Friday First District Roundup 8-23-19

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. Thomas Carberry
Case #C180540

Quote from Judge Mock's Opinion:

Following a guilty plea, defendant-appellant Thomas Carberry was convicted of one count of gross imposition (“GSI”) under former R.C. 2907.05(A)(4). He was sentenced to 30 months in prison. At that time, both the state and Carberry agreed that he was entitled to 175 days of jail-time credit, and the trial court awarded him that amount.

Carberry appealed that conviction. He contended that he was entitled to 354 days of credit, although he had agreed with the 175 day figure at the time. The state agreed that Carberry was not given the proper amount of jail-time credit, but it contended that he was only entitled to an additional 13 days of credit, for a total of 188 days. In State v. Carberry, 1st Dist. Hamilton No. C-170095, 2018-Ohio-1060, we affirmed his conviction in most respects. But, because the parties agreed that the award of 175 days of credit was incorrect, we remanded the case for the trial court to determine the proper amount of jail-time credit.


Marlon D. Ralls v. Gail Lewin
Case # C180526

Quote from Judge Myers' Opinion:

In two related assignments of error, Marlon D. Ralls argues that the trial court erred by entering summary judgment in favor of Gail Lewin1 on Ralls’s claims stemming from an automobile accident on October 31, 2015. Because we find procedural errors requiring reversal, we do not reach the merits of Ralls’s arguments.

State of Ohio v. Jesten Waller 
Case #C180505

Quote from Judgment 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).

Counsel now requests that this court independently examine the record to determine whether the appeal is wholly frivolous. See Anders at 744. We have done so, and we agree with counsel’s conclusion that the proceedings below were free of error prejudicial to appellant and that no grounds exist to support a meritorious appeal. Therefore, we overrule counsel’s motion to withdraw from his representation of appellant, and affirm the judgment of the trial court.

State of Ohio v. Roderic O. Hendrix 
Case # C180503

Quote from Judge Myers' Opinion:

Roderic O. Hendrix appeals his conviction, following a bench trial, for carrying a concealed weapon in violation of R.C. 2923.12(A)(2). Hendrix contends that the trial court erred by finding him guilty of the offense because the state failed to prove, as an element of the offense under R.C. 2923.12(C)(1)(c), that he possessed the weapon for an unlawful purpose. However, because we conclude that R.C. 2923.12(C)(1)(c) creates an affirmative defense, which Hendrix failed to prove by a preponderance of the evidence, we affirm his conviction.

Stephen Loukinas, Individually and as Parent and Next Friend of his minor children, Stephen, Jr. Bradyn, Hailey, and Austin Loukinas, Joyce Loukinas, Individually and as Parent and Next Friend of his minor children, Stephen, Jr. Bradyn, Hailey, and Austin Loukinas, Bradyn Loukinas, Hailey Loukinas, Austin Loukinas and Stephen Loukinas, Jr. v. State Farm Mutual Auromobile Insurance Company
Case #C180462

Quote from Judge Myers' Opinion:

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s order granting in part the motion to compel discovery by the plaintiffs-appellees in their action for a declaratory judgment, breach of contract, and bad-faith handling of their uninsured-motorist claim.

State of Ohio v. Kaitlin Jackson 
Case #C180246

Quote from Judge Crouse's Opinion:

Kaitlin Jackson has appealed her sentences in two cases in which she pled guilty to a string of burglaries and receiving stolen property. In one assignment of error, Jackson argues that the trial court failed to comply with Ohio law and imposed a sentence which was unconstitutionally excessive.

During the sentencing hearing, the trial court failed to make the findings required by R.C. 2929.14(C)(4) in order to impose consecutive sentences, and so we vacate the consecutive nature of the sentences and remand the cause for a new sentencing hearing on that issue only. We affirm in all other respects.

In re: R.B.

Case #C180176

Quote from Judge Crouse's Opinion:

R.B. has appealed the judgments of the juvenile court continuing his classification as a Tier I juvenile-offender registrant under Ohio’s version of the Adam Walsh Act. We vacate the judgments of the juvenile court continuing R.B.’s Tier I classification, because we hold that the juvenile court had no jurisdiction to enter an order continuing R.B.’s Tier I classification after he had turned 21 and his disposition, by its own terms, had ended.

State of Ohio v. Victor Sanchez Martinez
Case # C180580

Quote from Judge Mock's Opinion:

Defendant-appellant Victor Sanchez Martinez (“Sanchez”) appeals from the trial court's October 9, 2018 judgment entry finding that he violated his community-control sanctions and imposing a sentence of 12 months in prison. For the reasons set forth below, we affirm the trial court's judgment.

State of Ohio v. Robert Brown
Case #C180181

Quote from Judge Bergeron's Opinion:

Pretending that your finger is a gun for purposes of committing a robbery will not excuse you of criminal liability for the robbery, but it does prevent a conviction for offenses dependent on actually having a firearm. Defendant Robert Brown entered a video game store with his hand shrouded in a bag, gesturing as if he held a gun underneath. The store’s video footage, however, reveals that he did not possess an actual firearm because he eventually pulled his hand out from the bag without any weapon, held the bag open wide with both hands, and one of the witnesses peered into the bag (and never claimed to have seen a weapon). For that reason, we reverse Mr. Brown’s aggravated-robbery conviction with the accompanying firearm specification, and we remand the cause for the trial court to enter a judgment of conviction for robbery under R.C. 2911.02(A)(2).