Z€l 3"m S[IPmv CX)TdaT OF oIiIo

SHELDON SMITH, On Appeal fra-n Court of A1Speals:Seccxnc. Appellate District of Ohio

Apoella.nt-Pro se

STATE OF 0110,

Apr^ellee.

12-0968

MEMOTtAPOUM 2N SPIgPULt'T tJF J[TRI^ILTION€JF AP3'F.L.LAt'+33.' sliELbX2I*? SMI'3"rS

kpmLwg;Vp.1t.26(B) A[;p^Rrlq^

.Tr i

Gmm cbuity Prosambx°s Ot an1,.^.n aro.13z M7-224

?Mt. Pmssating AttorrW;,lizabEAhA, im.is (W74332)

Ca P,O.33. F5:H.1Cni7]ioodie, ahia 45601

Ncr1ia, a7Yri. 45385

CFRTIFI^'..A''PE OF SERVICE

I hereby certify that a copy of this brief was sent to the AoPellee at the above

address, via US regular mail on 31 ^ftye 2012.

Gi.ERK Or COUR eSUPRENIE COUR'T 01= C3H(0

rTAB€,E: O€ ^^+S

e

F#fP.LAF1A2''tON OF WHY `£H'IS CASE IS A CASF OF -z:.F3LTC O^.2 GPEATZ^U.a. c "̂°^T A±^'J .T^,'^TC3Z,aVE A GJA,aaS?1tV`A"IT'a ^s t1',?k"7." TT_TsJ''!'

.ATTEWPT O-P CAa

^r-'^.C^ ra.e.s....«.+s.ra..s.esaswc+.wse.ae.s..ac+ua.r.ae.a.+e/

ARMP49R^.' T N MP`..^.%RT OF RRO-Po'w^'T„°r-To^T OS° ra4^q . ....... . ............. . . a .. . ........... 4

Prooosa.ticsu o-f law '-Io.1; "2re trial court abused it's discretion bydenyinq aWell<sca-trs alithdraw of plea rrotz.cz2,............... ......... ... , .. , . ."

^gitiaa of law No.2: `Crial co^.c^,.seI^ar`> provided inp:^fec'^iv»*. .^= a.Ft^an:"'71 counsel in va e>la4iva a-F ^h^ ag ^ :llant ° s 6ta'a ?3mn.:°.''^aera^. rig ^t to t^e ^Iea

^nt :;e.°frszxn.7nc2 cazzs(-I i1im to ...... » .........deficia-

F+roa,osition of law tito, 3 sAppel1'

3 ¢ai.,s.a tC>s Foarth %aiendiLent Claim ......e ..............8c^m^tsnt3y 3ita,a<e aw4el1ant

•sws..w.eVl.a.t...e.r.........se..we..a...eYe...eeam..s.......#Oa..sA9

EXPT.ANA`I'IO1ii OF TdHY THIS CASE IS A CASE OF P&xRT.,YCOR GMAI' GENEt_Z^L IffrF'REu°T AND IAMLVEBA gtJS.Si"V+PPZ..AL t'XM1ION.AL QUS'.i'3M

`."his case subjudice touches the subject matter most fund,ament.al to the elenents

of a''r3nited States citizen's Liberty interest. This is affirmatively established by not

only the Fourth, Sixth, and Fourteenth Amendments to the U.S. ^'..Qnstitution, but pursuant

to Article I, Section(s) 2, 10, 14, and 16 of the Ohio "ranstitutian as well.

7motwithstanding, the focus is not so much upon the celebrated principles which strike

a theoretical balance between the inclivid.ual citizens and governnental oower in this

society, but upon the means by which those principles are brought to bear upon the

concrete ;-jorld of Aanexican Criminal Justice.

The enl3:,7:: iples ccm-te to no't'ri.n,x in t

tilize

:')l;YJO i.1Lnta,.''2 bei

i:n:S t?1e i,7:tPre

jI2ri"Y;'T'.2t upon cases at h:LM - ;'aitSc!r.'?.°n

>= istr'-tian

.,: aY.7!s inlor'r, 'frJalla

c£).3r"IC'[.e S•71..ti e sai.:3ti'ul`.3

^ p 'r.kn^'.

ti2F> i7'?ts bolts of tYZ? iia^/?]:?'l'-^.?'y V77.i'ki w'i'7.ch '"'?ntJ wor.:C.

;ra brai^.la in thv ^uryc.u„" nta? fairness cf the juiicial. bon:y

f.L aa ,ntA? i c:n this

'^.''..vr'7" ^,:.v', aC's w7er<ib

ns:snin'

to the princll?I^s

Eot.1,.C!ti:.-,. lA'iJ?n• 'tYL3.t in a. °Bfr

t'l-3 iTF

a")Ciet;Tg 'YQV°;C?"i'UW'WAi. iTi'..I:>t

-ji.eiciart^ fo'r tno r^3utanticn c` i.ncaivi^'..ur-^.].

f cl,aims

..l'S't^`e.'i into the B1!kp,3,Lti^l, ,....rf71^.l ^TT 3

n. t`:zat

y nvi:ai1d`'a" +iti0,li..'7.1! a; h^n^n+:^-%

ye v'al^t i'1i?C"' 44iYt10t 'i +'"i?a2hrJ G7h^.C^'1 4fE4?in^"':^

C3f A t37

:1 r."3*.: -C ti!'J'_'S.

y a "3`>allo^a a.a'a--aran+^e cf Due Process ' ';?aa1

This c.3....? r'?}7r^.>e'PT`i.,.°, f,dn'^i?'ten1`„3l e,TLtF d7eC,^. 1;7.

2, 4) )Yrl'^tL1F^L TL"^%J!n^^IB to wit:

s.q arlal.

ia':C^3E^E^ ^._1.,,.1:C

.3 cT).). E?:1=l:Or:

`.. t`J"- 7-pSt11j3 the of tj^uiF,^ n.,'"'.^^: r` i.: ".llcx,'7r'39 to F'.'.t-ayr. t.l"7eP "nt-?", a . -tn....-'"`:^

^ (1)

1. ^P1'a v. a^E*..^^.Cq.*2C-- "ne1S a'^ ^faz,^.PJ,'.;: 30,,?7.^7, a7.... 1Y-?4?:,:'.,n a.t?' in t'`:il. with

cR

EiA'C°^EZT CE' cA1E AND FUCTS

0P1. De?Crvlit'.L:C 24, ^^OS, Nppalia°kt was 1Pidi+.^.tai i:41 (13)

sxecovoj ;ses:Cch C^arxant on an;ellen

a"iltei:iP]da a

t May 27, 2009,

T^^:;. COURT: S"s-'3°7 I draw the conclusions that as you are sitt.i.ng '').°re at this e.3.ak;3,

that you are rnert under the infb3ence o,'_ any substances, that yau are clefa.rof 1ni.n:i and fullv, capable of c.o17crehvndinl, k-* o;7ina., and u-i?erstantixia.T,ahat b?; are dDi:ng ant discussing heretc°aay?

r^^ ^" {r ,., r̂o ^^:^ ^ \"3': r^ ?^ ast is corr,-'? C^' . (.r ) .k.-^.., . T8aae 4, lines,, 13-19

t'O 077'?'i'p ?-`all right, and [''layk? VVoil L'Gy.S.WwyX''i1e EF-vl34ad'lc° a'S'.':. ja.T^oG2f t.7° St3te, has

4S"S. "`^i:acoy:wz:y] q that sets for^a basis of each of the ci7x:Y'ce..^'

n,',-TE :1E `[°PD?1.t7T® YF.i y9

'rHi".o f.'.'vEP.`.h'. Have yoLl the a..r^j°sxi`•:i

TH?-3 w N^'sANT^ Y,ry:s we have. (5g.5, lines

1.:.;d? C.,.7 ®L...„. . .4 4:i11

A.

oS 'ytl.''7 To `:U,3p°7:C::'?S s p i"'?;P. 'C.'oi2:Ct ° Sri1.t.in'?' included that Y'_:nr=.S'k w':.

, ^:)n .TeJ?nE3 1, 2009, t?e t.^ sfsei t"4a ^,'°+''?'Ge,nfi?:a1'1i.. p:Y.'i.ol` to

t1s

C"rZ'..se

_g!.,e e Tt'3'e7-"r57 1'1^r.o^3nt v{^>i ^...'^'t^e?rW'E:.^^&1'^ 2FT,=^'C'ns.Yly S^7": Y.' .'".i.=rc7J.,^5B.Tiv 3.n_'^^. t%1°

!;3Y'a.vateQ Nij.th him. I will stop, wait till Voiu. get an

Te will pick it up fram tbare. (7r T'g.4, lines 13-19).

;L'•.9',°1A?:: T+7].li reflect that vou S'J (llnlf- _̂'>s] y=o^S otlf'.Y"b1:>e. SAO d^',"7 t

Zt`, doesn't ':)'Jt°'E;.:L' ma in t`:E? 1_°ca5t.by the same tCak(?fl if, at ^:3y"^"1=Yt?? OLRY.'iT'ig t.ilis

"^,JToc;?,^aS ylu have a queSt1,:C??'i f+^Y yo4.7Y 1r^GdyeL', ^ld.2.>t ^^{3 :3.^1ea''% aT3C^ ay{{d ;^SaF'7.

cna r=.•^-,=as

to t',l

,;n?,. YOU."'"y'...u3y7im L41.'tsI'?'lTI U^703, ''sTC^':

CiCOURT: 'Z'inaCbli. yotdy the record is slla?.."-. ^:T1't.' last question, how lo Vpu wish to xJl°a

at this time?

Ti<ANa, No ^^^.oatest (Pg.25,

ton, a 41

24'25 tn,TMu ?q.26, lino> 1-10).

pellant, on the advice o

"70 contest I'lea to tte follen-ai.rzcg o

oocrupt Activity in violation of 2 (1); Conspiracy nit Engaging in a Pattern

yt Activity 2923.32(A)(2) & 2923.32(A)(1), •.ngagin7 in a Pattern of ror.^.awat

of co:ri pt Activity in violation of 2923.0)(2); Conspiracy to ;;o?mti.t 'i'ra.ffickinr, in

c^.oce,=_i:ne in Violatian of 2923.01(A)(2) P: 2925 4A.) ()) ePo.ssossion cf t'ocaino in Violnti+on

of 2925.11(A) with firearm ::ssc; Trafficking in. Cocaine in violation of 2925.030)(2)

r:slati rxc

=. hearing on

Paul Rion anO Ri

s Rngwging in a %ttnrn. of

(2)

Ta3tr1 fiY°e?,'xSY`1 ,ws'^.A<'C, '"O!".tb^liCitV to Tmi1`fiCiiil.,^ i"7 Cocaine ]:i1 ViCJlatiO!'1 of

'bTlv'+7 La

Ar? th,^ cn; rges State within th,_= No Contest ??lea was a [iiiliract

result of the (poisonous fzvat) obtain:^;-7., in tie (illvYal) search of tne ^ppellarzt's ho:ca.^*.

'I'h.s revari. has as,,atli,';za:1 the following: TT ' t^7T3`^m Alright® the court will find that

that you No Contest Plea and the plea the Court has taked has been made i ly,

intelliqently, and voluntarily by the defendant and the conrt 29Tplie3 with Crim R 11

Four Y u:ritl,s latU,., ( ei2t?P'af`1.iig) p 'Jn 281C3 . ^.°X 23th of October , 2( .̂ 0J,

a:v7,pe_11,s^'.^?t's sams two trial lawyers, t.ealizina for the first time, doceur.ents that has lose

eviazzaly 'be-ryTi r.^-,±-t of

filed a request

original disCo7°'L'y pY7.3r e 1 st plea of mo Contest

Motion to Sa.ippress a.nd.[a] Suppleasental ReSPest for Lea.ve/

DiDtion to Vacate Plea. ^n. ^rt :10, 2009, the trial ;aiart . uviecae^ t-he 1st®

2"'.'.£1OS, 'a*?i`^" rt f„9f ',.'->t . V.r..';i,'t;J&JS 3 d alt?ng 1^7 .C^.::C"'lltlc

the 'lTot:i.Crnskp,'J'".-.'1 ]..,-n,n.t' ;3 mot7.'Jn '.'b `:7aCate was `:r-'1:3e;'{ t7poi7 this

r>vi:3snce that both of his tr_i.al la^.nt^:cs fai1.

t-ci:=;.l counsel's ^? :̂a:

It is cl2a7: thry a

^.ro3: format3.ce of 'r:

evi'3Anuu it ..?oul:1 o

nsel. 'k

9,ef.1C7..edlt

)v

rryul:l not of ,^1^+^ ^z1.l

isi

But t'ais e 3ilancz uas not ciiq.;ove.ro?. unti

of El, 0 -r-

!5lde to i:k..? 1 ne'rf`?Ct3V'?

.^DEle to tY2ese t,.roc.^--,It1Y'al e^xLJz,.t7a.^;.'^. c'z„17.(.". lAnwonstituti.^dF1f.".l 3.nGS,

th1 .Zl^,'^'^1.?;?I.l-3.".lt tnh.^'aS., iJY'e)1.O1Ce:1 by :d^taCeivlna t+i'eE+tV ( 203 VA.a3^7 of 3.iYSori.^'i(:+nmmil.t.

11. AMlicable Standard of Tzeview:

on r :view of an

ation of 1315.(A)(:1).

y ^.'.1Pa a"rl7..-.'^..;^

wly) discovered 'vwirino.^,_,

cover until after his „>iea. T-3ut for

perfoZ'ft€3anCt' tiee a7pIla''lt, a;3'Ju_^.d not i.daE7r. ;t?.Ceaf^ to ,̂,eC3 Contest.

ai.iQin M.:' ye03.A?f?L1n117, L'sl:..- ;'-1y.)O?1_le'tF' t'^l:rtv i"dA1SC a.:etC'^

e%^1L't.'lE,''.L' '..'1° a?30ISC^.''°Aut :ti,as {3°nY'i'V?^l of the effective n..E C.`.tt',JUY1s=3- on ag:X°:].l",

c-,ant tl-is req,z,^-.st ^.ahen a

(1992), a S*'.3^^. 60,66.

li

;ze is pzassnta,,i, Agp.R.26(B)a oitin:g,

III. Ineffective Assistance of AEpel1ate Counsel:

U.S. ..^'sF1ur°i:ite Court a4?tE3:C^I1n?!'3 that EtnocdPYai represP.11tc3tio.CS at trial d(Je,a"a not

to 'r.Jl.e3 was 1"..'..S'.1lt

ha'J c,.oJella.nt ''.2;'!.'7.' f4F1CJVm C.)f t?7f?

s^affis^^^ to render the rrcrae-'in:^ Constitutionally a^^naat^18. ^^,vitt.:i v. T,.aGey (1 f35), 469

(3)

7_"'a:Ul'?W ; 127r,t 4`T=a F', Qf:^ to ,,t^S^.]g'^-`v' f^''t^a'n`. "k .^.C.li1:.4T1^'^.1^`)7:

^y.^d`^ !1`„7'>, . 2t ^.' ) f`'v7..^'^'^. a i.^?;fRc .=t,y ^.i35^;^^i.,^r^.c,,.., . ,., .:.,,'r;;tval„r;+^.^,^', Chro!1g`t a reliable^-j r 37..s. 'ra"^'- ..

vr'.1o ').-aV' ak.v.i.P :et?g"'nvaa of "Ftge effect

.mS.i t pr'w'Gd'-'

Strickland Wr +'jSi`7.ii]gtoi2 j

I;`e'a' Za° t''`le °v ]SLi? iYI'.,

rvuY1_ a and A

m..jtl'..`.iC°'" '.

171 Ba 3acl.c'1.:.'1n that is unreasonable is

coLlnsz?,{ ,r. severaly

of br:en ?Zff-',:=^nfi

:^aiIPEKNZT CN'' PJ$3mumm°a C?^'.' Z1^'W

Protosition of law Mo> 1: The trial m, iart atnxaed it's discretioo by

d.en.ying appellant's Withdraw cf Plea motions.

s that vt^'J'ts'' 11E?r Fo.kdth t- ^a

L,nle„us i.i., is :il'iC_5^^'.tn that the trial CD':1E_t a.C:t-3.

ion. 'A .°tl1fiCL(S "3E abuse of discretion

r'-3.:it;..iT_"e' ce:`:5 .x^. s.^' t't7rYn r.̂^:.:t n i C7Y'S^.'+":^l ',o a^''7i^.1"?9'7'1Td 4^^':.:.^ tt,.

citing '3lakcamrunre ' 4.a'x etiHare(1 083 )8 5 a <:id 217 .

rTC".^ c-a>'rt pY:a7:d in ."A°1. Te1^,:?Z'?:se. T"3.c. `.,. n'LV4- ;07-..;? d."„('r.t'^.t:.1.t1i'rV zjr3n 'Re'"'vt^!t

„Corp. (1290) =u1

c

r:?t. rJ.:. `c:7r T'rla,'<^.. =:,LCCIY'S Olltal,^,

thxiv k.7e was daIlai,'ig

:S:i1.5t-.)'•'nct? of a+is^'I.la't.,'^.<^. c-CsdD1i.ae1.p a

it". "'a.€'C?. lI4Mr?Yi gAwo faCts of the record

was :;n e.^,"C'!.7::='. The trial court Fat'r.ltr?

Pui- the a*aps1.larat' e, m^.^i.ionw'=

r F a?el E't]^,'ss-y."!'".^i'1CF' P^:'YtiC)'1;^ :^i'nL,'nY,=.^^:'^^u ti' his ^.^..^.w:'.d ,...?.._ ....

:i7Dart Un;3 YE iti

(A). D?.?E,uct1.v^ !it?..2:91o-1S :TJr_il 1 , 2n:' C

the +ffi.;'avZt had, in fact,

^ 46a U. 0023p.i 5 f'. ''.. 'FI';].a 3o,>ea1, CDO3ss1

the i r.7L?w'i. of a'.t';^.".7eaZ ry

5ev ti1ora4 his c:ien:

,, to work with

i-t?+e Cat'2tc?T-;^5.°C2 of *4 of

?_.,.r^a

his fri^'.n:.of^vZ. ^.'hi:S1a]ioT7 Siltx:7d ii1 order to S°."i]C' °a iE?^'.!„7.{."t.1

rio =itvU11:'.3 i'easCJI7iY?t".,,

r ti`3s"Zt t2° i.7'ic'^.1 fiAldft

^:> `Y.i.r_.i'oY.' ;'71m ST"1 .3v?f1. ].f'Ti.t %:I â3 t't.^Ct it }t'SI

c'Sni a5 r.'''aF d--2>3 11 "F77:'

E ao.;:as

h.14 .+.y . •." E'i y:

('3) r%?'Ge¢::Ci 3t :^+171t>e`s May 7[''..".t 2008 report ^n.2'':

a',a e. 4`.iJ,`l. that the a.1l[-.'.ge_ ...1'^'^"'A:3.o C*J:`7Vf?.w'Ci,,t'..`^.".'i.

??n 3'av5iQ tRoa to wni.6a

tO C;"'.:1'`1 /`A'CJTi;' 'I"i1o?dL,"`is

oCa1.PTC in ti.e attic Qr basement

°?z'C-uk_> `i37n1_?,''•d his va!

s nar` of tn:a `k2':" 7thB :78

'7

f the L':?s1d>-..I'1.s:3 at 2396 LOidii117%7. ?&t

of 096 ^'.sl)

to 3ZC:r'.;ey not '.>.,^',: +`aC3a°> 'ie1`„. "C ,ni:L-cy'l ran. a?'O

2108 .=.'eaort.

(C) At'".''.alAR i'3r<'..'.^ was not :.a1.sn CsJ'?rC-'.d by t.Y7.al counsel.

but it was not l.,.". ...ano're::a an4:il after trial coca,

A2a. 7"3.".7.3l ..,c5AI1,5'31 vJJ.t':) thc^3 CC15.1:rt'

the audio i.a43a

t

to

.Tun,:> 1 A 2009,

09

ant was Lif.^'F

9zrMcottar^r after his

t?7At[a97.-,.t5 the a f'Sa7t1a F fv,'C. "(3ly:"3i7

"Cf.).L'r;'Tl:tli

o

{ aps.

prns-r=, aa'?t.-^sncin:'

l.+:rr ^ii,=l+ the a.Y?ji

in a 1e=i•..T.n; C7n.+"!:'C 19

Clc-s"5,

;, (,a e`:'1:.'F?S1^>:f:.'E7.'=' t1h1e?"1. '.mlirlat

corners af'Fk.c=:?'US.T' iX), Ct1;Jo:7rt of Vie sy?ar ut warrant.

(2) "Request for Leave" {fi1c^''..

ai a," . J ] rl.d.

t,a filed an -'ditio;nal ,'ctiora to

a_' it relates to th-^_ search war.rint in this :'n the post Ji.ana 9( p,,l;n,aa .n

"c.'Ct.".'+i^'f?eV JO'3%Z Paul '''iC-Tl =3sa3e5.3r "the Y'Gu'o..l will re_7a:.:t fi'.7a.t x1s :'^Otixt ha:s

')s^.•Tl filed and

sG,.3t?:' t%1of there

qd1

%F".E.aaiYj:l; .vt''^`.'r1..,....: to the search warrant. "1e'ry??ni:3',nt

i.3' 1 n.^^s"...^9^"'". that ,"'i'fat.e?"i3.li'k-uu'1'y di scovered ' ,.=?N:t..^.^..,^.° •,=.^^C..̂ d which L ^.^. "'.. _.-.

'CYLr.,bmo'4;."C..r`rs Ct}nt:;.Silal within

nnJ sA.in37 trial CQu?'Isal'`.^a (.x.̂+ i2 Paul y'mo11; "+'-S"'Y'Fisa':1

,.., 2009" dGfe'6-,e counsel was tir,"C ^'._

1i`i..^aVi'" are [f3l8°..]p thus Z'P31CeYii1Gj tl9.^ S+Yd2'X't712^ 1I4V1l1d.

waive hi.;,

G^' t1Y).is,

e rz

ttt-Tn counsel with th'=' ..so?L'C l7.-!'.,°rn'rI

(5)

NOTE: This statenient alone proves alone oroves the prejudice prong of Stricklnd v.

[nlashington, 466 U S 638,104 S Ct 2052, 80 L.1^.2d. 674(1984).

Attora2y Richard Skeldon

(3) A dual imtion for "SuPplanenta.l to Request for Leavel^Nbtion to i7acate°". This

moti.on was filed based uPon "Counselor's hQzrint of the audio tane for the [f)irst time

after the appellant' s•7'une 1 st, 09 plea," and based upon its content and other exculpatory

material previously provided in rdiscovery, request this court order a full hearing for

the taking of evidence in the issue of whether or not the affidavit for the searc'n warrant

contained [f7alse i.nformation known to 'oe [f]alse by the affiant and/or contained material

[o]missions therein, citing; ?ranks v Delaware(1978),438 U.S.154. The audio in question

was listened to [outsi"?e] of the defendant's hearing by [coerced] waiver of attorney John

Paul Rion's advice. Ih this day, the appellant has not hear? the audio. Attorney Rion

listene-d to the recording on Octo'oe.r 19, 2^J09, who indicates (when foc zsing on th_e

possibility of contraband and/or money in Mr. S°!7ith's residence), that Tuffy Brooks st3tes

on tace; I'll check on it(money) and let you ;know in a day or so, I think it's in there

but I'm gonna check on it an,' let you know in a day or t=so". This contradicts the armic,;ent

for the pr'(*able cause neec)ed for the saarcti watrant.

A'herefore, the trial court's denial of the appellant's motion to crith^?raw was t

unreasonable in light of the fact that [nloth trial counselors firrnly hplieved that haF3

the newly discove.re-1 evidence bee_n presentea and co:nvetently litigated at the appallant's

motion to suo;oress hearing, it would have thoroughly invalidatecl the search warrant. Thas,

suppressing the only evidence utilized to sacu.re the June 1 09 No Contest Plea.

In this case subjudice, the court's attitude is expose3 as unreasonable, unfair, arbitrary

and unconscionable; and said aSuse is in violation of tae appellant's 14th Amendment right

to Due Process.

(6)

Proposition of Iaw No.2: Trial connselors provided ineffective assistanceof counsel in violation of the appellant's 6th Amendment right to the pleaprooess when their deficient performance caused him to plea.

"When a defen<3ant is represented, by counsel during the plea process and enters his

plea upon advice of counsel, the voluntariness of the plea depends on *.ahether counsel's

advice was within the ran e of competence demanded of attorneys". Hill v. Lockart,474 U.S.

52 56106 S.Ct 366,88 L.Fxi2d 203(1983).

The U.S. Supreme Court has recently decide that a defendant has a constitutional

right to effective assistance of counsel during the plea process, Missouri v. Prye, 2012

tJ.S.LEXIS 2321 and Tafler v. Cooppr, 2012 U.S. LEXIS 2322. The Second Uistrice Court of

Appeals deiced this present case before the U.S. Supreme Court's ruling.

At issue in Hill v. TrJckha.rt, was whether a plea of guilty would be rendered

involuntary if it was based on advice of counsel which constituted ineffective assistance;

the Suprene Court held the standards of stric'.^c]..snd v. ?rdashington, annotLnced two terms

earlier, were indeed. aMlicable to negotiated. plea cases.

In Frye and Cooper the U.S. Supreme Court went further when it decided that the issue

is that whether the defendant received ineffective assistance during the plea process that

effected his plea or,outcome of the plea proeess. in this present case, it is clear that

'ooth trial counselors provid.ed ineffective assistance by failing fo research/discover the

evidence for their client's defense, and it is clear that the appellant would not of pled

to No Contest if his attorney's would of done their constitution:al duty to provided

effective assistance.

Appellant argues that this court has not seen 3 s applicable to Hill v. Loclchart as

the present case before it. The trial record clearly shows the step by step by step care

that was taken by the trial court to ensure the appellant's plea was knowingly,

intelligently, and voluntarily made. Tiowever, four months later (Appellant's very next

appearance after his plea), both trial counselors upon discovering for the first time,

material documents that had clearly altere-3 the Appellant's voluntariness of Appellant's

plea, filed motions to withdraw that plea(?ro,cosatzrxa of

The content of these::otions clearly show the deficient performa.nce of both trial

(7)

in that the motions are based ur,on docum?.nts and audio tape previously disclosed by the

State to the defense, but unc%iscovered by the counselors until after their clients plea

of No Contest. Their arguments in support of invalidating the search. warrant clearly smells

and shows of the prejudice suffered by the appellant when these argaments(new evidence)

was not part of their clients possible defense prior to his plea.

In addition in the U.S. Supre.me Court's ruling in Missouri v. 3'rye, the court deciad-

that the appellant ad to show prejudice, but agreed that c.oimsel provided ineffective

assistance of counsel. Ira this present case, the appellant has clearly shown prejudice

by the withdraw of plea motions filed by his counselors, that in itself shows that '•{-j,^^

appellant would not of pled b,.at for the counselors ineffective assistance.

Therefore, said plea could not have been voluntary made based uoon all the facts.

that it was the trial counselors ineffective assistance that fully caused the error,

the appellant was denied his 6th and 14th Amend.ment right to effective assistance of counsel

d.uring the plea process and this court should vacate the judgment.

pronosition of Law No.3. Appellant's trial counselors failed tocompetently litigate appellant's Fourth Amenckmnt Claim.

"Where defense counsel's failure to litigate a Fourth Amendment Claim co. *iapeten.tly

it's the principle allegation of ineffectiveness, the defendant must also Prove that his

Fourth A:mend. Claim is meritorious and that there is a reasonable probability that the

verdict (Judge's ruling at suppression x1earing), would have been different absent the

excludable evidence (poisonous fruits), in order to demonstrate prejudice". Smart v.

Ro:nanaski(2009), M-2144134; and RimelPnan v. Morrison, 477 II.S.365,375,105 S.Ct.

In case suoju3ice, the trial court, in affirming the search warrant affidavit stated;

"it is the opinion of this Court that a criminal who is not aware he is speaking to an

undercover agent adds credibility to his statements". oirst an.d foremost, United States

Harris(1971), 402 U.S.573, was inapplicable because CS91 was not an undercover agent, nor

was he oroven reli.able within the four corners of the affidavit. Secondly, Det. Meadows'

zApril 1, 08 report thoroughly proves that the affiant withheld critical inaterial evidence

from the issuing mgistrate that altered the substantial basis determination to find

probable cause.

(8)

Paragraph 4, and 17 are the only relevant aarag.raph material to information necessary to

find any proba.ble cause to search 2396 Louisiana Ur. And based uoon the previously disclosed

facts of the case, it is absolutely clear that the search warrant affidavit would have

bUen invalidated based upon clearly established federal law.

Ilhe apgella.nt did not have a full and fair [onVcrtunity] to litigate his 4th Amendment

Claim due the the ineffective assistance of ?ccth trial counselors. The record supports

the fact that (1) There was no evidence of any audio tape in Det. A9illers rercrt, (2) The

affiant deliberately withhelo: t'he fact trat'2eginald Z'uffy Brooks had originally contacted

the same task force with a deal to set up Sheldon Smith in order to gain a reduction of

charges for CS#1, (3) The tii1e line for the allegerl statement made ty Barrin,ton to CS53

(*17), had not 1een established c•lthin the four corners of the affidavit, as per mana^<atea

by F'ederal Law, (4) The reliability of CS11 and CSi3 had not been corroborated and

established within the

Law.

of the affidavit, based upon clearly define:l

In Conclusion

In closing, this is not adiff_icult case to see in regar3s to the Constitutional

violations. The prejudici3l n.eyliaence demonstratea by all carties involved in the

apyellant's case, to include ?:oth trial counselors, is incampre.hensible and should Ibm

Contra 73obos Mores to any reasonable Jurist. 8;ased uvcn the statement of the facts aione,

any third year law student could see the constitutional violations. `?'here is absolutely

no excuse for the appellant's counsel on direct appeal to have :nissed these blaten errors

of law.

For all said reasons mention above, Appellant humbly and respectfully request this

Honorable Coart of Review to grant this ayalication for re-opening, based uDoon

substantive grounds that hold probative value in teh Justice of Law.

at hold pro!aetive value in the Justice of Law.

Res.^ fully submitted,

/J^1

^--.__.....Sheld nith, ??61

(9)

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

GREENE COUN T Y

STATE OF OHIO

Plaintiff-Appellee

V.

SHELDON SMITH

Defendant-Appellant

Appellate Case No.2009-CA-81

Trial Court Case No. 08-CR-926

(Criminal Appeal fromCommon Pleas Court)

DECISION AND ENTRY

Rendered on the 1 3th day of January, 2012

PER CURIAM:

This matter comes before the court upon a pro se App.R. 26(B) application for

reopening of the defendant's direct appeal filed by Sheldon Smith.'

' Smith originally misfiled his application in Greene App. No. 2010-CA-80, whichinvolves the trial court's denial of his petition for post-conviction relief. In a July 7, 2011decision and entry, we ordered the application transferred to the above-captioned case,Greene App. No. 2009-CA-81, which is the direct appeal. On the same day, we grantedSmith's unopposed motion for leave to supplement his App.R. 26(B) application. Thematter is now before us for resolution.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

In his application, Smith seeks to reopen the direct appeal from his conviction and

sentence following a no-contest plea to numerous drug-related charges. This court resolved

the direct appeal in a December 17, 2010 opinion, rejecting five assignments of error. Smith

timely filed his application for reopening on March 7, 2011, alleging ineffective assistance of

appellate counsel. He raises several issues that he believes his appellate counsel should

have pursued on appeal.

When seeking to reopen a direct appeal, a defendant "bears the burden of establishing

that there [is] a 'genuine issue' as to whether he has a 'colorable claim' of ineffective

assistance of counsel on appeal." State v. Hughbanks, 101 Ohio St.3d 52, 2004-Ohio-6,

quoting State v. Spivey, 84 Ohio St.3d 24, 25, 1998-Ohio-704.

In his application, Smith first contends his appellate counsel provided ineffective

assistance by failing to challenge the trial court's denial of his pre-sentence motion to vacate

his no-contest plea. Smith claims he should have been permitted to withdraw the plea

because, prior to sentencing, his trial counsel presented him with exculpatory new evidence.

Smi#h arni iPC that he would not have entered a no-contest plea if he had known about thev-..- .V...-- -"--- --- -- -

evidence at the time of the plea hearing.

In seeking to have Smith's no-contest plea vacated, defense counsel argued below

that certain new evidence called into question the validity and accuracy of a detective's search

warrant affidavit. Based on a belief that the new evidence rendered the search warrant invalid,{

defense counsel moved to have Smith's plea vacated. (Doc. #92, 95). The purportedf new

evidence was audio recordings of conversations with one Reginald "Tuffy" Brooks. I nformation

attributed to Brooks had been included in the search-warrant affidavit for the search of the

defendant's residence that ultimately led to the charges against him. Based on the same new

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

evidence, Smith also moved to renew a prior suppression motion. (Doc. #93). In response to

those motions, the court conducted a hearing and spent considerable time with counsel, and

in camera, to review the audio recordings. The trial court ultimately determined that "affiant's

statements in the search warrant are an accurate recitation of the conversations recorded."

(Doc. #100 at 2.)Because the trial court found that the new evidence did not demonstrate any

inaccuracies or falsehoods in the affidavit, the request to reopen the motion to suppress was

denied. (Id.). The trial court subsequently held a sentencing hearing and imposed sentence

on Smith without expressly ruling on the motion to vacate his no-contest plea.' It is axiomatic,

however, that the trial court implicitly overruled the motion by entering final judgment without

addressing it.

Given the trial court's determination that the new evidence at issue did not controvert

the detective's affidavit, or renderthe resulting warrant invalid, it follows that appellate counsel

did not provide ineffective assistance by failing to rely on that same evidence to argue that

Smith's plea should have been vacated.`If the new evidence did not invalidate the warrant,

..,hi,.h +ho +^^ai court fnund, then the underlvinq basis for Smith's motion to vacate his plea noYY11 ^^v^^.v. ---- - ---- - -

longer existed.'

Smith next argues that his appellate counsel provided ineffective assistance by failing

to argue the ineffectiveness of his trial counsel. In particular, he contends his trial counsel

provideddeficient representation by not providing him with the evidence discussed above

before he entered his no-contest plea. Smith claims his trial counsel actually had received the

evidence before he entered his plea but only realized its existence post-plea due to

negligence. According to Smith, his entry of a no-contest plea without knowledge of the

evidence rendered the plea "involuntary."

THE COURT OF APPEALS OF OI-IIO

SECOND APPELLATE DISTRICT

Once again, we see no basis for reopening Smith's direct appeal. As set forth above,

defense counsel claimed the evidence at issue controverted a search-warrant affidavit and

rendered the warrant invalid. The trial court rejected this argument.i Thus, we fail to see how

Smith's prior lack of knowledge about the evidence could have rendered his no-contest plea

involuntary of otherwise prejudiced him. ' Even if his counsel had presented the audio

recording evidence at the original suppression hearing, the trial court would have overruled

the motion to suppress and the result would have been no different."

Smith's third argument is that his appellate counsel provided ineffective assistance by

not challenging the trial court's failure to hold a hearing pursuant to Franks v. Delaware

(1978), 438 U.S. 154. This argument concerns an October 28, 2009 supplement Smith filed

to the motion to vacate his no-contest plea discussed above. In that supplement, Smith

claimed that the surreptitious audio recording of'`Tuffy" Brooks controverted allegations in a

detective's search-warrant affidavit. He requested a Franks hearing to determine whetherthe

detective's affidavit contained knowingly false allegations or material omissions. (Doc. #99).

nc_ nrPvinuslv indicated. the trial court determined that "affiant's statements in the search

warrant are an accurate recitation of the conversations recorded." The trial court also found

no "evidence that would change the opinion of the Court that the affidavit is proper and

satisfies the [C]onstitution." (Doc. #100). As a result, we see no potential ineffective

assistance ofappellate counsel based on the failure to raise the Franks issue on appeal.

Smith next contends his appellate counsel provided ineffective assistance by failing

to raise on appeal his trial counsel's allegedly incompetent handling of a Fourth Amendment

issue. In support, Smith mentions the audio recording discussed above. He also challenges

the credibility of Reginald Brooks and confidential sources cited in the search-warrant

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

affidavit. Once again, however, we find no basis for reopening the direct appeal. Smith's

arguments fail to establish a genuine issue as to whether he has a colorable claim of

ineffective assistance of counsel on appeal.

In a supplement to his App.R. 26(B) application, Smith elaborates on his Fourth

Amendment argument. He notes that the trial court invalidated search warrants for his

mother's house and her business based on deficient affidavits. He contends the affidavits for

those search warrants were similar to the affidavit supporting a search warrant for his house.

To the extent the affidavits differed, Smith contends the differences did not support a finding

of probable cause to search his house. In making this argument, Smith challenges the

credibility of sources cited in the detective's affidavit. He also claims the affidavit for a warrant

to search his house failed to establish when a confidential informant saw drugs inside his

residence. Therefore, he argues that the information in the affidavit was stale.

In our resolution of Smith's direct appeal, we addressed the credibility and reliability

of the sources cited in the affidavit for a warrant to search his home. We also expressly

.vio.4orJ Cmith'c "stalPness" araument.findinq that the issuing magistrate had "a reasonable^c^c:^.w........... _._.'._-_- _ ^ . -

basis for concluding that drugs remained present in Smith's home at the time of the warrant

request." Smith has failed to persuade us that his direct appeal should be reopened to

address the foregoing issues further. His application to reopen his direct appeal is hereby

denied.

IT IS SO ORDERED.

MIKE FAIN, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MA YiEiONOVAN, Judge

MICHA(EL T. HALL, Judge

Copies mailed to:

Elizabeth A. EllisGreene CountyProsecutor's Office61 Greene StreetXenia, OH 45385

Sheldon Smith #A617-224Chillicothe Correctional Inst.P.O. Box 5500Chillicothe, OH 45601

_1_ ,ALJ.Hon. StepliCn w.,ia^erGreene County Common Pleas Court45 N. Detroit StreetXenia, OH 45385

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

GREENE COUNTY

STATE OF OHIO

Plaintiff-Appellee

V.

SHELDON SMITH

Defendant-Appellant

Appellate Case No. 2009-CA-81

Trial Court Case No. 08-CR-926

(Criminal Appeal from(Common Pleas Court)

DECISION AND ENTRY

Rendered on the 23rd day of April, 2012

1r1 ^ I In1Al.A.rCR livftwivi.

This matter comes before the court upon defendant-appellant Sheldon Smith's pro se

motion for an extension of time to file an application for reconsideration.

In his January 23, 2012, motion, Smith requests an extension of time to seek

reconsideration of our January 13, 2012, Decision and Entry denying his App.R. 26(B)

application to reopen his direct appeal.

Under App.R. 26(A), an application for reconsideration shall be filed within ten days

of this court's decision. Pursuant to App.R. 14(B), we may not enlarge the time for seeking

reconsideration "except on a showing of extraordinary circumstances." Smith contends

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

extraordinary circumstances exist because (1) it took four days for him to receive our ruling,

(2) he received two decisions at the same time, and (3) current prison conditions (somehow

related to the arrival of other inmates) have "hindered" his access to the law library.

Upon review, we find nothing extraordinary about the factthat Smith received our ruling

four days after we filed it or that he received two decisions at once. We are equally

unpersuaded that limited access to a law library constitutes an extraordinary circumstance,

at least absent elaboration by Smith. State v. Sweeney, 131 Ohio App.3d 765, 769, 723

N.E.2d 655, 657-657 (2d Dist. 1999) ("We agree '"' * that restricted access to research

materials does not provide good cause for noncompliance with the time requirements in App.

R. 26. Our own holding is based on the logical assumption that all inmates in Ohio prisons

would be subject to some restrictions on access to research materials.").

Finally, we note that pages two and three of Smith's motion for an extension of time

adequately set forth his substantive argument for reconsideration. Having reviewed that

argument, we find no obvious error or issue that we failed to consider.

For the foregoing reasons, Smith's motion for an extension of time is overruled.

IT IS SO ORDERED.

MIKE FAIN, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2Ldz^^MICHAEL T. HALL, Judge

Copies mailed to:

Elizabeth A. EllisGreene County Prosecutor's Office61 Greene StreetXenia, OH 45385

Sheldon Smith #A617-224Chillicothe Correctional InstitutionP.O. Box 5500Chillicothe, OH 45601

Hon. Stephen WolaverGreene County Common Pleas Court45 N. Detroit StreetXenia, OH 45385-2998

:df

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT