IN THE SUPREME COURT OF OHIO STATE 'J7 QHIG, vs. Pialntlfr-Appeliee, 0'7 a-1 84 8 Gn Appeal from the CLARK County Court of Appeals, s C D DARYL COCHRAN Appeliate Distric^ ^oun of Appealc verer7dan - ,ppeiian:, ^2se No ,,,ina( /JA 9 7 MEMORANDUM IN SUPPOR i OF JURlSDICT1ON OF APPELLANT DARYL COCHRAN DARYL COCHRAN #391-030 NAMC ru LEBANON CORR. INST. INS 1 V 1- P.O. BOX 56 :L LEBANON, OHIO 45036 D=-_fvUAf^T-G.°PEL':_AJv T. PRO SE WILLIAM H. LAMB :o G^3,urar-11rM^ 0 E. COL. ST. 4TH FL. 5 trnr.. PRT^' ,FI . ,Dp OHIO 45501 S l^:.s^a::u^ c 4."2 l^7-"27R_^574 yh_ ^^".^14J^1_ ^'7f -,^?- _ ^r H O1O
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IN THE SUPREME COURT OF OHIO
STATE 'J7 QHIG,
vs.
Pialntlfr-Appeliee,0'7 a-1 84 8
Gn Appeal from the CLARKCounty Court
of Appeals, s C D
DARYL COCHRANAppeliate Distric^
^oun of Appealcverer7dan - ,ppeiian:, ^2se No ,,,ina( /JA 9 7
MEMORANDUM IN SUPPOR i OF JURlSDICT1ONOF APPELLANT DARYL COCHRAN
DARYL COCHRAN #391-030
NAMC ru
LEBANON CORR. INST.
INS 1 V 1-
P.O. BOX 56:LLEBANON, OHIO 45036
D=-_fvUAf^T-G.°PEL':_AJvT. PRO SE
WILLIAM H. LAMB:oG^3,urar-11rM^
0 E. COL. ST. 4TH FL.5trnr..
PRT^',FI . ,Dp OHIO 45501Sl^:.s^a::u^c
4."2l^7-"27R_^574yh_
^^".^14J^1_ ^'7f -,^?- _ ^r HO1O
TABLE OF CONTENTS
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR
EXPLANATION OF WHY THlS CASE!S A CASE OF PUBLIC OF,GR=AT u,_NERAL iNTERES ' Ai'a') iNVOL4f=-S t-; S:.fgS T ANTiA4
CONS T'Tu i iONAL OU=CTIGI^i
THIS CASE IN ITSELF QUESTIONS THE INTEGRITY OF THE
INTEGRITY OF THE JUDICIAL PROCESS IN THIS STATE INASMUCH, AS
THE FACT THAT PETITIONER / APPELLANT WAS DENIED SEVERAL
CONSTITUTIONAL RIGHTS, TO-WIT, HIS RIGHT TO COUNSEL AFTER
UNAMBIGUOUSLY REQUESTING A LAWYER, AS WELL AS HIS QUARANTEED
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ENCOMPASSED
WITHIN THE SIXTH AND FOURTEENTH AM. OF THE U.S. CONSTITUTION.
ALSO, THE FACT THAT APPELLANT WAS ARBITRARILY AND
UNREASONABLY PRECLUDED FROM RECEIVING THE BENEFIT OF THE
SUPREME COURT DECISION IN BLAKELY v. WASHINGTON, SUPRA, EVEN
THROUGH HIS CASE WAS ON DIRECT APPEAL, CLEARLY SHOWS THAT
THIS SYSTEMS HAS TOTALLY AND UNJUSTIFIABLY ABANDONED THE LAW
IN ORDER TO CIRUMUENT DUE PROCESS FOR APPEARENT POLITICAL
PURPOSES IN DIRECT CONTRAVENTION OF DUE PROCESS. (EMPHASIS).
JURISDICTION MUST BE INVOKED BY THIS COURT!
2
S^'AT_MENT p= THE rACT,-
ON NOVEMBER 19, 1999, APPELLANT WAS INCARCERATED AT THE
CLARK COUNTY JAIL AND WAS QUESTIONED IN THIS BY SGT. EGGERS
AND DETECTIVE ESTEP. DURING THE QUESTIONING, APPELLANT
CLEARLY AND UNAMBIGUOUSLY REQUESTED COUNSEL, BUT THE
INTERROGATION DID NOT CEASE. INCRIMMINATING STATEMENTS WERE
ELICITED. SUBSEQUENT TO THE INVOCATION OF HIS RIGHTS TO
COUNSEL, AND THE INTERROGATION OF APPELLANT NOT WITHSTANDING
HIS INVOCATION, APPELLANT WAS PRESENTED WITH A VISIT FROM AN
UNDERCOVER STATE AGENT AT THE JAIL AND THE RESULTING VISIT
WAS VIDEO TAPED AND FURTHER INCRIMMINATING STATEMENTS WERE
OBTAINED.
DURING PRETRIAL PROCEEDINGS, TRIAL COUNSEL REFUSED TO
FILE A MOTION TO CHALLENGE THE LEGALITY OF THE ILLEGALLY
OBTAINED STATEMENTS AND, DESPITE THE FACT THAT, AT MOST,
APPELLANT WAS GUILTY OF MANSLAUGHTER, COUNSEL COERCED
APPELLANT TO ENTER A PLEA TO MURDER, AGGRAVATED ROBBERY
AND TAMPERING WITH EVIDENCE.
AT SENTENCING, THE TRIAL COURT ADDED FIFTEEN YEARS TO
THE PERMISSIBLE MAXIMUM SENTENCE OF A SINGLE, CONCURRENT
TERM, BASED SOLELY UPON JUDICIAL FACT FINDING OF FACTS NOT
ALLEGED IN THE INDICTMENT, PROVEN BEYOND A REASONABLE
DOUBT, OR ADMITTED TO OR WAIVED BY APPELLANT.
c
3
3 ;'G,."_MEK" 0r THE CASL
ON FEBRUARY 15, 2000, APPELLANT ACQUIESCED TO COUNSEL'S
INSTRUCTIONS AND ENTERED A PLEA OF GUILTY TO ONE COUNT
EACH OF MURDER, AGGRAVATED ROBBERY AND TAMPERING WITH
EVIDENCE. ON FEBRUARY 24, 2000, APPELLANT WAS SENTENCED TO
SERVE FIFTEEN YEARS TO LIFE ON THE CHARGE OF MURDER
CONSECUTIVELY WITH AN ADDITIONAL FIVE YEARS ON THE
TAMPERING WITH EVIDENCE CHARGES FOR A TOTAL STATED PRISON
TERM OF THIRTY YEARS TO LIFE.
ON OCTOBER 13, 2005, APPELLANT FILED A MOTION FOR
LEAVE TO WITHDRAW HIS GUILTY PLEA. THE PROSECUTOR RESPONDED
ON OCTOBER 18, 2005 AND APPELLANT REPLIED OCTOBER 31, 2005.
ON MAY 10, 2006, APPELLANT FILED A MOTION TO PROCESS TO
HEARING AND JUDGMENT. ON JULY 26, 2006, APPELLANT FILED A
PETITION FOR WRIT OF PROCEDENDO IN SECOND DIST.
CSE N0. 06-CA-0075. ON AUGUST 8, 2006, AFTER SERVICE OF THE
PETITION, THE TRIAL COURT ISSUED ITS DECISION AND ENTRY
OVER RULING THE 32.1 MOTION. THIS TIMELY APPEAL FOLLOWS.
4
FIRST PF`OpUSITIJN OF Lr'i1V
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
VD rN aa RP" m P. p p
APPELLANT AND ERRONEOUSLY APPLYING RES-JUDICA-PT"I'0HIS ISSUED. ( ENTRY, 8-8-6
THE TRIAL COURT HELD "THE COURT FINDS THAT THE MATTERS
COCRHAN RAISES HERE COULD HAVE BEEN RAISED ON DIRECT
APPEAL OR IN A PETITION FOR POST CONVICTION RELEIF.
AS THE TIME FILING EITHER HAS LONG SINCE PASSED, THE MATTERS
ARE BARRED BY RESJUICATA." (DECISION AT 2, CITING A SINGLE,
UNREPORTED CASE). APPELLANT SUBMITS THAT THERE IS NO RULE,
STATUTE OF OTHER PROVISION FOR A DIRECT APPEAL FROM THE ENTRY
OF A GUILTY PLEA TO RAISE ISSUES OTHER THAN A SENTENCING
ISSUE IN 2953.08 WHICH WAS NOT AVAILABLE AT THE TIME OF
SENTENCING IN THIS CASE BECAUSE STATE v. FOSTER, (2006),
109 OH. ST. 3d1 HAD NOT YET BEEN DECIDED. THE TRIAL COURT'S
FINDING THAT A DIRECT APPEAL WAS AVAILABLE FOR THE ISSUES
HEREIN IS CLEARLY ERONEAOUS AS A MATTER OF LAW. FURTHER,
RESJUDICATA MAY NOT BE.USED AS AN AUTOMATIC BARRIER TO THE
INVESTIGATION OF THE VIOLATION OF THE CONSTITUTIONAL RIGHTS
OF A DEFENDANT IN A CRIMINAL CASE. LAUGHESEN v. STATE.
(1976) N.E. 2d 663. APPELLANT FURTHER SUBMITS THAT A
POST CONVICTION PETITION WAS NOT AVAILABLE TO HIM EITHER,
AS A POST CONVICTION PETITION REQUIRES MATERIALS DE HORS
THE RECORD, SEE E.G. STATE v. PERRY APP. 3d 151,
STATE v. MILABIVICH (1975) 42 OH. ST. 2d 46.
5
THE CLAIMS SET FORTH IN THE INSTANT PROCEEDINGS ARE ALL
DEMONSTRABLE FROM THE RECORD IN THIS CASE AND, THEREFORE, MAY
NOT BE RAISED IN A POST CONVICTION PROCEEDING AS DEMONSTRATED
BY THE CONTROLLING AUTHORITIES SET FORTH HEREIN. FURTHER, A
POST CONVICTION PROCEEDING IS A COLLATERAL PROCEEDING. SEE
2953.21 (J).
AS SUCH, APPELLANT'S BLAKELY-FOSTER CLAIM IS CURRENTLY
NOT RECOGNIZABLE IN A POST CONVICTION PROCEEDING WHERE AS A
32.1 PROCEEDING IS A DIRECT ATTACK, REQUIRING RELIEF ON SUCH
A CLAIM. SEE E.G. STATE v. BUSH, (2002) 96 OHIO ST. 3d 235.
THE TRIAL COURT'S DETERMINATION THAT DIRECT APPEAL AND
POST CONVICTION REMEDIES WERE AVAILABLE TO APPELLANT IS
CLEARLY ERRONEOUS AS A MATTER OR LAW AND THE APPLICATION OF
REJUDICATA IS IMPROPER AND MUST BE REVERSED!
6
SECOND PROPOSITION OF LAW:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT APPELLANT'S FIFTH AND SIXTH AMENDMENT
RIGHTS WERE NOT VIOLATED BY THE BREACH OF MIRANDA
AND HIS RE QUEST FOR COUNSEL, BY STATE AGENTSE N7RY'8-8-0 . - -
THE TRIAL COURT FOUND" ... THE TRANSCRIPT HE (APPELLANT)
ATTACHED TO HIS MOTION FAILS TO SHOW THAT HE INVOKED HIS RIGHT
TO COUNSEL WHEN QUESTIONED". ( ENTRY AT 2). APPELLANT SUBMITS
THAT THIS FACT FINDING IS ACTIVELY CONTRADICTED BY THE RECORD.
A REVIEW OF EXHIBIT A ATTACHED TO THE MOTION AT PAGE 3 OF THE
EXHIBIT DEMONSTRATES THAT APPELLANT STATED: "WELL, I DON'T
KNOW. I THINK I SHOULD TALK TO MY LAWYER FIRST." AND,
"OH I MEAN GODDAM IF I STOP TALKING TO GUYS LOOKS LIKE
SOMETHING TO HIDE HERE. I JUST WONDER IF I SHOULD TALK TO MY
LAWYER FIRST."
APPELLANT SUBMITS THAT THE FIRST STATEMENT IS UNAMBIGUOUS
AS A DESIRE TO TALK TO A LAWYER AND THE POLICE WERE OBLIGATED
TO CEASE QUESTIONING. SEE CONNECTICUT v. BARRETT. ( 1987) 479
U.S. 523, STATE v. STEPHENSON ( 1994) 878 SW 530, AND
U.S. v. MENDOZA, ( A,ll 1992) 963 F, 2d 1467. SEE ALSO
TOWN v. DUGGAR, ( CA, 11, 1990) 899 F. 2d 1104. EVEN THE
SECOND STAEMENT,-ACTUALLY MADE FIRST IN THE TRANSCRIPT,-
BEING CONSTRUED AS POSSIBLY AMBIGUOUS, REQUIRED THE POLICE
TO CEASE QUESTIONS, BASED UPON ALL OF THE CITATIONS SET
FOURTH ABOVE.
APPELLANT SUBMITS THAT THE TWO REQUESTS FOR COUNSEL,
ONE ARGUABLY AMBIGUOUS, BUT THE OTHER UNARGUABLY UNAMBIGUOUS 37/17l114Fiv
RENDERS ANY STATEMENTS ELICITED THERE AFTER VIOLATIVE OF THE
7
FIFTH AND SIXTH AMENDMENT AS A SET FORTH IN MIRANDA v. ARIZONA,
(1996) 386 U.S. 436 AND EDWARDS v. ARIZONA, (1981) 451 U.S.
477. SEE ALSO U.S. v. BROWNE (CA 1, 1989) 891 F. 2d 389.
TRIAL COURT FURTHER HELD "ALSO, ANY STATEMENTS HE
MADE TO THE INFORMANT WHO VISITED HIS AT THE JAIL WOULD NOT
LIKELY BE SUBJECT TO SUPPRESSION BECAUSE OF THE LACK OF A
REASONABLE EXPECTATION OF PRIVACY IN SUCH CIRCUMSTANCES.
"CITING TWO UNREPORTED CASES AND HOFFA v. U.S. (1966)
385 U.S. 293.
APPELLANT SUBMITS THAT THIS RELIANCE ON HOFFA IS
MISPLACED BECAUSE IT DOES NOT ENCOMPASS THE HOLDING IN
EDWARDS, SUPRA THAT REQUIRES CESSATION OF INTERROGATION BY
STATE AGENTS SUBSEQUENT TO THE INVOCATION OF THE RIGHT TO
COUNSEL. THE USE OF A PRIVATE CITIZEN AS A STATE AGENT TO HIS
RIGHT TO COUNSEL IS AN PROHIBITED AS THE CONTINUING
INTERROGATION BY THE POLICE THEMSELVES. SEE E.G.
BATTLE v. ESTELLE, (CA 5, 1981) 655 F. 2d 692;
WILSON v. O'LEARY (CA 7, 1990) 895 F. 2d 378.
APPELLANT SUBMITS THAT THE FINDINGS OF THE TRIAL COURT
ARE CLEARLY ERRONEOUS AS A MATTER OF LAW AND MUST BE REVERSED!
8
THIRD PROPOSITION OF LAW:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THAT APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVEFOR FAILING TO CHALLENGE THE ILLEGALLY OBTAINEDSTATEMENTS ELICITED FROM APPELLANT IN VIOLATIONOF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS.( ENTRY 8-8-06 ).
THE TRIAL COURT HELD THAT, SINCE THE CLAIMS OF APPELLANT
REGARDING THE ILLEGALLY OBTAINED STATEMENTS WERE "SPECIOUS,"
"THE COURT CANNOT CONCLUDE THAT COUNSEL'S (SIC) FAILURE TO
FILE A MOTION TO SUPPRESS WAS OBJECTIVELY UNREASONABLE OR
TIIAT COCHRAN WAS PREJUDICED THEREBY." (ENTRY AT 3).
APPELLANT SUBMITS THAT, AS SET FORTH IN THE LAW AND
ARGUMENTS SUPPORTING PROPOSITION OF LAW NO II ABOVE
DEMONSTRATING THAT THE INCRIMMINATING STATEMENTS ELICITED
FROM HIM WERE ILLEGALLY OBTAINED BY IGNORING HIS UNAMBIGUOUS
REQUEST FOR COUNSEL, THE CLAIMS ARE NOT "SPECIOUS" AND THE
TRAIL COURT'S CHARACTERIZATION THERE OF AS SUCH IS FACTUALLY
AND LEGALLY ERRONEOUS.
AS THE STATEMENTS OBTAINED ARE CLEARLY ILLEGALLY, TRIAL
COUNSEL HAD AN AFFIRMATIVE DUTY TO CHALLENGE SAID STATEMENTS
VIA A MOTION TO SUPPRESS AND THE FAILURE TO DO SO CONSTITUTES