ECEOVED - Supreme Court of Ohio the established precedent of the Supreme Court of the United States requiring representation by ... attorney for ineffective assistance of counsel.

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IN THE SUPREME COURT OF OHIO

DAVID RABE,

APPELLANT,

V.

STATE OF OHIO,

APPELLEE.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT DAVID RABE

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David Rabe, #676-659London Correctional InstitutionP.O. Box 69London, OH 43140

APPELLANT, PRO SE

D. Vincent FarrisClermont County Prosecutor76 S. Riverside Dr., 2"' Fl.Batavia, OH 45103

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On Appeal from the ClermontCounty Court of AppealsTwelfth Appellate District

Court of AppealsCase No. CA 2013-09-068

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COUNSEL FOR APPELLEE, STATE OF OHIO

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CLERK OF COu

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORPue

GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

STATEMEIeTT OF THE CASE AND FACTS . : . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW . . . . . . . . . . . 7

Proposition of Law No. I: A pre-trial hearing where the trial courtcloses discovery, finalizes the witness list, and imposes discoverysanctions on the Defendant is a"criticai stage" where the Defendantis entitled to be represented by counsel and appellate counsel is ineffectivefor failing to raise this deprivation of counsel on direct appeal. ..... .... 7

Proposition of Law No. II: A Defendant's due process rights aredenied when a prosecutor tells the jury that the only reason a defendantwould refuse a breathalyzer is because he is guilty of DUI . ............ 9

Proposition of Law No. III: The Defendant is denied Due Process and afair trial when the trial court instructs the jury that they may use his priorDUI conviction as substantive evidence of guilt on a subsequent DUI..... 11

CONCLUSION ................. ........ ....................... 14

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDIX Appx. Page

Opinion & Entry of the Clermont County Court of Appeals(October10,2014) .....................................

1.

EXPLANATION OF WFiY TIIIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND INVOLVES

A SI7BSTANTIAL CONSTITUTIONAL QUESTION

This Court should accept jurisdiction of this case because the lower court failed to follow

the established precedent of the Supreme Court of the United States requiring representation by

counsel at critical stages. The appellate court also unreasonably failed to address Appellant's

claim that the trial court advised the jury that it could take the Appellant's prior DUI convictions

into account as substantive evidence of the Appellant's guilt in deciding his subsequent DUI

charge. Instead, the trial court revised the transcript via a nunc pro tunc order changing the

substance of the instruction the jury received while this issue was pending before the court of

appeals. These perilous precedents will dramatically alter judicial policy if allowed to stand and

the lower court's decision represents a major departure from well-established legal standards and

principles.

Prior to trial, the Defendant in this criminal case nzoved the trial court to dismiss his

attorney for ineffective assistance of counsel. The basis of the Defendant's motion was that trial

counsel had failed to investigate the charges against him, failed to interview possible defense

witnesses, and generally failed to prepare for trial. The trial court held a hearing at which it

granted the Defendant's motion and removed counsel. After removing counsel, the trial court

proceeded to conduct a final pre-trial hearing wherein it closed discovery, demanded that the

now unrepresented defendant provide a final witness list, and issued a discovery sanction against

the unrepresented defendant prohibiting the addition of any additional witnesses -- all without

the benefit of representation.

The court of appeals considered, on direct appeal, whether these actions violated

Criminal Rule 16 and ruled that they did not because it concluded appellate counsel had not

I

demonstrated sufficient prejudice to warrant reversal. Appellant filed an Application to Reopen

asserting that appellate counsel was ineffective for failure to raise the deprivation of counsel as

an issue on direct appeal. Appellate counsel had acknowledged that the Defendant was without

counsel in this hearing, but did not raise the deprivation of counsel as an issue on appeal. In its

decision denying the application to reopen, the court of appeals concluded that since it had

concluded that prejudice had not been established on direct appeal with regard to the Crim. R. 1.6

violation, that Appellant could not establish prejudice with regard to the denial of the right to

counsel. In reaching this conclusion, the court of appeals failed to treat the error as a structural

error where prejudice need not be proven. The court of appeals disregarded the well-established

rule that when the accused is subject to a complete denial of counsel at 'a critical stage' his Sixth

Amendment right to counsel is violated. Bell v. Cone, 535 U.S. 685 (2002); lTnr.'ted States v.

Cronic, 466 U.S. 648, 659 (1984).

In Bell, the Supreme Court identified "critical stages" by looking to previous cases in

which it had so characterized various stages of criminal proceedings. By this reasoning, the pre-

trial period is indeed a critical stage and the denial of counsel during a pre-trial hearing supports

a Cronic analysis. Several of the Supreme Court's cases demonstrate that the period between

appointment of counsel and the start of trial is indeed a'°critical stage" for Sixth Amendment

purposes. The Supreme Court in Powell v. Alabama, 287 U.S. 45, 57 (1932), described the pre-

trial period as "perhaps the most critical period of the proceedings ... that is to say, from the

time of their arraignment until the beginning of their trial, when consultation, thorough-going

investigation and preparation were vitally important." The Court ruled that a defendant must be

provided counsel at "every step in the proceedings against him," which the Powell ruling

suggests includes the pre-trial period at issue in this hearing. Id.. at 69. Bell suggested that the

2

pre-trial critical stage was not "limited to" hearings before the judge and it took for granted that a

defendant would be entitled to counsel at any formal hearing before a judge -- but here, the court

of appeals upheld the defendants appearance before the judge at a hearing where the State was

represented by counsel, but the defendant was not.

The decision of the court of appeals is irreconcilable with the Supreme Court's decision

in Cronic. In Crorzic, the Supreme Court delineated those few exceptional circumstances that

are so likely to prejudice the defendant that a reviewing court need not examine the

consequences of the lawyer's conduct; one of these circumstances is the complete denial of

counsel to a criminal defendant at a critical stage of the proceedings. Cy-oriic, 466 U. S. at 659.

Chrotzic requires reversal if counsel was absent during a proceeding which by its nat2tre was

likely to prejudice the defendant even if in this particular case no prejudice actually occurred.

b'aiz v. Jones, 475 F.3d 292, 313 (6th Cir. 2007). The court of appeals in this case unreasonably

failed to apply Cronic and instead demanded the demonstration of prejudice -- a factor that

Appellant was not required to establish. The court of appeals failed to consider whether this pre-

trial hearing was a "critical stage" of the proceedings and it disregarded the well-established

principle that a criminal defendant is entitled to "the guiding hand of counsel at every step in the

proceedings against him." Powell, 287 U.S. at 69.

The court of appeals decision permits trial courts to engage in important pre-trial hearings

wherein witness lists are finalized for trial without permitting the defendant the benefit of

counsel. The decision condones this act even after acknowledging that the previous trial counsel

was being removed for failing to prepare for trial. Expecting an unrepresented defendant to do

the pre-trial preparation that counsel was supposed to do, but did not -- flies in the face of the

entire body of case law that clearly and unequivocally establishes a defendant's right to counsel

3

in the pre-trial stages of a criminal proceeding. The court of appeals merely engaged in a post-

hoc rationalization to sustain the conviction with little regard to the precedent it was setting or

the consequences to this Defendant's constitutional right to counsel.

The court of appeals did not end its journey into uncharted waters with its decision

denying the defendant the right to counsel in pre-trial proceedings -- it also upheld a rather

bizarre decision regarding the jury instructions in this case. Appellant raised in Application to

Reopen the appeal that the trial court had instructed the jury that it was permitted to use his prior

DUI convictions as substantive evidence of his guilt in the case they were deciding. The trial

court told the jury "In this regard, you may consider this evidence in determining whether the

State has proven beyond a reasonable doubt that the Defendant was operating a motor vehicle

while under the influence of alcohol on June 13, 2012." (Tr. pp. 273-74) (emphasis added).

Appellant argued to the court of appeals that this error violated his constitutional rights and

allowed the jury to render its verdict on something other than a finding of guilt beyond a

reasonable doubt to the charges in the indictment and that appellate counsel was ineffective for

failing to have raised the issue on direct appeal.

The State did not dispute that this error would violate the Defendant's rights nor did it

contend that such an error did not require reversal. Instead, while this issue was pending before

the court of appeals, the state approached the trial court and asked it to issue a nunc pro tunc

order altering the trial transcript to include the word "not" in the above quoted passage --

changing the transcript, after the appeal, in order to eliminate the error from the record. The

State alleged that this result was practicable because the prosecution had, on. its own, reviewed

an audiotape of the proceedings and determined that -- in its opinion -- the court reporter had

4

erred. The State has refused to permit the now unrepresented Appellant to review this alleged

audiotape to verify the State's claim.

The trial court obliged the State's ex parte request and altered the transcript via a nunc pro

tunc order.' The record does not reflect that the trial court independently reviewed the tape,

rather it adopted the State's self-serving and unilateral interpretation of how it believed the record

should read without permitting the Appellant to respond or even to be privy to the same

information the State claimed to possess. When the court of appeals reviewed the issue in the

26(B), it took judicial notice of the nunc pro tunc and declared the issue moot.

The actions of the trial court and the court of appeals are unique in their approach and

establish several very perilous principles that this court cannot allow to stand. The trial court's

action in using a nunc pro tunc to alter the trial transcript is unprecedented. Altering a judgment

entry or a sentencing entry so that it complies with the transcript is commonplace, but changing a

trial transcript -- after the appeal -- based only on one party's claimed review of an audiotape is

new ground unsupported by precedent. No appellant or appellate counsel can reasonably be

expected to adequately present issues on appeal when the trial transcript is treated as a fluid

document subject to alteration upon the unilateral whim of one party.

The trial court's changing of the transcript while the issue was pending before the court of

appeals creates a dangerous precedent that allows a trial court to circumvent the appellate court's

jurisdiction and correct its own errors without ever being subject to appellate review. Changing

the trial transcript so that it reads how the court interrded to advise to the jury instead of how it

actually advised the jury does nothing to alleviate the harm done to the Defendant. As a general

rule, once as issue is presented to an appellate court, the trial court lacks jurisdiction to rule on

Appellant appealed the nunc pro tunc order which the court of appeals distnissed, conclziding that the n-uncpro tunc was not a final appealable order. See, Case No. 2014 CA 08 058 (09/10/2014, 12th Dist. Clennont). Atimely request for reconsideration remains pending before the court of appeals.

1;

the issue; however, this principle was disregarded here where the trial court was permitted to

usurp jurisdiction from the appellate court and correct its own mistake -- at least on the record.

What the trial court could not change is what was actually said to the jury. If in fact the

transcript was correct then there can be no doubt that telling the jury that his prior convictions

were substantive evidence of his guilt in this case violated the Defendant's constitutional rights.

The Appellant did everything right here -- he presented a serious violation of his

constitutional rights to the court of appeals, supported by the trial record and well established

case authority. The State's only way to avoid the reversal of the conviction was to usurp the

jurisdiction of the appellate court and to get the trial court to change the record. In doing so, it

paved the way for trial transcripts to become fluid and fluctuating and subject to alteration at any

time on the unilateral whim of one party to the proceeding and it allows the State great latitude to

escape accountability when it violates a defendants constitutional rights. This procedure becomes

even more egregious where, as here, the nunc pro tunc is declared to be a non-appealable oi-der

and thus violations of serious constitutional rights are forever isolated from appellate review. For

all of these reasons, this Court should accept jurisdiction over these issues and entertain

arguments on the merits of the issues presented below.

STATEMENT OF THE CASE AND FACTS

The Appellant was convicted after a jury trial of two counts of operating a Motor Vehicle

While Under the Influence, one count of Failing to Stop after an Accident, and one count of

Driving while under Suspension. The Appellant was sentenced to three years imprisonment. On

appeal, Appellant was represented by court appointed counsel Michaela Stagnaro who presented

five assignments of error that the court of appeals denied in its decision of May 12, 2014.

6

Appellant filed a Motion to Reopen his Appeal pursuant to Ohio Rule of Appellate

Procedure 26(B) raising three additional claims and alleging that appellate counsel was

ineffective for failing to present them to the appellate court. Appellant also moved the court of

appeals to supplement the record with a transcript of the March 20, 2013 hearing. The court of

appeals denied the both motions in its decision of October 10, 2014. This timely appeal of both

decisions followed.

ARGUMENT IN SITPPORT OF PROPOSITIONS OF LAW

Propositxon of Law No. 1: A pre-trial hearing where the trial court closes discovery, finalizesthe witness list, and imposes discovery sanctions on the Defendant is a"critical stage" where theDefendant is entitled to be represented by counsel and appellate counsel is ineffective for failingto raise this deprivation of counsel on direct appeal.

The Defendant was entitled to be represented by counsel at the pre-trial hearing where the

trial court closed discovery, demanded the unrepresented defendant supply the court with a final

witness list, and the trial court imposed discovery sanctions on the unrepresented defendant. The

trial court did all of the above after it removed prior counsel for ineffective assistance and before

appointing new counsel, months later. This pre-trial hearing was a critical stage of the criminal

proceedings where the Defendant was entitled to counsel and appellate counsel was ineffective

for failing to raise this structural error on direct appeal.

The Supreme Court of the United States has made it clear that when the accused is

subject to a complete denial of counsel at 'a critical stage' his Sixth Amendment right to counsel

is violated. I3ell v. C.one, 535 U.S. 685 (2002); United States v. C,ronic,, 466 U.S. 648, 659

(1984). Although Stricklancl Z ^ Washington, 466 U.S. 668 (1984) generally requires a defendant

alleging ineffective assistance to show that counsel's unprofessional errors prejudiced the

outcome of the trial, see id. at 694, when a criminal defendant is denied counsel at a critical

7

stage, this alone entitles him to a new trial--no showing of prejudice is required. Crorzic, 466

U.S. at 659. It is also well established that the period between appointnient of counsel and the

start of trial is indeed a "critical stage" for Sixth Amendment purposes. ." Van v. ,7ones, 475 F.3d

292, 311-12 (6th Cir.) (holding that a defendant is deprived of counsel at a critical stage, "a Ber•

se Sixth Amendment violation [results,] warranting reversal of a conviction, a sentence, or both,

as applicable, without analysis for prejudice or harmless error"), cert. denied, 128 S. Ct. 708, 169

L. Ed. 2d 557 (2007); Roe v. Flores-Or°tega, 528 U.S. 470, 483 (2000).

The Supreme Court has developed a sometimes overlapping analysis of what constitutes

a critical stage, stating that a critical stage is a proceeding: 1) where "[a]vailable defenses may be

irretrievably lost, if not then and there asserted," Hamilton v. Alabama, 368 U.S. 52, 53 (1961);

2) "where rights are preserved or lost," W6aite v. Maryland, 373 U.S. 53, 60 (1963)(per curiam);

3) where counsel is "necessary to mount a meaningful defense," Llt2itecl'States v. Wade, 388 U.S.

218, 225, (1926); 4) where "potential substantial prejudice to defendant's rights" is inherent in a

particular proceeding and the presence of counsel will "help avoid that prejudice," Coleman v.

Alabama, 399 U.S. 1, 9, (1970); or 5) which holds "significant consequences for the accused,"

Bell, 535 U.S. at 696. See Van, 475 F.3d at 312 (listing same).

Applying these principles to the case at hand, there is little doubt that this final pre-trial

hearing was a critical stage of the proceedings. The finalization of witness lists is a stage where

defenses can be lost if not asserted. At such a stage, a Defendant is entitled to the guiding hand

of a counsel who has reviewed and investigated the discovery before finalizing the witness list, a

right this Defendant was unarguably denied. Further, the Defendant's right to call witnesses can

be preserved or lost at a final pre-trial finalizing discovery. Indeed, they were lost here when the

trial court prohibited the Defendant from adding any new witnesses, despite having just removed

8

trial counsel for being ineffective during the pre-trial stage. There also can be little doubt that

the finalization of discovery is a stage of the proceeding that can have consequences for the

accused. Objections need to be raised to any discovery issues or they can be irretrievably lost

and arguments in support of the need for certain information must to be made to the trial court at

that time -- simply put, there is a host of issues that could conceivably come up during a final

pre-trial/discovery conference and a defendant would clearly benefit from the representation of

counsel at an on-the-record hearing where the government has the benefit of counsel. The Sixth

Circuit has stated that, "the pre-trial period constitutes a "critical period" because it encompasses

counsel's constitutionally imposed duty to investigate the case." Mitchell v. Mason, 325 F.3d

732 (6th Cir. 2003). It was on the assertion that appointed counsel had neglected this duty that

counsel was removed from this case leaving the Defendant without the benefit of counsel.

The Supreme Court has long recognized that "lawyers in criminal courts are necessities,

not luxuries." Gideon v. Wainwrigiit, 372 U.S. 335, 344 (1963). Here, the Appellant was

deprived of this necessity at a critical stage of the proceedings and the subsequent appointment

of trial counsel and his representation at trial does not automatically cure this error. This was an

obvious and meritorious argument that appellate counsel failed to raise on appeal and the court

of appeals unreasonably failed to apply established precedent from the Supreme Court of the

United States. The court of appeals applied Strickland when it was required to apply Cronic and

for this reason this court should reverse and remand.

Proposition of Law No. YI: A Defendant's due process rights are denied when a prosecutor tellsthe jury that the only reason a defendant would refuse a breathalyzer is because he is guilty ofDUI.

The Defendant was denied a fair trial when the prosecutor told the jury during closing

arguments that the Defendant miist hcave been gzcilty because he refused to take a breathalyzer

9

test and that no one would refuse to take such a test unless they were guilty. This inflarnmatory

opinion statement of the prosecutor was improper and prejudicially affected the substantial rights

of the accused by altering the burden of proof and inviting the jury to find the defendant guilty

because he refused to take a breathalyzer.

It is well established that a prosecutor may not inject the closing arguments with his or

her own personal opinions of the Defendant's guilt. United States v. Yoaarag, 470 U.S. 1(1985);

State v. Williams (2003) 99 Ohio St.3d 439, 447; 793 N.E.2d 446. Further, a prosecutor is

prohibited from making material misstatements of the law in closing arguments. Here, the

prosecutor did both when she told the jury that the Defendant was guilty because he refused to

take the breathalyzer test. (Tr. 267) This suggested to the jury that the State did not need to

prove that the Defendant was guilty beyond a reasonable doubt of driving while under the

influence, but that the jury could simply infer that fact from the Defendant's refusal to take the

breathalyzer. Such an inference is improper and a material misstatement of the Iaw While

evidence that the Defendant refused the breath test may have been admissible, the State was still

required to prove beyond a reasonable doubt that he was operating a motor vehicle under the

influence. It is improper for the government to argue to the jury that they could infer guilt based

upon the refusal to take the breath test and to infer that the nyiPy possible explanation for the

Defendant's refusal was his guilt.

The Defendant was prejudiced because the statement altered the burden of proof and

suggested that State need not prove elements of the offense that it was required to prove as a

matter of law. This point was missed by the court of appeals that only noted that evidence of a

refusal to take a breathalyzer was admissible. Appellant conceded this point in his 26(B);

however, it does not follow that just because the evidence is admissible for some purpose that the

1

prosecutor can then argue that it is substantive evidence of guilt. There may be any number of

reasons why a defendant would refuse a breathalyzer and the State still has the burden of proving

all of the elements of the DUI beyond a reasonable doubt. The State cannot, as it did here, tell

the jury that the refusal to take the breathalyzer is good enough to prove that he committed a

DUI. Doing so permitted the State to obtain a conviction without proving all of the elements of

the offense and this violated the Appellant's right to due process and a fair trial. DonneZly v.

DeCht°istof'oro, 416 U S. 637 (1974); Darderi v. Wainwright, 477 U. S. 168 (1986). Furthermore,

the error was plain error and a reasonably competent appellate counsel would have presented it

to this Court for appellate review. Appellate counsel's failure to present this meritorious issue

denied the Appellant the effective assistance of counsel demanded by the Sixth and Fourteenth

Amendments.

Proposition of Law No. rlIz The Defendant is denied Due Process and a fair trial when the trialcourt instructs the jury that they may use his prior DUI conviction as substantive evidence ofguilt on a subsequent DUI.

The trial court denied the Defendant due process when it erroneously instructed the jury

that they could use the Defendant's prior DUI conviction as substantive evidence of guilt to the

charges it was deciding. The jury instruction given by the trial court was confusing,

contradictory, and it altered the burden of proof and denied the Defendant a fair trial. Appellate

counsel failed to render the effective assistance of counsel guaranteed by the Sixth and

Fourteenth Amendments to the U.S. Constitution by failing to present this meritorious issue on

direct appeal.

The State was relieved of its duty to prove the Defendant guilty beyond a reasonable

doubt on each and every element of the offense when the trial court told the jury that it could use

1

the previous D.U.I. conviction as substantive evidence of guilt. Such an instruction violates due

process and violates the Supreme Court's precedent in Ycrtes v. Evatt, 500 U.S. 391 (1991). It is

well established that a jury instruction that allows the jury to find the Defendant guilty without

proving guilt beyond a reasonable doubt violates due process. Smith v. Horn, 120 F.3d 400 (3rd

Cir. 1997), cert. denied, 118 S,Ct. 1037 (1998).

Here, the trial court told the jury, in speaking of the Defendant's prior conviction, "In this

regard, you may consider this evidence in determining whether the State has proven beyond a

reasonable doubt that the Defendant was operating a motor vehicle while under the influence of

alcohol on June 13, 2012." (Tr. pp. 273-74) (emphasis added). Thus, the trial court

unequivocally told the jury that the Defendant's prior conviction could be used as evidence of

whether the Defendant was guilty of the charges in this indictment. The only reasonable

inference from such an instruction is that there is no need to find him guilty beyond a reasonable

doubt of these charges.

While the trial court also told the jury, as part of the same instruction, that the evidence of

the prior conviction could ncat be used as evidence of guilt, this does little to alleviate the

prejudice to the Defendant. (Tr. p. 273) The jury was given opposing directions as to how to

treat this evidence and the resulting confusion could have lead them to believe that the prior

conviction could be used as substantive evidence of the defendant's guilt. Indeed, that is the last

thing that the Court told them to do before they entered deliberations.

There simply cannot be due process where the jury is told that it can render its verdict on

something other than a finding of guilt beyond a reasonable doubt on the elements of the offense

charged in the indictment. Telling the jury that the prior conviction could be properly considered

as substantive proof of guilt that the Defendant was operating a motor vehicle while under the

1

influence of alcohol on June 13, 2012 denied the Defendant due process and a fair trial in

violation of his constitutional rights and there was no legitimate reason for appellate counsel to

not present this error to the court of appeals.

The State's effort at avoiding this issue by having the trial court issue a nunc pro tunc

order based upon the government's claimed interpretation of an audiotape does not render this

issue moot for several reasons. First, the issue here is whether or not appellate counsel was

ineffective for failing to have raised this issue on direct appeal. To decide this issue, the court

need to look no further than how the record read at the time that appellate counsel was assigned

to the case, not how the record looked after the trial court changed it with the nunc pro tunc. The

nunc pro tunc was not issued until after Appellant filed his 26(B) when appellate counsel was

already off the case. At the time that appellate counsel had the case, the record clearly

demonstrated that the trial court told the jury that it could use the previous D.U.I. conviction as

substantive evidence of guilt. This record and this record alone should be the basis for judging

appellate counsel's effectiveness, not the record as subsequently changed by the nunc pro nunc

after her representation concluded. Because the error was obvious and meritorious, it should

have been raised on direct appeal and the trial court's subsequent alteration of the record is

irrelevant to this issue.

Furthermore, the trial court lacked jurisdiction to issue the nunc pro tunc while this issue

was pending before the court of appeals. It is well settled that while, generally, a Court can issue

a nunc pro tunc at any time, a notice of appeal divests a trial court of jurisdiction to do so. State

v. Parsot7s (March 27, 2013), Belmont App. No. 12 BE 11, 2013-Ohio-1281 at ¶ 26; State v.

Smith, (November 18, 2011) Greene App. No. 2010-CA-63, 2011-Ohio-5986 ¶7. Here, this

matter was before the court of appeals by way of the application to reopen and the trial court

1

lacked jurisdiction to substantively decide this issue. While the trial court can clearly fix clerical

errors in the judgment entry or sentencing entry by use of a nunc pro tunc, it cannot decide the

substance of a constitutional issue while that issue is pending before the court of appeals.

Accordingly, the conclusion of the court of appeals that the nunc pro tunc rendered this

assignment of error moot is erroneous and this Court should reverse and remand the lower court's

decision.

CONCLUSION

For the reasons discussed above, this case is a case of public or great general interest, it

raises a substantial constitutional question, and it is an appeal of a felony conviction. The

appellant requests that this Court accept jurisdiction in this case so that these important issue will

be reviewed on the merits.

Respectfully submitted,

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David Rabe, #676-659London Correctional InstitutionP.O. Box 69London, OH 43140

APPELLANT, PRO SE

Certificate of Service

I certify that a copy of the foregoing Memorandum in Support of Jurisdiction was servedby regular U.S. mail to counsel for Appellee State of Ohio, D. Vincent Farris Clermont CountyProsecutor76 S. Riverside Dr., 2"d Fl. Batavia, OH 45103 on this the ^CYT^ of November,2014.

XDavid Rabe

1

IN THE SUPREME COURT OF OHIO

DAVID RABE,

APPELLANT,

V.

STATE OF OHIO,

APPELLEE.

On Appeal from the ClermontCounty Cotzrt of AppealsTwelfth Appellate District

Court of AppealsCase No. CA 2013-09-068

APPENDIX OF APPELLANT DAVID RABE

IN THE COURT OF APPEALS FOR CLERMONT COUNTY, OHIO

STATE OF OHIO,

Appelle

- vs -

DAVID RABE,

Appeila

^OURAPPEA'-S

^ frK;.^ FILE^.._.:,: ^G1 1 tj ZU14

E NO. CA2013-09-068

ENTRYENYING APPLICATIONTO REOPEN APPEAL

This matter came on to be. considered upon an application to reopen appeal

filed pro se pursuant to App.R. 26(B) by appellant, David Rabe, on June 30, 2014,

and a memorandum in opposition filed by counsel for appellee, the state of Ohio,

on July 28, 2014. In addition, appellant and appellee have each filed motions to

supplement the record.

Appellant was tried and convicted for two counts of operating a vehicle

while intoxicated, failing to stop after an accident and driving under an OVI

suspension. This court affirmed appellant's conviction and sentence on direct

appeai. State v. RafAe-, 12th Dist. r.lermont No. rA2013-09-068, 2014-Oh1o-2008.

Appellant claims he was denied the effective assistance of appellate

I

counsel because counsel failed to raise issues regarding the denial counsel at a

critical stage of the proceedings, improper remarks by the prosecutor; and the trial

court's instruction that the jury could use his prior DUI as substantive evidence in

this case.

An application of this nature shall be granted only if there is a genuine issue

as to whether the applicant was deprived of the effective assistance of counsel on

Clermont CA2013-09-068

appeal. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, If 5. See, also,

App.R. 26(B)(5). As used in this analysis, ineffective assistance of counsel is

intended to comprise the two elements set forth in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, namely, a deficiency in the representation

of appellant and prejudice resulting from such deficient representation. Tenace;

State v. Sheppard, 91 Ohio St.3d 329, 2001-Ohio-52. Appellant bears the burden

of demonstrating a genuine issue as to whether he was denied the effective

assistance of appellate counsel. Tenace, 2006-Ohio-2987 at 16, citing State v.

Spivey, 84 Ohio St.3d 24, 25, 1998-Ohio-704, certiorari denied (1999), 526 U.S.

1091, 119 S.Ct. 1506; State v. Myers, 102 Ohio St.3d 318, 2004-Ohio-3075, ¶ 9.

The trial court's discovery ruling was the subject of appellant's second

assignment of error on appeal. This court found the court's ruling was not an

abuse of discretion and appellant had not established any prejudice as a result of

the ruling. In his application for reopening, appellant has not established any

prejudice as the result of not being represented by counsel at the time of the

court's ruling. As there is no merit to appellant's argument regarding this issue, his

motion to supplement the record with the transcript of the March 20, 2013 hearing

is hereby denied.

Contrary to appellant's second argument in his application to reopen,

evidence of a refusal to take a breathalyzer and comments regarding the refusal

are admissible at trial. Westerville v. Cunningham (1968), 15 Ohio St:2d 121;

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State v. McCoy, 5th Dist. Stark No. 2001CA00125, 2002-Ohio-1855; State v.

DeCamp, 12th Dist. Warren No. CA98-05-060, 1999 WL 211697 (Apr. 12, 1999).

Finally, in addressing appellant's third argument, we take judicial notice of

ii

the fact that after the appeal in this case, the trial court issued a nunc pro tunc

entry correcting the transcript to reflect that the court instructed the jury that it

could not use appellant's prior DUI as substantive evidence in this case. See

State ex rel. Everhart v. Mcintosh, 115 Ohio St.3d 195, 2007-Jhio-4798, ¶ 10.

Accordingly, the state's motion to supplement the record with this entry is denied

as moot.

Under Strickland, a court must apply a heavy measure of deference to

counsel's judgments, and indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance. Moreover, since

the basis of appellant's claim is counsel's failure to raise certain issues on appeal,

appellate counsel need not raise every possible issue in order to render

constitutionally effective assistance. State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-

5310, ¶7. See Jones v. Barnes ( 1983), 463 U.S. 745, 103 S.Ct. 3308. See, also,

Tenace at ¶9; and Myers at ¶10.

Counsel's failure to argue those issues appellant presents in his application

does not raise a genuine issue as to whether counsel was ineffective since

counsel is not required to present every imaginable issue on direct appeal.

"To show ineffective assistance, [appellant] must prove that his counsel

were deficient for failing to raise the issues he now presents and that there was a

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reasonable probability of success had they presented those claims on appeal."

State va Jalowiec, 92 Ohio St.3d 421, 422, 2001-Ohio-164, certiorari denied, 534

U.S. 964, 122 S.Ct. 374.

Upon due consideration of the foregoing, and it appearing to the court that

there is no genuine issue as to whether appellant was deprived of the effective

assistance of counsel on appeal under App.R. 26(B)(5), appellant's application for

reopening is hereby DENIED. Costs to be taxed to appellant.

IT IS SO ORDERED.

Robert P. Ringland,Presiding Judg

C

Mike Powe3.1.,,Judge

Robin N. PipElr,

NOTICE TO THE CLERK:

SERVE A COPY OF THIS ENTRY DIRECTLY ON APPELLANTAT THE FOLLOWING ADDRESS AND NOTE SERVICE ON THE DOCKET:

David RabeInmate #676-659London Correctional InstitutionP.O. Box 69London, OH 43140

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