in exchange for his plea. Nothing in the record supports appellant’s assertion that he was promised an eight-year sentence. Trial counsel was not ineffective where the terms of the plea agreement were extensively explained to appellant. The use of a presentence investigation from a prior case does not constitute ineffective assistance of counsel. | Kilbane | 1/12/2023 | 2023-Ohio-72 |
| State v. White | 111442 | Sentencing; Reagan Tokes Law; felony; second degree; indefinite sentence; constitutional; right to a jury trial; separation-of-powers doctrine; due process. | S. Gallagher | 1/12/2023 | 2023-Ohio-73 |
| State v. Howard | 111496 | Reagan Tokes Law; S.B. 201; indefinite sentence. The trial court erred by not imposing an indefinite sentence pursuant to the Reagan Tokes Law. | Kilbane | 1/12/2023 | 2023-Ohio-74 |
| Deutsche Bank Natl. Trust Co. v. Talliere | 111520 | Foreclosure; standing; in rem; constructive possession; holder; note; summary judgment; preponderance of the evidence. Judgment affirmed. The trial court properly granted the bank summary judgment on its in rem foreclosure claim because no genuine issue of material fact exists. The bank had standing and was the holder of the note, which had a blank endorsement at the time the case was filed. The bank further demonstrated that it was the holder of the note through constructive possession. Moreover, in a typical civil case, the degree of proof is a mere preponderance of the evidence. | Boyle | 1/12/2023 | 2023-Ohio-75 |
| Fifth Third Mortgage Co. v. McElroy | 111569 | Foreclosure; distribution of excess funds; mechanics’ lien; legitimate lien; valid lien; sufficient evidence; final appealable order; and foreclosure order. The trial court abused its discretion when it granted a motion for distribution of excess funds from the foreclosure sale to a holder of a mechanics’ lien without first holding a hearing or requiring the submission of evidence to prove the legitimacy of the lien. The matter is reversed and remanded and the trial court will conduct a hearing where the parties may introduce evidence and present arguments on the validity of the mechanics’ lien. | Kilbane | 1/12/2023 | 2023-Ohio-76 |
| State v. Laws | 111591 | Reagan Tokes; sentence; constitutionality; R.C. 2929.19(B)(2)(c); notification; advisement. Judgment affirmed in part, reversed in part, and remanded. Appellant’s sentence is not unconstitutional under the Reagan Tokes Law. The trial court did not give appellant all the advisements required by R.C. 2929.19(B)(2)(c). The matter is remanded for resentencing to provide all the advisements required by R.C. 2929.19(B)(2)(c). | Boyle | 1/12/2023 | 2023-Ohio-77 |
| In re R.H. | 111748 | Permanent custody; R.C. 2151.414; manifest weight; abuse of discretion; best interest of the child. Judgment affirmed. When proceeding on a motion for permanent custody, the juvenile court must satisfy the two-prong test set forth in R.C. 2151.414 before it can terminate parental rights and grant permanent custody to the agency. The juvenile court must find by clear and convincing evidence that (1) at least one of the conditions set forth in R.C. 2151.414 (B)(1)(a) through (e) applies, and (2) it is in the best interest of the child to grant permanent custody to the agency. The record in the instant case demonstrates that the children could not be placed with Mother within a reasonable period of time and Mother failed to complete her case plan, failed to consistently submit to drug screen requests, continued to test positive for illicit drugs, and failed to follow through with mental health services. Alleged Father never engaged in any case plan services. Accordingly, clear and convincing evidence supports the juvenile court’s judgment granting permanent custody of the children to the Cuyahoga County Division of Children and Family Services. | Groves | 1/12/2023 | 2023-Ohio-78 |
| In re M.K.L. | 111764 | Magistrate’s decision; transcript; shared parenting; objections. - Juvenile court did not abuse its discretion in approving and adopting the magistrate’s decision awarding shared parenting to father. Mother failed to timely file a transcript of the proceedings with the juvenile court; thus, the court was in its discretion to adopt the magistrate’s findings. As such, this court was also precluded from considering the transcript. | Keough | 1/12/2023 | 2023-Ohio-79 |
| Bizfunds, L.L.C. v. Jetmo, Inc. | 111032 | Summary judgment; genuine issue of material fact; judgment on the pleadings; punitive damages; attorney fees. The trial court did not err by granting the appellee’s motion for summary judgment because the appellants have not demonstrated there are any genuine issues of material fact. The trial court did not err by denying the appellants’ motion for judgment on the pleadings because Michael engaged in fraud. The award of punitive damages and attorney fees was proper against Michael and Jetmo only, and the trial court did not abuse its discretion. However, the trial court erred when it failed to dismiss the claims against Laura and Kleen because Laura was not a party to the contract or engaged in the fraudulent behavior in concert with Michael. | Laster Mays | 1/12/2023 | 2023-Ohio-81 |
| In re J.S. | 111256 | Permanent custody; R.C. 2151.414; manifest weight; abuse of discretion; best interest of the child. Judgment affirmed. When proceeding on a motion for permanent custody, the juvenile court must satisfy the two-prong test set forth in R.C. 2151.414 before it can terminate parental rights and grant permanent custody to the agency. The juvenile court must find by clear and convincing evidence that (1) at least one of the conditions set forth in R.C. 2151.414 (B)(1)(a) through (e) applies, and (2) it is in the best interest of the child to grant permanent custody to the agency. The record in the instant case demonstrates that the children could not be placed with Mother within a reasonable period of time and Mother failed to complete her case plan, failed to consistently submit to drug screen requests, and failed to follow through with mental health services. Alleged Father never engaged in any case plan services. Both children were born premature, both tested positive for marijuana, and both had resultant medical challenges. One child had unimaginable medical challenges and neither Mother nor Father availed themselves to receive training to care for the child’s extensive medical needs. Accordingly, clear and convincing evidence supports the juvenile court’s judgment granting permanent custody of the children to the Cuyahoga County Division of Children and Family Services. | Groves | 1/12/2023 | 2023-Ohio-82 |
| State v. Perez | 111296 | Breach of plea agreement; plain error; Reagan Tokes as applied to consecutive sentences and constitutionality; R.C. 2929.144(B)(2). Where appellant failed to object to alleged breach of plea agreement before the trial court, he waives all but plain error. Further, when plain error is not raised before the court of appeals, the court is not required to address it. Trial court properly added indefinite sentences pursuant to R.C. 2929.144(B)(2) to each of appellant’s cases. Had the legislature intended to include indefinite prison terms in separate cases when calculating consecutive sentences, it could have done so, but did not. Finally, appellant raises a constitutional challenge to the Reagan Tokes Law. However, we have found the law constitutional State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, and likewise await the Supreme Court’s final determination. | Groves | 1/12/2023 | 2023-Ohio-83 |
| State v. Graves | 111348 | Constitutionality of the Reagan Tokes Law; indefinite sentence. The trial court properly imposed an indefinite sentence pursuant to the Reagan Tokes Law, and this court overruled appellant’s challenges to the constitutionality of the Reagan Tokes Law en banc in State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.). | Groves | 1/12/2023 | 2023-Ohio-84 |
| In re T.N.R. | 111367 | Juvenile; sufficiency of the evidence; manifest weight of the evidence; complicity; motion to suppress; videotaped statement; Miranda rights; coercion; involuntary; ineffective assistance of counsel. Judgment affirmed. The failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Even when there is some evidence in the record to support a motion to suppress, an appellate court presumes that defense counsel was effective if defense counsel could reasonably have decided that the motion to suppress would have been futile. In the instant case, the indicia of involuntariness and coercion are not present. The appellant turned 18 years old a few days before she was arrested. She appeared coherent and stable in the video. She was conscious the entire time and did not slur her speech or appear to be under the influence of any medication or substance. The questioning by the officer lasted approximately 45 minutes. There is nothing to suggest that the appellant’s state of mind was altered. The appellant was able to write her statement in a notepad. In addition, the officers did not prevent the appellant from receiving any medical treatment while questioning her. Therefore, we decline to find that the appellant’s statement was involuntary or coerced based on the totality of the circumstances and the foregoing case law. We cannot say that a motion to suppress the statement would have been successful. Furthermore, there is sufficient evidence in the record to sustain appellant’s convictions on a complicity theory and her conviction are not against the manifest weight of the evidence. The record demonstrates that the appellant was more than just merely present. She was aware of and involved in the theft of the victim. She initiated the marijuana sale and knew that a gun was involved, that cash was taken, and that the victim was assaulted. The appellant did not attempt to stop her boyfriend from entering the victim’s car, nor did she try to leave. | Boyle | 1/12/2023 | 2023-Ohio-85 |
| State v. Johnson | 110673 | App.R. 26(B); application to reopen, ineffective assistance of appellate counsel, ineffective assistance of trial counsel, self-defense, lesser included offense instruction, right to jury trial, and fair trial. The court denied an application to reopen under App.R. 26(B). Appellate counsel was not ineffective for directly arguing that the trial court erred in not giving a self-defense instruction, instead of framing the issue as a failure to allow the jury to weigh the evidence. Trial counsel was not ineffective for failing to seek a lesser included offense instruction on involuntary manslaughter because the defendant was convicted on involuntary manslaughter. Labeling the defendant as the shooter in a video did not deprive the defendant of a fair trial. Trial counsel used the video to argue that the defendant could not have killed the victim. | S. Gallagher | 1/11/2023 | 2023-Ohio-80 |