^Ul ()8 CLERK OF COURT SUPREME t; URT OF OHIO. Plaintiff, SUPREME COURT OF OHIO CASE NO COURT OF APPEALS CASE NO.

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff, vs. ALTON CROMARTIE, Defendant. ON APPEAL FROM THE MEDINA COUNTY COURT OF APPEALS, NINTH JUDICIAL DISTRICT SUPREME COURT OF OHIO CASE NO COURT OF APPEALS CASE NO. 06CA0107-M STATE'S MEMORANDUM OPPOSING JURISDICTION DEAN HOMAN (# ) Medina County Prosecuting Attorney RUSSELL A. HOPKINS (# ) Assistant Prosecuting Attorney 72 Public Square Medina, Ohio (330) fax: (330) Counsel for Appellee, State of Ohio ALTON CROMARTIE # Pickaway Correctional Institution P.O. Box 209 Orient, OH Appellant pro se ^Ul ()8 CLERK OF COURT SUPREME t; URT OF OHIO 0

2 TABLE ON CONTENTS EXPLANATION OF WHY LEAVE TO APPEAL SHOULD BE DENIED... 1 STATEMENT OF THE CASE... 1,2 STATEMENT OF THE FACTS APPELLEE'S PROPOSITION OF LAW :...3 The Court of Appeals properly denies a motion to reopen pursuant to App.R. 26(B) when it is filed out of time. CONCLUSION PROOF OF SERVICE...:.:...:9 ii

3 Explanation of Why Leave To Appeal Should Be Denied The case at bar does not involve any substantial constitutional question nor is it an appeal from a capital sentence. Consequently, it is not an appeal of right pursuant to Supreme Court Rule II(A)(1). Rather, an appeal to this Court from a felony conviction is discretionary. The Supreme Court should decline to accept jurisdiction because the instant case was completely and properly adjudicated in the Ninth District Court of Appeals. There is nothing in the instant appeal that is of such statewide importance to be worthy of the Supreme Court's attention. Instead, Appellant merely reasserts the same arguments that were the basis of his appeal to the Ninth District. Statement of the Case On January 6 and by supplemental indictment on May 17, 2006, Appellant, Alton B. Cromartie, alias Brandon Caromartie (T.740), was indicted by the Medina County grand jury on the following offenses: Aggravated burglary in violation of R.C (A)(1), F-1; Felonious assault in violation of R.C (A)(2), F-2; Violating a protection order with a prior offense in violation of R.C (A)(B)(3), F-5; Violating a protection order in violation of R.C (A)(3)(4), F-3; Intimidation in violation of R.C (A), F-3; Intimidation in violation of R.C (B), F-3; Retaliation in violation of R.C (A), F-3; Retaliation in violation of R.C (B), F-3; In addition, Cromartie was indicted on seven firearms specifications in violation of R.C After a bond forfeiture capias and a change in counsel, Mr. 1

4 Cromartie was tried to a jury beginning on October 30, 2006 was found guilty as charged. He was sentenced to a total of nineteen years in prison. On January 28, 2008, the Ninth District Court of Appeals affirmed in State v. Cromartie, 2008 Ohio 273, case no. 06CA0107-M. As a side note, the docket improperly attached to Appellant's memorandum as well as orders dated May 2 and 6, 2008 are for case no. 07CA0121-M, an appeal from the denial of postconviction relief, a matter which has not been adjudicated. Appellant filed his Application for Reopening.of the. Appeal on _ May 9, 2008 or twelve days beyond the limit. The Court of Appeals struck the out-of-time application. Statement of the Facts The Court of Appeals provided a brief summary of the extensive testimony for this case. On January 1, 2006, Gregory J. Sulitis was assaulted in the garage and front yard of his parents' home in Brunswick, Ohio. As Mr. Sulitis walked through the attached garage, he noticed condensation on the windows of his Jeep Cherokee and that a corner of the tarp covering the cargo storage area of the vehicle was askew. Mr. Sulitis opened the door to the cargo area and found a man with a gun concealed inside. A struggle ensued, and Mr. Sulitis's mother joined the fray when she heard her son's screams. The assault continued as Mr. Sulitis and the assailant moved to the front yard, where the assailant repeatedly struck Mr. Sulitis over the head with a blunt object before fleeing the scene, leaving Mr. Sulitis bloodied on the ground. Mrs. Sulitis called 911, and the Brunswick police arrived on the scene shortly thereafter. Mr. Sulitis identified his assailant as Defendant, with whom Mr. Sulitis had been in a turbulent romantic relationship in He and Mrs. Sulitis provided a physical description of Defendant. Police recovered parts of a semiautomatic handgun in the Sulitises' yard and established 2

5 a search perimeter based on the information they provided. Defendant eluded the search for approximately five hours, evading foot patrols, a canine search unit, and heat-seeking equipment as he fled on foot through the neighborhood. Brunswick police apprehended Defendant after receiving a call related to a suspected robbery at a Walgreens drug store. * ^ * * In anticipation of trial, the State filed notice of its intention to introduce other acts evidence consisting of testimony related to acts of actual or threatened violence perpetrated by Defendant against men with whom he had been in intimate relationships. Defendant responded in opposition and moved the trial court in limine to exclude all such evidence pursuant to Evid.R. 401, 403, and 404(B). The trial court heard arguments and denied Defendant's motion immediately prior to trial. During the course of the trial, over Defendant's objection, the State presented the testimony of David Gregory, who alleged that Defendant assaulted him in 1998, after he ended their emotionally and mentally abusive relationship; a law enforcement officer from Fort Lauderdale, Florida, who responded to the scene of the assault; and law enforcement officers from Wheaton, Illinois, where Defendant was convicted of two felonies related to his conduct toward a second former lover, Chris Cutrone. Cromartie, 2008 Ohio 273, P.2. APPELLEE'S PROPOSITION OF LAW: The Court of Appeals properly denies a motion to reopen pursuant to App.R. 26(B) when it is filed out of time. As a preliminary matter, the State of Ohio denies that there has been any misconduct by itself or by any judicial authority concerning this case. A. Appellant filed his application beyond the ninety-day deadline. The Court of Appeals affirmed case no. 06CA0107-M January 28, Appellant filed his application to reopen for that case number May 9, Attaching the wrong case number to an application when Appellant knows he has two appeals filed is his fault and not that of the 3

6 Court of Appeals. The relevant case on this issue is that of State v. Murnahan (1992), 63 Ohio St. 3d 60, where, at paragraph three of the syllabus, the court stated: Where the time period for reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, pursuant to App.R. 26 and 14(B), and if delayed reconsideration is denied then the defendant may file.. for delayed appeal in the supreme court, pursuant to section 8, Rule II of the Rules of Practice of the Supreme Court. Appellate Rule 26(B) states in pertinent part as follows. (B) Application for reopening. (1) A defendant in a criminal case may apply for reopening of the appeal from the judgnient of conviction and sentence, based on a claim of ineffective -assistance of appellate counsel. An application 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. [Underscore added.] This Court ruled on Appellant's direct appeal on January 28, Appellant filed his Application for Reopening of the Appeal on May 9, 2008 or twelve days beyond the limit. For good cause shown, the court, upon motion, may enlarge or reduce the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of the prescribed time. The court may not enlarge or reduce the time for filing a notice of appeal or a motion to certify pursuant to App.R. 25. Enlargement of time to file an application to reconsider pursuant to App.R. 26 (A) shall not begranted except on a showing of extraordinary circumstances. [Underscore added.] In State v. Winstead (1996), 74 Ohio St. 3d 277, the Supreme Court 4

7 of Ohio refused to permit an application to reopen an appeal that was filed slightly past the ninety day deadline. In that case, the application was late only because of the failure of an overnight courier to file the document on time. In State v. Reddick (1995), 72 Ohio St. 3d 88, 91, the court refused to permit an application to reopen an appeal even though it was filed within two months of the effective date of the amended App. R. 26(B) because it had been six years since judgment was rendered by the Court of Appeals. Likewise, even where habeas corpus relief from the Federal courts, an appellant must file an Application to Reopen withinthe ninety day deadline. The Court of Appeals in State v. Tipple (7ffi Dist. 1997), 1997 Ohio App. LEXIS 3842, p.5, held: This court rendered its appellate decision on July 26, 1995, and appellant filed this instant motion on May 29, 1997, a full twenty-two months after our decision. The fact that appellant elected to pursue a writ of Habeas Corpus in the federal court system does not excuse appellant for his untimely filing in this court. Appellant's action in another court is not "good cause" for his untimely filing. This holding is consistent with the spirit of Ohio Supreme Cottrt decisions like State v. Murphy (1990), 49 Ohio St. 3d 293, and Winstead which strictly construe the ninety day time limit. Consequently, Appellant has failed to show good cause for the delay in filing the instant Application to Reopen. See also, State v. Snead (801 Dist. 1997), No , 1997 Ohio App. LEXIS 2082, (holding that ignorance of the 90 day filing deadline is not good cause for a delayed application). 5

8 B. Appellant's assignments of error are inadequate to demonstrate a need to reopen his appeal. An Application to Reopen an appeal pursuant to App. R. 26(B) is limited to the issue of ineffective assistance of appellate counsel. The standard of review to be applied when assessing a defense request for reopening on appeal under App.R. 26(B)(5) is that of Strickland v. Washington (1985), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St. 3d 136. See e.g. State v. Michael (7th Dist. 1996), 114 Ohio App. 3d 523, 528. The Strickland standard for ineffective assistance of counsel is that a defendant must demonstrate such serious errors of counsel that a defendant was prejudiced and, but for these errors, there was a reasonable probability that the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Therefore, to establish ineffective assistance of counsel, the defendant must show (1) deficient performance of counsel and (2) resulting prejudice to the defendant. A properly licensed attorney in Ohio is presumed competent, so the burden of proving ineffectiveness is on the convicted defendant. State v. Smith (1985), 17 Ohio St. 3d 98; citing Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. The proper standard for reviewing attorney performance is that of reasonably effective assistance. Strickland, 466 U.S. at 687, 688. There is a strong presumption that counsel's performance was effective. Ibid. at 689. Judicial scrutiny of counsel's performance must be highly deferential, because there are countless ways to provide effective 6

9 assistance. Every effort must be made to eliminate the distorting effect of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate that conduct from counsel's perspective at the time. Id. A convicted defendant must overcome the presumption that the alleged errors of counsel "might be considered sound trial strategy." Id. Appellate counsel was not ineffective. Nothing alleged in Appellant's application amounts to ineffective assistance of appellate counsel. On appeal, Appellant was represented by Robert Dixon, an experienced and competent defense lawyer who is well known and respected Cuyahoga County. It is difficult to imagine Mr. Dixon failing to raise an assignment of error that had a possibility of success. Responses to each of Appellant's assignments of error as enumerated in his App.R. 26(B) application are presented below.. Assignment of Error No.1: effective assistance of counsel and right to pro se representation. Appellate counsel is permitted to use his professional judgment to choose his battles and to concentrate on assignments of error that will be the most productive. Appellate counsel is not required to assign every possible error in order to be effective. State v. Dubose (7h Dist.), 2002 Ohio 6613, *P5; State v. Wolfe (7h Dist.), 2000 Ohio 2629,*P9, quoting, State v. Allen (1996), 77 Ohio St. 3d 172, 173. "Even debatable trial tactics typically do not constitute a deprivation of effective assistance of counsel." Dubose, at *P5, citing State v. Clayton (1980), 62 Ohio St. 2d 45, 47. 7

10 At trial, Appellant did in fact waive counsel and represented himself until he asked for legal assistance. A subsequent request to waive was not granted because the earlier request for counsel meant that Appellant could not be unequivocal in his waiver. This matter was raised on direct appeal and rejected by this Court. Cromartie, 2008 Ohio 273, P.21. It is unlikely that the similar complaint Appellant now raises would have been successful. Assignments of Error Nos. 2-9: Appellant's remaining assignments of error do not pertain to ineffective assistance of appellate counsel and are, therefore, not allowed to be raised under an application to reopen pursuant to App.R. 26(B). In addition, the State denies that there was any misconduct by the Prosecuting Attorney, staff or assistants or by any witness or law enforcement personnel in investigating or prosecuting this case. Conclusion For all these reasons, Appellant's Memorandum in Support of Jurisdiction should be denied. The instant matter has been thoroughly adjudicated by the Court of Appeals and there is nothing of such statewide importance to warrant the attention of the Supreme Court. 8

11 Respectfully submitted, DEAN HOLMAN (# ) Medina ^unty^pr,qsecuting Attorney RUSSEM A. HOPKINS (# ) Assistant Prosecuting Attorney Counsel for Appellant, State of Ohio PROOF OF SERVICE The undersigned hereby certifies that a copy of the foregoing State's Memorandum in Opposition to Jurisdiction was sent by regular U.S. Mail on this 28th day of July, 2008 to Alton Cromartie #514655, Pickaway Correctional Institution, P.O. Box 209, Orient, OH RUSSELL A. HOPKINS Assistant Prosecuting Attorney 9