IN THE SUPREME COURT OF OHIO sft^

Transcription

1 IN THE SUPREME COURT OF OHIO sft^ m13 97 STATE OF OHIO, ) CASE N0. ) Appellee, ) On Appeal from the First ) District Court of Appeals, vs. ) Hamilton County, Ohio LONNEL DICKEY, ) Ct. App. No. C Appellant. ) MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT DICKEY LONNEL DICKEY 3791 State Route 63 P.O. Box 56 (465840) Lebanon, Ohio APPELLANT IN PRO SE ^UL `.9 0?007 CL.ERK OF COURT SUPREME COURT OF OHIO JUDITH ANTON LAPP Reg. No P 230 E. Ninth St., Ste Cincinnati, Ohio COUNSEL FOR APPELLEE

2 TABLE OF CONTENTS EXPLANATION OF WHY CASE IS OF GREAT PUBLIC INTEREST,,.,,,,,,, Page 1 STATEMENT OF THE CASE AND FACTS... 2 ARGUMENT OF LAW I. Proposition of Law No. I: THE TRIAL COURT ERRED AS A MATTER OF LAW, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION, WHERE APPELLANT DICKEY WAS SENTENCED TO A TERM BEYOND THE STATUTORY MAXIMUM TERM ALLOWED AS A MATTER OF LAW, AND WHERE FACTORS WERE NEVER SUBMITTED AND DETERMINED BY A JURY BEYOND A REASONABLE DCUBT.. 5 II. P-roposition of Law No. II: APPELLANT DICKEY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION... 7 III. Proposition of Law No. III: APPELLANT DICKEY WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PLEA OF GUILTY THAT WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE CONSISTENT WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION... 9 IV. Proposition of Law No. IV: APPELLANT DICKEY WAS DENIED HIS DUE PROCESS AND EQUAL PROTECTION RIGHT, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHERE HE DEMONSTRATED MANIFEST INJUSTICE SUFFICIENT TO ALLOW HIS MOTION TO WITHDRAW GUILTY PLEA... il V. Proposition of Law No V-: APPELLANT DICKEY WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT TO AN APPEAL AS OF RIGHT, AS GUARANTEED BY THE DUE PROCESS AND EQUAL PROTECTION CLAUSES CONCLUSION CERTIFICATE OF SERVICE i-

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The case herein raises the substantial constitutional question of what amounts to manifest injustice relevant to a denial of due process and equal protection, that governs a guilty plea proceeding concerning an Ohio criminal defendant. Most specifically, where the Due Process and Equal Protection Clauses of the United States Constitution, as well as their companion Articles of the Ohio Constitution, provide that State statutory language of Crim.R of the Ohio Rules of Criminal Procedure creates a protected liberty interest, violation of federal and state right to due process and equal protection occurring at the guilty plea phase, amounting to manifest injustice, remains cognizable under Crim.R Most specifically, this case raises the question of whether a motion to withdraw guilty plea must be allowed to correct that plain error, constructive denial of the federal and state constitutional mandate of fair notice of the charges accused and the extent of the penalty faced by a criminal defendant in Ohio. The decision of the court of appeals errs herein, where it ruled that a fatal misunderstanding of the nature of the charges and maximum penalty involved with guilty plea of Appellant Dickey did not amount to that plain error manifest injustice requiring grant of motion to withdraw guilty plea under Crim.R Moreover, this case presents the substantial constitutional question of whether the failure of trial counsel to adequately advise a criminal defendant of the exact nature of the charges and penalty faced amounts to the ineffective assistance of counsel in violation of the United States Constitution's Sixth and Fourteenth Amendments. -1-

4 In addition, this case is one of true and actual conflict with that ruling, of another court of appeals and certification is now pending. Here, the ruling of the court of appeals erroneously holds that violations of federal and State constitutional due process and equal protection rights associated with a guilty plea are not cognizable under Crim.R. 32.1, where said constitutional violation is relevant to an illegal sentence and improper notice of the nautre of the charges and actual penalty faced. However, in State v. Sherritt, 1998 Ohio App. LEXIS 16389, 1998 WL 46680, the Second District Court of Appeals held that manifest injustice resulting from illegal sentence may be remedied pursuant to Crim.R motion to withdraw. WHEREFORE, if allowed to stand the ruling of the First District Court of Appeals herein would exist as a dangerous precedent as it relates to the remedy that Crim. R affords a criminal defendant in Ohio. The Ohio General Assembly, upon drafting the statutory legislation of Crim. R. 32.1, sought not to consturct a piecemeal approach for seeking redress of that manifest injustice that may arise during a plea proceeding. In actuality, where Crim. R creates a statutory liberty interest to a criminal defendant in Ohio having entered a guilty or no contest plea, the decision of the court of appeals herein threathens the very fabric of the duly enacted statutpry liberty interest of Crim. R as that redress toward manifest injustice by a criminal defendant in Ohio. STATEMENT OF THE CASE AND FACTS Appellant Lonnel Dickey (hereinafter "Appellant Dickey") was indicted in Hamilton County, Ohio Case No. B B. On January 26, 2004 Appellant Dickey was convicted of involuntary manslaughter -2-

5 with a specification contained in count one of the indictment. The trial court thereby sentenced Appellant Dickey to a term of ten (10) years, along with a three (3) year term for the specification to run consecutive thereof. The cumultttive sentence amounted to thirteen (13) years. On May 2, 2006 Appellant Dickey filed his motion to withdraw guilty plea pursuant to Crim.R with the trial court. On May 15, 2006 the trial court denied said motion to withdraw. Appellant Dickey subsequently filed his timely notice of appeal with the court of appeals. This case arises from the direct appeal of Appellant Dickey from the denial of his Crim.R motion to withdraw his plea of guilty made in the trial court. Appellant Dickey moved to withdraw his guilty plea to correct that manifest injustice, amounting to plain error, where he was subjected to a constructive denial of the federal and state constitutional mandate of fair notice of the charges and the extent of the penalty faced as a criminal defendant. Additionally, redress was sought toward that ineffective assistance of counsel resulting from the failure of trial counsel to adequately advise Appellant Dickey of the nature of those charges faced and the factual extent of the penalties thereof. Having asserted a denial of his right to a trial by jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution in his Crim.R motion to withdraw, the trial court erroneously held that the conviction and sentence of Appellant Dickey was not entitled to judicial review, nor a direct appeal as of right, thereby denying review of the trial court record. This denial of judicial revie, based solely upon the fact that Appellant Dickey was indigent and without the assistance of counsel -3-

6 following his conviction and sentence, amounts to a denial of that protected liberty interest afforded a criminal defendant in Ohio, and in violation of the Due Process and Equal Protection Clauses of the United States Constitution. Consequently, the trial court erred where it denied review of the record on Appellant Dickey's 32.1 motion to withdraw, so that substantial compliance with Crim.R. 11(C) could thereby be determined. On the direct appeal of the trial court's decision overruling the Crim.R motion, the constitutional claims of violation of due process and equal protection relevant to that manifest injustice of having been denied factors proven to a jury beyond a reasonable doubt, and that ineffective assistance of counsel that arose therefrom, were interwoven with protected liberty interest claims that resulted from denial of right to review under Crim.R. 32.1, as well as denial of an indigent criminal defendant to a direct appeal as of right. The court of appeals basically ignored those federal and state constitutional claims relevant to that denial of due process and equal protection Appellant Dickey as subjected to, as it related to that manifest injustice of.being denied right to a jury trial, fair notice of the charges and penalties faced, and the ineffective assistance of counsel that attached therefrom. Instead, the court of appeals ruled that a criminal defendant subjected to said manifest injustice was not entitled to the redress Crim.R to correct an illegal sentence, even given the fact that said illegal sentence violated the substantial compliance standard of Crim.R. 11(C). For this reason, certification for conflict was sought with the appellate court, based upon conflict with the decision of the Second Dist. in State v. Sherritt, 1998-Ohio-16389, 1998 WL

7 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW I. Proposition of Law No. I: THE TRIAL COURT ERRED AS A MATTER OF LAW, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE UNITED STATES CONSTITUTION, WHERE APPELLANT DICKEY WAS SENTENCED TO A TERM BEYOND THE STATUTORY MAXIMUM TERM ALLOWED AS A MATTER OF LAW, AND WHERE FACTORS WERE NEVER SUBMITTED AND DETERMINED BY A JURY BEYOND A REASONABLE DOUBT. The Sixth and Fourteenth Amendments to the United States Constitution, by mandate of their respective Due Process and Equal Protection Clauses, require that a constitutional standard of due process be upheld regarding the nature of the charges faced and the factual extent of that penalty a criminal defendant may be subjected to. The United States Supreme Court has unequivocally held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Blakely v. Washington, 124 S.Ct. 2531, (2004). Citing the Apprendi Court, the Supreme Court held that the relevant statutory maximum is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted to by the defendant. In the case herein, the trial court imposed an illegal sentence. That 13 year sentence was based upon judicial factfinding not a jury. Although held to be unconstitutional by the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 740 (2006), Ohio Revised Code et. seg. created a presumption that the trial court shall only impose the shortest term authorized for the offense or previously served a prison term. Also, if the trial court should -5-

8 make a finding upon the record that the shortest prison term would demean the seriousness of the offender's conduct, or would not adequately protect the public from future crime by the offender, then an enhancement beyond the statutory maximum is thereby allowed. As the record herein clearly demonstrates, no such determination was ever made by the trial court to support an enhancemerit in Appellant's case. Accordingly, based upon the facts alleged in count one of the indictment, and the facts stipulated to by Appellant, the trial court was required to sentence Appellant Dickey to the maximum sentence of no more than three (3) years for the first degree felony charge set forth in count one of the indictment. Also, Appellant was sub3ected.to no greater term than a concurrent three (3) year term for the accompanying specification charge. Pursuant to R.C et seq, to do otherwise the trial court would have had to find that Appellant Dickey had committed the offense while incarcerated, had a prior prison incarceration, or that the three (3) year sentence for each respective charge would somehow demean the seriousness of the conduct or would not adequately protect the public from future conduct of Appellant. None of the foregoing findings were made by the trial court. Most importantly, from a federal constitutional magnitude, any enhancement beyond the statutory maximum allowed by law required that those factors be determined by a 3ury beyond a reasonable doubt. Again, the record now for appellate review herein shows that no such due process and equal protection of the law was afforded Appellant Dickey. The trial court possessed not the jurisdiction to sentence Appellant in violation of the statutory provisions of R.C Yet, even had the trial court adhered to the provisions of R.C , -6-

9 the sentencing of Appellant Dickey beyond the statutory maximum of three (3) years would represent a violation of due process and equal protection, where the Ohio Supreme Court has ruled the guidelines consistent with R.C to be unconstitutional as a matter of law. Foster, supra, 109 Ohio St.3d 1. Citing the United States Supreme Court decisions of Apprendi and Blakely, the Ohio Supreme Court in Foster ruled that R.C (B) and (C) and R.C (B)(2) are unconstitutional. Exactly similar to the case of Appellant Dickey herein, where the trial court made an enhancement of sentence beyond the maximum three (3) years, "because R.C (B) and (C)...require judicial factfinding before imposition of a sentence greater than the maximuni term authorized by a 3ury verdict or admission of the defendant, they are unconstitutional." Id. Further, where the imposition of terms of consecutive sentences require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant, R.C (E)(4) is likewise unconstitutional. Id. Therefore, given light of the fact that the trial court made such illegal enhancement of the sentence of Appellant Dickey, absent the federal due process and equal protection guarantee of facts being either proven by a 3ury, or admitted to by Appellant, said sentence that was imposed beyond the statutory maximum of three (3) years is unconstitutional as a matter of law and must thereby be vacated. II. Proposition of Law No. II: APPELLANT DICKEY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION. The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel in all criminal proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984). To obtain reversal

10 of a conviction or sentence, the defendant must prove: (1) that counsel's performance fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding. Id. at 687. Factually similar to the case now for appellate review herein, in Glover v. United States, 531 U.S. 198, 204 (2001), the United States Supreme Court ruled that where counsel erred in failing to press grouping argument in sentencing phase of defendant's trial, and illegal increase of sentence constituted prejudice for purposes of ineffective assistance claim, reversal of conviction and illegal sentence was mandated as a matter of law. Similarly, counsel has been ruled to be ineffective, justifying redress on appeal, where counsel failed to properly investigate and present substantial mitigating evidence during sentencing phase Williams v. Taylor, 529 U.s. 362, (2000), the failure to confirm status of defendant's prior convictions United States v. Russell, 221 F.3d 615, (4th Cir. 2000), and the failure of counsel to make obvious objection to factors which illegally resulted in a computing enhancement of the defendant's sentence which thereby prejudiced the defendant. United States v. Stricklin, 290 F.3d 748, 751 (5th Cir. 2002). In interpreting the prejudice prong, the United States Supreme Court has identified a narrow category of cases in which prejudice is presumed. Strickland, supra, 466 U.S. at 692. Among those exists issues of various types of State interference. Smith v. Robbins, 528 U.S. 259, 287 (2000). See United States v. Cronic, 466 U.S. 648, 665 (1984). Wherefore, the application of a constitutionally illegal State sentencing statute, such as the fact finding provisions of R.C et seq, thereby constitutes a type of State -8-

11 interference with the constitutional protections of the due process and equal protection clauses that represent a structural denial of the effective assistance of counsel where prejudice may be presumed. This presumption applies to the case herein where there has been an "(a]ctual or constructive denial of the assistance of counsel altogether." Strickland, supra, 466 U.S. at 692. In the case herein, counsel's failure to discover that Appellant Dickey had a right to have the factors that warranted an increase of his sentence beyond the three (3) year statutory maximum to be proven to a gury beyond a reasonable doubt, and to thereby inform Appellant of that right, warrants a presumption of predudice. McGurk v. Stenberg, 163 F.3d 470, (8th Cir. 1998). III. Proposition of Law No. III: APPELLANT DICKEY WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PLEA OF GUILTY THAT WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE CONSISTENT WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The Due Process and Equal Protection Clauses of the United States Constitution, and Article I, Section 10 of the Ohio Constitution, require that a defendant's plea of guilty be made knowingly, voluntarily, and intelligently. Brady v. United States, 397 U.S. 742, 750 (1970). The due process provisions that guarantee a guilty plea that conforms to the Sixth and Fourteenth Amendments to the United States Constitution are codified in Ohio by the statutory language of Rule 11 of the Ohio Rules of Criminal Procedure. The purpose of Crim.R. 11(C) is to provide the defendant with certain information so that he/she can make a voluntary and intelligent decision whether to plead guilty or no contest. Therefore, the trial judge must inforni the defendant of the constitutional rights set forth -9-

12 in 11(C) before a waiver is effected. State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 11,5 (1981). Any misstatement of the maximum penalty faced by a defendant constitutes plain error, which requires vacation of the guilty plea. State v. Caplinger, 105 Ohio App.3d 567, 664 N.E.2d 959 (1996). The nature of the charges and consequences of a plea of guilty involve any manner of punitive sanctions that may be imposed. A defendant is allowed to withdraw a guilty plea for plain error when a court nisinforms the nature of irnposition of any punitive sanction. U.S. v. Giyot, 147 F , (10th Cir. 1998). The federal courts are well settled that habeas corpus relief is warranted by a State's breach of plea agreement. Gunn v. Ignacio, 263 F.3d 965, (9th Cir. 2001). Rule 11(C) requires that defendants be advised of the maximum possible penalty and the nature of the offense with which they have been charged. The courts, both state and federal, are well settled that the imposition of sentencing must be based upon an understanding of the nature of the charges and consequences of the plea. Therefore, the present attempt by the State to allow a sentence enhancement beyond the statutory maximum, and as the result of an unconstitutional sentencing statute, both invalidates the substantial compliance with Crim.R. 11(C) and imposes an additional punishment jurisdictionally unlawful. This would thereby violate the due process clause, as well as the protections against being subdected to double Deopardy as guaranteed by the federal constitution. Further, the failure to inform Appellant Dickey of the actual range of sentencing he would be subjected to in conformance with the fact finding provisions of R.C. 2929/14 taints the plea of Appellant and requires that the conviction and sentence be vacated and set aside herein. State v. Ball, 66 Ohio App.3d 224, 583 N.E.2d 1094 (1990). -10-

13 IV. Proposition of Law No. IV: APPELLANT DICKEY WAS DENIED HIS DUE PROCESS AND EQUAL PROTECTION RIGHT, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, WHERE HE DEMONSTRATED MANIFEST INJUSTICE SUFFICIENT TO ALLOW HIS MOTION TO WITHDRAW GUILTY PLEA. Manifest industice occurred in the case of Appellant Dickey herein. The evidence clearly demonstrates that neither trial counsel, the State, nor the trial court properly apprised Appellant Dickey of the factual elements of the maximum sentence he actually faced, nor the actual nature of the offense and the consequences of said plea. The Sixth and Fourteenth Amendments to the United States Constitution, by mandate of their respective Due Process and Equal Protection Clauses, requires that a constitutional standard of due process be upheld regarding the nature of the charges faced and the factual extent of that penalty faced by a criminal defendant. The controlling federal legal authority, in application of those due process standards that attach governing the voluntary and intelligent nature of a guilty plea, is now well settled that a state sentencing statute, such as that of Ohio's R.C et seq, which requires judicial fact finding before imposition of a sentence beyond the statutory maximum, can allow no greater sentence than that statutory maximum actually faced by a criminal defendant. Blakely v. Washington, 542 U.S. 296 (2004). Consequently, the failure of Appellant Dickey to be properly apprised of the exact nature of the consequences and factual extent of the range of sentencing he faced results in manifest in]ustice. Additionally, manifest in3ustice resulted from the imposition of an illegal enhancement by the trial court. For such an enhancement to have conformed to the mandates of due process and equal protection they had to be either proven to a jury beyond a reasonable doubt, or admitted to by Appellant. -11-

14 Where neither occurred in the case herein, it was incumbent upon the trial court to grant the withdrawal of the guilty plea of Appellant. If a trial court fails to properly inform a defendant of the factual extent. of possible penalties faced, or the nature of the plea, the plea results in plain error requiring withdrawal thereof. Garfield Hts. v. Mancini, 121 Ohio App.3d 155, 699 N.E.2d 132 (1997). Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). In State v. Keefer, 128 Ohio App.3d 262, 714 N.E.2d 465 (1998), a defendant was entitled to withdraw the guilty plea where defense counsel, the prosecutor and the court all erroneously thought that the offenses were probationable. Applying the rationale of the Keefer court herein, and the long standing stare decisis of both federal and state law that support it, it is all too obvious that the improper range of sentencing the trial court so apprised Appellant Dickey to was that "erroneously thought" applicable by the trial court. The United States Supreme Court, in Apprendi v. New Jersey, 530 U.S. 466, , reversed the Dudgment of the trial court enhancing the defendant's sentence where the judge, not the jury, found factors by a preponderance of the evidence, thereby qualifying the defendant for a sentence enhancement under New Jersey law. Therefore, where the Ohio sentencing scheme is similarly so unconstitutionally structured, any sentence enhancement beyond the statutory maximum requires a jury finding beyond a reasonable doubt. The Apprendi case stands for the proposition that any fact that increases the penalty for a crime beyond the statutory maximum is, in effect, an element of the crime and must be submitted to the jury. -12-

15 Failure to properly advise: effects a defendant's substantial rights. U.S. v. Santo, 225 F.3d 92, ( 1st Cir. 2000). Further, it is well settled that a plea withdrawal be allowed where a trial court fails to inform the defendant of the exact nature of the statutory minimum and maximum sentences allowable. U.S. v. Hourihan, 936 F.2d 508, ( 11th Cir. 1991). Moreover, given the long standing and well settled federal and state legal authority, Appellant Dickey should be permitted to withdraw his guilty plea where it was based on mistaken advice by his defense counsel that constituted ineffective assistance. State v. Dalton, 153 Ohio App.3d 286, 795 N.E.2d 680 (2003). Also, where a trial court erroneously represents to a defendant the applicable range of sentencing for the charged offense, the defendant should be permitted to withdraw his guilty plea. State v. May, 64 Ohio App.3d 456, 581 N.E.2d 1154.(1989). Additionally, where a defendant relies on his attorney's mistaken advice regarding the penalty faced, a trial judge abuses his/her discretion in overruling defendant's motion to withdraw his plea after sentence was imposed. State v. Longo, 4 Ohio App.3d 136, 446 N.E.2d 1145 ( 1982). Based upon the foregoing this Court should sustain Appellant's assignment of errors and allow the withdrawal of his guilty plea and direct the trial court to impose the statutory maximum sentence of three (3) years as a matter of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution, Due Process and Equal Protection Clauses. V. Fifth Assignment of Error: APPELLANT DICKEY WAS DENIED HIS UNITED STATES CONSTITUTIONAL RIGHT TO AN APPEAL AS OF RIGHT, AS GUARANTEED BY THE DUE PROCESS AND EQUAL PROTECTION CLAUSES. -13-

16 Any right to counsel and a transcript of the state record provided an indigent appellant must be grounded in the Equal Protection and Due Process Clauses. Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000). Once an appeal has been granted, "the Equal Protection and Due Process Clauses command that an indigent defendant has a right to appointed counsel" and a transcript of the record at state expense. U.S. v. Gillis, 773 F.2d 549, 559 (4th Cir. 1985). Because the Ohio General Assembly "has created the statutory mechanism by which.to appeal a criminal judgment of conviction, due process entitles him to meaningful appellate review." U.S. v. Pajooh, 143 F.3d 203, 204 (5th Cir. 1998). Most importantly, "if the state provides an appeal as a matter of right, its appellate procedures must comport with the Due Process and Equal Protection Clauses of the [Sixth and Fourteenth] Amendment." Tamalini v. Stewart, 249 F.3d 895, 901 n.3 (9th Cir. 2001). On September 25, 2006, Appellant Dickey received notice from the Hamilton County Clerk of Courts, allegedly in accordance with Appellate Rule 30(A) although Appellant Dickey at no time received a copy of the Court's order, denying Appellant a copy of the transcript at state expense. As the record herein clearly demonstrates, Appellant has remained an indigent litigant at all stages material to his present appeal: Therefore, to deny Appellant Dickey a copy of the record is tantamount to a denial of an appeal as of right. CONCLUSION Based upon the foregoing, Appellant Dickey respectfully requests that this Court sustain all or one of the propositions of law herein presented, and remand the matter back to the trial court for -14-

17 of that manifest injustice consistent with the mandates of Crim. R For the reasons discussed above, this case involves matters of public and great general interest and embodies substantial constitutional questions. Wherefore, Appellant Dickey respectfully requests that this Court accept jurisdiction in this case, so that the important issues presented will be reviewed on their merits. Respectfully submitted, LONNEL bicrey 6 P.O. Box 56 (465840) Lebanon, Ohio CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum In Support of Jurisdiction was sent to counsel for Appellee, Judith Anton Lapp ( P) at 230 E. Ninth St., Ste. 4000, Cincinnati, 0H 45202, by delivery to the Lebanon Corr. Inst. mail room staff, first class postage prepaid, for deposit with the regular U.S. Mail, on this 27th day of July, LONNEL DICKEY P.O. Box 56 (465840) Lebanon, Ohio APPELLANT IN PRO SE -15-

18 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, vs. Plaintiff-Appellee, APPEAL NO. C-o6o509 TRIAL NO. B-o3o8628-B JUDGNiENl ENTRY: LONNEL DICKEY, Defendant-Appellant. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.l Defendant-appellant Lonnel Dickey2 appeals the Hamilton County Common Pleas Court's judgment overruling his "Motion to Withdraw Guilty Plea/Motion to Modify Sentence Pursuant to Ohio Criminal Rule 32.1." We affirm the court's judgment. In 2004, Dickey pled guilty to involuntary manslaughter and an accompanying firearm specification and was sentenced to 13 years in prison. He did not appeal his conviction. Instead, in June of 2005, he filed with the common pleas court a "Motion to Withdraw Guilty Plea/Motion to Modify Sentence Pursuant to Ohio Criminal Rule I See S.Ct.R.Rep.Op. 3(A), App.R. u.i(e), and Loc.R The appellant is designated in the indictment and in his pro se notice of appeal as "Lonnel Dickey," but is variously designated throughout the transcript of the docket and journal entries as "Lonnell Dickey."

19 OHIO FIRST DISTRICT COURT OF APPEALS 32.1." In his motion, he cited the United States Supreme Court's decisions in Apprendi v. New Jersey3 and Blakely v. Washington4 in support of his claims (i) that the trial court, by imposing a nonminimum prison term, had denied him the right to a jury trial guaranteed under the Sixth Amendment to the United States Constitution, and (2) that his trial counsel had been ineffective in "allow[ing]" the court to sentence him in violation of the Sixth Amendment. The common pleas court overruled the motion, and this appeal followed. On appeal, Dickey presents five assignments of error. We address first his fifth assignment of error, in which he challenges our entry overruling his motion for a transcript of the proceedings at the state's expense. The state must provide an indigent defendant with a transcript of relevant portions of the proceedings leading to a conviction if a direct or collateral challenge to the conviction is pending before a court.5 Dickey took no direct appeal from his conviction. Thus, he had yet to be provided with a transcript of the proceedings leading to his conviction.6 Along with his Crim.R motion, Dickey filed a "Precepe" requesting that a transcript of his plea hearing be prepared and filed with the common pleas court. But when no transcript was filed, Dickey did not petition this court for a writ of mandamus 3(2000), 530 U.S. 466,120 S.Ct (2004), 542 U.S. 296,124 S.Ct e See Lane v. Brown (1963), 372 U.S. 477, 83 S.Ct. 768; Griffin v. Illinois (1956), 251 U.S. 12, i9, 76 S.Ct. 585; State ex rel. Partee v. McMahon (i963), i75 Ohio St. 243, 248, 193 N.E.2d See State ex rel. Vitoratos v. Walsh (1962), 173 Ohio St. 467, 183 N.E.2d 917, appeal dismissed (1962), 371 U.S. 114, 83 S.Ct. 210 ( holding that the state need not provide more than one copy of the trial transcript); accord State ex rel. Murr v. Thierry (1987), 34 Ohio St.3d 45, 517 N.E.2d

20 OHIO FIRST DISTRICT COURT OF APPEALS to compel the common pleas court to order a transcript for purposes of determining his Crim.R motion.7 I Instead, after the common pleas court had overruled his Crim.R motion and he had appealed, Dickey filed with this court a motion for a transcript at the state's expense. We overruled the motion. "[A] reviewing court can only reverse the judgment of a trial court if it finds error in the proceedings of such court[;] * * * [therefore,]the reviewing court [is] limited to what transpired in the trial court as reflected by the record made of the proceedings."8 Thus, because we may not add to the record before us matter that was not part of the common pleas court's proceedings and then decide the appeal based on the new matter, we could not order that a transcript of the proceedings at the plea hearing be provided for purposes of determining Dickey's appeal.9 Accordingly, we overrule the fifth assignment of error. The balance of Dickey's assignments of error, when reduced to their essence, challenge the denial of his "Motion to Withdraw Guilty Plea/Motion to Modify Sentence Pursuant to Ohio Criminal Rule 32.1." This challenge is equally untenable. In support of his motion, Dickey invoked Crim.R But Crim.R provides relief in the form of permitting the withdrawal of a guilty plea, and Dickey sought by his motion not to withdraw his guilty pleas, but to "modif[y]" his prison sentence from 13 years to six years. Dickey thus sought by his motion relief that Crim.R does not afford. We, therefore, overrule the remaining assignments of error. 7 See State ex rel. Copeland v. Judges of Court of Appeals of Third Appellate District (1981), 67 Ohio St.2d 1, 424 N.E.2d 279 (holding that the proper vehicle for challenging a court's refusal to order a transcript is a petition for a writ of mandamus). s See State v. Ishmail (i978), 54 Ohio St.2d 402, 405-4o6, 377 N.E.2d See id., paragraph two of syllabus. 3

21 01110 FIRST DISTRICT COURT OF APPEALS Accordingly, we affirm the judgment of the court below. A certified copy of this judgment entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. HILDEBRANDT, P.J., SUNDERiVIANN and DINKELACKER, JJ. To the Clerlc: Enter upon the Journal of the Court on June 2^",007 per order of the Court /i residing Judge 4