No. 05AP-193. | Ohio Ct. App. | Sep 28, 2006
{¶ 2} Appellant's charges arose out of break-ins at the Patient Care Medical Services offices and the Columbus Speech and Hearing Center in August 2003. On September 26, 2003, the Franklin County Grand Jury indicted appellant on four counts arising out of the two break-ins. Counts 1 and 2 of the indictment charged appellant with breaking and entering and possession of criminal tools arising out of the break-in at the Columbus Speech and Hearing Center, whereas Counts 3 and 4 (as amended) charged appellant with burglary and possession of criminal tools arising out of the break-in at Patient Care Medical Services. At trial, plaintiff-appellee, the State of Ohio, moved to dismiss Count 4. Appellant entered a no contest plea to Count 1, and a jury found appellant guilty on Counts 3 and 4. Appellant appealed his convictions and, on December 25, 2005, we affirmed.
{¶ 3} App.R. 26(B) permits applications for reopening an appeal from a judgment of conviction and sentence based on a claim of ineffective assistance of appellate counsel. An application for reopening must set forth "[o]ne 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[.]" App.R. 26(B)(2)(c). The application "shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5). Because we conclude that appellant fails to demonstrate a genuine issue as to whether he was deprived of effective assistance of appellate counsel, we deny his application to reopen.
{¶ 4} The two-pronged analysis set forth in Strickland v.Washington (1984),
{¶ 5} An appellate attorney's performance was deficient if it was unreasonable under prevailing professional norms.Strickland at 688. Appellate counsel need not raise every non-frivolous issue; counsel may limit the arguments raised in order to focus on issues most likely to be successful. State v.Caulley, Franklin App. No. 97AP-1590, 2002-Ohio-7039, at ¶ 4, citing Jones v. Barnes (1983),
{¶ 6} In his application for reopening, appellant proposes four assignments of error:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, IN OVERRULING APPELLANT[']S PRETRIAL MOTION FOR AN INVESTIGATOR. SAID ERROR OF THE COURT VIOLATED ARTICLE
[2.] APPELLANT WAS DEPRIVED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE LOWER LEVEL IN VIOLATION OF THE
[3.] THE TRIAL COURT ABUSED ITS DISCRETION TO THE [PREJUDICE] OF THE APPELLANT, IN OVERRULING APPELLANT'S MOTION TO SUPPRESS WITHOUT A HEARING. SAID ERROR OF THE LOWER COURT VIOLATED APPELLANT['S] RIGHT TO DUE PROCESS OF LAW[.]
[4.] OHIO REVISED CODE SECTION
{¶ 7} Because they both deal with alleged error premised on the trial court's denial of pre-trial motions, we address appellant's first and third assignments of error together. In his first proposed assignment of error, appellant contends that appellate counsel was ineffective for failing to raise as error the trial court's denial of his motion for an investigator. In his third proposed assignment of error, appellant contends that appellate counsel was ineffective for failing to raise as error the trial court's denial of his motion to suppress evidence without first conducting a suppression hearing. Appellant acted pro se in filing his motion for an investigator and motion to suppress, despite the fact that he was represented by counsel.
{¶ 8} On November 8, 2004, the prosecutor informed the trial court of appellant's pending pro se motions, noting that the state had not responded to those motions because they were not filed by appellant's counsel. Appellant's counsel addressed the pending motions, stating:
* * * I did not file these motions, and for my own reasons I disagree with the filing of these motions. I had discussed that with Mr. Davis. As the Court is aware, oftentimes even if he were another attorney sitting here we would have disagreements in terms of how to proceed. He has filed a motion to test the evidence at the State expense, which presumably he wants to test the fingerprint.
He has filed a motion for physical examination of the evidence. That is always done anyway, so I don't know that that requires a ruling.
And he's also requested a motion for a private investigator. The discovery in this case is not even — I don't even think it's 50 pages, and most of which does not pertain to the actual evidence that will be presented. And so I don't feel that there is a need for an investigator.
(Nov. 8, 2004 Tr. at 6-7.) Despite the fact that appellant's trial counsel disagreed with the pending pro se motions, the trial court afforded appellant the opportunity to argue in support of his motions: "Mr. Davis, if you want to be heard on those motions I will listen to what you have to say, but you have got a lawyer who represents you and that is who is representing you, and that is who is filing the motions as far as I'm concerned." Id. at 7.
{¶ 9} Appellant took advantage of the opportunity to address the trial court regarding his pro se motions. He stated that he filed a motion for an investigator to "find out exactly what happened" with respect to the possession of criminal tools charges: "I wanted to know what [the tool] was used for." Id. at 8-9. Additionally, appellant wanted an investigator to ascertain facts regarding appellant's assertion that he was in Georgia on one of the alleged offense dates. Although appellant also briefly addressed his motion to test the fingerprint evidence, he did not address his motion to suppress. After listening to appellant's arguments, counsel's statement that she disagreed with the pro se motions, and counsel's professional opinion that no investigator was necessary, the trial court summarily denied each of appellant's pro se motions. Appellant presently argues that his appellate counsel was deficient in failing to raise assignments of error premised on the trial court's denial of his motions for an investigator and to suppress evidence.
{¶ 10} In Ohio, "a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously." State v. Martin,
{¶ 11} At trial on February 2, 2005, while voir dire was in progress, appellant indicated to the trial court that he wished to proceed pro se and, after lengthy questioning, the trial court allowed appellant to represent himself, with defense counsel remaining at the counsel table in an advisory role. However, on April 30, 2004 and October 18, 2004, when appellant filed his pro se motions, appellant was represented by counsel. At the November 8, 2004 hearing, when he argued in support of his pro se motions and the trial court denied such motions, appellant was represented by counsel. At no time during the November 8, 2004 hearing did appellant indicate a desire to proceed pro se, despite his counsel's disagreement with the pro se motions. Thus, the potential issue that troubled the Ohio Supreme Court inMartin came to pass here, where appellant and his counsel disagreed on the necessity for the motions appellant ultimately filed on his own behalf.
{¶ 12} This court has held that, where a defendant who is represented by counsel files pro se motions and there is no indication that defense counsel joins in those motions or indicates a need for the relief sought by the defendant pro se, such motions are not proper and the trial court may strike them from the record. State v. Walker (Aug. 16, 1988), Franklin App. No. 87AP-863; see, also, State v. Haines, Franklin App. No. 05AP-55,
{¶ 13} Even if appellant was entitled to file his pro se motion for appointment of an investigator, we find no abuse of discretion in the trial court's denial of that motion. A trial court has broad discretion to grant or deny an indigent defendant's motion for the appointment of an expert witness or a state-funded investigator in a non-capital case, and we review the trial court's decision to grant or deny such appointment for abuse of discretion. State v. Blankenship (1995),
{¶ 14} A defendant seeking court-appointed investigative assistance bears the burden of establishing the reasonableness of his request and must, at a minimum, establish some particularized need for the services of an investigator. Blankenship at 551. Appellant's vague arguments to the trial court did not establish a particularized need for an investigator. Given appellant's counsel's statement that an investigator was not necessary, the record does not demonstrate that the trial court abused its broad discretion by denying appellant's motion. Accordingly, we do not find that appellate counsel was deficient in failing to raise such denial as error.
{¶ 15} Likewise, even if appellant was entitled to file his pro se motion to suppress, we conclude that appellate counsel's failure to assign the trial court's denial of that motion as error does not rise to the level of ineffective assistance. "In order to require a hearing on a motion to suppress evidence, the accused must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided." State v. Shindler (1994),
{¶ 16} In his motion to suppress, appellant requests suppression of "any, and all, oral statements made by defendant in violation of the
{¶ 17} In his motion to suppress, appellant neither identifies a specific statement allegedly obtained in violation of the
{¶ 18} In his second proposed assignment of error, appellant argues that he was denied effective assistance of trial counsel based on counsel's alleged failure to investigate. Specifically, appellant claims that his trial counsel failed to identify a worker on duty at the time and site of one of the alleged break-ins. At trial, after requesting to proceed pro se, appellant asked his counsel if he had subpoenaed the two or three witnesses that appellant told his counsel about the previous day. Appellant's counsel responded that, the previous day, appellant identified as a potential witness a "Hispanic maintenance man," but did not provide the witness' name. Appellant's counsel went on to state: "I have no way of verifying or even identifying who this individual is." (Feb. 1, 2005 Tr. at 31.) Presently, appellant argues that his trial counsel's failure to investigate the identity of this individual rendered his performance deficient and prejudiced appellant. Therefore, appellant contends that his appellate counsel was deficient in failing to raise an assignment of error based on ineffective assistance of trial counsel.
{¶ 19} When allegations of ineffective assistance of counsel hinge on facts not appearing in the record, the proper remedy is a petition for post-conviction relief rather than a direct appeal. State v. Cooperrider (1983),
{¶ 20} Lastly, in his fourth proposed assignment of error, appellant argues that appellate counsel was deficient in failing to argue that R.C.
{¶ 21} R.C.
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense[.]
As amended, Count 3 of appellant's indictment reads:
The Jurors of the Grand Jury of the State of Ohio * * * find and present that Anthony S. Davis * * * on or about [August 22, 2003,] * * * in violation of section
Although the indictment tracks the language of the statute, appellant argues that his indictment was defective because it failed to specify the "criminal offense" that he allegedly intended to commit.
{¶ 22} Appellant did not object to the sufficiency of his indictment before trial or at trial and has now raised such an issue for the first time before this court. Crim.R. 12(B)(2) requires that objections to an indictment be brought before trial. Where an appellant has not objected to an allegedly flawed indictment before trial, the appellant waives any argument other than plain error concerning the validity of the indictment.State v. Frazier (1995),
{¶ 23} Although appellant argues that a burglary indictment must identify the criminal offense the defendant allegedly intended to commit, the Ohio Supreme Court has rejected a similar argument. See State v. Foust,
No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense * * *.
Like burglary under R.C.
{¶ 24} We reach the same determination with respect to an indictment for burglary under R.C.
{¶ 25} Based on the foregoing, appellant's proposed assignments of error are not well-taken, and we conclude that appellant has failed to meet his burden to demonstrate that there is a genuine issue as to whether he was deprived effective assistance of appellate counsel. Consequently, we deny appellant's application to reopen.
Application to reopen denied.
Klatt, P.J., and Sadler, J., concur.