State v. Snyder, 2009 Ohio 2473 (Ohio App. 5/22/2009)
| Decision Date | 22 May 2009 |
| Docket Number | No. 2008-CA-25.,2008-CA-25. |
| Parties | State of Ohio, Plaintiff-Appellee, v. Timothy L. Snyder, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Kenneth W. Oswalt, Daniel H. Huston, 20 S. Second Street, 4th Floor, Newark, OH 43055, Chillicothe, OH 45601, for Plaintiff-Appellee.
Timothy L. Snyder, #a 569-272, Chillicothe Correctional Institute, Box 5500, for Defendant-Appellant.
Judges: Hon: W. Scott Gwin, P.J., Hon: Sheila G. Farmer, J., Hon: Patricia A. Delaney, J.
{¶1} Appellant Timothy L. Snyder has filed a timely application for re-opening his appeal pursuant to App. R. 26 (B) claiming ineffective assistance of appellate counsel. Appellant has also filed a motion to "cause surrender of transcripts and trial record." Additionally, appellant has filed a motion to stay our decision pending his receipt of the transcript and record. Further, on April 7, 2009 appellant filed a "Notice of appeal appellant Timothy L. Snyder on Handwriting Expert."1 Finally, on April 27, 2009, appellant filed a pro se a document styled, "Appeal Rule 26. B. Reopening Amended."
{¶2} App. R. 26 (B) states:
{¶3} "(B) Application for reopening:
{¶4} "A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing later.
{¶5} "An application for reopening shall contain all of the following:
{¶6} "The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;
{¶7} "A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
{¶8} "One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation;
{¶9} "A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B) (2) (c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;
{¶10} "Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies."
{¶11} On December 18, 2008 this Court upheld appellant's convictions and sentences on two counts of theft by deception from an elderly person, felonies of the second degree in violation of R.C. 2913.02(A)(3) and (B)(3), one count of misuse of a credit card, a third degree felony in violation of R.C. 2913.21(B)(2), one count of grand theft by deception from an elderly person, a felony of the fourth degree in violation of R.C. 2913.02(A)(2) and (A)(3), and one count of theft by deception from an elderly person, a felony of the fourth degree in violation of R.C. 2913.02(A)(3). See, State v. Snyder, Fifth Dist. No. 2008-CA-25, 2008-Ohio-6709.
{¶12} Our original judgment was filed on December 18, 2008, and appellant's application was filed March 18, 2009. Accordingly, appellant's application was timely filed within ninety (90) days of the journalization of our opinion in appellant's case. Because appellant filed his application within 90 days of journalization, we must consider the application. State v. Davis, supra at ¶17. App.R. 26(B)(5) states that "[a]n application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." Our mandate in addressing a timely filed application for reopening is to determine whether that "genuine issue" exists. State v. Davis, supra at ¶17.
{¶13} "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 reasonable probability of success had he presented those claims on appeal." State v. Sheppard (2001), 91 Ohio St.3d 329, 330, 744 N.E.2d 770, 771, citing State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. See, also State v. Brooks (2001), 92 Ohio St.3d 537, 539, 751 N.E.2d 1040, 10412. Moreover, to justify reopening his appeal, 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, 84 Ohio St.3d at 25, 701 N.E.2d at 697.
{¶14} State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608 at ¶18-21; 26.
{¶15} We are re-opening this case for the limited purpose of considering whether appellant has raised a genuine issue as to whether he has a colorable claim of ineffective assistance of appellate counsel. If appellant carries this burden then this Court would "appoint counsel to represent the applicant if the applicant is indigent and not currently represented," and the case would proceed as on the initial appeal. App.R. 26(B) (6) (a) and (B) (7).
{¶16} In the event we deny appellant's application for re-opening then we must set forth our reasons for denying the application. App. R. 26 (B) (6). Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157 at¶ 17.
{¶17} In construing the analogous provisions of the post conviction relief statute, R.C. 2953.21(G), the Supreme Court of Ohio noted in State v. Mapson (1982), 1 Ohio St.3d 217, 219, important policy considerations underlie the requirement of findings of fact and conclusions of law. "The obvious reasons for requiring findings are `* * to apprise petitioner of the grounds for the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause.' "Id., quoting Jones v. State (1966), 8 Ohio St.2d 21, 22. Id. See, also State v. Were, 120 Ohio St.3d 85, 896 N.E.2d 699, 2008-Ohio-5277. [Capital defendant failed to show error by Court of Appeals in failing to conduct evidentiary hearing before denying application to reopen direct appeal; defendant was not entitled to an evidentiary hearing under App.R. 26(B) (8), and opinion of Court of Appeals showed that the court carefully considered each of the issues that defendant wanted to raise on a reopened appeal before denying his application.] Id. at ¶ 4.
{¶18} In his present motion to re-open, appellant maintains he received ineffective assistance of appellate counsel on direct appeal. Appellant contends that his appellate counsel, on direct appeal, was ineffective for failing to raise the assignment of error of ineffective assistance of trial counsel.
{¶19} Several of appellant's arguments focus upon a claim of prosecutorial misconduct occurring during the cross-examination of appellant at trial. Specifically, appellant contends that the prosecuting attorney held up a copy of a notarized contract between appellant and one of his victims and referred to the document as "bogus." He further contends the prosecutor's use of the word "lie" during cross-examination and argument constituted prejudicial error. Finally, he argues that trial counsel should have presented testimony from a handwriting expert to rebut the testimony of Jeff Stahl concerning the amount of money paid back by appellant.
{¶20} The prosecutor's duty in a criminal trial is two-fold. The prosecutor is to present the case for the State as its advocate and the prosecutor is responsible to ensure that an accused receives a fair trial. Berger v. U. S. (1935), 295 U. S. 78; State v. Staten (1984), 14 Ohio App. 3d 197.
{¶21} Misconduct of a prosecutor at trial will not be considered grounds for reversal unless the conduct deprives the defendant of a fair trial. State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768. The touchstone of analysis is "the fairness of the trial, not the culpability of...
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Snyder v. Warden, Marion Corr. Inst.
...St. 3d 1546 (2010). Snyder's subsequent application to reopen the direct appeal under Ohio R. App. P. 26(B) was rejected, State v. Snyder, 2009 Ohio 2473, 2009 Ohio App. LEXIS 2096 (Ohio App. 5th Dist. Apr. 22, 2009), and the Ohio Supreme Court again declined jurisdiction, State v.Snyder, 1......