WshA^%

NO,

IN THE SUPREME COURT OF OHIO

APPEAL FROM

THE EIGHTH DISTRICT COURT OF APPEALSCUYAHOGA COUNTY, OHIO

CA 100447

STATE OF OHIO

Plaintiff/Appellant

vs.

ISAIAH B. HALE

Defendant/Appellee

MEMORANDUM IN SUPPORT OF JURISDICTION

Counsel for Plaintiff/AppellantTIMOTHY J. McGINTY

CUYAHOGA COUNTY PROSECUTOR

DANIEL T. VAN (0084614)

Assistant Prosecuting Attorney

1200 Ontario Street, 9th Floor

Cleveland, OH 44113

(216) 443-7800

Counsel for Defendant/Appellee

MICHAEL J. CHESELKA75 Public Square #920

Cleveland, Ohio 44113

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CLERK OF COURT10

TABLE OF CONTENTS

EXPLANATION OF WHY TI4IS CASE NVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION OR ISSUE OF PUBLIC OR GREAT GENERAL INTEREST .................................1

STATEMENT OF THE CASE AND FACTS ................................................................................3

LAW AND ARGUMENT .....................................................................................................:.........5

PROPOSITION OF LAW: A VIOLATION OF KYLES V. WHITLEY, 514 U.S.419, 437 S.CT. 1555 (1995) DOES NOT CONSTITUTE A "MANIFESTINJUSTICE" PER SE REQIJIRING A PLEA WITHDR.AWL. IN DECIDINGWHETHER TO GRANT A MOTION TO WITHDRAW GUILTY PLEA,COURTS SHOULD INCLUDE: (1) THE PROBATIVE VALUE OF THEEVIDENCE; AND (2) WHETHER THE DEFENDANT'S CLAIM ISCONSISTEN'T WITH PRIOR TESTIMONY OR IS OTHERWISE SUSPECT.

CONCLUSION ................................................................................................................................7

SERVICE .........................................................................................................................................7

Appendices Appx. page

Journal Entry, Court of Common Pleas, August 26, 2013 ...............................................:...............1State v. Hale, 2014-Ohio-3322 ........................................................................................................4

I. EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION OR ISSUE OF PUBLIC OR GREATGENERAL INTEREST

Isiah Hale entered a guilty plea to involuntary manslaughter - foregoing trial and a self-

defense claim. At the time of his plea I] ale provided statements that the victim had or specifically

pointed a gun. Hale subsequently learned that gunshot residue reports, which had not been released

from the coroner's office to the prosecutor's office, indicated that there was gunshot residue primer

on the victim's hands'. After learning this information, Flale filed a motion to withdraw guilty

plea, now claiming, that the evidence supports his claim of self-defense and now stating that the

victim not only pointed a gun at him but had shot the gun at him as well. The State believes that

Hale's current version of events with the critical claim that the victim shot at Hale was curiously

omitted by Hale in prior proceedings.

The Eighth District held that, "However, it cannot be said that when a defendant is

maintaining a defense of self-defense and the trace evidence report indicates that the victim had

gunshot primer residue on his hand, that this evidence would not be considered potentially

exculpatory. Without knowledge of this potentially exculpatory evidence, it cannot be said that

Hale entered his plea knowingly, intelligently, and voluntarily." State v. Hale, 8th Dist. Cuyahoga

No. 100447, 2014-Ohio-3322. The Eighth District's decision is tantamount to permitting criminal

defendants to benefit from any new evidence and permit them to alter their version of events to

conform to the physical evidence. When Hale pled, he maintained self-defense and stated in police

1 It should be noted that the trial court indicated that it did not believe that the State intentionallyor willfully withheld the gunshot residue test results; however, any non-disclosure on part of thecoroner's office is attributable to the State pursuant to Kyles v. Whitley, 514 U.S. 419, 437 S.Ct.1555 (1955).

interviews and in allocution that the victim had a gun, without reference to being shot at - a fact

that a reasonable person claiming self-defense would mention. It was only after learning of the

gunshot residue reports, which has limited probative value to begin with, that Hale indicated for

the first time that he had been shot at. Hale's explanation at the motion to withdraw guilty plea

hearing as to why he did not mention being shot at from the beginning: in Hale's own words, his

original trial attorneys had told him to lie. The Eighth District's determination that the trial colzrt

"rejected in the trial court." Hale, 8th Dist. Cuyahoga No. 100447, 2014-Ohio-3322, ¶8 is not

existent in the trial court's order granting the motion to withdraw guilty plea as the trial court never

engaged in a full "prejudice" analysis and never addressed the inconsistency in Hale's stories. The

trial court merely determined that the gunshot residue evidence substantiated Hale's self-defense

claim - without regard to the details of Hale's self-defense claim. The Eighth District affirmed

the trial court's decision noting that the gunshot residue test was "potentially exculpatory."

At its core the trial court's mere holding that the failure to disclose gunshot residue reports

in this case, implicates a bright line rule that potentially exculpatory evidence constitutes a

manifest injustice without regard to the totality of the record, that may indicate that the defendant

is attempting to change his version of the facts to tailor the evidence. Moreover, the nature of

gunshot residue in and of itself calls into question as to whether the evidence is so definitively

exculpatory as to rise to the level of a manifest injustice. As one California federal district court

put it in lTuong v. Dexter, C.D. Cal. No. CV 08-3022-DOC, 2009 WL 2633758 (Aug. 26, 2009),

the existence of gunshot residue on the victim's hands was not reliable evidence of the petitioner

(defendant's) actual innocence.

2

II. STATEMENT OF THE CASE AND FACTS

Isiah Hale was indicted on five counts in Case No. CR-529253. Count One of the

indictment charged Hale with Murder in violation of R.C. 2903.02(A). Count Two of the

indictment charged Hale with Murder in violation of R.C. 2903.02(B). Count three charged Hale

with Aggravated Robbery in violation of R.C. 2911.01(A)(1). Count Four charged Hale with

Kidnapping in violation of R.C. 2905.01(A)(2). Count Five charged Hale with Having Weapons

Under Disability in violation of R.C. 2923.13(A)(3). The counts contained one-year and three-

year firearm specifications.

Hale pled guilty to a single amended count of Involuntary Manslaughter with a three year

firearm specification. At the time Defendant was under parole for a federal weapons disability.

On May 20, 2010, Defendant was sentenced to a prison term of eight years: three years for the

firearm specification and five years for Involuntary Manslaughter. During the sentencing the

record reflected that the Defendant stated he didn't mean to shoot the victim in the back and never

meant the shooting to happen. Defendant's original trial attorneys indicated that they believed

they had a self-defense but the resolution to the case (i.e. plea to involuntary manslaughter) was

proper. The attorney explained their understanding of the facts as known to them: on the night in

question the victim came into town and called soineone for drugs. During that drug deal Isiah

Hale was called to "negotiate" some sort of settlement. Hale arrived and entered the backseat of

the vehicle that the victim was in. The victim was the driver, the car took off with Hale in the back

seat. There was an indication that defense counsel and Hale knew that the defendant had a gun in

his name. Defendant did not mention, nor did the victim mention the victim firing a gun. Hale

subsequently filed for a motion to withdraw guilty plea after learning of a report that indicated the

presence of gunshot residue primer on the victim's hands. A At that hearing, the Defendant now

3

stated that a gun was pulled on him in the car, that he was able to struggle to gain possession of

the gun, and that when he was able to get the driver of the car to stop, that upon exiting the vehicle,

the victim fired a gun at Defendant, to which he fired back and killed the Defendant. Also played

at the hearing on the motion to withdraw guilty plea was Defendant's interview with police, in

which Defendant never mentioned being shot at. Defendant states that his interview with police

was a lie and that he had been told by his attorneys to stick to the story to get the deal.

Curtis Jones of the Cuyahoga County Coroner's Officer testified at that hearing and

explained that the gunshot residue may be indicative that a person fired a weapon, was in close

proximity to a fired weapon, or came into contact with a surface that had gunshot residue.

On August 26, 2013, the trial court granted the motion to withdraw guilty plea, issuing an

opinion that determined the following:

Throughout the pre-trial diseovery process, the Defendant maintained that he actedself-defense. On March 5, 2010, the results a gunshot residue test conducted by theCuyahoga County Coroner's Office were received. The test results reflected that themurder victim, Montrell Stonewall, did indeed have gunshot primer residue on his righthand,

[***] Defense counsel relied on the fact that no gunshot residue test had beenperformed and advised Mr. Hale to forgo his affirmative defense of self-defense.Subsequently Mr. Hale entered a change of plea to Involuntary Manslaughter.

On January 4, 2011, the State disclosed, during the trial of co-Defendant a gunshotresidue test had indeed performed on the victim. The results proved positive for thepresence of gunshot primer residue on the right hand of the victim. The Co-Defendantwas acquitted.

The Defense also alleges a Brady violation. [***] The elements necessary totrigger a Brady violation are:

(i) The evidence must be favorable to the accused;

(ii) The evidence must have been either willfully or inadvertently suppressedby the government;

(iii) Prejudice must have ensued.

4

It is the opinion of the Court that the Defendant's burden of proof is met under a Bradyanalysis as well. It must be said that no one believes that the State intentionally orwillfully withheld the gunshot residue test results. 'Fhe delayed disclosure was materialto the issue of guilt as it substantiated the Defendant's self-defense defense and wastantamount to a manifest injustice mandating the granting of the Defendant's Motionto Withdraw his Guilty Plea.

Order Granting Motion to Withdraw Guilty Plea, filed August 26, 2013.

The State sought leave to appeal, the trial court's decision granting the motion to withdraw

guilty plea. The Eighth District Court of Appeals, granted the State's motion for leave to appeal

and subsequently affirmed the decision of the trial court, which effectively vacates the involuntary

manslaughter conviction and remanding the case for trial on the indictment, that would include the

original charges of murder.

III. LAW AND ARGUMENT

PROPOSITION OF LAW: A VIOLATION OF KYLES V. WHITLEY, 514 U.S. 419, 437S.CT. 1555 (1995) DOES NOT CONSTITUTE A "MANIFEST INJUSTICE" PER SEREQUIRING A PLEA WITHDRAWL. IN DECIDING WHETHER TO GRANT AMOTION TO WITHDRAW GUILTY PLEA, COURTS SHOULD INCLUDE: (1) THEPROBATIVE VALUE OF THE EVIDENCE; AND (2) WHETHER THE DEFENDANT'SCLAIM IS CONSISTENT WITH PRIOR TESTIMONY OR IS OTHERWISE SUSPECT.

Defendant's guilty plea was a complete admission of the defendant's guilt. See Crim. R.

11(B)(1). A motion to withdraw "guilty plea after the imposition of sentence may be granted by

the trial court only to correct "manifest injustice." On appellate review, the court of appeals review

of the trial court's decision on the motion is limited to the issue of whether the trial court abused

its discretion in granting or denying the motion for new trial. Further, a counseled plea of guilty to

a charge removes the issue of factual guilt from the case. See State v. Zimmer, 8th Dist. Cuyahoga

App. No. 90846, 2008-Ohio-6953. "Manifest injustice" is an extremely high standard, which

permits the withdrawal of a guilty plea only in extraordinary cases. The defendant, moving for a

post-sentence withdrawal of a guilty plea, has the burden of demonstrating the existence of a

manifest injustice. See State v. Woodley, Cuyahoga App. No. 83104, 2005-®hio-4810. A "manifest

5

injustice" is a'"clearly or openly unjust act," a'"fundamental flaw in the path ofjustice so extraordinary

that the defendant could not have sought redress from the resulting prejudice through another form of

application reasonably available to him or her " See State v. Blashaw, 8h Dist. Cuyahoga No. 98719,

2012-Ohio-601 1, ¶ 10.

The utility and probative value of gunshot residue tests are questionable, as the existence

of gunshot residue primer on the victim's hand does not in and of itself establish that the victim

fired a gun. For example, in People v. Alvarez, unreported, 2008 WL 2917498 (Cal. App. 3 Dist.

2008), the appellate court in California affirmed. the denial of defendant's claim of ineffective

assistance of counsel. One of the defendant's claims was that counsel was ineffective for not

presenting reports showing gunshot residue on the victim's hands. Even though the claim was

self-defense, counsel was not ineffective as the gunshot residue tests likely would have reinforced

the prosecution's position and not defendant's [...] the most reasonable conclusion was that the

gunshot residue on the victim's hands was deposited there by holding his hands in a defensive

position when he saw defendant aiming the gun at him."

The multiple factual versions of events defendant has documented and the possibilities of how

the victim tested positive for gunshot residue renders his claims suspect. The trial court found a

manifest injustice without addressing the defendant's conflicting story. While the record reflects that

Defendant indicates that he had a self-defense claim that he was foregoing prior to entering his plea,

the record clearly reflects that prior to plea, Defendant never stated the victim fired a gun at him.

Instead the record would reflect that the Defendant only stated that the victim pointed a gun at him.

To now state that a gun was fired at him and that his original attorneys told him to "lie" about being

shot at, renders his current claim highly suspect. Because it was highly suspect, the trial court had an

obligation to address it and not simply vacate the Defendant's plea because the gunshot residue was

potentially exculpatory.

6

IV. CONCLUSION

Accordingly, the State would ask this Court to accept jurisdiction in this case and to review

the decision in.State v. Hale, 8th Dist. Cuyalioga No. 100447, 2014-Ohio-3322.

Respectfully submitted,

TIMOTHY J. McGINTYCUYAHOGA COUNTY PROSECUTOR

DANIEL T. VAN (0084614)Assistant Prosecuting Attorney1200 Ontario Street, 8th FloorCleveland, Ohio 44113216-443-7800

SERVICE

A copy of the foregoing Memorandum in Support has been mailed this 12th day of

September, 2014, to Michael J. Cheselka, 75 Pubic Square #920, Cleveland, Ohio 44113.

9 LDANIEL T. VAN (0084614)Assistant Prosecuting Attorney

7

'"R09s291253mA 8080888 i

SIU5>Ti;OF OHfU ° IN THi!, UUUR7, 017 COMM(-vToT PLEAS

^ CT)UA',i^^GACU'U1M ^ CASE NO. CR 5292; '3

iO ^ t':L^ .^ ^^l.ii^,,^•^

I. _

vs J(,3U1^^^`Ui,L EI\\TTR`^iT

IUAy1-1 B. 14ALE-E

De1enciant

CAROLYN B. FRliild,Dii,.A,,I'\ID9UDCL

Ure Defendar,tYs [^otz^f, s:o Withdravv his Guilty Plea, entered into on Ap°zi 2030, ,jo

. , . . . .GorreEt a manifest i1^'?JLst^Ce pl^^"su2r!t to iKadu ^.L.I r3f e^^1e ^'^^iQ R!?les. of ^^rprrltr^2iF ^'ro°edL>;;°c P.i

gY"anteCi;.

The Jeiendant, sia1i B. l-'I,'c^le; aeozig qVAth. a Co Defex1dan^^, was charged ' ac&.j-. Jvrurde Y,

pursUaCEP:tCJ' Ohio '̂4.ee/?seG.'^ c' .̂.^.od_e SeGtZoi7.s 2i'0.7.^}1(,/^,.^ ^iri.6'i. (^7j `3JPt,^^ ^"^tr^ar^i Sf3^'C^ h^Zf^^E^ ^'hPr^

't%tJek-e ovV^;r a«4flAfoF'Fa^ f6o'.^i'y' o1f'i?'r.seS ?Gyffz^t-C;n^F,e%2g 1Fra. Lllarfluglaou: the 3t'^ Ei''al: drs

iYEcluded infct°matiort frorn tfi.E Coroziei's C3ffice - absent arty results of the gu:nsi,ior residue [e.st.

Defet3;c counsel rcl.ied on the fact th.a^ i-io guiishoi residue test had been performed ar-id advised Mr.

Ha9

}c to Fii2 p r j;r

[

o Yo (g^I^dD-s C6f ^?r.^.Cryiti ^IC Qe1sF o:\seCE d.r.^i^^.^ce. 4^UGUJ^^,^n^-clco c_^G^ ^L1C.t^^ge Of ^,JL E^..Q',

to ii"qVolllflital°y I`1IansiaLBg^-hteY.

jYlai7Uafq/ Frt 20ti {'_

Zi„ State,. ^B's„ l C. ne ^ F i"g the ^i"[G E v " "^v nL=^etei`^dG.K̂ [ r x^ f. ^^zy Cii Y_ r. i 4^t^ . ^.-!q^" a 9€,ilU11C1C

reslaue test _r1ad 1FZdeecl been perfcrmeci on the VidiIrt. The rr°su? Ls proved positive, fo-T- th^. presence of

gunshot primer ^-esidue on the right hai-id ot'the vfctim. The Co-Defei-^dant was acas^^^^ed,_

Thc Defense also alleges a Bra.o.'y vtolation. ,I ,-cTa.'v v. 1li`ar,d^.jnd:, 373 U.S. 83. Thee-lemonts

necessa.Cu to trigger a BYCIo.')l violation are:

0) Tldc evidence must be favorable io the accused;.,

(ll) 7'he evidence must have ^.7FeFi e11:]'9ei wE141uHy or i?1advevie+?th sLWT"esseC by the

^c,v Gi "s-'ti^7C-ill"

^, li0 Prejudice rnust have--

.it is the opinion of thF Court that the De"fenc`a tt's nourden or PFoof is met 1wridey aBroa;l

anal ^'sts as ^Jel^.. It c G: ist be said that I;.G v!^c Csdll^`J

C'ER'C'1TiC«IT OF SERVltCE

f< CCsaj' oi Ch- foregoing ,boui`nal"EnZiy vc12

^ r âCe as 9Gwtrc v, Trfale, 20I 4-0irdo-3s25, ^

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Z-1,E1L1r7:.li. 17 t"s.P1 LLLAT L i;l S.ll 1L1^ JLLT

COU^^^^ OF'L^^ 17-11 L^GA

JOURNAL ENTRY AND L-PLLLI\,Tr^^. T-004W'!

L 1 -ME OF OLL^61

PL , AiNTTFl_^^ -L_PPLLLANT

Vso

LISHA-H IL RALF,

D Li^ L,N1L-41 T=.L P PLLLLL

JU',LCLL%ENU4A F`.^ I JUM, LD

__-

^ri'MinaF Appeal from tl-ieC"uiyL^^ga ^ou^^^^ Court of Common PLas

Case Lio. CRc09-529253-A

BEFL%RIEo Keough, J,9 Jon.es5 Pe'b,q and McL'oL- mack, J.

RCH LEASED ANM ^.^L UR`^fLLTZEL o July3l9 ^ ^^^ 14

4

/%TL 0,RNT HEYS 17OA APIr". f+,LAA11,?7'

Timothy J. TN1cG^ntvC^yahoga ^^un^T Proseti: utal,By: Aa.ii^^l T. VaxiAssisia.nt Prosecuting A^^^o,°ncw7he Justile;e r^n'tei, gtri Floor1200 ^^ita^i-o StreetC^^^^larid, Ohio 44113

A ^ TO.' {N I Y FOR .';Pi'rELAE E

Michael J. Cheselka75 Public Square, Suite 920C^eveland.. ^hi-c 4411'3-2084

KATHLEEN AI^C`,T T^EO'LJOHS T. ;

f,111) P2aiafiff°'aqppellaat5 the si'^a^t o1 011-61o, app"aL thf trial coLr>u°E.9" decllsifJnt

alld^t^v^^.a^, deff;adai^G-alp-C5t'11 ^,^,, isFal-a Halc-5 iv ^ PffiClira^>V 'hiS g^^^^,^i_Tt^, p}^ea. Foi ihe- i"ca^^^o^ns,tTiat

1QIlow, a^ % ffiEI9'!.

L^^^ In Hafe ';?vas c11a:gE d w]'t}"i ri`YUldex_`9 aggravated robbery, kiOIhap1:;'L1"Ig, aYid

having a iTt%ea^°.xoIi ^,^7hale under Qlis(eliflit}'. Hale's codefendant, ^'^1aS chargCd with

Uaasplracy airlo'.! bzvrag a ^veapoa v,;hF^te- uiAer di-sabrlity, i-Ta 20 I0 l1aRe pIe^^,ded gui11^= ta

,,,afi a^^.e1iâ!Gŝ count Qir involuntary IT.;:a81^,Sla1^g^tte1` ^,k1iiUtl2 a L^'ar^'^;°^^e^i i:ir¢aurR^^:! ,^^^e6Li`,aLiaE"1

Hc was sentenced o a, ^^ta`1 prli^on, temn of eigi:^t ^,,ears.

I,Il3y, Or,,'. 20 1J'-5 Hale fiiEd a motion tF; -Ve1ttjidia^t47 I1i^ ga11t-y 13lea_ aL;^ -i:F1iC7,

basis 9.hat the state disclosed ai, ti`f_'^e trial o1 I:lic^:lG="^ C^ou, tiei_ ii^` t t_e°^^^`^L u_so-^ ^, __ ^ lioL T--, a1ier 7 GIC31li!_T!J!C

vk7as fioanOr oin the vicl:,Pm S r'"o"!nQ5 i74/hich ^h1a5 iafonaiadCsL "E,;q uG^^ed ^.̂''iaj Hale 'i^^^'Plri^^ li.YetIiaT:

^'.fl:scov^ry, but i?i/as not C7: Sc7iCY^eLd to h',a"+_^ • The st1.tLe opposed the 1i otP:oIl and tE:. May 20 Ji

the Lf^ai court c^^'rdaCe^^ E,, hea"ihng oa clie motion.

I2 ^_agaS'^. 2Q1.5. %^'^e trial CQ^un't gu•a.ak.ed Hale's to ^ A ,^Ty^lt^r^i^%v his plea by`^^J^ 1^^ bJi^^Il^^i ^

`i74%rl$tea decSsion•

The '^efyndai.-A's I'vliotior.^ to Wit1^^dravv his GuJft^ Plea, enteree^: ^^^^^ on. Apric^ ^iL9 2010, to correct a manifest i^&^,t^ls'ipCe g^al^saaa^ tG, ra^^e .^2•r o f L^t^e Oh:Q

Rules of Ck iaainal Procedure is granted.

The Defendant, Isiah B. Hale, along with a Co^Defeadant, was chargedwith Murder, pursuant to Ohio Revised Code Sections 2903.02(A) and (B)with ^iiea.rm SpecI^ca^^o-ns. There were two addI^^oiial felony offensesr^fereaegag Mr. Hale. Throughout ^he. premtrial discovery process, theDefeadaiAt maintained that he acted in seIf-defense, 011-Marc],15, 20109 the,results of a gunshot residue test conducted by the Cuyalioga ^^unt^,

6

Coro,nei`'s Tffrice vvere LtC,cived.. The test i:°esu:fs kefle( tcCk that the iC^uj d G;i7 t r rn

TkiirTVP'^d @^aF'e RTanshCtl JrT naer si due Fnz h _

rzght haria.

The defense 1requested, pu?"suarit %o. R'^^e. 16 o-ir tht Qhoi`J' Rules OT C".: cMInaj

Procedure5 aziy evidezlce izNa^^^errall to the defense Sn^^uding the rtsults oi' anygunstiot residue -Lests perforFiied. ouf tllt vlctzi,.r. The State produced t!'r^^.c:rcquestcd discov^^^ inuorimatrion iri its possession. T^-iat ^^^^orn-latican.included ?F1forina$ion firom the ^.,ryo7iCSney"5s 04,Fice - absent any fiGs-alts oTth^gurishot residue test. I^^^^ense coumsel zreIlieo^ on the fact that ^^^ ^unshc^t

residue test had beeD perf^^^^^ed: and advised Mr. Hale to forgo hIs

arT^rma.tive, d^^ense of selfil^ei'eliise. STbs^queritly Mr. I1alc- exiteTred ^

change of plea to Invoflunt.ary h/1a.nslaughteF.

Ori Jan-aary 4, 2011, t1he State disclosed, during the trial of the

Co-T%ef^-ndaiit that a ^urishot residue test had Indeed bee^-^ perT^^^ed on tl^^cavicfiYfi. The itsults proved positive for th^' prescrice of gunshot prrmc=;rFiesxa:ue on tl-e r^^ht hand o^ the F7rcti^^, The C^JDcle^^da,r^.t ^^das acquitted.

Tb.e T,et(':fise also aalI^^ gts ^'^ Br,^'̂,:a^5i ^'1'0l^ltu^rllo Br"odv. l^TGrylai20 373 T Se

03. The elemeIlJts lVeCe,rvsclr7y to UrEgge1_,` a -B`r O'dy vAolat1on ?Dr(;:

(1) T^'^e m.?Tdence m7.st be favorable to- CI-^^^^ ^^C ^^

^.^ue^,

(I j) The evFC'^^^^^^^ ^nuist have been ei^^^̂ heE wil"fulIy or-r,F^^^dvertently supppres.cedd,! ';T thc gov(^--nni^ent.,

(ii 1) Prejudice ur?Dst have ensued,

tt is the LolDrnion of the Caurt that the Defendant's bLiiPc^tn of proof is mei:.^Yxdp-r?^ -B7"adj)a,il!^^lys$s as °,%'ell, lt Inin.slC be, saP.dT1atno one believes tl11at t'I'llF

StatCv iintentiE3na l1^' or e?e7kllt^^l^'^ ^t'P^^.I^helQ: the ^^.^ns^^cs`^' r^;sPOl^cc I_(^ht r^; sul^ts.,

T'his aela.ye®;. dischbsubevkms material tothe issues o,^'guilt as i_t substantiatedthe Defendant's s^^^ ^^^ense ae:^^^^^e a^^d, was tari-tainount to a manifcstinjustice mandatIng the ^^°^.r^tin^; of tRze T^^.ferr^olanTs ^,^^otiori to ^^Tltbdr^.^r hisG1l^ilty Plea.

^^j^L TI^^ state ^.^^^^^.^s tk^^^s ^"ecisnoii9 r ^.^si^^g as its sole ^ssignmei^t of e^n7 that the

trial ^^uri: er^ed, in graiitflng Hale5s inot^on to vvithdn a°^v his guilty 1^^ea,

7

"A notkoIl to @iJtd"E^ravi a plea o.--' guilty or Fie`3 contest may be mad^' oli^^^^

before sen$„isce is FIl"lipClse(k5 b3Jl to correct manifest in"ustrfie Llie roLki,"t after sep Le11GC- may

s^;^ ^sfldE the i`uvdP^Y"1( L^E of GoIP^'rc"e1oY^ 2a^fa j?E k^ ^^iL the ^.e^F^tQ.a1?t to 1^'1^^ ŷ ra^J; ^i^sC11 T^e°`̂

h C, w1yxe^.,' ^rlA^^ a. 32.1, Ti^e ^ 1^rcz^ke Co^r^ c^i' Ohio 1^as aefirr^e ŷ 5 ^r_^aril r̂est 1^ijust1Cc'= -s a

Cic3r or ?1^e^vnV i.^kki ^°^"sl; ^.^". Jl"ale ex Tel. ,Scril2el(^eI' I>. `x'!''CeG"I2^'.^.T^, C ; Ohio S^^.^a .r^13z 1^^^

699 83 (1^^98), T1k1s stsEidard ^^eri-nots a defendart t to withdraw his plea only in

erk^raord1na.?.^' czscs. S'taie v. ^'?n iih, ^9 0 1-1 Tio^ S t.2 c^'^. z 1 C1, 2 6 4 ^6 1 I^T , E . î. ' 1 .^̂ 24'^- ^%I7)^^ ^ ^

The d^,^̂ ^.ei--o, ^g for ^ „^i^^^^^'^^"^z a ^: po.^tsel^^eLlv^^, wit1i^^rav:%^.f of a gu11^^^T 1^1e^., has che bu-f°der^^ cr

estabiIshiT1g the Rxkstence of a manifest InjustLce. icle at paragraph one off-s;jT1ab'^_s,

^ 11 /^ The ^i^^IslCru " g1cii or d;^Ii^j P, C1.Ilm.R, 32,1 moNIoI1 is commiLted te lil-C,

r .sC 3I"„^ E^ivG"e _a%i u_C; tri.dl CC^r= ^'.. a^L j^'ai"cgra^51;`G F:1^I^J oY t_a^ ^^ Vla 9u!s. NT^IC vti1^h^ 1^^'^

reverse a t?"iall cC?urCs Nec..-non aibse-nt ^'^I'^^ abus^ of discretion. 10', citing Siate ^^, Tr7 621 e,

Ohl0 St, 5 d 521, 584N.E.20. 7i."5i `i 9G'2). -A kk'`Fa1 C du1`^i'.; abuses Fts ^i_sGr"̀fl lC^,^2 vTI,1 its^e^. Ft,:

J undgil^ie1^t Ss ^.^I2r e^.s^T1^d'^I^^^, ^ii l' â ; ^Io^^r^T, or ^:^ll^'^cyCJ'1^_sC.iO^I'^2!b>'^. Blakemore r . Bj^'^k'^ad,nf^e, J `"^^^Q

; N J'd l ^i l y !' 19y 450 KE2d: 11 k 4/0 (111,83) .

^evl ^^^1 1r., t scase r^^ c;st^.^.e contends L,.^^r. the ^'^sc;lo^sur^^, of the gunshot rCrs^^e i^^st

does ll1C5' Consbt$aEe a Yl"ro1lif(,.-:s ?i1^^U'_s'.1C^P c^,.aL ^"^^.^'es^^^^t.z-,tes '^.lIe \^e C,c^'.^.Ilo^^ ^â f coL^`2^^11c^;I^^1 a^ ^^l

w^^^^^rawaT of Hale's guilty plea. Specxt-ica1ly, the states directs this court to the fa^^ ^^^E

Hale a.r,^..^owledged shooting thc; vP.ctzm while thy victim vFas poi^r^br^^ a gun at him, ^^^t

tha1Ha1c- never stated that he -\xas being shot at by t1ZC. v1ctim, "I'1ie state seems ^o, allude

8

tha6^ only aflei: learning about Llac presence ^j' tl-ic, gun.shct- joY'-I^^'^et: IGskauG., diG ITar,-; S Stoi5%

cahange. These a.zgLlimciTts -\,,,reLe made arid rejected int1 the tlia?^ co^^^,-.

{' ^I91 The ei/Pd(;nC;(, a1'^^ es-taliiG_?'n'.1 tbi.c^t ^Td2rs ^?,!Cd.d^.ce.C?°. at fi'^c ^^'aaa'^"1?`1^ on T^alcSS^ ^ "-^tQtT(J^i

shcw., tho^^^ in 2010, a tracc evidence report was ^encra`ed 103T tl-ie coroner`',-̂ officc

l'.ollG'F3t,rI1:P the a}=aa^^1InatYCyn (Z the victim. Cdntainc'd, 1if that ^eprJ'rC vVas a finding

^ 4l tl ^̂^:^;,atFng that gunshot p^°rFncr rcsiauc was detecte d̂, a^^ it^la rjzcti^^^`43 rigbt ^^r^.^^^.. ,-)csp-t^

discove--r-y being requested, by Ha,le, the defcnsc dFo' not receive L^..rs rpc^^^it. in fa2ct, the

record'! reveals that tL-iiv repai,"L was i-iot released to, clLhex the state o^- the ^^^^^n,-,c- unti^

Jan-uat"3^ 2011, thG Cl^'s^y prior to the yta.£€ 0'ff thtc triaii against Ha.lcSS c0'dc1ef1danf.. Il: T,^.', clear

dha_t tlic '^%^dthhoY(dhiti^'r" of the r"cpoI"t ^,?F72,W inadvertent by 'clric "o1oF'Y.eI'Ss office, a!,nd ^!ot \)e711 1fb I

by ""hG-, stai.tc..

'Ili0,? ^ic'rt ;c1 Lt c a? no said th^.t whR^n a dc'fcndaI1;t is maTntaini

fl;I1^ ^^^gmerit ai firi^^eE?.

it is ordered V4a$ a^^^^^^^e recover firom appellaI t costs h.G-rtin taxGd,

The court ^^Dds there were Lcasonable grounds for ^I,-Lis appeala

It is oY"(^tred 'Oha2: P, special ma^'^.^da.te issue out of Lh.%S Loi)lr°t directing tht C t:1 , L11^iS^

pleaS couft t-ocam'dla s^^E^^]r^ Y^: ^^^.^6 exPcu%Q^^

A certified co•py of ^^^^s entry ^^iall constPtuEo the p^aa^^da^e pursuant to RJlt?! of

ti1he R-ules oi ^^ppeliato Procedure.

KATHLEEN ANI^,] IvEODUGH5 JUDGE

LARRY A.. J 0l`vTEHSs S-R.5 IJ',J': ., and

114' 1\4c,0RJ-\4ACK, r CUNCUR

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