^ Court of Appeals * Case No

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1 STATE OF OHIO Plaintiff-Appellee, MICHAEL ROLLING Defendant-Appellant. IN THE 0HI0 SUPREME COURT ^ On appeal from the Cuyahoga County Court * of Appeals, Eighth Appellate District ^ Court of Appeals * Case No ^ MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MICHAEL ROLLING MICHAEL ROLLING # P.O. Box 788 / Man.C.I. Mansfield, Ohio PRO-SE DEFENDANT-APPELLANT WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio COUNSEL FOR PLAINTIFF-APPELLEE LELm/ JUIr CLERK OF COURT SUPREME COURT Of OHIO

2 TABLE OF CONTENTS EXPLANATION OF WiIY TfIIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... I STATEMENT OF THE CASE AND FACTS PROPOSITION OF LAW I Proposition of Law I: The appellant was denied the effective assistance of appellate counsel in violation of his Fourteenth Amendment Rights under the United States Constitution and Article I Section 10 of the Ohio Constitution for counsels failure to prosecute appellants appeal after being appointed by the court to do so..4 CONCLUSION CERTIFICATE OF SERVICE APPENDIX Appx. Page Journal Entry from Court of Appeals for the Eighth Appellate District of Ohio under case number entered on May 25,

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREA'T GENERA L IN ERE ' AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION Appellant contends that his case is a case of public or great general interest and involves a substantial constitutional question because it involves whether a appellant has a constitutional right to have his appointed appellate counsel file a brief on appeal. See Penson Y. Ohio, 488 U.S. 75, 109 S.Ct 346, 102 L.Ed. 2d 300 (1988). On June 20, 2003, the appellant filed a motion for appointment of appellate counsel. On July 7, 2003, the court granted appellate counsel Elizabeth Kelly to prosecute the appeal. (See appearance Docket sheet under CR ) However, appellate counsel Kelly never contacted appellant, and never filed a brief. This led to appellants appeal being dismissed by the Cuyahoga County Court of Appeals on 7/29/03. Therefore the constitutional question in this case involves whether or not a appellant has a constitutional right to have his appointed appellate counsel file a appellate brief on his appeal after appellate counsel is appointed by the court to do so. See Penson Y. Ohio supra. Appellant respectfully requests that this honorable court answer this question in the affirmative and accept jurisdiction to hear his case. (1)

4 STATEMENT OF THE CASE AND FACTS On January 27, 2003 appellant pled guilty to Murder in violation of Ohio Revised Code section to wit: purposely causing the death of Ricardo Bonner. Before excepting his plea, the trial court failed to explain the elements of the Murder charge, and appellant did not understand the nature of the murder charge. Appellant asked his trial counsel if he could plead guilty to involuntary manslaughter instead of murder. However, appellants counsel informed him that Murder and involuntary manslaughter were essentially the same charge and that he would only receive six years on the charge. Appellant thereafter pled guilty and was given 15 years _to life instead of the six years proposed to him by his counsel. Appellant filed a motion for delayed appeal pursuant to Appellate Rule 5(a) claiming that his plea was involuntary and unconstitutional because he was lied to by his counsel in order to get him to plead guilty. On July 17, 2003 the Court of Appeals for Cuyahoga County denied appellants delayed appeal stating that "appellant did not plead guilty to involuntary manslaughter but to Murder." (See Opinion from Eighth District Court of Appeals filed on July 17, 2003 under Case number 83051). Appellant filed a motion for reconsideration which was denied on August 4, (2)

5 Thereafter appellant filed a timely Memorandum in support of Jurisdiction into the Ohio Supreme Court, however that court refused to even docket the appeal due to the fact that the court of appeals gave him a unappealable decision in the form of a "card" instead of a Journal entry opinion explaining why his appeal was dismissed. Appellant thereafter filed a motion for determination on his delayed appeal, and on October 20, 2003 the Court of Appeals denied his motion. Appellant timely filed another memorandum in support of jurisdiction on December 1, 2003 under COA number and his appeal was not accepted. On June 20, 2003 the appellant filed a motion for appointment of appellate counsel. On July 7, 2003 the court appointed Elizabeth Kelly for purposes of perfecting an appeal for appellant. However, appellant was not notified by the court or appellate counsel of this appointment, and counsel never filed a brief. This led to appellants appeal being dismissed by the court of appeals on 7/29/03. On March 19, 2006 appellant filed a application for reopening of appeal pursuant to Appellate Rule 26(B) claiming that his appellate counsel was ineffective for failing to file a brief after counsel was appointed for purposes of appeal. On May 25, 2007 the court of appeals denied the application by claiming that appellant was untimely in his filing. Appellant now brings his Memorandum in Support into the Ohio Supreme Court. (3)

6 Proposition of Law I: 'PHE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF HIS FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION FOR COUNSELS FAILURE TO PROSECUTE APPELLANTS APPEAL AFTER BEING APPOINTED BY THE COURT TO DO SO. On June 20, 2003 the appellant Michael Rolling filed a motion for appointment of appellate counsel. On July 7, 2003, the appellate court granted his motion and appointed Elizabeth Kelly. (See appearance Docket Sheet and motion for appointment of counsel in this case.) Even though counsel was appointed, counsel never contacted appellant, and never filed a appeal in his behalf. This eventually led to appellants appeal being dismissed 'by the court of appeals on 7/29/03. (See Docket entry showing "appeal dismissed by the court of appeals".) The United States Supreme Court has defined the two prong test that sets forth the criteria for counsels effectiveness pursuant to Strickland v. Washington, 466 U.S. 688, 104 S.Ct 2052 (1984). Even though this test usually sets forth the criteria to judge trial counsels effectiveness at the trial level, the same test is used to evaluate appellate counsels performance on appeal. See Evitts Y. Lucy, 105 S.Ct 830; and State v. Murnahan, 584 N.E.2d 1204 (1992). The first prong in the Strickland test requires an analysis of whether "there has been a substantial violation of any of defense counsel's essential duties to his client". See id at Strickland supra page (4)

7 If there is a violation, then the second prong of the test requires an inquiry into "whether the defense was prejudiced by counsels ineffectiveness." See Strickland supra page In this case appellate counsel was "per-se" ineffective for failing to file a appellate brief, or an Anders brief if determining that the appeal was frivolous. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct 346, 102 L.Ed.2d 300 (1988). Appellate Counsels failure to do so violated appellants Sixth Amendment right to the constitution and therefore he should be granted new appellate counsel and a new appeal. Indigent defendants in the State of Ohio are constitutionally entitled to adequate and effective appellate review. _See Griffin Y. Illinois, (1956) 351 U.S. 12 at 19, and Faretta Y. California, 422 U.S Counsels negligence also greatly prejudiced the appellant because it resulted in his appeal being dismissed. (See Docket Sheet from Common Pleas court reflecting appellants appeal being dismissed) Since appellant has proved how his counsel abdicated a essential duty owed to him, (i.e., file an appellate brief), and has showed how his negligence resulted in prejudice, (i.e., his appeal being dismissed) appellant has satisfied both prongs in the Strickland supra standard. Appellant has further shown a "genuine issue" as to whether he was deprived of the effective assistance of counsel on appeal. See Evitts v. Lucy supra and Ohio App. Rule 26(6)(S). (5)

8 CONCLUSIOY For the reasons set forth herein, appellant hereby requests that his Memorandum in Support of Jurisdiction be accepted for review. Respectfully submitted, Michael Rolling Pro-Se Appellant P.O. Box-788 / Man.C.I. Mansfield, Ohio CERTIFICA'TE OF SERVICE I certify that a true copy of appellants Mamorandum in Support of Jurisdiction has been sent by regular U.S. mail to counsel for appellee, William D. Mason, Cuyahoga County Prosecutor, located at 1200 Ontario Street, Cleveland Ohio on this taw day of ^ Michael Rolling Pro-Se Appellant (6)

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10 Li The Supretne Court of Ohio Case Infor nation S^eet Case Name: Case No.: State of Ohio v. Michael Ro11inR 1. Has this case previously been decided or remanded by this Court? Yes q No Q If so, please provide the Case Name: N/ A CaseNo.: N/A An Citation: N / A IL Will the.determination of this case involve interpretation or application of any particular case decided by tlte Supreme Court of O-hio or the.supreme Court of the United States?,.Yes fx7 No q Ifso,pleaseprovidetheCaseNameandCitation: Penson Y. Ohio. 488 U_S.?., 309 S_Ct 346, 102 L.Ed.2d 300 (1988^, Will the determination of this case involve e nterpretation or application of any particular constitutional provisiou, statute, or rule of court? Yes No q If so, please provide the appropriate citation to the constitutional provision, statute, or court rule, as follows: U.S. Constitution Amends.: 6th, 14th Ohio Revised Code: R.C. N/A Ohio Constitution: Article i, Section r n Court Rule: United States Code: Title N/,ASection N/ A Ohio Admin., ode: O.A.C. HI. Indicate up to three priniary areas or topics of law involved in this proceeding (e:g., jury instructions, UM/UIlVI, search and seizure, etc.): 1) Ineffective assistance of.appellate counsel. 2) Abuse of discretion from trial court. 3) Violation of Criminal Rule 11(C). IV. Are you aware of any case now pending or about to be brought before this Court that involves an issue substantially the same as, similar to, or related to an issue in this case? Yes q No Cld If so, please identify the Case Name: N/ A CaseNo.: N/A Court wheie Currently Pending: N/ A Issue: N / A Contact information for appellant or counsel: Name AIty^Reg. # Telephone # Michael Rolling #443-44U J7 Fax# AddressP,O. Box 788 / Man.C.I. of appellant or counsel. Mansfield, Ohio Comiselfor: _ City ^State Zip Code

11 Cnvur^xxx^^^^1^ ^f m4yv, ilio4t4,aistr4d--- County of Cuyahoga Gerald E. Fuerst, Clerk of Courts STATE OF OHIO Appellee COA NO. LOWER COURTNO: CP CR vs- COMMON PLEAS COURT MICHAEL ROLLING Appellant MOTION NO Date 05/25/2007 Journal Entry -APPLICATION BY APPELLANT; PRO SE, FOR DELAYED REOPENING OFAPPEAL PURSUANT?O- RULE 26(B) IS DENIED. FILED AND JOURNALIZED PER APP. R. 22(E) MAY ALD E. FUERST COLkRT OF APPEALS DEP. Presiding Judge SEAN C. GALLAGHER, Concurs Judge CHRISTINE T. MCMONAGLE, Concurs

12 fanur# of Appeulo of M#in EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No STATE OF OHIO PLAINTIFF-APPELLEE vs. MICHAEL ROLLING DEFENDANT-APPELLANT o'udgtvient: APPLICATION DENIED APPLICATION FOR REOPENING MOTION NO LOWER COURT NO. CR COMMON PLEAS COURT RELEASE DATE: May 25, 2007

13 -1- ATTORNEY FOR PLAINTIFF-APPELLEE William D. Mason Cuyahoga County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio FOR DEFENDANT-APPELLANT Michael Rolling, pro se Inmate No P.O. Box 788 Mansfield, Ohio 44901

14 -1- MARY J. BOYLE, J.: On June 19, 2003, Rolling filed a motion for delayed appeal, pro se, in State v. Rolling, Cuyahoga App. No Rolling was attempting to appeal his plea of guilty to the offense of murder and the resulting sentence of fifteen years to life of incarceration, as imposed in State v. Rolling, Cuyahoga County Court of Common Pleas Case No. CR On July 15, 2003, this court denied Rolling's motion for a delayed appeal. Rolling filed his application for reopening, pursuant to App.R. 26(B), on March 19, For the following -reasons, vue--den-y-the-alaplication-for--r-eo-pening, Initially, we find that Rolling has failed to timely file his application for reopening. App.R. 26(B)(2)(b) requires that Rolling establish"a showing of good cause for untimely filing if the application is filed more than 90 days after journalization of the appellate judgment," which is subject to reopening. The Ohio Supreme Court, with regard to the 90-day deadline provided by App.R. 26(B)(2)(b), has recently established that: We now reject Gumm's claim that those excuses gave him good cause to miss the 90-day deadline in App.R. 26(B). The rule was amended to include the 90-day deadline more than seven months before Gumm's appeal of right was decided by the court of appeals in February 1994, so the rule was firmly established then, just as it is today. Consistent enforcement of the rule's deadline by the appellate courts in Ohio protects on the one hand the state's legitimate interest in the f'inality of its,. judgments and ensures on the other hand that any claims of ineffective

15 -2- assistance of appellate counsel are promptly examined and resolved. Ohio and other states "may erect reasonable procedural requirements for triggering theright to-an adjudication," Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct 1148, 71 L.Ed 2d 265, and that is what Ohio:has done by creating a 90-day deadline for the filing of applications to reopen. Gumm could have retained new attorneys after the court of appeals issued its decision in 1994, or he could have filed the application on his own. What he could not do was ignore the rule's filing deadline. * * * The 90-day requirement in the rule is "applicable to all appellants," State v. Winstead (1996), 74 Ohio St.3d 277, 278, 658 N.E.2d 722, and Gunun offers no sound reason why he - unlike so many other Ohio criminal defendants - could not comply with that fundamental aspect.-ofithe_r_u1e. ^Emphasis_added ) - State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at 17. See, also, State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. Herein, Rolling is attempting to reopen the judgment that was journalized on July 15, The application for reopening was not filed until March 19, 2007, more than 90 days after journalization of the judgment which denied Rolling a delayed appeal. Rolling has failed to establish "a showing of good cause" for the untimely filing of his application for reopening. State v. Klein (Apr. 8,1991), Cuyahoga App. No , reopening disallowed (Mar. 15, 1994), Motion No , affirmed (1994), 69 Ohio St.3d 1481; State v. Trammell (July

16 -3-24, 1995), Cuyahoga App. No , reopening disallowed (Apr. 22, 1996),. :. _. Motion No ; State v. Travis (Apr. 5, 1990), Cuyahoga App. No , reopening disallowed(nov.-2,.1.994).,.motion No , affirmed (1995), 72-Ohio--_ St.3d 317. See, also, State v. Gaston, Cuyahoga App. No , 2007-Ohio-155; State v. Torres, Cuyahoga App. No , 2007-Ohio-9. In.addition; App.R. 26(B) is not applicable to the facts pertinent to Rolling's appeal. No appellate judgment, which reviewed Rolling's plea of guilty and sentence of incarceration, has been announced and journalized by this court. -_Th.us; we-ar-e pr-euented-frona_considering Rolling's_ap_plicatiosLfor_reopening..as_..._ brought pursuant to App.R. 26(B). State v. Skaggs (May 12, 1999), Cuyahoga App. No: 76301, reopening disallowed (Sept. 21, 1999), Motion No See, also, State v. Loomer (1996), 76 Ohio St.3d 398; State v. Halliwell (Jan 29, 1999), Cuyahoga App. No , reopening disallowed (Jan 29, 1999), Motion No ; State v. Fields (Feb. 29, 1996), Cuyahoga App. No , reopening disallowed (Sep. 5, 1997), Motion No ; State v. Williams (Oct. 31, 1996), Cuyahoga. App. No , reopening disallowed (May 7, 1997), Motion No Finally, Rolling has filed a motion to withdraw his plea of guilty, which remains pending with the trial court. Rolling may still avail himself of the right

17 -4- to an appeal, should the trial render an adverse ruling with regard to.-the pending motion to withdraw his plea of guilty. Accordingly, j5:q-de. 3 he_appl/ 'ation for reopening. SEAN C. GALLAGHER, P.J., and CHRISTINE T. McMONAGLE, J., CONCUR FILED AND Jt}tiRNALIZED PER APP: R. 22(E) MAY _*RALD E. FUERST CI.EAK THE ^C T OF APPEALS BY ^ DEP.