IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

CHARLES E. HUTCHEN,

Defendant-Appellant.

Case No.

On Appeal from the Hancock CountyCourt of Appeals, Third Appellate District,Case No. 5-06-29

APPELLANT CHARLES E. HUTCHEN'S MOTION FOR DELAYED APPEAL

ROBERT A. FRY #0020664Hancock County Prosecutor

DAVID H. BODIKER #0016590State Public Defender

MARK C. MILLER #0055702Assistant Hancock County Prosecutor(COUNSEL OF RECORD)

Hancock County Prosecutor's Office222 Broadway, Room 104Findlay, Ohio 45840(419) 424-7089(419) 424-7889 - Fax

COUNSEL FOR STATE OF OHIO

J. BANNING JASIUNAS #0073754Assistant Public DefenderCounsel of Record

Ohio Public Defender's Office8 East Long Street -11th floorColumbus, Ohio 43215(614) 466-5394(614) 752-5167 (fax)i. b.i asiunas(&opd. state. oh. us

COUNSEL FOR APPELLANT,CHARLES E. HUTCHEN

p

FES 13 2007

MARCIA J. MENGEL CLERKSUPREME COURT OF 0 HI0

APPELLANT CHARLES HUTCHEN'S MOTION FOR DELAYED APPEAL

Defendant-Appellant, Charles Hutchen, requests that this Court allow him an opportunity

to appeal his sentence and conviction. S.Ct.Prac.R. II, Section 2(A)(4)(a).

1. Procedural History and Statement of Facts

The Hancock County Grand Jury indicted Charles Hutchen on two counts of marijuana

trafficking within one thousand feet of a school, both felonies of the fourth degree, and one count

of sale of cocaine in an amount exceeding ten grams but less than one hundred grams within one

thousand feet of a school, a felony of the second degree. The charges arose from three instances

when Mr. Hutchen purchased drugs for a friend on February 1, April 14, and May 12, 2005.

After initially entering a plea of not guilty to all counts, Mr. Hutchen changed his plea and

pleaded guilty to amended, lesser charges of two counts of trafficking in marijuana, both fifth-

degree felonies, and one count of trafficking in cocaine, a third-degree felony. At the sentencing

hearing, the trial court imposed a prison sentence of two years for the second-degree felony and

nine months for each of the fifth-degree felonies, with all counts to run concurrently. Mr.

Hutchen filed a timely notice of appeal.

Mr. Hutchen then filed a brief alleging one assignment of error. The Third District Court

of Appeals affirmed his conviction in an opinion joumalized on December 26, 2006. State v.

Hutchen, Hancock App. No. 5-06-29, 2006-Ohio-6850.

II. Reasons for the Delay

As indicated in the attached affidavit of J. Banning Jasiunas, counsel for Mr. Hutchen, the

deadline for the filing of Mr. Hutchen's Memorandum was mistakenly miscalculated as being

February 12, 2007, rather than February 9, 2007. Failure to file the Memorandum timely was

due entirely to counsel's miscalculation of the date, as counsel did attempt to file the

2

Memorandum on February 12, 2007, when the Clerk noticed its untimeliness. Counsel then

immediately prepared this motion for a delayed appeal.

CONCLUSION

Based on the foregoing, Mr. Hutchen respectfully requests this court to give him leave to

file a jurisdictional memorandum. He believes that the assignment of error raised in his appeal is

meritorious.

Respectfully submitted,

DAVID H. BODIKER #0016590Ohio Public Defender

J. BINCilASIWAS #0073754Ass ant State Public DefenderCOUNSEL OF RECORD

Office of the Ohio Public Defender8 East Long Street - 11 °i FloorColumbus, Ohio 43215(614) 466-5394(614) 752-5167 - FAX

COUNSEL FOR APPELLANT,CHARLES E. HUTCHEN

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the forgoing APPELLANT CHARLES

HUTCHEN'S MOTION FOR DELAYED APPEAL was forwarded by regular U.S. Mail,

postage prepaid, to Mark C. Miller, Hancock County Assistant Prosecutor, 222 Broadway,

Findlay, Ohio 45840 on this 13th day of February, 2007.

3

COUNSEL OF RECORD

COUNSEL FOR APPELLANT,CHARLESE.HUTCHEN

4

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

CHARLES E. HUTCHEN,

Defendant-Appellant.

Case No.

On Appeal from the Hancock CountyCourt of Appeals, Third Appellate District,Case No. 5-06-29

APPENDIX TOAPPELLANT THOMAS HUTCHEN'S MOTION FOR DELAYED APPEAL

5

Sub-ecE Due Date ^(^ 3^ ^4-neteWaEsert-iwlaJ :R^/-2007

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C? Robert Jories reply brief Mon 2/12/2007

^ 17 Charles Hutchen - MiSJ Mon 2/12/2007

!2 1"i Ead Stev,,ard - merit brief Mon 2/12/2007

fri Hussnain Ahmad -merit brief Wed 2/14/2007

i-i Martin Bolton - merit brief Wed 2/21/2007

F Du]uan Adams - merit brief Wed 2/21/2007

t s Anthony Saxton -objections due Mon 2/26/2007

0 Kelly Richards - merit brief Mon 3/5/2007

0 Johnny Griffin, PCP Mon 3/12/2007

M William McClaskey - merit brief Mon 3/19/2007f? Troy Doyle - merit brief, 2/5/07 Mon 3/19/200711 Robert L. Jones, PCP due Mon 3/26/2007

M_ Mark Ducic, hab petition Wed 4/25/2007

t7 Rudy Collins - hab petition Fri 4/27/2007

C! Jesus Sevilla, PCP Mon 4/30/2007

s^ m Kenric Matthews, PCP Wed 5/30/2007I? Lamar Porter, fed hab Tue 10/16/2007

EXHIBIT

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-- -Clark Cty. CAUSDC/ND

Re^ly Brief_IOb'ec^ tion to R/R

2/12/2007 Extension 2509542/12j2007 Extension 251098

12/21/2006 JBJ Steward, Earl Highland COA Merit Brief 2/12/2007 Extension 2509559/7/2006 RLL Bach, Jesse Montgomery CP PCR Merit Review 2/12/2007 NTBF1/10/2007 jSMS Withers, Michael OSCT MISJ 2/12/2007 2/12/2007 2507281/12/2007 j SPH _ Bloomer Toledo Oral Ar ument 2/12/2007 2/12/2007 10:15 a.m.1/31/2007 BAF Tomlinson, John Pickawa CP Record Due 2/13/2007 2/13/20071/17/2007 BMB Hardesty, Todd Pickawa COA Record Due 2/13/2007 2/13/20071/5/2007 JJM Johnson, Michael Adams CA Record Due 2/13/2007 2/13/20071/26/2007 MJB Cremeans, Brandon Lawrence COA Merit Brief 2/13/20072/6/2007 MMP I Mullens, Donald Summit CA Reply Brief 2/13/20071/3012007 SAT Henthorn, James Washington COA Re I Brief i 2/13/20071/12/2007 SAT Miller, Robert Auglaize CP Record Due 2/13/2007 2/13/20071/17/2007 i SPH Caudill, Stephen Ashland CA Merit Brief 2113/2007 Extension I25118112/18/2006 ' SPH Rawlins, Adrian OSCT Merit Brief 2/13/2007

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2/1/2007 JAB Carter, Cecil Pickaway COA Merit Brief 2/14/20071/16/2007 RLL Arias, Manuel USDC, ND Traverse 2/14/2007 Extension 2512371/26/2007 T1/17/20071/17/2007

SMSBAFBAF

Thompson, DarnellHuffman, NahlenelMcKitrick, Stephen

Fairfield CAAshland COAHancock COA

Merit BriefMerit BriefReply Brief

2/14/20072/15/20072/15/2007

2/12/2007 250572

2/8/20071/10/2007

KASSAT

Le, VanBashlor, Larry

Cu aho a CALake C COA _

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2/15/20072/15/2007

2/9/2007 250886L

1/29/2007 SMS Tucker, Donald Mahoning CA Merit Brief 2/15/20071/12/2007 BMB Bailey, Donald Ashland Cty COA Merit Brief 2/19/20071/16/2007 KRS Robinson, Eric Athens CA Record Due 2/19/2007 2119/20071/29/2007 SMS Anderson, Alfred Franklin C ty Murnahan Merit Review 2/19/20071/22/2007 AJP Burch, Kristian Clinton CA Merit Brief 2/20/20071/4/2007 AJP Parish, James Clark CA Merit Brief 2/20/20071/17/20072/9/2007

BAFKAS

Starkey, RichardPruitt, Ronald

Washington CAFranklin CA

Merit BriefRep ly Brief

2/20/20072/20/2007 t

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

CHARLES E. HUTCHEN,

Defendant-Appellant.

Case No.

On Appeal from the Hancock CountyCourt of Appeals, Third Appellate District,Case No. 5-06-29

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CHARLES E. HUTCHEN

ROBERT A. FRY #0020664Hancock County Prosecutor

DAVID H. BODIKER #0016590State Public Defender

MARK C. MILLER #0055702Assistant Hancock County Prosecutor(COUNSEL OF RECORD)

Hamilton County Prosecutor's Office222 BroadwayFindlay, Ohio 45840(419) 424-7089(419) 424-7889 - Fax

COUNSEL FOR STATE OF OHIO

EXHIBIT

J. BANNING JASI[JNAS #0073754Assistant Public DefenderCounsel of Record

Ohio Public Defender's Office8 East Long Street- 11th floorColumbus, Ohio 43215(614) 466-5394(614) 752-5167 (fax)j.b. i asiunas Ccr^,opd. state.oh.us

COUNSEL FOR APPELLANT,CHARLES E. HUTCHEN

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MqPCIA J. MENGE

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F€8 G CLERKLEiIKMARCIA J. MENGELUPqEMECOURTOFOHIOSUPFf^M^ COURT OF 0MI0

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FtLE®COURT OF APPEALS

COURT OF APPEALSTHIRD_APPE_LLATE DISTRICT

HANCOCK COUNTY

STATE OF OHIO

PLAINTIFF-APPELLEE

V.

CHARLESE.HUTCHEN

DEFENDANT-APPELLANT

. _DEC 2-6 .2006 -CATHXPROSSER WILCOX

CLERKHANCOCK COUNTY, OHIO

CASE NUMBER 5-06-29

OPINION

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common PleasCourt.

JUDGMENT: Judgment affirmed.

DATE OF JUDGMENT ENTRY: December 26, 2006

ATTORNEYS:

DAVID H. BODIKERState Public DefenderReg.#0016590J. Banning JasiunasReg.#00737548 East Long Street-I1`" FloorColumbus, OH 43215For Appellant.

MARK C. MILLERAssistant Prosecuting AttorneyReg. #0055702222 Broadway StreetFindlav, OR 45840For Appelfee.

Case No. 5-06-29

Shaw, J.

{¶1} The defendant-appellant, Charles E. Hutchen ("Hutchen"), appeals

the May 31, 2006 Judgment of conviction and sentence entered in the Common

Pleas Court of Hancock County, Ohio filed on June 6, 2006 sentencing him to two

years in prison.

{¶2} On February 1, 2005, Hutchen received a phone call from an

acquaintance requesting to purchase marijuana from him. The caller was a

confidential informant working for the Hancock County METRICH Drug

Enforcement Unit. Hutchen obtained money from the confidential informant,

went and purchased the marijuana and then returned to his home where he met the

confidential informant and provided him with the marijuana, thus completing the

transaction.

{¶3} Two months later, on April 14, 2005, Hutchen received another call

from the same confidential informant inquiring if he would sell the confidential

informant cocaine. Again, Hutchen obtained money from the confidential

informant, went and purchased the cocaine and then returned providing the

confidential informant with cocaine.

{¶4} On May 12, 2005, Hutchen was contacted again by the eonndential

informant and asked to purchase marijuana. The transaction took place providing

the confidential informant with another purchase of marijuana. Thus, overall

Case No. 5-06-29

Hutchen sold $1,490.00 worth of cocaine and marijuana to the confidential

informant. All three drug deals were completed at Hutchen's home, which was

within one thousand feet of the premises of a school.

{¶5} On December 13, 2005, Hutchen was indicted by the Hancock

County Grand Jury on one count of trafficking in cocaine, a violation of R.C.

2925.03(A), a felony of the second degree, and two counts of trafficking in

marijuana, a violation of R.C. 2925.03(A), felonies of the fourth degree. On April

19, 2006, pursuant to a negotiated plea agreement, the school specification

language was deleted from the indictment and Hutchen entered guilty pleas to

reduced charges contained within each count of the indictment. The trial court

accepted his pleas and found him guilty of trafficking in cocaine, a felony of the

third degree and two counts of trafficking in marijuana, felonies of the fifth

degree. On May 31, 2006, Hutchen was sentenced to serve a mandatory term of

two years in prison for the third degree felony offense of trafficking in cocaine and

nine months in prison for each fifth degree felony of trafficking in marijuana to be

served concurrently for a total term of two years.

{¶6} On June 15, 2006, Hutchen filed a notice of appeal raising the

following sole assignment of error:

THE 'I'RLAL COURT ERRED BY ITv,iP'OSING A NON-]o'IINIlWIUTvZ SENTENCE ON MR. HUTCHENT II^,T NIO1:,6i,'FIONOF THE DUE PROCESS AND EX POST FACTO CLAUSESOF 'I'kiE UNITED STATES

Case No. 5-06-29

{¶7} Hutchen's sole assignment of error poses an issue concerning his

felony sentencing. He alleges that the trial court erred by imposing a non-

minimum sentence on him in violation of the Due Process and Ex Post Facto

Clauses. Specifically, he argues that the trial court erred in sentencing him to two

years in prison instead of the statutory minimum sentence of one year.

{¶8} The Supreme Court of Ohio recently addressed constitutional issues

concerning felony sentencing in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-256.

In Foster, the Supreme Court of Ohio held that portions of Ohio's felony

sentencing framework was unconstitutional and void, including R.C. 2929.14(B)

requiring judicial fmdings that the shortest prison term will demean the

seriousness of the offender's conduct or will not adequately protect the public

from future crimes by the offender. Foster, 2006-Ohio-856, at ¶ 97, 103.

Regarding new sentences and resentences, the Supreme Court of Ohio stated, "we

have concluded that trial courts have full discretion to impose a prison sentence

within the statutory range and are no longer required to make findings or give their

reasons for imposing maximum, consecutive, or more than the minimum

sentences." Foster, 2006-Ohio-856, at ¶ 100.

1N0; Ps this Court is required to follow precedent, as set fortc b. - ti1..

Supreme Cour of Ohio and the United States Supreme Court, we find no error in

Case No. 5-06-29

the trial court's decision to sentence Hutchen to a two year prison term. Hutchen

plead guilty to a third degree felony and two fifth degree felonies.

{¶10} Pursuant to R.C. 2929.14(A),

(t]he court shall impose a definite prison term that shall be oneof the following:

(3) For a felony of the third degree, the prison term shall be- one, two, three, four or five years.

(4) For a felony of the fourth degree, the prison term shall besix, seven, eight, nine, ten, eleven, twelve, thirteen,fourteen, fifteen, sixteen, seventeen, or eighteen months.

(5) For a felony of the fifth degree, the prison term shall besix, seven, eight, nine, ten, eleven, or twelve months.

Hutchen could have been sentenced to as little as one year or as much as seven

years for the counts that he pled guilty to. In this case, Hutchen was sentenced to

two years.

{¶11} In addition,.for the reasons articulated in State v. McGhee, 3rd Dist.

No. 17-06-05, 2006-Ohio-5162, we find no merit in his argument that his sentence

violates the Ex Post Facto and Due Process Clauses. Hutchen entered a negotiated

plea of guilty on April 19, 2006 following the Supreme Court of Ohio's decision

in Foster on February 27, 2006. He understood the sentencing range for the

felonies he pled guilty to and was sentenced within the sentencing range. In

additior_, tne sentencing range for his felonies has remained unchanaed, so rie ha::

notic° o= the notential sentence for his offenses.

Case No. 5-06-29

{¶12} Furthermore, Hutchen argued that he was denied effective assistance

of counsel because his counsel should have raised the Ex Post Facto and Due

Process issues at the sentencing hearing and requested the trial court sentence him

to a minimum and concurrent prison term. However, this argument is moot

because, as stated previously, his sentence did not violate the Ex Post Facto or Due

Process Clause.

{¶13} Accordingly, we fmd Hutchen's sole assignment of error is

overruled and the May 31, 2006 Judgment of conviction and sentence entered in

the Common Pleas Court of Hancock County, Ohio filed on June 6, 2006

sentencing him to two years in prison is affnmed.

Judgment a^rmed.

ROGERS and WALTERS, J., concur.

(Walters, J., sitting by assignment in the Third Appellate District.)

i, tne un^srs^ed, cierk of tLa ^C:Gwr^r +'tiaaCarrt v^wti aad fom .said CowHy, do haralry csAifjthat ie tor.Q^oi^g i'e a true and'cornct copy of

tha o^a!

A-6

t^ ^. D^.N^ _nm.t ot ^ 'ca`: o;' n..a a.n

BY^{4.`yy^_\ 1^

__ .IN..THE._C^)URT_OF AP.PEALS OF TIiETHIRD_A.P.PELLATE JUDl

HANCOCK COUNTY

FILE®COURT OF APPEALS

AL..IW4RYX:TI3EO O.

CATHY PROSSERWILCOXCLERK

HANCOCKCOUNTY,OHIO

STATE OF OHIO CASE NUMBER 5-06-29

PLAINTIFF-APPELLEE J O U R N A L

V. ENTRY

CHARLESE.HUTCHEN

DEFENDANT-APPELLANT

For the reasons stated in the opinion of this Court rendered herein, the

assignments of error are overruled, and it is the judgment and order of this Court

that the judgment of the trial court is affirmed with costs to appellant for which

judgment is rendered and the cause is remanded to that court for execution.

It is further ordered that the Clerk of this Court certify a copy of this

judgment to that court as the mandate prescribed by Appellate Rule 27 or by any

other provision of law, and also furnish a copy of any opinion filed concurrently

herewith directly to the trial judge and partQes of record.

j,. . /..s_^:J..r.r-'3 .` f,J^^-"-+.^-- ,

(Walters, j., sitting by assignment in the ThirdAppeliatt District.)

2006 JUDOES

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,Case No.

vs.

CHARLES E. HUTCHEN,

Defenda nt-Appel la nt.

STATE OF OHIOSS:

COUNTY OF FRANKLIN :

AFFIDAVIT OF ATTORNEY J. BANNING JASIUNAS

I, J. Banning Jasiunas, being first duly sworn according to law, state thefollowing:

I am an attomey licensed to practice in Ohio. I am an Assistant State PublicDefender engaged in the practice of representing criminal defendants inappellate proceedings on behalf of the Ohio Public Defender. My attorneyregistration number is 0073754. I have been an Assistant State Public Defendersince October, 2003.

2. I handled Charles E. Hutchen's direct appeal, and then was to handle the filing ofa Memorandum in Support of Jurisdiction with this Court.

3. The decision from the Third District in Mr. Hutchen's case came down onDecember 26, 2006, meaning a timely Memorandum in Support of Jurisdictionshould have been filed no later than February 9, 2007. However, I mistakenlycalculated the date as February 12, 2007.

4. I entered the due date of February 12, 2007 in my task list as well as in thedeadline log maintained by my office, and proceeded believing the due date wasFebruary 12, 2007. Copies of my task list and the deadline log showing thatmiscalculated deadline are attached as Exhibits A and B.

5. I am familiar with the Rules of the Supreme Court of Ohio and understand thatMemoranda in Support of Jurisdiction must be filed within 45 days from the dateof the journalization of the court of appeals decision. S.Ct. R. II, SectionII(A)(1)(A). Within the last 30 days, I have filed three timely Memoranda isSupport of Jurisdictions, and one Memorandum in Opposition to Jurisdiction withthe Supreme Court of Ohio. See State v. Michael Ransom, Case No. 2007-0147; State v. Jacob DiCarlo, Case No. 2007-0224; State v. Brandon Henry,Case No. 2007-0225; and State v. Elmore Watson, Case No. 2006-2369.

6. I completed drafting the Memorandum and tried to file it on February 12, 2007,when it was not accepted due to the date miscalculation.

Charles Hutchen intended to timely appeal the Third District's decision to thisCourt. The error in failing to timely file the Memorandum was entirely mine.

Further affiant sayeth naught.

Sworn to, or affirmed, and subscribed in my presence this I^^ day of

February, 2007.

MOLLY J. BRUNSAttotney at Law

Notary Public, Stete of OhioMy Commission Has No FxpUation

Section 147.03 P.C.