February 17th, 2012 The 2nd District
Court of Appeals released 14 decisions.
(what’s a beeper?)
Appeal by Beeper Vibes of Unemployment Compensation Decision granting former employee unemployment benefits. Beeper Vibes claims two errors:
1.
The Trial Court erred by finding that it had
failed to show industry standards for sales figures and that those standards
were reasonable.
2.
The Trial Court erred by finding that Plaintiff
failed to prove the employee had a bad attitude.
DECISION: Record
reflects that Beeper Vibes failed to provide any documentation of industry
sales figures and that those figures are reasonable in the industry.
MORAL OF THE STORY:
If you fire a person citing poor sales figures you better be able to
back it up with the industry proof that the standards you set are reasonable
and achievable.
Chaney
v. Chaney 2012 Ohio 626
Appeal by Husband of Trial Court’s decision denying changing
custody to him. Divorce occurred in
2000. Husband tried to change custody of
the three minor children in 2004 and 2005 with no success. Husband again tries in 2010 to get custody of
J.C., the couple’s only remaining minor child.
Husband cites poor school attendance of J.C. and that Mom is unemployed
and has been so for 2 years as the change in circumstance. Magistrate finds that she is concerned about
the school attendance but Mom says she will try to do better so it’s okay. Older child testified that he is concerned
with J.C. living with Mom and that if she stays with Mom she has no chance for
a successful future. The standard for
change of circumstances is established in O.R.C. 3109.04(E)(1)(a):
1.
Change in circumstance of minor
2.
Modification of current order is necessary to
serve the best interest of the minor
3.
Harm likely caused is outweighed by the
advantages the change would provide.
MORAL OF THE STORY:
It’s extremely tough to change custody.
Even if 1 adult kid testifies against custodian’s ability and that
remaining minor has no shot at a future if minor continues living with the
custodial parent.
State
v. Dawson 2012 Ohio 627 (non-support of dependents)
Defendant appeals his conviction by jury of two counts of
non-support of dependents. Count 1
covered April 1, 2005 through March 31st, 2007. Count 2 covered April 1, 2007 through March
21st, 2009. Defendant claimed
he provided the support that was within his ability and means.
DECISION: It was
clear he did not pay his current support obligation and the fact that his
income taxes were seized to pay arrearages does not help the charge for current
support. No evidence that jury lost its way.
MORAL OF THE STORY:
Even if Child Support Enforcement takes thousands of dollars of income
taxes to pay arrearages it doesn’t help your current obligation.
State
ex rel. Holloway v. Personnel Appeals Board 2012 Ohio 628
Nothing worth noting in this appeal.
Hull
v. Clem D’s Auto Sales 2012
Ohio 629
Clem D’s (hereinafter Auto) appeals from default judgment
for $15,000 awarded by Darke County Municipal Court to the Hulls. March 2010 Hull and Auto enter written
contract for the purchase of 2000 Pontiac Montana for $2,669.38. Hulls paid deposit of $2000 in March
2010. Later in March Hull brought the
balance to pay off the car and was informed the new purchase price was
$4000. Hull sued in December 2010 and
served Auto by certified mail. Auto did
not answer and Hull received a default judgment in the amount of $15,000. Auto appeals the amount citing that no
evidence was presented or alleged in the complaint to establish the amount of
damages.
DECISION: Because the complaint lacked specificity as to the
amount of damages and simply stated amount to be determined at trial not to
exceed $15,000. The case is remanded for
hearing on damages.
MORAL OF THE STORY: Be more specific in your complaint if you think default judgment is likely then you don’t have to bother with the second hearing.
State
v. Stone 2012 Ohio 630 (excellent analysis of victim impact statement)MORAL OF THE STORY: Be more specific in your complaint if you think default judgment is likely then you don’t have to bother with the second hearing.
Defendant appeals from the Court’s consideration of a victim
impact statement offered at sentencing when Defendant pled guilty to 1 count of
Public Indecency. Defendant was indicted
on 1 count of Felony Disseminating Material Harmful to a Juvenile and later
pled to a misdemeanor count of Public Indecency. At sentencing pursuant to O.R.C. 2930.14(A)
the court allowed a victim impact statement to be read by the victim’s mother. (B) of the same section states, if statement
includes new material facts “the court shall not rely on the new material facts
unless it continues sentencing … or takes other appropriate action to allow the
Defendant an adequate opportunity to respond.”
DECISION: Because
counsel for Stone failed to object to the new information he waived his
opportunity to object to the new information.
The Trial Court did allow Defendant an opportunity to respond by asking
him if he had anything further and he declined to respond.
MORAL OF THE STORY:
If you are surprised by sentencing by a victim’s advocates statement
about anything object and ask for time to reevaluate the situation. We are often in a position where we don’t
know exactly what the victim’s advocate will say so object, object, object if
you don’t like it.
Weaver
v. Double K Pressure Washing 2012 Ohio 631
Civil appeal that in my opinion is not worth
mentioning.
State
v. Woodward 2012 Ohio 632 (jail time credit)
Appeal from guilty to plea to 1 count of Robbery and 1 count
of Aggravated Burglary in one case and a subsequent guilty plea in two counts
of Receiving Stolen Property in a second case.
The main issue for appeal is whether Defendant was given the proper
amount of jail time credit. Trial Court
sentenced Defendant to 8 years on the Aggravated Burglary and 6 months on the
Receiving to run consecutively for a total of 8 ½ years. The Trial Court gave 114 days of jail time
credit towards the Aggravated Burglary case.
Defendant contends that because he was in on bond on the Receiving
Stolen Property case as well he should get double credit for the days that he
was in jail on both cases. The Ohio
Supreme Court addressed this issue in State
v. Fugate 117 Ohio St. 3d 261, “if a Defendant’s sentenced to consecutive
prison terms for multiple charges, jail time credit is not applied to each and
every prison term as it is for concurrent sentencing, but rather is applied but
once.
DECISION: Defendant
was given proper amount of credit.
Furthermore, Defendant and counsel failed to object to the jail credit
so it is deemed waived.
MORAL OF THE STORY: Again if you don’t like the answer
object to preserve the record. If you
don’t object it will probably be deemed waived.
State
v. Blocker 2012 Ohio 633 (Sex Offender pre-Bodyke case)
Appeal from trial court’s denial of Defendant’s motion to
dismiss his conviction of 1st degree felony Failure to Notify Change
of Address due to sex offender requirements.
In 1988, Defendant was convicted by military tribunal of 2 counts of
rape and 1 count of Sodomy while stationed in Germany. Defendant was never classified as a sex
offender but under the law at the time he was classified automatically by his
conviction (register annually for 10 years upon release). Defendant was released from prison in
September 2008 and moved to Dayton, Ohio.
In 2007 the Adam Walsh Act replaced Megan’s law and Defendant was
reclassified as a Tier III sex-offender (register every 90 days for life).
State v. Bodyke The
Ohio Supreme Court struck down the reclassification and reimposed the previous
registration requirement ordered by the trial court or law at the time of the
conviction. In this case once a year for
ten years, however if he changed his address he was required to notify the
Sheriff 20 days prior to moving. The
penalty for Failure to Notify in 1988 was a 3rd degree felony.
DECISION: Although
Blocker is right his classification was wrong the facts still establish that he
failed to Notify his change of address under his original classification. However, this violation is not a first degree
felony but is a third degree felony.
Remanded for resentencing.
MORAL OF THE STORY:
Even if you win that the new law doesn’t apply if they proved you
violated the old law you still lose.
State
v. Chaffin 2012 Ohio 634 (Defense wins on suppressino of photo lineup)
This is an excellent appeal handled by Robert Brenner (OACDL
member) from a conviction and sentence for 1 count of Aggravated Robbery with a
Deadly Weapon. The main issue in this
case is a 6 picture photo lineup showed to the alleged victim, Kelly, in this
case. Kelly was at home when he heard
the sound of a saw and looked out the window to see a man near his wife’s
truck. He told his wife to call 911 and
went to investigate with a gun.
Defendant confronted the individuals and one of the individuals ran and
the other pulled a knife. Kelly fired a
warning shot and both individuals ran.
Police arrived and Kelly described two males white males with bald heads
and dark clothing. Later Kelly was shown
two separate photo lineups containing six pictures each. One lineup had a picture of Chaffin and one
lineup had a picture of the co-defendant.
The Co-Defendant was identified but Kelly failed to identify Chaffin. In fact Kelly identified someone else. A few days later Officer provided a new
lineup with six pictures containing a newer picture of Chaffin and five not
fully bald men. Kelly identified
Chaffin. Chaffin moved to suppress the
lineup at trial which was overruled by the trial judge from the bench. Chaffin’s appeals stating the photo array was
unduly suggestive.
ANALYSIS: “To warrant
suppression of identification, the accused bears the burden of showing that the
array was “so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification” and that the identification itself
was unreliable under the totality of the circumstances.” Citing Manson
v. Brathwaite (1977) 432 U.S. 98 and Neil
v. Biggers (1972) 409 U.S. 188.
“When any of these systems of confrontation suggest, due to
the manner or mode of their presentation, that one individual is more likely
than others to be the perpetrator of the crime, that fact increases the
likelihood of misidentification and violates the right to due process of law of
a defendant.” Reliability of the testimony is the linchpin in determining its admissibility.
MORAL OF THE STORY:
The case law and studies written on eye-witness identification is
staggering especially when dealing with cross-racial lines. Why we continue to rely as a society on this
disproven method is saddening.
Fifth
Third Mtge Co. v. Bihn 2012 Ohio 637
Foreclosure appeal
In re
J.H.-P 2012 Ohio 638
Another custody case where the losing party disagreed with
the court. Nothing worth noting in this
case.
Easterling v. Ameristate Bancorp, Inc. 2012 Ohio 636
http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-636.pdf
Pro se appeal of a civil matter. Nothing worth noting.
State
v. Dewitt 2012 Ohio 635 (MERGER ISSUE or should have been at least)
Defendant appeals from his guilty plea and sentence to 1
count of Involuntary Manslaughter, 1 count of Aggravated Burglary, 1 count of
Aggravated Robbery with a deadly weapon, 1 count of Felonious Assault with a
deadly weapon and a 3 year mandatory Firearm Specification.
August 20, 2009 Gulley was shot and killed when three men
forced their way into his apartment.
Dewitt, Turner, and Moore all charged in the killing and robbery. Dewitt and Turner all confessed to forcing
their way into the apartment and stated that Moore shot Gulley in the
head.
Dewitt agreed to a plea deal to avoid a murder charge to
plead guilty to 1 count of Involuntary Manslaughter, 1 count of Aggravated
Robbery, 1 count of Felonious Assault, and the 3 year gun specification. The deal included an agreed total sentence of
16-20 years in prison. The Judge agreed
and sentenced Dewitt to 16 years.
Moore eventually agreed to a plea to an aggregate term of
8-12 years in prison. Dewitt requested
the trial court to sentence him to the range that Moore got based on that Moore
was the shooter and is getting less time than he who was not the shooter.
Defendant appeals citing 4 errors:
1.
The Trial Court erred in not imposing a sentence
that was consistent with sentences for similar crimes committed by similar
offenders.
a.
OVERRULED- R.C. 2953.08(D)(1) “ A sentence is
not subject to review under this section if the sentence is authorized by law,
has been recommended jointly by the Defendant and the Prosecution in the case,
and is imposed by a sentencing judge.”
Because Dewitt agreed to the sentence he is stuck with it.
2.
Trial Court erred in not permitting shock
incarceration or transitional control.
a.
Defendant is not eligible for shock
incarceration or intensive prison program because it is a 1st degree
felony. The court is required to make a
specific finding of fact as to why he is not eligible if it denies eligibility
but because he isn’t eligible because of the offense no harm no foul
b.
Defendant, however, is eligible for transitional
control therefore the case is remanded to trial court for such findings.
3.
The Trial Court erred in failing to merge the
counts.
a.
This may be true but because Defendant failed to
object at plea or sentencing there is no record to establish whether in fact
these are allied offenses of similar import.
4.
Jail Credit- this is unclear because no record
was contained with the supplementation of the appeal. Therefore overruled for now until a new
appeal is filed.
MORAL OF THE STORY: The most important two things that come out
of this is that merger continues to be ignored at the trial level. Merger seems to have become a lot clearer in
light of State v. Johnson from
December 2010, but a year later I believe it is still not being argued
enough. Anytime a person is charged with
more than one charge merger should always be analyzed with the client. A client cannot make an informed decision
about whether to go to trial or not if he doesn’t know the maximum and minimum
mandatory possible penalties in all case.
Merger allows a person to know what the most likely maximum penalty
is. If you don’t make the record then
the Court of Appeals CANT help you. The
second item is that the justice system isn’t always consistent or fair
especially if you agree to a deal that turns out to be not so good after
all. Plea deals don’t come with gift
receipts to return.
No comments:
Post a Comment