2013 Ohio 3803
Ohio Ct. App.2013Background
- Darin Brusiter pleaded guilty pursuant to a plea agreement to aggravated murder (with a three-year firearm spec. and a felony-murder spec.), kidnapping (with a three-year firearm spec.), insurance fraud, and tampering with evidence.
- The plea agreement fixed a 33-years-to-life sentence and included a stipulation that the murder and kidnapping charges would not merge as allied offenses; the kidnapping sentence would run concurrently with the murder sentence.
- The grand jury had originally charged multiple counts including two aggravated-murder counts, kidnapping, and firearm specifications; facts show Brusiter shot Samuel Wilson’s wife at Wilson’s direction as part of an insurance-for-hire scheme.
- On direct appeal, counsel argued suppression error for a confession; this court affirmed because the guilty plea waived suppression-related errors.
- Brusiter filed an App.R. 26(B) application asserting appellate counsel was ineffective for failing to argue that aggravated murder and kidnapping were allied offenses.
- The state opposed reopening; the court denied the application because the allied-offense argument contradicted the parties’ stipulation in the plea agreement and thus lacked a record basis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not arguing that aggravated murder and kidnapping are allied offenses | Appellee (State) argued the plea included a stipulation that the offenses would not merge, so there was no viable allied-offense claim to raise | Brusiter argued appellate counsel should have raised that murder and kidnapping were allied offenses and should have merged | Denied — counsel reasonably declined to raise an argument contradicted by the plea stipulation; no basis in the record for reopening under App.R. 26(B) |
Key Cases Cited
- State v. Murnahan, 63 Ohio St.3d 60 (1992) (governs reopening of appeals under App.R. 26(B))
- Jones v. Barnes, 463 U.S. 745 (1983) (counsel may decline meritless or unsupported appellate arguments as part of professional judgment)
- State v. Allen, 77 Ohio St.3d 172 (1996) (same principle regarding appellate counsel’s exercise of judgment in selecting issues)