Friday First District Roundup 7-24-20

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

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State of Ohio v. James Williams
Case #C190382

Quote from Judge Myers' Opinion:

Defendant-appellant James Williams appeals the trial court’s judgment denying his motion for additional jail-time credit. Because the record does not establish that Williams is entitled to additional days of jail-time credit, we affirm the trial court’s judgment.

Williams was indicted on two counts of aggravated vehicular homicide and two counts of operating a vehicle while under the influence of alcohol or drugs. Williams had been incarcerated in Arizona, and he was extradited from Arizona to Ohio to stand trial for these offenses. Following a jury trial, Williams was found guilty of both counts of aggravated vehicular homicide and one count of operating a vehicle under the influence of alcohol or drugs. The offenses were merged at sentencing into one count of aggravated vehicular homicide, and Williams was sentenced to eight years in prison.1 The trial court awarded Williams 578 days of jail-time credit. This included 563 days of credit for time he was incarcerated in the Justice Center while awaiting trial, and 15 days of credit for his time in transport from Arizona to Ohio.

State of Ohio v. Terry Lee Griffin
Case #C190369

Quote from Judge Crouse's Opinion:

Defendant-appellant Terry Lee Griffin was charged with improperly handling a firearm in a motor vehicle in violation of R.C. 2923.16(E)(1). After a twoday bench trial, he was found guilty, sentenced to 180 days in jail, and ordered to pay a $100 fine and court costs. The court suspended the sentence and placed Griffin on probation for one year. The court also ordered that two handguns seized from him during the arrest be forfeited.

Griffin has appealed, arguing in four assignments of error that: (1) his conviction was based on insufficient evidence and was against the manifest weight of the evidence; (2) the trial court erred in sentencing him for a first-degree misdemeanor rather than a minor misdemeanor; (3) the trial court erred in forfeiting the handguns that were confiscated from him at the time of his arrest; and (4) R.C. 2923.16(E)(1) is unconstitutionally vague and violates Article I, Section 16 of the Ohio Constitution, and the Due Process Clause in the Fourteenth Amendment to the United States Constitution.

For the following reasons, we sustain Griffin’s third assignment of error as to the Springfield firearm, but overrule it as to the Kel-Tek firearm. We overrule all other assignments of error and affirm the judgment of the trial court in all other respects

In re: S. Children
Case #C200169

Quote from Judge Myers' Opinion:

Mother and father appeal the trial court’s entry granting permanent custody of their children to the Hamilton County Department of Job and Family Services (“HCJFS”). Because the trial court’s finding that the children cannot or should not be placed with either parent within a reasonable time was not supported by sufficient evidence, we reverse its grant of permanent custody.

Mother and father are the parents of J.J.S. and J.K.S. In June 2018, HCJFS was granted interim custody of the children after it filed a motion for custody and an affidavit alleging that mother, who previously had her parental rights terminated with respect to a sibling of J.J.S. and J.K.S., was recently charged with two counts of operating a vehicle while under the influence of drugs (“OVI”). Because the children were in the vehicle at the time of the second OVI offense, mother was also charged with child endangerment. The affidavit further alleged that mother reported that father was physically abusive. It detailed incidents that mother had described involving abuse by father, including an episode in which father threw a flaming lighter at her, and a separate incident in which father struck her with a vehicle when she attempted to stop him from leaving with J.K.S.

State of Ohio v. Ledon Spurling
Case #C190629

Quote from Judge Zayas' Opinion:

Defendant-appellant Ledon Spurling appeals the judgment of the Hamilton County Common Pleas Court dismissing for lack of jurisdiction his 2019 “Motion to Vacate Void Judgment.” We affirm the court’s judgment.

In 2005, Spurling was charged in a two-count indictment with trafficking in and possession of 1.35 grams of crack cocaine. Count one, charging third-degree-felony trafficking, was subsequently amended to charge third-degreefelony possession. And on November 9, 2005, Spurling executed a form withdrawing his not-guilty pleas, pleading guilty to count one as amended, and agreeing to a twoyear prison term. The trial court accepted his guilty plea in conformity with Crim.R. 11, found him guilty of third-degree-felony possession as charged in amended count one, and set a date for sentencing.

State of Ohio v. Jabari Grimes
Case #C190599

Quote from Judge Bergeron's Opinion:

A plea and concomitant sentence withstand scrutiny in this appeal when the trial court adequately explained the nature of the charges to the defendant, dutifully walked through all of the prerequisites to a plea, and considered all of the points raised in advance of sentencing before imposing a sentence within the appropriate range. We accordingly affirm the defendant’s conviction and overrule his trio of assignments of error.

In August 2019, defendant-appellant Jabari Grimes pled guilty to one count of having a weapon while under a disability with an accompanying forfeiture specification. The plea hearing began routinely enough, with a rendition of the facts. The state explained that in May 2019, Mr. Grimes possessed a firearm while under a disability—this disability tracing to a 2010 adjudication as a delinquent child for the commission of an offense that if committed by an adult would equate to a felony offense of violence (specifically, burglary). After confirming Mr. Grimes understood the facts at hand, the court then embarked upon a Crim.R. 11 colloquy, describing the effect of his guilty plea and the constitutional rights waived. As Mr. Grimes supplied the proper answers to this familiar incantation, the trial court ultimately accepted his plea, finding him guilty of having a weapon while under a disability with a forfeiture specification.

In re: Glenn Feagan, Esq.
Case #C190544

Quote from Judge Mock's Opinion:

Appellant Glenn Feagan, Esq., appeals from the decision of the Hamilton Count Court of Common Pleas finding him in contempt and ordering him to pay a $250 fine. We find merit in one of his two assignments of error, and we reverse the finding of contempt and order Feagan discharged.

The record shows that in August of 2017, the Ohio Supreme Court appointed appellee retired Judge Mark Schweikert (“the judge”) to oversee hundreds of medical-malpractice cases pending in the Hamilton County Court of Common Pleas against former spine surgeon Abubaker Atiq Durrani. Many of the plaintiffs in those cases were represented by the Deters Law Firm. Eric C. Deters is a paralegal and victim advocate for the firm.

On April 27, 2018, the judge issued orders under more than 450 different case numbers prohibiting public comment on all pending Durrani cases. The orders stated, “This Court has found that continued extrajudicial statements about this case are reasonably likely to prejudice the proceedings and inhibit the right of the parties to a fair and impartial jury.”

State of Ohio v. Anthony Criswell
Case #C190531

Quote from Judge Mock's Opinion:

Defendant-appellant Anthony Criswell appeals the Hamilton County Common Pleas Court’s judgment overruling his “Motion for Summary Judgment and to Set Resentencing Date.” We dismiss the appeal for lack of jurisdiction.

In 2000, Criswell was convicted of cocaine possession, preparation of cocaine for sale, and having weapons under a disability. Subsequent challenges to those convictions in the direct appeal and in a postconviction motion culminated in the 2012 entry of judgment convicting him on the drug charges. See State v. Criswell, 1st Dist. Hamilton Nos. C-000222, C-000229 and C-000230, 2001 WL 300727 (Mar. 16, 2001); State v. Criswell, 1st Dist. Hamilton Nos. C-110135 and C110286, 2011-Ohio-5786. We affirmed that judgment on direct appeal. State v. Criswell, 1st Dist. Hamilton No. C-120216 (Nov. 30, 2012).

In 2019, Criswell filed with the common pleas court his “Motion for Summary Judgment and to Set Resentencing Date.” In that motion, he sought a new sentencing hearing on the ground that the sentences imposed for his drug offenses were void to the extent that they were not imposed in conformity with the statutes governing the imposition of postrelease control.

State of Ohio Department of Taxation v. Diane Gingrich
Case #C190455

Quote from Judge Crouse's Opinion:

Defendant-appellant Diane Gingrich appeals the judgment of the trial court ordering her to pay back taxes to the Ohio Department of Taxation (“state”). She argues in two assignments of error that she was deprived of the benefit of 26 U.S.C. 83, 212, 1001, 1011, and 1012, and due process. For the reasons discussed below, her appeal is moot, and therefore, it is dismissed.

The state obtained two judgments against Gingrich for her failure to pay income taxes in tax years 2012 and 2014. The state moved to collect the judgments by garnishing Gingrich’s wages. Gingrich filed an objection and requested a wage-garnishment hearing pursuant to R.C. 2716.06. The magistrate overruled Gingrich’s objections to the garnishment. Gingrich filed an objection to the magistrate’s decision. The trial court overruled Gingrich’s objection and adopted the magistrate’s decision. Gingrich filed a timely appeal.

Ronald Schuster v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, UC Health
Case #C180687

Quote from Judge Mock's Opinion:

The trial court improperly determined that the medical claims in this case were untimely filed because the saving statute can be invoked in conjunction with the statute of repose to allow for the timely refiling of a complaint within one year of the voluntary dismissal of a complaint filed within the statute of repose. For the reasons below, we reverse the trial court’s judgment.

Plaintiff-appellant Ronald Schuster visited defendant-appellee Abubakar Atiq Durrani to seek treatment for his back pain following a 2009 injury. Durrani performed surgery on Schuster on December 8, 2010. Schuster eventually sued Durrani, as well as defendants-appellees Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, and UC Health (hereinafter “appellees”), for claims arising from that surgery. The complaint was originally filed in the Butler County Court of Common Pleas on April 9, 2013. That complaint was voluntarily dismissed in December 2014 pursuant to Civ.R. 41(A). Schuster then refiled the suit below on November 19, 2015.

Wells Fargo Bank, National Association, as Trustee for Securitized Asset backed Receivables LLC 2005-FR3 Mortgage Pass-Through Certificates, Series 2005-FR3 v. Dionne Y. Riddle, Rodney Riddle
Case #C180386

Quote from Judge Crouse's Opinion:

Defendants-appellants Dionne and Rodney Riddle appeal from the trial court’s judgment confirming the sheriff’s sale of the Riddles’ property. For the reasons set forth below, we affirm the judgment of the trial court.

On February 15, 2005, Dionne and Rodney Riddle executed a mortgage note in the amount of $208,800. On May 4, 2010, plaintiff-appellee Wells Fargo Bank, N.A., (“the bank”) brought a foreclosure action against the Riddles. The bank alleged that the Riddles failed to pay on the note and owed $199,857.90 plus interest. The bank sought to have the mortgage foreclosed and the Riddles’ property sold to satisfy the unpaid balance.