IN THE SUPREME COURT OF OHIO STATE OF OHIO, Appellee, 12-0-8 4:9. On Appeal from the Hamilton County Court of Appeals First Appellate District VS. Court of Appeals William Dunn,. Case No. C-100053 Appellant. NOTICE OF APPEAL OF APPELLANT WILLIAM DUNN William Dunn #548-285 Lebanon Correctional Institution Post Office Box 56 Lebanon, Ohio 45036 11V PROJE Joseph Deters (#0012084) Hamilton County Prosecutor 230 East Ninth Street, Suite 400 Cincinnati Ohio 45202 513-946-3000 513-946-3017 (fax) COUNSEL FOR APPELLEE, = MAY 0 9 20i2 CLERK FC URT SUPREME COURT OF OHIO F L ^P MAY 00 20i2 CLERK OF COURT SUPREME COURT OF OHIO
Notice of Appeal of Appellant William Dunn Appellant William Dunn, hereby gives notices of appeal to the Supreme Court of Ohio from the judgment of the Hamilton County Court of Appeals, First Appellate District, entered in the Court of Appeals Case No. C-100053 on June 9, 2011. This case raises a substantial constitutional question an is one of public or great general interest. Moreover It involves a felony. Respectfully Submitted, 1^^ William Dunn #548-285 Certificate of Service I hereby certify that this notice of appeal was sent by ordinary mail to counsel for the appellee, at the Hamilton County Prosecutor's Office, 230 East Ninth Street, Suite 400, Cincinnati Ohio 45202, this Y"r' day of Waw 2012. illiam Dunn # 548-285 Lebanon Correctional Inst. Post Office Box 56 Lebanon, Ohio 45036
IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee, CASE NO. On appeal from the Hamilton County Court of Appeals, First Appellate VS. District William Dunn Court of Appeals Case No.C-100053 Defendant-Appellant MOTION FOR LEAVE TO FILE DELAYED APPEAL OF APPELLANT WILLIAM DUNN WILLIAM C DUNN-#548-285 Lebanon Correctional Institution Post Office Box 56 Lebanon, Ohio 45036 Pro Se, Joseph Deters (#0012084) Hamilton County Prosecutor 230 East Ninth Street, Suite 400 Cincinnati, Ohio 45202 513-946-3000 513-946-3017 (fax) COUNSEL FOR APPELLEE
IN THE SUPREME COURT OF OHIO STATE OF OHIO CASE NO. Plaintiff-Appellee, On appeal from the Hamilton County VS. District Court of Appeals, First Appellate William Dunn Court of Appeals Case No.C-100053 Defendant-Appellant MOTION FOR LEAVE TO FILE DELAYED APPEAL OF APPELLANT WILLIAM DUNN I, William Dunn (#548-285), respectfully moves this court for leave to file a delayed appeal pursuant to S,Ct.Prac.R II (2) (A) (4) (a). I placed a timely notice of appeal in the mailbox to be filed with the Ohio Supreme Court on July 20, 2011, giving Lebanon Correctional Institution five days to place postage on said brief and get it to the clerk of courts. However, for some reason according to the Ohio Supreme Court clerk of courts they did not receive my brief until July 29, 2011, causing it to four days late as it was due on July 25, 2011, and therefore it couid not i cy oeiilc _ d.1.... ^W uuv t1^._^.a =uc F 4that j4 ^xra c nn4imp.w. --^ I was informed on August 9, 2011, as to what has transpired in a letter sent to me from the Ohio Supreme Court, Clerk of Courts dated 8/2/2011 (it took seven days to receive my legal mail from the clerk of courts). From my understanding a new mail room clerk was being trained at the time and this was the cause for my mail going out late, as well as taking seven days to get to me once it made it to the prison. In both cases I had no control what so ever. In August of 2011, the Law-Library here at Lebanon Correctional Institution got rid of all the Law books in order to create more room in the library. The books where replaced with six computers with a direct link to West-Law. However, with a population count of 2700 inmate's six computers are not enough. Moreover, due to the population count an inmate here a Lebanon Correctional Institution can only get in the Law-Library twice a month for two hours per visit, and as of 1/1/2012, this prison has started a new "13-4, Lock-Down Program," which the Law-Library you have to be one of the first six men in
the door or you will not even get a computer. In short, an inmate can only get four hours a month (at best) in the Law-Library, and then he can only pray that he can get a computer or the four hours he does get would be in vain. CONCLUSION For all the fore mentioned reasons I ask as humbly as I know how delayed appeal. IT IS SO PRAYED. that hear this Respectfully Submitted, William Dunn #548-285 Lebanon Correctional Inst. P.O. Box 56 Lebanon, Ohio 45036 Pro Se,
IN THE SUPREME COURT OF OHIO STATE OF OHIO CASE NO. Plaintiff-Appellee, On appeal from the Hamilton County VS_ District Court of Appeals, First Appellate William Dunn Court of Appeals Case No.C-100053 Defendant-Appellant AFFIDAVIT OF APPELLANT WILLIAM DUNN I, William Dunn, swear that the following is true: I placed a timely notice of appeal in the mailbox to be sent to, and filed with the Ohio Supreme Court on July 20, 2011. However, I later learned that there was a new trainee in the mail room of the prison which caused my legal mail to be sent out late, and was unable to be filed in a timely manner with this Court. I was informed by the Ohio Supreme Court, Clerk of Court that my brief was: r,-i L_.uo,;.e;,Pr rhe tetrer from the Clerk of Court was Received DAt nu`l 111GU vy vo, U.S.» dated 8/2/2011, yet I did not receive it until 8/9/2011 (seven days later, and I know it didn't take a week to reach me) I can only assume that the new trainee here at the institution was to blame. But it is consistent with the time frame of the out going mail. Furthermore, there are 2,700 inmates here at Lebanon Corr. Inst. And only six computers in the Law-Library so if you not one of the first six men in the library you can't even use the law-library (FYI Lebanon Corr Inst. has removed all their law books and only use of computers as of August 2011). Moreover, an inmate can only get two passes a month, at two hours each to use the Law Library and if you can't get a computer your simply out of luck, causing it to take months to perfect an appeal.
IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee, CASE NO. On appeal from the Hamilton County Court of Appeals, First Appellate V S. District William Dunn Court of Appeals Case No.C-100053 Defendant-Appellant AFFIDAVIT OF APPELLANT WILLIAM DUNN Lebanon Correctional Institution has started a new "B-4," Lock-Down program which makes it even more difficult to get to the Law-Library, and I can only do what I am allowed to do with in the guidelines of the prison. Still it was the combination of all of these things that caused my Notice of Appeal to be untimely. Respectfully Submitted, iam Dunn #548-285 Pro Se, Sworn to and subscribed in my presence this&^l day BII.LY DEE EA1t,EY ivotap,y PUt3i_iC ^ STATE OF OHIO Recorded in f3ut3er County My oommission expires Mar. 27, 2015
IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, VS. Case No. William Dunn, Defendant-Appellant. AFFIDAVIT OF INDIGENCY I, William Dunn (#548-285), do nearby state that I am without the necessary funds to pay the cost of this action for the following reasons: I am currently incarcerated at Lebanon Correctional Institution, and have been incarcerated since April 25, 2007. I do not work at the prison and therefore I only receive $ 9.00 dollars per month. Pursuant to Rule VX, Section 3, of the Rules of Practice of the Supreme Court of Ohio, I am requesting that the filing fee and security deposit, if applicable be waived. S^yf 2(- $- William Dunn #548-285, Pro Se,. Sworn to and subscribed in my presence this JYJ day of 2012. BILLY DEE BAILEY NOTARY puplpc m STATE OF OHIO Recorded in Butler County My corr mission expires Mar. 27, 2015
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO,. APPEAL NO. C-100053 TRIAL NO. B-0606 8 12- E Plaintiff-Appellee; vs. WILLIAM DUNN, Defendant-Appellant. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.' In January 2010, defendant-appellant William Dunn was sentenced to an aggregate term of 14 years' incarceration for two trafficking-in-cocaine charges, one ofwhich included a major-drug-offender specification. Dunn originally pleaded guilty to these charges in 2007, along with one count ofconspiracy and two counts of possession of cocaine (one of which also contained a major-drug-offender specification). The conspiracy count and the two possession-of-cocaine counts were merged into the trafficking counts for the purpose of sentencing. Dunn has appealed the convictions, asserting two assignments of error: In his first assignment of error, Dunn argues that the trial court erred when it overruled his motion to withdraw the guilty plea. A presentence motion to withdraw a guilty plea should be "freely and liberally" granted.2 But a defendant does not have an absolute right to withdraw a 1 See S.Ct.RRep.Op. 3(A), App.R. u.i(e), and Loc.R. 12. 2 State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715.
OHIO FIRST DISTRICT COURT OF APPEALS guilty plea prior to sentencing.3 Where a defendant seeks to withdraw his guilty plea, a trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.4 The decision to grant or deny a motion to withdraw a guilty plea prior to sentencing is within the sound discretion of the trial court.5 In determining whether the trial court properly exercised its discretion in denying a defendant'smotion to withdraw his guilty plea, a reviewing court should consider multiple factors,including but not limited to (i) whether the defendant was represented by highly competent counsel; (2) whether the defendant was afforded a complete Crim.R. u hearing before entering the plea; (3) whether thetrial court conducted a full and impartial hearing on the motion to withdraw the plea; (4) whether the trialcourt gave full and fair consideration to the motion; (5) whether the motion was made within a reasonable time; (6) whether the motion set out specific reasons for the withdrawal; (7) whether the defendant understood the nature of the charges and the possible penalties; (8) whether the defendant was possibly not guilty of thecharges or had a complete defense tothe charges; and (9) whether the state would have been prejudiced -by thwithdrawal of the piea. We have twice before upheld Dunn's convictions.7 And after reviewing the record and considering the foregoing factors, we cannot say that the trial court abused its discretion when it overruled Dunn's motion to withdraw his guilty plea. 3 Id., paragraph one of the syllabus. 4 Id. 5 Id., paragra h two of the syllabus. 6 State v. Je}fierson, 1st Dist. No. C-o2o802, 2003-Ohio-4308, 7, citing State v. Fish (1995), 104 Ohio App.3d 236, 661 N.E.2d 788. 7 State v. Dunn (May 21, 2oo8), ist Dist. No. C-o7o357, appeal not accepted for review, 119 Ohio St.3d 1502, 2008-Obio-5467, 895 N.E.2d 565; State v. Dunn (Apr. 15, 2009), 1st Dist. No. C- o80549 2
OHIo FIRST DISTRICT COURT OF APPEALS At the time Dunn made his motion, the court afforded him a hearing pursuant to Crim.R. 32.1. Dunn had highly competent counsel when he entered his plea, he was afforded a complete Crim.R. u hearing prior to entering the plea, and he understood the nature of the charges and the possible penalties. And because the underlying crimes took place in 20a6, thestate would have been prejudiced in attempting to prosecute the case four years later. Accordingly, we overrule Dunn's first assignment of error. In his second assignment of error, Dunn argues that the trial court abused its discretion in imposing his sentence. Specifically, Dunn asserts that the sentence he received was excessive when compared to the sentences received by his similarly situated codefendants. He also argues that the United States Supreme Court's decision in Oregon u. Ice$ has effectively overruled the Ohio Supreme Court's decision in Stateu. Foster,9 and that the trial court was therefore obligated to make specific factual findings before it imposed consecutiveterms of incarceration in this case. When reviewing a felony sentence post-foster, an appellate court must follow a two-step process. First, the court must examine thetrial court's "compliance with all applicable rules and statutes in imposingthe sentence to determine whether the sentence isr clearly and convincingly contrary to law."' If the sentence is not contrary to law, the sentence is then examined under the abuse-of-discretion standard.11 "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."12 8(2009), 555 U.S. 16o,129 S.Ct. 711. 9 109 Ohio St.3d 1, 20o6-Ohio-856, 845 N.E.2d 470. 1O State u. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at 926. id. 12 Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 45o N.E.2d 1140. 3
OHIO FIRST DISTRICT COURT OF APPEALS In this case, Dunn's terms of confinement were within the applicable statutory ranges, so we cannot say that the trial court's sentence was contrary to law, and there is nothing imthe record to indicate that the court abused its discretion. During the sentencing hearing, the court considered Dunn's previously discussed arguments and afforded him the opportunity to speak. And because the Ohio Supreme Court has not directly addressed the effect of Oregon v. Ice on Ohio's sentencing laws, we remain bound by theohio Supreme Court's decision in Foster:zs For these reasons, we overrule Dunn's second assignment of error. We find no merit to Dunn's two assignments of error, and we affirm the judgment of the trial court. A certified copy of this judgment entry is the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. CUNNINGHAM, P.J., SUNDERMANN and MALLORY, JJ. To the Clerk: Enter upon the Journal of the Court on December 3, 2010 per order of the Court_ Presiding Judge 13 See State v. McCrary, 1st Dist. No. C-o8o86o, 2oo9-Ohio-4390, 35 accord State v. Long, 1st Dist. Nos. C-o9o248 and C-o9o249, 2oio-Ohio-io62, 36. 4