IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

ROZZELL WOODSON,

Defendant-Appellant.

08-1716CASE NO.

On Appeal from the S t a r kCounty Court of Appeals, Fi f t hAppellate District.

C.A. Case No. 2007-CA-00151

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT ROZZELL WOODSON

5--^-',t-tfoq

Rozzell Woodson #

NAME AND NUMBERMansfield Correctional Inst.

INSTITU'rION

P.O.Box 788, 1150 N. Main St.

ADDRESS

Mansfield, Ohio 44901C'ITY. STATE & ZIP

noPHONE

DEFENDANT-APPELLANT, PRO SE

John D. Ferrero (0018590)

PROSECUTOR NAME

110 Central Plaza South-Ste 510ADDRESS

Canton, Ohio 44702CITY. STATE & ZIP

N/APHONF.

COUNSEL FOR APPELLEE. STATE OF OHIO

TABLE OF CONTENTS

PAGE NOS.

EXPLANATION OF WI-IY THIS CASE IS A CASE OF PLBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL 1QUESTION .........................................................................................................................

STATEMENT OF THE CASE ................................................... :......................... ............. 3.

STATEMENT OF THE FACTS ....................................................................................................3 .

FIRST PROPOSITION OF LAW ........................................................................ .....c...o... .mp. .......an. J.When the Jury forms at the Appellant's Trial are not Titwith R.C. 2945.73-, or Ohio Supreme Court procedural holding in State

V. Pelfrey,supra, His convictions and sentence are viod due to DueProcess violations of the U.S. Constitution ................... 6.

SECOND PROPOSITION OF LAW : ............................ .... ...7.When the Appellant's right to Due Process and to be free fromDouble Jeopardy was vilated when He was convicted of both Traffick-ing of Drugs, R.C. 2925.03 (A)(2), and Possession of Drugs, R.C.2925.11, because the two offenses are allied offenses of similar im-port a defendant cannot be convicted of both charges originating

from the same conduct. R.C. 2941.25, the convictions are void..7.THIRD PROPOSITION OF LAW : .. ...... ................ ............7.

When the Appellant's right to Equal Protection and Due Process perOhio and U.S. Constitutions are violated when He was convicted ofhigher levels of felonies, and recieved harsher sentences becausethe drug at issue was crack cocaine rather than powder cocaine ac-cording to Kimbrough V. U.S. the belief that crack cocaine is a moreharmful drug than powder cocaine is no longer supported by evidenceof a scientific level of certainty .............................. 7.

FOURTH PROPOSITION OF LAW :........................ ... ............9.The Defendant was convicted with insufficiant evidence, and theTrial Court erroneously denied Defendant's rule 29 motion, and Coun-sel failed to object to an unlawful sentence the Defendant was deniedHis sixth and fourteenth Amendment rights under U.S. Constitution.9.

FIFTH PROPOSITION OF LAW:...... .. 9.The Trial Court erred and imposed the remainder of the Defendant'sP.R.C. time from a prior conviction, violating Due Process-prohi-bition of retroactive laws and violating ex-post-facto clause....9.

SIXTH PROPOSITION OF LAW : ... ................... .... ...... ...12.The Defendant was denied Effective assistance of Trial Counsel...12.

CON'CLUSION .................................................:..............................................................................

CERTIFICATE OF SERVICE ................................................................................

APPENDIX:

14.

...... .... .. ..........14.

S[atev. Woodson 2008( ), 2007 CA-OOlSlkPp, N05th Diiltireported

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAI., QUESTION

This case presents six (6) critical issues for the future of Criminal

Defendant-Appellant's in the State of Ohio, being,l)When the jury forms

at the Defendant's Trial are not compliant with R.C. 2945.75, or this courtE

procedural holding in State V. Pelfrey, supra, the Defendant's conviction

and sentence are void due to Due Process violations of the United States

Constitution. 2) When an Appellant's right to Due Process and right to be

free:from Double Jeopardy are violated when He was convicted of Possession

of drugs, as defined by R.C. 2925.11 (A), and drug trafficking under R.C.

2925.03 (A)(2), because the two offenses are allied offenses of similar im-

port; and a Defendant cannot be convicted of both of the charges originat-

ing from the same conduct, R.C. 2941.25 (A)(B), the convictions must be

merged, or set aside, the Ohio Supreme Courts holding in State V. Cabrales,

118 Ohio St.3d. 54, 2008-Ohio-1625, 886 N.E.2d. 681, was also violated when

the Appellate Court allowed this conviction to stand. 3) When an Appellant':

right to Equal Protection and Due Process per Ohio's and the United States

Constitution are violated when the Defendant is convicted of a higher le-

vel of felonies and recieves a much more harsh sentence because the drug

was Crack Cocaine, rather than powdered Cocaine. According to the U.S. Sup-

reme Court in Kimbrough V. U.S.. the belief that crack cocaine is a much

more harmful drug than powdered cocaine is no longer supported by scienti-

fic evidence. 4) When the Trial Court errs and abuses it's discretion when

denying a Defendant's Motion for rule 29 acquittal because of insufficient

evidence was presented by the State at Trial to prove beyond a reasonable

doubt that Appellant committed the crimes for which He was convicted, while

the Defendant is deprived of effective assistance of Counsel for Counsel's

failure to raise objection to the unlawful sentence and conviction, abroga-

ting the Defendant's right to properly raise those issues on Appeal. 5)When

1.

the Trial Court errs and abuses it's discretion by imposing the remainder

of the Appellant's Post Release Control time from a prior conviction from

1998 when the Defendant was never notified of P.R.C., and was never noti-

fied that if He committed a new felony that His Post Release remaining

time could be imposed as an additional sentence, from one year to the re-

mainder of the Post Release Control. 6) When a Defendant is denied effec-

tive assistance of Counsel when Trial Counsel fails to raise an objection

to an illegal sentence and convictions, thus abrogating the Defendant's

right to properly raise on Appeal those issue the case must be remanded.

The Appellate Court's egregious decision/Opinion must be corrected by

this Court, the Appellate Court has rewritten, or substituted, the factual

record from the Defendant's previous conviction in 1998, to include a plea

Bargain that did not exist, being, a provision within the Plea Bargain

stating,"The Defendant is notified that if He is convicted of a new felony

while on P,R.C. He is subject to an additional term of prison for one (1)

year up to;.the remainder of His P.R.C. This Revised Code, R.C. 2929.14.1

did not exist in 1998, and no other provision of the Ohio Revised Code en-

forced this additional sanction, but the Appellate Court found that the

Defendant had signed a Plea Bargain agreement that contained R.C. 2929.14.1

language, this expansion of the record by the State of Ohio is unlawful.

Also the Appellate Courts decision/opinion is flawed concerning the

Defendant's Jury forms not being in compliance with State V. Pelfrey, supra

and R.C. 2945.75, but again the Appellate Court egregiously re-wrote Ohio

Law without this Courts procedural ruling.

Lastly, the Appellate Court has denied the Defendant protections again-

st the freedom from Double Jeopardy when it affirmed the Defendant's charge

of Trafficking Drugs, R.C. 2925.03 (A)(2), and Possession of Drugs, R.C.

2925.11 (A), when both charges arose from the same conduct, also violating

Ohio's R.C 2941.25 allied offenses of similar import.

2.

STATEMENT OF THE CASE

On December 29, 2006 the Defendant-Appellant Mr. Woodson, (herein-

after Mr. Woodson), was arrested for having Weapons under Disability, a

violation R.C. 2923.13 (A)(2), Possession of Cocaine, a violation of R.C.

2925.11 (A)(C)(4)(e), Trafficking in Cocaine, a violation of R.C.§2925.

03 (A)(2)(C)(l)(e).

On January 9, 2007 Mr.. Woodson was indicted by the Stark County Grand

Jury in case no. 2007-CR-0070B for one count of Traficking Cocaine as list-

ed above, one count Possession of Cocaine.as listed above, one count of

having weapons under disability as listed above..

On February 9, 2007 Mr. Woodson appeared with Counsel and was arraign-

ed, where He plead not guilty to the charges and continued to Jury Trial

on April 23, 2007.

Prior to Trial, on March 14, 2007, the case proceeded to hearing on

Mr. Woodson's Motion to Supress evidence obtained as a result of an ille-

gal Search and Seizure that occured when He was illegally stopped for Traf-

fic violations. Following testimony, the Trial Court ruled from the bench,

denying the Motion to Supress evidence.

On April 23, 2007, the case proceeded to Jury Trial. Prior to the

start of the Trial Mr. Woodson renewed His Motions and objected to the

inclusion of evidence as outlined in the Motion to Suppress. The Court

overruled the Appellant.

At Trial, the State presented five witnesses who testified that dur-

ing the early morning hours of December 29, 2006, Trooper Shawn Basker-

ville, of the Ohio State Highway Patrol, initiated a traffic stop in Can-

ton, Ohio on the vehicle that was driven by Mr. Woodson, for a speeding

violation. (Suppression Tr. 8). Trooper Baskerville approached the car

and observed George Taylor (Passenger) "busting the guts of a cigar".(Sup.

Tr. 8) Baskerville did not smell, or see, Marijuna.(Sup.Tr. 52). Neither

3.

Mr. Woodson or Taylor was smoking Marijuna. (Sup.Tr.52) Baskerville Miran-

dized both Mr. Woodson and Taylor and began to question them. Both, Mr.

Woodson and Taylor denied drugs were in the car. (Sup.Tr. 9-10).

Baskerville placed Mr. Woodson into His cruiser. (Sup.Tr. 10) Mr.

Woodson provided Baskerville with the name of Jamar Moore and a Social

Security number that did in fact return to Jamar Moore. (Sup.Tr. 10). Bask-

erville did nothing with regard to what He believed to be drug activity

going on in the car. (Sup.Tr. 10-11). After Mr. Moores information clear-

ed, Baskerville informed Mr. Woodson that He was going to recieve a cita-

tion. (Sup.Tr. 11). Mr. Woodson allegedly became irate. (Sup.Tr. 11).

Subsequently, Baskerville decided to call dispatch and request a drug

dog after speaking with Mr. Woodson. (Sup.Tr.11-12). Baskerville's justi-

fication for calling for a drug dog was the fact that the car was a ren-

tal, Taylor was "busting the guts out of a cigar", Mr. Woodson's comment

that He gave Baskerville the correct information, and Baskerville's own

feeling that Mr. Woodson and Taylor were being deceptive and nervous. (Sup.

Tr. 12). On cross examination Baskerville admits that the stories Mr. Wood-

son and Taylor told Him could both be true. (Sup.Tr. 49).

Ultimately, the jury found Mr. Woodson guilty of one count of Traf-

ficking in Cocaine, one count of Possession of Cocaine, and one count of

Weapons under Disability.

Whereupon the Trial Court sentenced the Appellant to ten (10) years

in prison to Trafficking in Cocaine, Ten (10) years for the Possession

of Cocaine to be served concurrently to each other. The Trial Court also

sentenced the Appellant to five (5) years to the Having a Weapon under

Disability to be served consecutively to the ten (10) years He was sen-

tenced for the drug offenses.

In addition, the court imposed the balance of time Appellant had re-

4.

maining on Post release Control, which amounted to 2 years and 144 days,

to be served consecutively with sentences Appellant was Ordered to serve

for the offenses in this matter.

Appellant filed an Appeal timely to the Fifth District Court of Ap-

peals for Stark County, Ohio. The court of Appeals affirmed the conviction

and sentence, concluding that (1) the Trial Court did not err by denying

the Appellant's Motion to Supress evidence that was obtained as a result

of an illegal search and seizure after being unlawfully detained. (2) That

Trooper Baskerville's suspicion was reasonable given the circumstances

and events; and (3) Appellant failed to demonstrate a violation of His

Fourth Amendment rights against illegal Search and Siezure.

The Decision of the Court of Appeals seriously undermined the basic

tenets of the Fourth Amendment to the United States Constitution and Arti-

cle I, section 14 of the Ohio Constitution. But was not corrected by the

Ohio Supreme Court.

Appellant retained New Counsel and had Him file a reopening of ap-

peal pursuant to App.R. 26 (B), in which New Counsel discovered six (6)

additional assignments of error that were viable and were not raised by

prior Appellate Counsel. Motion for reopening of Appeal was filed on or

about May 9, 2008 by Counsel of record Jana L. DeLoach (0071743).

The Appellate Court rendered a Decisio.n and Opinion on or about July

14, 2008, and denied the Appellant's Motion for reopening of Appeal.

This Appeal to the Ohio Supreme Court in the form of a Memorandum

in Support of Jurisdiction is as follwos.

5.

FIRST PROPOSITION OF LAW

Proposition of Law no. I: When the jury forms at the Appellant's

Trial are not compliant with R.C. 2945.75, or the Supreme Court

procedural holding in State V. Pelfrey, supra, His conviction

and sentence are void due to Due Process violations of the Uni-

ted State Constitution.

R.C. §2945.75 (A)(2), requires the following:

(A) When the presence of one or more additional elements makes an of-

fense one of more serious degree:

(2) Aguilty verdict shall state either the degree of the offense of

which the offender is found guilty, or elements present. Otherwise, a guilt

verdict constitutes a finding of guilty of the least degree of the offense

charged.

In 2005, the above section of the Ohio Revised Code was addressed by

the Supreme Court of Ohio in State V. Pelfrey, (2007), 112 Ohio St.3d. 422.

The Pelfrey court nnltimately ruled that, per R.C.§2945.75, a verdict form

signed by a jury must include either the degree of the offense of which th

Defendant is convicted or a statement that an aggravating element has been

found to justify convicting the defendant of a greater degree of a crimina

offense. The Supreme Court further ruled that if the verdict forms failed

to provide the requirements as set forth in the Revised Code, then a guilt

verdict constitutes a finding of guilty of the least degree of the offense

charged.

In the present case, the verdict forms did not state the degrees of

felonies of which Mr. Woodson was convicted. Furthermore, the verdict

forms did not state each and every element of the crimes that Mr. Wood-

son was convicted of committing. Due to these deficits, the Trial Court

erred and violated the Appellant's Due Process rights in convicting and

sentencing Mr. Woodson to anything other than the lowest form of the of-

fenses of which He was convicted.

6.

SECOND PROPOSITION OF LAW

When the Appellant's right to Due Process and right to be

free from Double Jeopardy was violated when He was convicted

of Possession of Drugs, as defined by R,C.2925.1.0, and Drug

Trafficking, under R.C. 2925.03 (A)(2), because the two of-

fenses are allied offenses of similar import; and a Defendant

cannot be convicted of both of the charges originate from the

same conduct. R.C. 2941.25 (A)(B), the must be merged.

Where the same conduct can be construed to constituCe two or more al-

lied offenses of similar import, a defendant can only be convicted to only

one offense. R.C 2941.25 (A). However, if the Defendant's conduct results

in twq or more offenses of the same or similar kind committed separately or

arising from a separate animus, the defendant may be convicted of both R.C.2941.25 (B).

The Supreme Court of ohio has held that where the elements of two or more

offenses correspond to such a degree that the commission of one results

in the accomplishment of the other, those crimes are allied offenses of

similar import, and a defendant cannot be convicted of both. State V.Rance,

(1999), 85 Ohio St.3d. 632, 638.

The Trial Court had no authority to enter convictions against Mr.

Waodson violations of both R.C. 2925.11 (A) and 2925.03 (A)(2), His con-

viction must be void.

THIRD PROPOSITION OF LAW

When the Appellant's right to Equal Protection and Due Process

per Ohio's and the United States Constituions were violated when

He was convicted of a higher level felonies and recieved a much

harsher sentences because the drug in issue was crack cocaine

rather than powder cocaine. According to the United States Supreme

Court in Kimbrough V. U.S., the belief that crack cocaine is a

much more harmful drug than powder cocaine is no longer supported

by scientific evidence.

Finally, after twenty years of application of the unjustified disparity

between crack cocaine and cocaine convictions and sentences, the United

7.

States Supreme Court recognized that the disparity existed and charged

that it is unjustified and unfair in Kimbrough V. U.S.(2007), 128 S.Ct.

558, 169 L.Ed.2d. 481.

Ultimately the Kimbrough Court held that the crack/powder disparity

is an appropriate consideration for a District Court in determining a sen-

tence under I8 U.S.C. 3553 (a). The Court grounded its finding on the fact

that the sentencing,commission did not establish the 100:1 ratio between

crack and powder punishments based upon empirical data, as it did other

guideline provisions, but instead adopted the ratio based on the statu-

tory, weight-driven, mandatory minimum and maximum sentences. Further,

after the establishment of the 100:1 ratio, the sentencing Commission re-

peatedly reported on its inequities, and encouraged Congress to act to

change it. Thus, the Court concluded that a District Court may consider

any "Unwarranted disparity created by the crack/powder ratio itself" in

fashioning an appropriate sentence based upon the 3553 factors.

Shortly after the holding in Kimbrough, the United States Sentenc-

ing Commission-which dictates sentencing policies and guidelines for the

Federal Government-determined that the sentences of almost 20,000 federal

pricsoners should be amended and reduced-to correct an injustice.

Ohio, by and through its courts, must now correct an injustice-or rat-

her many many injustices. To refuse to correct the injustices suffered by

thousands of incarcerated Ohio Citizens would result in a tragedy and the

loss of thousands of years in human life, not to mention the enormous

costs to Ohio Taxpayers. In addition, to uphold such sentences-which have

resulted in severe racial discrimination-would equate thousands of Indi-

vidualsts continued suffering from that discrimination.

Mr. Woodson moves this Honorabie court to consider the issues present-

ed by the United States Supreme Court in Kimbrough V U.S. and apply those

issues to the case at hand.

8.

PROPOSITION OF LAW NO.Four

When the Trial Court errs and abuses it's discretion when deny-

ing the Appellant's motion for rule 29 acquittal because insuf-

ficient evidence was presented at Trial to prove beyond a reason-

able doubt that the Appellant committed the crimes of which He

was convicted. The Appellant was denied effective assistance of

Trial Counsel when Trial Counsel failed to raise an objection

to an unlawful conviction and sentence, thus abrogating that

defendant's right to properly raise those issues on Appeal, vio-

lating the defendant's sixth and fourteenth Amendment right to

Due Process and the right to Effective Assistance of Counsel.

When reviewing a claim of insufficiency of evidence, the relevant in-

quiry is whether any rational fact finder, viewing the evidence in a light

most favorable to the state, could have found the essential elements of

the crime beyond a reasonable doubt. Jackson V. Virginia, (1979), 443 U.S.

307, 319, 99 S.Ct. 2781. State V. Jenks, (1991), 61 Ohio St.3d. 259, 547

N.E.2d. 492, paragraph two of the syllabus.

In essence, sufficiency is a test of adequacy; whether the evidence

is legally sufficient to sustain a verdict is a question of law, State V.

Robinson, (1955), 162 Ohio St. 486, 55 Ohio Op. 388, 124 N.E.2d. 148. In

addition, a conviction based upon legally insufficient evidence constitutes

a denial of âue Process. Tibbs V. Florida, (1982) 457 U.S. 31, 45, 102 S.

Ct. 2211, 2220., citing Jackson V. Virginia, (1979), 443 U.S. 307, 99 S.

Ct. 2781, 61 L.Ed.2d. 560.

The Trial Court erred and abused it's discretion when it failed to

grant Mr. Woodson's Motion for Acquittal pursuant to Crim.R. 29. Further-

more, trial Counsel erred in failing to preserve this crucial issue.

Therefore, Mr. Woodson's conviction must be reversed.

PROPOSITION OF LAW NO. FIVE

When the trail Court errs and abuses it's discretion by imposing

the remainder of the Appellant's Post Release Control time from

9.

a prior conviction for four reasons: 1) The Appellant was not

properly informed that He would be subject to Post Release Con-

trol in His 1998 (1998 CR 0347B) case; 2) the Trial Court fail-

ed to verify that the Appellant was properly notified that He

would be subject to Post Release Control (PRC) and additional

time in prison if convicted of an additional offense while on

P.R.C.; 3) The Appellant was not informed that He may (Or would)

be subject to additional and consecutive time in prison if con-

victed of an additional offense while on PRC; and, 4) the Trial

Court improperly sentenced the Appellant to the remainder of His

Post Release Control time rather than 90 days in prison, violating

the United States Due Process and prohibition against retroactive

laws, and violation of the United States Ex-Post-Facto prohibi-

tion.

The Appellate Court misapplied Law at the time of the Defendant's or-

iginal conviction date for the 1998 crime that placed the Defendant on P.

R.C. At no time did the existing Law appear in Ohio Revised Code Title 29

stating that if convicted of a New Felony the Post Release Control Parolee

would face an additional sentence from one (1) year up to the remainder of

His P.R.C. Where the Appellate Court found this citing, or fabricated the

one used,is b.eyond the Appellant. But, as stated,the enhancement did not

exist,therefore, the Defendant-Appellant could not have signed a Plea agree-

ment with the enhancement included. The Appellate Court's ruling is flawed.

Revised Code 2929.14.1 did not exist when the Defendant was first sen-

tenced to His 1998 conviction and sentence, R.C. 2929.14.1 was promolgated,

or inacted,on 7/08/02, where the Appellate Court obtained a Plea Bargain

signed by the Defendant that included a notification of an additional sanc-

tion for committing a new felony, and recieving one (1) year up to the re-

mainder of the Defendant's P.R.C. time as a prison sanction is obviously

a fake, or a tampered document.

In State V. Jordan, 104 Ohio St.3d. at 25-26 the Supreme Court of Ohio

10.

explained that, regardless of whether the post release Control is manda-

tory or discretionary, notice to a Defendant about Post Release Control,

along with incorporation of this notice in a trial court's sentencing en-

try, is what "empowers the executive branch of government to exercise dis-

cretion" Id. at 27 (emphasis added). Accordingly, in Hernandez V. Kelly,

(2006), 108 Ohio St.3d. 395, 844 NIE.2d. 301 the Supreme Court of Ohio firm-

ly and explicitly held that, when a trial court has failed to journalize

a Defendant's term of Post Release Control and the sentence and the A.D.P.A.

determination that the Defendant had violated His Post Release Control

and the sentence the APA imposed upon the defendant for such violation were

unlawful. Id. at 397. Moreover, because the defendant in Hernandez had ful-

ly served His original sentence, the Court ordered that He be released from

prison and from any other Post Release Control. Id. at 401, The Court em-

phasized that such a result "avoids any potential separation-of-powers pro-

blems." Id. at 398.

On July 11, 2007, in State V. Bezak the Supreme Court of Ohio address-

ed the issue of Post release Control and notice thereof. The Bezak Court

held that "When a term of Post Release Control is not properly included in

a defendant's sentence for a particular criminal offense, the sentence for

that offense is void and the Defendant is entitled to a new sentencing hear-

ing for that particular offense.

In Bezak, the Supreme Court of Ohio, by and through Cheif Justice Moyer

indicated that "The Court of Appeals remanded the matter to the trial Court,

stating that Bezak's case 'must be remandzd for resentencing so that Ap-

pellant may be advised that He is subject to Post Release Control***. How-

ever, in such a resentencing hearing, the trial court may not merely in-

form the offender of Post Release Control and automatically reimpose the

original sentence. Rather, the effect of vacating the Trial Court's origi-

11.

nal sentence is to place the parties in the same place as if there had

been no sentence. Therefore, the decision to vacate Bezak's void sentence

would require the Trial Court to resentence Bezak as if there had been no

sentence.

In the matter at hand, Mr. Woodson was not given notice that He would

be subject to PRC in 1998. Even though He was not notified that He would

be subject to PRC after completing that sentence, the Adult Parole Author-

ity had subjected Him to PRC. Doubly, the Defendant was never notified that

He was subject to any sanctions under R.C. 2929.14.1, and that if He com-

mitted another felony while on PRC He would be subject to sanctions of a

consecutive sentence of one (1) year up to the remainder of His P.R.C. And

because the Defendant was released from prison prior to being given such

notice, or notice of a potential P.R.C. sanction for committing a New Fel-

ony, PRC and the sanction for committing a new felony was improperly imposed,

Not only was Mr. Woodson not informed of P.R.C., the Trial Court fail-

ed to verify that He had such notices; that He would be subjected to addi-

tional prison time i,.f convicted of an additional offense; and, that if con-

victed of an additional offense, He would recieve more than ninety days,

or up to nine (9) months in prison for a violation of P.R.C.

PROPOSITION OF LAW NO. SIX

When a defendant is denied effective assistance of trial counsel

when trial counsel fails to raise an objection to an illegal con-

viction and sentence, thus abrogating that defendant's right to

properly raise that iasue on Appeal the Appellant is denied Ef-

fective Assistance of Counsel as required under the United States

Constitution.

Mr. Woodson's trial Counsel was ineffective when He failed to raise

objections regarding Mr. Woodson's illegal convictions and sentences. That

failure prejudiced Mr. Woodson during Trial, at sentencing and within his

12.

appeal. Had Mr. Woodson's Trial Counsel preserved the appropriate issues

for appeal, the result of His sentencing appeal would have been different.

"A two step process is employed in determinin,g whether the right oo

effective assistance of counsel has been violated". State V: Jefferson,

(Mar. 21, 2001), 2001 WL 2763, 9th App.Dt. The Appellant must first show

that trial counsel made errors so serious that counsel was not functioning

as the counsel guaranteed the defendant by the Sixth Amendment. Id. Second-

ly, the Appellant must show that the deficient performance prejudiced the

defense which requires a showing that counsel's errors were so serious as

to deprive the defendant of a fair trial. Strickland V. Washington, (1984),

466 U.S. 668, 687.

In deaonstrating prejudite, the defendant must prove that "There

exists a reasonable probability that, were it not for counsel's errors,

the result would have been different". State V. Bradley, (1989), 42 Ohio

St.3d. 136, paragraph three of the syllabus. In addition, the Court must

evaluate "The reasonableness of Counsel's challenged conduct on the facts

of the particular case, viewed as of the time of counsel's conduct".

Strickland V. Washington, 466 U.S. at 690.

Mr. Woodson was improperly convicted and sentenced based upon the

aforementioned issues. Trial Counsel failed to raise those issues during

Mr. Woodson's Trial and at His sentencing. Furthermore, trial counsel

failed to preserve the issues now before this court; thereby, effective-

ly waiving such errors unless the doctrine of Plain Error can be applied

to the issues at hand.

Wherefore, based upon the abovementioned issues that could have been

raised during Mr. Woodson's initial Appeal, Mr. Woodson, in Pro-Se, here-

by moves this Court to accept Jurisdiction of these issues.

13.

CONCLUSION

This case raises a substantial constitutional question, involves a felony and is one of

public or great general interest. Review should be granted in this case.

SICiNATUM

Roz;sell Woodson #__-y ok_i

NAtvE AND NUMBER

Mansfield Correctional Inst.

INSTITUTiON

P.O.box 788, 1150 N. Main St.

:1DDRESS

Mansfield, Ohio 44901

CITY. STATE & ZIP

DEFENDAIv'1'-APPELLANT, PRO SE

CERTIFICATE OF SERVICE

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

Appellant Rozte11 Woodson , has been served by U.S. mail postage pre-paid to

110 Central Plaza South-St 510 Canton, Ohio 44702^rosecuting Attomey

Rozaell Woodson #44;92*6^7

N?.ME AND NUIvIHER

DEFENDANT-APPELLA:JT, PRO SE

14.

1'1'11 L C-CLERK OF' COUkTS

s;TATt_: O-r. OHIO:STARK COUN,Y, OH4Q

S'1'ARI< C:GUNTY :SS: 1pp1 APR 24 AH I l-2{ IN THE :^OURT OF' COMMON PLEAS

S'PARK COfINTY, OIfI9

S?`ATt; OF' Oi1TU CA,"ir, NO. 2007-CR-00108

PLAINTIFF HON. LGE SINCLAIR

VERAICT - COUNT ONETRAFF'ICKING IN CcYCAItJE

RO'LEI,L RC)MJNT WDODSON

f)GFENUANT

WE, THE J[7RY FiEIN(+ DULY IMPANE;,ED AND SWORN ^.Y.I WELL AND

PRULY TRY AND TRUE i?LLIVliRANCE MAKE BETWY EN THE SI'A'1'E OF OHIO AND

THE DEFI:;NDANT, ROZI:LL ROMqNT N'ODDSON, DO "ING THF; DEFENDANT

* k--k: S^1^O

THT5 INSTttUCTION.

OF TR71F`F'IC({-INC IN COCAINE, AS JEFINEf1 IN

*FILL IN THE APPROPRIATE TERN! "GITILT:Y" OR "NOT GUTLTY" IN INK.

EACH OF US JURORS CONCURRING IN SAID VERDICT SIGNS

!1iS/HF.R NAME HERF.T.O ',"iiSS ,;ay•

"t;,4. GGIA1II.515CLE;RK OF COURTS

OF oH 1cO: STARK COUN , i. OHIOSTATE

S'I'ATF OL' OI1IO:

STAtIK COUNTY

STHTl,; OF 01110

SS:

^.t̂.:_GLERn OfCO.:Rr^

STARK COUNTY.OHIO

200i APR 24 AM ^ I^ tI

FLAINT; Fi'

1N i'HE COURT OF COMMON L'LGASSTARR ("1111NTY. ()HT(-I

CASE NO. 2007-CR-007UB

HON. LEE S_TNCLAIR

-VS -

ROZELL ROMONT WOODSON

DEFENDANT

WE,

ADDITIONAL FINDING - COUNT TWOAS Tb TFIE AMOUNT OF CRACK COC:!'.AIJk: THEDEF67NDANT POSSF;.S$PD ANSWER ONI.Y IF YUt)FOUNU TJ1F, DEFENUANT rUI-J'Y OFPOSSR95jLON OP COCAINE

1'liE JURY BEINC DULY IMPANELED AND SWORN FIND THE

STATE PROVED BY PROOF BEYOND A REASONAE3LE DOiIEIT THE DEFENDANT

?OSSe;SSED CRAC:K COCAiNE IN THE f'OLLOWING AMOUNT:

LF.3S TH.AN ONF. GFaM OF CRACtK COCALNE

AQUAL$ G'R EXOLEUSONE GRAM 6UT 4ESii THAN E'IVC BRAMS OF CRA

d/27/7 JLG 1 & 6

*'i1e::/F3AUEk/JDF/Paula/*PD/JailCLLi^^:. ^.•t:i:.

200i MttY -2 pi9 3: 21

T_N THE COURT OF CO4ON PLEAS

STARK COUNTY, bxzo

STATE OF OHIO,

Plaintiff,

CASE R{f0, 2007CR0070 (B)

JUDGE V. LEE SINCL'FaIR

vs.

ROZELL ROMONT WOOI7SON, FOUND!GIIILTY BY JURY AfID

SENTEP7CE IMPO:Ep

Defendant.

This day, April 23, 2007, this caiase, having been regularly

ass:igned for Trial, came on for hearinI ^r before the Jury, the same

being duly impaneled and sworr, upon t e Indictment for the

crimes of Trafficking in Cocaine, 1 Ct.,

ER.C.2925.03(A)(2)(C)(4)(f)](F1), Possiession of Cocaine,l Ct.

ER.C.2925.11(A)(C)(4)(e)](F1) and Havi:

Disability, 1 Ct. [R.C.2923.13(A)(2)an

g Weapons Urxder

/or(A) (3)] (F3) as cha.rged

in the Indictment, and the Plea of NotiGui]ty heretofore entered

by the defendaut, upon the evidence prl

sC.ate of Ohio and on behalf of Che det!

The Jury, having been duly chargel

^)duced on bchalf of the

LndanL.

^ as to the law of the

5t::ate of Ohio, and after due de7iberat^on on Apri1 24, 2007,

L-1

agreed upon their verri_'.ca, whereupon they were conducted in Open

Court in :.l-e pre.sence of the defcndant and his Ar.to.rney, and ttie

ve.x dir_'t, signed by all mcmDe.r^^ of the Jury, wa., read to the

dere dant, and the verdict given, being such as tiie ;:oart may

receive it, was immed;iate;ly en::ered in full upun tt•.e minutes. It

was the unanimous verdict of the Jury that the defendant is

gui:i.tv of the c.rlrnes of Trafficking in Cooaire, 1 Ct.

[R.C.2925.03(A)(2)(C)(9)(f)](F1), Possession of Cocaine,l Ct.

fR.C.2925_11(A)(C)(9)(e)](Fl) and [Iaving Weapons Under

Disability, i Ct.. [R.C.2923,13(A)(2)and/or(A)(3)](F3) as charged

in the Indictment. Thereupon the Prosecuting At.t_orney moved that

sentence be pronouncod against sa5d defendant on npril 24, 2007.

On April 24, 2007 the Cour1: was duly informed in the

preciises on the part of the State of Ohio, by the Prosecuting

Attorney, and on the part of r.he defendant, by the defendant and

his Counsel, and thereafter the court asked the defendant whether

he had anything to say as tn wliy judgment should not be

pronounced against hirn, ard the defendant, after consulting witll

his Counsel, said that he had nothing further to say except that

which he had already said, and showing no good and sufficient

reason why sentence should not be pronounced, the Court t_hereupon

pronouncc,d sentence.

The Cou:t Tind,s that defendant has been convicted of or

pi.ead gu:i..lt.y to a fel.orsy and/or a misdemeanor as listed in

division (U) of R.C. 2901.07 and hereby ORDERS that a sample of

defcndant's DNA be collected pursuant to (?h-io Reviscd Codc

Section 2907..07.

IT IS THEREPORE ORllERED, P.DJUDGED AND DECRf;ED tixat the

dcf.endant serve a stated prison term o*_ ten (10) years on the

charge of Traffieking in Cocaiue, ; Ct.

(R.C.2.9?.5.03(A) (2) (C) (4) (f)] (Fl), arid

22 IS THEREFORE ORDERED, ADJUDGE AND DECREED that the

defendant shall serve a stated prisoniterm of ten (10) years on

the charge of Possession of Cocaine,l Ct,

(R.C.2925.11(A)(C)(4)(e)j(F1), and

IT IS FURTHER ORDERED, ADJUDGED A¢sD DECREED that the

defendant shall serve a stated prison term of five (5) years on

the charge ot Having Weapons Under Disility, 1 Ct.

(R,C.2923.13(A)(2)and/or(A)(3)](F3), alpd

IT IS Ff7RTHER ORDERED, ADJUDGED AIID DECREED that the

defendant shall serve Counts Orie and T^o concurrently, but

conseeutivc! with Count Three, atld

The defendant shall serve a p.riso^ term ecqual to the

remainder of his post release control ime in Stark County Common

Pleas Case Number 1.998CR0347(B), that ^ime being two (2) years

and one hundred forty-four (144) days, to be served consecutively

with defendant's prison term in this sentence, for seventeen (17)

years and one hundred forty-four (144)

The Court has further notified th

days.

defendant that post

release control is mandatory in this case up to a maximum of five

(5) years, well as the consequences for violating conditions

of post release control iinposed by the Parole Board under Revised

Code Section 2967.28.

IT IS FURTHER ObtDERE:D, ADJffDGrD ^1ND Dk.CREED that the

defendant is or.dered to serve as partiof this sentence any term

of post releaEe control imposed by th Parole Boa:rd, and any

prison term for violation of that poso release control.

IT IS FC7RTHEIt QR.DERED, ADJUDGED AfD DECREED t'.hat the

defendant is entitled to jail time cre}lit which wi17, be

calculated by the Sh.eriff and the numbllr of days inserted in a

certified copy of an order which shalllbe forwarded to the

institution at a later date.

IIS FURTHER ORDERED, ADJUDGED P.AjI7 DECREED that any law

enforcement agency having custody of evidence in this case may

dispose of said evidence nursuant to oiilso Revised Code Section

2933.41 after the appropriate time perilld has passed and provided

no appeals are pending in the above cap^,iored case.

?T IS cURTRER ORDERED, ADJUDGED AND 7)ECREED thatt the

defendant pay the costs of this prosecu$ion for which execution

is hereby awarded.

^G,̂V LZR SSNCLAIR

APPROVED BY:

4^_._.. . .^.-

^OHN D. F$RRERO, #F00185J0

^^ ROSEC'UTING AT'I^)RNEYI

PREDERI' GI R. SCOTT, # 00(i0049ASSTST'r^q7T PROSECUTING A'1'TORNEY

,sTA.- OP oHlo:^iARKCOUN ol'.pNIC

t;iARK COUNTY ^2pOt APR 24 AtM1 f I' 21LN THR COURT OF COMMON PLEAS

STARK COUNTY, f_1HI0

STATE OF O!1IU CASL N0. 2007-CR--01070B

PI,AINTIFF HON. LEE SINCLAIR

rN/ E eVS VERDICT - COUNT fiIP6

WEAPONS []NUk:R D'SAB:f.1:TYROZELL ROMONT WOOUSON

DEFENDANT

WE, TiiR JfIRY BEING DUL,Y 1MPANELED AND SWORN TO WELL ANL)

TKULY TRY AND TRUE UELIVF,RANC:E MAKE 13ETWF:EN THE STATE OF OHIO ANn

^.'t1E DEFENDANT, ROZELL ROMONT WOODSON, DO FIND THEI DEL''ENDANT

OF HAVING WEAPONS U'.JDER DISABILI".'Y, AS

DEFTNEC) IN THIS INSTRUC'1'ZCN.

*PILL IN THE APPROPRIATE TERM "GUZLTY"OR "NOT GUZLTY" TN INK.

EACH OF US JURORS CONCURRING IN SAID VER^ICT..^

HiS/HF.R NAME HERETO THIS '1^17DA DAY OF AYRSL, 2007,

46iak_..#Y5FOTP,[l 501'f

k̂ \^^1, ^ ^ ^3J y

5^^^?10 V^^I

IN THE COURT OF APPEALS FOR STARK COUNTY, OHO .^ ,

JU^ ^FIFTH APPELLATE DISTRICT 4 P^j 2. 3g

STATE OF OHIO

Plaintiff-Appellee

-vs-

ROZZELL WOODSON

JUDGMENT ENTRY

Defendant-Appellant CASE NO. 2007-CA-00151

For the reasons stated in our accompanying Memorandum-Opinion, appellant's

motion to re-open his appeal is hereby DENIED. Costs to appellant.

&i , ^ G`-Gt , 7^rl_

HON. W. SCOTT GWIN

N. JOHN W. WI S

/ Gc7t..a1t^11N. JULIE A. EDWARDS

COURT OF APPEALSSTARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIOJUDGES:Hon. W. Scott Gwin, P.J.Hon. John W. Wise, J.

Plaintiff-Appelfee . Hon. Julie A. Edwards, J.

-vs-Case No. 2007-CA-00151

ROZZELL WOODSON

Defendant-Appellant : 0 P I N 10 N

^ FHl^•,c• ^y

CHARACTER OF PROCEEDING: Criminal appeal from the Stark CountyCourt of Common Pleas

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

Denied

For Defendant-Appellant

JOHN D. FERRERO JANA L. DELOACHProsecuting Attorney 125 N. Arlington Street110 Central Plaza South, Ste, 510 P.O. Box 2385Canton, OH 44702 Akron, OH 44309

A TRUE COPY TESTE:NANCY OLD, CLERK

By

.EgS9. ...........te

p

Stark County, Case No. 2007-CA-00151 2

Gwin, P.J.

{¶1} This Court is re-opening appellant's case in order to consider the motion

filed by appellant Rozzell Woodson's to re-open his direct appeal pursuant to App. R.

26(s),

{12} On February 19, 2008 this Court upheld appellant's conviction and sentence

on one count of trafficking in cocaine, one count of possession of cocaine, and one

count of having weapons under disability. See, State v. Woodson, 5`h Dist. No. 2007-

CA-001104, 2008-Ohio-670.

(13) App. R. 26 (B) states:

(14) (B) Application for reopening:

(15) (1) A defendant in a criminal case may apply for reopening of the appeal

from the judgment of conviction and sentence, based on a claim of ineffective

assistance of appellate counsel. An application for reopening shall be filed in the court

of appeals where the appeal was decided within ninety days from journalization of the

appellate judgment unless the applicant shows good cause for filing later.

{¶6} (2) An application for reopening shall contain all of the following:

{T7} (a) The appellate case number in which reopening is sought and the trial

court case number or numbers from which the appeal was taken;

{¶8} (b) A showing of good cause for untimely filing if the application is filed more

than ninety days after journalization of the appellate judgment.

{^9} (c) One 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

Stark County, Case No. 2007-CA-00151 3

any appellate court or that were considered on an incomplete record because of

appellate counsel's deficient representation;

{110} (d) A sworn statement of the basis for the claim that appellate counsel's

representation was deficient with respect to the assignments of error or arguments

raised pursuant to division (B) (2) (c) of this rule and the manner in which the deficiency

prejudicially affected the outcome of the appeal, which may include citations to

applicable authorities and references to the record;

{111} (e) Any parts of the record available to the applicant and all supplemental

affidavits upon which the applicant relies.

(112} Our original judgment was filed on February 19, 2008, and appellant's

application was filed May 9, 2008. Accordingly, appellant's application was timely filed

within ninety (90) days of the journalization of our opinion in appellant's case,

{¶13} In his present motion to re-open, appellant maintains he received

ineffective assistance of appellate counsel on direct appeal. The standard for reviewing

claims for ineffective assistance of counsel was set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in

the case of State v. Bradley (1989), 42 Ohio St,3d 136, 538 N.E.2d 373. These cases

require a two-pronged analysis in reviewing a claim for ineffective assistance of

counsel.

{114} First, we must determine whether counsel's assistance was ineffective;

i.e., whether counse!'s performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client. If we find

ineffective assistance of counsel, we must then determine whether the defense was

Stark County, Case No. 2007-CA-00151 4

actually prejudice by counsel's ineffectiveness such that the reliability of the outcome of

the trial is suspect. This requires a showing that there is a reasonable probability that

but for counsel's unprofessional error, the outcome of the trial would have been

different. We apply the Strickland test to all claims of ineffective assistance of counsel,

both trial counsel, or appellate counsel. State v, Tumer, Licking App. No. 2006-CA-123,

2007-Ohio-4583; State v. Godfrey (Sept. 2, 1999), Licking App. No. 97CA0155.

{¶15} Appellant bears the burden of establishing there is a genuine issue as to

whether he has a colorable claim of ineffective assistance of appellate counsel, see,

e.g. State v. Spivey 84 Ohio St. 3d 24, 1998-Ohio-704, 701 NE 2d 696.

{116} Appellant contends that her appellate counsel, on direct appeal, was

ineffective for failing to raise the assignment of error of ineffective assistance of trial

counsel. Appellant's arguments focus on five areas.

{¶17} Appellant first contends that the verdict forms in appellant's case

did not state the degree of the felonies and each element of the crimes that appellant

was convicted of committing. Appellant cites R.C. 2945.75 in support of his argument.

{118} R.C. 2945.75 provides:

{119} "(A) When the presence of one or more additional elements makes an

offense one of more serious degree:

{120} "(1) The affidavit, complaint, indictment, or information either shall state

the degree of the offense which the accused is alleged to have committed, or shall

allege such additional element or elements. Otherwise such affidavit, complaint,

indictment, or information is effective to charge only the least degree of the offense.

Stark County, Case No. 2007-CA-00151 5

(¶21) "(2) A guilty verdict shall state either the degree of the offense of which

the offender is found guilty, or that such additional element or elements are present.

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the

offense charged."

(122) In the case at bar, the jury made additional findings in the form of a written

verdict form finding that the amount of crack cocaine involved in each count "equals or

exceeds twenty-five grams but less than one hundred grams of crack cocaine." A

separate finding was made for the trafficking charge and the possession charge for

which appellant was convicted. These "additional findings" are all that is required

pursuant to R.C. 2945.75 to elevate the degree of the offenses.

(123) Accordingly, we find that this issue raises "no genuine issue as to whether

[he] was deprived of the effective assistance of counsel on appeal*'` State v. Smith 95

Ohio St. 3d 127, 2002-Ohio-1753.

{124} Appellant next argues that his appellate counsel was ineffective in failing

to argue that trafficking in a controlled substance under R.C. 2925.03(A) (2) and

possession of that same controlled substance under R.C. 2925.11(A) are allied offenses

of similar import under R.C. 2941.25(A). Accordingly, unless a defendant acts with a

separate animus, the defendant may only be convicted of one of the offenses.

{125} We note that on April 9, 2008, after our decision was issued in appellant's

direct appeal, the Ohio Supreme Court held in State v. Cabrales, 118 Ohio St.3d 54,

2008-Ohio-1625, 886 N.E.2d 681, "trafficking in a controlled substance under R.C.

2925.03(A) (2) and possession of that same controlled substance under R.C.

Stark County, Case No. 2007-CA-00151 6

2925.11(A) are allied offenses of similar import because commission of the first offense

necessarily results in commission of the second."'

(126) Appellant's original appeal was filed June 1, 2007. To establish ineffective

assistance of counsel a petitioner must show that his attorney failed to exercise the

customary skill and diligence of a reasonably competent attorney. In this case, however,

the viability of the challenge that counsel failed to assert was not established at the time

the appellant was sentenced. We note that in the Cabrates case, supra, the Supreme

Court further held the offense of possessing a controlled substance by knowingly

obtaining, possessing, or using a controlled substance, and offense of trafficking in a

controlled substance by knowingly selling or offering to sell a controlled substance, are

not allied offenses of similar import. Id. at ¶ 29. In fact, the Ohio Supreme Court

accepted the case noting a conflict among the appellate districts. Id. at 117.

(127) Regardless of whether other attorneys may have been filing challenges to

sentencing provisions for allied offenses under R.C. 2941.25 when a defendant had

been convicted of trafficking under R.C. 2925.03(A) (2) and possession under R.C.

2925.11(A), we must conclude that he cannot be found to have fallen below the

standard of customary skill and diligence for failure to present what was at the time a

speculative, rather than an established, challenge. Cf. State v. Williams (1991), 74 Ohio

App,3d 686, 600 N.E.2d 298; Brunson v. Higgins (1983), 708 F.2d 1353. Counsel had

no duty to anticipate a change in the law would occur nearly one year (1) year later.

Engle v. Isaac (1982), 456 U.S. 107, 102 S.Ct. 1558, 71 L,Ed.2d 783; Alvord v.

Wainwright (C.A. 11, 1984), 725 F.2d 1282; Poole v. United States (C.A. 11, 1987),

' We note neither the appellant nor the State has referenced the Supreme Court's decision in State v.Cabrales in their respective motion or response.

Stark County, Case No. 2007-CA-00151 7

832 F.2d 561; Brunson v. Higgins (C.A. 8, 1983), 708 F.2d 1353, 1356. We further note

that appellant's sentences for these counts are concurrent.

(1128} We find that this issue raises "no genuine issue as to whether [he] was

deprived of the effective assistance of counsel on appeal***" State v. Smith 95 Ohio St.

3d 127, 2002-Ohio-1753.

{1129} Appellant next contends that counsel was ineffective in not raising an

assignment of error that the distinction between cocaine and crack cocaine, with

significantly harsher penalties for those convicted of possessing crack cocaine, violates

the Equal Protection and Due Process Clauses of the United States and Ohio

Constitutions.

{130} In State v. Rodgers (May 21, 1998), Cuyahoga App. Nos. 72736, 72737,

the Court noted, "that disparate sentencing penalties for crack and powder cocaine

have been held to be constitutional by the many federal courts that have considered the

issue. 1n particular, as noted in United States v. Gaines (6 ffi Cir., 1977), 122 F.3d 324,

the Sixth District "has rejected every constitutional challenge ***," citing, inter atia,

United States v. Lloyd (6 th Cir., 1993), 10 F.3d 1197, 1220; United States v. Tinker (6th

Cir., 1992), 985 F.2d 241, 242; and United States v. Avant (6 th Cir., 1990), 907 F.2d

623, 627." See, also State v. Wilson, 156 Ohio App.3d 1, 2004-Ohio-144, 804 N.E.2d

61.

{131} Recently, in Kimbrough v. United States(2007), 128 S.Ct. 558, 169

L.Ed.2d 481 the United States Supreme Court held, "Under United States v. Booker,

543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 the cocaine Guidelines, like all other

Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder

Stark County, Case No. 2007-CA-00151 8

disparity effectively mandatory. A district judge must include the Guidelines range in the

array of factors warranting consideration, but the judge may determine that, in the

particular case, a within-Guidelines sentence is "greater than necessary" to serve the

objectives of sentencing, § 3553(a). In making that determination, the judge may

consider the disparity between the Guidelines' treatment of crack and powder offenses."

{1[32} In the case at bar, appellant was sentenced on the trafficking charge

pursuant to R.Q. 2925.03(c) (4) (f) for of a felony of the first degree. Pursuant to R.C.

2929.14(A) (1) the range of prison terms are 3, 4, 5, 6, 7, 8, 9, or 10 years. If the

substance had been powdered cocaine instead of crack cocaine appellant would have

been convicted of a felony of the third degree in violation of R.C. 2925.03(c) (4) (d).

Pursuant to R.C. 2929.14(A) (3) the range of prison terms are 1, 2, 3, 4, or 5 years. The

sentence for either a third degree or a first-degree felony is mandatory pursuant to the

respective sections. In either a first degree felony or a third degree felony an offender

could be sentenced to serve a prison term of 3, 4 or 5 years. Thus, a trial court may

consider any disparity created by the crack/powder ratio in fashioning an appropriate

sentence within the statutory range given the R,C. 2929,11 and R.C. 2929.12 factors.

{¶33} Appellant points to nothing in the facts of his particular case that make his

sentence unreasonable. As at least one federal court has noted,

{134} "Defendant...points to nothing about the particular facts of his case that

make his sentence unreasonable; rather, he argues that, post-Booker, the 100:1 ratio is

per se unreasonable. We disagree. Defendant ..., in effect, asks this court to not find his

sentence unreasonable, as we are authorized to do by Booker, 543 U.S. at 261, 125

S.Ct. 738, but rather to declare a portion of the Sentencing Guidelines unreasonable

Stark County, Case No. 2007-CA-00151 9

under all circumstances: Were we to act upon Defendant ['sJ... suggestion, we would

essentially be exercising legislative power. Booker does not authorize this. See United

States v. Wattace, 458 F.3d 606, 611 (7th Cir. 2006) ("Only after computing the

guidelines range using the correct 100:1 ratio does the district judge have discretion to

impose a sentence that is above or below that range.... [R]easonableness is something

that must be assessed at retail; wholesale conclusions that are nothing but

disagreements with the guidelines are impermissible."). Thus, while a departure from

the 100:1 ratio may well be reasonable in a particular case, applying the ratio does not,

ipso facto, make a sentence unreasonable under existing case law. This is so even

though we as a panel might disagree with the 100:1 ratio or the rationale for it, Because

Defendant...has not demonstrated that the 100:1 ratio was unreasonable in his case,

his challenge to his sentence on this ground must fail." United States v. Caver (6Ih Cir.

2006), 470 F.3d 220, 2006 Fed app 0452P.

{1[35) Accordingly, we find that this issue raises "no genuine issue as to whether

[he] was deprived of the effective assistance of counsel on appeal"""" State v. Smith 95

Ohio St. 3d 127, 2002-Ohio-1753.

{136} Appellant next argues that that his convictions are against the sufficiency

of the evidence and trial and appellate counsel were ineffective for failing to argue that

his convictions were based on insufficient evidence.

(137) As we noted in appellant's appeal as of right "the cruiser video recorded

appellant talking on his cell phone in the rear of the cruiser. He told an unidentified

female that the officers had found the drugs and the gun. He then told her to report the

car stolen." 2008-Ohio-670 at 111,

Stark County, Case No. 2007-CA-00151 10

{1138} In Ulster County Court v. Allen (1979), 442 U. S. 140, 99 S.Ct. 2213, the

United States Supreme Court upheld a statute which provided that the presence in an

automobile, other than a public one, of a firearm "is presumptive evidence of its

possession by all persons occupying such automobile at the time except (a) where the

firearm is found upon the person of an occupant, (b) where the automobile is being

operated for hire by a licensed operator or (c) if the weapon is a handgun and one of the

occupants, not present under duress, has a license to have a handgun." Id. at 442 U. S.

142-143, 99 S.Ct. 2217. The Court noted that the presumption was not a mandatory;

rather it was a permissive inference available only in certain circumstances. Further, the

jury could ignore the presumption even if there was no affirmative proof offered in

rebuttal by the accused. Id. at 160-162, 99 S.Ct. at 2226-2227. Finally, the trial judge in

Allen explained, "that possession could be actual or constructive, but that constructive

possession could not exist without the intent and ability to exercise control or dominion

over the weapons." Id, at 161, 99 S.Ct. at 2226.

{139} Accordingly, sufficient evidence was presented which if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt.

Therefore, we find that this issue raises "no genuine issue as to,whether [he] was

deprived of the effective assistance of counsel on appeal***" State v. Smith 95 Ohio St.

3d 127, 2002-Ohio-1753.

{140} Appellant next argues that the trial court erred in imposing the remainder

of his post release control time from a prior conviction. Appellant claims, 1). He was

never informed he would be subject to post release control in his 1998CR0347B case,

2). The trial court failed to verify that he was properly notified that he would be subject to

Stark County, Case No. 2007-CA-00151 11

post release control and the consequences of violating post release- control, 3). He was

never advised that he would be subject to additional and consecutive time in prison if

convicted of an additional offense while on post release control and, 4). the trial court

improperly sentence him to the remainder of his post release control-time rather than 90

days in prison.

{¶41} Appellant pled as charged in case number 1998CR0347B. He signed a

written plea of guilty, which was filed with his sentencing journal entry June 3, 1998. In

that document, appellant acknowledged that he was advised by his attorney and the

court that 1). he was subject to a mandatory post release control after his release from

prison for a maximum term of five years; 2) that should he commit another felony while

under supervision he may be subject to an additional prison term of, not 90 days as he

asserts, but rather the maximum period of unserved time remaining on post release

control or 12 months, whichever is greater and 3) that this time must be served

consecutively to the new felony. Appellant signed the plea in open court acknowledging

that he understood its terms. Moreover, the trial court in the case at bar did not fail to

verify that appellant had properly been informed of the consequences of violating post

release control because appellant's written plea of guilty in the 1998 case was filed with

the State's discovery in the instant case. Because the record reflects that appellant was

properly informed of his post-release control obligations and consequences, and was

sentenced to the appropriate amount of time we find that this issue raises "no genuine

issue as to whether [he] was deprived of the effective assistance of counsel on

appeal"" State v. Smith 95 Ohio St. 3d 127, 2002-Ohia-1753.

Stark County, Case No. 2007-CA-00151 12

{142} Appellant next argues that his trial attorney's failures to raise in the trial

court the same issues and arguments that he now presents rendered his performance

ineffective. Appellant offers no additional grounds not addressed in the previous

arguments.

{¶43} Since we have found no genuine issue in any of appelfant's previous

arguments, we obviously do not consider his counsel ineffective in this regard.

{1[44} For the foregoing reasons, appellant's motion to re-open his appeal is

hereby DENIED.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur

H01, JOHN W. WISE/---I ^_ /'^

uG- G%. G^-4^ Z^JULIEA, EDWARDS

WSG:cIw 0616

page 1page 2page 3page 4page 5page 6page 7page 8page 9page 10page 11page 12page 13page 14page 15page 16page 17page 18page 19page 20page 21page 22page 23page 24page 25page 26page 27page 28page 29page 30page 31page 32page 33page 34page 35page 36page 37