First District Friday Roundup! (6/10)

Happy Friday! We interrupt this Friday Roundup for a quick announcement of an upcoming CLE on Elder Law : Hot Topics. Our hosts Attorneys Kathryn E. Buerger, William Hesch Law Firm, LLC, and Amy L. Kurlansky, Hamilton County Law Library, will join us on June 30,2022 from 12-1 PM. Sign up HERE!

6/8/2022
State of Ohio v. Germaine Johnson
C-0220048
Judgement Entry:
We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. See Rep.Op.R. 3.1; App.R. 11.1(E); 1st Dist. Loc.R. 11.1.1.
Defendant-appellant’s appointed counsel has advised this court that, after a thorough review of the record, he can find nothing that would arguably support appellant’s appeal, and that the appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Freels v. Hills, 843 F.2d 958 (6th Cir.1988). Counsel, as required by Anders, has communicated this conclusion to appellant, and has offered appellant an opportunity to respond and to raise any issues. Counsel has also moved this court for permission to withdraw as counsel. See Anders at 744; see also 1st Dist. Loc.R. 16.2(C)(1) and 16.2(D)(2).

6/8/2022
State of Ohio, Ex Rel. Brandon Hare v. The Honorable Heather S. Russell
C-210344
Quote from Judge Crouse:
Relator Brandon Hare was charged with one count of assault for allegedly hitting his ex-girlfriend, Regina Pugh, and pushing her to the ground. The matter proceeded to a bench trial on May 3, 2021, before Respondent Judge Heather S. Russell. There was a disagreement between defense counsel and Judge Russell that led Judge Russell to orally declare a mistrial and recuse herself. On the “Judge’s Sheet,” 1 Judge Russell wrote, “Court recuses – rerolls,” but did not explain her recusal or state that a mistrial had been declared.
The case was transferred to Judge Gwen Bender. Hare moved to dismiss the assault charge on double-jeopardy grounds. A hearing on the motion to dismiss was held on May 27, 2021. Judge Bender denied the motion, finding that Judge Russell had declared a mistrial because she no longer felt that she could remain fair and impartial toward Hare due to “butting heads” with defense counsel. 2 That same day, the state filed a motion requesting that Judge Russell issue a nunc pro tunc entry “clarifying that a mistrial was declared on this matter.” Judge Russell issued a nunc pro tunc entry on June 1, 2021, wherein she wrote on the Judge’s Sheet, “Based on defense attorney’s statements, the court declares a mistrial, recuses, and requests that the case be re-rolled.”

Petitioner is entitled to a writ of prohibition because respondent trial judge issued a nunc pro tunc entry after she had recused herself from the case, and therefore, at a time when she patently and unambiguously lacked jurisdiction over the case. [But see DISSENT: the issuance of a writ of prohibition is unwarranted because respondent did not patently and unambiguously lack subject-matter jurisdiction over the case, the issuance of the nunc pro tunc entry was not unauthorized by law, and petitioner has an adequate remedy at law.]

6/8/2022
State of Ohio v. Brandon Hare
C-210321
Quote from Judge Crouse:
Defendant-appellant Brandon Hare was charged with one count of assault for allegedly hitting his ex-girlfriend, Regina Pugh, and pushing her to the ground. The matter proceeded to a bench trial before Judge Heather Russell on May 3, 2021. There was a disagreement between defense counsel and Judge Russell that led Judge Russell to sua sponte orally declare a mistrial and recuse herself. On the “Judge’s Sheet,” 1 Judge Russell wrote, “Court recuses – rerolls,” but did not explain her recusal or state that a mistrial had been declared.

The trial court did not err in denying defendant’s motion to dismiss the assault charge on double-jeopardy grounds where the original trial judge’s declaration of a mistrial was supported by a manifest necessity; the original trial judge felt that she could no longer be fair and impartial due to disagreements with defense counsel during the course of the trial. 

6/10/2022
In re: H.W.,Jr.
C-220118
Judgement Entry:
Father of H.W., Jr., appeals the trial court’s grant of permanent custody of his child to the Hamilton County Department of Job and Family Services (“HCJFS” or “agency”). H.W., Jr.’s mother has not filed an appellate brief. The child’s guardian ad litem (“GAL”) and HCJFS have filed briefs in support of the grant of permanent custody to the agency. We affirm.
The record shows that H.W., Jr., entered agency care on an emergency basis in February 2019, shortly after his birth with illicit substances in his body. The child was adjudicated a dependent-and-neglected child in June 2019, and the agency was granted temporary custody. The parents failed to engage in the all the services requested by the agency for a return of custody. In January 2020, the agency moved for permanent custody on the grounds that the child could not be placed with either parent within a reasonable time, or should not be placed with either parent, and the child’s best interests dictated the granting of permanent custody to HCJFS.

6/10/2022
State of Ohio v. Eric Day
C-210503
Quote from Judge Bergeron:
In February 2020, Mr. Day was convicted of having a weapon while under disability and sentenced to three years of community control. Eighteen months later, Mr. Day was arrested after a search of his apartment revealed drugs and firearms. His probation officer filed a community control violation complaint, alleging that Mr. Day violated Rules 1, 3, 4, and 10 of community control. Mr. Day pled no contest to the alleged violations of Rules 1 and 10 and not guilty to the alleged violations of Rules 3 and 4. Rule 3 provides “I will not possess or carry a firearm or other lethal weapon,” whereas Rule 4 provides “I will not illegally obtain or use controlled substances.”
At the community control revocation hearing, Mr. Day’s probation officer testified that officers found him on the premises during an electronic-monitoring-unit search unrelated to him. The search revealed a Mercedes Benz containing a large stash of marijuana and three-quarters of a brick of fentanyl. Mr. Day, seated in an adjacent vehicle when the officers searched the Mercedes, insisted that he did not own the Mercedes, although he had the keys to it on his person. Further scrutiny revealed that he had a collection of keys that went to all of the vehicles and apartment units on the premises.

The trial court did not abuse its discretion by finding that defendant violated the terms of his community control when police discovered a cache of weapons in his apartment and drugs in a vehicle that he had the keys to.
       The trial court did not plainly deprive defendant of an opportunity to be heard and present evidence at a community control revocation hearing when defendant failed to proffer evidence at the hearing.

6/10/2022
Tiffany J. Souders v. Stephen T. Souders
C-210469
Quote from Judge Myers:
In 2014, the trial court issued a decree of dissolution of the marriage of Stephen and plaintiff-appellee Tiffany J. Souders, which incorporated a sharedparenting decree regarding the Souders’ two children. In 2016, upon Tiffany’s motion, the court terminated the shared-parenting decree and issued a decree for the allocation of parental rights and responsibilities that designated Tiffany as the residential parent and the legal custodian of the children. The court determined that Tiffany had been a “stable, secure, and effective parent,” and that Stephen’s stability had not been demonstrated. The court expressed concerns that Stephen had been “unable to address mental health issues which have an effect on his ability to function.”
The court issued a parenting-time order to establish the amount of time that the children would spend with Stephen, the nonresidential parent. The court conditioned Stephen’s parenting time upon his continued residence in his parents’ home, stating, “The concerns regarding Father’s functioning require a stable presence, such as the paternal grandparents, during his parenting time.” In addition, the court ordered that if Stephen ever wished to modify the parenting-time order, he would first have to obtain a mental-health assessment and present it to the court.

The trial court did not abuse its discretion by denying a nonresidential parent’s motion to modify its decree allocating parental rights and responsibilities where the parent failed to allege that a change had occurred in the circumstances of the children or of their residential parent as required by R.C. 3109.04(E)(1)(a).
The trial court did not abuse its discretion by denying a nonresidential parent’s motion to modify its parenting-time order where the parent failed to obtain a mental-health assessment in compliance with the court’s prior order.

6/10/2022
State of Ohio v. Ricardo Fuqua
C-210385, C-210386
Quote from Judge Myers:
Prior to trial, Fuqua filed a motion to suppress the evidence of driving under the influence of alcohol that had been obtained by the arresting officer, arguing that the officer did not have probable cause to arrest him. At the suppression hearing, the state presented evidence that at 12:30 a.m., during a heavy January snowstorm, police received a report about Fuqua from a township salt truck driver who was clearing the snow-covered roads. An officer found Fuqua “passed out, sleeping” in the driver’s seat of his running car, which was parked on the roadway at a stop sign. The officer said Fuqua’s car was stopped at a “T” intersection in a residential neighborhood. Fuqua did not wake up when the officer knocked on his window, or when the officer opened the door and spoke to him. The officer had to physically shake Fuqua to wake him.
The officer noticed that Fuqua had red, heavy eyes, and “a moderate odor of an alcoholic beverage that I could smell over a scent of cologne[.]” Fuqua was tired, disoriented, confused, and repeatedly tried to reach for something near the floor on the passenger side, but, the officer said, there was nothing to reach for in that area. Fuqua had slurred speech and admitted to consuming four drinks that night. He said that he was on his way home from a friend’s house. When Fuqua got out of his car, he was “very off balance,” and was “off balance either way he walked.” When Fuqua started to sway backward at one point, the officer put his hand on Fuqua’s back to keep him from falling.

The trial court properly denied defendant’s motion to suppress where defendant’s arrest was supported by probable cause that he was under the influence of alcohol while in physical control of a vehicle, where defendant did not challenge the physical-control aspect of the probable-cause finding, and where a police officer found defendant asleep at the wheel of his running car, which was illegally parked on a roadway at a stop sign, and defendant failed to wake despite the officer’s knocking on the window and did not wake until the officer physically shook him, and defendant was tired, disoriented, and confused, and defendant had slurred speech, admitted to consuming four drinks, and was off balance upon walking.
Because a police officer had probable cause to arrest defendant for having physical control of a vehicle while under the influence of alcohol, the state did not have to also demonstrate that the officer had probable cause to arrest defendant for operating a vehicle while under the influence of alcohol.
Defendant’s conviction for OVI was supported by sufficient evidence that he had operated the vehicle where defendant was found alone and asleep in the driver’s seat of his car, which was illegally parked at a stop sign, taking up a lane of travel, with the car running and its lights on, and defendant admitted that he had been on his way home from a friend’s house; the trier of fact could reasonably infer that defendant had moved the vehicle to that location.