IN THE SUPREME COURT OF OHIO
State of Ohio,
Plaintiff-Appellee,
V.
John Frazier, a minor child,
Case No.
11-1987
On Appeal from the Stark
County Court of Appeals,
Fifth Appellate District,
Case No. 2010 CA 42
Defendant-Appellant
Memorandum in Support of Jurisdiction of John Frazier, A Minor Child
John D. Ferrero, 0018590
Stark County Prosecutor
Office of the Ohio Public Defender
Ronald Mark Caldwell, 0030663
Assistant Prosecuting Attorney
Stephen P. Hardwick, 0062932
Assistant Public Defender
Stark County Prosecutor's Office
110 Central Plaza South, Suite 510
Canton, Ohio 44702
330-451-7897
330-451-7965 (Fax)
250 E. Broad Street - Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 (Fax)
[email protected]
Counsel for Plaintiff-Appellee,
State of Ohio
Counsel for Defendant-Appellant,
John Frazier
Table of Contents
Page No.
This Court Should Hear this Case ..........:........................................................ 1
Statement of the Case and the Facts ............................................................... 2
1. Summary ..... ............. ......... .............. ...... .. ... ..... ... ... ..... ... .. .................. .... 2
II. Discussion .............................................................................................3
Argument .. . ........ ................ ... ...... ... ...... ... ..... ... .......... ... ........ ... ........ ................ 5
Proposition of Law No. I:
A trial court's determination that offenses should not merge
under R.C. 2941.25 presents a question of law, requiring de
novo review on appeal. Appellate counsel was ineffective for
failing to challenge the trial court's decision to run the
sentences consecutively despite the fact that trial counsel
objected ........................................................... .............................. 5
Proposition of Law No. II:
When sentencing a defendant for crimes committed as a child,
a trial court must consider the child's youth when sentencing
the defendant, and trial counsel is ineffective when counsel
fails to raise the issue. Appellate counsel was ineffective for
failing to raise this issue . ..:................................................................. 8
Proposition of Law No. III:
Counsel's performance is deficient if counsel fails to raise an
issue that will result in reversal under clear case law from this
Court and when raising that issue could reasonably make a
large impact on the defendant's life in prison .................................. 11
Proposition of Law No. IV:
Appellate counsel may winnow out "weaker" arguments and
remain effective, but counsel is ineffective when counsel fails
to raise an issue that would require automatic reversal on a
question that could make a large impact on the client's life in
prison. ................................................................................................ 11
Table of Contents
Page No.
Proposition of Law No. V:
The trial court committed plain error when it failed to instruct
the jury on felony murder, and trial counsel was ineffective for
failing to request the instruction. As a result, John was
convicted and sentenced for offenses that should have
merged. Appellate counsel was ineffective for failing to make
the argument . ...............................................................:.................... 12
C onclusion ..................... ......... ......................... ........... ... ....... .. ... ..... ... ........ ... 15
Certificate of Service ....................................:................................................. 15
Appendix:
State of Ohio vs. John Wesley Frazier, Stark County Court of Appeals
Case No. 2010 CA 00042 (Oct. 11, 2011) Judgment Entry ..............A-1
State of Ohio vs. John Wesley Frazier, Stark County Court of Appeals
Case No. 2010 CA 00042 (Jan. 31, 2011) Opinion and
Judgment Entry ........ ............. .................... .................. ..... ... ..... ..... A-8
ii
This Court should Hear this Case
The first proposition of law in this case raises the same issue that this
Court is reviewing in State v. Williams, Case No. 2011-619. Specifically, this
case addresses the appellate standard of review for allied offense
determinations. The court of appeals here held that the standard was whether
"reasonable fact-finders" could find that the offenses were not allied. Opinion
at 5-6. Williams addresses the question of whether the standard of review is
abuse of discretion or de novo. If Mr. Williams prevails, this Court should
remand this case to the trial court for resentencing or, in the alternative, to the
court of appeals for further consideration under the correct standard.
The second proposition of law concerns the standards trial courts must
follow when sentencing children to adult prison sentences, as well as the
standard of practice for attorneys representing children. Here, trial counsel,
appellate counsel and the trial court all failed to consider John's youth when
sentencing him to 31 years to life. But as the United States Supreme Court
has repeatedly ruled, kids are different. Graham v. Florida (2010), --- U.S. ---,
130 S. Ct. 2011, Roper v. Simmons (2005), 543 U.S. 551, 570.
The third and fourth propositions of law are important because the court
of appeals essentially held that counsel can never be ineffective for failing to
challenge financial sanctions. John demonstrated that he was entitled to
automatic reversal because the trial court imposed court costs in the entry, but
did not first impose them in open court at the sentencing hearing. Under State
1
v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶22-3, John is entitled to a
hearing at which the trial court can decide whether to waive costs.
Court costs for jury trials can run into the thousands of dollars.
Further, all money above $15 is removed from inmate accounts every month to
pay the costs, which prevents family members from giving the inmate money
and eliminates the inmate's incentive to work. Ohio Adm. Code 5120-5-03(E).
As a result, court costs have an enormous effect on the quality of life of
prisoners. Effective counsel has no valid reason to fail to write a three-line
assignment of error that could save the client thousands of dollars.
Statement of the Case and the Facts
1. Summary
Seventeen year old John Frazier did not mean to kill anyone. The
testimony of the State's witnesses was that John and a friend stole marijuana
and money from a drug dealer, and that as John was leaving, the drug dealer's
partner grabbed John's arm to get the gun, and that the gun went off in the
ensuing brief struggle.
The State's witnesses show that John was guilty of one count of felony
murder and two counts of aggravated robbery, which should have merged.
Unfortunately, trial counsel failed to ask for the felony murder instruction.
And the trial court instructed the jury on a purposeful murder theory that
John killed the drug dealer's partner so far after the robbery that it was
unconnected to the robbery. But no evidence supported that theory.
2
Trial counsel also failed to inform the trial court of its duty to consider
John's youth as a mitigating factor, and the trial court failed to merge John's
sentences as requested by counsel. Finally, the court erroneously imposed
court costs in the entry without first imposing them in open court. Appellate
counsel failed to challenge the merger or the court costs.
H. Discussion
John testified that he and a friend, Mike Strychalski, decided to buy
some marijuana from Raymond Pyles and Jesse Burns. At 17, John was the
youngest of the four. Strychalski was 18 years old. Pyles was 21. Burns was
20. Pyles and Burns were drug dealers. John said that while the four were in
a car for the transaction, Mike pulled out a gun. Frazier left the car, but was
tackled after taking about five steps. The gun went off, and Burns died. T.p.
414-19.
Others testified that John pulled out the gun. Pyles, a drug dealer, said
that John was standing outside the car with his arm through the window and
across and in front of Pyles, with the gun pointing at Pyles. T.p. 148-9. After
Strychalski collected the money and the marijuana, John and Strychalski
turned to run away. T.p. 150. As Pyles was trying to open the car door, Burns
grabbed John's arm to try to get the gun. Id. Burns left the other side of the
car to go after Strychalski. T.p. 151. Pyles heard a gunshot, turned around,
and saw Burns bleeding on the ground. T.p. 153.
Strychalski testified that he and John planned to steal the marijuana,
and that John volunteered to carry Strychalski's gun. T.p. 292-3. He said that
3
he did not think they were going to kill anyone. T.p. 294. He said that after
Pyles and Burns gave up everything that was asked, Burns tried to grab the
gun from John, the two struggled, and the gun went off. T.p. 298-9. After the
shooting, Strychalski and John ran to their car, and John was "in shock." T.p.
303. Strychalski also said that soon after they left, John was expressing regret
for the shooting. Another State's witness said soon after the shooting, John
was initially "red-faced" and "[q]uiet" and then became "upset" and was
"cussing." T.p. 182, 4. John said, "I didn't mean to shoot him in the head[,J"
but that "the only aim I had was a head shot." T.p. 185-6." Then, John was
"just cussing, saying F words, a lot of cuss words." T.p. 188.
The State charged John with aggravated murder, two counts of
aggravated robbery, and firearm specifications for all three counts. At defense
counsel's request, the trial court gave an instruction that the jury could find
him guilty of murder if the jury found that the robberies and the killing were
two distinct acts. T.p. 432-8. The jury acquitted John of aggravated murder,
but convicted him of murder and two counts of aggravated robbery, all with
firearm specifications. The trial court merged the fire arm specifications for the
aggravated robbery. The court then sentenced John to concurrent terms of 10
years for the aggravated robberies, plus 3 years for the merged aggravated
robbery firearm specifications, plus 3 years for the firearm specification to
murder and 15 years to life for the murder. The total sentence is 31 years to
life. Id. The other three received either no criminal punishment or reduced
punishment in return for their testimony.
On appeal, appellate counsel argued that the evidence was insufficient,
the verdicts were against the manifest weight, and that the prosecutor
committed misconduct by calling a witness from which the defense elicited
harmful information. The court of appeals affirmed. Apx. at A-8.
John filed a timely application to reopen his appeal arguing that
appellate counsel was ineffective for failing to challenge the merger, court costs,
and a jury instruction. The court of appeals denied the application. Apx. at 1.
Argument
Proposition of Law No. I:
A trial court's determination that offenses should not merge
under R.C. 2941.25 presents a question of law, requiring de
novo review on appeal. Appellate counsel was ineffective for
failing to challenge the trial court's decision to run the
sentences consecutively despite the fact that trial counsel
objected.
The court of appeals incorrectly held that the standard of review for allied
offense determinations is whether a "reasonable judge" could have declined to
merge the offenses. Opinion at 5-6. The correct standard is de novo. This
Court has rendered many decisions in cases involving allied offenses under
R.C. 2941.25. See, e.g., Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314; State
v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059; State v. Harris, 122 Ohio St.3d
373, 2009-Ohio-3323; State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625;
State v. Rance (1999), 85 Ohio St.3d 632. Those cases were disposed of
without an abuse of discretion standard.
The determination that offenses should not merge under R.C. 2941.25
presents a question of law, requiring de novo review on appeal. De novo review
5
will promote uniformity and consistency under R.C. 2941.25. It will provide
the lower courts with meaningful guidance.
There is no justification for the use of an abuse of discretion standard
when reviewing merger determinations under R.C. 2941.25. Mr. Frazier makes
his argument based on the facts as described by the State's witnesses, so there
is no need to rely on witness demeanor or credibility. Specifically, the counts
should have merged because the State's witnesses testified that John stole
from the two victims at exactly the same time using the same weapon:
Q And then you said John pulled out a gun?
A Correct.
**^
Q Okay. What does he do with it?
A Puts it in the car.
Q How does he do that?
A Through the window,
Q And what happens?
A And, um-m, put it in the car, says, Give us everything, we know
something in here. (sic)
Q What does he say? I'm sorry.
A Give us everything, we know something else is in here.
Q Okay. What do you do?
A Give him what I have.
Q And what did you have?
A My cell phone, he had the weed already, the little bit of cash I had on
me.
Q Who do you give it to?
A Mike.
Q What about Jesse, what's (sic) Jesse do?
A The same thing.
Q Does he give them anything?
A Yeah.
Q Do you recall what that was?
A His cell phone, a little bit of cash.
Q Okay. Who does he give it to?
A John.
Q Then what happens?
A Um-m, once they try to-once it's all done, they try to leave....
6
T.p. 122-3.
This case is indistinguishable from the bank robbery scenario
contemplated in Johnson, in which "an armed robber who holds up a bank and
purposely kills two of the victims can be charged with and convicted of one
count of aggravated robbery and of two counts of aggravated murder."
Johnson, at ¶15, n2, quoting the 1973 Legislative Service Commission
comments to 1972 Am.Sub.H.B. No. 511. Like the hypothetical bank robber,
the State's witnesses explained that John robbed two people with a single
command at exactly the same time. Because the robberies were simultaneous,
this case is not like the Johnson hypothetical in which a thief "steals different
property from three separate victims in the space, say, of 5 minutes. ..." Id.
John was prejudiced even though his aggravated robbery sentences were
imposed concurrently because he now has "more convictions than are
authorized by law." State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1,
¶31. Appellate counsel was ineffective because, but for his deficient
performance, there is a reasonable probability that the result of the appeal
would have been different. Roe v. Flores-Ortega (2000), 528 U.S. 470.
7
Proposition of Law No. II:
When sentencing a defendant for crimes committed as a child,
a trial court must consider the child's youth when sentencing
the defendant, and trial counsel is ineffective when counsel
fails to raise the issue. Appellate coui^se1 was ineffective for
failing to raise this issue.
John was a 17-year-old child at the time of the offense, and in Graham v.
Florida (2010), 130 S. Ct. 2011, the United States Supreme Court held that an
"offender's age is relevant to the Eighth Amendment, and criminal procedure
laws that fail to take defendants' youthfulness into account at all would be
flawed." Graham, at 2031. Here, defense counsel made no effort to explain to
the trial court how John's age should affect the sentence, and, not surprisingly,
the trial court did not consider John's age.
John's youth is especially relevant because the court was determining
only when the Parole Board could consider John for parole, not when John
would be released. Given that John was a child, the trial court should have
considered his ability to grow and mature, even after multiple mistakes.
Child criminals are more likely to mature out of their criminal behavior.
"Indeed, `[t]he relevance of youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient; as individuals mature, the
impetuousness and recklessness that may dominate in younger years can
subside.' Johnson v. Texas (1993), 509 U.S. 350, 368 (citation omitted). See
also Laurence Steinberg and Elizabeth S. Scott (2003), "Less Guilty by Reason
of Adolescence: Developmental Immaturity, Diminished Responsibility, and the
Juvenile Death Penalty," 58 Am. Psychologist 1009, 1014 ('For most teens,
8
[risky or antisocial] behaviors are fleeting; they cease with maturity as
individual identity becomes settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal activities develop entrenched
patterns of problem behavior that persist into adulthood'), quoted in Roper v.
Simmons (2005), 543 U.S. 551, 570. Further, "[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption." Id. at 573. Another "broad difference is
that the character of a juvenile is not as well formed as that of an adult. The
personality traits of juveniles are more transitory, less fixed." Id. at 570.
Graham and Roper provided the trial court and trial counsel with a guide
as to which child development science was legally relevant to John's case. For
example, the trial court noted that John's sentence was harsher than his codefendant's in part because John did not cooperate with the police. T.p. 531.
But children have a diminished ability to work with counsel, to understand
when to trust authority, and to make appropriate judgments-all of which
could likely affected John's decisions about cooperation. Graham, 130 S. Ct. at
2032 (citations omitted)
The trial court also noted that John's co-defendant "may well have been
the planner of the entire operation," T.p. 531. But the court did not consider
"that juveniles are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure ....[This] is explained in part by
the prevailing circumstance that juveniles have less control, or less experience
9
with control, over their own environment. `(A]s legal minors, [juveniles] lack
the freedom that adults have to extricate themselves from a criminogenic
setting' Roper, 543 U.S. at 569 (internal citation and quotations omitted).
Because of his youth, John is more susceptible to manipulation, more
reckless, and less able to work with counsel. But he is also more likely to grow
out of and stop his reckless and dangerous behavior than an adult who
committed a similar crime. And contrary to the court of appeals opinion, Op.
at 6, the fact that the victim was near John's own age does not change this
analysis. Attacking a peer, as opposed to someone older, does not aggravate an
offense.
Further, there is no need to craft a longer sentence to protect the public.
John stands convicted of murder, which carries a life tail. Even if the trial
court had ran all sentences concurrently, John could not be released until he
persuades the Parole Board that he is no longer a risk and that he has been
punished adequately. And as described above, no one can accurately predict
how a child will act as a mature adult. Accordingly, the imposition of
consecutive sentences as punishment simply did not make sense.
The trial court should have considered John's youth when deciding when
John would be eligible to seek parole. Trial counsel was deficient for failing to
raise this issue, and the trial court committed plain error by not considering
John's youth. Appellate counsel was ineffective for failing to raise it on appeal.
Roe v. Flores-Ortega (2000), 528 U.S. 470.
10
Proposition of Law No. III:
Counsel's performance is deficient if counsel fails to raise an
issue that will result in reversal under clear case law from this
Court and when raising that issue could reasonably make a
large impact on the defendant's life in prison.
Proposition of Law No. IV:
Appellate counsel may winnow out "weaker" arguments and
remain effective, but counsel is ineffective when counsel fails
to raise an issue that would require automatic reversal on a
question that could make a large impact on the client's life in
prison.
The entry includes the imposition of court costs. The trial court did not
impose costs at the sentencing hearing. T.p. 529-35. John is entitled to a
hearing at which the trial court can decide whether to waive costs. State v.
Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶22-3.
The court of appeals inadvertently and incorrectly criticizes itself when it
rejected this claim. The court of appeals held that an appellate lawyer in the
Fifth District could reasonably believe that raising a guaranteed winning court
cost issue would cause that court to "divert[] attention" from the challenges to
the conviction.
As the first paragraph of this proposition of law shows, the issue can be
explained in four lines of text. It should take no more than four lines of text to
resolve. It would require little or no time at oral argument because both the
rule and the application of the rule are simple. Further, court costs have an
enormous impact on the lives of incarcerated defendants. All money above $15
is removed from their accounts every month to pay the costs, which prevents
11
family members from giving the inmate money and eliminates the inmate's
incentive to work. Ohio Adm. Code 5120-5-03(E).
Further, as the United States Supreme Court has noted, the purpose of
winnowing is to avoid making weak arguments. Jones v. Bames (1983), 463
U.S. 745, 752, internal citation omitted. Here, the court cost issue was not
weaker than the others that counsel made-to the contrary, it was stronger,
because it would have resulted in an automatic appellate win with the potential
to eliminate an enormous burden on the client's life in prison. It is not a
"reasonable appellate strategy" to decline to raise clear winning issues while
presenting weaker issues in the brief, and there is no case that permits an
appellate attorney to employ such a strategy.
Assignment of Error No. V:
The trial court committed plain error when it failed to instruct
the jury on felony murder, and trial counsel was ineffective for
failing to request the instruction. As a result, John was
convicted and sentenced for offenses that should have
merged. Appellate counsel was ineffective for failing to make
the argument.
The facts in this case supported an instruction for felony murder
because the unanimous testimony of the State's eyewitnesses "reasonably
support[ed] both an acquittal on aggravated murder and a conviction upon
[felony murder]" because the State's eyewitnesses unanimously supported the
theory that John unintentionally shot Burns in the course of an aggravated
robbery. See State v. Lancaster, Stark App. No. 2007 CA 00116, 2008-Ohio1247, ¶ 15.
12
A defendant can be convicted of felony murder if he does not intend to
kill when he "cause[s] the death of another as a proximate result of the
offender's committing or attempting to commit an offense of violence that is a
felony of the first or second degree[.]" R.C. 2903.02(B). Here, the State's
eyewitnesses testified that after collecting the marijuana and money at
gunpoint, John tried to leave, Burns grabbed his arm, and the gun went off in
a struggle. While the jury, may permissively infer an intent to kill from the fact
that a defendant used a gun, no rule mandates that inference. Given that the
State's eyewitnesses testified that the gun went off during a struggle initiated
by the victim after John tried to leave the scene, and that John almost
immediately expressed shock and remorse, the jury could have found that
John did not intend to kill. Further, at sentencing, the State effectively
acknowledged that the purposeful murder conviction did not make sense when
the prosecutor noted that "consistency ... is not needed. . . ." T.p. 526.
The difference between purposeful and felony murder matters because
under State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, purposeful
murder does not merge with aggravated robbery, but felony murder does.
Johnson held that the predicate offense for felony murder merged with the
murder where the predicate offense caused "simultaneous commission" of both
offenses, in that case, child endangerment and murder. Johnson, ¶56.
Likewise, here, the prosecution's theory was that John committed the
aggravated robbery because he had a gun "on or about his person, and also
that he displayed it, he indicated it, that he had possession of it, he brandished
13
it, or used it during the commission of the aggravated robbery." T.p. 440.
Possessing, displaying, brandishing, and using that gun in the course of an
aggravated robbery are all of the acts John committed that constituted the
murder. Further, without the additional element of purpose to kill, there is no
separate animus for the aggravated robberies and the murder.
Trial counsel was ineffective for failing to request an instruction on felony
murder because no valid strategic reason existed to seek a lesser included
offense of purposeful murder but not felony murder. See Strickland v.
Washington (1984), 466 U.S. 668. No testimony supported the instruction
given, and the instruction was inconsistent with counsel's sentencing strategy
of seeking merger. T.p. 524. The mistake prejudiced John because it
prevented the trial court from merging his aggravated robbery conviction into
the murder conviction.
Had counsel requested the proper instruction, or if the trial court had
properly instructed the jury on its own initiative, the aggravated robberies
would have merged into the murder, and John would have been subject only to
a total sentence of 18 years to life instead of 31 years to life. The errors also
deprived John of his Fifth Amendment right to be free from multiple
punishments. Missouri v. Hunter (1983), 459 U.S. 359. Appellate counsel was
ineffective for failing to raise the jury instruction issue, as well as ineffective
assistance of trial counsel for failing to object. See, Roe v. Flores-Ortega
(2000), 528 U.S. 470.
14
Conclusion
This Court should accept this appeal, reverse the decision of the court of
appeals, and remand this case for a new trial. In the alternative, this Court
should reopen this appeal, reverse the court of appeals, and require the court
of appeals to review this case under the correct standards.
Respectfully submitted,
Office of the Ohio Public Defender
BY:
St n . Hardwick, #0062
Assistant Public Defender
(Counsel of Record)
250 East Broad Street - Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 (Fax)
[email protected]
COUNSEL FOR JOHN FRAZIER
Certificate of Service
I certify a copy of the foregoing
Memorandum in Support of
Jurisdiction of John Frazier, A Minor Child has been sent by regular U.S.
mail to Ronald Mark Caldwell, Assistant Prosecuting Attorney, Stark County
Prosecutor's Office, 1'10 Central Plaza South, Suite 510, Canton, Ohio 44702
this 28th day of November, 2011.
tephe P. Hardwick, #0062932
Assistant Public Defender
#3567930 COUNSEL FOR JOHN FRAZIER
15
IN THE SUPREME COURT OF OHIO
State of Ohio,
Plaintiff-Appellee, Case No.
V. : On Appeal from the Stark
County Court of Appeals,
John Frazier, a minor child, : Fifth Appellate District,
Case No. 2010 CA 42
Defendant-Appellant
Appendix to
Memorandum in Support of Jurisdiction of John Frazier, A Minor Child
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
F'laintiff-Appeflee
-vs- : JUDGMENT ENTRY
JOHN WESLEY FRAZIER
Defendant-Appellant CASE NO. 2010 CA 00042
This matfer cornes before the Court upon an application to reopen appeal
(App.R. 26(8)) filed by Defendant-Appellant John Wesley Frazier on May 2, 2011:
Appellee State of Ohio filed a memorandum in response on Juns 13, 2011.
On January 27, 2010, a jury found appellant guilty of murder and guilty qn two
counts of aggtavated rob4ery. Appellant was sentenced on February 10, 2010 to an
aggregate lndeterminate sentence of thirty-one years to life in prison.
On January 31, 2011„ we affirmed appeltant's convictions and sentences.
AppelEant herein raises the following proposed four Claims or Assignments of
Error not raised in his direct appeal (see App.R. 26(B)(2)(c)):
1. Tt-EE TRIAL COURT ERRED BY IMPOSING SANCTIONS IN THE JUDCMENT
THAT IT DID NOT IMPOSE IN OPEN COURT.
11, THE TRIAL COURT COMMITTED PLAIN ERROR WHEN [T FAILED TO
INSTRUCT THE JURY ON FELONY MURDER, AND TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO REQUEST THE INSTRUCTION. AS A RESULT,
APPELLANT WAS CONVICTED AND SENTENCED FOR OFFENSES THAT SHOULD
HAVE MERGED.
IIL THE TRIAL COURT ERRED BY FAILING TO MERGE THE TWO COUNTS
OF AGGRAVATED ROBBERY OVER THE OBJECTION OF TRIAL COUNSEL.
IV. THE TRIAL COURT ERRED BY FAILING TO CONSIDER JOHN'S YOUTH
WHEN SENTENCING HIM TO CONSECUTIVE TIME AND TO THE MAXIMUM
SENTENCE FOR AGGRAVATED
ROBBERY,
AND TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE THE ISSUE.
Ineffective Assistance Standard
There is a two-pronged analysis in reviewing a claim for inefFective assistance of
2052, 80
counsel. See Strickland v. Washington ( 1984), 466 U.S. 668, 104 S.Ct.
L.Ed.2d 674; State v. Bradley ( 1989), 42 Ohio St.3d 136, 538 N.E.2d 373. First, we
must determine whether counsel's assistance was ineffective; i.e., whether counsel's
performance fell below an objective standard of reasonable representation and was
violative of any of his or her essentiai duties to the client. If we find ineffective
assistance of counsel, we must then determine whether or not the defense was actually
prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the
proceeding is suspect. This requires a showing that there is a reasonable probability
that but for counsel's unprofessional error, the outcome of the proceeding would have
been different. I d. Defense counsel is entitled to a strong presumption that all decisions
(1998),
fall within the wide range of reasonable professional assistance. State v. Sallie
2
81 Ohio St.3d 673, 675, 693 N.E.2d 267. In a motion to reopen under App.R. 26(B), an
appellant must show that his counsel was deficient for failing to raise the issues the
appellant presents, as well as showing that had counsel presented those claims on
appeal, there was a reasonable probability that he would have been successful. Thus
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.
1.
In his first proposed Assignment of Error, appellant argues his appellate counsel
should have argued that the trial court improperly imposed court costs in the sentencing
entry that it did not impose at the sentencing hearing.
In support of his argument, appellant directs us to State v. Joseph, 125 Ohio
St.3d 76, 2010-Ohio-954, a decision on point from the Ohio Supreme Court announced
about one month after appellant filed his notice of appeal. Nonetheless, we must
recognize an appellate attorney's discretion to decide which issues he or she believes
are the most fruitful arguments. See State v. McCauley, Cuyahoga App.No. 80630,
2005-Ohio-379, ¶4. Had appellate counsel in this instance raised a Joseph-type
argument upon direct appeal, it may simply have resulted in a remand to allow a motion
for a waiver of court costs, the result of which is speculative; moreover, appellate
counsel would have been diverting attention and resources from the more pressing
matters of challenging the serious felony convictions against appellant and a 31-to-life
prison sentence.
3
We thus find appellant has not met his initial burden of establishing a genuine
issue as to whether he has a colorable claim of ineffective assistance on direct appeal
in this regard.
€I.
In his second proposed Assignment of Error, appellant contends his appellate
counsel (1) should have argued, on a plain error standard, that the trial court erred in
failing to instruct the jury on felony murder, or (2) should have argued that trial counsel
was ineffective for not requesting a felony murder instruction.
In this case, after being bound over from juvenile court, appellant was indicted as
an adult on one count of aggravated murder (R.C. 2903.01(B)) and two counts of
aggravated robbery (2911 .01 (A)(1)), all with firearm specifications.
Appellant was convicted of the lesser offense of murder, as well as the two
counts of aggravated robbery. The murder conviction was based on R.C. 2903.02(A),
which states in pertinent part: "No person shall purposely cause the death of another
Appellant maintains an instruction for felony murder was also warranted under
R.C. 2903.02(B), which states: "No person shall cause the death of another as a
proximate result of the offender's committing or attempting to commit an offense of
violence that is a felony of the first or second degree *`*."
Appellant urges that the difference between "purposefuP" murder (R.C.
2903.02(A)) and felony murder (R.C. 2903.02(B)) is critical because under Ohio
Supreme Court case law, purposeful murder does not merge with aggravated robbery,
but felony murder does merge with aggravated robbery. In support, he cites State v.
4
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.1 Appellant calculates that had the
aggravated robberies been merged with felony murder, the total sentence would have
been 18 to life, rather than 31 to life.
We note that one of appellant's assigned errors on direct appeal was that the
jury's conviction for appellant's murder of Jesse Burns was inconsistent with the
convictions for the aggravated robbery of Jesse Burns and Raymond Pyles, and that the
trial court had committed reversible error in denying a mistrial on that basis. As
indicated in our analysis on direct appeal, the jurors may have found that a"break" in
appellant's conduct occurred during the botched drug deal to justify both the murder and
aggravated robbery convictions. Reasonable appellate counsel would thus likely have
been disinclined to argue that Burns' death was proximately caused by appellant's
commission of the aggravated robbery itself, rather than by a separate act.
Accordingly, we are unable to find a genuine issue of a colorable claim that
appellant's appellate counsel was ineffective for not raising the issue of a felony murder
jury instruction.
In his third proposed Assignment of Error, appellant contends his appellate
counsel should have argued that the trial court erred in failing to merge the two
aggravated robbery convictions.
Even assuming that appellate counsel should have foreseen the standard for
merger set forth in Johnson, supra, which abrogated the Rance standard, we find
reasonable fact-finders could have determined that appellant, while armed with a
Johnson was decided in December 2010, nearly a year after appellant's trial.
-- - - - -- ---------5 -------- -------
handgun, forcibly took Jesse Burns' items and additionally aided and abetted his
accomplice, Mike Strychalski, in taking Pyles' items. Based on these separate acts with
separate animus, we are unable to find a genuine issue of a colorable claim of
ineffective appellate assistance regarding the issue of merger.
IV.
In his fourth proposed Assignment of Error, appellant contends his appellate
counsel ineffectively failed to raise an error that the trial court failed to consider, for
sentencing purposes, appellant's age (17 years old at the time of the offense), or failed
to raise the issue on an "ineffective assistance of trial counsel" basis.
The United States Supreme Court has recognized that juveniles may lack the
freedom adults have to extricate themselves from a criminogenic setting. See Roper v.
Simmons ( 2005), 543 U.S. 551, 569. However, the fact that appellant was a minor being
tried as an adult was obviously known to the trial court throughout the proceedings, and
appellant does not persuade us that his sentence would have been different had his
youth been more vigorously asserted to the trial court. Furthermore, as the State
suggests, an overemphasis on the issue of appellant's youth by trial counsel may have
been counterproductive given that the victim in this case, Jesse Burns, was just a young
adult when appellant fatally shot him.
We therefore find no genuine issue of a colorable claim that appellant's appellate
counsel was ineffective on this basis.
6
For the foregoing reasons, appellant's application to reopen is hereby denied.
IT IS SO ORDERED.
JWWid 0916
7
A - 7
[Cite as State v. Frazier, 2011-Ohio-434.1
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
JUDGES:
Hon. Julie A. Edwards, P. J.
Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
Case No. 2010 CA 00042
JOHN WESLEY FRAZIER
Defendant-Appellant
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2009 CR 01024(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 31, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
111 Second Street, NW
PROSECUTING ATTORNEY
Suite
302
RONALD MARK CALDWELL
Canton,
Ohio 44702
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010 CA 00042 2
Wise, J.
{11} Appellant John Wesley Frazier appeals from his convictions for murder
County. The relevant
and aggravated robbery in the Court of Common Pleas, Stark
facts leading to this appeal are as follows.
inquired of Canton
{12} On June 22, 2009, appellant's friend Mike Strychalski
resident Raymond Pyles about purchasing some marijuana. Strychalski and Pyles set
up a date and time for the transaction. Strychalski also met with appellant, at which time
the two young men discussed robbing Pyles during the drug deal.
{13} On the next day, Pyles and his friend, Jesse Burns, drove a Toyota SUV
to a small playground in the Vienna Woods neighborhood in southwest Canton to
complete the drug deal. Appellant, standing with Strychalski at the passenger side
window of the truck, produced a handgun and demanded any money and valuables
from Pyles and Burns. After Pyles and Burns had turned over their cash, marijuana, and
cell phones, a physical struggle ensued between Burns and appellant, following which
Burns was fatally shot in the head.
{14} Appellant, who was a minor at the time, was thereafter bound over from
juvenile court and indicted as an adult on one count of aggravated murder and two
counts of robbery, all with firearm specifications.
{15} The case proceeded to a jury trial. On January 27, 2010, the jury found
appellant guilty of the lesser included offense of murder, and guilty of two counts of
aggravated robbery. Appellant was sentenced on February 10, 2010 to an aggregate
indeterminate sentence of thirty-one years to life in prison.
Stark County, Case No. 2010 CA 00042 3
{16} On February 23, 2010, appellant filed a notice of appeal. He herein raises
the following three Assignments of Error:
{17} "I. THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶8} "II. THE TRIAL COURT'S (SIC) ERRED IN FAILING TO DECLARE A
MISTRIAL ON THE BASIS OF INCONSISTENT VERDICT BY THE JURY.
{19} "III. THE APPELANT (SIC) WAS DEPRIVED OF DUE PROCESS OF
[LAW] BY THE MISCONDUCT OF THE PROSECUTOR."
1.
{¶10} In his First Assignment of Error, appellant maintains his conviction was
against the sufficiency and manifest weight of the evidence. We disagree.
{111} In reviewing a claim of insufficient evidence, "[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. It is well-established that a jury is free to believe all, part,
or none of any witness' testimony. See State v. Mossburg, Van Wert App.No. 15-06-10,
2007-Ohio-3343, ¶ 46, citing State v. Antitl ( 1964), 176 Ohio St. 61, 197 N.E.2d 548.
{¶12} Appellant herein was convicted of one count of murder and two counts of
aggravated robbery.
{113} R.C. 2903.02(A) states in pertinent part: "No person shall purposely cause
the death of another ""."
Stark County, Case No. 2010 CA 00042 4
{114} In addition, R.C. 2911.01(A)(1) states as follows: "No person, in
attempting or committing a theft offense, as defined in section 2913.01 of the Revised
Code, or in fleeing immediately after the attempt or offense, shall `^"' [h]ave a deadly
weapon on or about the offender's person or under the offender's control and either
display the weapon, brandish it, indicate that the offender possesses it, or use it[.]"
{115} The bulk of appellant's argument goes to the evidence concerning the
shooter's identity, which we will additionally analyze in regard to appellant's "manifest
weight" claim. Nonetheless, the record reveals that both Strychalski and Pyles observed
appellant produce a handgun during the staged drug deal and demand "everything"
from Pyles and Burns in the SUV. Pyles described how he started to give chase in the
vehicle after Strychalski ran off toward home, while appellant and Burns wrestled over
the gun outside the SUV. Pyles then heard a gunshot and saw Burns sitting on the
ground, bleeding. Furthermore, David Taylor, who was given a ride by Strychalski and
appellant shortly after the shooting, heard appellant, who appeared upset and cursing,
state "I didn't mean to shoot him in the head." Taylor also observed appellant wrap a
handgun into a T-shirt as Strychalski drove up Dueber Avenue during this time.
{¶16} We note the State also presented deputy coroner testimony that the cause
of Burns' death was a gunshot wound to the top of the skull, which penetrated into the
brain. Criminalist Michael Short opined that the deadly shot had the characteristics of a
Smith and Wesson .357 or .38 fired at close range to the victim. No shell casings were
found at the scene, although Canton Detective Joseph Mongold testified that if the
weapon had indeed been a revolver, the casings would not have been ejected.
Stark County, Case No. 2010 CA 00042 5
{117} Accordingly, upon review of the trial court record in a light most favorable
to the prosecution, we hold appeilant's convictions for murder and aggravated robbery
were supported by sufficient evidence.
{118} Turning to the second portion of this assigned error, we note our standard
of review on a manifest weight challenge to a criminal conviction is stated as follows:
"The court, reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered."
State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v.
Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a new trial
"should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction." Martin at 175, 485 N.E.2d 717.
{119} The focus of appellant's manifest weight claim is on alleged
inconsistencies in the testimony and credibility of the witnesses as to the perpetrator of
the robbery and shooting.
{120} The record consistently reveals that Strychalski was the person who
chiefly arranged the details of the drug transaction ruse to effectuate a robbery of Pyles.
Strychalski admitted to having access to a handgun, which had previously belonged to a
deceased friend. He also admitted to pointing the gun at appellant the night before the
shooting, when a "tussle" between Strychalski and appellant got out of hand. Appellant
presently attacks Strychalski as a "self-confessed liar" who gave three versions of the
Stark County, Case No. 2010 CA 00042 6
events of June 23, 2009 to police officials. Appellant maintains that Strychalski had
significant incentive to put the blame for the shooting on appellant rather than himself.
{121} Appellant also challenges Pyles' testimony, questioning Pyles' recollection
that he turned his cash, drugs, and cell phone over to Strychalski, even though Pyles
testified that appellant was the one holding the gun. He notes that Pyles gave a second
statement to police about the robbery and shooting after being assured he would not be
charged with drug trafficking.
{¶22} The record reveals that appellant took the stand in his defense, essentially
countering the State's theory of the case by portraying Strychalski as the perpetrator.
Appellant maintained that during the drug buy Strychalski pulled a gun from his
sweatpants pocket and ordered Pyles to turn over all the drugs. Appellant claimed to be
surprised by the robbery, following which he started to run, before being tackled by
Burns, who was physically larger than him. He then told the jury that as Burns was on
top of him, Strychalski intervened in the scuffle, ultimately shooting Burns. Appellant
presently maintains that his version of events correlates with the physical evidence of
Burns being shot on the very top of his head.
{123} Despite these varying versions of events, and differences in details
between Strychalski and Pyles, both of whom admittedly were involved in illegal drug
activities, we recognize that the jurors, as the firsthand triers of fact, were patently in the
best position to gauge the truth. It is worth reiterating, inter alia, that David Taylor, who
described himself as appellant's friend and who apparently was not facing charges for
his limited involvement, clearly testified that he heard appellant announce his regret for
shooting Burns in the head.
Stark County, Case No. 2010 CA
00042
7
{124} Upon review, we find the jury did not clearly lose its way and create a
manifest miscarriage of justice requiring that appellant's conviction be reversed and a
new trial ordered.
{125} Appellant's First Assignment of Error is therefore overruled.
II.
{126} In his Second Assignment of Error, appellant contends the jury's
conviction for appellant's murder of Burns is inconsistent with the convictions for
aggravated robbery of Burns and Pyles, and that the trial court committed reversible
error in denying a mistrial on that basis. We disagree.
{127} In essence, appellant, noting that the jury did not convict on aggravated
murder, contends that because the lesser offense of murder as instructed in this case
lacks the element of "while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit, aggravated robbery," the jury's
overall result is inconsistent and a mistrial was warranted.
{¶28} Our standard of review for evaluating a trial court's decision to grant or
deny a mistrial is abuse of discretion. State v. Graewe, Tuscarawas App.No. 2007 AP
10 0070, 2008-Ohio-5143, ¶ 46, citing State v. Sage (1987), 31 Ohio St.3d 173, 182,
510 N.E.2d 343. In order to find an abuse of discretion, we must determine the trial
court's decision was unreasonable, arbitrary or unconscionable and not merely an error
of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d
1140. Generally, "[i]nconsistency in a verdict does not arise out of inconsistent
responses to different counts, but rather inconsistent responses to the same count."
State v. Gardner, Montgomery App. No. 21027, 2006-Ohio-1130, ¶ 33, citing State v.
Stark County, Case No. 2010 CA 00042 8
Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137; State v. Lovejoy (1997), 79 Ohio
St.3d 440, 683 N.E.2d 1112. Furthermore, an inconsistent verdict may very well be a
result of leniency and compromise by the jurors, rather than being caused by jury
confusion. State v. Fraley, Perry App.No. 03CA12, 2004-Ohio-4898, ¶ 15, citing United
States v. Powell (1984), 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461. See, also, State v.
Ballard, Cuyahoga App.No. 88279, 2007-Ohio-4017, ¶ 17.
{¶29} In addressing appellant's motion for mistrial following the jury's verdict, the
trial court reasoned as follows:
{130} "As It relates to the arguments made by counsel, the Court, while it may
not necessarily agree, finds that, in fact, there are theories, obviously the Court allowed
for the lesser included offense of murder to be submitted to the jury, the State was in
agreement with that, the Defense had requested it. I raised questions at the time. But,
nevertheless, in thinking it through, there is arguably the situation where a robbery takes
place and thereafter unrelated, at least in the minds of the fact finders, to the
aggravated robbery, an incident occurs reaching a murder. So that it wasn't during the
commission of the aggravated robbery or immediately thereafter, enough of a break
being found to have existed." Tr. at 530.
{¶31} Upon review of the aforesaid, and bearing in mind the potentiality for juror
leniency or compromise, we hold the trial court's denial of the motion for mistrial on the
allegation of inconsistent verdicts was not arbitrary, unreasonable or unconscionable.
{¶32} Appellant's Second Assignment of Error is therefore overruled.
Stark County, Case No. 2010 CA 00042 9
III.
{133} In his Third Assignment of Error, appellant argues he was deprived of due
process of law based on alleged prosecutorial misconduct. We disagree.
{134} A conviction will be reversed for prosecutorial misconduct only where it is
clear beyond a reasonable doubt that, absent the prosecutor's comments, the jury
would not have found the defendant guilty. State v. Benge, 75 Ohio St.3d 136, 141, 661
N.E.2d 1019, 1996-Ohio-227. Furthermore, isolated comments by a prosecutor are not
to be taken out of context and given their "most damaging meaning." See Donnelly v.
DeChristoforo (1974), 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431. Generally, a
prosecutor's conduct at trial is not grounds for reversal unless that conduct deprives the
defendant of a fair trial. State v. Loza (1994), 71 Ohio St.3d 61, 78, 641 N.E.2d 1082.
Furthermore, juries are presumed to follow and obey the limiting instructions given them
by the trial court. State v. DeMastry, 155 Ohio App.3d 110, 127, 799 N.E.2d 229, 2003Ohio-5588, 184, citing State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1.
{135} Appellant's concerns focus on the prosecutor's calling of Ashley Dorr, a
juvenile placement officer, who briefly checked on appellant at his mother's residence
earlier on the day of the shooting of Burns. Appellant first maintains that calling Dorr at
all was simply an attempt by the prosecutor to cast appellant's character in a bad light
by suggesting he had a juvenile record. However, given Dorr's recollection that
Strychalski was at the residence with appellant, it was not improper for the State to
present evidence that the two young men were together in southwest Canton the day of
the murder, possibly planning the staged drug deal.
Stark County, Case No. 2010 CA 00042 10
{736} Appellant also takes specific objection to the prosecutor's question to
Dorr, on re-direct, concerning the reason that juveniles who are released from the
Community Corrections Facility ("CCF") are periodically supervised. Dorr started to
respond: "Fear for the community. We don't want to send kids *'*." Tr. at 239. At that
point, the trial judge sua sponte cut the answer off and instructed the jury to disregard.
Id.
{137} We note that earlier on direct examination, Dorr had simply identified
herself as a family court employee; it was defense counsel that thereafter brought out
that Dorr was a court placement officer and that appellant had been a juvenile resident
of CCF for several months. See Tr. at 236-237. Upon review, and in light of the trial
court's curative instruction, we do not conclude the prosecutor's questioning of Dorr,
assuming, arguendo, it was improper, would have prejudicially affected appellant's
substantial rights. Loza, supra.
{138} We therefore find no reversible error based on the basis of prosecutorial
misconduct.
Stark County, Case No. 2010 CA
00042
11
{139} Appellant's Third Assignment of Error is therefore overruled.
{140} For the foregoing reasons, the judgment of the Court of Common Pleas;
Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Edwards, P. J., and
Farmer, J., concur.
JUDGES
JWW/d 0112
Stark County, Case No. 2010 CA 00042 12
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
JUDGMENT ENTRY
-vsJOHN WESLEY FRAZIER
Defendant-Appellant
Case No. 2010 CA 00042
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES