State v. Miller

• Decision Date: 08 April 1988
• Docket Number: No. WD-87-40,WD-87-40
• Citation: 541 N.E.2d 105,44 Ohio App.3d 42
• Parties: The STATE of Ohio, Appellee, v. MILLER, Appellant.
• Court: Ohio Court of Appeals

Page 42

44 Ohio App.3d 42

541 N.E.2d 105

The STATE of Ohio, Appellee, v. MILLER, Appellant.

No. WD-87-40.

Court of Appeals of Ohio, Sixth District, Wood County.

April 8, 1988.

Syllabus by the Court

1. On a first appeal as of right, if a timely notice of appeal has been filed and appellant's counsel fails to file a brief pursuant to App.R. 18(C) and Loc.App.R. 5 and his appeal is dismissed, appellant has not had the effective assistance of an attorney.

2. Where appellant has been denied the effective assistance of counsel on his first appeal of right, and he subsequently files a petition for postconviction relief which is denied by the trial court, a court of appeals may (1) order the trial court to vacate appellant's sentence and enter a new judgment thereby reinstating his right to a direct appeal, or (2) consider all arguments which could have been raised on direct appeal when all such arguments are before it on appeal from the denial of the petition for postconviction relief.

3. It is within the discretion of the trial court to permit the state to ask leading questions of its own witnesses.

Betty Montgomery, Pros. Atty., for appellee.

John P. Donahue, for appellant.

PER CURIAM.

This cause is on appeal from a judgment of the Wood County Court of Common Pleas.

Appellant filed a timely notice of appeal asserting the following assignments of error:

"I. The trial court erred, as a matter of law, in denying appellant's petition to vacate and set aside judgment and sentence, since appellant's constitutional rights to due process of law and effective assistance of counsel have been violated.

"II. The trial court erred, as a matter of law, in denying appellant's petition to vacate and set aside judgment and sentence, since appellant was denied effective assistance of counsel at trial.

"III. The trial court erred, as a matter of law, in denying appellant's petition to vacate and set aside judgment and sentence, since appellant's right to due process was violated by the admission at trial of evidence of his post-arrest silence."

Appellant was indicted by the Wood County Grand Jury for violation of R.C. 2907.02, rape. A jury trial was held on August 13 and 14, 1984. Appellant was found guilty and sentenced pursuant to law.

Counsel was assigned by the trial court for purposes of appeal. A notice of appeal was timely filed on September 6, 1984. This court dismissed appellant's appeal for failure to file assignments of error and a brief pursuant to App.R. 18(C) and Local App.R. 5. On April 16, 1985, appellant filed a motion for leave to file a delayed appeal with this court. The motion was denied on June 10, 1985. Subsequently, appellant filed a petition for postconviction relief in the trial court pursuant to R.C. 2953.21.

In his petition for postconviction relief, appellant alleged that he was denied effective assistance of counsel at both the trial level and when filing his direct appeal. He further alleged that evidence of his post-arrest silence was improperly admitted.

A hearing was held on said petition on April 7, 1987. The trial judge issued its findings of facts and conclusions of law, denying relief, on April 21, 1987. The instant appeal ensued from that judgment.

In his first assignment of error, appellant argues that he was denied effective assistance of counsel on his direct appeal in violation of his Sixth Amendment rights.

In Evitts v. Lucey (1985), 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, respondent's counsel filed a timely notice of appeal to the Kentucky Court of Appeals, but failed to file the statement of appeal as required by a Kentucky Rule of Appellate Procedure. The Kentucky Supreme Court therefore dismissed the appeal and denied a motion for reconsideration. In affirming the federal district court's order that respondent be released unless his appeal was reinstated or he was granted a new trial, the United States Supreme Court stated:

"[T]he right to counsel is limited to the first appeal as of right, see Ross v. Moffitt, 417 U.S. 600 [94 S.Ct. 2437, 41 L.Ed.2d 341] (1974), and the attorney need not advance every argument, regardless of merit, urged by the appellant, see Jones v. Barnes, 463 U.S. 745 [103 S.Ct. 3308, 77 L.Ed.2d 987] (1983). But the attorney must be available to assist in preparing and submitting a brief to the appellate court, Swenson v. Bosler, 386 U.S. 258 [87 S.Ct. 996, 18 L.Ed.2d 33] (1967) (per curiam ), and must play the role of an active advocate, rather than a mere friend of the court assisting in a detached evaluation of the appellant's claim. See Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967); see also Entsminger v. Iowa, 386 U.S. 748 [87 S.Ct. 1402, 18 L.Ed.2d 501] (1967)." (Emphasis sic.) Id. 469 U.S. at 394, 105 S.Ct. at 834.

It was concluded that "[a] first appeal of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." (Footnote omitted.) Id. at 396, 105 S.Ct. at 836.

The facts in the instant case with respect to appellant's first assignment of error are similar to those in Evitts v. Lucey, supra. That is, although a timely notice of appeal was filed in this court, appellant's counsel failed to file a brief pursuant to App.R. 18 and the appeal was dismissed. Accordingly, appellant now asks us to order his discharge unless he is retried or his right to appeal is reinstated.

We agree that it would be proper to order the trial court to vacate appellant's sentence and enter a new judgment thereby allowing for a direct appeal to be taken from the new judgment. See Stahl v. Commonwealth (Ky.1981), 613 S.W.2d 617, and Rodriguez v. United States (1969), 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340. However, following this procedure would only result in a longer delay of addressing appellant's grievances. Therefore, since all the arguments which could have been raised on direct appeal are before us on appeal from denial of appellant's postconviction relief petition, we conclude that this is a sufficient remedy for appellant's frustrated right of direct appeal. Evitts v. Lucey, supra, 469 U.S. at 399, 105 S.Ct. at 837, citing with approval Hammershoy v. Commonwealth (Ky.1966), 398 S.W.2d 883.

Accordingly, we find appellant's first assignment of error not well-taken.

In his second assignment of error, appellant cites many alleged errors of counsel at trial which purportedly give rise to a violation of appellant's Sixth Amendment right to effective counsel.

Appellant argues that his counsel erred in failing to object to suggestions made during the testimony of Detective Frizzell that appellant had a prior criminal record.

At trial, the following exchange took place between the prosecutor and Detective Frizzell:

"Q: After you interviewed them and made your determination did you do anything further to identify who this person was?

"A: Ran a records check on the subject and found he had--

"Q: I don't want you to indicate that. Was there an identification process of some kind?

"A: Yes, a photo line-up.

"Q: And how did that take place, can you describe the photo line-up?

"A: I obtained a mug shot of the suspect and put it in a photo line-up with four other mug shots and at that time I had the mother, Linda, look at it to see if she could identify the subject that had come to her residence that afternoon."

Evid.R. 404(B) provides that:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

It is clear that any evidence regarding any prior crimes which appellant may have committed was not admissible since the prosecution was not attempting to show intent, motive, knowledge, or any of the other factors enumerated in Evid.R. 404(B). However, as stated by the trial judge, we cannot conclude that counsel's failure to object or ask for a limiting instruction prejudiced appellant in any way since doing so may have only highlighted the testimony in the minds of the jury.

Appellant also argues that his trial counsel failed to object to the competency of Lisa Rothfleisch's testimony or to ask for the right to voir dire her outside the presence of the jury thereby preventing appellant from having a fair trial. Lisa Rothfleisch, the victim, was twelve years old at the time of the trial and was characterized by her mother as being mildly retarded.

Evid.R. 601 provides, in pertinent part:

"Every person is competent to be a witness except:

"(A) Those of unsound mind, and children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly * * *."

The term "of unsound mind" includes all forms of mental retardation. R.C. 1.02(C).

The instant case is distinguishable from State v. Kinney (1987), 35 Ohio App.3d 84, 519 N.E.2d 1386. In that case, it was argued that the trial court committed prejudicial error in allowing the victim of a rape to testify since she was incompetent under Evid.R. 601. At the trial, the victim had reached the age of ten. The mother testified that her daughter was retarded with an I.Q. lower than fifty-eight and that she sometimes made things up as a way of reaching out for help. A police officer also testified that the victim confused the incident in question with a separate incident. The court of appeals held that, because of this testimony, the victim's competency was clearly called into question by the time she was called to testify, although no objection was made by defense counsel. Therefore, it was concluded that " * * * [u]nder the circumstances of this case, * * * in order to fulfill its obligation to determine the competence...