text:
    COLUMBUS BAR ASSOCIATION v. OKULEY.
    No. 2017-1417
    Supreme Court of Ohio.
    Submitted January 25, 2018 Decided September 26, 2018
    Isaac Wiles and Joanne S. Beasy ; and Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.
    James E. Arnold & Associates, L.P.A., and Alvin E. Matthews Jr., Columbus, for respondent.
   Per Curiam.

{¶ 1} Respondent, John Joseph Okuley, of Columbus, Ohio, Attorney Registration No. 0076748, was admitted to the practice of law in 2003.

{¶ 2} In April 2017, relator, Columbus Bar Association, charged Okuley with violating the professional-conduct rules for his behavior both during and after an incident involving his motor vehicle and a bicyclist. Specifically, relator charged Okuley with intentionally causing a collision with the bicyclist, provoking a physical altercation with an eyewitness to the collision, and misrepresenting the facts of the entire incident to law enforcement and during the ensuing criminal, civil, and disciplinary proceedings. A three-member panel of the Board of Professional Conduct held a hearing, in which Okuley, the bicyclist, two witnesses of the incident, and others testified. Based on the hearing evidence, the panel found that Okuley had engaged in most of the charged misconduct and recommended that he serve a one-year suspension with six months stayed on conditions. Upon review, the board adopted the panel's findings of misconduct but increased the recommended sanction to a two-year suspension with one year conditionally stayed.

{¶ 3} Okuley objects to the board's increased sanction, arguing that we should adopt the panel's recommendation. For the reasons explained below, we sustain Okuley's objections and conclude that a one-year suspension with six months conditionally stayed is the appropriate sanction in this case.

Misconduct

Count one: the bicycle incident and Okuley's criminal proceeding

{¶ 4} On April 9, 2015, Okuley, while driving on a residential street, stopped his car behind a garbage truck and another large vehicle that were partially blocking the road. Eric Hansen approached Okuley's car from behind on his bicycle and decided to bypass the lineup of cars. Okuley's recollection of the subsequent events differs greatly from the recollections of Hansen and the other witnesses who testified during Okuley's disciplinary proceedings.

{¶ 5} Okuley testified that Hansen smacked or hit his car when Hansen biked past the vehicle. Believing that Hansen may have damaged the vehicle, Okuley said he followed Hansen to another street in an effort to make him stop. Okuley testified that after Hansen made an obscene gesture toward him, Okuley wanted to speak with him. Therefore, he drove his car around Hansen and stopped about 50 yards in front of him. According to Okuley, Hansen then intentionally rode his bicycle into the rear of Okuley's car. Okuley testified that he exited the car and began conversing with Hansen, who stated that he would call the police.

{¶ 6} At some point thereafter, John Bahling, the first witness on the scene, began video recording Okuley with his mobile phone. Okuley claimed that he asked Bahling to stop recording, but that Bahling refused. The situation escalated into a physical altercation between Okuley and Bahling, and during the scuffle, Bahling's phone dropped to the ground. Okuley testified that he picked up the phone and held onto it because he believed that he had been assaulted and he wanted to preserve evidence-i.e., the video on Bahling's phone-of the assault until the police arrived. A second witness on the scene, Daniel Walker, separated Okuley and Bahling, and Okuley called 9-1-1. Relator introduced a recording of Okuley's 9-1-1 call into evidence. During the call, Okuley stated, "[A] biker ran into the back of my car * * *. And two guys hit me."

{¶ 7} Hansen testified that he never smacked Okuley's car or otherwise provoked Okuley when he biked past the lineup of vehicles. According to Hansen, after he turned off the street with the stopped traffic, Okuley followed him and then raced past him, pulled in front of him, and slammed on his brakes. Hansen testified that he braked to the fullest extent possible, but that he nevertheless struck the rear of Okuley's car and fell to the ground, and that his bike was extensively damaged. Hansen claimed that Okuley came very close to him and then loudly accused him of purposely hitting his car. Around that time, Bahling appeared and stated that he had seen the entire episode and was recording the incident with his cell phone. Relator played a short video clip from Bahling's phone-recorded before the phone was damaged-showing Okuley confronting Hansen and then approaching Bahling and attempting to grab his phone. Hansen then called 9-1-1, and while on the phone with the dispatcher, he witnessed the physical altercation between Okuley and Bahling. In the recording of Hansen's 9-1-1 call, Hansen described how Okuley became violent with Bahling, attempted to steal Bahling's phone, and ultimately stomped on the phone when it fell to the ground during the scuffle.

{¶ 8} Bahling's testimony was consistent with Hansen's. Bahling testified that he had witnessed Okuley speed past Hansen, pull in front of him, and slam on the brakes, all of which caused Hansen to crash into the vehicle and fall to the ground. Bahling, who is a physician, stopped his own car to ensure that Hansen was not hurt. Bahling testified that because Okuley was aggressive toward Hansen, he started recording Okuley. According to Bahling, Okuley then tried to take his phone and that in doing so, Okuley got hold of Bahling's sunglasses, put them in his pocket, and said, "These are mine now," which led to the physical altercation between the two. According to Bahling, Walker-the second witness-eventually separated them but Bahling's phone had fallen to the ground. Bahling testified that Okuley had used the hard sole of his shoe to stomp on the phone and then took possession of it until the police arrived.

{¶ 9} Walker and one of the responding police officers also testified at Okuley's disciplinary hearing. Walker stated that when he arrived on the scene, Okuley and Bahling were already in an intense verbal conflict, which quickly escalated into a physical "wrestling match." Walker corroborated Bahling's testimony that at some point, Bahling's cell phone fell to the ground and Okuley smashed the phone with his foot. The police officer testified that when he arrived on the scene, Okuley told him that Hansen had "purposefully" run into the back of his vehicle and that he had tried to take Bahling's phone "for evidence." According to the officer, Okuley also stated that when Bahling refused to hand over the phone, it had fallen to the ground and the fall had caused the phone's damage. The officer's report indicated that he had told Okuley he could not take another person's belongings, but Okuley replied, "I'm pretty sure you're wrong officer * * *. I'm allowed to collect evidence."

{¶ 10} The city of Columbus later charged Okuley with criminal damaging, a second-degree misdemeanor, for shattering Bahling's cell phone. Okuley pleaded not guilty and in statements to the prosecutor denied stomping on the phone. Okuley appeared for his August 10, 2015 trial, but he left the courthouse when the proceeding did not commence at the scheduled time. Okuley did not request a continuance or otherwise inform the prosecutor or the court before leaving. As a result, the court issued a warrant for his arrest, and the police later arrested him.

{¶ 11} In November 2015, Okuley filed a pro se motion to dismiss the criminal complaint, and in his motion, he asserted that Bahling had "assaulted" him. In February 2016, Okuley entered a no-contest plea, and after finding him guilty, the court imposed a suspended 90-day jail sentence, ordered Okuley to make restitution to Bahling in the amount of $950 and to pay a $100 fine, and placed him on community control until he made restitution and paid the fine and court costs. In March 2016, Okuley complied with all these requirements.

{¶ 12} Based on this evidence, the board found that by destroying Bahling's cell phone and rendering any additional video recordings unrecoverable, Okuley violated Prof.Cond.R. 3.4(a) (prohibiting a lawyer from unlawfully altering, destroying, or concealing material having potential evidentiary value) and that by providing false information to the police, the prosecutor, and the court, Okuley violated Prof.Cond.R. 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). In addition, the board found that by leaving the courthouse on the date of his criminal trial, Okuley violated Prof.Cond.R. 3.4(c) (prohibiting a lawyer from knowingly disobeying an obligation under the rules of a tribunal) and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). And the board determined that by deliberately causing Hansen to collide with his car, provoking the physical confrontation with Bahling in an attempt to seize his cell phone, deliberately crushing the cell phone, and providing false and misleading statements about the incident, Okuley violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law).See Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21. We agree with these findings of misconduct.

Count two: relator's disciplinary investigation and Bahling's civil suit

{¶ 13} After learning of Okuley's conviction, relator commenced a disciplinary investigation and later deposed Okuley. During the deposition, Okuley testified that Hansen had hit his car twice, that Bahling had grabbed him from behind and started the physical scuffle, and that he did not grab Bahling's phone but was merely trying to keep Bahling from erasing the video of the assault. The board found that Okuley's deposition testimony was "clearly false and contradicted by the testimony of all of the witnesses at the scene, as well as the video recording and the recording of Hansen's 911 call." The board therefore found that by giving untruthful deposition testimony, Okuley violated Prof.Cond.R. 3.3(a)(3) (prohibiting a lawyer from offering evidence that the lawyer knows to be false) and 8.1(a) (prohibiting a lawyer from knowingly making a false statement in connection with a disciplinary matter).

{¶ 14} In April 2016, Bahling filed a civil lawsuit against Okuley. In his pro se answer, Okuley alleged that Hansen had "twice intentionally collided" with his vehicle, that Bahling had "needlessly interceded in a minor traffic incident[,] became enraged and attacked Defendant Okuley," and that after the altercation, Okuley had "picked up the telephone and attempted to prevent Bahling from destroying evidence of Bahling's attack on Okuley." Okuley expressly denied stepping on or smashing Bahling's phone. And in a pro se counterclaim, Okuley alleged that he had suffered injuries as a result of Bahling's assault, that Bahling had "destroyed evidence that documented his unprovoked assault on Okuley," and that Bahling had committed perjury by offering evidence to the police and to the municipal court that Bahling had "intentionally altered." Okuley and Bahling later settled the civil suit, with Okuley agreeing to pay Bahling $5,000.

{¶ 15} The board found that the above-quoted allegations in Okuley's answer and counterclaim were untruthful and that therefore by making these false assertions, Okuley violated Prof.Cond.R. 3.1 (prohibiting a lawyer from bringing or defending a proceeding, or asserting or controverting an issue in a proceeding, that is unsupported by law or fact), 3.3(a)(1) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), and 8.4(c). We agree with these findings of misconduct.

Sanction

{¶ 16} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

Aggravating and mitigating factors

{¶ 17} As aggravating factors, the board found that Okuley displayed a selfish or dishonest motive, engaged in a pattern of misconduct, and made false statements during the disciplinary process. See Gov.Bar R. V(13)(B)(2), (3), and (6). In mitigation, Okuley lacks a prior disciplinary record, he submitted evidence of good character or reputation, and other criminal and civil sanctions have been imposed for his misconduct. See Gov.Bar R. V(13)(C)(1), (5), and (6).

{¶ 18} The board also noted that in March 2016-after Okuley's misdemeanor conviction but during relator's disciplinary investigation-Okuley suffered serious injuries as a result of a multiple-vehicle accident. In July 2017, he entered into a three-year mental-health contract with the Ohio Lawyers Assistance Program ("OLAP"), in which he agreed to continue treatment with a psychologist to address symptoms of depression that were exacerbated by the March 2016 accident. Because there was no evidence that Okuley's disorder contributed to the cause of his misconduct, the board determined that the disorder did not qualify as a mitigating factor under Gov.Bar R. V(13)(C)(7).

The panel's and board's recommended sanctions and Okuley's objections

{¶ 19} The three-member panel recommended that we suspend Okuley's law license for one year, with six months stayed on conditions. The panel recognized that although Okuley's misconduct did not involve any clients, he nevertheless harmed the public by creating danger on the roadway for Hansen, acting violently toward Bahling, and engaging in a pattern of deceitful conduct with law enforcement, the courts, and relator. The panel was also influenced by the fact that Okuley had not acknowledged the wrongful nature of his conduct.

{¶ 20} To support its recommended sanction, the panel primarily relied on two cases: Cleveland Metro. Bar Assn. v. Azman , 147 Ohio St.3d 379, 2016-Ohio-3393, 66 N.E.3d 695, and Warren Cty. Bar Assn. v. Vardiman , 146 Ohio St.3d 23, 2016-Ohio-352, 51 N.E.3d 587. In Azman , an attorney repeatedly accessed e-mail accounts of attorneys in his former law firm after his termination, deleted e-mail communications that might have had evidentiary value in a threatened legal action against him, and then lied about his actions at a deposition with relator. Considered mitigating factors were that the attorney had no disciplinary record, his misconduct did not involve the provision of legal services, and he eventually cooperated in the disciplinary process and acknowledged the wrongfulness of his conduct. Aggravating factors included a selfish motive, ongoing misconduct, and dishonesty during the disciplinary investigation. Based on this conduct, we imposed a one-year suspension with six months stayed on conditions.

{¶ 21} The attorney in Vardiman also engaged in repeated acts of deceitful conduct. In a client's child-support action, he improperly signed the name of an unrepresented party on four separate documents and then filed the fraudulent documents in court. And in a separate matter, he falsely signed the name of a witness to a will and power of attorney. The lawyer had a prior attorney-registration suspension, but considered mitigating factors were that he made full disclosures to the board, presented positive character evidence, and demonstrated the existence of a mental disorder that contributed to his misconduct. Given the mitigating evidence and his acceptance of responsibility, we suspended his law license for one year, with six months of the suspension stayed on conditions.

{¶ 22} In contrast to the panel, the board determined that the circumstances here require a more severe sanction than that given in Azman and Vardiman , citing Okuley's deceit from the outset of this matter, his evasive and untruthful deposition and hearing testimony, and his failure to acknowledge the wrongful nature of his conduct or express any remorse. The board therefore increased the panel's recommended sanction to a two-year suspension, with one year conditionally stayed, and recommended imposing an additional condition for reinstatement.

{¶ 23} Okuley objects to the board's increased sanction and requests that the court accept the panel's recommended sanction. The board erred, according to Okuley, by not giving more mitigating weight to the fact that he has already been sanctioned in the criminal and civil proceedings for his misconduct. Okuley also asserts that the board failed to recognize that after listening to some of the witness testimony at his disciplinary hearing, he reconsidered his position on whether he had damaged Bahling's phone.

Disposition

{¶ 24} We find that Okuley's misconduct here is comparable in nature and severity to the misconduct in the cases cited by the panel, especially Azman , in which the attorney broke into e-mail accounts of his former employer, deleted e-mails that were damaging to him, and then lied about his conduct under oath. Additionally, the balance of mitigating and aggravating factors here is similar to that in Azman . Although the attorney in Azman ultimately accepted responsibility for his actions, no criminal charges were filed against him because his former employer had agreed not to sign a criminal complaint if the attorney reported his conduct to disciplinary authorities. See 147 Ohio St.3d 379, 2016-Ohio-3393, 66 N.E.3d 695, at ¶ 7. Here, Okuley did not accept responsibility for all his misconduct. But unlike the attorney in Azman , Okuley has suffered consequences outside of the attorney-disciplinary process: he was convicted of a misdemeanor, he paid restitution to Bahling for the damaged phone, he paid a criminal fine and court costs, and he paid $5,000 to settle the civil suit.

{¶ 25} Consistent with Azman and considering the fact that the panel members had the opportunity to observe the various witnesses firsthand, we sustain Okuley's objection and agree with the panel that a one-year suspension with six months conditionally stayed is the appropriate sanction in this case.

Conclusion

{¶ 26} For the reasons explained above, John Joseph Okuley is suspended from the practice of law in Ohio for one year, with the final six months of the suspension stayed on the conditions that he maintain compliance with his OLAP contract and engage in no further misconduct. If Okuley fails to comply with either condition of the stay, the stay will be lifted and he will serve the full one-year suspension. In addition, we condition Okuley's reinstatement on his providing proof that he is in compliance with his OLAP contract and any extension of that contract. Upon reinstatement, Okuley must maintain compliance with his OLAP contract and any extension of it. Costs are taxed to Okuley.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Mock, Fischer, and DeWine, JJ., concur.

Russell J. Mock, J., of the First District Court of Appeals, sitting for O'Neill, J.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WARREN COUNTY BAR ASSOCIATION v. ERNST.
    No. 2018-0256
    Supreme Court of Ohio.
    Submitted February 27, 2018 Decided September 27, 2018
    Kenneth E. Peller, Cincinnati; and Keith W. Anderson, Lebanon, for relator.
    Montgomery, Rennie & Jonson, L.P.A., and George D. Jonson, Cincinnati, for respondent.
   Per Curiam.

{¶ 1} Respondent, David Edward Ernst, of Lebanon, Ohio, Attorney Registration No. 0029675, was admitted to the practice of law in Ohio in 1985.

{¶ 2} In a formal complaint certified to the Board of Professional Conduct on September 14, 2017, relator, Warren County Bar Association, charged Ernst with several ethical violations based on his neglect of a client's legal matter, failure to reasonably communicate with the client, and failure to deposit the client's retainer into his client trust account. A panel of the board considered the cause on the parties' consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 3} The parties stipulated that in February 2013, Ernst's personal friend and client, Joshua Berry-an Army veteran who suffered from posttraumatic stress disorder-took his own life. Later that month, Joshua's father, Howard Berry, retained Ernst to settle Joshua's estate and paid a retainer of $2,500 by check.

{¶ 4} After learning that Joshua had a life-insurance policy and that Joshua's daughter was the named beneficiary, Howard asked Ernst to establish a trust to preserve the proceeds for Howard's granddaughter. Ernst took no action to file a claim for the insurance proceeds and took little action to settle Joshua's estate. Over a four-year period, Ernst prepared some probate forms and had Howard execute them, but no estate was ever opened. Throughout this time, Howard contacted Ernst by telephone and e-mail on multiple occasions inquiring into the status of the estate and requesting that some action be taken. Although Howard requested weekly status updates, Ernst did not provide them.

{¶ 5} In January 2017, Howard terminated Ernst's representation and demanded a refund of his $2,500 retainer. When Ernst refunded the retainer in full, he discovered that he had mistakenly deposited the retainer check into his operating account instead of his client trust account. Moreover, Ernst had given Howard only one billing statement, dated January 26, 2017, which stated that Ernst had completed 10.65 hours of legal services.

{¶ 6} After the error regarding the erroneous deposit came to light, and given the concerns about the lack of billing statements, Ernst purchased and implemented new software to automate his trust-account bookkeeping. He also engaged his law firm's accountant to inspect the trust-account records, ensure that the appropriate funds are present in the trust account, and verify that the records are properly entered into the new software program.

{¶ 7} The parties agree that Ernst's conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 1.4(a)(2), (3), and (4) (requiring a lawyer to reasonably consult with the client about the means by which the client's objectives are to be accomplished, to keep the client reasonably informed about the status of a matter, and to comply as soon as practicable with reasonable requests for information from the client), and 1.15(c) (requiring a lawyer to deposit into a client trust account legal fees and expenses that have been paid in advance). They also agree that the remaining alleged violations should be dismissed.

{¶ 8} The parties stipulated that no aggravating factors are present and that mitigating factors include the absence of prior discipline, the absence of a selfish or dishonest motive, Ernst's timely, good-faith effort to make restitution, his full and free disclosure and cooperative attitude toward the disciplinary proceeding, and evidence of his good character and reputation. See Gov.Bar R. V(13)(B) and (C)(1) through (5).

{¶ 9} The board recommends that we adopt the parties' consent-to-discipline agreement and publicly reprimand Ernst for his misconduct. In support of that recommendation, the board notes that we have imposed public reprimands for similar misconduct in Akron Bar Assn. v. Harsey , 142 Ohio St.3d 97, 2015-Ohio-965, 28 N.E.3d 86 ; Trumbull Cty. Bar Assn. v. Rucker , 134 Ohio St.3d 282, 2012-Ohio-5642, 981 N.E.2d 866 ; and Disciplinary Counsel v. Dundon , 129 Ohio St.3d 571, 2011-Ohio-4199, 954 N.E.2d 1186.

{¶ 10} Based on the foregoing, we agree that Ernst's conduct violated Prof.Cond.R. 1.3, 1.4, and 1.15(c) and that a public reprimand is the appropriate sanction for that misconduct. We therefore adopt the parties' consent-to-discipline agreement.

{¶ 11} Accordingly, David Edward Ernst is publicly reprimanded. Costs are taxed to Ernst.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeGenaro, JJ., concur.

DeWine, J., not participating.


text:
    IN RE APPLICATION OF WAMMES.
    No. 2018-0494
    Supreme Court of Ohio.
    Submitted May 22, 2018 Decided September 27, 2018
    Brison Deverick Wammes, pro se.
    Raymond W. Lembke, Cincinnati, for the Cincinnati Bar Association.
   Per Curiam.

{¶ 1} Applicant, Brison Deverick Wammes, of Cincinnati, Ohio, applied in November 2016 to register as a candidate for admission to the practice of law in Ohio and to take the July 2018 bar examination. He was expected to graduate from the Salmon P. Chase College of Law at Northern Kentucky University in May 2018.

{¶ 2} Two members of the Cincinnati Bar Association admissions committee interviewed Wammes in September 2017, and the committee issued a provisional report recommending that his character and fitness be approved. Because Wammes had been adjudicated a delinquent child for conduct that would be a felony if committed by an adult, his application was submitted to the Board of Commissioners on Character and Fitness for review in accordance with Gov.Bar R. I(11)(D)(5)(a) and I(12).

{¶ 3} A three-member panel appointed by the board conducted a hearing on January 18, 2018. At the hearing, Wammes testified that in the fall of 2007, when he was 15 years old, he struck a peer after the peer had expressed interest in Wammes's girlfriend. The peer suffered a broken jaw. Wammes testified that when he saw the young man bleeding from the mouth, he immediately felt remorse and apologized. Wammes called his parents to confess what he had done. He also spoke to the victim's mother on the phone and apologized. Based on this incident, Wammes was adjudicated a delinquent child. He performed community service, completed an anger-management assessment, and served only one year of a three-year period of probation before he was released.

{¶ 4} An applicant to the Ohio bar must prove by clear and convincing evidence that he or she "possesses the requisite character, fitness, and moral qualifications for admission to the practice of law." Gov.Bar R. I(11)(D)(1). The applicant's record of conduct must justify "the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them." Gov.Bar R. I(11)(D)(3). In considering whether Wammes had satisfied his burden, the panel noted that he (1) did not forfeit any rights or privileges as a result of the adjudication, (2) has learned never to respond with violence and to think before acting, and (3) has demonstrated that he is no longer the immature teenager he was more than ten years ago. See Gov.Bar R. I(11)(D)(3)(a), (4)(a) through (j), and (5)(a). Therefore, the panel determined that Wammes had met his burden of proving his character, fitness, and moral qualifications for admission to the practice of law and recommended that we approve his registration application. The board unanimously adopted the panel's report and recommendation, and there are no objections. Having thoroughly reviewed the record and applicable rules, we agree that Wammes has established that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio.

{¶ 5} Accordingly, we adopt the board's report and approve Wammes's pending application and permit him to sit for the February 2019 bar exam, provided that he satisfies the remaining registration requirements.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    COLUMBUS BAR ASSOCIATION v. MIDIAN.
    No. 2018-0541
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided September 27, 2018
    George M. Romanello ; Lori J. Brown, Bar Counsel, and A. Alysha Clous, Assistant Bar Counsel, for relator.
    Isaac, Wiles, Burkholder, & Teetor, L.L.C., and Michael L. Close, Columbus, for respondent.
   Per Curiam.

{¶ 1} Respondent, William Martin Midian, of Columbus, Ohio, Attorney Registration No. 0080941, was admitted to the practice of law in Ohio in 2006.

{¶ 2} In a formal complaint certified to the Board of Professional Conduct on October 5, 2017, relator, Columbus Bar Association, charged Midian with four violations of the Rules of Professional Conduct arising from his representation of a single client. A panel of the board considered the cause on the parties' consent-to-discipline agreement. See Gov.Bar R. V(16).

{¶ 3} In September 2013, after pleading guilty to a misdemeanor count of workers' compensation fraud, a doctor retained Midian to take legal action to change the effect of the doctor's conviction and stay the pending misconduct charges of the state medical board. Midian discussed his fees with the client, but he never established a specific fee amount or provided the client with a written fee agreement. Midian did, however, accept a check for $25,000 from the doctor and deposit it into his client trust account. In October 2013, Midian sent $12,500 of that fee to Eric A. Jones, an attorney retained by the client to defend against professional-misconduct charges that were pending before the medical board. The following month, Jones paid Midian $5,000 from the funds that Jones had received from the client. Although Midian and Jones are not members of the same firm, they did not enter into a fee-sharing arrangement.

{¶ 4} Unbeknownst to the client, Midian asked another attorney with little criminal law experience to draft a motion in the doctor's case. Although Midian reviewed and approved the motion, he did not sign it-though he accepted a $17,500 fee for the work. The motion as drafted was fundamentally flawed because it did not invoke Crim.R. 32.1 or address manifest injustice-the only basis for a court to permit a defendant to withdraw a guilty plea after sentencing. Consequently, the court overruled the motion.

{¶ 5} The parties agree that Midian's conduct violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or collecting an illegal or clearly excessive fee), 1.5(b) (requiring an attorney to communicate the nature and scope of the representation and the basis or rate of the fee and expenses within a reasonable time after commencing the representation unless the lawyer regularly represented the client and will charge the client on the same basis as previously charged), and 1.5(e) (permitting attorneys who are not in the same firm to divide fees only if the fees division is reasonable and proportional to the work performed, the client consents to the arrangement in writing after full disclosure, and a written closing statement is prepared and signed by the client and each lawyer). They also agree that one additional alleged violation should be dismissed.

{¶ 6} The parties stipulated that no aggravating factors are present and that mitigating factors include the absence of prior discipline, the absence of a selfish or dishonest motive, a cooperative attitude toward the disciplinary proceedings, evidence of Midian's good character and reputation, his refund of the entire $17,500 fee to his client on June 1, 2016, and his current use of written fee agreements for all client matters. See Gov.Bar R. V(13)(B) and (C)(1), (2), (3), (4), and (5).

{¶ 7} The board recommends that we adopt the parties' consent-to-discipline agreement and publicly reprimand Midian for his misconduct. In support of that recommendation, the board notes that we have imposed public reprimands for similar misconduct involving clearly excessive fees in Columbus Bar Assn. v. Adusei , 136 Ohio St.3d 155, 2013-Ohio-3125, 991 N.E.2d 1142, and Geauga Cty. Bar Assn. v. Martorana , 137 Ohio St.3d 19, 2013-Ohio-1686, 997 N.E.2d 486.

{¶ 8} Based on the foregoing, we agree that Midian's conduct violated Prof.Cond.R. 1.5(a), 1.5(b), and 1.5(e) and that a public reprimand is the appropriate sanction for that misconduct. We therefore adopt the parties' consent-to-discipline agreement.

{¶ 9} Accordingly, William Martin Midian is publicly reprimanded. Costs are taxed to Midian.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeGenaro, JJ., concur.

DeWine, J., not participating.


text:
    MOLLY COMPANY, LTD., n.k.a. Molly Company, L.L.C., Appellant, v. CUYAHOGA COUNTY BOARD OF REVISION et al., Appellees.
    No. 2016-0290
    Supreme Court of Ohio.
    Submitted September 11, 2018 Decided October 11, 2018
    Vorys, Sater, Seymour & Pease, L.L.P., Karen H. Bauernschmidt, Cleveland, Nicholas Ray, Columbus, and Heather M. Lutz, for appellant.
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Saundra Curtis-Patrick, Assistant Prosecuting Attorney, for appellees Cuyahoga County Board of Revision and Cuyahoga County Fiscal Officer.
   Per Curiam.

{¶ 1} The property at issue in this case was the subject of a 2011 valuation complaint filed by the owner, appellant, Molly Company Ltd., now known as Molly Company, L.L.C. Appellee Cuyahoga County Board of Revision ("BOR") issued its decision on the 2011 complaint more than 90 days after it was filed, and the matter was not finally resolved until January 2014, after an appeal to the Board of Tax Appeals ("BTA"). "Pursuant to R.C. 5715.19(D), if a taxpayer already has a complaint under review regarding a particular parcel and a board of revision does not determine that complaint within 90 days, the taxpayer need not file complaints in succeeding years regarding that same parcel as long as the original complaint is unresolved." MDM Holdings, Inc. v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 555, 2018-Ohio-541, 99 N.E.3d 351, ¶ 3. In February 2015, pursuant to R.C. 5715.19(D), Molly Company sought to invoke the BOR's continuing-complaint jurisdiction for tax year 2012. The BOR denied Molly Company's request for a hearing for tax year 2012, stating that Molly Company had failed to invoke the BOR's continuing-complaint jurisdiction because it did not request a hearing within 30 days after the tax-year-2011 complaint was finally determined. The BTA affirmed the BOR's refusal to hear the case, although it held that Molly Company had had until the end of 2014 to request a hearing.

{¶ 2} Molly Company appeals to this court, arguing that R.C. 5715.19(D) does not impose the deadlines applied by the BOR and the BTA. We addressed this issue earlier this year in Life Path Partners, Ltd. v. Cuyahoga Cty. Bd. of Revision , 152 Ohio St.3d 238, 2018-Ohio-230, 94 N.E.3d 565. We held that "nothing in [ R.C. 5715.19(D) ] authorizes the BOR to dismiss a continuing complaint for lack of timeliness." Id. at ¶ 10. See also MDM Holdings (applying Life Path ); Novita Indus., L.L.C. v. Lorain Cty. Bd. of Revision , 153 Ohio St.3d 57, 2018-Ohio-2023, 100 N.E.3d 387, ¶ 11-13 (same). Thus, the BTA's decision affirming the BOR's dismissal of Molly Company's continuing complaint as untimely was unreasonable and unlawful. See R.C. 5717.04.

{¶ 3} Because the BOR had continuing-complaint jurisdiction under R.C. 5715.19(D), we reverse the BTA's decision and remand the cause to the BOR for a determination of the subject property's tax-year-2012 value.

Decision reversed and cause remanded.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    IN RE Resignation of SCUDDER.
    No. 2018-1138
    Supreme Court of Ohio.
    Submitted August 9, 2018 Decided September 20, 2018
    {¶ 1} Steven C. Scudder, Attorney Registration No. 0044134, last known business address in Centerville, Ohio, who was admitted to the bar of this state on August 10, 1990, submitted an application for retirement or resignation pursuant to Gov.Bar R. VI(11). The application was referred to disciplinary counsel pursuant to Gov.Bar R. VI(11)(B). On August 9, 2018, the Office of Attorney Services filed disciplinary counsel's report, under seal, with this court in accordance with Gov.Bar R. VI(11)(B)(2).
    {¶ 2} On consideration thereof, it is ordered by the court that pursuant to Gov.Bar R. VI(11)(C), the resignation as an attorney and counselor at law is accepted as a resignation with disciplinary action pending.
    {¶ 3} It is further ordered and adjudged that from and after this date all rights and privileges extended to respondent to practice law in the state of Ohio be withdrawn, that henceforth respondent shall cease to hold himself forth as an attorney authorized to appear in the courts of this state, and that respondent shall not attempt, either directly or indirectly, to render services as an attorney or counselor at law to or for any individuals, corporation, or society, nor in any way perform or seek to perform services for anyone, no matter how constituted, that must by law be executed by a duly appointed and qualified attorney within the state of Ohio.
    {¶ 4} It is further ordered that respondent desist and refrain from the practice of law in any form, either as principal or agent or clerk or employee of another, and hereby is forbidden to appear in the state of Ohio as an attorney and counselor at law before any court, judge, board, commission, or other public authority, and hereby is forbidden to give another an opinion as to the law or its application or advise with relation thereto.
    {¶ 5} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 6} It is further ordered that respondent shall not enter into an employment, contractual, or consulting relationship with an attorney or law firm with which respondent was associated as a partner, shareholder, member, or employee at the time respondent engaged in the misconduct that resulted in this acceptance of respondent's resignation with discipline pending.
    {¶ 7} It is further ordered that respondent shall surrender respondent's certificate of admission to practice to the clerk of the court on or before 30 days from the date of this order and that respondent's name be stricken from the roll of attorneys maintained by this court.
    {¶ 8} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 9} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 10} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's resignation and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal services elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 11} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 12} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid and account for any trust money or property in the possession or control of respondent;
    {¶ 13} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 14} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 15} 6. File with the clerk of this court and disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of the notices required herein, and setting forth the address where respondent may receive communications; and

{¶ 16} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 17} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 18} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 19} It is further ordered that service shall be deemed made on respondent by sending this order and all other orders in this case to respondent's last known address.

{¶ 20} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    STATE v. MATHEW
    2018-1428
    Supreme Court of Ohio.
    November 14, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellee's motion to strike notice of appeal and memorandum in support of jurisdiction. Motion denied. Appellee may file a memorandum in response to jurisdiction within 30 days.


text:
    STATE EX REL. WEBBER v. BLUE ASH CARE CTR.
    2018-0515
    Supreme Court of Ohio.
    November 14, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    On appellant's application for dismissal. Application granted. Cause dismissed.


author: Retired Judge Daniel T. Hogan

text:
    IN RE MCCANN
    Supreme Court of Ohio.
    November 14, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS ORDERS
    On October 30, 2018, the Ohio Attorney General and Ottawa County Prosecuting Attorney presented a request that the chief justice establish a special commission of three retired judges pursuant to R.C. 3.16(C). Pursuant to R.C. 3.16, the special commission shall be established by the chief justice, not sooner than 14 days after receipt of the request, to consider the suspension from public office of Bernard A. McCann, Mayor of Put-In-Bay, Ohio, in relation to felony charges pertaining to official conduct in office.
    Accordingly, the following three retired judges are hereby appointed and directed to proceed as provided by R.C. 3.16 :
   Retired Judge Daniel T. Hogan

Retired Judge Thomas Pokorny

Retired Judge Jennifer L. Sargus

Pursuant to R.C. 3.16(C)(1), at least one member of the special commission is of the same party as the public official and all members of the special commission shall receive compensation for their services and reimbursement for expenses incurred in connection with special-commission functions, from funds appropriated by the attorney general's office.

It is further ordered that Jesse Mosser, staff attorney in the Office of Chief Legal Counsel at the Supreme Court of Ohio, shall serve as secretary to the special commission, with authority to contact the parties, schedule hearings, and sign orders on behalf of and at the direction of the special commission.

All documents in this matter shall be filed with the secretary to the special commission either by mail or in another manner directed by the secretary. The original and five copies of all documents shall be filed.

All documents filed with the special commission shall also be served on all other parties to this matter on the day of filing with the secretary.

Pursuant to R.C. 3.16(C)(2), all meetings of the special commission shall be closed to the public and the records shall not be made available to the public for inspection or copying until the special commission issues its written report or otherwise concludes its proceedings


text:
    BALDWIN-NAZARENE v. FIFTH THIRD BANK CORPORATE HEADQUARTERS
    2018-1273
    Supreme Court of Ohio.
    November 20, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    Miscellaneous case. On respondents' motion to dismiss and motion to declare relator vexatious litigator. Motions granted. Yvette Barbara Baldwin-Nazarene is found to be a vexatious litigator under S.Ct.Prac.R. 4.03(B). Baldwin-Nazarene is prohibited from continuing or instituting legal proceedings in this court without first obtaining leave. Any request for leave shall be submitted to the clerk of this court for the court's review.
    Relator's "inclusionary motion requesting the court to include additional address information for respondents and to include Fifth Third Bank Lease agreement of relator's property owned" denied as moot.
    O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.
    Kennedy, J., concurs in granting respondents' motion to dismiss and denying relator's motion as moot but dissents from granting respondents' motion to find relator a vexatious litigator.


text:
    BALDWIN-NAZARENE v. FIFTH THIRD BANK/BANCORP FIN. INST.
    2018-1278
    Supreme Court of Ohio.
    November 20, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    Miscellaneous case. On respondents' motion to dismiss and motion to declare relator vexatious litigator. Motions granted. Yvette Barbara Baldwin-Nazarene is found to be a vexatious litigator under S.Ct.Prac.R. 4.03(B). Baldwin-Nazarene is prohibited from continuing or instituting legal proceedings in this court without first obtaining leave. Any request for leave shall be submitted to the clerk of this court for the court's review.
    O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.
    Kennedy, J., concurs in granting respondents' motion to dismiss but dissents from granting respondents' motion to find relator a vexatious litigator.


text:
    STATE EX REL. JOHNSON v. BUR. OF SENTENCE COMPUTATION
    2018-1630
    Supreme Court of Ohio.
    November 19, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's memorandum in support of jurisdiction. This cause originated in the court of appeals and should proceed as an appeal of right pursuant to S.Ct.Prac.R. 5.01. The clerk shall issue an order for the transmission of the record from the Court of Appeals for Franklin County, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.


author: DeGenaro, J., dissents.

text:
    BANK OF NEW YORK MELLON FOR CERTIFICATE HOLDERS OF CWABS, INC. v. KOHN
    2018-1526
    Supreme Court of Ohio.
    November 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellants' motion to stay execution pending appeal. Motion denied.

DeGenaro, J., dissents.


text:
    COVELL v. COVELL
    2018-1443
    Supreme Court of Ohio.
    November 15, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for an order staying the trial scheduled in the Pickaway County Court of Common Pleas. Motion denied as moot.


author: Fischer, J., dissents.

text:
    STATE v. PETERS
    2018-1332
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Fischer, J., dissents.


text:
    STATE v. CHAPMAN
    2018-1341
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Fischer, J., dissents.


text:
    STATE v. JOHNSON
    2018-1363
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion for leave to file delayed appeal. Motion denied.

Kennedy, DeWine, and DeGenaro, JJ., dissent.


text:
    STATE v. BRYANT
    2018-1418
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    O'Connor, C.J., and Kennedy and Fischer, JJ., dissent.


text:
    STATE v. RIEVES
    2018-0770
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. LANE
    2018-0891
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JACKSON
    2018-0916
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SHORT
    2018-1104
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. ROBERTSON
    2018-1186
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    CLARIS, LTD. v. HOTEL DEV. SERVS., L.L.C.
    2018-1229
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    FERRERO v. STAATS
    2018-1230
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion to strike memorandum in response to jurisdiction denied.
    Kennedy and DeWine, JJ., would deny appellant's motion to strike memorandum in response to jurisdiction as moot.


text:
    STATE v. STUBER
    2018-1235
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    SMILEY v. CLEVELAND
    2018-1237
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. AAA SLY BAIL BONDS
    2018-1246
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French and Fischer, JJ., dissent.


text:
    BALDWIN-NAZARENE v. ARAMARK CORP.
    2018-1362
    Supreme Court of Ohio.
    November 20, 2018
    CASE ANNOUNCEMENTS
    MERIT DECISIONS WITHOUT OPINIONS
    Miscellaneous case. On respondents' motion to dismiss and motion to find relator a vexatious litigator. Motions granted. Yvette Barbara Baldwin-Nazarene is found to be a vexatious litigator under S.Ct.Prac.R. 4.03(B). Baldwin-Nazarene is prohibited from continuing or instituting legal proceedings in this court without first obtaining leave. Any request for leave shall be submitted to the clerk of this court for the court's review.
    O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.
    Kennedy, J., concurs in granting respondents' motion to dismiss but dissents from granting respondents' motion to find relator a vexatious litigator.


author: Fischer, J., not participating.

text:
    STATE v. WOODS
    2018-1301
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., not participating.


text:
    STATE v. JAEGER
    2018-1305
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    IN RE ADOPTION OF K
    2018-1308
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. ANDREWS
    2018-1309
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. ROUSE
    2018-1325
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WILLIAMS
    2018-1342
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. DANGERFIELD
    2018-1343
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer and DeWine, JJ., not participating.


text:
    STATE v. EVANS
    2018-1349
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HAWKINS
    2018-1364
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: O'Donnell, J., not participating.

text:
    HUNTER v. Rhino SHIELD
    2018-1386
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Donnell, J., not participating.


author: DeGenaro, J., not participating.

text:
    STATE v. GREINER
    2018-1390
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


author: O'Connor, C.J., not participating.

text:
    DEAN v. DEPT. OF MENTAL HEALTH & ADDICTION
    2018-1397
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Connor, C.J., not participating.


text:
    STATE v. PANEZICH
    2018-1423
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. GOFF
    2017-0021
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    STATE v. MOSCOSO
    2018-1248
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JOHNSON
    2018-1252
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. CRAIG
    2018-1253
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    RUSSELL v. WARDEN, Lebanon Corr. Inst.
    2018-1258
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for judicial notice denied as moot.
    O'Connor, C.J., and O'Donnell and DeGenaro, JJ., would deny appellant's motion for judicial notice.


text:
    STATE v. FEATHERKILE
    2018-1260
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. AMES v. PORTAGE CTY. BD. OF COMMRS.
    2018-1267
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., dissents.


text:
    TRI EAGLE FUELS, L.L.C. v. EUCLID LAKE PROPERTIES, L.L.C.
    2018-1269
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellee's motion to dismiss denied.
    O'Donnell, J., dissents and would accept the appeal.
    French and DeWine, JJ., would deny appellee's motion to dismiss as moot.


text:
    TOLEDO v. REESE
    2018-1274
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French and Fischer, JJ., dissent and would accept the cause on proposition of law No. II.


text:
    U.S. BANK TRUST, N.A. v. EDMON
    2018-1276
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JACKSON
    2018-1277
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    BENNETT v. SCOTTS MIRACLE-GRO CO.
    2018-1279
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. LAWLESS
    2018-1283
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    PRZYBYLA v. PRZYBYLA
    2018-1284
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Kennedy, J., dissents.

text:
    AM. WATER MGT. SERVS., L.L.C. v. DIV. OF OIL & GAS RESOURCES MGT.
    2018-1286
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    GAWAIN v. ALLCARING HOME HEALTH SERVS., L.L.C.
    2018-1290
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    DOWNTOWN ENTS. CO. v. MULLET
    2018-1297
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    U.S. BANK NATL. ASSN. v. CONRAD
    2018-0834
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's "third-party interest motion for reverses and remands." Motion denied as moot.


text:
    DISCIPLINARY COUNSEL v. POOLEY
    2018-1282
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On certified order of the United States District Court for the District of Colorado, No. 17-DP-5. Christopher Jonathan Pooley, Attorney Registration No. 0068799, last known business address in Avon, Colorado, publicly reprimanded.
    O'Connor, C.J., and O'Donnell, Fischer, and DeGenaro, JJ., concur.
    Kennedy, French, and DeWine, JJ., dissent and would dismiss the cause.


text:
    IN RE Resignation of LYNCH
    2018-1484
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On application for retirement or resignation of David Marlborough Lynch, Attorney Registration No. 0006380, last known business address in Euclid, Ohio. Resignation accepted with disciplinary action pending.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    WELLS FARGO BANK, N.A. v. BURD
    2017-0279
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
    Kennedy and Piper, JJ., dissent.
    Robin N. Piper, J., of the Twelfth District Court of Appeals, sitting for O'Donnell, J.
   Charles M. Miller, J., of the First District Court of Appeals, sitting for DeGenaro, J.


text:
    MAHONING CTY. BAR ASSN. v. MCNALLY
    2017-1743
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied. Respondent's motion for stay pending motion for reconsideration denied as moot.
    O'Donnell and Kennedy, JJ., would deny respondent's motion for stay pending motion for reconsideration.
    Fischer and DeGenaro, JJ., not participating.


text:
    RIEGER v. GIANT EAGLE, INC.
    2018-0883
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion granted. The court accepts the appeal on proposition of law Nos. I and III. Briefing schedule reset. Appellant shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07.
    O'Connor, C.J., and O'Donnell and DeWine, JJ., dissent.


text:
    STATE EX REL. ALLEN v. INDUS. COMM.
    2018-0910
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.


text:
    STATE v. ROBINSON
    2018-0949
    Supreme Court of Ohio.
    November 21, 2018
    CASE ANNOUNCEMENTS
    RECONSIDERATION OF PRIOR DECISIONS
    On motion for reconsideration. Motion denied.
   DeGenaro, J., not participating.


text:
    STATE v. WORLEY
    2018-0757
    Supreme Court of Ohio.
    November 27, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for extension of time to transmit record. Motion granted. The record shall be filed no later than February 11, 2019. No additional motions for extension of time to transmit the record shall be filed.


author: Baldwin, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Joseph BILYK, Defendant-Appellant
    No. 17-CA-79
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT: May 7, 2018
    J. MICHAEL KING, Assistant Law Director, City of Newark, 40 W. Main Street, Newark, Ohio 43055, for Plaintiff-Appellee
    KEVIN J. GALL, Burkett & Sanderson, Inc., 73 North Sixth Street, Newark, Ohio 43055, for Defendant-Appellant
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellant, Joseph Bilyk, appeals his conviction for domestic violence, a violation of R.C. 2919.25(C) and a fourth degree misdemeanor, in the Licking County Municipal Court. Appellee is the State of Ohio.

FACTS AND PROCEDURAL POSTURE

{¶ 2} Appellant and Jill Herrington-Bilyk have been married for 2 years, have an 18-month-old daughter and, at the time of the incident that forms the basis of the charges, they resided together in Licking County. Ms. Herrington-Bilyk had planned to go to appellant's parents' home with her daughter on February 24, 2017 after she finished work. She was preparing to leave for work and to take her daughter to the babysitter when appellant asked her for money. She refused and the appellant became angry. She testified that appellant grabbed her by the upper body, threw her to the bed, and started shaking her violently while she was on the bed. He started screaming wordlessly, putting his face close enough to his wife's face that she felt as if he were spitting on her while yelling. The child was on the same bed and was crying during the confrontation.

{¶ 3} When appellant released Ms. Herrington-Bilyk, she grabbed her daughter and fled in fear without putting shoes or a coat on the child. She delivered the child to the babysitter and went to the Johnstown Police Department where she discovered that she lived outside the Village, so the Licking County Sheriff's Office had jurisdiction. She contacted the Sheriff's office and Deputy Brill responded and spoke with her. During his testimony, Deputy Brill recalled that Ms. Herrington-Bilyk was disheveled, upset and clearly had been crying.

{¶ 4} Appellant denies any argument took place, that he was screaming or that he shook his wife. He contends there was some discussion about whether the parties' daughter should be taken to the babysitter that day, or whether he should watch their daughter and deliver her to Ms. Herrington-Bilyk at her place of work. Appellant testified that he was aware that his wife and daughter were going to Youngstown after his wife finished work. However, in a handwritten statement made by appellant after he was arrested he stated that "my wife mentioned that she was leaving town with my 19 month old daughter but would not give further details about the trip." (Defendant's Exhibit A). Within the same statement he contended "we raised our voices," but during his testimony when asked whether his voice was elevated he responded "barely we were more condescending may be a little irritated towards each other but there was no yelling or I mean it just it did not happen." (Transcript, P. 100, lines 6-8).

{¶ 5} Mr. Bilyk was charged with one count of domestic violence in violation of R.C. 2919.25(C) a misdemeanor of the fourth degree. He was arraigned on February 27, 2017 and, on July 31, 2017, the case was presented to a jury. He was found guilty and sentenced to 17 days in jail, with credit for 3 days served, and fined $250.00.

{¶ 6} On September 19, 2017 appellant requested leave to file an untimely notice of appeal and on November 2, 2017 we granted his motion. Appellant filed his notice of appeal and submitted two assignments of error:

{¶ 7} I. THE DEFENDANT-APPELLANT'S CONVICTION FOR DOMESTIC VIOLENCE BY THREATS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 8} II. THE CONVICTION OF THE DEFENDANT-APPELLANT FOR DOMESTIC VIOLENCE BY THREATS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

STANDARD OF REVIEW

{¶ 9} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held as follows: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt."

{¶ 10} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered." State v. Thompkins , supra, 78 Ohio St.3d at 387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 11} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

ANALYSIS

{¶ 12} Appellant was charged with one count of a violation of R.C. 2919.25(C) which states:

(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

{¶ 13} Ms. Herrington-Bilyk testified appellant was unemployed, was abusing alcohol, and that she and appellant were having marital problems. On February 24, 2017, after she refused appellant's request for money, appellant "came around the bed he grabbed me by my upper body and flung me around and threw me down on the bed and started shaking me violently and he got his nose like this close to my face and just started screaming like it was it was... quite shocking and..." (Trial transcript, page 61, lines 1-6). Ms. Herrington-Bilyk testified that she grabbed her daughter off the bed and went out of the house without putting a coat or shoes on her daughter because she was upset and did not know what to do. She emphasized that she was shaken violently by appellant and testified that she had a "bit of a neck ache after... after it happened." (Trial transcript, p.65, lines 14-15). She testified that she was afraid because she did not know what appellant was capable of doing and did not know what he was going to do. She confirmed she was afraid of appellant during the incident and that she was still frightened even while she was talking with the investigating officer. When she learned the appellant was to be released from jail she asked her father to stay with her and, on the day of the incident, she petitioned the court for a civil protection order.

{¶ 14} Appellant presented his own testimony and essentially denied Ms. Herrington-Bilyk's version of the event. He admitted to a heated discussion about care arrangements for their child, but denies that he grabbed Ms. Herrington-Bilyk, threw her on the bed, or screamed in her face.

{¶ 15} Appellant contends that the state's case must fail because appellant never uttered a verbal threat. We disagree and instead adopt Twelfth District's finding that "[t]here is no logical support for [a] claim that a threat of force must be accompanied by a verbal statement." State v. Marshall , --- Ohio App.3d ----, 2017-Ohio-9269, 103 N.E.3d 61, ¶ 22 (12th Dist.) ; See also Gaydash v. Gaydash , 168 Ohio App.3d 418, 2006-Ohio-4080, 860 N.E.2d 789, ¶ 16 (9th Dist.) and State v. Rhoads , 12th Dist. Clermont No. CA2012-05-040, 2013-Ohio-152, 2013 WL 221512, ¶ 26"The offense of domestic violence requires fear inspired by the threat of force." Gaydash, supra. While appellant may not have verbally threatened his wife, his violent actions toward her and his wordless screams in her face can be viewed as a threat of force and, as Ms. Herrington-Bilyk testified, his actions did inspire fear.

{¶ 16} After a review of the record, we find that the state provided sufficient evidence if believed, would convince the average mind of the appellant's guilt beyond a reasonable doubt. Further, we cannot state that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. For the forgoing reasons, the appellant's assignments of error are overruled and the decision of the trial court is affirmed.

{¶ 17} Costs assessed to appellant.

Hoffman, P.J. and Patricia A. Delaney, J., concur.


author: TEODOSIO, Judge.

text:
    STATE of Ohio, Appellee v. Paul W. BIGGINS, Appellant
    No. 17CA0043-M
    Court of Appeals of Ohio, Ninth District, Medina County.
    Dated: May 14, 2018
    JOSEPH F. SALZGEBER, Attorney at Law, Medina, for Appellant.
    S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Judge.

{¶ 1} Defendant-Appellant, Paul Biggins, appeals from the judgment of the Medina County Court of Common Pleas. This Court affirms.

I.

{¶ 2} Mr. Biggins was indicted on one count of theft based on his having taken funds from Medina Creative Housing aka Medina Creative Accessibility aka Medina Creative Living ("Medina Creative"). He later signed a written plea of no contest. The terms of his plea provided that the State would not pursue a term of incarceration against him as long as he agreed to the amount of restitution to be imposed. At the time of the plea hearing, however, the parties had yet to agree on the exact amount of restitution. The trial court, therefore, accepted Mr. Biggins' plea on the theft charge and scheduled the matter for another hearing on restitution. The scheduled hearing was later cancelled because the parties notified the court that they had agreed on an amount of restitution.

{¶ 3} At the sentencing hearing, the court ordered Mr. Biggins to serve two years of non-residential community control. It further ordered him to pay restitution to Medina Creative, pursuant to the parties' agreement. Although there was some discussion about how Medina Creative's insurance proceeds would affect Mr. Biggins' payments, Mr. Biggins and his attorney repeatedly stated that they were in agreement as to the amount of restitution owed. The trial court, therefore, ordered restitution in the amount of $23,840.55.

{¶ 4} Mr. Biggins now appeals from the trial court's judgment, ordering him to pay restitution in the amount of $23,840.55. He raises one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

DEFENDANT-APPELLANT'S TRIAL COURT COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY NOT REQUESTING A CONTINUANCE OF THE SENTENCING HEARING TO HOLD A RESTITUTION HEARING, IN ORDER TO DETERMINE THE CORRECT AMOUNT OF RESTITUTION, IF ANY, TO BE PAID BY DEFENDANT-APPELLANT TO THE THEFT VICTIM, AND DEFENDANT-APPELLANT WAS PREJUDICED AS A RESULT BY BEING REQUIRED TO PAY A MUCH LARGER AND ERRONEOUS AMOUNT OF RESTITUTION AS A PART OF HIS SENTENCE.

{¶ 5} In his sole assignment of error, Mr. Biggins argues that he received ineffective assistance of counsel. Specifically, he argues that his attorney should have requested a continuance at sentencing to clarify the amount of restitution he owed. For the following reasons, this Court rejects his argument.

{¶ 6} "On the issue of counsel's ineffectiveness, [an appellant] has the burden of proof because in Ohio, a properly licensed attorney is presumed competent." State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. To prove ineffective assistance of counsel, an appellant must establish that: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonable representation. State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Meanwhile, prejudice can be shown by proving "there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Id. at paragraph three of the syllabus.

{¶ 7} Mr. Biggins signed a written plea agreement. The agreement he signed provided that, if the parties stipulated to an amount of restitution, the State would not recommend a jail sentence. Consistent with that agreement, the prosecutor indicated at sentencing that the State was not seeking a jail sentence, that Mr. Biggins was "agreeing to pay $23,840.55 and, * * * with that in mind, * * * that's why [the State was] making that recommendation * * *." Defense counsel responded by confirming that Mr. Biggins was "agreeing on making the restitution in the amount of [ ] $23,840.55," and Mr. Biggins vocalized his assent on the record. Following that discussion, the court orally announced its order that Mr. Biggins pay Medina Creative restitution in the amount of $23,840.55.

{¶ 8} After the trial court orally announced its restitution order, defense counsel interjected that Medina Creative had received $19,980 from its insurance provider to be applied "towards that money." The prosecutor insisted, however, that the insurance proceeds had already been applied to Medina Creative's losses, leaving a balance of $23,840.55. In light of defense counsel's statement, the court summarized its understanding that Mr. Biggins had taken $43,222.56 from Medina Creative and the company had received its insurance payment, "leaving a total to be repaid of $23,840.55." Defense counsel then responded that the parties were "in agreement on the $23,840 * * *," but that the defense believed Medina Creative's losses had been reduced as a result of a $20,000 payment from Mr. Biggins rather than the insurance proceeds. In reply, the prosecutor stated that the parties previously had experienced

some confusion as to whom restitution is due, but we agreed on the amount of restitution, Judge, to 23,000 and it's due to [Medina Creative]. That's who the money is owed to and I don't-even with respect to the momentary disagreement or confusion, I don't think that [defense counsel] or Mr. Biggins is suggesting that they want to have a restitution hearing to pay someone else.
I think we're all going to agree that's what happened here, $23,840.55 to [Medina Creative].

Defense counsel then once again confirmed that the parties were "in agreement on the amount * * *" and thanked the court for its consideration.

{¶ 9} Mr. Biggins argues that his attorney engaged in ineffective assistance of counsel when he failed to request a continuance at the sentencing hearing. He asserts that the parties were clearly in disagreement about the amount of restitution he owed, so a continuance would have afforded him the opportunity to request a restitution hearing. According to Mr. Biggins, the restitution amount the court ordered was erroneous because it failed to account for: (1) the insurance proceeds Medina Creative received, and (2) the fact that Medina Creative kept his final paycheck and unused vacation pay. He argues that he was prejudiced by his attorney's failure to seek a continuance and a restitution hearing because the court ordered him to pay more restitution than he actually owed.

{¶ 10} On direct appeal, an appellant may not establish ineffective assistance of counsel based upon evidence outside the record. See State v. Eastridge , 9th Dist. Summit No. 21068, 2002-Ohio-6999, 2002 WL 31828956, ¶ 20. Moreover, this Court will not consider arguments for the first time on appeal. See State v. Osorio , 9th Dist. Lorain No. 16CA010999, 2017-Ohio-5837, 2017 WL 3026516, ¶ 7. To the extent Mr. Biggins sets forth an argument about his final paycheck and unused vacation pay, the record reflects that he never raised that argument in the lower court. The only items the parties discussed on the record were the final amount of restitution he owed and whether Medina Creative had already received its insurance proceeds. Because Mr. Biggins failed to present any evidence or argument about his final paycheck or unused vacation pay in the lower court, he cannot now rely on those items to establish ineffective assistance. See Eastridge at ¶ 20 ; Osorio at ¶ 7.

{¶ 11} Upon review, Mr. Biggins has not shown that, had his counsel sought a continuance at the sentencing hearing, the result in this matter would have been any different. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 at paragraph three of the syllabus. When the parties came before the court for sentencing, they specifically discussed the insurance proceeds that Medina Creative received and how those proceeds had been applied towards its losses. Both the prosecutor and the trial court noted that the insurance proceeds had already been applied to reduce the restitution payment. In spite of that discussion, defense counsel confirmed that the parties were "in agreement on the amount" of restitution to be paid. Moreover, throughout the sentencing hearing, both defense counsel and Mr. Biggins represented to the court that they were stipulating to the exact amount of restitution owed. See State v. Turner , 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 41, quoting State v. Post , 32 Ohio St.3d 380, 513 N.E.2d 754 (1987) (" 'Agreements, waivers and stipulations made by the accused, or by the accused's counsel in his presence, during the course of a criminal trial are binding and enforceable.' "). At no time did Mr. Biggins note that he wished to revoke his stipulation.

{¶ 12} Notably, Mr. Biggins reaped a benefit from his stipulation, as it kept the State from recommending that he receive any term of incarceration. Though he now takes issue with the amount of restitution the court imposed, both he and his counsel expressly agreed that the exact amount due was the amount the court imposed. Mr. Biggins essentially argues for a windfall, as he seeks to both retain the remainder of the money he stole from Medina Creative (i.e., over $23,000) and avoid any period of incarceration. His stipulation, however, was that he owed Medina Creative restitution in the amount of $23,840.55. He has not explained how any additional time he might have gained as a result of a continuance would have changed his stipulation; particularly, when the State plainly aired its position that Medina Creative's insurance proceeds had already been applied. See App.R. 16(A)(7) ; State v. Bray , 9th Dist. Lorain No. 03CA008241, 2004-Ohio-1067, 2004 WL 432265, ¶ 21 (rejecting claim of prejudice where there was "no indication in the record that [appellant] pled no contest as a result of the alleged errors committed by his counsel"). Because Mr. Biggins has not established prejudice as a result of his counsel's alleged ineffectiveness, this Court rejects his argument. See Bradley at paragraph two of the syllabus. Mr. Biggins' sole assignment of error is overruled.

III.

{¶ 13} Mr. Biggins' assignment of error is overruled. The judgment of the Medina County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P. J.

CARR, J.

CONCUR.