IN THE COURT OF APPEALSF i r c} APPELLATE DISTRICT

ta1^,;it-n COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appellee,

1 - 19ra 5C-o2

Case No. '

vs. Tria1 Case No. A-nipswfc)

^^^ u- ^Rtdsn^^^ , REGULAR CALENDAR

Defendant-Appellant.

MOTION FOR LEAVE TO FILE DEI.,AYED APPEAL

Defendant-Appellant, a, r, s t^, tt ^ M s, respectfully moves this Court to grant a

delayed appeal pursuant to App.R. 5. The reasons in support are more fally set forth in the

attached memorandum.

Respectfiilly submitted,

DN®V 18 ZO1I

CLERK OF COUR7SUPREME COURI OF OHIO

Defendant-Appellant, In Pro-se545^^rs

Num6a

Warrr_n Ctrr2r.^ oncl Z^s^,'{,UEienInstitudon

5-15t7 6^at^ Pn:,ee. z^A?Addreas

MEMORANDUM

Because Ohio has opted to act in a field where its action has significantdiscretionary elements, it must act in accord with the dictates of theConstitution.

The right to appeal a state criminal conviction is not specifically provided for in the

Federal Constitution. Estelle v. Dorrough (1975), 420 U.S. 534, 536. However, where a

state provides a process of appellate review, the procedures used must comply with

constitutional dictates of due process and equal protection. Griffin v. Tllinois (1956), 351

U.S. 12, 18. When a State opts to act in a field where its action has significant discretionary

elements, it must nonetheless act in accord with the dictates of the Constitution -- and, in

particular, in accord with the Due Process Clause. Evitts v. Lucev (1985), 469 U.S. 387,

393.

While Grifffin held that due process does not require a state to afford appellate

review, the Court noted that "all of the States now provide some method of appeal from

criminal convictions, recognizing the importance of appellate review to correct adjudication

of guilt or innocence." Griffin, 351 U.S. at 18. Subsequent Supreme Court decisions have

reinforced the importance of appellate review in legitimizing state trial court convictions.

See Ohio Adult Parole Authority v. Woodard (1998), 523 U.S. 272, 278; Halbert v.

'Ivhchigan (2005), _ U.S. _, 125 S.Ct. 2582, 2597.

In Ohio there is both a statutory and constitutional right to appeal a criminal

conviction. See R.C. 2953.02; Ohio Constitution §3, Art. 4. An appeal of right is also

provided by rule. See App.R. 4(A). Because an appeal is an integral part of Ohio's system

for adjudicating guilt or innocence, its procedures for review must not violate a defendant's

Federal due process rights. See Evitts, 469 U.S. at 393.

Defendant-Appellant appeals sentencing order of case number . The

time to file a timely appeal has expired. However, Ohio has also established a system of

delayed appeals by leave of court. App.R. 5 govems delayed appeals. The rule states in

part:

(A) Motion by defendant for delayed appeal.

(1) After the expiration of the thirty day period provided by App.R.. 4(A) for the filing of a notice of appeal as of right, an appealmay be taken by a defendant with leave of the court to which theappeal is taken in the following classes of cases.

(a) Criminal Proceedings;***

(2) A motion for leave to appeal shall be filed with the court ofappeals and shall set forth the reasons for the failure of theappellant to perfect an appeal as of right. Concurrently with thefiling of the motion, the movant shall file with the derk of the trialcourt a notice of appeal in the form prescribed by App. R. 3 andshall file a copy of the noticeof the appeal in the court of appeals.The movant also shall furnish an additional copy of the notice ofappeal and a copy of the motion for leave to appeal to the clerk ofthe court of appeals who shall serve the notice of appeal and themotions upon the prosecuting attorney.

App.R. 5(A) allows a rriminal defendant to file a motion for leave to appeal after the

expiration of the 30-day period provided by App.R. 4(A). The motion must set forth the

reasons for the failure of the defendant to perfect an appeal as of right. The defendant has

the burden of "demonstrating a reasonable explanation of the basis for failure to perfect a

timely. appeal." State v. Padgitt (Nov. 2, 1999), Franklin App. No. 99AP-1085

(Memorandum Decision), quoting State v. Cromlish (Sept. 1, 1994), Franklin App. No.

94APA06-855. A proper motion for leave must address two specific issues. First, the

defendant must give a legitimate explanation in regard to why he failed to file his notice of

appeal in a timely manner under App.R. 4(A). Second, he must provide a legitimate

explanation as to why he did not submit his motion for leave within a reasonable time after

the end of the thirty-day period for bringing a timely appeal. See State v. Binion (Dec. 13,

2002), 11th Dist. No. 2002-T-0093. The decision to grant or deny a motion for leave to

appeal pursuant to App.R. 5(A) rests within the sound discretion of the court of appeals.

State v. Fisher (1988), 35 Ohio St.3d 22, 26, 517 N.E.2d 911.

Why Defendant Appellant Did not File a Timely Appeal

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Defendant Appellant also attaches an affidavit in support.

CONCLUSION

"There can be no equal justice where the kind of trial a man gets depends on the

amount-®€rnoney he has." Griffhm v. Illinois (1-956), 3-53 U.S. 12, 19. A state may not "bolt

the door to equal justice" to indigent defendants. Id 351 U.S. 12, 24, (Frankfurter, J.,

concarring in judginent). Defendant-Appellant has demonstrated his desire to timely appeal

his conviction. He subniits this motion for leave within a reasonable time after the end of

the 30-day period for bringing a timely appeal.

For these reasons, he respectfully requests this Court grant him a delayed appeal.

Respectfully submitted,

Defendant-Appellant

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction was

forwarded by regular U.S. Mail to }QcpDh L & ,tPrs Prosecuting Attorney,

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yax, , this day of S.,Lh, -̀^_k ^mbe^C 20AL•

SIG[lATUIfE

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IN THE:COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OIIIO, APPEAL NO. C-o8ii48TRIAL NO. B-o805u9(C)

Plaintiff-Appellee,

vs.

JULIUS WILLIAMS,

Defendant-Appellant.

DECISION.

PRESENTED TO TFIE CLERKOF COURTS FOR FILING

riAR '12 2010

Crin►inalAppeal From: Hamilton County Court of Common PleasCOURT OF APPEALS

Judgment Appealed From Is: Sentences Vacated and Cause Remanded

Date of Judgment Entry on Appeal: March 12, 2010

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E. Breyer,Assistant Proser.utingAttornoy, frjr Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.

Note: We have removed this case from the accelerated calendar.

ENURIDi°iHrt 1 2 'LUtO

OHIO FIRST DISTRICT COURT OF APFEAIS

Per Curiam..

{11} Defendant-appellant Julius Wiltiams appeals from the convietions and

sentences imposed following a jury trial for multiple counts of aggravated robbery and

robbery, with accompanying firearm specifications. Williams and his three co-defendants

had attempted the theft of several thousand doâars of cash from four victims. Williams

had wielded a shotgun, and another co-defendant, armed with a.357 magnum revolver,

had shot one of the victims during the attempted robbery. While we overrule each of

Williams's assignments of error challenging the fmdings of guilt, because the trial court

failed to notify Williams at the sentencing hearing that he would be subject to postrelease

control, we must vacate the sentences and remand the case for resentencing.

{12} In the early morning of June 26, 2008, Williams, Joseph Dobbs, and

James L. Hardin were approached by an individual known to them as "Dulde." Dukie

asked them to rob four men. He told them that their victims were to be found near a car

parked in the West End neighborhood of Cincinnati, and that they had the cash proceeds

from drug sales in their possession. Dukie also pravided Hardin vith a revolver and

Wiâiams with a shotgun.

{53} WiIliams and his companions approached the vicrims, found them

smoldng marijuana, and attacked them without warning: Williams sti uck=Leondre Bailey

in the head with the shotgun,:knoddng, Baiiey to the ground. Dobbs.$eat,another victim

using his arm cast as a weapon. Hardin shot another vietim in the chest and leg. At some

point during tiie attack, the shotgun was fired. But no one was struck by its pellets. As the

victims fought back, the perpetrators lost heart and fled without obtaining the cash.

11411 ^ ^ gy ^^ nJJrby house of Hardin's girlfriend. As they ran, they

discarded infimWlaZieiqW. lVdin threw away the revolver. WiIIiams removedhis

2

OHIO FIRST DISTRICT COURT OF APPEAI.S

shirt and hid the shotgun in nearby bushes. Police canine units located the discarded

items and tracked the perpetrators. The three were quickly arrested. Police investigators

identified gunshot residue on WiIliams's sldn. And his DNA was found on the recovered

shotgun.

{15} Williams also gave a statement to police investigators in which he

admitted his presence at the crime scene. He stated that he may have accidentally struck

one of the victims in the head with the shotgun. This recorded statement was ultimately

played to the jury.

{16} Williams and his co-defendants were indicted on multiple counts of

aggravated robbery and robbery, each with an accompanying firearm specification, and on

two counts of felonious assault. The co-defendants were tried separately. At Williams's

trial, Hardin testified for the state. The jury found Williams guilty of each aggravated-

robbery and robbery charge, but returned not-guiltyverdicts on the two felonious-assault

counts, which related to Hardin's shooting of one of the victuns. The trial court merged

some, but not all, of the robbery charges with the aggravated-robbery charges and

imposed an aggregate sentence of iS years' imprisonment.

{17} In his first assignment of error, Williams argues that the trial court erred

in permitting the in-court identification of Williams by victim Leondre Bailey. He

contends that the in-court identification was not reliable. On direct examination by the

assistant prosecutor, Bailey was aslced, "Do you see somebody in this courtroom that you

saw that night involved in this [robbery]?" Bailey pointed to Williams and responded,

"Looks very similar, sir." The triaP court acImowledged the state's request and stated for

3

OHIO FIRST DISTRICT COURT OF APPP.AIS

{¶8} "An in-court identification is admissible *** if the identification comes

from 'some independent recollection and observation of the accused by the witness' as

established under the totality of the circumstances."1 But Williams made no objection to

the identification; he has therefore waived the issue absent a showing of plain error.2 An

error rises to the level of plain error only where it is both obvious and outcome-

determinative.3

{¶91 Even if the admission of Bailey's in-court identification of Williams as the

perpetrator who had wielded the shotgun and who had struck him was an obvious error, it

did notrise to the level of plain error. Williams's cross-examination of Bailey highlighted

both the inconsistencies in his recollection of the events and the limitations in Bailey's

view of Williams. The jury was able to evaluate the conditions at the robbery scene and

the basis of Baiie}'s identification, And in fight of Williams's admission that he had been

present at the robbery and may have accidentally struck someone with the shotgun, as

well as the presence of gunshot residue on his hands and of his DNA on the shotgun, we

cannot say that but for Bailey's in-oourt identification the outcome of the trial would have

been different. The first assignment of error is overruled.

{110} Williams next challenges the weight and the sufficiency of the evidence

adduced to support his convictions for robbery and for aggravated robbery. Williams was

indicted for multiple counts of aggravated robbery. R.C. 2911.o1(A)(i), provides, in part,

that "[n]o person, in attempting ° or committing a theft offense, or in fleeing

s State u. Norma(a97x), 26 Ohi(2 See State v. iNarmcm, s37 O9 See Evid.B.o5o989 and G 3(A)(ac$a7^lOriitYx48

3d 184, 2oi, 738 N.E.2d 403, quoting State v. Jackson18.'oo8-C?hio-2762, 890 N.E.2d 263, ¶6o; see, also, State V.d 403.2n.R 52(B); see, also, State v. Lewis, ist Dist. Nos. C-739•

4

OHIO FIRST DISTRICT COURT OF APPEAI.S

immediately after the attempt or offense, shall ***[h]ave a deadly weapon *** and

either display the weapon, brandish it, indicate that the offender possesses it, or use it."

{¶11} W171ianvs was also indicted for multiple counts of robbery. The state

maintains that each robbery conviction was merged into the corresponding aggravated-

robbery conviction at sentencing.4 But the trial court's judgment entry indicates that it

imposed a g year, uninerged sentence of incarceration for count three of the indictment,

which charged Williams with the.robbery of viclim Johnathan Williams, in violation of

R.C. 2911.o2(A)(1) s Because Williams has challenged the weight and the sufficiency of the

evidence for each conviction we must address the conviction for robbery contained in

count three. The robbery statute; at issue declares that "[n]o person, in attempting or

committing a theft offense or in fleeing immediately after the attempt or offense, shall ***

[h]ave a deadly weapon on or about [his] person or under [his] control."

{¶12} A review of the record fails to persuade us that the jury clearly lost its way

and created such a manifest miscarriage of justice that the convictions must be reversed

and a new trial ordered.6 The jury was entitled to reject Williams's view of the case that

only circumstantial evidence linked hirn to the robberies, that no witnesses testified about

his involvement save a co-defendant, and thai Williams had abandoned these offenses

when he ran away before the robberies had been completed.

{¶13} The state presented ample evidence to support the convictions, including

co-defendant Haidin's testimony that the perpetrators, including Willianis, had attempted

to rob the victims, Williams's own statement that he had been present at the robbery scene

4 See Appellee's Brief at i5 See T. . 72,6 SeeState ei. Thompkins,

OHIO FIRST DISTRICT COURT OF APPEALS

and may have hit one of the victims in the head with a shotgun, and the physical evidence

lin.king WiIliams to the shotgun discovered by the police canine unit.

{114} We note that "circumstantial evidence and direct evidence inherently

possess the same probative value and should therefore be subjected to the same standard

of proof."7 And the weight to be given that evidence, whether direct or circumstantial, and

the credibility of the witnesses were for the jury, sitting as the trier of fact, to determine.8

In resolving conflicts and limitations in the testimony, the jury could have found that

WiIliams had partieipated in the attempted theft of the vietims' money, and that he had

possessed, brandished, and used a shotgun during the attempt.

{115} The test for the sufficiency of the evidence required to sustain a conviction

was enunciated by the United States Supreme Court in Jackson v. Virginia.9 The relevant

question is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

chaiged crimes beyond a reasonable doubt1o The record in this case reflects substantial,

credible evidence from which the jury cou2d have reasonably concluded that all the

elements of the charged crimes had been proved beyond a reasonable doubt Therefore,

the second assignment of error is overruled.

f116} In his third assigninent of error, Williams contends that the trial court

erred by failing to instruct the jury concerning the testimony of an accomplice, as required

under R.C. 2923.03(D)• That statute mandates that the trial court caution a jury that the

testimony of an accomplice, like Hardin, is not inadmissible, but that "the admitted or

7 State V. Jenks (1991), 6Y Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the s yllabus.8 See State u. DeHass (1967), io Ohio St.zd ZI0, 227 N.E.2d 212, paragraph one of the syuabus.9 (1979), 443 U.S. . .10 See id. at 319; , qrj6^ n^^ua , yo8 Ohio St.3d 214, 2oo6-Ohio-^9i, 842 N.E.2d 996,934• 11 aI

rtHrc 1 2 [Q106

OHIO FIRST DISTRICT COI72tT CaF APPEALS

I

claimed complicity of a witness may affect his credibility and make his test'unony subject

to grave suspicion, and require thai it be weighed with great caution.""

{117} But Williams did not reqnest this instruction or object in a timely manner

to the instructions actuaIly given. The failure to object to the jury instructions at a time

when an error could have been avoided or corrected by the trial court waives

consideration of any error on appeal, unless, but for that error, the outcome of the trial

dearly would have been otberwise.12 Even if we assume that the trial court was required

to give the instruction, its failure to give it did not rise to plain error. Williams's own

statement corroborated much of Hardin's testimony_ Apd the trial court provided the jury

with a lengthy general instruction on witness credibility that informed the jury to consider

any witness's interest and bias, as well as the facts and circumstances surrounding the

witness's testimony, in deciding matters of weight and credibility.13 The assignment of

erroris ovemiled.

(¶18} The fourth assignment, in which Williams asserts that he was

improperly sentenced by the trial court, is sustained. As the state concedes, the trial

court failed to properly inform WiIliams at the sentencing hearing that he would be

subject to postrelease control upon the completion of his period of incarceration.

Under the rule of State u, Bezak,'4 each of the felony sentences imposed are void, and

they "must be vacated and the tnatter remanded to the trial court for resentencing.

The trial court must resentence the offender as if there had been no original

sentence."15

^ RC.2923.o3(D).a^ See Crim.R. 3o(A); see, also, State v. Underwood (198313 Ohio St.3d 12,13, qq4 N.E.2d 1332.13 See State v. Hinkston (Sept. 29, 2000), rst Dist. No. O-000024; see, also, State v. Mathis (Dec.31,1996),1st Dist.,4 See ii Ohio St. ?^ ^$ N.E,zd 961, syllabus.15 Id. at 11i5. 9^ 1y ^Jl9 ^ ^o^

rinrt 1 z COtU7

OHIO FIRST DISTRICT COURT OF APPEAIS

{¶19} Since the trial court must sentence Williams anew, the remainder of

this assignment of error-that the trial court failed to sentence him in accordance

with the purposes and principles of felony sentencing identified in R.C. 2929.11-is

rendered moot.36

(120) Accordingly, we vacate the sentences imposed by the trial court for each

felony offense and remand the case to the trial court for a new sentencing hearing. The

trial court's judgment is affirmed in all other respects.

Judgment accordingly.

Hn.nESnnNDT, P.J., SimrnExnraxiv and CUxxnvGHAm, JJ.

Please Note:

The court has recorded its own entry on the date of the release of this decision.

i6 See App.R. 12(A)

! ENTER,FD1(c)^•wrt 1 2 'L^ 10

M 8

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HA.MILTON COUNTY, OHIO

STATE OF OHIO, ' . APPEAL -o8ii48

Plaintiff-AppeIIee,

VS.JULIUS WILLIAMS,

Defendant-Appellant.

riqR 1 2nnii 12 20^0T03^

TRIAL O. Ba$o5119

JUDGMF.NT ENTRY.

This cause was heard upon the appeal, the record, the briefs, and arguments.

The sentences of the trial court are affirmed and the cause is remanded for the

reasons set forth in the Decision filed this date.Further, the court holds that there were reasonable grounds for this appeal, allows

no penalty and orders that costs are taxed under App. R. 24;

The Court further order-s that i) a copy of this Judgment with a copy of the Decision

attached constitutes the mandate, and 2) the mandate be sent to the trial court for execution

under App. R. 27.

To The Clerk:

Enter upon the Journal of the Court on March 12, 2010 per Order of the Court.

D87398138