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IL Standard for review 26(B)

Appellate Rule 26 (B) presents a two stage procedure. The first stage involves a threshold

showing for obtaining permission to file new appellate briefs. It is not until Appellant obtains

permission to file a new appellate brief, in the first stage , that he must establih that prejudicial errors

were made in the trial court and that ineffective assistance of appellate counsel in the prior appeals

procedure prevented these errors from being presented effectively to this Court. State v. Murnahan,

(1992) 63 Ohio St. 3d 60, at 66. Only in the second stage must appellant prove that there exists a

reasonable probability that without Appellate Counsel deficiencies the result of appellant appeal would

have been different. iVlurnahan 63 Ohio St. 3d at 66; State v. Miller, NO 97APA07-879 at page 2.

IIL SStandard for ineffective assistance of counsel

Reversal of convictions on ineffective assistance requires the defendant to show'first that

counsel's performance was deficient and, second that the deficient performance prejudiced the defense

so as to deprive the defendant of a fair appellate review."' State v. Cassano, 96 Ohio St. 3d 94, 2002

Ohio 3751, at ¶ 105, 772 N.E.2d 81, quoting Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct.

2052, 80 L. Ed. 2d 674 (1984). When considering a claim of ineffective assistance of counsel, the court

"must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance." Stricklaiid, 466 U.S. at 689. A tactical decision by counsel, who as a licensed

attorney is presumed to be competent, is not by itself enough to show ineffective assistance of counsel

simply because the strategy did not result in an acquittal. State v. Clayton, 62 Ohio St.2d 45, 48-49, 402

N.E.2d 1189 (1980); State v. Timm, 3d Dist. No. 13-11-23, 2012 Ohio 410,T 31.

IV. Assignments of Error not considered due to appellate counsel deficient Representation

(A)The trial court erred and abused its discretion in denying Berry's motion to dismiss and/orsuppress as statements obtained from Berry on April 15" 2011 were obtained in violation ofBerry's Fifth Amendment right against self-incrimination.

(B)The trial court erred and abused its discretion in denyixag Berry's motion to dismiss and/orsuppress as statements obtained from Berry on April 15t" 2011 were obtained in violation ofBerry's Sixth Amendment right to counsel.

Appellant will argue both assignments of error A and B together since both error allege that the

motion to th suppress appellant's April 15" 2011 statement should have been excluded. 'I'he issue

which appellant's appellate counsel failed to raise are a mirror image of the same issues this court was

faced with in State v. Baker, 2013 Ohio App. Lexis 1621. a case which this court reversed and

remanded.

When viewing the facts surrounding appellant's statement and the law governing the events it is

clear that the court erred. When viewing the record, there are a number of undisputed factors. Appellant

invoked his right to counsel during custodial interrogation on Feb. 25"' 2011. Appellant retained

counsel and exercised his right to counsel on Feb. 26'`' 2011. ( Exhibit A p.9 and 15). The investigating

officers contacted appellant counsel on March 15'h 20 11 to bring the appellant in for a line up and

further questioning (Exhibit A p.16 and 17).Appellant was indicted on April 131" 2011 (Exhibit C)

Appellant was arrested on April 14`fi 2011 by the U.S. Marshals whom advised the appellant of his

Miranda rights prior to signing a waiver of extradition at which time appellant invoked his right to

counsel. On the mrning of April 15i'' 2011 appellant was placed in custodial interrogation by the

classification officer whom failed to advise the appellant of his Miranda Rights prior to or after

questioning(Exhibit A p.5and 6). The Court,the state, and appellants trial counsel agreed that this was

a clear violation of appellants Miranda right and therefore ruled the April 15"' 2011 state inadmissible

(Exhibit A p.5 and 6). With information obtained from this violation of appellants constitutional right

the state agent contacted her supervisor(Exhibit A p.39) who it is believed but unclear from the record

took it upon himself to initiated contact with the sheriffs office(Exhibit A p.28 ,41 and 44). The state

gents whom continued the interrogation of appellant following the violation of appellant constitutional

right clearly admit that they are unaware of whom contacted them concerning questioning the appellant

(Exhibit A p.43). The state agents all agree that it was the state whom arranged for the appellant to be

transferred from the county jail to the county sheriff station for custodial interrogation (Exhibit Ap.45). It is clear from the recored that appellant was not made aware of the state plans to place him into

custodial interrogation (Exhibit A p.39 and 45). The state agents whom interrogated the appellant on

the moming of April 15"' 2011 were all aware of the appellant prior invocations and retainment of

counsel(Exhibit A p.48). Appellant was not brought before the court in accordance with R.C. 2935.14

and appointed counsel. Appellant was held against his will under arrest and in the custody of the state

away from the court on the morning of April 15th 2011 where he would have been appointed counsel

as guaranteed by the Sixth Amendment of the U.S. Constitution. The state in control of the appellants

movement placed the appellant in a position to benefit the state by creating a opportunity to confront

the appellant without counsel present. The state actions withholding the appellant from the court and

appointment of counsel were unethical, illegal and circumventing. There is no logical nor legal

explanation for the state withholding the appellant from the court on the morning of April 15th 2011

other than to deny him the opportunity to obtain counsel before being placed in pre-trial negotiations asthe indicted defendant. The court placed the burden of proof on the state to prove that appellant

constitutional right were not violated (Exhibit A p.19) which was clearly not meet.

Now when applying the law to these undisputed facts of the record, once the appellant invoked

his right to counsel on Feb. 25=i' 2011, Feb.261'' 2011, March 15"' 2011 April 131" 2011, April 14t' 2011

and April 15`h 2011 and April 19" 2011 a valid waiver of that right cannot be established by showing

only that the appellant responded to further police initiated custodial interrogation even if he has been

advised of his rights. Edwards v. Arizona 451, U.S. 477, additional safeguards are necessary when the

accused request counsel. The state and trial court both agreed that the appellant Miranda right was

violated by the classification officer on the morning of Apri115`'' 2011. The record clearly shows that

the statement in question was a continuation of the same illegal interrogation which was ruled

inadmissible(Exhibit A p.5 and 15).

Under the exclusionary rule, evidence obtained in violation of the fourth fifth or sixth

amendments may not be introduced at trial to prove a defendants guilt. The April 15"' 2011 statement to

the sheriffs was derivative evidence. When a court improperly admit evidence in violation of the

exclusionary rule a reversal in required. Appellant Sixth amendment right to counsel attached on April

13" 2011 once appellant was indicted. McNeil v. Wisconsin,501 U.S. 171 affording him the right to

counsel at all critical stages of the prosecution. Criminal Rule 44 states in serious offense cases a

waiver of the right to counsel shall be in open court, recorded and in writing none of which were

followed by the state on April 15"' 2011. Once appellant invoked his right to counsel to the U.S.

Marshals on April 14"' and the classification officer on April 15"' 2011 Arizona v. Roberson 486 U.S.

675 states a voluntary Miranda waiver is not sufficient at the time of subsequent request example, the

attempt by the sheriffs officers. The implicit assumption, of course , is that subsequent request pose a

greater risk of coercion. The increased risk resulted not only from the state agents persistence in trying

to get the appellant to waive his right but also from the continued pressure that began to build once the

appellant was taken into custody as the accused. In Brewer v. Williams 430 U.S. 387 as in Messiah v.

U.S. 337 U.S. 201 the Sixth Amendment right to counsel accrued, the court held that a valid wavier of

counsel should not be inferred from the mere response by the accused to overt or more subtle forms of

interrogations or other efforts to elicit incriminating information. As in appellant case the overt actions

of the state agents from the time of custody shows that the appellant responded to the state approach

with the impression of routine questioning from the classification oxficer which was actually a subtle

form of custodial interrogation designed to obtain incrimination information from the appellant to assist

that prosecution in their efforts to convict the defendant (Exhibit A p.34 and 41). The state

circumventing effort to have the appellant transferred .frorn the county jait to the sheriff station(

Exhibit A p.45) without his knowledge was a clear effort to elicit incriminating information, as the

appellant was already indicted as the accused. In Messiah and Brewer counsel had been engaged and

the statements in question were elicited in the absence of counsel as in appellant's case. McLeod v.

Ohio,381 U.S.356 the Supreme Court reversed a decision that the police could elicit information after

indictment even though counsel had not yet been appointed. In appellant's case it is clear that the state

agents were over reaching their legal obligation not to act in a way that dilutes the appellant's choice to

speak to the state only through counsel. It is also clear from the record that the appellant "hitnselir' didnot initiate contact with the state agents.

Now when viewing the finding of fact and conclusions of law by the trial court it is clear from

the record that the trial court acknowledge the significant of the time span between invocations

(Exhibit A p.54) yet failed to apply the law to them. Maryland v. Shatzer 559 U.S. 98 held that there

must be a 14 day break in custody before renewed interrogation is lawful. "rhe evidence showed that

the appellant waiver of his right was a product of the appellants response to the state agent initiated

custodial interrogation, example the unwarned custodial interrogation of the classification officer and

the involuntary placement of the appellant in custodial interrogation before the sheriffs. In State v.

Knuekles,65 Ohio St. 3d 494 the Ohio Supreme Court determined that a statement that the officer only

wanted to question the defendant concerning a third party was still interrogation because it invited a

response. In Knuckles the court reversed the lower court holding that by making a statement about

wanting to know about a third party, the police were continuing interrogation after the right to counsel

had been invoked. The court then set forth a bright line rule for interrogations after the right to counsel

has been invoked. Did the appellant invoke his right to counsel yes. Did the appellant sixth amendment

right to counsel attach yes. Did the defendant initiate further discussion with the state agents No. Was

there a 14 day break in custody follow each of the appellant's invocations no. Appellant's appellate

counsel failed to raise these issues was unreasonable. If appellant's appellate counsel had argued that

the court committed reversible error by failing to suppress the appellant's April l 5"' 2011 statement in

its entirety, the outcome of appellant's trial and appeal would have been different.

(C)The Trial court committed reversible error by denying the appellant motion for funds to hire

a forensic Analyst.

There exist a strong possibility that had the court granted the appellant the funds needed to hire

a forensic analyst the outcome of appellant's trial and appeal would have been different. When viewing

the facts surrounding appellants case the record shows, there was a substantial amount of forensic

evidence introduced to the jury by the state both physical and testimonial. The state offered 71

exhibits(Exhibit B p.4 and 5) into evidence and was allowed funding to hirer 8 forensic analyst to both

prepare and present their case(Exhibit B p.2 and 3)On June 6th 2011 appellant trial counsel mad e

preliminary showing that there was a substantial reliance on forensic evidence in both the preparation

of appellants defense as well as trial. The trial court denied the appellant's motion without a

hearing(Exhibit D p.4)Three day later the state subpoenaed 6 forensic analyst to give testimony against

the appellant(Exhibit D p.4). During appellants trial the defense counsel argued that foarensic showed

that the crime of Aggravated Murder could not have been committed by one person as the logistics and

physical evidence made it vertically impossible. The state was allowed to offer testimony from expert

Edward Biederstedt to refute this claim made by the defense. Edward Biederstedt gave his expert

opinion yet the defense was without the needed funds to hire a expert to refute the state experts claims.

During appellant trial the defense argued that Sidney Berry was present at the crime scene and the

collected evidence from the crime scene would prove he was present. The Court denied the appellant

the funds needed to hire a forensic analyst to compare the biological evidence that was collected from

the victim body as well as from the crime scene. The state acknowledged the evidence as potential

DNA yet failed to compare the evidence (T.T. p.410) and the court refused to grant the funds to the

defense which were needed to compare the evidence. The state was allowed to offer testimony from

forensic analyst Kevin Horan an expert in the field of cell phone data tracking. The expert advised the

jury that Sidney berry cell phone was used in the Pontiac Michigan area hours before the death of

Kerry Christopher. The state furthered the theory that Sidney could not have been present. The defense

argued that the fact that Sidney cell phone was in Michigan did not exclude Sidney from being present

at the crime scene, the defense was denied the funds need to hirer a expert to refute the state expert

theory of time travel and possibility of Sidney actually being able to be present at the crime scene. The

state was allowed to call several BCI forensic experts to give testimony regarding items they tested and

the resolutes of their testing yet the appellant defense was denied the funding needed to have viable

evidence tested. The state failed to compare DNA evidence(T.T.p.410) failed to test print

comparisorzs(T.T.p.397) and allowed creditable evidence to be left unidentified. `I'he defense was

denied the bare essential needed to prepare a viable defense.

Now when applying the law to the facts of Berry case it is clear that a reversal is both warranted

and proper. State v. Torres,174 Ohio App. 3D 168 held"though the court had authorized payment of

fees to experts and investigator, it denied or cut back on payment apparently based on the fact counsel

were acting pro bono. Reversed. Also It was arbitrary and unreasonable for the court to make these

determinations without conducting a hearing". The court failed to hold a hearing in the appellant's case,

the court also failed to provided a factual basis for denying the appellant's motion for funds to hire a

forensic analyst. In State v. Mason, 82 Ohio St. 3d 144 the Ohio Supreme Court held Due process by

the fifth and fourteenth amendments to the U.S. Constitution and section 16 Article I of the Ohio

Constitution,requires that an indigent criminal defendant be provided funds to obtain expert assistance

at the state expense. The Supreme Court of the U.S. Addressed the issue in Ake v. Oklahoma,470 U.S.

68 holding "When a defendant has made a preliminary showing that his sanity at the time of the offense

is likely to be a significant factor at trial, the state is required to afford the access to a psychiatrist

assistance if the defendant cannot other afford such assistance in the preparation of his defense".

Once the appellant's counsel made a preliminary showing(Exhibit E) that forensic evidence would be a

significant factor at trial and the preparation of his defense the court was obligated to hold a hearing to

determine the amount needed as well as grant the funds needed. Without the aid of forensic analyst or

expert testimony the appellant's was placed in a unfair disadvantage in preparation of his defense as he

was unable to present direct foreiisic evidence of his innocence as well as expert testimony to refute the

state state experts conclusions which were not supported by the evidence and was entirely opinion

based. Had appellant's appellate counsel raised this issue on the appellant's direct appeal the outcome

of appellant's appeal would have been different as it was reversible error for the court not to grant the

appellant the highly needed funds to prepare a meaningful defense.

(D) The state failed to allege venue in counts 2 through 8 of petitioners indictment.

The Ohio Constitution, Article I, Section 10 establishes a defendant's right to "a speedy public

trial by an impartial jury of the county in which the offense is alleged to have been committed."

According to the Ohio Supreme Court, "Section 10, Article I of the Ohio Constitution fixes venue, or

the proper place to try a criminal matter ***." State v. Hampton, 134 Ohio St.3d 447, 2012 Ohio

5688, ¶ 19, 983 N.E.2d 324, citing State v. Headley, 6 Ohio St.3d 475, 477, 6 Ohio B. 526, 453

N.E.2d 716(1983). Establishing the correct venue is ianpe9rative in or.der to "give ihe defendant the

right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit the

state from indiscriminately seeking a favorable location for trial or selecting a site that might be an

inconvenience or disadvantage for the defendant." State v. Meridy, Clermont App. No. CA2003-11-091, 2005 Ohio 241., ¶ 12. (Emphasis in original.)

The standard to establish venue is whether appellant has a "significant nexus" with the county

stated in the indictment, as determined by whether one or more of the elements of an offense

occurred in the county in which the charge is brought. State v. Stone, 12th Dist. No. CA2007-11-132, 2008 Ohio 5671, ¶ 16. For that reason, and pursuant to R.C. 2901.12(A), "the trial of a

criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the

territory of which the offense or any eiement of the offense was committed."

While venue is not a material element of any offense charged, the state must nonetheless prove

beyond a reasonable doubt that the crime charged was committed in the county where the indictment

was retu:rned and the trial held, unless the issue of venue is waived by the defendant. Meridy at ^ 12. As

stated by the Ohio Supreme Court, "a conviction may not be had in a criminal case where the proof

fails to show that the crime alleged in the indictment occurred in the county where the indictment was

returned." Hampton at T, 19.

Appellant's indictment does not meet the basic form requirements for a valid indictment as

required by R.C.2941.06. Counts Two through Eight of the indictment does not state venue(Exhibit

C) depriving the appellant of his right to be informed of the facts needed to establish a defense. The

counts also fail to establish jurisdiction. The appellant raised the issue under Criminal Rule

29(T.Tp.771) and was overruled by the court. The State eventually moved for and was granted leave to

amend Counts Seven and Eight to include venue after trial.

Sufficiency of indictment. Rule 7(c)(1) of the federal rules of criminal procedure requires that

an indictment be plain, concise and definite written in statement of the essential facts constituting the

offense charged, An indictment need only contain those facts and elements of the alleged offense to

inform the accused of the charge so that he or she may prepare a defense in the present case and invoke

the Double Jeopardy Clause in future prosecutions based on the same conduct. An indictment is not

sufficient if it fails to state a material element of the offense. In determining whether a indictment

sufficiently informs the defendant of the offense charged, courts give the indictment a common sense

construction and generally will uphold an indictment even if it contains a technical error or omission.

The defendant may move to require the government to supplement a incomplete indictment with a bill

of particulars that more fully discloses the nature of the charges against the defendant . A bill of

particulars, however will not cure an indictment that omits an essential element of the offense. The

petitioner indictment was severed due to the charges allege in the being unrelated. The venue at the

appellant trial was a issue due to the charges involving three different states and four different cities.

The appellant appeal counsel was advised by both the appellant and the appellant trial counsel prior to

the filing of appellant direct appeal of this issue yet appellant counsel failed to raise the claim as

advised. The appellant was prejudiced by his counsel failure to raise this claim as there is a probability

that the outcome of appellant's appeal would have been different.

(E) Appellant was egregiously victimized by the ineffective assistance of his counsel when he

failed to raise on appeal the various meritorious issues indicated in this application for reopening.

Appellant's appellate counsel was contacted by the appellant on January 19th 2012. Appellant

advised the appellate counsel of the issues appellant wanted to raise on appeal(Exhibit Fp.1))Appellate

counsel advised appellant that he would raised the issues as well as any other issues he found that were

supported by the record. On January 24th 2012 the appellant retained counsel services to file appellants

brief with the Third District court of appeals(Exhibit F p. 2 and 3)Appeilant advised appellate counsel

that prior to the filing of appellant's brief the appellant wanted to know which other issues would be

raised as well as the option to view the brief itself prior to being filed on appellants behalf The

appellate counsel did not have any contact with appellant Donny Berry at all prior to filing the

appellants brief (Exhibit F p.4 and 5)Appellate counsel contacted the appellant after filing the

appellant's brief leaving the appellant with no option but to file this application for reopening of his

direct appeal. The appellate counsel not only failed to raise viable issues on appellant's appeal but also

failed to properly present all the assignments of error in appellant's brief which was noted by this

court. Appellate counsel also failed to accurately present the facts of the case. In his argument the

appellate counsel state that John Reed was the victim brother whom had a motive to want the victim

killed. No where in the record does the facts support a finding that the victim and John Reed was

brothers. Further the appellate counsel attempted to justify his ineffectiveness by stating that the Third

District Court of Appeals rather rushed him to file something (Exhibit F p.4)Appellate counsel had a

ample amount of time to prepare a present the viable issues of appellants appeal. Appellant's trial

counsel as well as the appellant himself advised the appellate counsel and trial court of the issues

appellant intended to present to the appellate court long before the appellate counsel filed the

appellant's brief(Exhibit F p.1) appellate counsel failure to raise these issues were unreasonable,

clearly the issues were substantial in determining not only the outcome appellant's direct appeal but his

trial as well. Mr. Berry claims have all meet the procedural reqtairernents needed to become appealable

issues of merit, there remains the possibility that had these issues been raised on the appellant's direct

appeal the outcome would have been different.

Conclusion

Criminal Rule 12 governs pretrial motions. It is intended to resolve issues at the earliest

opportunity. Failure to assert certain issues by the pretrial motion constitutes a wavier of the issue.

Criminal Rule 47 specifies the contents of the motions requiring that motions other than those made

during trial be in writing unless the court peamits and oral motion. Mr. Berry motions addressed in this

application all allowed the trial court the opportunity to decide directly the issues raised by the motions

Now that the trial court have been able to decide the issues, the appellant has a right to appeal the

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DbC 2 7 2013

CLERK OF COURTSUPREME COURT OF OHIO

IN TH COURT OF APPEALS OF OHIOTHIRD APPELLATE DISTRICT

DEFIANCE COUNTY

STATE OF OtIIO,

IN COU^ a.: 'l" ( F t..aPF'E^kL.SPLAINTIFF-APPELLEI{+ ^ R CASE NO. 4-12-03E^^^,

y;^f <1 ^, OHIO

V.N' 0 Y 2 t`i 20 13

DOl`INYL.BERRY, JUDGMENT^^ ENTRY

DEFENDANT-APPELLAN ^^Ear^

` This cause comes before the Court on Appellant's application for reopening

direct appeal pursuant to App.R. 26(B).

Upon consideration the Court finds that the additional issues raised in

Appellant's application. fail to show any genuine issue as to whether he was

deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5). State

v. Reed (1996), 74 Ohio St.3d. 534, applying the analysis of Strickland v.

Washington (1984), 466 U.S. 668. See, also, State v. Bradley (1989), 42 Ohio

St.3d 136.

Appellate counsel raised three assignments of error challenging the

sufficiency of the evidence, alleging the verdicts were against the manifest weight

of the evidence, and ineffective assistance of trial counsel. The five additional

assignments of error set forth herein are either lack legal support or otherwise

related to the issues previously raised and addressed. Appellate counsel could

Case No. 4-12-03

reasonably have decided as a matter of tactic not to bury lus broader and better

arguments "in a verbal mound made up of strong and weak contentions." See

State v. Campbell, 69 Ohio St.3d 38, 53, 1994-Ohio-492, citing Jones v. Bczrnes,

463 U.S. 745, 103 S,Ct. 3308, 77 L.Ed.2d 987 ( 1983). Accordingly, the

applieation is not well taken.

It is therefore ORDERED that Appellant's application for reopening direct

appeal be, and the same hereby is, DENIED at the costs of the Appellant for

which judgment is hereby rendered.

DATED: NOVEMBER 22, 2013

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