THE COURT OF APPEALS OF OHIO SECOND APPELLATE ...

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Case Name: State of Ohio v. Samuel J. Atkins Case No.: Miami App. No. 2011 CA 28 Panel: Donovan, Hall, Vukovich Author: Mary E. Donovan Summary: Trial court erred when it found that the police who were involved in the high speed chase and eventual capture of appellant were “victims” for the purpose of finding him ineligible for ILC pursuant to R.C. 2951.041(B)(7). Nevertheless, the error is harmless since the trial court, in the exercise of its discretion, found that ILC would demean the seriousness of the offense pursuant to R.C. 2951.041(B)(6) as this was a multi-county chase with speeds in excess of 100 m.p.h. Judgment affirmed. Case Name: State of Ohio v. Deirdre Nichols Case No.: Montgomery App. No. 25056 Panel: Grady, Fain, Donovan Author: Mary E. Donovan Summary: Record reveals no arguably meritorious issues for appellate review. [Anders brief]. Judgment affirmed. Case Name: State of Ohio v. Michael A. Nabors Case No.: Montgomery App. No. 24582 Panel: Grady, Fain, Donovan Author: Mary E. Donovan Summary: The trial court did not err in overruling Appellant’s motion to suppress, since the State established that Appellant’s consent to provide a saliva sample for DNA testing was freely and voluntarily given. Appellant was not in custody when interviewed, the investigating officer was not required to administer Miranda warnings, and ineffective assistance of counsel is not demonstrated where defense counsel withdrew the branch of the motion to suppress directed to Appellant’s statements, if any. Judgment affirmed. Case Name: State of Ohio v. Christopher D. Henry Case No: Montgomery App. No. 25007 Panel: Grady, Fain, Donovan Author: Mike Fain Summary: Placing a GPS tracking device on the underneath of a car to track a suspect’s movements, without a warrant, violates the Fourth Amendment, and evidence obtained as a result is subject to exclusion. United States v. Jones, 565 U.S. ____, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), followed. The State relied upon Davis v. United States, ____ U.S. ____, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), for proposition that police officer’s placing GPS tracking device was in objectively reasonable reliance upon non-binding judicial authorities, thereby triggering goodfaith exception to exclusionary rule. This reliance is misplaced, in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Appeals Case Summary, October 12, 2012 Page 2
view of express exception from the scope of the holding in Davis of warrantless searches in jurisdictions in which the question of the lawfulness of the search remains open. 131 S.Ct. 2433. Reversed and Remanded. Case Name: Barbara J. Pearl v. Benny J. Pearl Case No.: Champaign Co. App. No. 2012-CA-6 Panel: Grady, Fain, Donovan Author: Thomas J. Grady Summary: A variance between a division and distribution of a pension retirement benefit in the separation agreement incorporated into a decree of dissolution and a QDRO implementing the decree is error which is voidable for a violation of R.C. 3105.171(I) and subject to review on appeal; our holding in Bagley v. Bagley, 181 Ohio App.3d 141, 2009- Ohio-688, 908 N.E.2d 469, that the error instead renders the QDRO void is overruled; because the QDRO the court ordered is a final order that was not appealed, the domestic relations court erred when it modified the QDRO to provide for a new and different division and distribution of pension retirement benefits the court found would better implement the terms of the decree of dissolution. Reversed and remanded. Case Name: State of Ohio v. Demetrius Davis Case No.: Montgomery Co. App. No. 24927 Panel: Grady, Donovan, Hall Author: Thomas J. Grady Summary: Anders brief; Affirmed. Case Name: John Gaitawe, et al. v. Lakiesha Mays Case No.: Montgomery Co. App. No. 25083 Panel: Grady, Fain, Donovan Author: Thomas J. Grady Summary: After finding that the landlord had acted illegally to recover possession of the premises, and awarding money damages to the tenant for her losses, the trial court erred when it denied the tenant’s request for an award of attorney fees pursuant to R.C. 5321.15(C); because attorney fees are awarded as costs instead of damages, tenant was not required to offer evidence of the reasonable amount of attorney fees to be awarded at trial, but could do so in a post-judgment proceeding on an award of attorney fees as costs. Reversed and remanded. Case Name: State of Ohio v. David E. Howard, Jr. Case No.: Greene Co. App. No. 2012-CA-10 Panel: Grady, Fain, Donovan Author: Thomas J. Grady Summary: Because, on remand, the court was required to impose the statutorilymandated five year term of post-release control that the court imposed, the court’s failure to obtain Defendant’s waiver to his . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Appeals Case Summary, October 12, 2012 Page 3
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