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Case Update

Not much on the Ohio Supreme Court's agenda this week.  Perhaps the most significant decision was In re Andrew.  Andrew had been adjudicated a delinquent and shipped off to the Department of Youth Services.  At age 17, he was cited as a parole violator, but the hearing didn't take place until after he'd turned 18.  The trial and appellate courts held that Andrew was an adult by that time, and therefore his waiver of counsel was valid.  The Supreme Court reversed that, finding that the statute provides that the juvenile court has jurisdiction "over any person who is adjudicated an unruly child prior to attaining eighteen years of age until the person attains twenty-one years of age."  Thus, Andrew's waiver of counsel had to comply with those for a juvenile -- i.e., either his parent, guardian, or custodian had to be there, or he had to have consulted with an attorney.

Andrew is a 4-3 decision, and frankly, the dissenters have a better argument that the statute refers only to whether the juvenile court has jurisdiction, not over the procedure it must apply in determining a valid waiver of counsel.

The other notable decision was State ex rel. Upton v. Indus. Comm., in which the court held that a trucker who was fired for being involved in an accident was still entitled to temporary total disability benefits for the injuries he sustained in the accident.  This is in keeping with the court's decision last year in State ex rel. Gross v. Indus. Comm., which I discussed at the bottom of this post back then. 

There were a couple of disciplinary cases, too, which tell us that skipping out on clients isn't a good idea (to say nothing of representing an estate in a wrongful death case against your own brother), nor is running a company that engages in mortgage fraud.  As if we didn't know. 

As for the courts of appeals...

Criminal.  The defendant claimed he was entitled to  jail-time credit for the time he spent in halfway house; the 5th District holds that the trial court must hold hearing to determine whether defendant was "not free to come and go," which would meet the qualification of "confinement" necessary to trigger the credit... A non-citizen defendant claims the trial court failed to notify him of the possible consequences of his plea, such as deportation; "substantial compliance" with the notification requirement is all that's necessary, and the 10th District rules that it happened here, because trial court asked the attorney at the plea whether he'd advised his client of those consequences, and although the attorney can't remember now whether he did, he says he's sure he did because it was his usual practice to do so... Failure to advise a defendant that his plea of guilty to charge of intimidation could be used to enhance a future federal sentence doesn't render the plea involuntary or unknowing, says the 10th District... 8th District says that trial court doesn't have to hold a hearing on restitution if defense doesn't object to amount... Defendant indicted for braking and entering, pleads to amended indictment for receiving stolen property; 3rd District says that amendment is invalid under Rule 7(D) because it changes identity of crime, defendant did not waive issue by pleading guilty...

Civil.  8th District says that where the husband put his Social Security checks into a safety deposit box, along with his paychecks and the couple's income tax refunds, he couldn't provide sufficient evidence tracing the property as separate, and thus they became marital property... 8th also says that where defendant failed to file an answer, court erred by denying plaintiff's motion for default judgment... 5th District holds that a police report isn't evidence which can be considered on a motion for summary judgment, and neither are depositions which haven't been filed with the court... 9th District says that defendants did not validly waive jury trial, where their counsels' supposed waiver was not made in court or journalized... Rare reversal of change of custody:  4th District holds that relocation of custodial parent from Hawaii to Illinois (movant lived in Ohio) did not create change of circumstances...

Bar exam question.  Fascinating case out of the 10th District on the intricacies of summary judgment procedure:  (a) a party can withdraw a motion for summary judgment just by filing a notice that they're doing that (although other courts, like the 8th, require the trial court to grant permission to withdraw); (b) even though the motion's been withdrawn, the trial court can still rule on it, and (c) there is such a thing as "equitable tolling" of a statute of limitations, but the attorney getting sick and missing the filing date doesn't cut it.


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