14 ^^ IN THE SUPREME COURT OF OHIO STATE OF OHIO, V. Appellee, On appeal from the Clermont County Court of Appeals, Twelfth Appellate District Supreme Court No. 2013-0540 JAMIE LEE NAEGELE, Court of Appeals Case No. 2012CA07055 Appellant. MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION Jamie Lee Naegele Inmate No. 457-454 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43302 Appellant, Pro Se pa APR 16 2013 D D. Vincent Faris (0001163) Clermont County Prosecutor Judith Brant (0066243) 76 S. Riverside Dr., 2nd floor Batavia, Ohio 45103 Phone: (513)732-7313 Fax: (513)732-7592 ibrant@clermontcountyohio.gov Counsel for Appellee State of Ohio su CLERK OF COURT REIVIE COURT OF OHIO rs APR 1 2013 Lr^^^ ^^* ^a^.:,e^ ^LIMItML coufii JF onio
TABLE OF CONTENTS STATEMENT OF APPELLEE'S POSITION...1 STATEMENT OF THE CASE...1 ARG U M E NT...1 Proposition of Law I: Did the Trial Court error (sic) in not advising of the right to appeal pursuant to Ohio Criminal Rule 32(B)?... 1 Proposition of Law II: Did the Trial Court error (sic) when convicting of charges that were to be merged as allied offenses of similar import pursuant to O.R.C. 2941.25 without a hearing?...2 Proposition of Law III: Did the Trial Court error (sic) by not allowing a fair and full considerate hearing on motion to vacate and set aside sentence?...2 CONCLUSION...2 CERTIFICATE,OF SERVICE.:...3 TABLE OF CASES State v. Becker, 2002-Ohio-5509 (Ohio App. 12 Dist., 2002)...2 State v. Jackson, 2012-Ohio-993 (Ohio App. 12 Dist., 2012)... 2 12 th Dist. No. CA92-06-068, 1993 WL 38146 (1993)...1 84 Ohio St.3d 19, 701 N.E.2d 693 (1998)...1 (Ohio App. 12 Dist., Dec., 2012)...1 i
STATEMENT OF APPELLEE'S POSITION THIS COURT SHOULD NOT GRANT APPELLANT LEAVE TO FILE A DISCRETIONARY APPEAL IN THIS FELONY CASE. THIS CASE DOES NOT INVOLVE PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION. Appellant seeks to appeal to the Supreme Court the judgment of the Twelfth District Court of Appeal's affirmation of the denial of his claim for post-conviction relief in the trial court. He should not be granted leave to file the appeal. STATEMENT OF THE CASE Appellant Naegele was convicted of rape and kidnapping following a trial by jury. (T.d. 54). He appealed his conviction, which was affirmed by the Court of Appeals. 12 th Dist. No. CA92-06-068, 1993 WL 38146 (1993). In 1996, he petitioned for post-conviction relief. (T.d. 69). The petition was overruled. (T.d. 73). He was found to be a sexual offender. (T.d. 77). The finding was affirmed on appeal to the Supreme Court of Ohio. 84 Ohio St.3d 19, 701 N.E.2d 693 (1998). On May 31, 2012, Appellant filed a "motion to vacate and void sentence" in the Clermont County Court of Common Pleas. (T.d. 90). The motion was considered a successive petition for post-conviction relief and denied for want of jurisdiction. (T.d. 92). The 12th District Court of Appeals affirmed the judgment. State v. Jamie L. Naegele, (Ohio App. 12 Dist., Dec., 2012). ARGUMENT Proposition of Law I: The Trial Court Failed to Advise Appellant of his Right to Appeal. This proposition lacks merit and there is no reversible error because Appellant did actually appeal his original conviction. State v. Jamie L. Naegele, (Ohio App. 12 Dist., Dec., 2012). 1.
Proposition of Law II: The Trial Court Failed to Merge Appellant's Convictions for Kidnapping and Rape. Appellant failed to raise the issue of merger and allied offenses in his direct appeal, and is now barred by resjudicata. Naegele, supra; State v. Jackson, 2012-Ohio-993 (Ohio App. 12 Dist., 2012). Proposition of Law III: The Trial Court Erred in Not Conducting A Hearing on the Motion to Vacate and Set Aside Sentence. The trial court was not required to conduct such a hearing. Naegele, supra; State v. Becker, 2002-Ohio-5509 (Ohio App. 12 Dist., 2002). CONCLUSION Appellant asks the court to accept his discretionary appeal. The State requests the Court deny review. Respectfully submitted, D. Vincent Faris (0001163) Clermont County Prosecutor JuBrant (0066243) 76 S. Riverside Dr., 2nd floor Batavia, Ohio 45103 Phone: (513)732-7313 Fax: (513)732-7592 'brant c{ermontcount ohio. ov Counsel for Appeilee STATE OF OHIO 2.
CERTIFICATION OF SERVICE I HEREBY CERTIFY THAT A COPY OF THIS RESPONSE WAS DELIVERED TO THE FOLLOWING PERSON BY REGULAR U.S. MAIL ON THIS DAY OF APRIL, 2013. Jamie Lee Naegele #457-454 Marion Correctional Camp P.O. Box 57 Marion, Ohio 43301-0057 Appellant, Pro Se Ju i Brant (0066243) Clermont County, Ohio 3.