STATE OF OHIO v. EARL L. CHARITY, III

{¶2} An application to reopen an appeal must be filed “within ninety days from

journalization of the appellate judgment unless the applicant shows good cause for filing

at a later time.” App.R. 26(B). Our judgment in this case was filed on December 11,

2019. Appellant filed this application on March 4, 2020. Thus, it is timely.

{¶3} Ineffective assistance of appellate counsel is the basis for an application

to reopen an appeal. App.R. 26(B)(1). When considering an application for reopening

pursuant to App.R. 26(B), we must first determine, based upon appellant's application,

affidavits, and portions of the record before us, whether appellant has set forth a colorable

claim of ineffective assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist.

Franklin No. 89AP-655, 1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d

91, 623 N.E.2d 146 (10th Dist.1993). In order to show ineffective assistance of appellate

counsel, appellant must prove that his counsel was deficient for failing to raise the issues

he now presents and that there was a reasonable probability of success had he presented

those claims on appeal. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d

700, ¶ 5, (explaining that the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984), test is used to determine if appellate counsel was ineffective).

{¶4} Appellant asserts his appellate counsel was ineffective for failing to raise

three assignments of error.

{¶5} First, appellant claims his appellate counsel was ineffective for failing to

assert:

APPELLATE COUNSEL WAS CONSTITUTIONALLY

INEFFECTIVE FOR FAILING TO ASSIGN AS ERROR, TRIAL

COUNSEL’S INEFFECTIVENESS AS DEFENSE COUNSEL FAILED TO

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FULFILL HIS ADVERSARIAL ROLE TO THE STATE’S CASE DURING

THE PLEA NEGOTIATION PROCESS AND PREPARATION FOR TRIAL.

{¶6} Appellant contends that his appellate counsel should have argued that his

trial counsel was ineffective for three reasons. First, appellant argues that his trial counsel

was ineffective for not filing a motion to dismiss the charges. Second, appellant argues

that his trial counsel was ineffective for not filing a motion to suppress the firearms and

machete found at the scene of the murder. Third, appellant argues that his trial counsel

was ineffective for not personally investigating the scene of the murder or attempting to

find other witnesses.

{¶7} Addressing appellant’s motion to dismiss argument, motions to dismiss

are governed by Crim.R. 12(C). Pursuant to the rule, “any party may raise by motion any

defense, objection, evidentiary issue, or request that is capable of determination without

the trial of the general issue.” Appellant argues that his indictment should have been

dismissed because an autopsy and ballistics report was not completed until two months

after he was indicted.

{¶8} A motion to dismiss an indictment on non-constitutional grounds looks at

whether “the charging instrument was adequate on its face[.]” See State v. Owens, 6th

Dist. Lucas No. L-16-1218, 2017-Ohio-2909, ¶ 16 quoting Vermillion v. Meinke, 6th Dist.

Erie No. E-12-037, 2013-Ohio-2250. Because there is no indication the indictment was

inadequate on its face, appellant’s counsel was not deficient for failing to raise this

argument.

{¶9} Addressing appellant’s motion to suppress argument, a motion to

suppress is a “[d]evice used to eliminate from the trial of a criminal case evidence which

has been secured illegally,” generally in violation of constitutional rights. State v. French,

72 Ohio St.3d 446, 449, 65 N.E.2d 887 (1995) quoting Black’s Law Dictionary (6 Ed.1990)

1014. Appellant makes no showing that the firearms and machete in his case were

obtained in violation of his constitutional rights. He only argues that the firearms and

machete should have been suppressed because no DNA evidence connected him to

those items. Because appellant makes no argument that the firearms and machete were

obtained in violation of his constitutional rights, his appellate counsel was not deficient for

failing to raise this argument.

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{¶10} Addressing appellant’s investigation argument, appellant argues that his

trial counsel was ineffective because, despite having the keys to the building where the

murder occurred, his trial counsel did not inspect the building nor did trial counsel attempt

to interview potential witnesses. We note that the record has no indication of what pretrial

investigation appellant’s trial counsel conducted. Courts should not “infer a defense

failure to investigate from a silent record.” State v. Thompson, 141 Ohio St.3d 254, 2014-

Ohio-4751, 23 N.E.3d 1096, ¶ 247 quoting State v. Ware, 118 Ohio St.3d 448, 2008-

Ohio-2762, 890 N.E.2d 263.

{¶11} Thus, appellant has not demonstrated that his appellate counsel was

ineffective for failing to raise an issue of ineffective assistance of trial counsel.

{¶12} Second, appellant claims his appellate counsel was ineffective for failing to

assert:

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO

ASSIGN AS ERROR THE TRIAL COURT’S DENIAL OF CHARITY’S

RIGHT TO APPEAL, RIGHT TO APPELLATE COUNSEL AND THE

RECORD AT STATE’S EXPENSE WHERE THE TRIAL COURT DID NOT

ADVISE CHARITY OF THE FUNDAMENTAL RIGHT TO APPEAL IN

VIOLATION OF THE SIXTH AND DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION.

{¶13} Appellant argues that his appellate counsel was ineffective for failing to

raise an argument that his guilty plea was not knowingly, intelligently, or voluntarily

entered into because the trial court advised him at his change of plea hearing that he had

no right to appeal his conviction.

{¶14} A guilty plea waives the right to appeal trial court errors except for errors

in the plea itself. State v. Truax, 7th Dist. Belmont No. 06 BE 66, 2007–Ohio–4993, ¶ 8,

citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 at paragraph two of the syllabus.

Thus, the trial court did not misadvise appellant that he could not appeal his conviction

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after he pled guilty and appellate counsel was not deficient for failing to raise this

argument.

{¶15} Moreover, appellant was not prejudiced by this lack of argument. Appellant

timely appealed, was appointed appellate counsel, and his appellate counsel filed a merit

brief raising two assignments of error.

{¶16} Thus, appellant has not demonstrated that his appellate counsel was

ineffective for failing to raise an issue regarding the trial court’s advisement about his right

to appeal.

{¶17} Finally, appellant claims his appellate counsel was ineffective for failing to

assert:

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO

ASSIGN AS ERROR TRIAL COURT’S ABUSE OF DISCRETION IN

SENTENCING CHARITY TO A TERM OF IMPRISONMENT WITHOUT

KNOWLEDGE OF THE AGGREGATED TOTAL.

{¶18} At the time appellant pled guilty to aggravated murder with a firearm

specification, he was on parole for involuntary manslaughter and felonious assault.

Appellant informed the trial court during his change of plea hearing that he was on parole.

Appellant states that, as of the date he filed this application, he has not received any

notice that his parole has been revoked. Appellant argues that his appellate counsel was

ineffective for not raising an argument that the trial court inappropriately sentenced him

to life imprisonment with parole eligibility after 23 years without knowing his sentence for

violating parole.

{¶19} At the change of plea hearing, the trial court advised appellant that the

maximum prison sentence he could receive was life imprisonment without parole plus an

additional three-year consecutive sentence for the firearm specification. Pursuant to R.C.

2929.03(A)(1), aggravated murder is punishable by: life imprisonment without parole; life

imprisonment with parole eligibility after 30 years; life imprisonment with parole eligibility

after 25 years; or life imprisonment with parole eligibility after 20 years. Pursuant to R.C.

2941.145(A), firearm specifications carry an additional mandatory three-year term of

incarceration. Thus, not only is appellant’s sentence of life imprisonment with parole

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eligibility after 23 years within statutory guidelines, it is the statutorily minimum sentence

appellant could have received.

{¶20} As for appellant’s parole violation, it is a separate and distinct proceeding

from this case. Any and all issues appellant may have with a future parole violation

proceeding, including a sentence for violating parole, are not before this court now.

Attempting to analyze the impact a future sentence may have on this case would require

us to go beyond the current record.

{¶21} Thus, appellant has not demonstrated that his appellate counsel was

ineffective for failing to raise an issue regarding any possible sentence he may receive

for violating parole.

For the reasons stated above, appellant’s application to reopen his appeal

is hereby denied.