na...`^`5 c^ase, ^r^s^s ^ronn l^j^,cr ^p^^^^^'1 ^vt^^iortier rvss^ll e. ^^p^e^^,etlt^...
TRANSCRIPT
ORIGINALsupreme Covr^' oF C^^i^
^uss^^1 ^._ A ^^z^►^^^r, CRS^ _ N^i -13--00^"1 _} QP .ap^t,l hn^'^ _P^.^i^ ► .o ncr'
°'VS s On RePnI fcow►-..fie_ _ u tCn^nt Cour^ ^F _^ ^als__.
Cn!_c^,^le. ^^Ilcr, ^Jafi^en, _Sev.enW_RePe11ate -t-WcictsuIm®nt Cocred. i®na1 Inst., . CaV_c^'_ -oF-_^ppeals __
-MUIT BUF oF A^► Itan► ^^e^tion^t' &sselt E. APPenzelle.r °
sse!i _E. aPQe,nzclte. ^ Qco Se _S' 14- 99 l Cout^Se of __^cor F®r
, P,O. _^ox S.yo., ^8^t8 6an!^o_ck_^d. ►1ant /.PetitioAerSt. C.lairsville,-Ohio ^3°► S®-®S_0
^(1`^c4,^el __Dew ► t^o CounseI oF Recaca_FocM. S_e®1f Criss AFPe ►1ep_ / Res_QondentAsslsh4 Mtornej6e,neCa1
!.CC_i inat _Sust► .ceSectionISo East Ga ►Y_Si'cect, It^^' FloorCglym-6vs, Ok-eo 433-t5 PLI DD
M:^^ 18 NQ
MAR 18 2013
CLERK OF COURTPREME COURT OF OHIO
^1 aFl3 -CLERK OF COURT
SUPREME COURT OF OHIO
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_ ------Prnnn^A^AInn ng LAta [^e_ T :
oF 1^be^S ^®^QuS__bec.^Se.^'erts^^4n_e^ _^S__^_rt.1^^?t^^^lYceS^+'^.►tled_, oF hi5 L ► ^,ertY _a^ a^^'2te._ Co^^ec`^^ona^ ----- _
----- ----- ------- -- --
©F Lau) 00. 1^_ __'
►na► I;ke- ml 4ker teaal_, --_ -- - .. ^ •p_Co^ea_inqS, `^^ne_ _d^GIS ►_0^1lYt^^^t-^ ._COI1C^_US!
---- -
----. , ^.. _.._-
------- --- ----v-e
-- - ^__and ^ere___ts __(lo ade^uaTe 1e^ne,dY--^^ o^ d^n`a!'Y _t:o_v_cse.oF aw , l__-------- - - ^ -
_ --.
I we1+B AL' CAC► ih
^ ^^?i1^rOt1 0^ ^'I^e _1.^1_^._Co^n't'^ Cauc^ oF__APQea1S -___► na_l appeal^-(Decµ, 3►^ao^8^__^ase ^o a0o^•L- as^ (ci'im .
&Ort oF Appe,a
{ ------ ---
-. , -
C^
^ ,_-
C7pit^iot^ _o^ ^e Lake Co_v_n^'^_Co^r^' o^ AP^eais ^v►^''
.^v ^o,n^en^ ^^`tr^ s^^ ^^e._l.ake. CountY CouP^' ©F ^pPe^ ^s
our^-aVCon ►ry,,on PIeaS _15___Coun`y - --- -- - --?ooL)CQse No. ol- ^tt-Ooo I o8 _{Sente,±^ ►n9^ - -
: 1. -____-_ --,-_ --_----
Wo}lCe. oF aPpeal to k (^ goPrem Co___rt-- -a°m caSe No.__ i3- 0087---^
OQin^^r^^ Sudg^nnen^_En^^-oF ^he Cr^tvmbiana Co.-Covrt_op_ A_ ea ^5_( et;^-ion^^ec. ay ao►a^ caSe No. ta ^. zy habeas p
- ---3_-a_F_43_-
45tonS'^^^©+R^`^~`^U^ ►o'^ ProV„
,_Ti.ot`l'_R_
2 b
CyoldbV. Y^11ey ( 1ql
Sta^e. V. Pa_ t^e (.oo7^ l14Ykl^31 __^^^i_ 1^•C,
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sa3, s^^ ^ 1
ii^r
o^ 3^3'7 U, S. a^4^ to
+ .,vvten* oF ac.ts
`^`5 C^aSe, ^r^S^S ^ronn l^J^,cr ^p^^^^^^'1 ^vt^^iortier Rvss^ll E. ^^p^e^^,etlt^
'(Pe^ierter^..^ad, -^^o c^seS be.F^c^ ^e- ^^e. Coun#Y eovct o^ Y^gpeals. S'^^t^- V,
Vts`k. Oo. aoo^-- L-aSQ, Z.bmr6hio--IoO5') and S-^ate- V, A,Qfenazlle,lr,
Qo. 2007--1.- t`^S Zooc^- b^,iU - G►^^^ .^^pp)^ ^ 1^# g
^2. ^icS`t o^ ^^'1e. ^'Wb C`dS^S t^JaS °^'o ^.(^^^i^` ^1 ►S Jvt'Y ^'t'^1' CA11Ut^ic^11
an^. se^`^^nc^. S^a^'e. V. ^ppenZe! le.t'^ _^.ake ^oun`^( Co^r^o^n ^^eas ^.out'^ ^ C2S^.
oo, 06 CMoM Secon d ^^ ike iw® QseS t;Jas +o aQQe31 4e,.Same,
oVAnnoY^ ^^edS Cou^t de,n i ^e^^^'►ot^et" flS^GOnV ►ciior1 t°66 t,Ji`lkook aRardil
{
PCobl^^ns tNt^^ ^h^ 12^2. & niy C'.ouc^_ o^ 1QPeatS 2ppe.^ta^^ pcess 6ecarne.
^appa^e.^^ 4n^'In^ C^c^cd ^ecer^ber 3t^2oo4' ^hern ^^,e, Couc'^ oF Appe^^s
! c^c,^de^ed 1-^S ^e.cts^ar^s F^r bo^k oF ^-he. ^er^^^on^d Cases ^ ndr'^^e^r`^
IL CoMMOn Ple.asAPpx ,
:.j . ..... ... . ... . .. . .. .
oF
. . . .... .. . 1 A. { A 1 ^ ^ 1 , ♦ 1 ' A ^ ' 1
^►^di. ^'a^^s ^t1 ^lt^^hG^' o^ ^^,e. ^wo J^d^rnen^ `^e.^^c^^n^i ^^p^I`
^.^ ^^. ^
If, Jocket Vor Siate V. ^PPer`?etlLc° It -' s^'. l^o. aoo^: ^S^l?Qo8-oh^o-_
1-700s d^Sclose,s ^^a^ a L^^^ Co^n^YCo^c^ o^ RQ^^Is1 Occk C410YiAed
--SoF 13_;_ _
+^e. cuS^`®d^ pF ^^e. Co^r^S ^ecords ac%d PapeCs Wet fitie. ap Im +o aA
zWocnq' fafpUlAte,d .t'ePceufi`Y APPEtlant I Mt+iowAppm?t l lec, ^,Aerrnorc )
*k2 'rec,ordS ar+d Papefs oP tke.
'Ive r ^ e-d F^aw^ `^h^ Clerl^'s uSiad^ Pcom ©G1^6er
xa^', Zoo'^ ^' ► lQe^ 1^11?0^^ . ^ Pe^' °t®r ,^gs. t^ and tZ
^^oS '^.. tes 0^ A?961a4e Proc.edore 3o C.g) sidies Clerk
S ha l.l have, C^s`^^,( o^ ^he t'^ cords ^^d Pa^pecs oF +he ceor-t. Sance.
t I,
%sdoses ihe, Ape. Ue, ber^^ brokev\, and ihe
Lra1<e Cot)AiYCoof'^ aF ^)Ppeals ded noi Follow O'kih e,
OP Ws . o^ 4e ComMOV\ _^Ieas ``^rial^^ ,
4e t3e,tm1Dn.-^ C.ovrzi^ Covrt ^F APPeaIs i,is Pasi
^or 2 Qri+ oF habeas carPvs to inc6Vre. iMo 6s 6,ein9
unla^F^tl^ c^es^r^^n2b. 6 h*s &iMaA+ C^JA+^ &)P^ o^ Appeals
o pAe.rGb +he. (ZzsPonden* ia
;latlawe,d 64 ^e. e;v► l cotes. d^n e. S3rn^. a^ o^ eovri'S ordct'^
Pti y^ Io^ZoIZ.^ R€.vtDov\deM C; led ^C M I
comQly W;iI, conievis op +he c'eiarL._.^ p.F_13_
Z(sQrn)_^he Qe^;^;®A c^a►mS ri^b u erth^ Que Process and ^ual
io-.l --1, r ^ U^d^^^ S-^^-^ C,b,^^;^U^^^^ an^ ^h►as C4nst;^^^;.^n .
100ed' all +ke, fecords and
Fc'am +he CoOt oP ApPe^^ /C1e'rt a?oSSeSStbAaS 14
a PP^L^-^e Coyrt ^,ocl<Gt ind ►Cate ►n ^act, oCVfC2^ . Intec-aiinj1y, + ;s
.
ssed_^e^ ►^^ot^e^sa^srym
{'ei^^► an. ac I^PPs^1 _`^^is ^as`^ ^anvar^ e^^ Zo 13^^
V.`}^c rratcr 'is nou) be.Fare -\;s Stapr-e,rne Coort io aPP-ea1,
Counly Covrt oE APpe'W Opinim ^nd ^^b^ ►ment ^n^krv ^^nd i^u^^e ^^cn^stl^
t`nto ^tS b6n5 ^nl^^F^ltY t'es`trained 00 (APPx.
^ ^^^`^`n^n^claWl^c^_^ •
o^^t oF Ap(^^a ^s i n C o ^vrr b^a^'^ uniy c^ ►1 ^_ r^o^k hao e, 1s^^L^ia ►'^det^c ' '^t' aAe(''S ^'o^ a O,t o^^1a^eas ^o^rp^s bec^^sc n.er^ {^^^^ ► ^or^^'^^ ^
vnl2wPvN oesit'&ne4 op Ws l ' bC.rA^ ai a s-tate Cof f ec ior►z t inS^^^ian
►re Q^Inna^`l' C.^^n,^^, ^^io,
Sr\ par't O. fZ.C . § ^^^S.o k etN ► deS : `` LJkoevtr ^s 044FOttY- 7oF13..-
twij oP 1o6eaS
eb^`Py5 ^o ►nt^vif'e 1j*t> Jk'hf- GavSe- DF soc.t\ impt'isaAmel^4 feSira^n't'). • ^^►V';i koA,
APpenZclltr' erb Se, C^a`mS io be^ny ^^la^F^`I^3 _
^es^t^^^n^d o^ h^s I^ bGr^Y a} -N^e ^3etM^^t CarreG`k ► onat rNsi ►to^'i^n ^nd ^I^eneF^r-^
,^rl, A I,e Covr^jp,ro^ecu^ked, ^, wr,,i o F ha 6eas co(^pos ih►s pas+ S^ l,^ it,'Zo ii W•
;.o^ ^PPe^ ► t^ (3elmorv^ C^a n^^^ O^n^ o ayains`^ rqichel e YYIa L le,r, Responde^tt^
^sard^ a^ sa^d in^^^-^^^^^^n•^ case. 0o. va a^ 24.
`Itlpas-k 1,^eeem6QC~ Z 4, zoa' tY) What a ppe;CS iv 6e an aU°k^ot';-zed
i^.t,^'errniree,d Pe.^►^i^^^,r's ^^^^^►an ^o,^ 2 wc'^`^ ^^ habeas corp^.s ^r,^ au^4horti`ze^:
(fj^_ „ Wa^'dfih.s '(Y10^1^at1 SmIsl ►S 3vqlhteA 3i1A cei,14m ^ol'
1^
rt+_ o F{^^ 6eaS C^pvs ts ^er^ebY d tiSn^,ISSe^,
RrSvaai io 0.(Z.C..q a'?as• 03 iI,e Colom6ma & nly cwrt op. APQeals
!d^d no-^^ or Aoes noi 1nue. jris^%cAon io h16em
CarP^s ?eiiiioner'S prOdOL-t ►oA or lsc4-^arge. ^s a f'eS^t^^ +he aer\
^^dc^me^nt ^^n^c^. ^n c^v2s^iDn is Uaid j twll jnar ^aL^^all^j or Leglly Ce.Qa6le
as 4C Ae)^ sec^'mS kerea^+er demmsiraie,_.'? oF13_
{^ro o^^^^^trt o^ La+^ Po. al :
Ye. a1t _a^
A^va^e [Y1a:KZr.S- on
_ _ . _----- ------ _ --- - ---_ - - - -
---_ --^ --- - - -- __ - - --- - - --- _ ^ ___. -^-- - --- - -
fo_ have g t'anied Re.spo^Aun^ S m^^or^ ^o ^;sn ►► ^^^ ^ecaoSe---^
, aS ^ n adecwate------
^Co^t'se o^ _.1a^^rf^ C^^,wed Pe, ►-^^o_n_^ur ^^^'^or^v^c,^iar^ _t'^1►^^_ex►s^:_`^^^_ ---, __ -- _ - - __- - - -_ _ __ -
^c.ached i►S _Cncl^Si^n b _e^ro,neovs_^. ^,n^in._ -- e _'^e,^ ► ^a^ Chall^n
conStitv ►ola^t^ans_ __ --- - --- _ _ ___- ---- _ __
, ^an^^eS^..__^'r^ow• _^^ ^eims __oF _^he. S-k^tv^^_^4-ha^.,^iij$'DRefi' (Wl i'd^o_ ^s^abl is^ tig1^^-
t}ianer W3 S ^Li2d_3 _nd ConVic,^he _^ ^► --- ^ _ _^^_ __-_ - -abse ce o ` ;Jen Ca_S^ i ^n -`a__^ -)-- -a-i a^ - - ^ --w
.. .. ._`^e._C'o(umb^an^ Cou^n^+^ C'.o,^r^ o^ ^PPeats I
^ --- mze4lcr- ^h^al(e,n^ed_^conS^'^^^^^on^l ^ ^a1a^^or
C or^v_► c,`^^or^ ^^1tsG^1^^'ac`t`er^ZeS 1 e^ ► iotlec_^ ^o
^nd i n^^es ^^ie exh^bi-^e^^'
Pe^^^,^^ as eV^ ^nce S^ppor^^ng Pe ► ^^n^,rs_
9 o F ! 3--_ ___ _-_
nNpraPer conY ►ef^o^n-.- la_
-_.
.,,___muSt ^2Ve 4CC_V_S'^eAbF a CpiM ► ^a^._._{^^^?a!^?_._^C1e
^a^' res^l^ed ^n ^ imP^o^cr_
1--Pie^^in^S^w,^h^r^ ^^ ^e,^^^►__-_
I arzd _incl^d_ed w^^^{^e-_-__--, . ,. ^ , .^
Ke^le!( ^0^,
^-_-
^ ^^n^►ll^' `^^ _^eCtS^or^Ma^eC S_ Cti^G^^tD_n ^,^^ °^u _^. t'ec ►^^e^n^s-eleo^bt.^^^',^
arr^y, ., •:' - cmes^`^'^ ^^ ^,s►9A ,naY.e,t' s^ ►^,^d_5^^^^.-^e_^eaS^ns-^^r_^^s_^_ . c^cit,r_^it,^,o^n at^d ^^cl ►_ca^^ ^he, ^v^derrc^ - - e, -Ce^^ed_o^_^_^l^ov^^, 1 ►5
-or_rnaiF:nd^n^s------ -------Fa_^ . ^d^d ^or^ctus^_^nS o^ ^^ - d ^ Cavt^se an ►m ^t^^al__ , ^^' G --- --- -- w i^-1n -, ^ - --- , --- -P - -^: • ^de^_, ^^^ ^a.Ket^ s ess_^n !al_•_ - - - -
Isn* 1ll^ of t1y_Poss b1e---
i_^o _-reach ^e, conclUs^o^n oF ^h^ C;olumb ►a_n_^ aAs^_^°^---
^;.^2^r ^ear^n^y ^o_ gran^ a ^rnQtto+^ ^c
2^d ._rt.pea^'edlY^ evtnce,s ^'^e. cons^^^---
^0 ^S^apflS^ ^tS ^_ ►9^`^ _^'0 __^'e^ti^ cC
, ,.cor^V ► c,}e^ oFihe,-Crtrn,na OERms2
ior^^l ^i^la`ti
_Q VY-_----
ttior^l_` _fe_t^eS ^Pon_
`^r ►e^ an^ _,
;te
oF __^^ea^s haa_Yr^s^±^^;>?n ^o cev'--__ - - --- _ _-__--
}
, ^et'e, tn__^i^h`^ oF ^PPe^tzelleC's _Qe^ior
-1n©F13--_
:riPA 'An d Senfif\
ak- Gci
0p r^s
^ ..^...^..^....^^^....o.^. ^^....^^...^^
w ►^eas cocp^s__W.cg^^e^_ _is ^va^.lablc _whe.n °N^et'e_ _^ ^sftca;_ • . .4:0 . ^`^io CNe.fi,s _Qet^ For ^. :^c ^t 4__ 2be
Gr_pUs c1val.len_e_s^ka^ t'es^^_a_'^^_o^ g^pu ► ^s__un_t^^a^ed ^ __Coc^cic._►'o^t---_------.^tse1F'^ ^nd ^ke^e. ^sT[^_ ^de^u_a^ke_Cer^e dY ► c^_ ©c^^r^a^`Y cou^^e_c^F _^a^.-- ----------_-----
_ - __ _ ---- _-- ----- - -----^n ^e^c^se svb jvdice, Pe.^ ► io^n^c' .ch^llen^_s__In^s _- e^±^g v_nl^+^^^t^^ _. __ _____
r _ $ _ _ - --- __ ---- ------ -- ---- ----- .- - -- --- ---- -t'_e&a►Kd_-c^^_l^,s. ^^_^er^Y_or•_^t'ounds unceta^^d ^a__h^^_be`^^_^c ►e^,_^onv^ctea_^ aaa-- ----
- -- --------------_^q3 59°^ a^?aS-Coc^iuS _Ss^n^'en^ed.,^-Se^; _^4nox V. _^._L._ [Y11xw^11_^tae'1^ arl'1 F S^Pp.- , _ ,---
ting^^^►^----------_^o+n^'^ne^e,,^_on g^o^r^dS_unce^ta^ed ^o co^_v,ct ►vt^ ►^se,1^.
-_
; f^^pe^lan`^-^Pe^ ^^^_v-^et- ^^Q^n-zeller's c.l^^rn^s^ -F^cns on_Oh^o_^ules ._oF ^^^pe1_!^^'e, --- -- ---- . -------;_P_coced^ce-3b^-^^^_Cvs•tody o^ Cecords and,^e^^^_-- Che, cJerk Shalt h^^^ ^US odY_
----- - --- _oF ec.ords and_ paeers oF_^^^ _COvc^. Pa^ecs icanSrnwed2S-'^e Cecof _of^^P^ea_1__or cevieW _S1^a11_up^ d^spos^^io!^__oF ^^e_caSe-b^_ C'e`^^rt^_e^ }o_^1^e. ^^ --__vc a^encY Fr^m_Wh^G^•_^,@Y--wer^. ^'^ce► ^,`^e,_cleck_Shal^_preserv_e co^^es_o^_ __bt'iehs 2^ ^'^er F^l_•►_ngs,'^
----R1^^91^^-Ceo Se._^ A6, Pe^$on am'Ae^cish_ ^^ _doeS no^' s^ec,F' ►c2►11y c^^e_^. ^._3^^g^.
.does, 4^wevec^ maK^ ^vmecous ceE^c'enceS_3^OUt _16, clerk ak►ng:^^e,_chai^
-o^ c^S`^o^Y_. oF '^^^ re-^eY^n^ t'ecordS 1n^ Pa^ers__ O^ the i.'^Ke ^,o^n`^ ^our^ o^__
;abou^_^1,e underlyapp-alm, and ^1^^ Pe^^^^a^ as ^achea ^Q t ^op1^s^F ^^e.
ce^eva^}_.^oc__ kA^_ l^eets ^;sclosirtg sai^^c^_e.^^__in^'he c^a►n-_oF-_cus^°vdY--o^
^ ----a ers a.e.- ev_^ . ence aF ^^e aKe._Coun^^ Cc^c^' o^_ R^eals_and ^J^a^ c^
, tI oF 13-
tCattS(,*ea ^comi6e l.a1ce CounY CAmmorl QJeas C,oA -to feVieW,
nY3as^'^ce_4-^sos. __._._ ;.__._ .._...:._•-F.i-^^=^^G.-trv`.-'vr __1_..Q.^^I_^V :^5+0 v_l^y ^ ^___.-^^ ^ ^^ t.-- -- - - - -- ^ - )_ 4W
_ _ _. _ - - - ----- ---- -- --- ---_ __-^
^^^orrla^`iC. SeV^CSd^_^.YQn^^ ►r^1_VeC^ t^mted c^'d5s o^ caSeS, ^1^nese e^ror^_^e- --t_ ___- co^,s_^dGced s^cuc^Ura_I ecco^s--bec^use_^'4,eY_^er^ea^'e ^he e,n
', - - - - Y ___ute ....constitVflnal__ercor_Sr_^►o^ at^_ cnns^^^^^or^a1_e_ccar^_ar_e ^fi'rue ,v^^_.------
.(i^ce.rit_;_.
_--_;_^n--^1^^e.ttan^^-P^t^^eone+' APP^^.el ►ec`s case i^ ca^,na^ de ^;s^v^e^ a_Lake
-- -- __ -- -- -_ --, -- _ -- _----_ _-- - -- -- ----rCou.r^ C^^ ct oF ^^P eals _ C1er k_^ ^E^^ __Cel ^ nc^u^shed ^'^,e ^^S^^Y aI^e, f_ccdS ____.
-- --- -;and _^aQers.. ^F ^e cour^' _relevant w^^ ^'h^-ap^ea_ICs^.__ Ac,c.o_rd^r^ ^o ^'he _^o^k^^"
--__^deS4t^s^ ^o_t^^`the t'e1_^n v,shi^^^ ^'°-P^t ^^ rn.^t^l^^_W^S_`^ __o^ou9 . ^.re.Fvre^ ►S --, ^^_.
i^-1,^.re. ^n^_r^al d ► F^e^enc2s_^e.^Ween_^1,e,_cha ► n-oF ^us^nd^ oF_^l^e^ ev^^^^nc^e___
^_^^;► n9- ^c^Ke.n_^eFa_ce. ^ `^r^a l p^ace^.d,S-^ ^^^h ^I^e. _chain _o^° ^^?s°^od^!_ o^ fil,e, --- -__
^*^v^d_en^iat`^' ^ecords ^nd _^ap_^r^p _be^ng broken ^e^^ce 2n aQpe^l_^ea^it^, ---- __ ----
;_wr^-h^n wh^c^ ^I1e,__^earang proc^?,ds,_^^--o^l^ ^erceiv^lc_d±FF_er_^n_^e iS____ ------ -- - --__
w4,erc +o Se.eK ^el^e^^ pos^`c.anv^c.^^^n coP^?s
----- -, ---meaIIY con1"^ry w^^'h the eonstil'v`1 ®^s oF`n,e dec►s ►an6el^ ds FunAs^►1
Uni^ecA SiaAeS 9varanteei(^9 bk) e fcroceSs and ^%vat
_ _^('o^ec^!o^s. Cec^'a►nl^^ 6^_^desi9^n.^_Ohios ^1P1?etla-te__fwles_ oF__Ptb^ed^
lQ^e^_^o^rts ^ 9v^^^n1^e .^hos^ Fac-tsj_ ---- --- - - ^-_ ^ _^ _ --
----Fr,, r\_^orr_vp`l ► D_n beFare _rQV^e^ ►n9 ^he._ Case . m2 ►^^^^l1^n^_ C^S^odY oF_ i_oW^
('eco rds ^s ^v__^^a rn^n^2 ^,n rn2 k^ ^9__s^c h a 9ual`anfee. ^Yen poss 1^.
_ - ,Che decisior\bel^? r^^s^_ be_ _c'e_ >!ersea ^r_Voide,dT Respec^F^ I I^ S^bm^^1-e,a,
__-__ard
vssel -----_ --- - - ,; -- --- --- ^PPt^^a^^ ^e^►t^-- ^--- ----a __-- - ^---- _
---_ -, -=_-- --------- ------ ----._ , . .. ,..
f_be►ng 66ivet`ed_^o_._Clert<, Suprerne. C^^r^',oF Ohiv_^ _(^5-S,_Fronf_S^._^ $^ F_IaDr^__ . . ^ ';^ol r h^o_43Z^S-3431-- _,'^-^ns^^^^tiDnS._ ma^l d^IiJe^' er^^ces , te., ^-- -
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THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATEOFOHID,OPINION
Plaintiff-Appell re, F I L E DOURT OF APPEALS CA E NO. 2006-L-258
-vs- DEC 31'2009
RUSSELL E. APPENZELLE 4vNHfl L, MAZ01x<'OLOiiK OF 00URf
Dfant -Ap _ tAxE couNri, oHi§e end
Criminal Appeal from the Court of Common Pleas, Case No 06 CR 000108.
Judgment: Affirmed in part, reversed in part, and remanded.
Charies E. Coulson, Lake County Prosecutor, and Joshua44077dc(ForAPlafntifft
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH
Appellee).
432152998 StateTimothy Young, Ohio Public Defender, and SarahOH u '
Public Defender, 8 East Long Street, 11th Floor, Columbus,
Defendant-Ap pe II a nt).
TIMOTHY P. CANNON, J.
(¶1) Appellant, Russell E. Appenzeller, appeals from the judgment entered by
the Lake County Court of Common Pleas. The trial court sentenced Appenzeller to an
aggregate prison term of 28 years for his convictions for burglary, theft, and attempted
burglary.
{¶2) In 2005, Julie Middlebrook worked at the Towne Motel, which is located
between Mentor and Painesville, Ohio on Route 20. Middlebrook's duties included
working at the front desk and checking people into and out of motel rooms. In January
or February 2005, an individual checked into a motel room under the name Russell
Edwards In court, Middlebrook identified this individual as Appenzeller. Middlebrook
testified that on two or three occasions, Appenzeller approached her with a black
garbage bag containing his belongings. He asked Middlebrook to hold the bag for a few
hours. Then, Appenzeller would return later in the day and pay for an additional night at
the motel. Finally, on the last occasion, Appenzeller paid for an entire week.
Middlebrook testified that Appenzeller did not have a car and that he would take the
Laketran bus when he left the motel.
(¶3) On February 1, 2005, John Mackainch returned to his apartment at 7205
Mentor Avenue after working that day. Mackainch noticed that the door to his
apartment had been pded open. Mackainch discovered that about $20 of loose change
was missingfrom his dresser. In addition, he npticed he was missing a few video
games and `a couple of packs of cigarettes."
{¶4) On February 2, 2005, when Gayle Swaine returned to her apartment after
work, she discovered that her apartment door was hard to open. Swaine lived with her
boyfriend, Kevin Masterson, in an apartment at 7970 Mentor Avenue. Earlier that day,
Masterson came home from work for lunch and noticed that the apartment was messy,
but did not think anything was wrong at that time. When Swaine arrived home, she
found her fireproof lock box opened on the bed of her spare bedroom. Swaine testified
that four rings and two bracelets were missing from her bedroom. She testified that the
value of the missing jewelry totaled $3,800. Patrolman John Stirewalt of the Mentor
2
Police Department investigated the break-in at Swaine's residence. He testified that a
screwdriver was lying on the bed next to the Iockbox.
{f5) Lauri Casselman also lived in an apartment located at 7970 Mentor
Avenue. On February 2, 2005, she discovered that her apartment had been broken
were missing. {18) In February 2005, Timothy Bowers was the manager at a Giant Eagle
into. in her bedroom, she found her metal lockbox, which had been pried open.
Casselman testified that she was missing $60 and her mother's wedding ring.
(16) Shawn Hart lived in the same apartment building as Casselman, in an
apartment unit upstairs from Casselman's. Hart returned to his apartment for lunch on
February 2, 2005. As he was walking towards his apartment, he noticed a man leaving
Casselman's apariment carrying a medium-sized box. The individual looked at Hart
and asked him how he had been. Hart testified that the man walked toward Route 20
upon leaving Casselman's apartment. While Hart thought the situafion was strange, he
.did not contact the police at that time. Later that day, Hart returned home from work
and observed police officers outside Casselman's apartment. At that time, he informed
the officers about his earlier observations. A few months later, the police presented
Had with a photo line-up. Hart identified the third individual in the photo line-up,
Appenzeller, as the person he saw leaving Casselman's apartment. In addition, du(ng
his in-court testimony, Hart positively identified Appenzeller as the individual he
witnessed carrying the box from Casselman's apartment.
(97) On February 9, 2005, Wesley Schubert returned to his apartment at 7950
Mentor Avenue. He discovered that his door had been pried open. Once inside his
apartment, Schubert noticed that approximately $40 in change and two credit cards
grocery store in Mentor, Ohio. Bowers testified that the Giant Eagle has a Coinstar
machine. This machine converts loose change into paper currency for a fee. After the
coins are deposited into the machine, the machine prints a receipt that can be
redeemed at the store's customer service window. On February 9, 2005, a Coinstar
transaction occurred at 12:17 p.m. $61.31 in coins was exchanged for $55.90 in
currency. The store's surveillance camera recorded an individual redeeming the receipt
in question on February 9, 2005. This videotape was admitted as an exhibit at trial and
was played for the jury. Sergeant Ken Gunsch of the Mentor Police Department
testified that the individual in the videotape was Appenzeller.
(19) On February 23, 2005, at approximately 1:00 p.m., the Mentor Police
Department received a call from a woman who stated a man was breaking into
apartments in the Terrace Apartment complex located on Center Street. Patrolman
Mike Murton was dispatched to the scene. Patrolman Murton looked around the
apartment complex, but was unable to locate the suspect. Patrolman Murton
discovered that five apartments showed signs of being broken into. '
{¶10) Sheldon Hess lived at 7433 Center Street, Apartment 110, in Mentor,
Ohio. On February 23, 2005, he received a call from the police indicating that his
apartment had been broken into. Hess returned to his apartment and did not
immediately notice anything missing. However, upon further inspection, Hess
discovered that approximately $8 in coins and a credit card were missing.
(¶11) Patricia Zeiger lived in Apartment 111 at 7344 Center Street in Mentor,
Ohio. On February 23, 2005, someone met her in the parking lot when she arrived
3 - ja 1- ' 4
home from work and told her that her apartment had been broken into. Zeiger
discovered that she was missing $8 in quarters that she had set out to do laundry.
(112} Lisa Wilson lived at 7433 Center Street, Apartment 104, in Mentor, Ohio.
On February 23, 2005, Wilson received a call from a police officer informing her that
someone had broken into her apartment. Nothing was missing from Wilson's
apartment.
{S13) Lori Wolf lived in Apartment 108 at 7433 Center Street in Mentor, Ohio.
On February 23, 2005, a police officer called Wolf and asked her to come to her
apartment because there was a break-in. Wolf left work and returned to her apartment.
Upon inspecting her apartmenl, Wolf discovered that nothing was missing.
{Q14} James Wheeler was in the Lake County jail in April 2005. During that
time, Appenzeller was also incarcerated in the Lake County jaii. Wheeler testified that
he had several conversations with Appenzeller. According to Wheeler, Appenzeller told
him he was from the Youngstown area and that he was in Lake County to attend a
treatment program at a facility called Teen Challenge. Wheeler testified that
Appenzeller did not care-for the program, so he left and went to a local McDonald's
restaurant, where he panhandled for money. Then, Appenzeller purchased a
screwdriver for the purpose of breaking into residences. Wheeler indicated that
Appenzeller told him he had committed 30-40 burglaries along Mentor Avenue near the
Great Lakes Mail. Appenzeller told Wheeler that he committed the burgla(es during the
day, when people were not home, and that he primarily etole change and money so he
could remove the items without being noticed. Further, Wheeler testified that
Appenzeller told him he stayed at the Towne Motel, that he paid for his room by
5
(917) On Monday, September 18, 2006, Appenzeller filed a motion for leave to
file a motion for relief from prejudicial joinder, which was granted by the trial court. On
Friday, September 22, 2006, Appenzeller filed a motion forrelief from prejudicial joinder.
Appenzelier s one-page motion asserted that the charges should be separatedinto four
separate trials, with counts one and two, counts three through eight, counts nine and
ten, and counts 11 through 18 tried together. This motion summarily cited to Crim.R. 14
and asserted that Appenzeller would be prejudiced by all the counts being tried
together, but it did not contain any case law or other legal arguments in support. The
state did not file a response to this motion. On Monday, September 25, 2006, the
matter proceeded to a jury trial. The record reflects that the trial court overruled
Appenzeller's motion to bifurcate that day. However, the transcript submitted to this
court does not contain any.discussion between counsel and the trial court regarding this
motion.
(¶18) At the close of the first day of trial, Appenzeller made an oral motion to
represent himself. The trial court denied this motion as untimely. Following the state's
case-in-chief, Appenzeller moved for acquittal pursuant to Com.R. 29. The trial court
denied this motion. The jury found Appenzeller guilty on all 18 counts-
(¶I9) After he was convicted, Appenzeller filed a motion for a new trial, which
the trial court denied. -
{920} The trial court sentenced Appenzeller to a four-year prison term on count
one and a three-year prison term on count two, to be served concurrently with each
other. The trial court sentenced Appenzeller to a four-year prison term on count three, a
three-year prison term on count four, and a one-year prison term on count five, to be
breaking into residences, and that he would leave his belongings with the person at the
front desk of the Towne Motel. Appenzeller told Wheeler that he used Laketran as
transportation to and from the burglaries. He told_Wheeler that he placed the stolen
items in a black bag.
(¶15} Appenzeller was indicted on a total of 18 counts, including six counts of
burglary, in violation of R.C. 2911.12(A)(2) and second-degree felonies; six counts of
burglary in violation of R.C. 2911:12(A)(3) and third-degree fielonies; two counts of theft,
in violation of R.C. 2913.02(A)(1) and fifth-degree felonies, two counts of attempted
burglary, in violation of R.C. 2923.02 and third-degree felonies; and two counts of
attempted burglary in violation of R.C. 2923.02 and fourth-degree felonies. Counts one
(second-degree burgiary) and two (third-degree burglary) related to the incident at
Mackainch's residence; counts three (second-degree burglary), four (third-degree
burglary), and five (theft) related to the incident at Swaine's residence; counts six
(second-degree burglary), seven (third-degree burglary), and eight (theft) related to the
incident at Casselman's residence; counts nine (second-degree burglary) and ten (third-
degree burglary) related to the incident at Schubert's residence: counts 11 (second-
degree burglary) and 12 (third-degree burglary) related to the incident at Hess's
residence; counts 13 (second-degree burglary) and 14 (third-degree burglary) related to
the incident at Zeigers residence; counts 15 (third-degree attempted burglary) and 16
(fourth-degree attempted burglary) related to the incident at Wilson's residence; counts
17 (third-degree attempted burglary) and 18 (fourth-degree attempted burglary) related
to the incident at Wolfs residence.
{¶16) Appenzeller pled not guilty to the charges against him.
6
served concurrently with each other. The trial court sentenced Appenzeller to a four-
year p(son term on count six, a three-year prison term on count seven, and a one-year
prison term on count eight, to be served concurrently with each other. The trial court
sentenced Appenzeller to a four-year prison term on count nine and a three-year prison
term on count ten, to be served concurrently with each other. The trial court sentenced
Appenzeller to a four-year prison term on count 11 and a three-year prison term on
counl 12, to be served concurrently with each other. The trial court sentenced
Appenzeller to a four-year prison term on count 13 and a three-year prison term on
count 14, to be served concurrently with each other. The trial court sentenced
Appenzeller to a two-year prison term on count 15 and a one-year prison term on count
16, to be served concurrently with each other. Finally. the court sentenced Appenzeller
to a two-year prison term on count 17 and a one-year prison term on count 18, to be
served concurrently with each other. The trial court ordered the sentences imposed for
counts one and two; counts three, four, and five; counts six, seven, and eight, counts
nine and ten; counts 11 and 12; counts 13 and 14; counts 15 and 16; and counts 17 and
18 to be served consecutively to each other. Thus, Appenzeller's aggregate prison term
is 28 years.
{¶21) After hewas sentenced, Appenzeller filed a petition for postconviction
relief, which the trial court denied. Appenzeller has separately appealed the trial court's
denial of his petition for postconViction relief, and our decision in that matter is also
decided today. State v. Appenzeller, 11th Disi. No. 2007-L-175.
{¶22) Appenzellerraises five assignments of error and four supplemental
assignments of error. Appenzeller's first assignment of error is:
7
k ). 8
(Q23) "The appellant's conviction for counts 1 through 2 and counts 6 through 18
was not supported by sufficient evidence"
(¶24) A trial court shall grant a motion for acquittal when there is insufficient
evidence to sustain a conviction. Crim.R. 29(A). When determining whether there is
sufficient evidence presented to sustain a conviction, "[t]he 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." State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the
syllabus, following Jackson v. Virginia (1979), 443 U,S. 307.
{¶25) Appenzeller does not challenge the fact that the burglaries in this matter
occurred. Instead, he challenges the state's evidence identifying him as the offender in
these burglaries.
(126) Appenzeller asserts that there is no direct evidence linking him to several
ot the burglaries. However, we note the state presented significant circumstantial
evidence that Appenzeller committed the crimes in question. The Supreme Court of
Ohio has held that circumstantial evidence and direct evidence inherently possess the
same probative value and therefore should be subjected to the same standard of
proof."' State V. Biros (1997), 78 Ohio St.3d 426, 447, quoting State v. Jenks, 61 Ohio
St.3d 259, paragraph one of the syllabus.
{1:27) Wheeler testified that Appenzeller made certain confessions while in the
Lake County jail. While Appenzeller did not tell Wheeler the specific residences he
burglarized, he told him significant details about the burglaries in question. First,
Appenzeller told Wheeler that the burglaries were committed in the area of the Great
9
(¶31) Wheeler stated that Appenzeller told him he used a black bag to carry the
screwdriver and stolen items. At trial, the parties stipulated that a black duffle bag
introduced by the state was Appenzellers.
{132} At the time Wheeler disclosed Appenzeller's comments to the police, none
of the details of the crimes had been made public. In fact, Sergeant Gunsch was able
to get additional leads, such as information about the Towne Motel, that the police were
not aware of prior to speaking to Wheeler.
(133) In addition to Wheeler's testimony, the state introduced a videotape
depicting Appenzeller exchanging coins at a Coinstar machine. This transaction
occurred on the same day that Schubert's apartment was broken into and change was
stolen from his residence. The fact that Appenzeller converted change to cash currency
is circumstantial evidence that he committed a burglary where change was stolen on the
same day and in close proximity to the Giant Eagle store.
(134) Finally, Hart testified that he witnessed Appenzeller leave Casselman's
apartment carrying a box on the day her apartment was burglarized.
[135) This evidence, when taken together and viewed in a light most favorable
to the state, is sufficient for a trier-of-fact to conclude that Appenzeller committed the
charged offenses beyond a reasonable doubt.
(136) Appenzeller's first assignment of error is without merit.
(¶37) Appenzeller's second assignment of error is:
[¶38) "The trial court erred, to the prejudice of the appellant, by permitting
Shawn Hart to identify the appellant as the individual this witness had seen committing
a burglary over the objection of the appellant's counsel."
Lakes Mall Sergeant Gunsch testified regarding the locations of the burglaries. He
testified that the burglaries were all committed a short distance from Route 20, and
some of the burglaries were committed in close proximity to the Great Lakes Mall.
{¶28) Wheeler testified that Appenzeller told him he was staying at the Towne
Motel during this time and that he would leave his personal belongings with an
employee of the Towne Motel and take the Laketran bus to commit the burglaries.
Middlebrook confirmed this, by testifying that Appenzeller stayed.at the Towne Motel
and would leave a garbage bag containing his personal belongings with her. She
further testified that Appenzeller would get on theLaketran bus and would be gone for
several hours Then, he would return with money and pay for an addilional night at the
motel.
{¶29) Wheeler testified that Appenzeller told him he committed the burglaries
during the day, when it was unlikely that people would be home. In this matter, all of the
burglaries were committed during daytime hours. Further, Wheeler indicated that
Appenzeller told him he would only take change and money, so it woutd be easy to
carry away. The various victims in this case testified that the items stolen were all
physically small items, such as change, credit-cards, and jewelry.
(¶30) Wheeler testified that Appenzeller told him he used a screwdriver to
commit the burglaries. The state corroborated this testimony by introducing evidence of
tool marks for the various burglaries. The tool marks were consistent with a screwdriver
being used to gain access to the residences.
10
{139) "The admission of evidence lies within the broad discretion of a trial court,
and a reviewing court should not disturb evidentiary decisions in the absence of an
abuse of discretion that has created material prejudice." State v. Noling, 98 Ohio St.3d
44, 2002-Ohio-7044, ¶43, citing State v. Issa (2001), 93 Ohio St.3d 49, 64. "The term
'abuse of discretion' connotes more than an error of law or of judgment; it implies that
the court's attitude is unreasonable, arbitrary or unconscionable." State v.Adams
(1980), 62 Ohio St.2d 151, 157. (Citations omitted.)
(140) Appenzeller claims the trial court erred by admitting the following
testimony ftom Hart after he testified that he picked out the third individual in the photo
line-up:
{141) "Q. And where did you recognize Number 3 from?
{142) "A. The day I went out, I walked in and saw someone coming out of the
Lauris[sic] apartment where she had been robbed.
{¶43} "Q. Do you see that person sitting here in the courtroom that burglarized,
that you saw burglarizing LaurPs apartment?
(¶44) "[Defense counsel]: Objection.
(145) "THE COURT: Overruled.
(¶46) "A. Yes, I do."
(147) The assistant prosecutor mischaracterized Hart's prior testimony, inferring
that Hart had testified that he witnessed Appenzeller commit a burglary at Casselman's
residence. Accordingly, the trial court should have sustained Appenzeller's objection to
this mischaracterization. However, in light of our highly-deferential standard of review,
we do not conclude that the trial court abused its discretion in making this ruling.
12
11
(1148) Moreover, Hart's prior testimony was clear that he only saw Appenzeller
leave Casselman's apartment carrying a cardboard box. He specificalty testified that
while he thought the situation was strange, he did not initialty consider Appenzeller's
actions to be criminal. It was only after he discovered that Casselman was missing
items from her apartment that he informed the police of his observation of Appenzeller.
Thus, any perceived error in relation to the admission of this evidence is hannless:
Crim.R.52(A).
(¶49) Appenzellers second assignment of error is without merit.
(150) Appenzeller s third assignment of error is:
(¶51) "The trial court erred, to the prejudice of [the) appellant, by denying the
appellant the right to represent himself, pro se."
{¶52) "It is well settled that a defendant in a state criminal trial has a
constitutional right of self representation, and may proceed to defend himself without
counsel when he voluntarily and intelligently elects to do so' State v. McKinney, 11th
Dist. No. 2007-T-0004, 2008-Ohio-3256, at ¶211, citing Fare(ta v. Califomia (1975), 422
U.S. 806. The Supreme Court of Ohio has held that "if a trial court denies the right of
self-representation when properly invoked, the denial is per se reversible error." State
v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, at ¶49, citing State Y. Reed (1996), 74
Ohio St.3d 534, 535, citing McKaskle v. Wiggins (1984), 465 U.S. 168, 177.
(¶53) However, a defendant's request for self-representation must be made
timely. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, at ¶40. (Citations
omitted.) In this matter, Appenzeller did not request to represent himself until the
conclusion of the first day of trial. By that time, the vast majority of the witnesses had
13
(¶59) Appenzeller argues that there were no fingerprints at the crime scenes
linking him to the offenses. We note that a pair of gloves was found in Appenzeller's
black duffle bag, which could explain the lack of fingerprints. Contrary to Appenzelter's
contention, the gloves were not relevant to establish that he committed the offenses, but
they were relevant to help explain the lack of fingerprint evidence.
(¶60) Mitchell Wisniewski of the Lake County Forensic Laboratory testified that a
screwdriver stipulated to be Appenzeller's could not be excluded as a possible tool that
created certain toot marks on the door frame of one of the residences. Appenzeller
argues that his screwdriver was new and did not have marks or paint transfer on it, so it
could not have been used in the crimes. However, Wisniewski testified that paint
transfer on a screwdriver can be easily removed and, depending on the exact surface
pried into, the screwdriver may not sustain significant damage.
{561) Appenzeller argues that the jewelry stolen from Casselman and Swaine
was never linked to him. We do not believe this fact is determinative. The jewelry itself
would have had limited value to Appenzetler. As such, he could have sold the jewelry
prior to being apprehended.
(162) Appenzeller questions the reliability of Hart, since Hart testified that he did
not initially suspect Appenzeller of criminal activity.
(163) The weight to be given to the evidence and the credibility of witnesses are
primarily matters for the jury to decide. State v. DeHass (1967), 10 Ohio St.2d 230,
paragraph one of the syllabus. Also, in assessing the witnesses' credibility, the jury, as
the trier-of-fact, had the opportunity to observe the witnesses' demeanor, body
language, and voice inflections. State v. Miller (Sept. 2, 1993), 8th Dist. No. 63431,
testified. In State v. Cassano, the Supreme Court of Ohio held that a motion for self-
representation made only three days prior to the start oftrial was not timely. Id. In
State v. Deir, this court held that a defendant's motion to represent himself was not
timely when it was made only one business day before the start of trial. State v. Deir,
11thDist. No, 2005-L-117, 2006-Ohio-6885, at ¶35. Finally, in State v. McKinney, this
court held that the trial court did not errin denying a motion for self-representation that
was made during the course of a jury trial. State v. McKinney, 2008-Ohio-3256, at
¶214. Since Appenzeller's request forself-representation was not made until after his
jury tdaf had begun, it was untimely. Therefore, the trial court did not err by denying his
oral motion for self-representation.
(¶54) Appenzeller's third assignment of error is without merit.
(¶55) Appenzeller's fourth assignment of error is:
(156) "The appellant's convictton for counts 1 through 18 is against the manifest
weight of the evidence."
(157) In determining whether a verdict is against the manifest weight of the
evidence, the Supreme Court of Ohio has adopted the following language as a guide:
(158) "The court, 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 reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction."' State v.
7hompkins (1997), 78 Ohio St.3d 380, 387. (Citations omitted.)
14
1993 Ohio App. LEXIS 4240, at '5-6. Thus, the jury was "clearly in a much better
position to evaluate the credibility of witnesses than [this] court." Id.
(164) Hart explained his initial reaction to the situation and how his suspicion
grew when he learned that Casselman's apartment had, in fact, been burglarized-
Thus, the jury was free to decide what weight to give his testimony.
(165) Appenzeller contends the fact that Hart observed him with a box makes
his testimony incredible, because the box was not described at any of the other
burglaries. The fact that Appenzeller was carrying a box does not exonerate him. The
bottom tine is Hart testified that he witnessed Appenzeller leave Casselman's apartment
on the day it was broken into. What Appenzeller was carrying at thet time is of far less
significance.
(¶66) Appenzeller argues that Wheeler was not a credible witness. Wheeler
admitted that he has an extensive criminal history. Further, while he did not actually
receive any benefit from testifying against Appenzeller, he acknowledged that he asked
to be transferred to a treatment facility more quickly. Both of these facts were before
the jury, and the jury could evaluate Wheeler's testimony in light of these facts.
(¶67) Appenzeller argues that Wheeler's testimony was incredible because he
informed the police that Appenzeller told him that Appenzeller masturbated in the
underwear of the women whose homes he broke into. While there was no
corroborating evidence to support this allegation, the remainder of Wheeler's testimony
was supported by other evidence. Sergeant Gunsch testified that none of the women
reported this occurrence, and he did not follow up with them about this issue. The fact
1516
that there was no corroborating evidence regarding this issue does not, per se, render
the remainder of Wheeler's testimony incredible.
(¶68} The jury did not lose its way or create a manifest miscarriage of justice by
finding Appenzeller guilty of the charged offenses.
{¶69) Appenzeller's fourth assignment of error is without merit.
(170} Appenzeller's fifth assignment of error is:
(171) 'The trial court erred, to the prejudice of the appellant, by failing to grant
the appellant's motion for relief from prejudicial joinder.'
{172} The trial court issued a judgment entry indicating that it denied
Appenzeller's motion to sever the charges in court on the first day of trial. However, we
again note the transcript submitted to this court does not reflect any discussions
between counsel and the trial court on this subject or contain the trial court's oral ruling
on the motion.
(¶73) "Pursuant fo App.R 9, the appellant has a duty to file a transcript of all
portions of proceedings necessary for the court to consider the appeal. When an
appellant fails to provide a complete transcript, or those portions that support the
claimed error, the reviewing court has no choice but to presume the regularity of the
proceedings and affirm the judgment of the trial court." State v. Sfislow, 11th Dist. No.
20D5-L-207, 2006-Ohio-4168, at ¶24. (Citations omitted.)
(¶74} In the case sub judice, the only matters in the record regarding
Appenzeller's motion for relief from prejudicial joinder is the motion itself, which contains
minimal legal argument in support of the motion.
17
the residences broken into were apartments, all of the break-ins occurred during
daytime hours, all of the targeted apartments were in the Mentor area, and all of the
offenses occurred in February 2005. Thus, joinder of the offenses was appropriate
pursuant to Crim.R. B(A). See, e.g., State v. Conway, 2d Dist. No. 07CA0034, 2008-
Ohio-3001, at ¶17. In addition, we note joinder of offenses is generally liberally
permitted in order to conserve judicial resources, prevent incongruous results by
different juries in successive trials, and to lessen inconvenience to witnesses. State v.
Torres(1981), 66 Ohio St.2d 340, 343.
(179) However, pursuant to Crim.R. 14, separate trials may be necessary to
prevent prejudice to the defendant. Crim.R 14 provides, in part:
(¶80} "If it appears that a defendant or the state is prejudiced by a joinder of
offenses or of defendants in an indictment, information, or complaint, or by such joinder
for trial together of indictments, informations or complaints, the court shall order an
election or separate trial of counts, grant a severance of defendants, or provide such
other relief as justice requires. in ruling on a motion by a defendant for severance, the
court shall order the prosecuting attorney to deliver to the court for irispection pursuant
to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the
state intends to introduce in evidence at the tdal"
(181) This court has previously held:
(182) "When a defendant claims that joinder is improper, he must affirmatively
show that his rights have been prejudiced. [Crim.R. 14; State v. Roberts (1980), 62
Ohio St.2d 170, 175.1 The accused must provide the trial court with sufficient
... . (175) Moreover,Appenzeller failed to renew his motion for relief from prejudicial
joinder at his trial. "[T]he Ninth Appellate district held that '(a) motion for severance due
to prejudicial misjoinder undec rules of procedure for relief from prejudicial misjoinder
must be renewed at the close of the state's case or at the conclusion of all the evidence
and unless made at that time, it is waived."' State V. Feathers, 11th Dist. No. 2005-P-
0039, 2007-Ohio-3024, at ¶134, quoting State v. Owens (1975), 51 Ohio App.2d 132,
paragraph two of the syllabus. "This court has continuouslyadhered to that rationale."
Id.; citing State v. Cannon (June30, 1999), 11th Dist. No. 98-L-032, 1999 Ohio App.
LEXIS 3057, at'91-12; State v. Brady (1988), 48 Ohio App.3d 41, 44; Statev, Daniels
(Dec. 23, 1994), 11th Dist. No. 92-T-4730, 1994 Ohio App. LEXIS 5900, at °12-11
(176) Since Appenzeller failed to renew his motion for prejudicial joinder, he has
waived all but plain error. State v. DiCario, 7th Dist. No. 02 CA 228, 2004-Ohio-5118, at
¶6, citing State v. Boyd, 8th Disl. Nos. 82921, 82922, & 82923, 2004-Ohio-368, at ¶18
(additional citations omitted); State v. Reid, 1st Dist. No. C-050465, 2006-Ohio-6450, at
¶16. (Citation omitted.) Plain error exists only where the results of the trial would have
been different without theen'ot. See State v. Issa, 93 Ohio St.3d at 56, citing State v
Moreland (1990), 50 Ohio St.3d 58, 62.
(Q77) We will conduct a brief review of this issue to determine if the trial court's
decision to deny Appenzeller's motion rose to the level of plain error.
{¶78) "[nwo or more offenses may be charged in the same indictment,
information or complaint in a separate count for each offense if the offenses charged,
whether felonies or misdemeanors or both, are of the same or similar character "'
Crim.R. 8(A). In this matter, all of the offenses were of the same character, in that all of
,8
information demonstrating that he would be deprived of the right to a fair trial if joinder is
permitted. [State v. Lott (1990), 51 Ohio St.3d 160, 163.1
[183} "The state may negate the defendant's claim of prejudice by
demonstrating either of the following: (1) that the evidence to be introduced relative to
one offense would be admissible in the trial on the other, severed offense, pursuant to
Evid.R. 404(B); or (2) that, regardless of the admissibility of such evidence, the
evidence relating to each charge is simple and direct. [State v. Franklin (1992), 62 Ohio
St.3d 118, 122.1 The former is generally referred to as the 'other acts test,' while the
latter is known as the 'joinder test.' [State v. Lott, 51 Ohio St.3d at 163.1" State v.
Quinones, 11th Dist. No. 2003-L-015, 2005-Ohio-6576, at ¶38-39.
(184} Based on the record before this court, we cannot conclude that
Appenzeller met his initial burden of demonstrating that his rights would be prejudiced
due to the joinder of the offenses. Further, in applying the other acts test and the
joinder test, we conclude that Appenzeller was not prejudiced by the joinder of the
offenses.
(1[85} In the case sub judice, Wheeler testified regarding Appenzeller's jailhouse
confession, wherein Appenzeller descdbed his plan of leaving his belongings with the
clerk at the Towne Motel, taking the Laketran bus to the vicinity of the Great Lakes Mall
in Mentor, Ohio, targeting residences during the daytime hours, using a screwdriver to
enter the residences, and then taking cash or other small items to avoid detection.
Appenzeller's individual actions establish a pattern. This court has held that evidence of
other acts demonstrating a pattern is admissible pursuant to Evid.R. 404(B).State v.
s A 5 - 20
,9
Cochran, 11th Dist. No. 2006-G-2697, 2007-Ohio-345, at ¶23. Thus, evidence of the
individual offenses would probably be admissible in the trial of the other offenses.
(586) Moreover, we note Wheeler's testimony regarding Appenzeller's
confession and Middlebrook's corroborating testimony regarding Appenzeller's stay at
the Towne Motel would have been admissible in all the trials.
(¶87) Alternatively, under the joinder test, we conclude that Appenzeiler was not
prejudiced, because the evidence relating to each offense was simple and direct. Each
victim briefly testified regarding the items taken from his or her residence. When law
enforcement officers testified, they specifically clarified their testimony as to which
break-in their investigation penained.
(¶88) When reviewing this assigned error under the plain error standard of
review and based on the record before us, we do not find that Appenzeller has met his
burden of demonstrating that the results of the trial would have been different without
the perceived error, i.e., the trial court denying his moiion for relief from prejudicial
joinder.
(¶89) Appenzeller's fifth assignment of error is without merit.
(190) Appenzeller's first supplemental assignment of error is:
(¶91) "The trial court violated R.C. 2941.25(A) and Mr. Appenzeller's rights
under the Double Jeopardy Clause by imposing multiple convictions and punishment for
allied offenses."
(¶92) Ohio's multiple count statute is R.C. 2941.25, which provides:
21
present or likely to be present, with purpose to commit in the habitation any cdminal
offense;
(¶101) "(3) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, with purpose to commit in the
structure or separately secured or separately occupied portion of the structure any
criminal offense[.]"
(¶102) Appenzeller argues that burglary in violation of R.C. 2911.12(A)(2) and
burglary in viofation of R.C. 2911.12(A)(3) are allied offenses of similar import. The
state, in its supplemental brief, asserts that it "does not dispute that burglary under
subsection (A)(2) and burglary under subsection (A)(3) are allied offenses of similar
import, and therefore should have merged at sentencing." We agree.
[¶103) R.C. 2911.12(A)(3) differs from R.C. 2911.12(A)(2) only in that it does not
require the structure to be a temporary or permanent habitation, nor does it require a
person other than an accomplice to be present or likely to be present." State v. Recker,
3d Dist. Nos. 12-05-21 & 12-05-22, 2007-Ohio-216, at ¶24. Thus, R.C. 2911.12(A)(2)
criminalizes the same conduct as R.C. 2911.12(A)(3), except that R.C. 2911.12(A)(2)
adds the additional elements that the structure is another's habitation and that another
individual (other than an accomplice) is present or likely to be present. Therefore, when
an offender commits the offense of burglary in violation of R.C. 2911.12(A)(2), he or she
necessarily commits the offense of burglary in violation of R.C. 2911.12(A)(3).
{¶104) Moreover, we note that Appenzeller was charged with a violation of R.C.
2911.12(A)(2) and a violation of R.C. 2911.12(A)(3) for each residence he was accused
of burglarizing. However, the evidence in the record shows that Appenzeller entered
(193) "(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(194) "(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct resuttsin two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, theindictment
or information may contain counts for all such offenses, and the- defendant may be
convicted of all of them."
(195) The Supreme Court of Ohio has held:
(^96) "In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), courts are required to compare the elements of offenses in the
abstract without considering the evidence in the case, but are not required to find an
exact alignment of the elements. Instead, if, in compadng the elements of the offenses
in the abstract, the offenses are so similar that the commission of one offense will
necessarily result in commission of the other, then the offenses are allied offenses of
similar import." State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, syllabus.
(197) Ohio's burglary statute, R.C. 2911.12, provides, in pertinent part:
(198) "(A) No person, by force, stealth, or deception, shall do any of the
following:
(¶99)
f1100) "(2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or temporary
habitation of any person when any person other than an accomplice of the offender is
22
each residence with purpose to commit a felony a single time. Therefore, there is no
evidence that he had a separate animus when he committed the multiple burglary
offenses at a single location. See, e.g., State v. Powers, 8th Dist. No. 86365, 2006-
Ohio-2458, at ¶13-14. (Citations omitted.)
(1105) Under these facts, burglary in violation of R.C. 2911.12(A)(2) and burglary
in violation of R.C. 2911.12(A)(3) are allied offenses of similar import.
(¶T06) In addition, Appenzeller was convicted of four counts of attempted
burglary. Two counts were attempted burglary in violation of R.C. 2923.02 and
2911.12(A)(2), and two counts were attempted burglary in violation of R.C. 2923.02 and
2911 A 2(A)(3). Appenzeller was charged with a violation of R.C. 2923.02/
2911.12(A)(2) and a violation of R.C. 2923.02/ 2911.12(A)(3) for each of the two
residences he was accused of attempting to burglarize. Again, the evidence in the
record shows that Appenzeller attempted to enter each residence with purpose to
commit a felony a single time. Therefore, for the reasons set forth above, we conclude
that attempted burglary in violation of R.C. 2923.02/ 2911.12(A)(2) and attempted
burglary in violation of R.C. 2923.02/ 2911.12(A)(3) are allied o,ffenses of similar import.
{¶107) We note that Appenzeller did not object to this error at the trial court level
and that the trial court imposed concurrent sentences for each of the offenses that
should have been merged. However, both parties cite this court's opinion in State v.
Haines, where this court held:
(1108)"Had he been convicted of only six total offenses, instead of seven,
appellant may have been sentenced to shorter individual prison terms and/or a shorter
aggregate prison term. The number of convictions may also play a role in future parole
24
23
board determinations. As such, '(i)t is plain error to impose multiple sentences for allied
offenses of similar import, even if the sentences are run concurrently.' State v. Sullivan,
Bth Dist. No. 82816, 2003-Ohio-5930, at ¶40. See, also, State v. Crowley, 151 Ohio
App.3d 249, 2002-Ohio-7366, citing State v. Jones, 10th Dist. No 98-AP-129, 1998
Ohio App. LEXIS 5024. Any error on behalf of a trial court in failing to merge
convictions on allied- offenses always amounts to plain error. See, also,State v.
Ventresca (Mar. 26, 1993), 11th Dist. No. 92-L-091, 1993 Ohio App. LEXIS 1754;
Sullivan at ¶40." State v. Haines, 11th Dist. No. 2003-L-035, 2005-Ohio-1692, at ¶31.
{¶109}Therefore, the trial court committed plain error by failing to merge the
multiple counts of burglary and attempted burglary, and Appenzeller was prejudiced by
this error.
(9110)Appenzeller also argues that burglary and theft are allied offenses of
similar import.
{gi111} Appenzeller was charged with theft, in violation of R.C. 2913.02, which
provides:
{¶112} "(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services in any of the
following ways:
{¶113}"(1) Without the consent of the owner or person authorized to give
consent[.]"
(¶114) The Supreme Court of Ohio has held that aggravated burglary and theft
are not allied offenses of similar import. State v. Mitchell (1983), 6 Ohio St.3d 416,
syllabus. In addition, the Eighth Appellate District has held that burglary and theft are
25
not allied offenses of similar import. State v. Gonzalez, 8th Dist. No. 87561, 2006-Ohio-
6276, at ¶2B, citing State v. Johnson, 8th Dist. Nos. 81692 & 81693, 2003-Ohio-3241, at
¶90. The Eighth District explained:
(Q115) "These two offenses do have some common elements in that "'° burglary
may'"' involve the purpose to commit a theft offense. However, completton of the theft
offense is not a necessary. element because thepurposeto commit any felony will
suffice to supply the requisite intent. Therefore burglary and theft are not allied
offenses. See Mitchell, supra."' State v. Gonzalez, at ¶28, quoting State v. Johnson, at
¶90
(¶116} We agree with this analysis. Theft and burglary are not allied offenses of
similar import.
{¶117}Appenzeller's first supplemental assignment of error has merit to the
extent indicated.
{¶118} Appenzeller's second, third, fourth, and fifth supplemental assianments of
error are:
(¶119} "[2.j The trial court violated Mr. Appenzeller's due process rights by
imposing non-minimum and consecutive sentences.
{1120} "[3] The trial court violated Mr. Appenzeller's due process rights by
imposing non-minimum and consecutive sentences in violation of the Due Process and
Ex Post Facto Clauses of the United States Constitution.
(1121} "[4.] Trial counsel provided constitutfonally ineffective assistance of
counsel for failing to object to the imposition of unconstitutional sentences.
26
{q122} "[5.] The trial court violated Mr. Appenzeller's due process rights by
imposing consecutive sentences without authority."
(5123) As a result of our analysis of Appenzellers first supplemental assignment
of error, we are remanding this matter to the trial court for the purposes of merging
certain offenses and resentencing. Thus, these assigned errors are moot. App.R.
12(A)(1)(c).
{1124} The judgment of the trial court regarding Appenzeller's convictions on
counts one, three, five, six, eight, nine, 11, 13, 15, and 17 is affirmed. The judgment of
the trial court regarding Appenzeller's convictions on counts two, four, seven, ten, 12,
14, 16, and 18 Is reversed. The trial court's judgment regarding sentencing is reversed.
This matter is remanded to the trial court for the trial court to merge the appropriate
counts. Thereafter, the trial court shall resentence Appenzeller on the remaining
convictions.
'' HE COURT OF APPEALSSTATE OF OHIO - r °6--
COUNTY OF LAKEGOI
)^ APPEALS
EL VENTH DISTRICT
uEt: 8 1 2008.
STATEOF OHIO, LvNNa L' r.inzenw
CLERK oF COURTLAKE COUNTY, OHIO
Plaintiff- pe ee,JUDGMENT ENTRY
- vs -CASE NO. 2006-L-258
RUSSELL E. APPENZELLER,
Defendant-Appellant.
For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Lake County Court of Common Pleas
is affirmed in part and reversed in part; and this case is remanded for further
proceedings consistent with the opinion. -
JUDGI ri Y P. CANf NON
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O'TOOLE, J., concurs in judgment only.CYNTHIAWESTCOTT RICE, J., concurs,
COLLEEN MARY O'TOOLE, J., concurs in judgment only.
27
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STATE OF OHIO
Plaintiff
vs,
C)
IN THE COURT OF COMMON PLEAS r rL E®LAKE COUNTY, OHIO 2006 NOV - 9 ,q ,c, 22
1 CASE NO, 06-CR Q0p,?tDt t
CLEfiKH: Zr1m
OF C^^,ir
JUDGMENT ENTRY OF SENTENCE
RUSSELL E. APPENZELLER
Defendant ) JUDGE PAUL H. MITROVICH
Thie day, to-wit: October 31, 2006, this matter cam6 on for Defendant's
sentencing hearing pureuant to R.C. 2929.19 with the Lake County Prosecuting
Attorney, Chsrles E. Coulson, by and through Patrick J. Condon, Assiatent Prosecuting
Attorney, on behalf of the State of Ohio, and the Defendant, Russell E. Appenze(ler,
represented by Paul E. Miller, Esquire, being present In court.
The Defendant previously was found "Guilty" by e.1ury of Count 1. Burglary,
a felony of the second degree, in violation of Sect(on 2911.12(A)(2) of the Ohio
Revised Code; Count 2, Burglary, a felony of the third degree, in violation of Section
2911.12(A)(3) of the Ohio Revieed Code; Count 3, Burglary, a felony of the second
degree, in violation of Section 291 1.12(A)(2) of the Ohio Revised Code; Count 4,
Burglary, a felony of the third degree, in violation of Section 291 1.12(A)(3) of the
Ohio Revised Code; Caunt 5, Theft, a felony of the fifth degree, in violation of Section
2913,02(A)(1) of the Ohio Revised Code; Count 8, Burglary, a felony of the second
degree, In violation of Section 2911.12(A)(2) of the Ohio Revised Code; Count 7,
Burglary, a felony of the third degree, in violation of Section 2911.12(A)(3) of the
Ohio Revised Code; Count 8, Theft, a felony of the fifth degree, in violation of Section
2913,02(A)(1) of the Ohio Revised Code; Count 9, Burglary, a felony of the second
degree, in violation of Section 2911.12(A)(2) of the Ohio Revised Code: Count 10,
Burglary, a felony of the th(rd degree, in violation of Section 2911.12(A)(3) of the
.^o
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Ohio Revised Code; Count 11, Burglary, a felony of the second degree, in violation of
Section 2911 o12(A)(2) of the Ohio Revised Code; Count 12, Burglary, a felony of the
third degree, in violation of Section 2911.12(A)(3) of the Ohio Revised Code; Count
13, Burglary, a felony of the second degree, in violation of Section 2911.12(A)(2) of
the Ohio Revised Code; Count 14, Burglary, a felony of the third degree, in violation
of Section 291 1.12(A)(3) of the Ohio Revised Code; Count 15, Attempted Burglary,
a felony of the third degree, in violation of Sections 2923.02 and 2911.12(A)(2) of
the Ohio Revised Code; Count 16, Attempted Burglary, a felony of the fourth degree,
in violation of Sections 2923.02 and 2911.12(A)(3) of the Ohio Revised Code; Count
17, Attempted Burglary, a felony of the third degree, in violation of Sections 2923.02
and 2911.12(A)(2) of the Ohio Revised Code and Count 18, Attempted Burglary, a
felony of the fourth degree, in violation of Sections 2923.02 and 2911.12(A)(3) of the
Ohio Revised Code.
The Court finds that Counts 1, 3, 6, 9, 11 and 13 are subject to a presumption
in favor of prison under division (D) of section 2929.13 of the Ohio Revised Code.
The Court has also considered the record, oral statements, any victim impact
statement, pre-sentence report and/or drug and alcohol evaluation submitted by the
Lake County Adult Probation Department of the Court of Common Pleas, as well as
the principles and purposes of sentencing under R.C. 2929.11, and has balanced the
seriousness and recidivism factors under R.C. 2929.12.
In considering the foregoing, and for the reasons stated in the record, this Court
finds that a prison sentence is consistent with the purposes and principles of
sentencing set forth in R.C. 2929.11 and that Defendant is not amenable to an
available community control sanction.
The Court finds that Defendant was afforded all rights pursuant to Crim.R. 32
and was given the opportunity to speak before judgment and sentence was
pronounced against him.
IT IS HEREBY ORDERED:
That the Defendant serve a stated prison term of four (4) years in prison on
2
R
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c^u~:^-^
•
Count 1 and three (3) years in prison on Count 2, to run concurrent with each other;
four (4) years in prison on Count 3; three (3) years in prison on Count 4 and one (1)
year in prison on Count 5, to run concurrent with each other but consecutive to
Counts 1 and 2; four (4) years in prison on Count 6; three (3) years in prison on Count
7 and one (1) year in prison on Count 8, to run concurrent with each other but
consecutive to Counts 3, 4 and 5; four (4) years in prison on Count 9 and three (3)
years in prison on Count 10, to run concurrent with each other but consecutive to
Counts 6, 7 and 8; four (4) years in prison on Count 11 and three (3) years in prison
on Count 12, to run concurrent with each other but consecutive to Counts 9 and 10;
four (4) years in prison on Count 13 and three (3) years in prison on Count 14, to run
concurrent with each other but consecutive to Counts 11 and 12; two (2) years in
prison on Count 15 and one (1) year in prison on Count 16, to run concurrent with
each other but consecutive to Counts 13 and 14; and two (2) years in prison on Count
17 and one (1) year in prison on Count 18, to run concurrent with each other but
consecutive to Counts 15 and 16 for a total of twenty-eight (28) years in prison. Said
sentence is to run concurrent to the defendant's current prison sentence in Mahoning
County Case No. 02CR210 and No. 02CR483. Said prison term shall be served at the
Lorain Correctional lnstitution Grafton, Ohio with zero (0) days of credit for time
already served.
The Court does not recommend that the Defendant be placed in a Shock
Incarceration or an Intensive Program Prison (IPP).
The Court has further notified the Defendant, that post release control is
mandatory in this case up to a maximum of 3 years, as well as the consequences for
violating conditions of post release control imposed by the Parole Board under Revised
Code section 2967.28. The Defendant is ordered to serve as part of this sentence any
term of post release control imposed by the Parole Board, and any prison term for
violation of that post release control.
3
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^ca
,8r7-
0 . 0
That the Clerk of Courts issue a warrant directed to Daniel A. Dunlap, Sheriff
of Lake County, Ohio, to convey the said Defendant to the custody of the Lorain
Correctional Institution, Grafton, Ohio forthwith.
Defendant is ordered to pay all court costs and all costs of prosecution in an
amount certified by the Lake County Clerk of Courts. Defendant is further ordered to
pay any supervision fees as permitted pursuant to R.C. 2929.18(A)(4).
Defendant. made an oral motion to have this sentence stayed during appeal.
Said motion is denied.
Bond is hereby released.
IT IS SO ORDERED.
/ J^^PREPARED ON NOVEMBER 3, 2006AT THE DIRECTION OF THE TRIAL COURT:
CHARLES E. COULSON (0008667)PROSECUTING ATTORNEY
Patrick J. ndon (0071068)ASSISTA T PROSECUTING ATTORNEY
PJC/sd
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FILEDIN THE COURT OF COMMON PLEAS
LAKE COUNTY, OHIO190I SEP 21 A H: 4b
LYNOE L. nAZfIKALAKE CoCLERK OFCO11RT
STATE OF OHIO
Plaintiff
vs
RUSSELL E. APPENZELLER
Defendant
)
CASE NO. 06CR000108
JUDGMENT ENTRY
The within cause came on for consideration this day, to wit: September 18, 2007
upon the following Motions and Responses thereto:
1. [Defendarit's] Post Conviction Petition (Evidentiary Hea(ng [Requested]),filed July 30, 2007, and
2. [Defendant's] Motion for Summary Judgment, filed August 27, 2007 herein
I Findings of FactOn September 25, 2006, trial commenced against Defendant Russell E.
Appenzeller ("Defendant") on eighteen counts of varying degrees of Theft, Burglary and
Attempted Burglary. The jury retumed a verdict of Guilty on all counts Defendant has
appealed his conviction to the Eleventh District Court of Appeals, which has not yet
rendered a decision. Defendant has now filed a Petition for Postconviction Relief under
R.C. 2953.21 and a Motion for Summary Judgment, pursuant to Civ.R 56.
In support of his Petition and Motion for Summary Judgment, Defendant
contends that the State hid, altered or destroyed evidence and that he was denied
effective assistance of counsel.In response, the State argues that Defendant does not provide any evidentiary
support for his allegations that the State failed to disclose favorable evidence. Further,
most of Defendant's complaints about his counsel fall under trial strategy, which should
not be reviewed by this Court
- a 19 _
H. Conclusions of Law
Upon review, the Court finds Defendant's Motion for Summary Judgment and
Petition for Postconviction Relief not well taken Defendant does not indicate whether or
not his claims have been raised on direct appeal, nor does he establish that his claims
could not. have been raised on direct appeal. In addition, Defendant presents no
evidence outside of the record to avoid dismissal of his claims on the basis of res
judicata. Consequently, Defendant's claims are barred by the doctrine of res judicata.
Even assuming arguendo that Defendant's claims were not barred by res
judicata, they are still without merit. Pursuant to R.C. 2953.21, a criminal defendant
seeking to challenge his conviction through a petition for postconviction relief is not
automatically entitled to a hearing. State v. Calhoun, 86 Ohio St.3d 279, 282, 1999-
Ohio-102, citing State v. Cole (1982), 2 Ohio St.3d 112 "Before granting an
evidentiary hearing on the petition, the trial court shall determine whether there are
substantive grounds for relief (R.C. 2953 21[C]), i.e., whether there are grounds to
believe that 'there was such a denial or infringement of the person's nghts as to render
the judgment void or voidable under the Ohio Constitution or the' Constitution of the
United States." (Emphasis sic.) Calhoun at 282-283, citing R.C. 2953.21(A)(1). In the
interest of judicial economy and efficiency, the Supreme Court of Ohio has held that "it
is not unreasonable to require the defendant to show in his petition for post-conviction
relief that such errors resulted in prejudice before a hearing is scheduled." Calhoun at
283, citing State v. Jackson (1980), 64 Ohio St.2d 107, 112.
Defendant first asserts that the State hid or destroyed exculpatory evidence In
particular, Defendant contends that the State hid, altered or destroyed evidence relating
to the identities of witnesses. However, the State asserts that Defendant was provided
with the police report, which contained the identities and addresses of the witnesses. In
addition, Defendant argues that the State concealed or failed to produce lab reports
regarding the screwdriver The State maintains that it provided all of the lab reports
produced by its expert and Defendant has failed to provide any evidence showing
otherwise. Defendant cites other types of evidence that he alleges the State hid, altered
or destroyed, but has provided no evidence in support of these allegations
- A aQ -
Defendant further argues that he was denied effective assistance of counsel. In
a petition for postconviction relief asserting ineffective assistance of counsel, the
petitioner bears the initial burden to submit evidentiary documents containing suff°icient
operative facts to demonstrate the lack of competent counsel and that the defendant
was prejudiced by his attorney's ineffectiveness. State v. Walker, 10th Dist. No. 04AP-
179, 2005-Ohio-461, citing State v. Jackson (1980), 64 Ohio St.2d 107. "General
conclusory allegations to the effect that a defendant has been denied effective
assistance of counsel are inadequate as a matter of law to impose an evidentiary
hearing." Jackson at 111.
In Ohio, a properly licensed attorney is presumed to be competent. State v.
Calhoun, 86 Ohio St 3d 279, 282, 1999-Oh1o-102, citing Vaughn v. Maxwell (1965), 2
Ohio St.2d 299. Defendant therefore bears the burden of proof in making a claim of
ineffective assistance of counsel. In order to demonstrate ineffective assistance of trial
counsel, a criminal defendant must satisfy the two-prong test formulated by the United
States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. This test
was adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d
135. The first prong of the test requires a defendant to show that counsel's
performance was deficient, in that the representation fell below an objective standard of
reasonableness. To satisfy the second prong of the test, a defendant must demonstrate
that counsel's deficient performance prejudiced the defendant.In the case at bar, Defendant has not shown that counsel's performance fell
below an objective standard of reasonableness. Defendant asserts that his trial counsel
was ineffective,because they failed to call witnesses on his behalf, failed to question
witnesses properly, failed to properly investigate the stories of the State's witnesses,
failed to object to Defendant wearing a leg brace and failed to prepare to cross-examine
witnesses.Several of Defendant's complaints, such as his counsel's failure to call witnesses
and failure to question witnesses properly, concern decisions made in the course of trial
strategy. "Generally, counsel's decision whether to call a witness falls within the rubric
of trial strategy and will not be second-guessed by a reviewing court." State v. Medina,
10ih Dist. No. 05Af'-664, 2006-Ohio-1648, citing State v. Treesh, 90 Ohio St 3d 460,
vA5,1 -
490, 2001-Ohio-4. Moreover, debatable trial strategies and tactics generally do not
constitute ineffective assistance of counsel. Medina. (Citations omitted).
The other errors asserted by Defendant appear to be outside of the realm of trial
strategy. However, they still do not demonstrate ineffective assistance of counsel,
b®cause Defendant has not demonstrated prejudice, the second prong of the
Strickland test. To demonstrate prejudice, a defendant must show that "there is a
reasonable probability that, were it not for counsel's errors, the result of the trial would
have been different." State v. Byerly, (Dec. 15, 2000), 11'" Dist. No. 2000-P-0033,
2000 Ohio App LEXIS 5929, citing State v. Bradley (1989), 42 Ohio St.3d 136, at
paragraph three of syllabus. Defendant has failed to show that the outcome of the triai
would have been different if his counsel had not committed the alleged errors.
Accordingly, as the Court has not found that Defendant's counsel committed any errors
and Defendant cannot demonstrate any prejudice, the Court cannot find that Defendant
was denied the effective assistance of counsel.Thus, the Court finds that there are no grounds to believe that there was such a
denial or infringement of Defendant's rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United States. Defendant is not
entitled to an evidentiary hearing and Defendant's Motion for Summary Judgment and
Petition for Postconviction Relief shall be denied.WHEREFORE, it is the order of this Court that Defendant's Petition for
Postconviction Re' and Motion for ummary Judgment be and hereby are denied.
IS SOS^RDER . ,.,
`. / L /..
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Copies to:Prosecuting AttorneyRussell E. Appenzeller #514-991Michael Parttow, Esq.
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CYNTHIA K. MCGEECLERK OF COURTS, BELMONT COUNTY
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^^L r---- DSTATE OF OHIO, COLUMBIANA COUNTY COURT OF APPEALS
NO /;IN THE COURT OF APPEALS CYNTHIA K. MCGEE
SEVENTH DISTRICT CLERK OF COURTS, BELMONT COUNT
OEC 2 4 2U12RUSSELL APPENZELLER, )
)PETITIONER, )
)V . ) CASE NO. 12 BE 24
MICHELE MILLER, WARDEN, ) OPINION) !
RESPONDENT. ANDJUDGMENT ENTRY
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:For Petitioner Russell Appenzeller
#514-991P.O. Box 540St. Clairsville, Ohio 43950-0540
For Respondent Michael DeWineOhio Attorney GeneralM. Scott CrissAssistant Attorney GeneralCrimina( Justice Section150 East Gay Street, 16th Floor
I Columbus, Ohio 43215
JUDGES:
Hon. Gene DonofrioHon. Joseph J. VukovichHon. Cheryl L. Waite
Dated: December 24 2012
o- fq gs-
-1-
PER CURIAM.
{¶1} Petitioner Russell E. Appenzeller has filed a pro se petition for writ of
habeas corpus claiming his convictions and sentences are unlawful and void due to
violations of due process and equal protection of the laws. Respondent Michele
Miller, Warden of the Belmont Correctional Institution in St. Clairsville, Ohio answered
by filing a motion to dismiss.
{¶2} Appenzeller was indicted in the Lake County Common Pleas Court on
18 felonycounts th'afincluded burglary, theft, and attempted burglary relating to a
pattern of residential break-ins that occurred in the Mentor area in February 2005. In
2006, a jury convicted Appenzeller on all counts and the trial court sentenced him to
an aggregate term of 28 years in prison. Appenzeller appealed his conviction and
sentence to the Eleventh District Court of Appeals. The court found there was
sufficient evidence to convict Appenzeller and that his conviction was not against the
manifest weight of the evidence. The court also found no error with the admission
into evidence of a photo line-up in which a witness identified Appenzeller as the I
person leaving one of the residences that were broken into. Likewise, the court
found no error with the trial court's denial of Appenzeller's belated attempt to
represent himself pro se at trial. The court did, however, conclude that the multiple
counts of burglary and attempted burglary were allied offenses of similar import and
erred in failing to merge them together. It affirmed in part and reversed in part,
remanding the case for merging of certain offenses and resentencing. State v.
Appenzeller, 11 th Dist. No. 2006-L-258, 2008-Ohio-7005. Upon resentencing, the
trial court again sentenced Appenzeller to an aggregate term of 28 years in prison.
The Eleventh District affirmed the trial court's resentencing decision. State v.Appenzeller, 11th Dist. No. 2009-L-027, 2009-Ohio-6384.
3} Meanwhile, Appenzeller had filed a petition for postconviction relief
which the trial court denied. The Eleventh District affirmed that decision. State v.Appenze/ler, 11th Dist. No. 2007-L-175, 2008-Ohio-6982.
fff4} Turning to the petition presently before this coi.irt we note that "habeas
_:orpus lies only if the petitioner is entitled to immediate release from confinement."
- AD,^ -
-2-
State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995). In
habeas corpus cases, the burden of proof is on the petitioner to establish his right to
release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v.
Maxwell; 174 Ohio St. 2872 288, 189 N.E.2d 136 ( 1963). "[U]nsupported and
uncorroborated statements of the petitioner, standing alone, are not sufficient to
overcome the presumption of regularity of the court's judgment." Yarbrough, i74
Ohio St. at 288, 189 N.E.2d 136 (1963). "Like other extraordinary-writ actions,
habeas corpus is not available,. when there is an adequate remedy in the ordinary
course of law." In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d
427, 2004-Ohio-5579, 816 N.E.2d 594, ¶6.
{¶5} In his petition, Appenzeller alleges prosecutorial misconduct and that he
was denied assistance of trial counsel "surreptitiously." He contends there was no
"actual genuine" probable cause that he committed the break-ins and that four days
prior to trial the prosecution manufactured a photo array that was somehow different
than the one used during the investigation. He also arques that his trial counsel
knew that the photo array provided by the prosecution was not genuine and that his
opening statement to jurors amounted to "chicanery" and that he only gave the
appearance of a zealous defense by trying to impress upon the jurors that photo
arrays were unreliable. He incongruousiy argues that his trial counsel's presentation
left the jury "embedded" with the knowledge that the photo array was not genuine.
{76} As for the basis of his petition, Appenzeller claims he was denied due
process and equal protection of the laws because there was a break in the chain of
custody of the transcript of proceedings that prevented the court of appeals from
assessing these errors that allegedly occurred at trial. He cites the Eleventh District
Court of Appeals Loc.R. 11 which provides:
When a Notice of Appeal has been filed in a particular case, the
entire trial court record, including the transcript of proceedings,
becomes subject to the exciusive direction and control of the Court of
Appeals. With a filing of the notice, ainy existing authority to allow
-a a7-
-3-
removal of the transcript of the proceedings from the Clerk of Courts'
office is automatically superseded by the authority of the Court of
Appeals. Permission for removal of the transcript may be granted upon
application on a form provided and approved by the judges of this court.
Any removal permitted shall be conditioned upon the return of the
transcript within 14 days from the date of removal or 14 days before the
date set -for oral argument, whichever is earlier. Copying anddisassembling of a transcript filed with the Court of Appeals is
prohibited. Failure to comply with this rule may result in the issuance of
a citation for contempt of court.
The Court of Appeals reserves the right to limit or restrict access
to all items of record in its possession in order to preserve the proper
chain of custody and maintain the evidential integrity of the record andits contents.
' I (Emphasis sic.)
{17} Pointing to the docket sheet for his direct a eal Appenzellerpp , claimsthat the Eleventh District Court of Appeals lost exclusive direction and control of the
transcript of proceedings when his a ointed appellatepp counsel checked it out fromOctober 25, 2007, to November 19, 2007. He argues that this cons
tituted an"intolerable fundamental break in the chain of custody of all the entire evidence ***
' seriously affecting the integrity of both appellate proceedings substantially." He
argues that "somebody" intentionally disassembled the transcript of proceedings so
as not to include his trial counsel's opening statement.
{^8} A review of Appenzeller's petition reveals that it must be dismissed for
two reasons. First, Appenzeller has failed to present the type of claim for which
habeas is the appropriate avenue of legal relief. Generally, habeas corpus will lie
only to challenge the jurisdiction of the sentencing court.Stahl v. Shoemaker, 50
Ohio St.2d 351, 364 N.E.2d 286 (1977). Under R.C. 2725.05:
iF it appears that a person alleged to be restrained of his liberty is
_A as_
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in the custody of an officer under process issued by a court or
magistrate, or by virtue of the judgment or order of a court of record,
and that the court or magistrate had jurisdiction to issue the process,
render thejudgment, or make the order, the writ of habeas corpus shall
not be allowed.
{¶9} Here, Appenzeller does not challenge the jurisdiction of the sentencing
court, but rather that there were constitutionaivio(at'ionsthatresulted in an-improper
conviction. Habeas is available in certain extraordinary circumstances where the
issues are nonjurisdictional. However, such situations are strictly limited to where
there was no adequate legal remedy, such as direct appeal or postconviction relief.
State ex rel. Pirman v. Mooney, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). In
the instant case, Appenzeller had an adequate remedy at law to pursue his claims,
namely a renewed petition for postconviction relief.
{¶10} Moreover, the Ohio Supreme Court has held that the specific types of
claims Appenzeller is attempting to assert here are not viable habeas corpus claims.
Claims involving the ineffective assistance of counsel are not cognizable in habeas
corpus. Bozsik v. Hudson, 110 Ohio St. 3d 245, 2006-Ohio-4356, 852 N.E.2d 1200,
¶7. Likewise, claims of fraud upon the court and prosecutorial misconduct are not
cognizable in habeas corpus. Keith v. Bobby, 117 Ohio St. 3d 470, 2008-Ohio-1443,
884 N.E.2d 1067, ¶15.
{%11} The second reason Appenzeller's petition must be dismissed goes to
his evidentiary burden. Even if this court were able to reach the merits of his claims,
Appenzeller has failed to meet his burden of proof to provide sufficient evidence to
overcome the presumption of regularity accorded the trial court's and appellate
court's proceedings. The Eleventh District Court of Appeals Loc.R. 11 allows for
removal of the transcript of proceedings with its permission. As indicated, in support
of his petition, Appenzeller has provided copies of the docket sheets from his direct
appeal reflecting that the transcript of proceedings were checked out by appointed
appellate counsel. The evidence provided by Appenzeller reveais no irregularities in
- flaq -
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the trial court or appellate court proceedings. The docket sheets reflect only the
routine practice of an appellate attorney checking out the transcript of proceedings in
order to prepare an appellate brief in furtherance of Appenzeller's appeal. In sum,
Appenze!!er has, failed to support his claims by anyretevant 'evidence beyond his own
self-serving conclusory assertions.
{¶12} For the foregoing reasons, the warden's motion to dismiss is granted
and Appenzeller's petition for writ of habeas corpus is hereby dismissed.
{^j13} Costs taxed against Appenzeller. Final order. Clerk to serve notice on
the parties as required by the Ohio Rules of Civil Procedure.
7 -7Judg' Gene Dd
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J Joseph J. Vukovich
Judfe Ch "` L. kNaite
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Art. I, § 10
dF fhe Stafe v f- cht'VOHIO CRIMINAL LANNr HANDBOOK
proof is evident or the presumption great and where theperson poses a substantial risk of serious pliysical harm toany person or to the coinmunity. Where a person ischaiged with any offense for which the person may beincarcerated, the corut may deterinine at any time thetype, atnount, and conclations of bail. Excessive bail shall
not be required; nor excessive fines imposed; nor crueland unusual punisliments inflicted.
The General Asseinbly shall fix by law standards todetennine whetlier a person who is charged with a felonywhere the proof is evident or the presumption great posesa substantial risk of serious physical harm to any person orto the community. Procedures for establishing the anlountand conditions of bail shall be established pursuant toArticle. IV, Section 5(b) of the Constitution of the state of
Ohio.HISTORY: (As amended January 1, 1998.)
1614
States or this constitution, and does not create any cause ofaction for compensation or damages against the state, anypoliticail subdivision of the state, any officer, employee, oragent of the state or of any political subdivision, or any
officer of the court.HISTORY: (Adopted November 8, 1994).
§ ll Freedom of speech and of the press;
libel.
Every citizen may freely speak, write, and publish hissentiments on all subjects, being responsible for the abuseof the right; ad no law shall be passed to restrain orabridge the liberty of speech, or of the press. In allcriminal prosecutions for libel, the tnith may be given inevidence to the jury, and if it shall appear to the jury, thatthe matter charged as libelous is true, and was publishedwith good inotives, and for justifiable ends, the party shall
be acquitted.§ 10 Trial of accused persons and their rights;
depositions by state and comment on failure of
accused to testify in criminal cases.
Except in cases of impeachment, cases arising in thearnny and na',y, or in the militia Nvhen in actual service intime of war or public danger, and cases involving offensesfor which the penalty provided is less than iinprisonmentin the penitentiary, no person shall be held to answer for
a capital, or othenvise infamous, crime, unless on present-
ment or indictment of a grand jury; and the number ofpersons necessary to constitute such grand jury and thenumber thereof necessary to concur in frnding suchindictinent shall be detennined by law. In any trial, in anycourt, the party accused sldl be allowed to appear anddefend in person and with counsel; to demand the natureand cause of the accusation against him, and to have a copythereof; to meet the witnesses face to face, and to havecompulsory process to procure the attendance of witnessesin his behalf, and a speedy public trial by an impartial juryof the county in which the offense is alleged to liave been
committed; but provision may be made by law for thetaking of the deposition by the accused or by the state, tobe used for or against the accused, of any witness whoseattendance can not be had at the trial, always securing tothe accused ineans and the opportunity to be present inperson and with counsel at the taldng of such deposition,and to examine the witness face to face as fully and in thesaine manner as if in court. No person shall be compelled,in any criminal case, to be a witness against himself; but hisfailure to testify may be considered by the court and juryand may be made the subject of comment by counsel. Noperson shall be twice put in jeopardy for the same offense.
HISTORY: (As amended September 3, 1912.)
§ 12Transportation, etc., for crime.
No person shall be transported out of the state, for anyoffense coininitted within the same; and no convictionshall work corniption of blood, or forfeiture of estate.
§ 13 Quartering of troops.
No soldier shall, in time of peace, be quartered in anyhouse, without the consent of the owner; nor, in time ofwar, except in the manner prescribed by law.
§ 14 Search warrants and general warrants.
The right of the people to be secure in their persons,houses, papers, and possessions, against unreasonablesearches and seizures shall not be violated; and no warrantshall issue, but upon probable cause, supported by oath oraffirmation, particularly describing the place to besearched and the person and things to be seized.
§ 15No imprisonment for debt.
No person shall be imprisoned for debt in any civilaction, on inesne or final process, unless in cases of fraud.
§ 16 Redress in courts.
All courts shall be open, and every person, foran injnry
done him in his land, goods, person,or reputation, shall
have remedy by due course of law, and shall have justice
administered without denial or delay.
su hyma nerug^tmagaillst
Luitsthe state, agai
nst the dsn
Suits
provided by law.HISTORY: (As amended September 3, 1912.)
§ l0d Rights of victims of crime.
Victims of criminal offenses shall be accorded fairness,dig»ity, and respect in the criminal justice process, and, asthe general assembly shall define and provide by law, shallbe accorded rights to reasonable and appropriate notice,information, access, and protection and to a meaningfulrole in the criminal justice process. This section does notconfer upon any person a right to appeal or modify anydecision in a criminal proceeding, does not abridge anyother right guaranteed by the Constitution of the United
^'®y\Smtv`{'ton
^ 1 1 Y-aereditary pr=vileges,etc. slr"^l
No hereditary emoluments, honors, or privileges,ever be granted or conferred by this state.
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AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES
AMENDMENT V
No person shall be held to answer for a capital, or othenrvise infamous crime,unless on a presentment or indictment of a Grand Jury, except in cases arising in the landor naval forces, or in the Militia, when in actual service in time of War or public danger;nor shall any person be subject for the same offence to be twice put in jeopardy of life orlimb; nor shall be compelled in any criminal case to be a vVdness against himself, nor bedeprived of life, liberty, or property, without due process of law; nor shall private propertybe taken for public use, without just compensation.
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AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
AMENDMENT XIV
Section 1. All persons bom or naturalized in the United States, and subject tothe jurisdiction thereof, are citizens of the United States and of the State wherein theyreside. No State shall make or enforce any law which shall abridge the privileges orimmunities of citizens of the United States; nor shall any State deprive any person of1"de, liberty, or property, without due process of law; nor deny to any person within itsjurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several Statesaccording to their respective numbers, counting the whole number of persons in eachState, excluding Indians not taxed. But when the right to vote at any election for thechoice of electors for President and Vice President of the United States,Representatives In Congress, the Executive and Judicial ofricers of a State, or themembers of the Legislature thereof, is denied to any of the male inhabitants of suchState, being twenty-one years of age, and cifizens of the United States, or in any wayabridged, except for participation in rebellion, or other crime, the basis of representationtherein shall be reduced in the proportion which the number of such male citizens shallbear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representabve In Congress, orelector of President and Vice President, or hold any office, civil or military, under theUnited States, or under any State, who, having previously taken an oath, as a memberof Congress, or as an officer of the United States, or as a member of any Statelegistature, or as an executive or judicial officer of any State, to support the Constitutionof the United States, shall have engaged in insurrection or rebellion against the same,or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disabiSity.
Section 4. The validity of the public debt of the United States, authorized by law,including debts incurred for payment of pensions and bounties for services insuppressing insurrection or rebeifion, shall not be questioned. But neifher the UnitedStates nor any State shall assume or pay any debt or obligation incurred in aid ofinsurrection or rebeliion against the United States, or any claim or the loss oremancipation of any slave; but all such debts, obligations and claims shall be heldillegal and void.
Section S. The Congress shall have power to enforcer by appropriate legislation,the provisians of this article.
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§ 2705.09 OFIIO CRINIINAL LAN% HANDBOOK
[APPEAL]
§ 2705.09 Judgment final.
The judgmieut and orders of a court or officer made incases of c•ontempt uiLiy be reviewecl on appeal. Appealproceedings shall not suspend execution of the order orjudgment mitil the person in contempt files a bond in thec•ourt rendering tlre judgment, or in the court or beforethe officer making the order, payable to the state, Nvitlisureties to the acceptance of the clerk of that couit, in anamount fixed by the reviewing court, or a judge thereof,
1072
conditioned that if judgme.nt is rendered against suchpersou lie Nvill abide by and perform the order or judg_
ntent.HISTORY: RS § 5649; 75 v 746, § 11; GC § 12146;
Bureau of Code Revision. Eff 10-1-53.
§ 2705.10 Altemative remedy.This chaptei- furnishes a remedy in cases not provided
for by another section of the Revised Code.
HISTORY: RS § 5650; 75 v 746, § 12; CC § 12147;Bureau of Code Revision, 10-1-53; 141 v H 158. Eff 3-17-87
CHAPTER 2725: HABEAS CORPUS
Sectiun
2725.01 Persons entitled to Nviit of heibeas coIpus2725.02 Courts authoiized to grant writ.
2725.03 Territorial juriscliction of courts
272.5.04 Application for wiit.2725.05 S^'rit not 2dlowed.2725.06 writ nnist be grnnted.2725.07 Clerk shall issue writ.27 25.08 Desim ation of pisoner.2725.09 Requisites of wiit.2725.10 Form of writ when prisoner not in custody of an officer.
2725.11 Sen^ce of writ.
[RETURN]
2725.12 Esecution and return of writ.
2725 . 13 Retun of writ to anotl er judge.
2725.14 Contents of the return.2725.15 Return must be signed and sworn to.
2725.16 Continuance of cause.2725.17 Discl arge of prisoner.2725.18 Prisoner may be convnitted or let to bail.2725.19 Mandatory coinmitment for capital offense.
2725.20 Return as eidence or plea.2725.21 Forfeiture by clerk for refusal to issue vti.zit.
2725.22 Failure to obey wiit.2725.23 Persons at large upon writ not to be apin impiisoned.
2725.24 Prisoner shall not be removed from custodv of one
officer to another.
2725,25 Repealed.2723.26 Record of writs.2 r25.27 Recovery- of forfeitures; limitations.
2725.28 Fees and costs.
§ 2725.01 Persons entitled to writ of habeas
corpus.
Whoever is unlawfullv restrained of his liberty, orentitled to the custody of another, of which custody suchperson is unlawfully deprived, may prosecute a writ ofhabeas corpus, to inqtiire into the cause of such impris-onment, restraint, or deprivation.
HISTORY: RS § 5726; S&C 681; 29 v 164; GC § 12161;
Bureau of Code Bevision. Eff 10-1-53.
§ 2725 .02 Cour-ts authorized to grant writ.
The writ of habeas c•orptts may be granted by thesupreme court, court of appeals, court of coin non pleas,
probate court, or by a judge of any such court.
HISTORY: RS § 5727; S&C 681, 1213; 29 v 164; 51 v 167,
3; 82 v 16, 36; GC § 12162; 103 v 405(429); Bureau of
Code Revision. Eff 10-1-53.
§ 2 725.03 Territorial jur-isdietion of courts.
If a person restrained of' his liberty is zui inmate of astate benevolent or correctional institution, the location ofwhicli is fixed by statute and at the time is in the custodyof the officers of the institution, no court or judge otherthan the courts or judges of the county in which theinstitution is located has jurisdiction to issue or determinea writ of babeas corpus for his production or discharge.Any writ issued by a court or judge of another county to anofficer or person in charge at the state institution tocompel the produc•tion or discliarge of an inmate thereof
is void.HISTORY: RS § 5727a; 97 v 318; GC § 12163; Bureau of
Code Revision, 10-1-53; 145 v H 571. Eff 10.6-94.
§ 2725.04 Application for writ.
Application for the wr-it of habeas corpus shall be bypetition, signed and verified either by the party for whoserelief it is intended, or by some person for him, and shallspecify-:
(A) That the person in whose behalf the application ismade is imprisoned, or restrained of his liberty;
(B) The officer, or nanie of the person by whom theprisoner is so confined or restrained; or, if both areunknowm or uncertain, such officer or person may bedescribed by an assumed appellation and the person whois sen-ed with the writ is deemed the person intended;
(C) The place wliere the prisoner is so imprisoned orrestrained, if knovvn;
(D) A copy of the commitment or cause of detention ofsuch person shall be eshibited, if it can be procuredwithout impairing the efficiency of the remedy; or, if theimprisonment or detention is Nvithout legal authority, such
fact tnust appear.
HISTORY: RS § 5728; S&C 681, 684, 685; 29 v 164; 45 v
45, §§ 4, 5; GC 12164; Bureau of Code Revision. Eff
10-1-53.
§ 2725.05 Writ not allowed.
If it appears that a person alleged to be restrained of hisliberty is in the custody of an officer under process issuedbv a court or magistrate, or by virtue of the judgment ororder of a court of record, and that the court or magistratehad jurisdiction to issue the process, render the judgment,or inake the order, the writ of habeas corpus shall not beallotved. If the jurisdiction appears after the writ is
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LE7(STAT ORC 294125
PAGE'S OHIO REVISED CODE ANNOTATEDCopyrigbt (c) 2008 by Matthew Bender & Company, Inc
a member of the LextsNex3s GroupAll rights reserved.
*»' CURRENT THROUGH LEGISLATION PASSED BY THE 127TH OHIO GENERAL ASSEMBLY AND FILEDWTfH THE SECRETARY OF STATE THROUGH MARCI112, 2008 **•
*** ANNOTATIONS CLRtRENT THROUGH 7ANUARY 1, 2008 "**"•* OPINIONS OF ATTORNEY GENERAL CURRENT THROUGH MARCH 19, 2008 **"
TITLE 29. CRIMES - PROCEDURECHAPTER 2941 INDICTNIENT
FORM AND SUFFICIENCY
Go to the Obio Code Archive Directory
ORC Atur. 294115 (2008)
§ 2941.25. Multiple counts
(A) Where the same conduct by defendant can be eonstrued to constitute two or more allied offenses ofsimilar im-port, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only
one.(B) Where the defendanNs conduct constitates two or more offenses of dissimilar nnport, or where his conduct re-
sults offenses s ch offe^and the dofendant may be oned of all ofthement or:nforma o may eontain count ^s for allland
HISTORY:
134vH511 Eff1-1-74.
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^,.
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4^{g RULES OF API'ELLATE PI<Zt)vEl)URE. R.3oprior appellate counsel was deficient and that t.heapplicant was pl'c,jutliced by that deficiency.
(,^) If the cotin't of appeals determines t.hat an evi-clentia7•y hearing is necessary, the eviclentiary hearingina,y be conducted by the coui-t or referred to amagistrate.
(9) If the court finds that the performance of appel-late cocunsel was cleficient and the applicant wa5 preju-clicecl by that deficienc,v, the cour-t shall vacate itsln•ior judgment and enter the appropriate judgment.If' the eocn't does not so fincl, the court shall issue anorcler' confirming its prior judgnlent..
(C) I:f an application for reconsideration under divi-sioin (A) of this rule is filed ",ritli the court of appeals,the application shall be ruled upon ^Nithin t'orty-fiveclays of its liling.
(Adopted eff. 7 1-7i; amended e`i'i. i-1-7<5, 7-1-93, 7-1-94,l-1-9i)
App R 27 Execution, mandate
A court of appeals may r'emand its final decrees,judgments, or orders, in cases brought before it onappeal, to the court or agency below for specific orgeneral execution thereof, or to the court belmv forfurt.her proceedings therein.
A certified copy of the juclgment shall constitute themandate. A stay of execution of the judgment man-clate pending appeal may be granted upon motion, anda boncl or other securitv may be required as a condi-tion to the grant or continuance of the stay.
(Aclopted eff. 7-1-71)
App R 28 Voluntary dismissalIf the parties to an appeal or other proceeding shall
sign and file ^Mt.h the clerk of the court of appeals anagreement that the proceedings be dismissed anclshall pay jt-hatever costs are due, the court shall orderthe case dismissed.
An appeal nray be dismissed on znotion of theTappellant upon such ternls as may be fixed by the--/V--court.
(Adopted eff. 7-1-71)
App R 29 Substitaation of parties
(A) Death of a party
If a party clies after a notice of appeal is filed orivhile a proceecling is otheztivise pending in the court of'appeals, the personal representative o' the deceaseclparty mzty be substituted as a party on motion filed bythe representative, or by any partv, with the clerk ofthe coui't of appeals. The n-iotion of a party shall beserved upon the representative in accordance it--ith theprovi,sions of Rule 13. If the cleceased party has norepresentat.ive, any party may- suggest the cleath on
204
the record and proceedings shall then be had as tlcout-t of appeals may (lirect.. If a party against who,arn appeal nray be taken dies after entry of a judg•,nei,or order in the trial court but before a notice of appe;is filed, an appellant nizlv proceed as if death had ncoccurred. After the not.ice ofappeal is filecl substit,.tion shall be eff'ected in the court. of appeals in aceor_dance with this subdivision. If a party entitled toappeal shall clie before filing- a notice of appeal, thenotice of appeal may be tiled by his personai repr'esen-tative, or, if he has no personal representative, by hisattorney of' recor•cl within the time pre5cribecl by theserules. After the notice of appeal is filed, substitutiotishall be effected in the cotu•t of appeals in accor•dancewith this subdivision.
(B) Substitution for other causes
If substitution o' a party in the coLU•t of appeals isnecessary for any reason other than death, substitu-tion shall be ef'fectecl in accordance vvith the procedureprescribed in subclzvision (A).
(C) Public officers; death or separation from of-fice
(1) When a public officer is a party to an appeal orother proceecling• in the court of appeals in his officialcapacity and during its pendency dies, resigns orothertivise ceases to holcl office, the action does notabate and his successor is automatically substituted asa party. Proceeclings follovdng the substitution shallbe in the name of the substituted party, but anynrisnonler not affecting the substantial rights of theparties shall be disregarcdecl. An order of substitutionmay be entered at any time, but the omission to entersuch an order shall not affect the substitution.
(2) When a public officer is a party to an appeal orother proceeding in his official capacity, he may bedescribed as a party by his official title rather than bynanie, but the court niay require his name to beadded.(Adopted eff. 7-1-71)
App R 30 Duties of clerks
(A) Notice of orders or judgments
Immediately upon the entry of an order or jticlg-ment, the clerk shall serve by mail a notice of entryupon each party to the proceecling ancl shall make anote in the docket of the mailing. Service on a partyrepresented by counsel shall be macle on cotiulsel.
(B) Custo€dy of'records and papers
The clerk shall have custody of the records anclpapers of the court. Papers transmitted as the r•ecorclon appeal or review shall upon disposition of the easebe returned tn the conrt or agency from vtihich theywere received. The clerk shzill preserve copies ofbriefs and other filings.
(Adopterl etf. 7-1-71; amended etf. 7-1-72)
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