09-0"741 IN THE SUPREME COURT OF OHIO. 1pikf 0'i Z(IU{' CLERK OF COURT SUPREME COURT OF OHIO CI=,4;4^;^ ^7F ^^C3^14^T SU^^^II^^ OF, OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO THE STATE OF OHIO, V5. PLAINTIFF - APPELLEE, App. CASE No.: "741 TRIAL CASE No.: 05 CR HYME URBINA, DEFENDANT - APPELLANT. MEMORANDUM IN OPPOSITION TO CLAIMED JURISDICTION OF THE PLAINTIFF-APPELLEE, THE STATE OF OHIO ^ ED 1pikf 0'i Z(IU{' CLERK OF COURT SUPREME COURT OF OHIO MORRIS J. MuRRAV (#0020I40) Defiance County, Ohio Prosecuting Attorney RusSELL R. HERMAN (# ) Defiance County, Ohio Assistant Prosecuting Attorney 607 West Third Street Defiance, Ohio Phone (419) Tax(419) KENNETH J. REXFORD (# ) 112 North West Street Lima, Ohio Phone (419) ^049 CI=,4;4^;^ ^7F ^^C3^14^T SU^^^II^^ OF, OHIO ATTORNEYS FOR APPELLEE ATTORNEY FOR APPELLANT

2 TABLE OF CONTENTS PAGE... ui TABLE OF AUTHORITIES iii EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF THE FACTS STATEMENT OF THE CASE RESPONSE TO APPELLANT'S FIRST ASSIGNMENT OF ERROR: THE THIRD DISTRICT COURT OF APPEALS PROPERLY DENIED THE DEFENDANT-APPELLANT'S MOTION TO REOPEN DIRECT APPEAL CONCLUSION CERTIFICATION ii

3 TABLE OF AUTHORITIES CASES PAGE S State v. Braddy, (2005), 2005 WL , 2005-Ohio-282, No , (8th App. Dist., Cuyahoga Co., Jan 21, 2005) State v. Crayton, (2004), 2004 WL , 2004-Ohio-6293, No , (8`h App. Dist., Cuyahoga Co., Nov. 19, 2004) State v. Fautenberry, (1997), 78 Ohio St.3d State v. Gumm, (2004), 103 Ohio St.3d 162, reconsideration denied 104 Ohio St.3d State v. Hoffner, (2007), 112 Ohio St.3d State v. LaMar, (2004) 102 Ohio St.3d 467, reconsideration denied 103 Ohio St.3d 1466, certiorari denied 125 S,Ct State v: Ligon, (2008), 2008 WL , Ohio- 6085, No , (3^d App. Dist., Defiance Co., Nov. 24, 2008) State v. Mosley, (2005), 2005 WL , 2005-Ohio-4137, No , (8`h App. Dist., Cuyahoga Co., Aug. 8, 2005) State v. Myers, (2004), 102 Ohio St.3d State v. Pelfrev, (2007), 112 Ohio St.3d State v. Reed, (1996), 74 Ohio St.3d State v. Sessler, (2008), 119 Ohio St.3d , 9 State v. Sheppard, (2001), 91 Ohio St.3d State v. Whalen, ( 1996), 74 Ohio St.3d State v. Wickline, ( 1996), 74 Ohio St.3d :... 6 Strickland v. Washington, ( 1984), 466 U.S , 9 RULES & STATUTES PAGE S Appellate Rule , 7, 9, 10 iii

4 EXPLANATION OF WHY THIS CASE I SNOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION. COMES NOW the State of Ohio by and through the Office of the Defiance County Prosecuting Attomey and in response to the Defendant-Appellan t's Memorandum in Support of Jurisdiction in this matter, and hereby respectfully requests that this Court not grant jurisdiction for the reasons outlined below. FOR CAUSE, this case is not a case of public or great general interest and does not involve a substantial constitutional question for several reasons. The Defendant seeks this Court to Reopen an Appeal that the Third District Court of Appeals previously rendered final judgment on more than one and a half years ago (June 25, 2007). Appellate Rule 26(B) requires that any Motions to Reopen Appeals be filed within ninety (90) days of final judgment, or upon showing of good cause for untimely filing. Here, the Defendant has failed to show good cause for his untimely filing herein, therefore, his Memorandum in Support of Jurisdiction should be denied. The Third District Court of Appeals recently denied the Defendant's recent attempt to reopen direct appeal pursuant to Appellate Rule 26(B) on March 12, 2009, as the Defendant failed to show good cause for being filed untimely. A Memorandum in opposition to claimed jurisdiction is attached herein. WHEREFORE, the State of Ohio, respectfully requests that this Court not grant jurisdiction over this case for the reasons outlined above. 1

5 STATEMENT OF THE FACTS On February 2, 2005, around daybreak, four (4) young men, Kalub Luzar, Nicholas Urbina, Oscar Mario Gomez, and the Defendant-Appellant, Hyme Urbina, went to the residence of Michael Partee in a rural area of Defiance County, for the purpose of robbing Mr. Partee. Kalub Luzar drove to the residence and parked his vehicle along side the road behind some pine trees. (Trans. Vol. I, pp. 199, ) After parking the car, the other three (3) men exited and went to Mr. Partee's house. (Trans. Id.) One of the men knocked on the door awakening Mr. Partee. (Trans. Id.) When Mr. Partee opened the door, Nicholas Urbina requested to use the phone. (Trans. Id.) Mr. Partee testified that he had a funny feeling about the situation and started to close the door and it was forcibly opened by these individuals and Co-Defendants Nicholas Urbina, Oscar Mario Gomez and Hyme Urbina entered his home without permission. (Trans. Vol. I, p. 199.) Mr. Partee was tackled, forced to the ground, held down in a headlock, and body slammed to the floor. (Trans. Vol. I, p. 200.) While being held down by Nicholas Urbina, Partee was struck and kicked by Oscar Mario Gomez and Hyme Urbina. Hyme Urbina then proceeded to run through the house looking for money and valuables. Mr. Partee had a Seiko watch, a bench-made knife, three (3) pistols, a cell phone, a black duffel bag, a tazer, various jewelry, various tools, various clothing, his wallet with $20.00 cash and a Visa card inside, and an oxygen tank stolen from him during the robbery and burglary. (Trans. Vol. I, pp ) After taking some of the property and carrying it in a black duffel bag obtained from the house, Hyme Urbina ran back to the car where Kalub Luzar was waiting. (Trans. Vol. I, p. 271.) Shortly thereafter, Nicholas Urbina and Oscar Mario Gomez exited the residence. They disposed of various firearms stolen from the residence by throwing them along the tree line on the side of 2

6 the house; then cut the phone line to the house, and slit the tires on Mr. Partee's vehicle, prior to fleeing the scene. (Trans. Vol. I, p. 269.) The victim eventually mustered enough energy to seek help, and proceeded to a neighbor's home to call 911, after he discovered his cell phone was stolen, and his home phone service torn out of the wall by the robbers. (Trans. Vol. I, pp ) After receiving no reply after knocking on his neighbor's door, Partee proceeded to walk '/4 mile down the road to the next neighbor's residence, where he was able to find someone who let him use their phone to call law enforcement officials. (Trans. Id.) After an investigation of the matter, Kaleb Luzar, Hyme Urbina, and Oscar Mario Gomez were identified as persons of interest. The Defiance County Sheriff's Office contacted Kaleb Luzar, who admitted his involvement in the robbery and burglary, as well as the participation of Hyme Urbina, Oscar Mario Gomez, and Nicholas Urbina. (Trans. Vol. I, pp ) A six (6) person photo lineup was prepared by Deputy Steve Flory, and shown to the victim, who was able to positively identify only Hyme Urbina as a participant in the robbery and burglary. (Trans. Vol. I, p. 177.) Defiance County Sheriff Investigator, Sergeant Cliff Vandemark later arrested Hyme Urbina based upon the foregoing information, and located a knife and wristwatch which had been taken from the victim' home during the robbery in the possession of Hyme Urbina. (Trans. Vol. I, pp ) A "crack pipe" was also found in Hyme Urbina's sock when he was patted down by Major Doug Engel of the Defiance County Sherifl's Office, during his arrest. (Trans. Vol. I., pp. 292, 306.) The pipe was analyzed by the Bureau of Criminal Investigation and Identification and found to contain cocaine. 3

7 STATEMENT OF THE CASE For the offense of ROBBERY, the Defendant was sentenced to a term of imprisonment of eight (8) years; for the offense of BURGLARY, the Defendant was sentenced to a term of imprisonment of eighteen (18) months; these sentences were ordered to be served CONSECUTIVELY to each other, for a total cumulative term of nine (9) years and six (6) months with the Ohio Department of Rehabilitation and Correction at Orient, Ohio. The THEFT offense was determined to be an allied offense of RoBBERY, so no additional sentence was imposed. The sentences were further ordered to be served CONSECUTIVELY to the terms of imprisonment previously imposed by the Defiance County Common Pleas Court in Case Numbers 04 CR 08946, 04 CR and 05 CR for a total aggregate term of imprisonment of nineteen (19) years and eleven (11) months with the Ohio Department of Rehabilitation and Correction at Orient, Ohio. He was given credit for four hundred fifty-four (454) days of incarceration previously served in this case. The trial court further found that the Defendant is one of the worst offenders to come before that Court and that all of the consecutive prison terms were necessary to adequately protect the public and were not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and that consecutive sentences were necessary to protect the public from future crime. He later appealed to the Third District Court of Appeals, and the judgment of the trial court was affirmed on March 10, An attempt to reopen his appeal was denied by the Third District Court of Appeals on March 12,

8 RESPONSE TO APPELLANT'S FIRST ASSIGNMENT OF ERROR: THE THIRD DISTRICT COURT OF APPEALS PROPERLY DENIED THE DEFENDANT-APPELLANT'S MOTION TO REOPEN DIRECT APPEAL. The Defendant, in his Memorandum in Support of Jurisdiction, requests that this Court allow him to reopen the final judgment that was rendered by the Third District Court of Appeals on June 25, 2007, more than one and a half years ago. Appellate Rule 26(B), entitled: APPLICATION FOR RECONSIDERATION; APPLICATION FOR REOPENING, states in pertinent part, that: (1) A defendant in a criminal case may apply for reopening of the appeal from the judgment 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. (2) An application for reopening shall contain all of the following: (a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken; (b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment. (c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation; (d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record; (e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies. Here, the Defendant seeks to reopen an appeal where judgment from this Court was 5

9 rendered on June 25, 2007, more than a year and a half (1'/z) ago, well beyond the ninety (90) day limit set forth above. Therefore, the Defendant can only seek to reopen his appeal upon a showing of good cause for the untimely filing of the application. A defendant was not entitled to reopen appeal to bring claim of ineffectiveness of appellate counsel, absent good cause for failing to file application within 90 days after journalization of Court of Appeals decision affirming conviction. State v. Fautenberry, (1997), 78 Ohio St.3d 320. See also: State v. Whalen, (1996), 74 Ohio St.3d 633; and State v. Wickline, (1996), 74 Ohio St.3d 369. Therefore, as the Defendant has failed to show good cause for the more than eighteen (18) month delay in filing his Motion for Reopening, his Memorandum in Support of Jurisdiction must fail and be denied. In the case sub judice, the Defendant has failed in his Memorandum in Support of Jurisdiction to demonstrate good cause for the untimely filing of his Motion to Reopen Appeal, as he merely argues that the late filing of this Motion was based upon the fact that he was in prison serving sentences, that he was too busy defending himself in numerous other criminal cases for which he was also recently sentenced, that he didn't have the money or resources to file the Motion, and the fact that the law in Ohio on this argued matter has recently changed or been reinterpreted in such a way that it is now to his advantage to file his Motion. Numerous appellate cases have found that these are simply not good enough reasons to justify good cause for the late filing of a Motion for Reopening an Appeal. Therefore, his Memorandum in Support of Jurisdiction should fail. The Eighth District has previously held in State v. Braddy, (2005), 2005 WL , 2005-Ohio-282, No , (81h App. Dist., Cuyahoga Co., Jan 21, 2005), that a defendant's alleged failure to timely obtain adequate funds to pursue reopening an appeal did not constitute 6

10 good cause to waive the 90-day limitations period for filing applications for reopening. In State v. Crayton, (2004), 2004 WL , 2004-Ohio-6293, No , (8`h App. Dist., Cuyahoga Co., Nov. 19, 2004), the Eighth District held that a defendant was not entitled to reopen his untimely appeal, where he failed to establish a showing of good cause for the filing of his application 14 months after the appellate opinion was journalized. See also: State v. Myers, (2004), 102 Ohio St.3d 318. The excuse that defendant and his attorneys were occupied with other appeals was not good cause for missing the ninety-day deadline for an application to reopen an appeal. State v. Gumm, (2004), 103 Ohio St.3d 162, reconsideration denied 104 Ohio St.3d See also: State v. LaMar, (2004) 102 Ohio St.3d 467, reconsideration denied 103 Ohio St.3d 1466, certiorari denied 125 S.Ct Likewise, several cases have found that the inability of a defendant to obtain legal counsel to pursue an application to reopen an appeal and the defendant's own lack of legal expertise were not sufficient reasons to justify good cause for the late filing of such a motion. A defendant's inability to secure representation in the court of appeals for his application for reopening did not provide good cause for defendant's failure to file application within the 90- day deadline. State v. Hoffner, (2007), 112 Ohio St.3d 467. A claim of ineffective assistance of appellate counsel and defendant's alleged lack of legal experience did not provide good cause for missing the 90-day deadline to reopen appeal to the Court of Appeals. State v. LaMar, (2004), 102 Ohio St.3d 467. Again, as the Defendant has failed to show good cause for the 18 month delay in filing his Motion for Reopening, his Memorandum in Support of Jurisdiction must fail and be denied, under strict application of Appellate Rule 26(B). 7

11 Additionally, the doctrine of res judicata would preclude the Defendant from reopening this appeal, as previously held in State v. Mosley, (2005), 2005 WL , 2005-Ohio-4137, No , (8"' App. Dist., Cuyahoga Co., Aug. 8, 2005). In Mosley, the court held that the doctrine of res judicata barred a defendant's application for reopening appeal from conviction based on alleged ineffective assistance of appellate counsel as he did not appeal the court of appeals' decision to the state Supreme Court and, thus, did not raise issue of ineffective assistance of appellate counsel at earliest opportunity. The court further found that the defendant failed to provide the court of appeals in his motion with any reason for not pursuing such further appeal or why the application of res judicata might be unjust. Id. The Defendant's arguments in support of his untimely Motion and this Memorandum in Support of Jurisdiction must also fail, in that State v. Pelfrey, (2007), 112 Ohio St.3d 422, was previously decided by the Ohio Supreme Court on February 7, 2007, and was further clarified by the opinion in State v. Sessler, (2008), 119 Ohio St.3d 9, which was published on July 2, Therefore, the Defendant had amply time to file a Motion for Reopening within ninety (90) days after the ruling in Sessler, but he failed to do so, and has failed to show good cause for even his seven (7) month delay in filing this Motion, except for those excuses mentioned above, which have all been deemed insufficient by numerous other courts of appeals. Therefore, as the Defendant's Motion for Reopening and Memorandum in Support of Jurisdiction fail to show good cause for their untimely filing under Appellate Rule 26(B), they should be overruled/denied. Finally, addressing the Defendant's argument that his prior appellate counsel provided ineffective assistance of counsel, the State advances the following arguments. In State v. Reed, (1996), 74 Ohio St.3d 534, 535, the Ohio Supreme Court held that the two-prong analysis found in Strickland v. Washington, (1984), 466 U.S. 668, is the appropriate 8

12 standard to assess a defense request for reopening under App.R. 26(B). A defendant must prove that his counsel were deficient for failing to raise the issues he now presents, as well as showing that had he presented those claims on appeal, there was a "reasonable probability" that he would have been successful. Id. Thus the defendant bears the burden of establishing that there was a "genuine issue" as to whether he has a "colorable claim" of ineffective assistance of counsel on appeal. Id. See also: State v. Sheppard, (2001), 91 Ohio St.3d 329. Here, the Defendant previously argued in his prior appeal on this case an assignment of error that was substantially similar to the main issue that is presented to this reviewing Court on his Motion for Reopening Direct Appeal, whether all the elements of the offense of RoBBERY, a Felony of the Second Degree. The Defendant previously argued in his former appeal under his First Assignment of Error that: "THE VERDICT OF THE JURY IS INCONSISTENT IN FINDING DEFENDANT-APPELLANT GUILTY OF ROBBERY AND GUILTY OF BURGLARY INSTEAD OF AGGRAVATED BURGLARY." So, his prior counsel did effectively raise the same argument now raised by his current counsel. Therefore, his Memorandum in Support of Jurisdiction should be denied, as his original appellate counsel was not ineffective. Furthermore, the Defendant's current counsel argues that the former appellate counsel was ineffective for failing to present an argument relating to Sessler, even though that decision was not released by the Supreme Court until a week after this Defendant's original appeal was published by this District. Current counsel for the Defendant also argues that the case of State v. Li on, (2008), 2008 WL , Ohio- 6085, No , (3`d App. Dist., Defiance Co., Nov. 24, 2008), should have been raised by former counsel, when that case was decided almost six (6) months after the initial appeal herein. Former counsel simply cannot be held or even 9

13 argued to have provided ineffective assistance of counsel for failing to raise arguments that arose from cases that were decided after final judgment in this case. In conclusion, the State adamantly objects to the Defendant's Memorandum in Support of Jurisdiction, as the Defendant has failed to comport with the requirements of Appellate Rule 26(B) since he has failed to demonstrate good cause for the 18 month delay in filing his Motion to Reopen Direct Appeal, which was properly denied by the Third District Court of Appeals. Therefore, this Court should conclude that the Defendant's Memorandum in Support of Jurisdiction should be overruled/denied. Wherefore, the State respectfully requests that this honorable Court not grant jurisdiction over this case for the reasons outlined above. 10

14 CONCLUSION Based upon the foregoing, the State respectfully requests that this honorable Court find that this case is not a case of public or great general interest and does not involve a substantial constitutional question. The Defendant seeks this Court to Reopen an Appeal that the Third District Court of Appeals previously rendered final judgment on more than one and a half years ago (June 25, 2007). Appellate Rule 26(B) requires that any Motions to Reopen Appeals be filed within ninety (90) days of final judgment, or upon showing of good cause for untimely filing. Here, the Defendant has failed to show good cause for his untimely filing herein, therefore, his Motion to Reopen Direct Appeal was properly denied by the Third District Court of Appeals. Based upon that former decision, the Defendant's Memorandum in Support of Jurisdiction should similarly be denied. Wherefore, the State respectfully requests that this Court not grant jurisdiction over this case for the reasons outlined above. RESPECTFULLY SUBMITTED, RAY (# ) efi ounty, Ohio Pro uting Attorney 607 West Third Street Defiance, Ohio (419) ATTORNEY FOR APPELLEE RUS+SELL R. HERMAN (#00^709) Defiance County, Ohio Assistant Prosecuting Attorney 607 West Third Street Defiance, Ohio (419) 782/2402 ATTORNEYFOR APPELLEE 11

15 CERTIFICATION OF SERVICE The undersigned hereby certifies that a copy of the foregoing MEMORANDUM IN OPPOSITION TO CLAIMED JURISDICTION of the State-Appellee was sent via ordinary U.S. Mail to: Kenneth J. Rexford: 112 North West Street, Lima, Ohio 45801, Attorney for Defendant-Appellant Hyme Urbina, this 29`" day of April, ^ VIo Av (# ) fi ounty, Ohio Pr iting Attnrnev RUSSELL. ERMAN (#00687 ) Defiance County, Ohio Assistant Prosecuting Attorney 12