Robert P. Clapper, } On appeal from the Carroll County Court of Appeals, Appellant, } Seventh Appellate District

Transcription

1 IN THE SUPREME COURT OF OIHO 9 ^ t Robert P. Clapper, } On appeal from the Carroll County Court of Appeals, Appellant, } Seventh Appellate District V. } State of Ohio, } Court of Appeals Case No: CA 673 Appellees. I MEMORANDUM OF JURISDICTION OF APPELANT ROBERT P. CLAPPER Robert P. Clapper (Pro Se) Prison No Grafton Correction Inst South Avon-Beldon Road Grafton, Ohio Carroll County Prosecutor's Office 49 Public Square Carrotlton, Ohio Attorney for Appellees F LE JAN G 9 'ZOv3 CLERK OF COURT SUPREME COURT OF 0H10

2 TABLE OF CONTENTS Page EXPLANATION OF WHY THIS CASE IS A CASE INVOLVING A SUBSTANTIAL CONSTITUTIONAL QUESTION AND ON OF GREAT INTEREST i STATEMENT OF THE CASE AND FACTS... 5 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... 5 Proposition of Law No. I: MR. CLAPPER WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL... CONCLUSION PROOF OF SERVICE APPENDIX?.^nx. Page Decision and Entry of the Carroll County Court of Appeals (November 26, 2008)... I i 3

3 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION This cause presents a number of issues for criminal defendants who, when their trial counsel fails to make rudimentary procedural investigations and research in law, and that failure results in lessening an appellant's chance of prevailing then counsel's performance falls below an objective standard of reasonableness. Additionally, when trial counsel is under court order to comply with a specific date to file pretrial motions, and counsel fails to do so, this failure too derides a defendant's Sixth Amendment right. On October 27, 2008, ten years after appellant was sentenced to 30 years-life with a 10 year mandatory, the appellant sought to have his appeal reopened by the court of appeals showing "good cause" for the delay. The court below, on November 26, 2008, did not believe that good cause for the delay had been shown and denied appellant leave to reopen his appeal. Rulings made by this Court justifies "cause", and given the length of appellant's sentence this Court must make sure that appellant's United States and Ohio constitutional rights were, and shall be protected. Too often, because on illiteracy, youth, lack of resources in prison law libraries, and over extended appointed counsel are defendants imprisoned as of their rights were left behind during arrest.***** The decision of the court of appeals threatens the structure of the plea bargaining process itself, as well as reduces the practical standards of which criminal attorneys should be held. Finally, the decision of the appeals court sets a precedent that would induce trial attorneys with drug defendants to simply rely on the prosecution to provide discovery it deemed appropriate rather than promote and adhere to the adversarial process the Founders intended. 4

4 STATEMENT OF THE CASE On August 7, 1996, appellant, through counsel, appealed his conviction for Aggravated Murder and Kidnapping, from the Carroll County Connnon Pleas Court to the Seventh District Court of Appeals. On October 27, 2008, acting pro se, filed an Application to Reopen his appeal to the Seventh District Court of Appeals, pursuant to App. R. 26(B). On November 26, 2008, that court denied appellant's application to reopen. Therefore, appellant timely appeals to the instant Court for relief. ARGUMENTS APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. Counsel is ineffective when his performance is deficient and prejudicial to the defendant. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. (A) On August 4, 2006, appellate counsel set forth in his brief two assignments of error, namely: (I) A. Whether the testimony of several witnesses who testified as to statements allegedly made by a co-defendant consisted of hearsay testimony and were inadmissible; (B) Whether the State failed to make a prima facie showing of independent proof of the existence of a conspiracy between Appellant Clapper and his co-defendant in order to invoke the co-conspirator hearsay exception under Evid. R. 801 (D)(2)(e); (II) B. Whether the trial court lacked subject matter jurisdiction over Appellant Clapper because Appellant Clapper never received an amenability hearing required under Juv. R. 30? 5

5 I. Appellant's counsel clearly failed to raise an issue that was preserved in the record, and that would have given the appellant a greater chance of prevailing. The Sixth Amendment guarantees the right to effective assistance of coimsel in criminal prosecutions McCann v. Richardson, 397 U.S. 759, 771 (1070). The right to effective assistance applies to both retained and appointed counsel. Cuyler v. Sullivan, 446 U.S. 335, (1980). In Strickland v. Washineton, 466 U.S. 668 (1984) the Supreme Court established a two-prong test to evaluate ineffective assistance of counsel claims. To obtain a reversal of a conviction, the defendant must prove: (1) that courisel's performance fell below an objective standard of reasonableness. (id. at ). See Pavel v. Hollins, 261 F.3d 210, 228 (2"d Cir. 2001); Northrup v. TripPett, 265 F.3d 372, 384 (6`h Cir. 2001). In deciding whether a counsel's performance was ineffective, a court must consider the totality of the circumstances (Strickland at 690). However, effective assistance of counsel may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial. Murray v. Carrier, 477 U.S. 478, 496 (1986). Nonetheless, the defendant must point to actual ineffectiveness, either through specific errors or omissions of counsel, and may not rely solely on the surrounding circumstances to prove ineffective assistance. U.S. v. Cronic, 466 U.S. 648, 665 (1984) During sentencing, trial counsel for defendant Clapper, Bradley Iams, (TR.421) stated: "Your Honor, it is our position that these [Aggravated Murder and Kidnapping] would be allied offenses of similar import. I believe that the evidence as to the kidnapping woutd indicate that there's no separate animus for that, that was part and parcel of one event and it is our position that the Court, these two offenses should be merged for the purpose of sentencing." 6

6 The sentencing court did not agree and sentenced the appellant to consecutive sentences. However, the sentencing court failed to make a clear finding on this issue as required under Ohio's multiple-count statute, R.C , and the sentencing court simply stated: "Well I do not believe the facts of this case under my understanding of the current tests would suggest that they are allied and therefore it is my intention to proceed to sentence on both counts, finding them uh not allied offenses of similar import." Further, appellate counsel failed to set forth this issue on appeal. The prevailing law at the time the appellant was sentenced was certainly ambiguous and resulted in inconsistent allied offense rulings throughout Ohio. The Ohio Supreme Court in numerous cases prior to appellant's sentencing, recognized that R.C required a two-step analysis. In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime (i.e. Aggravated Murder) will result in the commission of the other (i.e. Kidnapping), the crimes are allied offenses of similar import and the court must proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses." See Newark v. Vazirani (1990), 48 Ohio St.3d 81, 549 N.E.2d 520, syllabus; State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816. The Ohio Supreme Court, in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, developed another test for allied offense. The Rance "abstract elements comparison test" allowed courts to contrast the statutory elements in the abstract or consider the particular facts of each case. The Rance test produced even more confasion and inconsistent 7

7 applications. Some districts argued that Rance required "strict textual comparisons" of the elements, while others argued comparisons of the offenses only. However, on January 8, 2008, the Ohio Supreme Court in Stale v. Cabrales, No Ohio-1625, reexamined the "confusion and unreasonable results" caused by the historical application of Rance throughout Ohio. As the Court stated in Cabrales, "The basis thrast of [R.C (A)] is to prevent "shotgun" convictions. For example, a thief theoretically is guilty not only of theft but of receiving stolen goods, insofar as he receives, retains, or disposes of the property he steals. Under this section, [R.C (A)} he may be charged with both offenses but he may be convicted of only one, and the prosecution sooner or later must elect as to which offense it wishes to pursue."' Maumee v. Geiger (1976), 45 Ohio St.2d 238, 242, 74 O.O. 2d 380, 344 N.E.2d 133, quoting a 1973 Legislative Service Commission comment to 1972 Am.Sub,H.B. No Further, the court stated: "If Rance imposed a strict textual comparison, even theft and receiving stolen property would not be allied offenses of similar import because their elements do not exactly coincide." In short, the Ohio Supreme Court in Cabrales clarified "that in determining whether offenses are allied offenses of similar import under R.C (A), Rance requires courts to compare the elements of offenses in the abstract, i.e., without considering the evidence in the case, but does not [emphasis added] require an exact alignment of elements." As the Ohio Supreme Court did not make new a ruling, but traced back law that was already prevailing even prior to the appellant's sentencing, and as the sentencing court failed to make a clear finding as to the degree, if any, it applied prevailing law at that time; and as the decision in Cabrales clarifying and illuminating Rance was issued recently, good cause for the untimeliness of this application has adequately been shown. 8

8 II. Further, appellate counsel failed to raise as an assignment of error that R.C , Aggravated Murder, has the lesser included offense of kidnapping under section (B). R.C (B) states: "No person shall purposely cause the death of another...while committing or attempting to commit, kidnapping...". In short, by arguing that this was the more appropriate section to have charged appellant, this would have put in issue for the court of appeals to examine, at minimal, whether the aggravated murder and kidnapping counts were indeed allied offenses and should have been sentenced as such. Thus, appellate counsel's failures clearly prejudiced the outcome of appellant's appeal and this appeal must be reopened. On May 2, 1996, the Carroll County grand jury returned an indictment against appellant for one count of aggravated murder and one count of kidnapping. The appellant pleaded not guilty to both counts on May 10, The trial court issued an order, on May 10, 1996, for "both parties to complete discovery and file any pre-trial motion prior to the pre-trial date of May 23`d, The State, on May 24, 1996, notified the court that it had "complied with defendant's request for discovery and inspection". However, on July 12, 1996, approximately six weeks after the date upon which the trial court had ordered all pre-trial motions to be filed, trial counsel, Bradley Iams, filed a motion in limine to suppress statements against the defendant that were found during discovery which had been provided counsel, based upon the record, in May of stated: On July 16, 1996, the trial court issued its entry denying counsel's motion in limine, and 9

9 "This matter came on for consideration of the defendant's pre-trial motion in limine f'iled July 12, 1996 and the State's response and opposition thereto file July 15, Both parties expressly waived oral hearing. Regardless of its "label", if indeed this defendant's motion is substantively one to "suppress" evidence, then it is overruled and denied as untimely pursuant to Crim. R. 12(B)(3) and 12(C)." (See attachment) The right to effective counsel, which derives from the right to counsel, guarantees a defendant the assistance "necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685 (1984); see also Gideon v. Wainwright, 372 U.S. 335,344 (1963). As the Court made clear in Strickland, either the government or defense counsel may be responsible for depriving the accused of the benefit of counsel. 466 U.S. at 686. As identified by the U.S. Supreme Court, the basic duties of an effective lawyer are loyalty, avoidance of conflicts of interests, advocacy (described as the overarching duty), and consultation and communication with the client; "[c]ounsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Id at 688. The Strickland presumption of effective representation is premised upon a lawyer's strategic decision-making to promote his client's best interest. This presumption fails, however, if any of the assumptions underlying it fail. And as demonstrated in Kimmelman v. Morrison, 477 U.S. 365 (1986), a decisoin can be unreasonable because it is uninformed. The trial record in this case clearly reveals that Clapper's attomey failed to file a timely suppression motion, not due to strategic considerations, but because, of his failure to make his own investigation. There is nothing in the record that can convince this court that Clapper's lawyer investigated the potential of the statements the State intended to use against the defendant, nor made a reasonable decision not to investigate. Such a complete lack of pre-trial preparation put at risk both the defendant's right to an ample opportunity to meet the case of the prosecution, and the reliability of the adversarial testing process. See Id. at

10 For the Strickland presumption to stand, a lawyer's decisions must be formulated from a reasonable understanding of the law and the facts. As with all obligations, the duty to investigate reasonably is not an independent good; rather, it is a means of ensuring that the adversarial process functions properly and that counsel's decisions are reasonable, tactical, and strategic. As a result, as is the case of appellant's trial and appellate counsel, if a lawyers' decisions are based upon ignorance, they are neither reasonable nor strategic. See e.g., Horton v. Zant, 941 F.2d 1449,1462 (11 a' Cir. 1991). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rickrnan v. Bell, 131 F.3d 1150, 1154 (6th Cir. 1997); Gravley v. Mills, 87 F.3d 779, 785 (6th Cir. 1996). In assessing counsel's performance, the instant court must inquire whether "counsel's representation fell below an objective standard of reasonableness," as measured by "prevailing professional norms." Rickman, 131 F.3d at 1154 (quoting Strickland, 466 U.S. at , 104 S.Ct. 2052). This objective reasonableness standard encompasses strategic litigation choices that simply fail to bear fruit. See Strickland, 466 U.S. at 689, 104 S.Ct To establish prejudice, a defendant must demonstrate a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Rickman, 131 F.3d at 1155 (quoting Strickland, 466 U.S. at , 104 S.Ct. 2052). 11

11 CONCLUSION As this court must recognize, appellant's claims regarding ineffective assistance of trial counsel are inextricably connected to his claim of ineffective assistance of appellate counsel. Therefore, this court must embark on an examination of trial counsel's performance in order to determine whether appellate counsel was constitutionally ineffective. See. Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir. 1999). Clearly, appellate counsel failed to raise an assignment of error that appellant's offenses were allied offenses, and had he done so, this court would have had the opportunity to review the issue and the outcome of the appeal (whether in favor of appellant or not) would have been different. Therefore, the prejudicial prong is well established. Further, as the record reflects clearly, trial counsel failed to file a timely motion to suppress. This issue, also, was omitted by appellate counsel thereby denying the appellant his full rights to due process of law by disallowing this Court's review. 12

12 For the reasons as stated above, this case involves a matter of great general interest and a substantial constitutional question. The appellant requests that this court accept jurisdiction, appoint counsel to perfect the brief in this matter, and fiirther relief deemed necessary. Respectfully submitted, Robert P. Clapper Prison No Grafton Correction Inst South Avon-Beldon Road Grafton, Ohio Certificate of Service I certify that a true copy of this Memorandum of Jurisdiction was sent by ordinary U.S. mail to counsel for appelles, Carroll County Prosecutor's Office, 49 Public Square, Carrollton, Ohio 44615, on this S fti day of,j ea L^ar, 200 '7.,C^42 CZ Robert P. Clapper (pro e)^ 13

13 rybt STATE.OF OHIO CARROLL COUN.TX S: SEVENTH DISTRICT STATE,OF,OHIO;, PI,AtNTi FF-APP E LLE,.E -: ) ; CASE N.O. 673 : y,:;.1..7^..^^b VS. 3: ) ROBERT P. CLAPPER ) ) DEFENDANT-APPELLANT ) _: :. JUlaCh4E(\1T ENTRY. On Opt pbar 27, appeilant, acting pro se, filed an AppGcation for Reopetting of this appeal. Court records show that on June 22, 1998, this Court affirmed appellant's convictioras an4d;sertqnce on one count of kidnapping and one count of aggravated murder. Leave to appeal was denied by the Ohio Supreme Court. Statev. Clapper Under App.R. 26 (B) "An apptication:for reopening. shall be filed In the court of appeals where the appeal was decided. within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." An examination of the Applicatfon reveals that appellant has not stated a justification for waiting ten (10) years before filing for reope.ning. He does assert ineffective assistance of appellate couns8i in failing to argue allied offenses of similar import, with the kidnapping offense merging into the aggravated murder offense at

14 the time of sentencing. He then contends that trial counsel was ineffective for failing to file a suppression motion and such failure Is interwoven with appeliate counsel's fai{ure to,raise itas an assignment of error. Inasmuch as appellant has faned to satisfactorily e"xplain why therewas a ten year time gap between this Court's final judgment and the filing of the Application for Reopening; :eapecialiy since the, assertions of ineffective- counsef are promised on matters known -irf`the record and In the traai'proceedings, it'ts'tfie order outhis Court that the Appficatfdh for Rebpenfing is denied. Case closed. JUbG^`^1=IVi_ 60-NOFRI JUDGE ERYL L. WAITE ^a^sr-n,urn JU^CiE"MARY DO^'_'^1ARp, Successor Judge to Edward A. Cox