cons t'tu i ional ou=ctigi^i interes ' ai'a') invol4f=-s t ... daryl cochran...

IN THE SUPREME COURT OF OHIO

STATE 'J7 QHIG,

vs.

Pialntlfr-Appeliee,0'7 a-1 84 8

Gn Appeal from the CLARKCounty Court

of Appeals, s C D

DARYL COCHRANAppeliate Distric^

^oun of Appealcverer7dan - ,ppeiian:, ^2se No ,,,ina( /JA 9 7

MEMORANDUM IN SUPPOR i OF JURlSDICT1ONOF APPELLANT DARYL COCHRAN

DARYL COCHRAN #391-030

NAMC ru

LEBANON CORR. INST.

INS 1 V 1-

P.O. BOX 56:LLEBANON, OHIO 45036

D=-_fvUAf^T-G.°PEL':_AJvT. PRO SE

WILLIAM H. LAMB:oG^3,urar-11rM^

0 E. COL. ST. 4TH FL.5trnr..

PRT^',FI . ,Dp OHIO 45501Sl^:.s^a::u^c

4."2l^7-"27R_^574yh_

^^".^14J^1_ ^'7f -,^?- _ ^r HO1O

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR

GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTION .............................. 1

STATEMENT OF THE fArri5 .............................. 2

STATEMENT OF THE CASE ............................. 3

FIRST PROPOSITION OF LAW ............................ 4

SECOND PROPOSITION OF LAW ........................... 6

THIRD PROPOSITION OF LAW ............................ 8

FOURTH PROPOSITION OF LAW ............................ 10

FIFTH PROPOSITION OF LAW ............................ 12

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

AFFT OF INDIGENCY

APPENDIX: CLARK COUNTY CA JUDGMENT ENTRY

STATE v. COCHRAN APP. NO. ^9006 ^f^ ^^

1

EXPLANATION OF WHY THlS CASE!S A CASE OF PUBLIC OF,GR=AT u,_NERAL iNTERES ' Ai'a') iNVOL4f=-S t-; S:.fgS T ANTiA4

CONS T'Tu i iONAL OU=CTIGI^i

THIS CASE IN ITSELF QUESTIONS THE INTEGRITY OF THE

INTEGRITY OF THE JUDICIAL PROCESS IN THIS STATE INASMUCH, AS

THE FACT THAT PETITIONER / APPELLANT WAS DENIED SEVERAL

CONSTITUTIONAL RIGHTS, TO-WIT, HIS RIGHT TO COUNSEL AFTER

UNAMBIGUOUSLY REQUESTING A LAWYER, AS WELL AS HIS QUARANTEED

RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL ENCOMPASSED

WITHIN THE SIXTH AND FOURTEENTH AM. OF THE U.S. CONSTITUTION.

ALSO, THE FACT THAT APPELLANT WAS ARBITRARILY AND

UNREASONABLY PRECLUDED FROM RECEIVING THE BENEFIT OF THE

SUPREME COURT DECISION IN BLAKELY v. WASHINGTON, SUPRA, EVEN

THROUGH HIS CASE WAS ON DIRECT APPEAL, CLEARLY SHOWS THAT

THIS SYSTEMS HAS TOTALLY AND UNJUSTIFIABLY ABANDONED THE LAW

IN ORDER TO CIRUMUENT DUE PROCESS FOR APPEARENT POLITICAL

PURPOSES IN DIRECT CONTRAVENTION OF DUE PROCESS. (EMPHASIS).

JURISDICTION MUST BE INVOKED BY THIS COURT!

2

S^'AT_MENT p= THE rACT,-

ON NOVEMBER 19, 1999, APPELLANT WAS INCARCERATED AT THE

CLARK COUNTY JAIL AND WAS QUESTIONED IN THIS BY SGT. EGGERS

AND DETECTIVE ESTEP. DURING THE QUESTIONING, APPELLANT

CLEARLY AND UNAMBIGUOUSLY REQUESTED COUNSEL, BUT THE

INTERROGATION DID NOT CEASE. INCRIMMINATING STATEMENTS WERE

ELICITED. SUBSEQUENT TO THE INVOCATION OF HIS RIGHTS TO

COUNSEL, AND THE INTERROGATION OF APPELLANT NOT WITHSTANDING

HIS INVOCATION, APPELLANT WAS PRESENTED WITH A VISIT FROM AN

UNDERCOVER STATE AGENT AT THE JAIL AND THE RESULTING VISIT

WAS VIDEO TAPED AND FURTHER INCRIMMINATING STATEMENTS WERE

OBTAINED.

DURING PRETRIAL PROCEEDINGS, TRIAL COUNSEL REFUSED TO

FILE A MOTION TO CHALLENGE THE LEGALITY OF THE ILLEGALLY

OBTAINED STATEMENTS AND, DESPITE THE FACT THAT, AT MOST,

APPELLANT WAS GUILTY OF MANSLAUGHTER, COUNSEL COERCED

APPELLANT TO ENTER A PLEA TO MURDER, AGGRAVATED ROBBERY

AND TAMPERING WITH EVIDENCE.

AT SENTENCING, THE TRIAL COURT ADDED FIFTEEN YEARS TO

THE PERMISSIBLE MAXIMUM SENTENCE OF A SINGLE, CONCURRENT

TERM, BASED SOLELY UPON JUDICIAL FACT FINDING OF FACTS NOT

ALLEGED IN THE INDICTMENT, PROVEN BEYOND A REASONABLE

DOUBT, OR ADMITTED TO OR WAIVED BY APPELLANT.

c

3

3 ;'G,."_MEK" 0r THE CASL

ON FEBRUARY 15, 2000, APPELLANT ACQUIESCED TO COUNSEL'S

INSTRUCTIONS AND ENTERED A PLEA OF GUILTY TO ONE COUNT

EACH OF MURDER, AGGRAVATED ROBBERY AND TAMPERING WITH

EVIDENCE. ON FEBRUARY 24, 2000, APPELLANT WAS SENTENCED TO

SERVE FIFTEEN YEARS TO LIFE ON THE CHARGE OF MURDER

CONSECUTIVELY WITH AN ADDITIONAL FIVE YEARS ON THE

TAMPERING WITH EVIDENCE CHARGES FOR A TOTAL STATED PRISON

TERM OF THIRTY YEARS TO LIFE.

ON OCTOBER 13, 2005, APPELLANT FILED A MOTION FOR

LEAVE TO WITHDRAW HIS GUILTY PLEA. THE PROSECUTOR RESPONDED

ON OCTOBER 18, 2005 AND APPELLANT REPLIED OCTOBER 31, 2005.

ON MAY 10, 2006, APPELLANT FILED A MOTION TO PROCESS TO

HEARING AND JUDGMENT. ON JULY 26, 2006, APPELLANT FILED A

PETITION FOR WRIT OF PROCEDENDO IN SECOND DIST.

CSE N0. 06-CA-0075. ON AUGUST 8, 2006, AFTER SERVICE OF THE

PETITION, THE TRIAL COURT ISSUED ITS DECISION AND ENTRY

OVER RULING THE 32.1 MOTION. THIS TIMELY APPEAL FOLLOWS.

4

FIRST PF`OpUSITIJN OF Lr'i1V

THE TRIAL COURT ERRED AS A MATTER OF LAW IN

VD rN aa RP" m P. p p

APPELLANT AND ERRONEOUSLY APPLYING RES-JUDICA-PT"I'0HIS ISSUED. ( ENTRY, 8-8-6

THE TRIAL COURT HELD "THE COURT FINDS THAT THE MATTERS

COCRHAN RAISES HERE COULD HAVE BEEN RAISED ON DIRECT

APPEAL OR IN A PETITION FOR POST CONVICTION RELEIF.

AS THE TIME FILING EITHER HAS LONG SINCE PASSED, THE MATTERS

ARE BARRED BY RESJUICATA." (DECISION AT 2, CITING A SINGLE,

UNREPORTED CASE). APPELLANT SUBMITS THAT THERE IS NO RULE,

STATUTE OF OTHER PROVISION FOR A DIRECT APPEAL FROM THE ENTRY

OF A GUILTY PLEA TO RAISE ISSUES OTHER THAN A SENTENCING

ISSUE IN 2953.08 WHICH WAS NOT AVAILABLE AT THE TIME OF

SENTENCING IN THIS CASE BECAUSE STATE v. FOSTER, (2006),

109 OH. ST. 3d1 HAD NOT YET BEEN DECIDED. THE TRIAL COURT'S

FINDING THAT A DIRECT APPEAL WAS AVAILABLE FOR THE ISSUES

HEREIN IS CLEARLY ERONEAOUS AS A MATTER OF LAW. FURTHER,

RESJUDICATA MAY NOT BE.USED AS AN AUTOMATIC BARRIER TO THE

INVESTIGATION OF THE VIOLATION OF THE CONSTITUTIONAL RIGHTS

OF A DEFENDANT IN A CRIMINAL CASE. LAUGHESEN v. STATE.

(1976) N.E. 2d 663. APPELLANT FURTHER SUBMITS THAT A

POST CONVICTION PETITION WAS NOT AVAILABLE TO HIM EITHER,

AS A POST CONVICTION PETITION REQUIRES MATERIALS DE HORS

THE RECORD, SEE E.G. STATE v. PERRY APP. 3d 151,

STATE v. MILABIVICH (1975) 42 OH. ST. 2d 46.

5

THE CLAIMS SET FORTH IN THE INSTANT PROCEEDINGS ARE ALL

DEMONSTRABLE FROM THE RECORD IN THIS CASE AND, THEREFORE, MAY

NOT BE RAISED IN A POST CONVICTION PROCEEDING AS DEMONSTRATED

BY THE CONTROLLING AUTHORITIES SET FORTH HEREIN. FURTHER, A

POST CONVICTION PROCEEDING IS A COLLATERAL PROCEEDING. SEE

2953.21 (J).

AS SUCH, APPELLANT'S BLAKELY-FOSTER CLAIM IS CURRENTLY

NOT RECOGNIZABLE IN A POST CONVICTION PROCEEDING WHERE AS A

32.1 PROCEEDING IS A DIRECT ATTACK, REQUIRING RELIEF ON SUCH

A CLAIM. SEE E.G. STATE v. BUSH, (2002) 96 OHIO ST. 3d 235.

THE TRIAL COURT'S DETERMINATION THAT DIRECT APPEAL AND

POST CONVICTION REMEDIES WERE AVAILABLE TO APPELLANT IS

CLEARLY ERRONEOUS AS A MATTER OR LAW AND THE APPLICATION OF

REJUDICATA IS IMPROPER AND MUST BE REVERSED!

6

SECOND PROPOSITION OF LAW:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN

FINDING THAT APPELLANT'S FIFTH AND SIXTH AMENDMENT

RIGHTS WERE NOT VIOLATED BY THE BREACH OF MIRANDA

AND HIS RE QUEST FOR COUNSEL, BY STATE AGENTSE N7RY'8-8-0 . - -

THE TRIAL COURT FOUND" ... THE TRANSCRIPT HE (APPELLANT)

ATTACHED TO HIS MOTION FAILS TO SHOW THAT HE INVOKED HIS RIGHT

TO COUNSEL WHEN QUESTIONED". ( ENTRY AT 2). APPELLANT SUBMITS

THAT THIS FACT FINDING IS ACTIVELY CONTRADICTED BY THE RECORD.

A REVIEW OF EXHIBIT A ATTACHED TO THE MOTION AT PAGE 3 OF THE

EXHIBIT DEMONSTRATES THAT APPELLANT STATED: "WELL, I DON'T

KNOW. I THINK I SHOULD TALK TO MY LAWYER FIRST." AND,

"OH I MEAN GODDAM IF I STOP TALKING TO GUYS LOOKS LIKE

SOMETHING TO HIDE HERE. I JUST WONDER IF I SHOULD TALK TO MY

LAWYER FIRST."

APPELLANT SUBMITS THAT THE FIRST STATEMENT IS UNAMBIGUOUS

AS A DESIRE TO TALK TO A LAWYER AND THE POLICE WERE OBLIGATED

TO CEASE QUESTIONING. SEE CONNECTICUT v. BARRETT. ( 1987) 479

U.S. 523, STATE v. STEPHENSON ( 1994) 878 SW 530, AND

U.S. v. MENDOZA, ( A,ll 1992) 963 F, 2d 1467. SEE ALSO

TOWN v. DUGGAR, ( CA, 11, 1990) 899 F. 2d 1104. EVEN THE

SECOND STAEMENT,-ACTUALLY MADE FIRST IN THE TRANSCRIPT,-

BEING CONSTRUED AS POSSIBLY AMBIGUOUS, REQUIRED THE POLICE

TO CEASE QUESTIONS, BASED UPON ALL OF THE CITATIONS SET

FOURTH ABOVE.

APPELLANT SUBMITS THAT THE TWO REQUESTS FOR COUNSEL,

ONE ARGUABLY AMBIGUOUS, BUT THE OTHER UNARGUABLY UNAMBIGUOUS 37/17l114Fiv

RENDERS ANY STATEMENTS ELICITED THERE AFTER VIOLATIVE OF THE

7

FIFTH AND SIXTH AMENDMENT AS A SET FORTH IN MIRANDA v. ARIZONA,

(1996) 386 U.S. 436 AND EDWARDS v. ARIZONA, (1981) 451 U.S.

477. SEE ALSO U.S. v. BROWNE (CA 1, 1989) 891 F. 2d 389.

TRIAL COURT FURTHER HELD "ALSO, ANY STATEMENTS HE

MADE TO THE INFORMANT WHO VISITED HIS AT THE JAIL WOULD NOT

LIKELY BE SUBJECT TO SUPPRESSION BECAUSE OF THE LACK OF A

REASONABLE EXPECTATION OF PRIVACY IN SUCH CIRCUMSTANCES.

"CITING TWO UNREPORTED CASES AND HOFFA v. U.S. (1966)

385 U.S. 293.

APPELLANT SUBMITS THAT THIS RELIANCE ON HOFFA IS

MISPLACED BECAUSE IT DOES NOT ENCOMPASS THE HOLDING IN

EDWARDS, SUPRA THAT REQUIRES CESSATION OF INTERROGATION BY

STATE AGENTS SUBSEQUENT TO THE INVOCATION OF THE RIGHT TO

COUNSEL. THE USE OF A PRIVATE CITIZEN AS A STATE AGENT TO HIS

RIGHT TO COUNSEL IS AN PROHIBITED AS THE CONTINUING

INTERROGATION BY THE POLICE THEMSELVES. SEE E.G.

BATTLE v. ESTELLE, (CA 5, 1981) 655 F. 2d 692;

WILSON v. O'LEARY (CA 7, 1990) 895 F. 2d 378.

APPELLANT SUBMITS THAT THE FINDINGS OF THE TRIAL COURT

ARE CLEARLY ERRONEOUS AS A MATTER OF LAW AND MUST BE REVERSED!

8

THIRD PROPOSITION OF LAW:

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING

THAT APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVEFOR FAILING TO CHALLENGE THE ILLEGALLY OBTAINEDSTATEMENTS ELICITED FROM APPELLANT IN VIOLATIONOF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS.( ENTRY 8-8-06 ).

THE TRIAL COURT HELD THAT, SINCE THE CLAIMS OF APPELLANT

REGARDING THE ILLEGALLY OBTAINED STATEMENTS WERE "SPECIOUS,"

"THE COURT CANNOT CONCLUDE THAT COUNSEL'S (SIC) FAILURE TO

FILE A MOTION TO SUPPRESS WAS OBJECTIVELY UNREASONABLE OR

TIIAT COCHRAN WAS PREJUDICED THEREBY." (ENTRY AT 3).

APPELLANT SUBMITS THAT, AS SET FORTH IN THE LAW AND

ARGUMENTS SUPPORTING PROPOSITION OF LAW NO II ABOVE

DEMONSTRATING THAT THE INCRIMMINATING STATEMENTS ELICITED

FROM HIM WERE ILLEGALLY OBTAINED BY IGNORING HIS UNAMBIGUOUS

REQUEST FOR COUNSEL, THE CLAIMS ARE NOT "SPECIOUS" AND THE

TRAIL COURT'S CHARACTERIZATION THERE OF AS SUCH IS FACTUALLY

AND LEGALLY ERRONEOUS.

AS THE STATEMENTS OBTAINED ARE CLEARLY ILLEGALLY, TRIAL

COUNSEL HAD AN AFFIRMATIVE DUTY TO CHALLENGE SAID STATEMENTS

VIA A MOTION TO SUPPRESS AND THE FAILURE TO DO SO CONSTITUTES

CONSTITUTIONALLY INEFFECTIVE ASSISTANCE REQUIRING REVERSAL.

SEE. STATE v. YARBER, (1995) 102 OH. APP 3d 185;

WILLIAMS v. ARN, (N.D. OH. 1986) 654 F. SUPP 226.

AS ARGUED TO TRIAL COURT, THE CONTEXT AND SUBSTANCE OF

THE ILLEGALLY OBTAINED STATEMENTS INTERFERED' WITH THE DEFENSE

BY REDUCING THE ABILITY OF APPELLANT TO PRESENT THE

INFORMATION THAT ACTUALLY MITIGATED THE CONDUCT UPON WHICH THE

CHARGES WERE BASED SO AS TO ARRIVE AT THE PROPER CHARGES IN

9

A NEGOTIATED PLEA AGREEMENT OF MANSLAUGHTER, RATHER THAN

MURDER. COUNSEL'S INEFFECTIVENESS CLEARLY PREJUDICED THE

ABILITY TO PRESENT A DEFENSE IN THIS CASE AND CONTRIBUTED

ENTIRELY TO APPELLANT'S ACQUIRESEENSE TO COUNSEL'S URGING

TO ENTER THE RESULTING PLEA.

APPELLANT DOES NOT, AND DID NOT ATTEMPT TO EVADE

RESPONSIBILITY FOR HIS ACTIONS, HOWEVER, COUNSEL'S ERRORS

INTERFERED WITH THE ABILITY TO MITIGATE THE CHARGES TO

DEMONSTRATE THAT HIS ACTIONS CONSTITUTED LESSER DEGREES OF

OFFENSES THAN THOSE CHARGED, A NOT UNCOMMON OCCURRENT IN THIS

AGE OF OVERWHELMING INDICTMENT AT THE ABSOLUTE DISCRETION

(READ: WHIMSY) OF THE PROSECUTING ATTORNEY BASED LARGELY UPON

POLITICAL CONSIDERATIONS RATHER THAN BEING GUIDED BY JUSTICE.

THE PLEA "AGREEMENT" NEGOTIATED BY COUNSEL WAS ADVERSELY

AFFECTED BY COUNSEL'S PERFORMANCE AND, BUT FOR COUNSEL'S

INEFFECTIVENESS, APPELLANT WOULD HAVE INSISTED ON A TRIAL,

AT WHICH THE FACTS OF THE CASE COULD HAVE BEEN PRESENTED,

WITHOUT THE TAINTING OF INTEMPERATE AND UNCOUNSELED REMARKS

BY APPELLANT BEING INTERJECTED INTO THE TRIAL. THE TRAIL COURT

ERRED AS A MATTER OF LAW IN NOT FINDING THAT COUNSEL WAS NOT

INEFFECTIVE AND BE REVERSED!

10

FOURTH PROPOSITION OF LAW:

THE TRIAL COURT ERRED AS A MATTER OF LAW INFAILING TO GRANT RELIEF ON HIS BLAKELY-7

APPRENDI; ISSUE WHEN IT WAS PROPERLY PRESENTED

IN A DIRECT ATTACK (ENTRY 8-8-06).

THE TRAIL COURT CITED STATE v. FOSTER (2006), 109 OH. ST.

3d 1, WHEREIN IT HELD THAT A SENTENCE RENDERED UNLAWFUL BY THE

PROVISIONS OF OHIO STATUTES THAT PERMIT JUDICIAL FACT FINDING

TO ENHANCE A SENTENCE MUST BE REVERSED IF A DIRECT ATTACK IS

PRESENTED, TO ERRONEOUSLY DENY RELIEF, IN STATE v. BUSH,

(2000) 96 OH. ST. 3d 235, THE COURT HELD SPECIFICALLY THAT A

MOTION FILED UNDER CRIM. R.32.1 CONSTITUTES D DIRECT ATTACK

AND MAY NOT BE CONVERTED TO A COLLATERAL ATTACK BY A TRIAL

COURT. BASED UPON BUSH, SUPRA, THE TRIAL COURT WAS OBLIGATED

TO CORRECT THE UNLAWFUL SENTENCE IMPOSED UPON APPELLANT BY

REMOVING THE JUDICIAL FACT FINDING PERFORMED TO

UNCONSTITUTIONALLY ENHANCE HIS SENTENCE BY RUNNING THE TERMS

OF INCARCERATION FOR THE ROBBERY AND TAMPERING CHARGES

CONSECUTIVELY RATHER THAN CONCURRENTLY. THE DECISIONS IN

BLAKELY v. WASHINGTON, (2004) 542 U.S. 296, ( APPLYING

APPRENDI v. NEW JERSEY (2000) 530 U.S. 446 STATE v. FOSTER,

SUPRA, DEMONSTRATE THAT THE IMPOSITION OF CONSECUTIVE SENTENCES

BASED SOLELY UPON JUDICIAL FACT FINDING IS UNCONSTITUTIONAL.

AS THE ISSUE WAS PROPERLY PRESENTED IN A DIRECT ATTACK,

THE TRIAL COURT WAS REQUIRED TO PROVIDE RELIEF AND ERRED AS

A MATTER OF LAW IN REFUSING TO DO SO, REQUIRING REVERSAL.

FURTHERMORE, IT IS CLEAR THAT THE SENTENCING COURT LACKED

SUBJECT-MATTER JURISDICTION TO IMPOSE MARE THAN A MINIMUM/

CONCURRENT TERM BASED UPON THE DECISIONS IN BLAKELY, SUPRA,

11

STATE v. FOSTER 485 N.E. 2d 470. SEE IN RE FORFEITURE ,

619 N.E. 2d 1161. THUS, THE SENTENCE IN THIS CASE IS VOID

AND MUST BE REMEDIED. IN RE RUEHIE 296 BR 146; ALSO

FED. R. CIV. PRO. 60(B)(4). IT IS ALSO CLEAR THAT SINCE, IN

'FOSTER', THE COURT TOTALLY EXCISED R.C. 2929.41(A) AND

2929.14(E)(4), THAT THERE IS NO STATUTORY AUTHORITY WHICH WOULD

ALLOW A COURT TO IMPOSE CONSECUTIVE SENTENCES IN OHIO.

"CRIMES ARE STATUTORY, AS ARE THE PENALTIES THEREFORE, AND THE

ONLY SENTENCE WHICH A TRIAL COURT MAY IMPOSE IS THAT PROVIDED

FOR BY STATUTE. A COURT HAS NO POWER TO SUBSTITUTE A DIFFERENT

SENTENCE FOR THAT PROVIDED BY LAW, AND, ANY ATTEMPT BY A COURT

TO DISREGARD STATUTORY REQUIREMENTS WHEN IMPOSING A SENTENCE

RENDERS THE ATTEMPTED SENTENCE A NULLITY OR VOID". SEE

STATE v. BEASLEY,(1984), 14 OH. ST. 3d 74, 471 N.E. 2d 774

AT 775. SINCE THE STATUTES ENACTED UNDER SENATE BILL 2 HAVE

BEEN FOUND BY THE 'FOSTER' COURT TO BE UNCONSTITUTIONAL, TO

WIT 2929.41(A) AND 2929.14(E)(4), IT IS CLEAR THAT THE

SENTENCING COURT NEVER HAD ANY STATUTORY AUTHORITY TO IMPOSE

CONSECUTIVE SENTENCES ESPECIALLY BECAUSE A STATUTE IS 'VOID'

FROM THE DATE OF ITS ENACTMENT AND NOT FROM THE DATE THAT IT

WAS JUDICIALLY DECLARED UNCONSTITUTIONAL. NOTE SENATE BILL-2

WAS ENACTED IN 1996, YEARS BEFORE MR. COCHRAN'S ALLEGED

OFFENSES AND SENTENCING OCCURRED). THIS JURISDICTIONAL ISSUE

MAY BE CHALLENGED AT ANY TIME EITHER ON DIRECT OR COLLATERAL

ATTACK. SEE STATE v. CIMPRITZ,(1953) 110 N.E. 2d 416, SY11.

1,2, and 3; ALSO 62 OH. JUR. 3d 124.

12

FIFTH PROPOSITION OF LAW:

THE TRIAL COURT ERRED AS A MATTER OF LAW

AND ABUSED ITS DISCRETION IN FINDING THAT

APPELLANT FAILED TO DEMONSTRATE THAT A

MANIFEST INJUSTICE EXISTS IN THIS CASE

(ENTRY 8-8-06).

THE TRIAL COURT FOUND, IN ITS CONCLUSION, "BASED ON THE

FOREGOING, THE COURT FINDS THAT COCHRAN HAS FAILED TO

DEMONSTRATE THAT A MANIFEST INJUSTICE WOULD RESULT UNLESS HE

WERE PERMITTED TO WITHDRAW HIS GUILTY PLEA. "(ENTRY AT 3).

IT IS ENCUMBENT UPON THE DEFENDANT TO ESTABLISH THAT A

MANIFEST INJUSTICE EXISTS IN ORDER TO WARRANT LEAVE TO

WITHDRAW A GUILTY PLEA, POST SENTENCE. STATE v. XIE (1992),

584 N.E. 2d 715, STATE v. SMITH, (1977), 49 OH. ST. 2d 261;

STATE v. CARABELLO, (1985), 17 OH. ST. 3d 66. WHERE A TRIAL

COURT ABUSES ITS DISCRETION IN FINDING THAT NO MANIFEST

INJUSTICE EXISTS, REVERSAL IS REQUIRED. SEE STATE v. POSTA

(1980) 524 N.E. 2d 920. AN ABUSE OF DISCRETION IS MORE THAN

A MERE ERROR OF LAW FACT DETERMINATION, IT IMPLIES THAT THE

COURT DISPLAYS AN ATTITUDE THAT IS ARBITRARY, UNREASONABLE

OR UNCONSCIONABLE. STATE v. ADAMS. (1980) 404 N.E. 2d 144.

AN ABUSE OF DISCRETION, HOWEVER DOES NOT REQUIRE INTENT ON

THE PART OF THE COURT, RATHER IT CAN BE DEMONSTRATED WHERE

THE DECISION OF THE COURT IS NOT BASED ON A SOUND REASONING

PROCESS. PROCTOR AND GAMBLE v. STONEHAM, (2000), 140 OH.

APP. 3d 260.

IN THIS CASE, APPELLANT HAS, IN HIS ARGUMENTS ABOVE,

DEMONSTRATED THE ERRORS OF BOTH LAW AND FACT ON THE PART OF

13

THE TRIAL COURT AND DEMONSTRATED WHERE SUCH ERRORS WERE

ARBITRARY AND / OR UNREASONABLE. APPELLANT SUBMITS THAT THE

TRIAL COURT, THEREFORE, ABUSE ITS DISCRETION IN DENYING

RELIEF AND REVERSAL IS WARRANTED.

APPELLANT SUBMITS THAT HE HAS BEEN CONVICTED OF OFFENSES

FAR MORE SEVERE THAN THOSE ACTUALLY COMMITTED BY HIM, DUE TO

COUNSEL'S INEFFECTIVENESS AND DUE TO THE VIOLATION OF HIS

INVOKED RIGHT TO COUNSEL AND THE ACTIONS OF THE STATE IN

AGGRESSIVELY AND INTENTIONALLY VIOLATING SUCH RIGHT.

APPELLANT HAS FURTHER BEEN SENTENCED TO A SENTENCE THAT

HAS BEEN UNCO^STITUTIONALLY ENHANCED TO DOUBLE THEYa

MAXIMUM EVEN THE EXCESSIVELY SEVERE OFFENSES FOR WHICH HE WAS

CONVICTED. APPELLANT SUBMITS THAT THE MANIFEST INJUSTICE IS

NOT ONLY CLEAR AND UNAMBIGUOUS, BUT ALSO PRE-EXISTS THE

FILING OF THE 32.1 MOTION AND WILL ONLY CONTINUE DUE TO THE

TRIAL COURT'S ABUSE OF DISCRETION IN DENYING RELIEF.

THEREFORE, REVERSAL IS MANDATED.

14

COfJuLUSION

This case raises a substantia! const;tutionai puestion. involves a felony and is

one of pubiic or great qeneral interest. Review should be m ranted in this case.

LEBANON CORR. INST.

P.O. BOX 56

LEBANON, OHIO 45036

D=FFNDANT-APP=L'_ANT, PRO SE

CERTlFICATE OF SERVICE

hereby certify that a true cop%,: oi the foreaoln0 (Viemorandum ir: Suppori ofDARYL COCHRAN

Jurisdictior o" Appeliam r}a: raa?- ^4,°'der. U`,

WILLIAM H. LAMBpostaae are-pai a Erosecuiln fittorne\

50 E. COLUMBIA ST. 4TH FL. SPRINGFIELD, OHIO 45501

/a ,(,t dav o: 07

; ^ i ^7,z

DARYL COCHRAN 4391-030

DF=FNilAN •. -AFP=LLAIZ- °R' SF

this

°1C11Gc

APPENDIX

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NO. 2006 CA 87

V.

DARYL COCHRAN

Defendant-Appellant

T.C. NO. 99 CR 0628

(Criminal Appeal fromCommon Pleas Court)

OPINION

Rendered on the 31S` day of August , 2007.

WILLIAM H. LAMB, Atty. Reg. No. 0051808, Assistant Prosecuting Attorney, P. O. Box1608, Springfield, Ohio 45501

Attorney for Plaintiff-Appellee

DARYL COCHRAN, #391-030, Lebanon Correctional Institute, P. O. Box 56, Lebanon,Ohio 45036

Defendant-Appellant

WOLFF, P.J.

Daryl Cochran appeals from the denial of his motion to withdraw his guilty plea in

the Clark County Court of Common Pleas. For the following reasons, the trial court's

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

judgment will be affirmed.

On February 15, 2000, Cochran entered a negotiated plea of guilty to murder,

aggravated robbery, and tampering with evidence, arising out of an incident on October 22,

1999. In his plea agreement, Cochran agreed to sentences of fifteen years to life in prison

for the murder, ten years in prison for aggravated robbery, and five years in prison for

tampering with evidence, to be served consecutively for an aggregate sentence of thirty

years to life in prison. In return, the state agreed to dismiss the charge of aggravated

murder. On February 24, 2000, the trial court considered the factors set forth in R.C.

2929.11 and R.C. 2929.12 and made findings pursuant to R.C. 2929.14(B) and R.C.

2929.14(C), as required by the then-existing statutory sentencing scheme. The trial court

sentenced Cochran to an aggregate term of thirty years to life in prison, as agreed by the

parties. Cochran did not appeal from his conviction or sentence.

On May 6, 2002, Cochran requested a copy of all transcripts in this case. In

September 2004, he wrote to the clerk of court seeking information about wiretaps that

were conducted during the investigation of his case. The record does not indicate any

response to either request.

On July 12, 2005, Cochran filed a motion for "reconsideration of sentence pursuant

to Crim.R. 32.1 and[/]or motion for post-conviction relief pursuant to new constitutional

ruling." In his motion, Cochran acknowledged that there was no error in the plea process

"but only in the sentencing process." He thus sought vacation of his sentence and a new

sentencing hearing, citing Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348,

147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 159 L.Ed.2d 403, 124

S.Ct. 2531. Cochran also asserted that his trial counsel was ineffective forfailing to inform

THE COURT OF APPEALS OF OHIOSECOND APPELLATB DISTRICT

3

him that he could challenge his sentence by way of appeal and by failing to appeal his non-

minimum consecutive sentence.

On October 13, 2005, Cochran withdrew his motion to vacate his sentence and filed

a motion to withdraw his plea. In this motion, Cochran claimed that he pled guilty to

offenses more severe than he had actually committed due to his trial counsel's deficient

performance. Cochran stated that the state elicited statements from him after he had

invoked his right to counsel, in violation of his Fifth Amendment rights, and that his counsel

had failed to seek suppression of those statements. Cochran further claimed that he did

not knowingly waive his right to have a jury determine the facts necessary for the

imposition of non-minimum and consecutive sentences. In support of his motion, Cochran

submitted an excerpt of his interrogation by Sergeant Eggers and Detective Estepp, which

was typed by Marjorie Crider, and the report by Sergeant David Rapp regarding a recorded

visit by Rebecca McDargh to Cochran while he was incarcerated in the Clark County Jail,

both of which occurred on November 19, 1999.

The state opposed Cochran's motion, arguing that there was no alleged error in the

plea proceeding and that Cochran merely asserted that he would have negotiated a better

plea with a shorter sentence. The state noted that a substantial period of time had passed

since Cochran's plea and that Cochran should have pursued redress through other means.

On August 8, 2006, the trial court overruled Cochran's motion to withdraw his plea,

reasoning:

"The Court finds that the matters Cochran raises here could have been raised on

direct appeal or in a petition for post-conviction relief. As the time for filing either has long

passed, the matters are barred by resjudicata.


4

"In addition, Cochran's claims do not have merit. As to his first allegation, Cochran

has not identified what statements he believes were obtained illegally. Further, it is unclear

whether he made any incriminating statements that, if suppressed, would have prevented

the state from proving his guilt at trial. Even if that were the case, the transcript he

attached to his motion fails to show that he invoked his right to counsel when questioned.

Also, any statements he made to the informant who visited him at the jail would not likely

be subject to suppression because of the lack of a reasonable expectation of privacy in

such circumstances.

"Likewise, Cochran's ineffective assistance claim lacks merit. Given that the

allegations that statements were obtained illegally is specious, the Court cannot conclude

that counsel['s] failure to file a motion to suppress was objectively unreasonable or that

Cochran was prejudiced thereby.

"Last, the principles enunciated in Apprendiwere not applicable in Ohio Courts until

the Ohio Supreme Court's decision in State v. Foster[, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470]. That decision limited its retroactive application to cases then pending on

direct appeal. Because Cochran's time for appeal has long since passed, the decision in

Foster is not availing to him." (Footnotes omitted).

Cochran appeals from the denial of the motion to withdraw his plea.

A motion to withdraw a plea of guilty or no contest is governed by Crim.R. 32.1,

which states: "A motion to withdraw a plea of guilty or no contest may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea."

After sentencing, a motion to withdraw a guilty plea is permitted "only in extraordinary


5

cases." State v. Smith (1977), 49 Ohio St.2d 261, 264, 361 N.E.2d 1324.

Cochran raises five assignments of error on appeal.

1. "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

ALTERNATIVE REMEDIES WERE AVAILABLE TO APPELLANT AND ERRONEOUSLY

APPLYING RES JUDICATA TO HIS ISSUES."

Cochran claims that the trial court erred in determining that a petition for post-

conviction relief or direct appeal were available to challenge the issues presented and,

thus, his motion to withdraw his plea was precluded by res judicata. He further claims that

res judicata may not be used as an automatic bar to the investigation of violations of a

defendant's constitutional rights in a criminal case.

"Under the doctrine of res judicata, a valid, final judgment rendered upon the merits

bars all subsequent actions based on any claim thatwas the subject matter of the previoi-js

action. (Internal citation omitted). The bar applies to all claims that were raised and

determined in the previous action or which could have been raised or determined." State

v. Wolford (Sept. 17, 1999), Miami App. No. 99CA10; State v. Spencer, Clark App. No.

2006-CA-42, 2007-Ohio-2140. Because petitions for post-conviction relief are separate

civil proceedings, a petition for post-conviction relief may be barred by a conviction in a

prior criminal action due to res judicata. Spencer at ¶12. In contrast, because Crim.R.

32.1 motions are filed in the same criminal proceeding as the criminal conviction, res

judicata does not apply. Id. Accordingly, the trial court erred in applying the doctrine of res

judicata as a basis for denying Cochran's Crim.R. 32.1 motion. This error is harmless,

however, given our disposition of the remaining assignments of error.

The first assignment of error is overruled.


II. "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

APPELLANT'S FIFTH AND SIXTH AMENDMENT RIGHTS WERE NOT VIOLATED BY

THE BREACH OF MIRANDA AND HIS REQUEST FOR COUNSEL BY STATEAGENTS."

III. "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

APPELLANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO

CHALLENGE THE ILLEGALLY OBTAINED STATEMENTS ELICITED FROM APPELLANT

IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS."

Next, Cochran claims that the police elicited statements from him after he had

invoked his rightto counsel, and that his attorney rendered ineffective assistance when he

failed to seek suppression of those statements.

In order to demonstrate ineffective assistance of counsel, Cochran must establish

that his counsel's represer.ation fe!l below an objective standard of reasonableness and

that he has been prejudiced by his counsel's deficient performance. Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d 373. "Reversal of a conviction for ineffective

assistance of counsel ' requires showing that counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment."'

State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d. 151, at ¶199. Moreover,

"[t]he defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S at 694; Bradley, 42 Ohio St.3d at 142.

Trial counsel is entitled to a strong presumption that his or her conduct falls within

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

7

the wide range of reasonable assistance. See Strickland, 466 U.S. at 689. Hindsight is

not permitted to distort the assessment of what was reasonable in light of counsel's

perspective at the time, and a debatable decision concerning trial strategy cannot form the

basis of a finding of ineffective assistance of counsel. Id.; State v. Parker, Montgomery

App. No. 19486, 2003-Ohio-4326, ¶13.

The record reflects that Cochran's counsel did not file a motion to suppress.

However, as noted by the trial court, Cochran has not identified any particular inculpatory

statements that were made after the alleged invocation of his right to counsel. The

transcript of his interrogation by Eggers and Estepp ends after the discussion of his

Miranda rights and whether he wished to invoke his right to counsel; it does not contain any

statements he may have made that may have been inculpatory. Moreover, we are unable

to discern from the record the eatent - if an^y-that the state's case against him would have

relied upon those alleged statements. Cochran has not provided evidence that he made

statements that affected his plea in any way. Accordingly, Cochran has not demonstrated

that he suffered any prejudice due to his counsel's failure to file a motion to suppress.

Moreover, Cochran's motion does not demonstrate that he would have prevailed on

a motion to suppress. In his motion, Cochran provided a transcript of his interrogation on

November 19, 1999, which stated, in pertinent part:

Q: "As a matter of - what we do, before we talk to you, we've got to read you your

rights, got to do that with everybody, okay. You can read and write okay? I'm gonna read

this to you. If you will follow along. Before you are asked any questions you must

understand your rights.

"1. You have the right to remain silent. Anything you say can be used against you


8

in court.

"2. You have the right to talk to a lawyer for advice before we ask you any questions

and have him with you during questioning.

"3. If you cannot afford to hire a lawyer, one will be appointed for you before any

questioning if you wish.

"4. If you decide to answer questions now without a lawyer present, you will still

have the right to stop answering at any time.

"5. You also have the right to stop answering at any time until you talk to a lawyer.

Q: "Do you understand. Underneath that it says'I have read this statement of my

Rights or I have been informed orally of my Rights and I understand what my rights are.

I'm willing to make a statement and answer questions at this time without the services of

a lawyer. I understand and know what ! am doing. No promises or threats have been

made to me. No pressure or coercion of any kind has been used against me. Do you

agree with that?

A: "Why are you guys coming to me with this though?

Q: "Well, we heard through the grapevine and through our investigation that you

may have known Tony.

A: "I've never known him personally.

Q: "But do you know of him?

A: "I've heard his name.

Q: "Okay, well that's, that's basically what we want to talk about. We're just talking

to everybody that may be able to shed some light on what happened to him. I mean you

obviously can stop talking to us any time you feel like you need to.


9

A: "Oh I mean goddamn if I stop talking to you guys, looks like something to hide

here. I just wonder should I talk to my lawyer first?

Q: "That's up to you. You know I can't advise either way on that.

A: "Well I don't know, I think I should talk to my lawyer first. I'll tell you now, all I

know is I've heard his name - that's about it. Never seen the guy don't know anything

about him.

Q: "If you saw the man, you wouldn't even know who he is?

A: "No.

Q: "Why would - how about Darryl McDargh, you know Darryl McDargh?

A: "Yes, I do.

Q: "Because Darryl McDargh seemed to know him pretty well.

A.n. e u iu :

Q: "Yeah. But anyway, before we can go any further I need you to sign that if you

want. If you want to talk to us. We just have some things we need to clear up, that's it.

A: "So am I under investigation for any of this?

Q: "We simply heard that you were a friend of Darryl McDargh's and we're looking

at Darryl McDargh for some things and we wanted to find out if you knew Tony. We've

been pulling in people the last three or four days, talking to everybody.

A: "Well (inaudible).

Q: "I mean like I said, any time you want to quit talking you just say so and we'll

stop, all right.

A: "What is the date today?

Q: "Nineteenth. Just because you're in jail - you're free to go anytime you want,


10

okay.

A: "Okay.

Q: "You're obviously free to go back over there.

A: "I am, really.

Q:

Based upon this evidence, we agree with the trial court that the transcript fails to

demonstrate that Cochran invoked his right to counsel. As we stated in State v. Myers,

Darke App. No. 1643, 2006-Ohio-1604, " [w]hether a suspect has invoked his right to

counsel is an objective inquiry. [Edwards v. Arizona ( 1981), 451 U.S. 477, 484-85, 101

S.Ct. 1880, 68 L.Ed.2d 378; United States v. Davis (1994), 512 U.S. 452, 458, 114 S.Ct.

2350, 129 L.Ed.2d 362]. A request for an attorney must be clear and unambiguous such

ttiat a reasonable police officer in the circumstances would understand the statement to

be an invocation of the right to counsel. Davis, 512 U.S. at 459; see State v. Murphy, 91

Ohio St.3d 516, 520, 2000-Ohio-112, 747 N.E.2d 765. The Supreme Court of Ohio has

held that the statement 'I think I need a lawyer' was not an unequivocal assertion of the

rightto counsel. State v. Henness ( 1997), 79 Ohio St.3d 53, 63, 679 N.E.2d 686. 'Don't

I supposed to have a lawyer present' has also been found to be ambiguous. State v.

Brown, 100 Ohio St.3d 51, 56, 2003-Ohio-5059, 796 N.E.2d 506. 'If a suspect's statement

is not an unambiguous or unequivocal request for counsel, the officers have no obligation

to stop questioning him.' Davis, 512 U.S. at 461-62; Brown, 100 Ohio St.3d at 56, 796

N.E.2d 506. Moreover, the officers have no obligation to ask clarifying questions to

ascertain if the suspect is attempting to invoke his right to counsel. Davis, supra." Myers

at ¶66.


11

Neither of Cochran's references to a lawyer -"I just wonder should I talk to my

lawyer first" and "I think I should talk to my lawyer first" - constituted an unambiguous

request for counsel, particularly when read in context. Accordingly, Cochran's evidence

does not demonstrate that the officers' continued interrogation of him was in violation of

his Fifth Amendment rights.

Cochran further argues that the state circumvented his invocation of his right to

counsel when it recorded a conversation between Cochran and Rebecca McDargh at the

Fourth Floor Visitation Area of the Clark County Jail. According to Rapp's report, McDargh

had contacted the sheriff's department and informed officers that she would like to talk with

Cochran about the murder and provide them with information. Officers placed video and

audio surveillance equipment at the attorney booth of the visitors area and recorded the

conversation between McDargh and Cochran. As with his police interrogation, this

conversation occurred on November 19, 1999.

Cochran asserts that his conversation with Rebecca McDargh violated Edwards,

which requires the police or their agents to cease their interrogation after the invocation of

the right to counsel. "[A]n accused, *** having expressed his desire to deal with the police

only through counsel, [may not be] subject to further interrogation by the authorities until

counsel has been made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-

85. However, even assuming that McDargh was acting as an agent of the state, Cochran

has not presented a basis under Edwards to suppress statements made during his

conversation with McDargh as he had not previously invoked his right to counsel.

Furthermore, the record does not disclose what, if anything, Cochran said to McDargh that


12

may have been inculpatory. Accordingly, Cochran has not demonstrated that his counsel

was ineffective in failing to move to suppress those statements.

Cochran's second and third assignments of error are overruled.

IV. "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT

RELIEF ON HIS BLAKELY/APPREND! ISSUE WHEN IT WAS PROPERLY PRESENTED

IN A DIRECT ATTACK."

In his fourth assignment of error, Cochran claims thatthe trial courterred in refusing

to vacate his sentence, which was based on an unconstitutional sentencing scheme in light

of Blakely and Foster.

In Blakely, the United States Supreme Court held that "the maximum sentence a

judge may impose is one based solely on the facts reflected in a jury verdict or admitted

by the defendant." Following Blal;ely, the Supreme Court of Ohio held in Foster that

certain portions of the Ohio sentencing statute, including R.C. 2929.14(B) and (C), are

unconstitutional because they require judicial fact-finding. "Foster requires that any pre-

Fostersentence to which the statutorily required findings of fact applied (i.e., nonminimum,

maximum and consecutive sentences), which was pending on direct appeal atthetimethat

Fosterwas decided, must be reversed and remanded for resentencing." State v. Deloach,

Montgomery App. No. 21422, 2006-Ohio-6303, ¶22.

We have consistently held that Foster does not apply retroactively to those cases

which were neither on direct appeal nor still pending in the trial court when Foster was

decided on February 27, 2006. E.g., State v. Dunn, Montgomery App. No. 21553, 2007-

Ohio-1666. The United States Supreme Court also limited Blakelys holding to cases

already on direct appeal or pending before a trial court. United States v. Booker (2005),


13

543 U.S. 220, 125 S. Ct. 738, 160 L.Ed.2d 621; see State v. McHale, Montgomery App.

No. 21198, 2006-Ohio-4159, ¶4.

Because Cochran's plea and sentencing hearing was held on February 14, 2000,

and the court entered a final judgment on February 24, 2000, his case was neither on

direct appeal nor pending in the trial court when Blakely and Foster were decided.

Consequently, those holdings are inapplicable to this case. The trial court did not err when

it denied his motion to withdraw his plea or modify his sentence.

The fourth assignment of error is overruled.

V. "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN FINDING THAT APPELLANT FAILED TO DEMONSTRATE THAT A

MANIFEST INJUSTICE EXISTS IN THIS CASE."

in his final assignment of error, Cochran claims that the trial court abused its

discretion when it determined that Cochran had failed to demonstrate that a manifest

injustice exists. "A manifest injustice comprehends a fundamental flaw in the path of

justice so extraordinary that the defendant could not have sought redress from the resulting

prejudice through another form of application reasonably available to him or her." State

v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499. "Matters outside the record that

allegedly corrupted the defendant's choice to enter a plea of guilty or no contest so as to

render the plea less than knowing and voluntary are proper grounds for an R.C. 2953.21

petition for post-conviction relief. *** [T]he availability of R.C. 2953.21 relief on those same

grounds removes them from the form of extraordinary circumstances demonstrating a

manifest injustice which is required for Crim.R. 32.1 relief." Id.; State v. Youngblood,

Montgomery App. No. 21078, 2006-Ohio-4390, ¶6.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRJCT

14

As stated above, Cochran has not presented evidence that his counsel rendered

ineffective assistance or that he was convicted of offenses far more severe than he actually

committed. Moreover, although the trial court made findings under R.C. 2929.14(B) and

(C), Cochran received the sentence that he and the state had presented to the trial court

as a negotiated agreed sentence. Accordingly, Cochran did not suffer a manifest injustice

in his sentencing. See State v. Grier, Greene App. No. 2006-CA-61, 2007-Ohio-2597.

Finally, we see no reason why Cochran could not have raised his counsel's alleged

ineffectiveness in a timely petition for post-conviction relief.

The fifth assignment of error is overruled.

The judgment of the trial court will be affirmed.

GRADY, J. and GLASSER, J., concur.

(Hon. George M. Glasser retired from the Sixth District Court of Appeals sifting byassignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

William H. LambDaryl CochranHon. Richard J. O'Neill


cons t'tu i ional ou=ctigi^i interes ' ai'a') invol4f=-s t ... daryl cochran...

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