CASE DECISION LIST Court of Appeals, Eighth Appellate District Page: 1 of 6. November 6, 2014

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1 Court of Appeals, Eighth Appellate District Page: 1 of 6 November 6, COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MAURICE MCDUFFIE Frank D. Celebrezze, Jr., J., Mary J. Boyle, A.J., and Tim McCormack, J., concur. KEY WORDS: Improper jury instruction; defense of others; self-defense instruction; aggravated assault; felonious assault; ineffective assistance of counsel; lesser-included offense. The trial court s improper instruction on defense of others and self-defense was not plain error in this case because the evidence did not support its employment in this case. Failure to issue a lesser-included instruction on aggravated assault was also not plain error for the same reason. Trial counsel was not ineffective for seeking an aggravated assault instruction where there was no likelihood of a change in the outcome of trial COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v CLINTON SCOTT Affirmed and remanded. Tim McCormack, J., Mary J. Boyle, A.J., and Frank D. Celebrezze, Jr., J., concur. KEY WORDS: Aggravated burglary; removal of the defendant from the courtroom; competency hearing The trial court was justified in removing a defendant who behaved disruptively from the court room, and the trial court complied with the requirement regarding a competency hearing under R.C COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v STEPHEN KASSON Sentence vacated; remanded for resentencing. Frank D. Celebrezze, Jr., J., Mary J. Boyle, A.J., and Tim McCormack, J., concur. KEY WORDS: Postconviction relief; resentence; consecutive sentences; appellate rights; H.B. 86; R.C (C)(4); failure to make separate and distinct findings; contrary to law. The trial court failed to satisfy the requirements of R.C (C)(4). At resentencing, the court simply adopted the

2 Court of Appeals, Eighth Appellate District Page: 2 of 6 (Case continued) sentence imposed in 2007 and failed to make any statements concerning the imposition of consecutive sentences. Appellant s sentence must be vacated and the case remanded for the trial court to consider whether consecutive sentences are appropriate under R.C (C)(4), and, if so, to make the required findings on the record and incorporate those findings into the court s sentencing entry JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.G. Melody J. Stewart, J., Kenneth A. Rocco, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: Allied offenses; similar import; double jeopardy; Double Jeopardy Clause; constitutional protections; guarantees; aggravated robbery; kidnapping, juvenile; delinquency; commitments; disposition; same offense; Ohio General Assembly; Blockburger; multiple punishments; same elements; elements. In Ohio, R.C , the allied offenses of similar import statute, codifies the protections of the Double Jeopardy Clause of the United States and Ohio Constitutions. However, R.C does not apply to juvenile delinquency proceedings. In the absence of clear statutory guidance from the Ohio General Assembly, the test laid out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L. Ed. 306 (1932) for determining whether two offenses are the same offense for purposes of the double jeopardy guarantee against multiple punishments for the same offense, will be the applicable test for deciding multiple acts of illegal conduct constitutes the same offense in juvenile delinquency proceedings COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ALLEN QUARTERMAN Eileen T. Gallagher, J., Eileen A. Gallagher, P.J., and Melody J. Stewart, J., concur. KEY WORDS: Probation; jail-time credit; inpatient drug-rehabilitation; continuing jurisdiction. Appellant s claim for jail-time credit for time spent as an inpatient in a drug rehabilitation facility was moot by virtue of his release from prison. Court retains continuing jurisdiction to correct any error in the calculation of jail-time credit pursuant to R.C (B)(2)(g)(iii).

3 Court of Appeals, Eighth Appellate District Page: 3 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MOSES THOMAS Patricia Ann Blackmon, J., Eileen A. Gallagher, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Allied Offense Determination: Ohio courts have long used a two-prong test to determine whether multiple offenses should be considered allied offenses and merged. The first prong looks to the import of the offenses and requires a comparison of their elements. If the elements correspond to such a degree that the commission of one offense will result in the commission of the other, the offenses share a similar import. The second prong looks to the defendant s conduct and requires a determination whether the offenses were committed separately or with a separate animus. However, not every case involving multiple convictions with a silent record will require an allied-offenses determination by the trial court DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE JEFFREY W. SAKS v LORI BETH RIGA Affirmed in part, reversed in part, and remanded. Eileen T. Gallagher, J., Eileen A. Gallagher, P.J., and Patricia Ann Blackmon, J., concur. KEY WORDS: De facto termination of marriage date; valuation; marital property; separate property; children s property; equitable division; defined benefit plan; coverture fraction; order acceptable for processing; spousal support; marital misconduct; extra-marital affair; attorney fees. Court properly selected a de facto termination of marriage date based on the availability of valuation evidence even though the parties separated and maintained separate bank accounts several months earlier. Court equitably divided marital assets including two vehicles, the marital home, shares of stock, whole life insurance policies, an investment account, and wife s federal employee retirement benefits. Court properly ordered wife s FERS pension to be equally divided pursuant to a coverture fracture as a date certain by order acceptable for processing. Court acted within its discretion in awarding wife $3,500 in spousal support for a period of 60 months to equalize the parties income. Court s decision not to punish wife for marital misconduct was not an abuse of discretion where wife had an extra-marital affair but did not cause any financial damage. Court attorney fee award to wife was not an abuse of discretion where husband received free legal services through his employer, and the attorney fee award equalized the parties assets and liabilities.

4 Court of Appeals, Eighth Appellate District Page: 4 of COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DARTANYON FRAZIER Patricia Ann Blackmon, J., Eileen A. Gallagher, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Crim.R. 11 and Voluntariness of Defendant s Plea. To ensure that pleas conform to Crim.R. 11, the trial judge must engage the defendant in a colloquy before accepting his or her plea. Ohio Crim.R. 11(C) was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant s plea by ensuring an adequate record for review COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v ERNEST M. WHITSETT Mary J. Boyle, A.J., Kathleen Ann Keough, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Drug trafficking; R.C ; sufficiency and manifest weight of the evidence. The state presented sufficient evidence of drug trafficking and defendant s conviction for drug trafficking was not against the manifest weight of the evidence when the defendant was found with 17 small individually-packaged bags of marijuana on his person COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSEPH TREM Sean C. Gallagher, P.J., Kenneth A. Rocco, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Crim.R. 32.1; postsentence motion to withdraw; guilty plea; abuse of discretion; manifest injustice; parole; plea transcript; App.R. 9(C); regularity; hearing. Trial court did not abuse its discretion in denying appellant s postsentence motion to withdraw guilty plea where, although the trial court made misstatements regarding parole at sentencing, appellant did not file a copy of the plea transcript and there was nothing in the record to show that appellant did not know the actual consequences of his plea at the time his plea was entered. Because the record and the evidentiary materials submitted by appellant failed to demonstrate a manifest injustice, the trial court

5 Court of Appeals, Eighth Appellate District Page: 5 of 6 (Case continued) was not required to hold a hearing on his motion to withdraw guilty plea COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ROBERT SOBIN v CHUN BIN LIM, ET AL. Frank D. Celebrezze, Jr., J., Mary J. Boyle, A.J., and Larry A. Jones, Sr., J., concur. KEY WORDS: Appointment of a receiver; accounting; R.C ; carry a judgment into effect; equity; costs of receivership. The trial court did not abuse its discretion when it appointed a receiver to carry a prior judgment into effect and to accomplish an accounting JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: A.S. Eileen A. Gallagher, J., Kenneth A. Rocco, P.J., and Patricia A. Blackmon, J., concur. KEY WORDS: Child Support; Juv.R. 40(D)(3)(b)(iii); duty to provide a transcript for appellate review; presume regularity. Judgment of the trial court affirmed where appellant failed to provide a transcript of hearing where he challenged a factual finding made by the magistrate COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO ANTHONY ZINGALE v OHIO CASINO CONTROL COMMISSION Reversed and remanded. Larry A. Jones, Sr., J., Mary J. Boyle, A.J., and Frank D. Celebrezze, Jr., J., concur KEY WORDS: R.C /failure to certify a complete record; application of the wrong standard; R.C (A) and Ohio Adm. Code (B)/mandatory requirements to grant, maintain or renew casino gaming employee s license; R.C /procedures of administrative adjudication hearings; Ohio Adm. Code /employee duty to notify of termination/update changes. The protection of attorney-client privilege prevails where a staff memo contained legal advice. The trial court did not abuse its

6 Court of Appeals, Eighth Appellate District Page: 6 of 6 (Case continued) discretion in certifying a complete record exclusive of the memo. The burden of proof was improperly shifted to appellant. It was an abuse of discretion for the trial court to find that the Commission s order was supported by reliable, probative, and substantial evidence. Where a recommendation for a specific penalty is not required pursuant to R.C , the trial court did not abuse its discretion in finding the Commission s order proper. However, where the Commission modified the hearing examiner s recommendation without stating its reasons, it was not proper and contrary to law. The employment application and administrative rules on an employee s duty to report and update changes is ambiguous COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MICHAEL WILMORE Melody J. Stewart, J., Mary Eileen Kilbane, P.J., and Eileen T. Gallagher, J., concur. KEY WORDS: Void; aggravated felony; former R.C (B)(1)(a). Court did not err by denying motion to correct void sentence. Defendant who was convicted of an aggravated felony of the first degree was sentenced to a minimum term of nine years and that minimum term was authorized under former R.C (B)(1)(a) COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO DANIEL A. BUTTNER v WILLIAM H. RENZ Reversed and remanded. Patricia Ann Blackmon, J., Kenneth A. Rocco, P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: KEY WORDS: Counterclaim; default judgment. The damage award was against the manifest weight of the evidence because no testimony regarding the damage was presented at the hearing, and the exhibits that allegedly supported the award were never entered into evidence. Trial court erred by granting sua sponte default judgment against the appellant.