ORIGINAL
IN THE SUPREME COURT OF OHIO
STATE OF OHIO Case No.:
Plaintiff-Appellee,
On Appeal from the Franklin
County Court of Appeals,
TENTH Appellate District
V.
WILLIAM A. FORTNER C.P.C. No.: 06CR09-6769
Defendant-Appellant, C.A. Case No. 08AP-191
...........................................................................................................................................................
MEMORANDUM IN SUPPORT OF JURISDICTION
Mr. William A. Fortner, A569-638
Mansfield Correctional Institution
Post Office Box 788
Mansfield, Ohio 44901
No Phone
DEFENDANT-APPELLANT, PRO SE
Mr. Ron O'Brien
Franklin County Prosecutor
373 South High Street, 14th Floor
Columbus, Ohio 43215
COUNSEL FOR APPELLEE, STATE OF OHIO
F
JUN 2,4 2010
CLERK OF COURT
SU['REME COURT OF OHIO
TABLE OF CONTENTS
Explanation of why this Case is a Case of Public or Great General Interest and
involves a Substantial Constitutional Question ............................................. Page 1
Statement of the Case and Facts .................................................................... Page 2
Argument in Support of Propositions of Law
Proposition of Law No.l ...................................................................... Page 4
Proposition of Law No.2 ...................................................................... Page. 11
Conclusion .................................................................................................... Page
14
Certificate of Service .................................................................................... Page
15
Appendix
State of Ohio v. William A. Fortner
No Citation provided - Memorandum Decision Rendered on May 11, 2010
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC
OR GREAT GENERAL INTEREST AND INVOLVES
A SUBSTANTIAL CONSTITUTIONAL OUESTION
Appellant William Fortner, submits before this Honorable Court the Substantial
Constitutional Question of:
Does a waiver of a stipulated essential element of a criminal defendant's plea agreement
at Oral Arguments on Appeal qualify as Ineffective Assistance of Appellate Counsel when the
stipulation exclusively required defendant pleading guilty to indictment(s) as read that required
the Court to sentence defendant pursuant to R.C. 2941.25, as Allied Offenses when the
indictment(s) clearly contained THE SAME theft victim in multi-count indictment(s) for
aggravated robbery?
Further, is it lawful for a Trial Court to approve a plea agreement, accept the defendant's
plea of guilty, then sentence defendant beyond the statutory term of imprisonment, using
consecutive sentences, when the offenses are Allied Offenses of Similar Import the defendant has
pleaded guilty to?
Or, in the alternative, is it lawful for a Trial Court to sentence a defendant beyond the
charge(s) contained in the indictment(s) for which the defendant was convicted of.
1
STATEMENT OF THE CASE AND FACTS
Appellant contends that in his instant case, his Trial Counsel stipulated that he was
pleading guilty to indictment(s) as they specifically/explicitly read, whereat the State agreed and
the Trial Court approved the agreement. The Trial Court initially looked upon the abstractness of
the case and indictment(s), approved the plea agreement. The Plea Hearing commenced whereat
the Trial Court accepted Appellant's plea of guilty to the stipulated language (emphasis added)
encompassed exclusively and solely within the indictment(s). However, at the sentencing
hearing, the Trial Court subsequently looked to the facts of the case that normally would have
procured Dissimilar Import with regard to the aggravated robbery offenses of multiple victims,
and sentenced Appellant beyond the scope of what the indictment, the charging instrument
lawfully allowed. Indictments that specified there was ONLY ONE theft victim in the multiple
counts of aggravated robbery. Imposing upon Appellant a sentence not represented in the
indictment(s), and as a consequence, imposing upon Appellant with a Sentence Contrary to Law.
It is upon this premise that a voir dire was not formally conducted by having the record
reflect, nor the proceeding conducted in open court, that the Trial Court sua sponte imposed
consecutive sentences for what clearly was established in the stipulated agreement as reflected in
the indictment(s), Allied Offense of Similar Import by there being only one course of conduct
perpetrated upon ONLY ONE theft victim to wit; J & E Electronics.
On September 7, 2006, the Franklin County Grand Jury indicted William Anthony
Fortner, Defendant-Appellant (hereinafter, Appellant), and Michael Powell, Jr. (co-defendant) on
seven counts of aggravated robbery (as felonies of the first degree), seven counts of robbery (as
felonies of the second degree), seven counts of robbery (as felonies of the third degree), seven
counts of kidnapping (as felonies of the first degree), and two counts of fleeing (as felonies of the
third and fourth degree). All the charges arose from a single, extended incident, and each count
2
contained a firearm specification. The defendants were indicted with robbing ONLY J&E
Electronics in seven different counts where there had actually been seven customers and
employees that were duct taped, and fleeing from police officers who responded to a 911 call.
The indictment, contains multiple variations of robbery charges but listed ONLY ONE theft
victim, to wit; J&E Electronics.
On November 20, 2007, Appellant appeared before Franklin County Common Pleas
Judge Beverly Y. Pfeiffer. At that time, he entered guilty pleas to counts one, two, three, five, six
and seven - all aggravated robbery offenses as felonies of the first degree. In addition, Appellant
entered guilty pleas to count twenty-five (kidnapping as a felony of the first degree) and count
thirty (fleeing as a felony of the third degree).
The Court accepted Appellant's guilty plea agreement arranged with the prosecution that
stipulated Appellant was pleading to the indictment(s) as read. The Court then ordered a presentence investigation. On February 11, 2008, Appellant appeared before Judge Pfeiffer for
sentencing. Upon an analysis of the facts surrounding the case, the Trial Court sua sponte
breached the agreement and pretext under which Appellant pled guilty, and imposed eight (8)
year sentences on counts one, two, three, five, six, seven and twenty-five in a consecutive
fashion. The Court also imposed a sentence of one (1) year for count thirty and a three (3) year
sentence for a single firearm specification. The Court ordered that count one, two, thirty and the
firearm specification be served consecutively. All other sentences were to be served
concurrently. The aggregate sentence of twenty (20) years. The Court rejected Defense
arguments that the sentences on the aggravated robbery charges should be merged in
direct compliance with Appellant's arranged plea agreement that was approved by the
Trial Court that was explicitly stipulated when Appellant pleaded guilty to the
indictment(s) as read.
3
Appellant appealed the judgment and sentence to the Franklin County Court of Appeals
on May 27, 2008. And, on September 30, 2008 the Franklin County Court of Appeals denied
Appellant's Appeal. On November 14, 2008 Appellant made timely application to the Ohio
Supreme Court. And, on March 4, 2009 the Ohio Supreme Court declined to entertain
Appellant's petition. Appellant, made an untimely filing of his Application for Re-Opening of
Appeal to the Tenth District Court of Appeals for Ineffective Assistance of Appellate Counsel
who waived the Merger at Oral Argument in his Direct Appeal.
On May 11, 2010, the Tenth District Court of Appeals dismissed Appellant's Delayed
Application for Re-Opening of Appeal pursuant to App.R. 26(13) for the reason he failed to
establish good cause for his failure to timely file the Application. Appellant herein appeals to
this Court.
LAW AND ARGUMENT IN SUPPORT
STANDARD AND REVIEW
The Ohio Revised Code Section 2941.25 is the law in Ohio governing Allied Offense, or
rather Multiple Offense of Similar Import. R.C. §2941.25 states in pertinent part:
"a two tiered test must be undertaken to determine whether two or more crimes
are allied offenses of similar import. In the first step, the elements of the two
crimes are compared. If the elements of the offenses correspond to such a degree
that the commission of one crime will result in the commission of the other, the
crimes are allied offenses of similar import and the court must then proceed to the
second step. In the second step, the defendant's conduct is reviewed to determine
whether the defendant can be convicted of both offenses. If the court finds either
that the crimes were committed separately or that there was a separate animus for
each crime, the defendant may be convicted of both offenses" [State v.
Blankenship (1988), 526 N.E.2d. 816, 817].
Therefore, Appellant herein cites Blankenship as the controlling mechanism wherewith
this Court has held he must then be sentenced in accordance with R.C. 2941.25 as it applies to
multiple count indictments for aggravated robbery when there is only one course of conduct and
only the same victim specified in all the indictments.
4
In State v. Underwood, 124 Ohio St.3d 365, 922 N.E.2d 923, 2010-Ohio-1, at*26; the
court reasoned, "Because the required merger of convictions must precede any sentence the court
imposes upon a conviction, [Underwood's] agreement to the multiple sentences the court
imposed could not waive his right to the prior merger that R.C. 2941.25 requires. Neither could
his no contest pleas waive his right to challenge his multiple convictions on double jeopardy
grounds." Id. at *23. The court of appeals concluded that, in light of the State's concession that
the offenses were allied offenses of similar import, Underwood's multiple sentences were not
authorized by law. It therefore vacated the convictions for counts one and three. Id. at *30.
In this instant Appellant must also be held to the standard of pleading guilty to a defective
indictment. See State v. Gaston, 2009 WL 1819340, 2009-Ohio-3080 at {¶ 7} "***[the
defendant] has waived any alleged errors in the indictment by pleading guilty to the offenses."
Here Appellant is entitled to the same waiver, in that the State waives the contentious
arguments on appeal with respect to any defects contained in Appellant's indictment(s) when the
Trial Court accepted his plea of guilty thereto. And, `[b]y entering a plea of guilty, the accused is
not simply stating that he did the discrete acts described in the indictment; he is admitting guilt
of a substantive crime.' United States v. Broce (1989), 488 U.S. 563, 570. In this and every
other case, the substantive crime as annotated is; the exactness of what the charging instrument
specifies in the indictment(s).
Also, this Court has held in State v. Harris, 122 Ohio St.3d 373, 911 N.E.2d 882, 2009Ohio-3323 at ¶ 6; "We accepted Harris' discrefionary appeal, in which he asserts that aggravated
robbery and robbery are allied offenses of similar import and that a defendant cannot be
convicted of both offenses if the charges originate from the same conduct. Harris also asserts
that a defendant may not be convicted of two counts of felonious assault charged pursuant to
R.C. 2903.11(A)(1) and 2903.11(A)(2) if both charges arise from the same conduct toward
the same victim."
5
Therefore, Appellant Fortner in this instant case seeks the same relief established as
entitled by this very Court in the above cited references. And, it is upon these propositions of
law of the underlying issues, that Appellant petitions this Court's review of such Substantial
Constitutional Question of whether or not the Allied Offense Statute applies towards guilty pleas
containing defects in the indictments for aggravated robbery, when those defects are considered
waived upon his plea. And, whether the Trial Court or Trial Counsel were deficient in their
respective performances to wit.
PROPOSITION OF LAW NO.1 - Ineffective Assistance of Appellate
Counsel for waiving Appellant's Right to Allied Offense Merger on Oral
Argument on Appeal.
Appellate Counsel was ineffective for allowing such a blatant element of jurisprudence as
Ohio Revised Code §2941.25 escaped his professional cognizance to basic and fundamental
performance as a licensed practicing attorney in the State of Ohio. As cited by the in the Eighth
District Court of Appeals Opinion in State v. Fortner, 2008 WL 4416533 (Ohio App. 10 Dist.),
2008 -Ohio- 5067, supra: "Appellant's argument in this appeal, although expressed in terms
of sentencing error, is in reality an attack on the language of the indictment."
The fact that Appellate Counsel allowed the Court of Appeals to construe a strict trial
preservation argument of Allied Offense {as stipulated by Trial Counsel at trial, and was the
crucible and crux of Appellant's basis for pleading guilty to the stated charges} in the context of
"in reality an attack on the language of the indictment" is beyond reasonable. The entire premise
of Appeal in Appellant's case was set firmly and exclusively upon the foundational legal premise
of a Merger Analysis pursuant to R.C. 2941.25. For Appellate Counsel to waive the axiomatic
holding of Appellant's ErrorAssignment for a controverted, introverted and circumvented
argument that completely waived all rights and entitlements of genuine relief statutorily afforded
Appellant in that specific guise, is Ineffectiveness at its pinnacle.
6
R.C. 2941.25(A): "Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one."
Accordingly, when considering Harris, this Court can only conclude that Appellant must
receive a sentence merger for the consecutive sentences imposed upon him by the Trial Court for
multiple offense of similar import as defined by the indictment(s), which is the controlling
mechanism by which the Trial Court held jurisdiction to impose any sentence. Appellant can not
be convicted for crime(s) listed in the indictment(s), and sentenced to other crime(s) outside of
the containments of the indictment(s).
Appellant entered into his plea of guilty strictly upon the indictment(s) of aggravated
robbery in the language drafted by the State of Ohio. The premise ofAppellate Counsel arguing
what was interpreted by the Appeals Court as "an attack on the language of the indictment"
substantiates Appellate Counsel's inability to articulate the issue as preserved for appeal by Trial
Counsel. Appellate Counsel waived the Allied Offense issue at Oral Arguments before the Court
of Appeals. Rather, he took an unintelligible course of action that was not only not conducive to
the preservation issue as established by Trial Counsel, but completely contrary to any
supposition of rights entitled Appellant when he clearly would have waived any defects in the
indictment as was presented by Appellate Counsel. This is reasonable knowledge for any
licensed practicing attorney within the State of Ohio.
Counsel argued distinctly contrary to Appellant's substantive rights on Appeal at Oral
Argument when waiving the very merger that was stipulated to and preserved for appeal at trial.
"I believe the case law is quite clear on that, that the kidnapping would merge for
the purpose of sentencing. As far as the aggravated robberies go, when we pled,
we said we were pleading guilty to the way it was indicted in the indictment. I
made that crystal clear on the record." (Tr. Page 30, 4-11), (Appendix A).
This has to be considered and determined Ineffective Assistance of Appellate
Counsel. In State v. Fortner, 2008 WL 4416533, Ohio App. 10 Dist.,2008 at ¶10:
"Appellant's counsel conceded as much at oral argument, when he stated: "[i]n
this case, there is no merger analysis, based on how [the State] indicted
[appellant]." Further, appellant's brief in support of this assignment of error
centers on the language of the indictment and the State's decision to indict
appellant in the manner it did."
Notwithstanding; Underwood at ¶ 23;
"Because a sentence is authorized by law only if it comports with all mandatory
sentencing provisions, we must now determine whether the directive in R.C.
2941.25 contains such a provision. *******"
{¶ 26} R.C. 2941.25(A) clearly provides that there may be only one conviction for
allied offenses of similar import. Because a defendant may be convicted of only
one offense for such conduct, the defendant may be sentenced for only one
offense. This court has previously said that allied offenses of similar import are to
be merged at sentencing. See State v. Brown, 119 Ohio St.3d 447, 2008-Ohio4569, 895 N.E.2d 149, at *43; State v. McGuire (1997), 80 Ohio St.3d 390, 399.
686 N.E.2d 1112. Thus, a trial court is PROHIBITED from imposing individual
sentences for counts that constitute allied offenses of similar import. A
defendant's plea to multiple counts DOES NOT affect the court's duty to merge
those allied counts at sentencing. This duty is MANDATORY, not discretionary.
Therefore, we conclude that when a sentence is imposed on multiple counts that
are allied offenses of similar import in violation of R.C. 2941.25(A), R.C.
2953.08(D) does not bar appellate review of that sentence even though it was
jointly recommended by the parties and imposed by the court.
{¶ 27}***** ...... Both R.C. 2941.25 and the Double Jeopardy Clause prohibit
multiple convictions for the same conduct. For this reason, a trial court is
required to merge allied offenses of similar import at sentencing. Thus, when the
issue of allied offenses is before the court, the question is not whether a particular
sentence is justified, but whether the defendant may be sentenced upon all the
offenses.
The Ohio Revised Code 2941.59 substantially infonns all licensed practicing attorney in
the State of Ohio the lawful application of waivers of defects in any charging instrument; "The
accused waives all defects which may be excepted to by a motion to quash or a plea in
abatement by demurring to an indictment, or by pleading in bar or the general issue." Further, it
is well established that a plea of guilty waives all defects in the prosecution except those errors
involving the regularity and constitutionality of the plea itself and the procedure by which it was
accepted by the court, and errors challenging the subject-matter jurisdiction of the court. See
United States v. Broce (1989), 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927; Montpelier v.
8
Greeno (1986), 25 Ohio St.3d 170, 25 OBR 212, 495 N.E.2d 581; Ross v. Court (1972), 30 Ohio
St.2d 323, 59 0.O.2d 385, 285 N.E.2d 25; State v. Brown (1988), 43 Ohio App.3d 39, 539
N.E.2d 1159. Therefore, because the waiver is applicable by law for any criminal defendant
upon a plea of guilty. The same waiver must be equitable to the prosecution with respect to
stipulated pleas of guilty to any charging instrument as related to by R.C. 2941.59. As cited, "it
is well established." The mere fact that Appellate Counsel approached the subject of any defects
in Appellant's indictments on appeal as having merits, qualifies as unreasonable and epitomizes
Ineffective Assistance of Appellate Counsel.
"The Double Jeopardy Clauses of the United States and Ohio Constitutions prevent
multiple punishments for the same offense." State v. Delfino (1986), 22 Ohio St.3d 270, 272,
490 N.E.2d 884, citing State v. Jones (1985), 18 Ohio St.3d 116, 118, 480 N.E.2d 408. Ohio's
multiple-count statute, R.C. 2941.25, was enacted to protect against multiple punishments for the
same criminal conduct prohibited by the double jeopardy clauses of the United States and Ohio
Constitutions. Thus, when a defendant claims that his multiple offenses should be merged for
conviction and sentencing, the court must apply R.C. 2941.25 in a two-step analysis as provided
by the Supreme Court of Ohio in State v. Rance [(1999), 85 Ohio St.3d 632, 710 N.E.2d 6991
and its progeny.
Appellant's Trial Counsel explicitly stipulated Appellant's plea was solely contingent
upon indictments as read and in strict accordance with the above cited Gaston ruling. For
Appellate Counsel to come behind Trial Counsel and argue contrary to the bindingness of any
existing defects in Appellant's indictment(s) is Ineffective. This is reasserted by Trial Counsel at
mitigation when Counsel motions the Court for MERGER of sentences with respect to the
stipulation of Appellant's plea to the indictment(s) that read THE SAME theft victim.
Further, it was Trial Counsel's distinct argument, that Defense specifically and explicitly
agreed with the Prosecution regarding Appellant pleading guilty to the charges as listed
9
exclusively and solely in the indictment(s), and that it was clear to both parties, the indictment(s)
contained multiple offenses of similar import, that wholly qualified defendant for sentence
mergers that were exclusively contemplated and implicit of Appellant's plea of guilty. "Because
the issue had been waived at trial, appellate counsel could reasonably decide not to try to raise it
in the court of appeals." See State v. Bays (1999), 87 Ohio St.3d 15, 29, 716 N.E.2d 1126.
Therefore, the same legal principle must be applied when there is issue that is clearly,
emphatically and on the record in open court stipulated to at trial, Appellate Counsel is
reasonably required to raise it in the Court of Appeals. To not raise on Appeal can be nothing
less than unreasonable and substantially qualifies as deficient performance whereby Appellant
was prejudiced to the point that the outcome weighs significantly probable to having a different
result.
To compound this Ineffectiveness, Appellate Counsel goes yet a step further in creating a
very substantial measure of prejudice to Appellant at Oral Argument on appeal that inevitably
seals the deal with regards to any future entitlements to relief save a 26(B) Application for ReOpening to repeal Appellate Counsel's dynastic disabling service.
Appellant, as well as Appellant's Trial Counsel agreed with the Court of Appeals
regarding the indictment issues. And, because of such disagreement that the Court of Appeals,
Trial Counsel and Appellant maintained possess in relationship to Appellate Counsel's
misrepresentation at Oral Argument and his professional insufficiency and comprehensive
inability to articulate anything remotely associated with the genuine issues of material facts
preserved and presently beneficial to Appellant's case on appeal. But rather, completely contrary
to Appellant's interest. And, this is illustrative of Appellate Counsel's Merit Brief on behalf of
Appellant making great strides towards attacking the indictment rather than the entitled and
stipulated MERGER pursuant to Ohio Revised Code 2941.25.
10
The Eighth District Court of Appeals states in Fortner at ¶10:
................ Because appellant pled guilty to six counts of aggravated robbery as
charged in his indictment, he has waived his right to challenge alleged defects in
the indictment."
This Appellant concedes. It was deficient performance on behalf of Appellate Counsel to
concede the MERGER ISSUE at Oral Argument when as a matter of law it is well established by
any legal conscious that Appellant waived his right to challenge any defects in his indictment
after he entered into his plea knowingly, willfully and intelligently. Thus, Appellate Counsel
failed to perform to any reasonable standard when law clearly (emphasis added) invokes the
mandatory merger of allied offenses by Trial Court, whereby Appellate Counsel completely
argued against such lawful entitlements for Appellant on appeal. The merger further qualified as
a'Dead Bang Winner' Assignment of Error on Appeal.
PROPOSITION OF LAW NO. 2- Ineffective Assistance of Appellate
Counsel Creating a Manifest Injustice:
Defining Manifest Injustice clearly concludes that: An error in the trial court that is
direct, obvious, and observable, such as a defendant's guilty plea that is involuntary or that is
based on a plea agreement that the prosecution rescinds. (Blacks Law Dictionary, Seventh
Edition). "In order to show a manifest injustice, a defendant must show that there was some
fundamental flaw in the proceedings that resulted in a miscarriage of justice or was inconsistent
with the requirements of due process." State v. Moncrief, 2008 WL 4174106, 2008-Ohio-4594.
It is here that Appellant contends that his Appellate Counsel created for him a Manifest
Injustice by not raising on appeal the unlawful imposition of a sentence that was beyond the
statutory range when of the charging instrument {indictment(s)} whereat Appellant was
convicted of at trial.
Thus, Appellant insists that he qualifies under such definition wher@at error by Trial
Court in not sentencing Appellant to one (1) single and/or concurrent sentence under the Allied
11
Offense statute. Resulting in a sixteen (16) year sentence rather than an eight (8) year sentence
qualifies as a Manifest Injustice when this was a direct result of Deficient Performance of
Appellate Counsel on Appeal.
Further, Ineffective Assistance of Counsel can form the basis for a claim of Manifest
Injustice State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3 813. And, in this text, Ineffective
Assistance of Appellate Counsel renders Appellant's grievance as a Manifest Injustice
respectively.
Ineffective Assistance of Appellate Counsel: In this instance, Appellant
contends his Legal Counsel was incompetent in this capacity causing serious and plain error of
the reversible type.
Accordingly, State v. Stansell, 2000 WL 426547 Ohio App. 8 Dist., 2000 cites:
"1. The Appellant/Defendant was sentenced contrary to law when the trial court
failed to hold a hearing to determine whether the offenses to which he pled were
allied offenses of similar import." "2. The Appellant/Defendant's guilty plea in
this matter was not knowingly, intelligently, or voluntarily given and should be
vacated," "3. The Appellant/Defendant's Constitutional Right to Effective
Assistance of Counsel was violated when such counsel failed to ask for a hearing
to determine whether some of the alleged acts were allied offenses."
"Where a defendant pleads to multiple offenses of similar import, and the trial
court accepts the plea, the court must conduct a hearing and make a
determination, before entering judgment, as to whether the offenses were of
similar or dissimilar import and whether or not there was a separate animus with
regard to each crime committed." State v. Gregory (1993), 90 Ohio App.3d 124,
129, 628 N.E.2d 86, 89, jurisdictional motion overniled (1993), 68 Ohio St.3d
1421, 624 N.E.2d 195, citing State v. Dunihue (1984), 20 Ohio App.3d 210, 211,
485 N.E.2d 764, 766.
Plain Error consists of an Obvious Error or defect in the trial proceedings that affects a
substantial right. Crim.R. 52(B). Under this standard, reversal is warranted only when the
outcome of the proceedings below clearly would have been different absent the error. State v.
Lindsey (2000), 87 Ohio St.3d 479, 482, citing State v. Long (1978), 53 Ohio St.2d 91, 7 Ohio
Op.3d 178, 372 N.E.2d 804, paragraph two of the syllabus. Appellant asserts and contends
that he suffered Plain Error in his case and that the proceedings clearly would have been
12
different absent the error in regards to the Ineffective Assistance of Appellate Counsel
bannering the underlying errors respectively as mentioned herein above.
Appellate Counsel failed to assert that indictment charges Appellant pled to which
confirms there was THE SAME theft victim, and that victim being (J&E Electronics), thus
solidifying what can only be a single animus of multiple offenses of similar import. Whereby
Appellate Counsel was compelled and constrained to vigorously propound such issues on
Appeal.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
"And, ...... sentencing proceeding is sufficiently like a trial in its adversarial
format and in existence of standards for decision that Counsel's role in the
proceeding is comparable to Counsel's role at trial which is to ensure that
adversarial testing process works to produce a just result under standards
governing decision, USCA Const. Amend 6."
Notwithstanding, multiple offenses of similar import stand paramount in this primary
instant whereby the Trial Court, Court of Appeals nor the Supreme Court of the State of Ohio
were consistent in ruling as is merited in the favor of Appellant in this instant. However, what
does not stand paramount in this instant is the fact Appellate Counsel seemingly bars Appellant
from what merited relief he is entitled with respect to R.C. 2941.25. And, that over and above
what Trial Counsel insulated Appellant with at trial when the specific terms of Appellant's guilty
plea was contingent upon the allied-ness of offenses that was to inevitably lead to one (1) single
sentence being imposed upon Appellant at sentencing.
And, irrespective of what Appellate Counsel seeks to defer to by waiving Appellant's
Allied Offenses Standing at Oral Argument, with a completely contrary trial strategy of
prevailing upon a Defective Indictment Claim. This becomes a substantial barrier of prejudice
that weighs upon Appellant with consecutive sentences he by law can not be subjected to. Here
is where Appellant Counsel procures a Sentence that is Contrary to Law being imposed upon
Appellant by the waiving of the Allied Offenses issue at Oral Argument.
13
And, as such Appellate Counsel is clearly deficient and performed substantially below
any reasonable or rational standard of professional performance. As he prevails not upon Trial
Counsel's skilled and technical efforts to secure a result that is just on behalf of Appellant in this
case. Appellant's Trial Counsel argues at trial on behalf of the Allied Offenses of Similar Import
Statute. Objects to consecutive sentences, makes mitigation arguments with brilliant charisma
and secures for Appellant a plea deal that is binding upon the State that is inclusive of existing
defects in Appellant's indictment.
CONCLUSION
Appellant present before this Honorable Court the herein listed reasons he asserts are
merits to grant him a review by this Court. Further, Appellant submits that this Court has the
authority to pounce upon the inconsistencies as exist in his instant case that clearly are contrary
to established law in the State of Ohio. And, Appellant seeks such relief as this Court deems
appropriate as requested herein in the form of a Sentence Merger pursuant to R.C. 2941.25. And,
Appellant expresses his sincere gratitude to this Court for its indulgence and judicial expediency
extended on his behalf in this matter.
r. William Fortner, A569-638
Mansfield Correctional Institution
Post Office Box 788
Mansfield, Ohio 44901
No Phone
DEFENDANT-APPELLANT, PRO SE
14
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum of Jurisdiction
has been sent by regular U.S. Mail to Franklin County Prosecutor's Office at 373
South High Street, 14th Floor, Columbus, Ohio 43215 on this 9 a' Day of June
2010.
Mr. William A. Fortner, A569-638
Appellant, Pro Se
15
1 Ci^ APPEALS
IN THE COURT OF APPEALS OF OHIO FRANKt IN nig OPih
TENTH APPELLATE DISTRICT
21110 14AYI ( PM 12: 54
ERK OF COURTS
State of Ohio,
Plaintiff-Appellee,
No.08AP-191
(C.P.C. No. 06CR09-6769)
V.
(REGULAR CALENDAR)
William A. Fortner,
Defefldant-Appeiiai'^t.
M EM O R AND U M D E C I S 10 N
Rendered on May 11, 2010
Ron O'Brien, Prosecuting Attorney, and Sarah W. Creedon,
for appellee.
William A. Fortner, pro se.
ON MOTION FOR LEAVE TO FILE DELAYED REOPENING
KLATT, J.
11111 On February 18, 2010, defendant-appellant, VUilliam A. Fortner, filed a pro
se motion for reopening pursuant to App.R. 26(B). He seeks to reopen the appellate
judgment that this court rendered in State v. Fortner, 10th Dist. No. 08AP-191, 2008Ohio-5067. In that appeal, defendant, through counsel, argued that the trial court
improperly sentenced him to consecutive sentences for two counts of aggravated
robbery. He also alleged that the trial court failed to engage in the proper sentencing
No.
08AP-191
3
indefinite period. Id. Defendant does not explainthe one-year delay after the Supreme
Court of Ohio rejected his appeal.
{16} Defendant also fails to explain when he learned of the availability of a
motion for reopening orthe steps he took once he did learn of his ability to file the instant
motion. Additionally, a defendant's claim of limited legal knowledge or ignorance of the
law is insufficient to establish good cause for failure to seek timely relief: State;v. Reddick
(1q95}, 72-(Jhio St.3d 88,^.91::,,%Woto v : Facrow, 115 Ohio St:3d 205. 2007=Ohio-4792, at
¶6.
{1[7} Because defendant has not established good cause for his failure to timely
file the instanfmotion, we deny his motion for reopening.
Motion denied:
SALDER and CONNOR, JJ.; concur.
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