2013 Cincinnati Court of Appeals Decisions

In reviewing the 852 appeals filed in 2013 in the First Appellate District of Ohio, covering Cincinnati and Hamilton County, several results are noteworthy.

As in prior years, the number of involuntary dismissals was striking. Almost 36% of all civil appeals were dismissed involuntarily (112/313 total civil cases), and a further 13.1% of civil appeals were voluntarily dismissed (41/313), yielding a total of 153 dismissals out of 313 total civil cases. Thus a total of 49% of all civil appeals were dismissed.

Because of a juvenile court judge who has since been removed from the bench, twelve extraordinary writs were granted, including eleven mandamus orders to do her job, one prohibition order that she not restrict the press improperly, and one finding the judge in contempt of the court of appeals for disregarding its instructions. Another 14 juvenile delinquency findings by that judge were reversed on appeal.

In criminal cases, the trial court’s decisions were affirmed in 57.5% of all appeals filed in 2013 (273 affirmed of 475 filed). 18.5% were involuntarily dismissed (88 of 475) and 7.4% were voluntarily dismissed (35 of 475), for a total dismissal rate of 25.9% (123 of 475).

Reversals or modifications to the trial court decision in criminal cases were granted in 79 of the 475 total (16.6%). That is up from the percentage of criminal reversals in 2006 & 2007, when the rate was 10.5% and 10.7% respectively.

Civil appeals filed in 2013 resulted in reversals or modifications to the trial court in 45 of 313 civil cases (14.4%). The trial court’s decisions were affirmed in 35.8% of civil cases. Voluntary dismissals amounted to 13.1% (41/313), and involuntary dismissals were 35.8% (112/313), for a total dismissal rate of 49% (153/313).

There were a total of 63 applications for extraordinary writs – 3 habeas corpus (all unsuccessful), 22 mandamus (one granted), 31 procedendo (11 granted), 6 prohibition (one granted), and one contempt (which was granted).

Three class action cases are all stayed pending a decision by the Ohio Supreme Court. Disregarding one sealed case for which no information is available, of the 851 appeals filed in 2013, the following statistics are noteworthy:

CIVIL

A. No reversals were obtained by any appellant in the following types of cases:

1. Tax appeals – of four cases filed, one was affirmed, and three were dismissed (two voluntary and one involuntary)

2. Civil service appeal – one case affirmed

3. Declaratory judgment – one case affirmed

4. Two attempted delayed appeals, both dismissed involuntarily, as Ohio does not allow late civil appeals

5. One easement case, affirmed

6. Two forfeiture cases, one affirmed and one involuntarily dismissed

7. Four injunction cases, one affirmed, one voluntarily and two involuntarily dismissed

8. Nine probate case appeals resulted in two affirmed and seven involuntarily dismissed

B. Noteworthy civil reversals include:

1. In a 60(B) case, the trial court had vacated a three-year old judgment; the attorney successfully secured a reversal of that decision based upon the judgment having been more than one year old and thus not eligible for relief.

2. One arbitration provision originally denied by the trial court was enforced on appeal.

CRIMINAL

A. No reversals were obtained in the one death penalty case appealed in 2013, or in the four criminal cases in which the appellate lawyers stated that they could find no error. Two expungement appeals were both involuntarily dismissed.

B. Of 38 delayed appeals filed in criminal cases, 9 were allowed but all ultimately were unsuccessful.

C. Noteworthy criminal cases were:

1. Contempt case against attorney was reversed, with the court finding that the trial court abused its discretion in finding the attorney in contempt where his conduct did not constitute an immediate threat to the administration of justice.

2. In a very odd exhibit issue case, the attorney secured a reversal and discharge of the defendant where a key exhibit had not been made part of the record. Where a video was in three parts and the key portion had not been made part of the record in appeal because it lay undisclosed in the city prosecutor’s file until oral argument, despite the attorney’s attempts to secure it, the Court of Appeals held that, “The city, “knew that the DVD was missing and that [defendant’s] counsel was making every effort to make the DVD a part of the appellate record.” It thus limited review to the record before it, held that there was insufficient evidence, and discharged the defendant from further prosecution.

3. The State of Ohio successfully appealed the modification by the trial court of a sentence on remand from the court of appeals. The remand had been limited to notifying the defendant of post-release control, but the trial court changed consecutive sentences to concurrent sentences, effectively reducing the defendant’s 20 year prison term to ten years. The Court of Appeals held that the trial court lacked jurisdiction to modify the sentences, and remanded the case.

4. Sr. Assistant City Prosecutor secured the reversal of a Municipal Court decision allowing withdrawal of a no-contest plea and retroactively applying the U.S. Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010). Trial counsel had allegedly failed to advise the defendant of the immigration consequences of conviction, but the Court of Appeals held that the trial court erred in allowing the plea withdrawal, as the Padilla decision was not retroactive.

5. One attorney secured the reversal of an order denying a motion for new trial without an evidentiary hearing. His client was convicted of felony murder in 2007; he now moved for a new trial based upon newly discovered evidence. He had been unable to timely discover evidence that part of the hospital report, emergency run medical report, and impeachment evidence had not been disclosed by the prosecution, and was entitled to a hearing on the new trial motion.

6. Another attorney secured a reversal where the trial court failed to merge aggravated menacing and domestic violence convictions, as they are allied offenses of similar import.

7. The Ohio Public Defender’s Office secured an order permitting a hearing on withdrawal of a guilty plea of a sex offender who had been convicted of violating Ohio’s current registration law (Adam Walsh Act) when he should have been charged with violating the former law (Megan’s Law).

8. One pro se appellant secured a delayed appeal which resulted in a decision that the trial court erred in not suspending the his driver’s license and not notifying him of post-release control, but those errors were moot because he had been released from prison and was not placed on post-release control.

9. Another pro se appellant won a reversal of his conviction where the trial court had erred in failing to determine that his waiver of counsel had been made knowingly, intelligently, and voluntarily.

Paul Croushore
http://paul-croushore.com
Master of Laws wins 45.0% of career direct appeal cases, compared to 7.3% national federal court reversal average in 2014.

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