Friday First District Roundup 9-17-21

Joseph P. Houlihan v. Sarah Morrison, Administrator, Ohio Bureau of Workers' Compensation, Hamilton County 
Case # C200382 
Quote from Judge Crouse's Opinion:
Plaintiff-appellant Joseph Houlihan appeals the judgment of the Hamilton County Court of Common Pleas denying his request to participate in the workers’ compensation fund for the substantial aggravation of preexisting medical conditions. For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedure
Houlihan first began experiencing back pain in 2013. At the time, Houlihan was employed as a maintenance repair worker and part-time landscaper with defendant-appellee Hamilton County. The county had recently ended its contract with Blue Sky Lawn and Landscape, and assigned all landscaping work to its maintenance workers. The landscaping assignment spanned over 30 consecutive Saturdays and entailed various activities, including grass cutting and mulching.
On July 15, 2013, Houlihan filed a First Report of Injury (“FROI”). He listed “[u]nknown damage to both shoulders.” Houlihan subsequently sought treatment with Dr. Arthur Lee, an orthopedic surgeon. In October 2013, Lee filed a second FROI on behalf of Houlihan. Lee listed injuries to “both shoulders and lower back to a lesser degree.” Houlihan never received formal treatment on his back. Houlihan was permitted to participate in the workers’ compensation fund for right shoulder rotator cuff sprain, right shoulder labral tear, right shoulder rotator cuff tendonitis, left shoulder sprain, left shoulder labral tear, left shoulder rotator cuff tendinopathy, and lumbar sprain. 

State of Ohio v. Sonya Staley 
Case #C200272 
Quote from Judge Crouse's Opinion:
Defendant-appellant Sonya Staley appeals from three municipal court judgments in which she was convicted of criminal trespass, disorderly conduct, and resisting arrest. For the reasons set forth below, we affirm the judgments of the trial court.
I. Facts and Procedure
On August 1, 2019, Cincinnati Police Officer Carlos Sherman was working an off-duty detail for the Cincinnati Center City Development Corporation (“3CDC”) at Ziegler Park. Around 5:30 p.m., Sherman received a request for assistance from a 3CDC staff member. When Sherman arrived on the scene, he saw Staley lying flat on a cement park bench with sunglasses covering her eyes. According to Sherman, 3CDC had recently implemented a rule that prohibited park goers from lying down in Ziegler Park. He testified that the policy was put into effect that summer as a means of decreasing the number of false overdose calls received by the city.
Sherman testified that he approached Staley and asked her to sit up in accordance with park policy. Sherman claimed that he repeated the order three or four times before Staley briefly sat up. Staley testified that she informed Sherman that she could not sit for extended periods of time due to a medical condition. She then lay back down on the bench. At that point, Sherman activated his body-worn camera. The body camera captured the remainder of the encounter.

State of Ohio v. Nigha Dockery
Case #C200408 
Quote from Judge Bergeron's Opinion: With her frustration boiling over towards her boyfriend, defendantappellant Nigha Dockery vented her anger by throwing a brick through Chayna Givens’s patio door, believing him to be at her apartment. The trial court found Ms. Dockery guilty of criminal damaging, and she argues on appeal that her conviction was against the weight and sufficiency of the evidence based on inconsistencies in Ms. Givens’s statements. Because we find the trial court’s credibility determinations to be reasonable, we overrule Ms. Dockery’s sole assignment of error and affirm her conviction.
The events leading up to this case began after Ms. Dockery became upset with her boyfriend, Gary Tucker, who is also the father of Ms. Givens’s daughter. Mr. Tucker stopped by Ms. Givens’s apartment to visit his daughter one morning, and Ms. Dockery took the opportunity to drive back and forth, hurling insults at him. Ms. Givens and Mr. Tucker soon left to take their daughter to visit an aunt. But after Ms. Givens returned later that day, Ms. Dockery again attempted to confront Mr. Tucker by yelling and blowing her car horn outside Ms. Givens’s residence. This prompted a texting volley between Ms. Givens and Ms. Dockery in which Ms. Givens adamantly denied that Mr. Tucker was at her apartment. Ms. Dockery eventually left but, unsatisfied, she later called Ms. Givens using a blocked number. Ms. Givens promptly ended the conversation, but Ms. Dockery called back another ten times within the next few minutes.

State of Ohio v. Shannon Merritt 
Case #C200351 
Quote from Judge Bock's Opinion:
Defendant-appellant Shannon Merritt appeals the Hamilton County Common Pleas Court’s judgment dismissing his “Motion in Support of Petition to Vacate or Set Aside Void Sentence.” We affirm the court’s judgment.
Procedural Posture
In 2017, Merritt was convicted upon guilty pleas to felonious assault, rape, and kidnapping. The trial court imposed agreed prison terms totaling 11 years. We affirmed his convictions in the direct appeal because his guilty pleas were knowing, voluntary, and intelligent. State v. Merritt, 1st Dist. Hamilton No. C170649, 2018-Ohio-4995.
Merritt also challenged his convictions in his 2020 “Motion in Support of Petition to Vacate or Set Aside Void Sentence.” In that motion, he sought relief from his convictions on two grounds. He asserted that his rape and kidnapping sentences are void because those offenses are allied offenses of similar import subject to merger under R.C. 2941.25. He further asserted that his sentences are void and contrary to law and that he was denied due process because the trial court did not make statutory sentencing findings or consider the statutory sentencing purposes and principles or seriousness and recidivism factors, as required by R.C. 2929.11, 2929.12 and 2929.14. 

State of Ohio v. Markebra Hall
Case #C200300 
Quote from Judge Myers' Opinion:
Following a jury trial, defendant-appellant Markebra Hall was found guilty of operating a vehicle while under the influence of alcohol and operating a vehicle with a prohibited breath-alcohol level, both of which were OVI offenses. She was also found guilty of failing to maintain reasonable control. The trial court merged the under-the-influence OVI offense with the prohibited-breath-alcohol OVI offense, and sentenced Hall for the prohibited-breath-alcohol OVI offense. Because Hall was therefore not convicted of the under-the-influence OVI offense, this court lacks jurisdiction to hear the appeal relating to that offense, so we dismiss the appeal in the case numbered C-200298. And, finding no merit to Hall’s challenges to her prohibited-breath-alcohol OVI and reasonable-control convictions, we affirm the trial court’s judgments in the cases numbered C-200299 and C-200300.
Background Facts and Procedure
At trial, the state presented evidence that, on October 15, 2019, Hall and her boyfriend Anthony Holly (“Holly”) were the only two occupants of a car that crashed into a moving garbage truck.
Michelle Wissman Schwiebert testified that she was driving on Gilbert Avenue when she saw a car go left of center and collide with a garbage truck. She called 911 and reported that the driver did not get out of the car, but that the passenger jumped out.

State of Ohio v. Mohamed Diol 
Case #C200285 
Quote from Judge Winkler's Opinion:
Defendant-appellant Mohamed Diol appeals the Hamilton County Common Pleas Court’s judgment denying his “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States.” We reverse the court’s judgment.
Procedural Posture
Diol was indicted in February 2017 for marijuana trafficking and possession and possessing criminal tools. In June, pursuant to a plea agreement, he withdrew his motion to suppress, withdrew his not-guilty pleas, and entered guilty pleas to marijuana trafficking and possession, in exchange for dismissal of the criminal-tools charge. In July 2017, following a hearing, the trial court accepted the pleas, found Diol guilty, and imposed for each offense one day of confinement, three years of intensive-supervision community control, a six-months driver’s-license suspension, and 100 hours of community service. Diol did not appeal those convictions.
Six months later, Diol filed with the common pleas court his “Emergency Motion to Vacate Guilty Plea under Padilla v. Kentucky and Lee v. United States.” In that motion, Diol sought relief from his convictions on the ground that his guilty pleas had been the involuntary, unknowing, and unintelligent product of his trial counsel’s ineffectiveness in failing to advise him that his convictions upon his guilty pleas to those drug offenses subjected him to mandatory deportation and exclusion from the United States. Diol supported the motion with his own affidavit. He averred that he was a citizen of Mauritania, that trial counsel had advised him that his convictions “would not result in automatic deportation [but] that at most it possibly could make it discretionary,” and that if he had known that his pleas would “lead to automatic deportation,” he would not have pled guilty.