SCOTT WAGNER # Southern Ohio Correctional Facility P.D. Box Lucasville, Dhio 45699

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, On Appeal from the Appellee, Licking County Court of Appeals, Fifth v. Appellate District SCOTT WAGNER, Court of Appeals Caes No. 08 CA 21 Appellate. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT SCOTT WAGNER SCOTT WAGNER # Southern Ohio Correctional Facility P.D. Box Lucasville, Dhio APPELLANT PRO SE KENNETH OSWALT # Licking County Prosecutor Licking County Prosecutor's Office Licking County Admin. Bldg. 20 South Second Street Newark, Ohio (740) (740) (Fax) COUNSEL FOR APPELLEE STATE OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE 15 OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS... 2 ARGUMENT IN SUPPORT OF PROPOSITION OF LAW... 5 PAGE Proposition of Law No. 1: A trial court errs in interfering with a defendant's right to obtain counsel of his own choosing when the trial court fails to timely return a defendant's assets that were held in receivership long after the need for the receivership has ended... 5 Proposition of Law No. 2: A trial court errs in denying a proper motion for a continuance based on counsels late appointment and limited opportunity ta review case... 6 Proposition of Law No. 3: The failures of Appellant's trial counsel deprived him of his constitutional right to effective assistance of counsel...8 Proposition of Law No. G: The failures of Appellant's appellate counsel counsel deprived him of his constitutional right to effective assistance of appellate counsel... 9 CONCLUSION...11 PROOF OF SERVICE...11 APPENDIX APPX. PAGE Judgment Entry of the Licking County Court of Appeals (6/15/09)... A-1 i

3 EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION The circumstances of Appellant's resentencing hearing require review by this Court. Appellant Scott Wagner is currently aerving an eighty-nine year term of incarceration following his conviction on eighty-nine counts involving elleged improper sexual conduct with various boys in Licking County, Ohio between 1996 and At critical stages of the proceedings against him, Appellant was prevent from presenting an adequate defense. Appellant's case presents 4 issuas that implicete important conatitutional rights of criminal defendants. Each of these issues is compelling and meritorious of an exercise of jurisdiction by this Court. First the trial court erred by interfering with the Appellant's right to obtain counsel of his own choosing when the trial court failed to timely return the Appellant's assets that were held in receivership long after the receivership had ended. The trial court further erred by denying a motion for a continuance. Then aiven the newly appointed counsel's late appointment and limited opportunity to review the case due to the trial court's denial of the continuance, counsel could not have been adequately prepared to represent the Appellant zealously at the resentencing hearing nor to protect Appellant's constitutional rights which resulted in ineffective assistance of counsel. Furthermore, the wholesale failuree of Appellant's appellate counsel to reise the aforementioned issues within the direct appeal, did not rise to the level of effective assistance of appellate counsel as guaranteed by the Sixth Amendment to the United States Constitution and comparable provisions of the Ohio constitution. Therefore, under these circumstances, the case is of public or great general interest, presents e substantial constitutional question, and is worthy of further review. 1

4 STATEMENT OF THE CASE AND FACTS On September 13, 2002, Scott Wagner was indicted on Twenty-four counts of rape, twenty-seven counts of gross sexual imposition, one count of corruption of a minor, and five counts of unlawful sexual conduct with a minor. Additional counts were indicted on September 26, 2002, and included six counts of rape, ten counts of gross sexual imposition, and three counts of unlawful sexual conduct with a minor. On January 31, 2003, Mr. Wagner was indicted an four counts of illegal use of a minor in nudity-oriented material or performance and fourteen counts of pendering sexually oriented material involving a minor. Those indictments were consolidated by the trial court. The State moved to dismiss three counts of rape and one count of illegal use of a minor in nudity-oriented material or performence. Mr. Wagner was convicted of the remaining 89 counts following his jury trial, end was subsequently sentenced to serve an 89 year term of imprisonment at the Ohio Department of Rehabilitation and Correction. These convictions were affirmed by the Court of Appeals for the Fifth Appellate District on July 26, 2004, but the court sustained Mr. Wagnar's assignment regarding findings that the trial court failed to make before imposing consecutive sentences and remanded the matter back to the trial court for resentencing.' On September 8, 2004, the Licking County Court of Common Pleas again imposed an 89 year term of imprisonment. Mr. Wagner timely appealed from his resentencing, and the Court of Appeals for the Fifth Appellate District affirmed his sentence. After appealing to this Court, Mr. Wagner's case was remanded for resentencing based upon the Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohia-856. ' This Court declined to eccept the case for review on December 15, State v. Waqner, (2004), 104 Ohio St.3d 1426, 819 N.E.2d

5 The Appellant's assets were held in the trust of a court-appointed receiver "in the civil matter of Stockdale v. Wagner, Case No. 03CV0820, in order to satisfy the terms of any potential Judgment Entry." Civen that the Appellant had been voluntarily dismissed as a defendent in the civil action on October 21, 2005, the need for the receivership no longer existed. The trial court's failure to act upon the motion to release the Appellant's assets created a chain of events that affected the Appellant in what without his assets Appellant was forced to dismiss his previously privately retained attorney Mr. David Thomas because he could not pay said attorney, which then caused the court to declare Appellant indigent, which caused the court to appoint attorney Harry Panitch to represent Appellant the afternoon prior to the scheduled resentencing hearing, which caused said newly eppointed attorney Penitch to be completely unprepared to adequately represent Appellant because the trial court compounded its error by refusing to grant a continuance so attorney Panitch could familiarize himself with Appellant's case. At his June 27, 2006, resentencing hearing, Mr. Wagner spoke on his own behalf and questioned how Mr. Panitch could render effective assistance of counsel given his late appointment (Resentencing hearing transcript, June 27, 2006, at 5-8, 11-12). Appellant the requested a continuance himself to which the trial court denied. Id at 11. The resentencing court heard testimony from a witness appearing on Mr. Wagner's behalf to argue for a lesser sentence. Id. at The court advised Mr. Wagner of his post-release control options and resentenced him to the same sentence that it had previously imposed. Id at Mr. Wagner requested an appeal after the resentencing. His appointed couneel filed a notice of appeal, but failed to file all the necessary documents with the court, and the appeal was dismissed. New counsel was 3

6 appointed by the trial court, though no appeal was filed. The Office of the Public Defender applied for permission to file a delayed appeal, which was granted following a reconsideration of an initial denial. On December 16, 2008, the Court of Appeals for the Fifth Appellate District affirmed Mr. Wagner's sentence. State v. Wagner, (December 16, 2008), Licking App. No. 08CA021, 2008 WL. The Appellant then petitioned the Court of Appeals for the Fifth Appellate District to re-open the direct appeal pursuant to Appellate Rule 26 (B). Upan review, on June 15, 2009, the Court of Appeals for the Fifth Appellate District denied Appellant's application for re-opening. 4

7 ARGUMENT IN SUPPORT OF PROPOSITIONS q F LAW Proposition of Law No. 1: A trial court errs in interfering with a defendant's right to obtain counsel of his own choosing when the trial court fails to timely return a defendent's assets that were held in receivership long after the need for the receivership has ended. The trial courts failure to act timely upon Appellant's motion to terminate receivership and return all assets held by the receiver, deprived Appellant of his right to retain an attorney of his choice under the Sixth Amendment of the United States Constitution and comparable provisions of the Ohio Constitution. In the case at hand Appellant's assets were held in trust of a court appointed receiver in the civil matter of Stockdale v. Wegner "in order to satisfy the terms of any potential Judgment Entry". Once the Appellant herein was voluntarily dismissed as a defendant in the litigation the need for the receivershio no longer existed and Appellant immediately petitioned the court to return his assets. Despite the Appellant's repeated pleas, the trial court refused to act on Appellant's motion for 9 months which had the net effect of preventing Appellant from utilizing his own money to continue the retention af Appellant's ccunsel of choice, Mr. David Thomas. (Resentencing hearing T-5). In Powell v. Ala., 2B7 U.S. 45, 53 (1932), the court stated that a defendant should be afforded fair opportunity to secure counsel of his choice. While there is no expressed statutory provision authorizing the discharge of a receiver, the power to vacate the appointment is implied in the power to appoint. See Dissolution of Charles F. Johnson, Inc., 22 Ohio L. Abs WL 4313 (Ct. App. 2nd Dist. Franklin County 1936). The determination of whether a party moving to terminate the receivership has met the burden showing that, in the interest of equality the receivership should be terminated and the control over the property restored, is entrusted to the sound decision of the 5

8 trial court, and the court's decision in this regard will not be reversed on appeal absent an abuse of discretion. Milo v. Curtis, 100 Ohie App. 3d 1, 651 N.E.2d 1340 (9th Dist. Summit County 1994). Given that the Appellant herein was voluntarily dismissed as a defendant in the civil action the need for the receivership no longer existed. The trial court's failure to act upon the Appellant's motion to release his assets created a chain of events that adversely affected the Appellant in that without his assets Appellant was forced to dismiss his previously privately retained attorney Mr. David Thomas because he could not pay said attorney, which then caused the court to declare Appellant as indigent, which caused the court to appoint attorney Harry Panitch to represent Appellant the afternoon prior to scheduled resentencing hearing, which caused said newly appointed attorney Panitch to be completely unprepared to adequately represent Appellant because the trial court compounded its error by refusing to grant a continuance so that attorney Panitch could familiarize himself with Appellant's case. Therefore, it was error for the trial court to interfere with Appellant's right to obtain counsel of his own choosing when the trial court failed to timely return the Appellant's assets that were held in receivership long after the need for the receivership had ended. Proposition of Law No. 2: A trial court errs in denying a proper motion for a continuance based on counsels late appointment and limited opportunity to review case. Mr. Wagner's case was remanded for resentencing based on this Court's decision in State v. Foster. On the day prior to the resentencing hearing, Appellant's privately retained counsel Mr. David Thomas filed e motion to withdraw as counsel of record and for a continuance of the resentencing hearing, so that Mr. ldagner could obtain new counsel. The trial court granted 6

9 the motion by alloming Mr. Thomas to withdraw from counsel and released him from further responsibilities as counsel, The trial court then sua sponte declared the Appellant indigent and appointed Mr. Harry F. Panitch as new counsel for Mr. Wagner, pursuant to Criminal Rule 44(A). However, tha court further stated: "recognizing Mr. Wagner's incarceration, civil actions pending involving his assets', as well as the timing of his discharging his attorney the day before his resentencing was to occur on that basis the continuance was not grented." (Resentencing hearing T-4). At the resentencing hearing Mr. Panitch stated: an Mr. Wagner's behalf I would make another request to continue this hearing as I wes just appointed yesterday afternaon," (Resentencing hearing T-5). And despite the additional plea for a continuance by Mr. Wagner himself. (Resentencing hearing T-11). The trial court denied the request for a continuance. (Resentencing hearing T-11). The grant or denial of a motion for a continuance is left to the sound discretion of the trial court. State v. Unger, (1981), 67 Ohio St.2d 65, syllabus, 423, N.E.2d In Unger, this Court set forth a balancing test for reviewing when a motion for continuance should have been granted, which sets forth six factors to be considered by a reviewing court. Id. at Applying the Unger analysis to the instant case, it is apparent that the trial court erred in denying Appellant's motion for continuance. There is no indication in the record that Appellant sought a lengthy delay of the proceedings. Appellant had not previously sought an unreasonable number of continuances from the trial court. There is no indication that rescheduling the hearing would have presented a substantial inconvenience to the ' Contrary to the courts remarks Mr. Wagner had been voluntarily dismissed from that action an October 21,

10 litigants, witnesses, opposing counsel, and the court. Mr. Wagner's request for a continuance was for lagitimate reasons. Finally, ather relevant factors supported the mation for a continuance. Given the late appointment of Mr. Panitch and his limited opportunuty to review the case, he could not have been adequately prepared to represent the Appellant zealously at the hearing nor to protect Appellant's constitutional rights. Therefore, it was error for the trial court to deny Appellant's requested continuance. Proposition of Law No. 3: The feilures of Appellant's trial counsel deprived him of his constitutional right to effective assistance of counsel. The conduct of Appellant's court-appointed trial counsel fell below an objective standard of acceptable representation. These failures, considered individually and collectively, deprived Appellant to the right to effective assistance of counsel guaranteed under the Sixth Amendment ta the United States Constitution and comparable provisions to the Ohio Constitution. The well-settled legal standard for determining ineffective assistance of counsel lies in the familiar two-part test set forth in Strickland v. Washington, (1984), 466 U.S. 668, 104 S. Ct. 2052, SO L.Ed.2d 674. The Strickland test requires a defendant to demonstrate that counsel made unprofessional errors that resulted in prejudice to the defendant. See also State v. Smith, (1985), 17 Ohia St.3d 98, 477 N.E.2d 1128 (applying the Strickland standard in Ohio). First, counsel's performance was clearly deficient. Given court-appointed attorney Harry Panitch's late appointment, and his almost non-existent opportunity to review the case, he was not adequately prepared to represent the Appellant zealously at the hearing nor to protect the Appellant's constitutional rights. Additionally, Appellant was introduced to defense counsel, in court, and only 5 minutes prior to the commencement of the 8

11 sentencing hearing. In short, the wholesale failures of representation do not rise to the level of effective assistance of counsel as guaranteed by the Sixth Amendment. Second, the failures of counsel resulted in unfair prejudice to Appellant. Given counsels late appointment and unfamiliarity with Appellant's case, counsel was in no position to adequately represent Appellant. Counsel failed to make any recommendations or arguments to the court regarding sentencing or present any mitigating factors which may have resulted in a lesser sentence for Appellant. Appellant had been in contact with a nationally recognized expert witness who had expressed to the Appellant his willingness to travel from California to Ohio to testify to the court regardinq his recommendations for resentencing. However, due to the fect that Appellant only met with his appointed counsel 5 minutes before being rushed into court, counsel had no knowledge of this expert and so was unable to present this information to the court on Appellant's behalf. Given the volume of evidence and complexity of issues in this case and considering counsels last minute appointment and lack of familiarity with this cese, prejudice must be presumed. Proposition of Law No. G: The failures of Appellant's appellate counsel deprived him of his constitutional right to effective assistance of appellate counsel. The conduct of Appellant's appellate counsel fell below an objective standard of acceptable representation. These failures, considered individually and collectively, deprived Appellant of the right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and comparable provisions of the Ohio Constitution. The legal standard for determining ineffective assistance of counsel is set forth in great detail above in Proposition of Law No. 3. Pursuant to that wellestablished two-part test, it is clear that Appellant was deprived of his 9

12 constitutional right to effective assistance af appellate counsel at numerous points in the proceedings. Pursuant to the Strickland analysis, appellate counsel was clearly deficient. The failures by appellate counsel are set forth in great detail above. (See Propositions of Law Nos. 1-3). Appellate counsel failed to raise within the appeal filed in the Court of Appeals for the Fifth Appellate District the trial courts error with interfering with Appellant's right to secure counsel of his choice; the trial courts error in denying a motion for a continuance and; Appellant's trial counsel's ineffectiveness. In short, the wholesale failures of appellate counsel did not rise to the level of effective assistance of counsel as guaranteed by the Sixth Amendment. The prejudice that Appellant suffered from the failure of appellate counsel and trial counsel is also set forth in great detail above. Based on the foregoing far.tors, counsel's performance was deficient and deprived Appellant. Therefore, under the Strickelnd standard set forth above, Appellant received ineffective assistance of appellate counsel. 10

13 CONCLUSION For the reasons discussed above, this case involves a matter af public or great interest, felony convictions, and a substantial constitutional question. Appellant requests that this Court grant jurisdiction and allow this case so that the important issues presented herein will be reviewed on the merits. Respectfully submitted, Scott Wagner # Southern Ohio Correctional Facility P.O. Box Lucesville, Ohio Appellant Pro Se PROOF OF SERVICE I hereby certify that a true copy of the foregoing was duly served upon Kenneth Oswalt, Prosecuting Attorney, 20 South Second Street, Newark, Ohio 43055, on July 22, 2009, by regular United States mail postage prepaid. a Appellant Pro Se 11

14 APPENDIX

15 IN THE COURT OF APPEALS FOR LICKING COUNTY, EIF D ^!Pv 15 Fr1 3r ^y FIFTH APPELLATE DISTRICT 2C19 J STATE OF OHIO -vs- Plaintiff-Appellee JUDGMENT ENTRY SCOTT WAGNER Defendant-Appellant CASE NO. 08CA21 This matter is before this court upon appellant's application to reopen his appeal pursuant to App.R. 26(B). Purs,uant to,app,r. 26(B), an appellant may a,.pplyfor reopening of his/her appeal based on a claim of itteffective assistance of appellate counsel. In order to demonstrate ineffective assistance of appellate counsel, appellant must establish the following: "2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 0.O.3d 495, 358 N.E.2d 623; Sfrickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) "3. To show that a defendant has been prejudiced by counsel's deficient performance, the,defendant must.prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the, trial would have been different." State v.... T;'.... v,.s.i,f 8radley, (1989), 42 Ohio St3d 136, paragraphs two and three of the syllabus, certiorari

16 denied (1990), 497 U.S In addition, appellant "bears the burden of establishing that there was a'genuine. issue' as to whether he has a'colorable claim' of ineffective assistance of counsel on appeal." State v. Spivey (1998), 84 Ohio St.3d 24, 25. In his application, appellant claims his appellate counsel was ineffective forfailing to cite as error the fact that the trial court denied him the right to counsel of his own choosing and erred in denying his motion for a continuance of his sentencing hearing. The proceeding at issuewas a second resentencing hearing. Originally, appellant was sentenced to eighty-nine years in prison. Pursuant to this court's remand for resentencing (State v. Wagner, Licking App. No. 03CA82, 2004-Ohio-3941), the trial court again sentenced appellant to eighty-nine years in prison. After the Supreme Court of Ohio's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, appellant's case was again remanded to the trial court for resentencing. See, in re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio Upon remand, the trial court once again sentenced appellant to eighty-nine years in prison. Pursuant to appellant's application, his assets were being held in the trust of a courtappointed receiver pending the outcome of a civil case wherein appellant was the defendant. Appellant's priv.ately retaine:d attorney withdrew. The trial court declared appellant indigent and appointed him counsel forthe second resentencing hearing. Given the fact that appellant had court-appointed counsel, we note while an accused has a right to counsel, he does not have the right to counsel of his own choosing. State v. Marinchek (1983), 9 Ohio App.3d 22; State v. Haberek (1988), 47 Ohio App.3d 35. Newly appointed counsel asked for a continuance, and the trial court denied the request. Appellant argues prejudice as he had "been in contact with a nationally A-2

17 recognized expert witness who has expressed to the Appellant his willingness to travel from California to Ohio to testify to the court regarding his recommendations for, sentencing." Appellant's Application at 9. Appellant does not offer what information would have been presented to alter the trial court's sentencing determination. The trial court sentenced appellant to eighty-nine years in prison on three occasions. There is no basis to conclude that a continuance would have produced information sufficient to sway the trial court to change the sentence. Appellant has not demonstrated any prejudice. Upon review, we do not find a genuine issue exists as to whether appellant was deprived of the effective assistance of counsel on appeal. Appellant's application for reopening is denied. SO ORDERED. JUDGES