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5/27/2022
State of Ohio v. MIchael Schilling
C-210363
Quote from Judge Zayas:
On June 11, 2008, Schilling, a Kentucky resident, pleaded guilty to and was convicted of attempted voyeurism in the Hamilton County Municipal Court for an incident that occurred on September 25, 2007. The trial court, albeit erroneously, classified him as a Tier I sex offender and informed him of his registration duties under Ohio’s version of the Adam Walsh Act (“AWA”). As a Tier I offender under Ohio law, Schilling was required to register annually for 15 years. Schilling was sentenced to 90 days, with 80 days suspended, a fine, costs, and three years of community control. He served his time, paid his fine and costs, and completed a sexoffender-treatment program. His community control was terminated. Because he was a Kentucky resident, Schilling registered with the Kentucky State Police as a sex offender.
In 2019, Schilling moved to Ohio. On September 10, 2019, Schilling filed a motion to terminate his registration duties under R.C. 2950.15. R.C. 2950.15 provides that an eligible offender may make a motion to the common pleas court requesting that the court terminate his duty to comply with the registration requirements “upon expiration of ten years after the eligible offender’s duty to comply * * * begins in relation to the offense for which the eligible offender is subject to those provisions.” R.C. 2950.15 (A), (B) and (C). An eligible offender “means a person who is convicted of, pleads guilty to, was convicted of, or pleaded guilty to a sexually oriented offense * * * regardless of when the offense was committed, and is a tier I sex offender * * *.” R.C. 2950.15(A).
Where defendant, a Kentucky resident, was convicted of attempted voyeurism in the Hamilton County Municipal Court in 2008 for an offense that had occurred in 2007, before the effective date of Ohio’s version of the Adam Walsh Act (“AWA”), and was erroneously classified as a Tier I offender under the AWA; where no appeal was taken from that judgment; and where in 2019 defendant moved to Ohio and filed a motion to terminate his registration duties under R.C. 2950.15, the trial court erred in entering an order stating that defendant was a sexually oriented offender under Ohio’s version of Megan’s Law: Because his Tier I classification was a part of his sentence, and the original trial court had subject-matter jurisdiction and personal jurisdiction over defendant, the Tier I classification was voidable, not void, and since it was never appealed it cannot be corrected, and therefore, defendant is a Tier I offender under the AWA and an eligible offender under R.C. 2950.15. See State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776.
Defendant is entitled to credit for the time he registered as a sex offender in Kentucky because by registering in Kentucky he was complying with his registration duties under Ohio law.
5/27/2022
State of Ohio v. Anthony Moss
C-210288, C-210289, C-210290, C-210291, C-210292, C-210293
Quote from Judge Winkler:
The record demonstrates that on March 27, 2019, Moss was arrested and charged with multiple offenses in several cases. The charges included obstructing official business, resisting arrest, aggravated menacing involving Cincinnati police officers, criminal damaging, driving under a license suspension, carrying concealed weapons, having weapons under a disability, and harassment with a bodily substance.
Moss was appointed counsel, who indicated at a probable cause hearing that Moss was under a parole holder. The cases were continued on the arraignment docket in Hamilton County until April 8, 2019, to await the grand jury report. Though bond had been initially set at $5000 for each charge, the judge subsequently raised the bond amount for two of the felony charges.
After the grand jury reported, some of the charges became the felony case numbered B-1901628 (“the felony case”) that was prosecuted in the Hamilton County Court of Common Pleas. At the election of the defense, the remaining misdemeanor charges were placed on the Hamilton County Municipal Court’s suspended docket and initially continued for about two and one-half months. Those remaining misdemeanor charges included the obstructing official business, resisting arrest, and aggravated menacing of police officers set forth in the case numbered 19CRB-73261 (“the misdemeanor case”) and at issue in this appeal. The charge of driving under a suspended license was set forth in a separate case (“the traffic case”).
6/1/2022
Victoria Morgan v. Mark G. Jones
C-210408
Quote from Judge Myers:
This is the second appeal that this court has heard concerning the sale of the parties’ residence. Morgan and Jones were granted a final judgment of divorce in 2019. Incorporated into the final judgment was the parties’ antenuptial agreement for the disposition of real and personal property.
The parties owned as tenants in common a residence in Mount Adams. The final judgment of divorce required the parties to place the home for sale within 90 days of the final judgment, but allowed either party to exercise a right of first refusal to purchase the home pursuant to the terms set forth in the antenuptial agreement. In his earlier appeal, Jones challenged the ordered sale of the residence, arguing that it was contrary to the terms of the antenuptial agreement. In a judgment entry, this court found no conflict between the terms of the parties’ antenuptial agreement and the judgment for divorce, and found that the trial court did not exceed its jurisdiction by ordering the sale of the property.
The trial court did not exceed its sentencing authority set forth in R.C. 2929.41(A), which requires a sentencing court to impose concurrent sentences of incarceration for felony and misdemeanor convictions absent a specified exception, because two sentences of incarceration cannot be served concurrently if they do not overlap.
Defendant’s claim that he was denied his constitutional right to the effective assistance of counsel required a showing of deficient performance and prejudice, a burden defendant failed to meet where his claim of prejudice—that he would not have to serve any incarceration for misdemeanor convictions when he had completed his sentence for a related felony conviction if counsel had acted with more diligence—was based on evidence outside the record, was not supported by the information in the record, and the “additional time” must be served regardless of any alleged deficiency by trial counsel due to a concurrent traffic-case sentence.
Defendant failed to demonstrate that the trial court abused its discretion when sentencing him to 60 days in jail for each of six misdemeanor convictions, to be served concurrently, where defendant’s sentences fell within the range authorized for the offenses and nothing in the record demonstrates that when fashioning his sentences the court failed to consider the purposes and principles of misdemeanor sentencing or anything presented at the time of sentencing.
6/3/2022
State of Ohio v. Elizabeth Fissel
C-210483
Quote from Judge Bergeron:
Shortly after being hired as the controller at Hadronics, Inc., defendant-appellant Elizabeth Fissel embarked on a brazen embezzlement campaign. For the next five and a half years, on a near-weekly basis, Ms. Fissel abused her position of trust by forging checks to herself, endorsing them with the company’s signature stamp, and depositing them into her personal account. Ms. Fissel’s responsibilities as controller allowed her to inaccurately record and report Hadronics’ expense obligations, effectively hiding the fraudulent deposits and making it seem (on paper) as if Hadronics was lurching towards financial distress. With no one at the company looking over her shoulder, she acted with impunity.
But she ultimately became a victim of the scheme’s success. In 2020, with the company teetering in a precarious financial situation, it forced Hadronics to downsize its labor force and payroll costs to stay afloat. In a twist of fate (or perhaps karma), Hadronics could no longer afford to employ a controller or a number of other employees. The company thereby eliminated Ms. Fissel’s position and she departed the same day, though not before accepting a severance agreement from Hadronics on the way out the door. Without Ms. Fissel’s manipulation of its accounting records, Hadronics quickly noticed inaccuracies and ultimately realized that she had stolen approximately $2.2 million during her nearly six-year tenure with the company.
The trial court did not commit plain error where it considered statements made in a victim-impact statement in its sentencing decision and where the trial court properly considered the sentencing statutory factors of R.C. 2929.11 and 2929.12.