na...`^`5 c^ase, ^r^s^s ^ronn l^j^,cr ^p^^^^^'1 ^vt^^iortier rvss^ll e. ^^p^e^^,etlt^...

50
O RI G I N AL su preme 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 t Cn^nt Cour^ ^F _^ ^als__. Cn!_c^,^le. ^^Ilcr, ^Jafi^en, _Sev.enW_RePe11ate -t-Wcicts uIm®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 /.PetitioAer St. C.lairsville,-Ohio ^3° S®-®S_0 ^(1`^c4,^el __Dew t^ o CounseI oF Recaca_Foc M. S_e®1f Criss AFPe 1ep_ / Res_Qondent Asslsh4 Mtornej6e,neCa1 !.CC_i inat _Sust .ceSection ISo East Ga Y_Si'cect, It^^' Floor Cglym -6vs, Ok-eo 433-t5 PL I DD M:^^ 18 NQ MAR 18 2013 CLERK OF COURT PREME COURT OF OHIO ^1 aFl3 - CLERK OF COURT SUPREME COURT OF OHIO

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Page 1: na...`^`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

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

Page 2: na...`^`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

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^ ^^?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 .

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Page 4: na...`^`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

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+ .,vvten* oF ac.ts

`^`5 C^aSe, ^r^S^S ^ronn l^J^,cr ^p^^^^^^'1 ^vt^^iortier Rvss^ll E. ^^p^e^^,etlt^

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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,

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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 ,

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Page 6: na...`^`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

+^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.

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%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_

Page 7: na...`^`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

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..-

Page 8: na...`^`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

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_

Page 9: na...`^`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

{^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_

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^a^' res^l^ed ^n ^ imP^o^cr_

1--Pie^^in^S^w,^h^r^ ^^ ^e,^^^►__-_

I arzd _incl^d_ed w^^^{^e-_-__--, . ,. ^ , .^

Page 10: na...`^`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

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Isn* 1ll^ of t1y_Poss b1e---

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^;.^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

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, ^et'e, tn__^i^h`^ oF ^PPe^tzelleC's _Qe^ior

-1n©F13--_

:riPA 'An d Senfif\

ak- Gci

Page 11: na...`^`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

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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

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- -- --------------_^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^.

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; 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^

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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

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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

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(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

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(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

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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

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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

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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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Page 29: na...`^`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

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

- qi5-

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e U ^

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

^cr

c^u~:^-^

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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

4d

^ca

,8r7-

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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

4

^trr^..5

C:

^

-AIS-

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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 _

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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 -

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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 -

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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 /..

z ---4H. MIT

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-

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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."

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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

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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

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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

, ` .

J Joseph J. Vukovich

Judfe Ch "` L. kNaite

-w. A 30 v

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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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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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