State v. Rosemond
| Court | United States Court of Appeals (Ohio) |
| Citation | 2022 Ohio 111 |
| Decision Date | 19 January 2022 |
| Docket Number | C-180221 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ANTHONY ROSEMOND, Defendant-Appellant. |
2022-Ohio-111
STATE OF OHIO, Plaintiff-Appellee,
v.
ANTHONY ROSEMOND, Defendant-Appellant.
No. C-180221
Court of Appeals of Ohio, First District, Hamilton
January 19, 2022
Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1507143
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Jon R. Sinclair, for Defendant-Appellant.
OPINION
Myers, Judge.
{¶1} Defendant-appellant Anthony Rosemond brings a second appeal of the judgment of the Hamilton County Court of Common Pleas convicting him of murder with specifications, three counts of felonious assault with specifications, three counts of having a weapon while under a disability, trafficking in heroin with a specification, and trafficking in cocaine with a specification.
{¶2} Rosemond's convictions stemmed from two separate events, occurring five days apart. His convictions for trafficking and for two of the weapons counts stemmed from the December 3, 2015, traffic stop of a car in which police believed Rosemond had been a passenger. Cincinnati Police Officer Robert Wilson testified that he and his partner were on patrol in the Fay Apartments, a large apartment complex, when a car drove past them in the opposite direction at an extremely high rate of speed. Officer Wilson saw two adults in the front seat of the car.
{¶3} When the officers stopped the car, its only occupants were the driver, Jourdan Bailey, and her young child in the back seat. The child said that his dad had been in the car and that he had run off[1] In the car, the officers found a baggie of cocaine between the passenger seat and the passenger door. In the back seat, the officers found a large, distinctive Pelle Pelle jacket, with a state-issued identification card belonging to Rosemond inside the jacket. Officers retained the identification card and returned the jacket to the car. Then officers found heroin, cocaine, marijuana, a digital scale, and two handguns in an apartment to which Rosemond had access. Inside the apartment, they also observed clothing for a large adult male.
{¶4} Rosemond's convictions for murder, three counts of felonious assault, and one count of having a weapon while under a disability arose from an event that
occurred on December 8, 2015, when gunmen attacked four individuals in a car, killing one of them and injuring the other three. The shooting was captured by various security cameras in the area. Officer Wilson viewed the video recordings and recognized the Pelle Pelle jacket from the earlier traffic stop. The jacket, when retrieved by law enforcement, had gunshot residue on the sleeve. One of the injured victims who testified at trial identified Rosemond as the shooter.
{¶5} Rosemond was indicted for offenses relating to both events in a single indictment. He was convicted of the offenses after a jury trial. The trial court sentenced him to an aggregate total of 57 years to life in prison. At the sentencing hearing, the court did not advise Rosemond about postrelease control, but in its sentencing entry, it imposed periods of postrelease control for each of the offenses, including the murder.
{¶6} This court affirmed Rosemond's convictions on direct appeal, but remanded for proper calculation and award of jail-time credit. State v. Rosemond, 2019-Ohio-5356, 150 N.E.3d 563 (1st Dist.), appeal not accepted, 159 Ohio St.3d 1435, 2020-Ohio-3634, 148 N.E.3d 592 ("Rosemond I "). Rosemond then filed an application to reopen his direct appeal under App.R. 26(B), asserting that he had been denied the effective assistance of appellate counsel.
{¶7} We granted the application to reopen the appeal because it demonstrated a genuine issue as to a colorable claim of ineffective assistance of appellate counsel in failing to assign as error trial counsel's ineffectiveness concerning the imposition of an unauthorized period of postrelease control for murder. State v. Rosemond, 1st Dist. Hamilton No. C-180221, 2021-Ohio-768, ¶ 1. Accordingly, we appointed new appellate counsel and ordered that counsel brief the issue of the imposition of postrelease control for murder and any other nonfrivolous assignments of error or arguments not previously considered.
{¶8} Rosemond presents two assignments of error for our review. We consider the second assignment of error first.
I. Ineffective Assistance of Counsel
{¶9} In his second assignment of error, Rosemond claims that he was denied the effective assistance of counsel at both the trial-court and appellate levels when counsel failed to argue that the gun and drug charges should not have been joined with the murder and assault charges in the same indictment under Crim.R. 8. In Rosemond I, we found no prejudice to Rosemond in the trial court's failure to sever these charges under Crim.R. 14. Rosemond now argues that his counsel at trial and on appeal should have argued misjoinder under Crim.R. 8, not severance under Crim.R. 14.
{¶10} Trial counsel will not be considered ineffective unless counsel's performance was deficient and caused actual prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Trial counsel's performance will only be deemed deficient if it fell below an objective standard of reasonableness. Strickland at 688; Bradley at 142. A defendant is only prejudiced by trial counsel's performance if there is a reasonable probability that the outcome of the proceedings would have been different but for the deficient performance. Strickland at 694; Bradley at 142.
{¶11} The Supreme Court of Ohio has stated, "Under Strickland, a reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings." State v. Simpson, 164 Ohio St.3d 102, 2020-Ohio-6719, 172 N.E.3d 97, ¶ 14, citing Strickland at 694. An appellant's failure to satisfy either prong of the Strickland test is fatal to an ineffective-assistance-of-counsel claim. State v. Bandy, 1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 73;
{¶12} In a reopened appeal, we review the performance of appellate counsel under the same standard: an appellant must show that appellate counsel's performance was objectively unreasonable and that there is a reasonable probability that the result of the appeal would have been different but for counsel's errors. See Simpson at ¶ 14, citing Strickland at 688; App.R. 26(B)(9) (the inquiry is whether "the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency.").
{¶13} For purposes of this reopened appeal, we assume that the charges were misjoined under Crim.R. 8. We further assume that trial counsel was deficient for not arguing this to the trial court. We further assume that appellate counsel was deficient for not raising it on appeal.
{¶14} Assuming without deciding that trial and appellate counsel's performance was deficient for failing to raise misjoinder under Crim.R. 8, we focus our analysis on the second prong under Strickland as it is determinative in this case. As to trial counsel's failure to raise misjoinder, was there a reasonable probability that the result of the trial would have been different if the gun and drug charges were not joined with the murder and assault charges? And, as to appellate counsel's failure to raise misjoinder on appeal, was there a reasonable probability that the result of the appeal would have been different? We answer both of these questions "no."
A. The Trial
{¶15} The limited issue before us is whether there is a reasonable probability that: (1) the jury would not have found Rosemond guilty of murder and assault had the gun and drug charges not been joined; or (2) the jury would not have found Rosemond guilty of the gun and drug charges had the murder and assault charges not been joined. We do not think there is a reasonable probability of either outcome. Stated another way, there is not a probability sufficient to undermine confidence in
the outcome of the trial or appeal. The evidence was overwhelming as to each set of charges.
1. Murder and Assault
{¶16} The evidence considered by the jury as to the murder and assault charges consisted of, among other things: (1) eyewitness testimony; (2) admissions by Rosemond in jail calls; (3) video recordings of the shootings, as well as Rosemond's actions immediately before and immediately after; and (4) forensic evidence. Taken together, we cannot say that there is a reasonable probability that the result of the trial would have been different had the other charges not been tried at the same time.
a. Eyewitness Testimony
{¶17} Ariontez Nared identified Rosemond as the person who shot him. He was clearly a reluctant witness, so much so that the trial court called him as its own witness. In fact, Nared initially told the prosecutor that he was not shot at all, but rather was hit by a bus.
[PROSECUTOR]: And you and I have met before; correct?
[NARED]: Yep.
[PROSECUTOR]: And you indicated to me that you didn't want to participate or testify; right?
[NARED]: Yep.
[PROSECUTOR]: On a prior occasion in court, you even indicated that you were - - or strike that.
On one occasion you said you didn't want to testify, and I said that you had been shot, and that's why I brought you here. Do you remember that?
[NARED]: Um-hmm.
[PROSECUTOR]: And you told me you weren't shot; you were hit by a bus; right?
[NARED]: Yep.
[PROSECUTOR]: And you weren't hit by a bus; right?
[NARED]: No, sir.
[PROSECUTOR]: You just didn't want to testify; right?
[NARED]: I got frustrated. I was tired of being here.
{¶18} At...
To continue reading
Request your trial