Petition for Writ of Certiorari — Dennis Riley, Petitioner v. Ohio

A-1

APPENDIX A

THE SUPREME COURT OF OHIO

State of Ohio

:

Case No. 2017-1481

v.

:

ENTRY

Dennis Riley

:

Filed 03/14/2018

Upon consideration of the jurisdictional

memoranda filed in this case, the court declines to

accept jurisdiction of the appeal pursuant to

S.Ct.Prac.R. 7.08(B)(4).

(Washington County Court of Appeals;

No. 16CA000029)

/s/ Maureen O’Connor

Chief Justice

The Official Case Announcement can be found at

http://www.supremecourt.ohio.gov/ROD/docs/

A-2

APPENDIX B

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

WASHINGTON COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

:

:

Case No. 16CA29

vs.

:

Filed 09/05/2017

DENNIS RILEY,

:

ENTRY ON APPLICACATION FOR

RECONSIDERATION

Defendant-Appellant.

:

Appellant Dennis Riley filed an application that

requests this court to reconsider its June 27, 2017

decision and judgment that affirmed the trial court’s

judgment denying appellant’s “motion to dismiss.”

State v. Riley, 4th Dist. Washington No. 16CA29, 2017Ohio-5819. Appellant’s application presents three

“issues of error” for reconsideration:

FIRST ISSUE:

“THE APPELLATE COURT ERRED IN

DECLARING THAT UNITED STATES

V. RUIZ, [526 U.S. 622, 628, AND 633,

122 S.CT. 2450, 153 L.ED.2D 586 (2002)],

WAS DISPOSITIVE TO THE RILEY

A-3

CASE.”

SECOND ISSUE:

“THE APPELLATE COURT ERRED BY

OVERLOOKING THE CONTEXT OF

THE MISBEHAVIOR BY THE ONLY

L A W

E N F O R C E M E N T

OFFICER/WITNESS IN THE CASE.”

THIRD ISSUE:

“THE APPELLATE COURT ERRED IN

SUBSTITUTING ITS JUDGMENT FOR

THAT OF APPELLANT’S EXPERT.”

An appellate court ordinarily will not grant an

App.R. 26(A) application for reconsideration unless the

application calls to the court’s attention “an obvious

error in its decision, or raises an issue for

consideration that was either not considered at all or

was not fully considered by the court when it should

have been.” Columbus v. Hodge, 37 Ohio App.3d 68,

523 N.E.2d 515 (10th Dist. 1987), paragraph one of the

syllabus. Accord State v. Wong, 97 Ohio App.3d 244,

246, 646 N.E.2d 538 (4th Dist. 1994). “‘An application

for reconsideration is not designed for use in instances

where a party simply disagrees with the conclusions

reached and the logic used by an appellate court.’”

Columbus v. Dials, 10th Dist. No. 04AP-1099, 2006Ohio-227, ¶3, quoting State v. Owens, 112 Ohio App.3d

334, 336, 678 N.E.2d 956 (11th dist. 1996). Accord

Hampton v. Ahmed, 7th Dist. No. 02BE66, 2005-Ohio-

A-4

1766, ¶16 (“An application for reconsideration may not

be filed simply on the basis that a party disagrees with

the prior appellate court decision.”). Instead, the

purpose of App.R. 26 is to “prevent miscarriages of

justice that could arise when an appellate court makes

an obvious error or renders an unsupportable decision

under the law.” Owens, 112 Ohio App.3d at 336. As

we explain below, we do not believe that appellant’s

suggested errors constitute obvious errors in our

decision, or raise issues for consideration that we did

not consider at all, or that we should have considered.

Appellant first maintains that we incorrectly

concluded that Ruiz means that the state did not have

a duty to disclose evidence pertaining to the

investigating officer’s communications and

relationship with the victim. Appellant argues that

Ruiz is factually distinguishable and, thus, does not

apply to the facts in the case sub judice. While we

recognize the factual distinctions between Ruiz and

appellant’s case, we do not find it obvious that Ruiz is

limited to its facts. The Ruiz decision gives no

indication that it is limited to its facts. Moreover, the

Ohio Supreme Court has not indicated in any of its

decisions that Ruiz is limited to its facts. Thus, we

find no obvious error in our decision to apply Ruiz to

appellant’s case.

Appellant further asserts that we “erred by

overlooking the context of the (investigating officer’s)

misbehavior.” Appellant argues that defense counsel

“would have used the existence of the investigations

[sic] extremely effectively at trial to destroy the

A-5

credibility of the officer.” Even if true, appellant chose

to forego his right to a jury trial, which included his

right to confront witnesses against him, and enter a

guilty plea. Moreover, Ruiz indicates that the state

did not have a pre-guilty plea duty to disclose the

information concerning the officer’s conduct. Our

decision thus did not need to reach the issue appellant

claims that we overlooked. Instead, we presumed, for

the sake of argument, that the information concerning

the officer constitutes material impeachment

information. Id. at ¶30.

Appellant next claims that we obviously erred

by “substituting [our] judgment for that of [his]

expert.” Appellant asserts that we “bless[ed] the texts

as benign” and made a “subtle attack on his expert” by

referring to the expert as a “‘self-proclaimed’ expert.”

We, however, do not find any obvious error in our

discussion concerning appellant’s expert. First, we

have been unable to locate the phrase “self-proclaimed”

in our decision. Our recitation of the facts states that

appellant’s expert is “a self-described ‘expert in the

area of police procedures.’” Id. at ¶11. We do not

dispute that appellant submitted the witness’s

Curriculum Vitae to the trial court and that it

indicates that the witness has “been practicing as an

expert witness/consultant since 2001" and has

“provided expert testimony on approximately 187

occasions.” The Curriculum Vitae further recites that

the witness’s “expertise is in the area of use of force

but [he has] provided testimony in the areas of proper

investigative procedures and police supervision.”

While we do not dispute the witness’ experience,

A-6

education, and accolades, it is not clear that the trial

court in the case sub judice qualified the witness as an

expert in all police procedures. Thus, our decision did

not seek to “denigrate[]” the witness, as appellant

claims. Rather, our decision reflects the ambiguity

relating to whether the trial court qualified appellant’s

witness as an expert in certain police procedures.

Accordingly, based upon the foregoing reasons,

we hereby deny appellant’s application to reconsider.

Harsha, J. & Hoover, J.: Concur

FOR THE COURT,

/S/ Peter B. Abele, Judge

A-7

APPENDIX C

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

WASHINGTON COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

vs.

DENNIS RILEY,

Defendant-Appellant.

:

:

Case No. 16CA29

:

Filed 06/27/2017

: DECISION AND

JUDGMENT ENTRY

:

APPEARANCES:

William L. Burton, Marietta, Ohio, and George J.

Cosenza, Parkersburg, West Virginia, for appellant.

Kevin A. Rings, Washington County Prosecuting

Attorney, and Jeremy B. Wolfe, Washington County

Assistant Prosecuting Attorney, Marietta, Ohio, for

appellee.

CRIMINAL APPEAL FROM COMMON PLEAS

COURT

DATE JOURNALIZED:

ABELE, J.

A-8

This is an appeal from a Washington County

Common Pleas Court judgment that denied a “motion

to dismiss” filed by Dennis Riley, defendant below and

appellant herein. Appellant assigns the following

errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN

APPROVING THE BEHAVIOR OF THE

POLICE OFFICER IN THE CASE.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN

FINDING THE RELATIONSHIP

CREATED BY ELLENWOOD WITH

THE MINOR VICTIM AND OTHER

BEHAVIOR BY ELLENWOOD

CREATED EVIDENCE THAT WAS “. .

.MARGINALLY, IF AT ALL,

IMPEACHABLE.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY

REFUSING TO FIND THAT THE

BEHAVIOR OF THE OFFICER AND

THE MINOR VICTIM WAS RELEVANT

AND MATERIAL AND, THUS

DISCOVERABLE.”

A-9

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN

FAILING TO ISSUE A RULING

SUPPRESSING/ADDRESSING

DEFENDANT’S CONVERSATION

WITH COUNSEL.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY

USING EVIDENCE IN ITS DECISION

UNKNOWN TO THE DEFENSE AND,

APPARENTLY, GARNERED FROM

THE TRIAL COURT’S IN-CAMERA

INSPECTION

OF

NONDISCOVERABLE EVIDENCE.”

SIXTH ASSIGNMENT OF ERROR:1

“THE TRIAL COURT ERRED BY A

PERSONAL ATTACK ON COUNSELS’

POSITION, DESPITE THE FACT THAT

THE POSITION WAS BASED UPON

THE UNCONTROVERTED OPINION

OF DOCTOR MICHAEL D. LYMAN.”

1

Appellant designates his last two assignments of error as “6A” and

“6B.” We have re-designated them the sixth and seventh

assignments of error.

A-10

SEVENTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY

TAKING AN ABSURD, ILLEGAL, AND

TRAGIC TACK THAT THE

DEFENDANT’S ULTIMATE GUILTY

PLEA CAN BE USED TO DETERMINE

THE QUALITY OF THE INVASION OF

HIS DUE PROCESS RIGHTS THAT

OCCURRED BEFORE THE PLEA.”

On January 29, 2016, a Washington County

grand jury returned an indictment that charged

appellant with three counts of sexual battery, in

violation of R.C. 2907.03(A)(7). Appellant entered not

guilty pleas.

On April 21, 2016, appellant filed a motion to

suppress all recorded and unrecorded statements that

the investigating officer, Robert Ellenwood, overheard

between appellant and defense counsel while the

officer was present in appellant’s home.2 Appellant

alleged that the officer was not lawfully on appellant’s

premises and that the officer did not have the right to

eavesdrop on or record a conversation between

appellant and defense counsel.

2

The record does not reveal the content of the conversation that

the officer overheard and recorded. The state’s discovery

materials, however, indicate that the recording contains

inculpatory statements.

A-11

Appellant and the state subsequently reached a

plea agreement, and appellant withdrew his motion to

suppress Officer Ellenwood’s statements.

In

particular, appellant agreed to plead guilty to one

count of sexual battery, and the state agreed to

dismiss the remaining two counts.

The plea

agreement recommended that appellant receive an 18month prison term and that he be designated a Tier II

Sex Offender.

The trial court held a change of plea hearing3

and determined that appellant voluntarily, knowingly,

and intelligently entered his guilty plea. The court

subsequently found appellant guilty of sexual battery.

On July 1, 2016, the court held a sentencing

hearing.4 At the sentencing hearing, the court

imposed the 18-month sentence recommended in the

plea agreement.

After the sentencing hearing, and before the

trial court filed its sentencing entry, appellant learned

of a news article that reported that Officer Ellenwood

had been charged with telephone harassment. The

article also reported that Officer Ellenwood engaged in

text messaging with the underage victim of a sex crime

3

The record does not include the plea hearing transcript.

4

The record does not include the sentencing hearing transcript.

We also note that the trial court did not file its judgment entry of

sentence until August 18, 2016.

A-12

whose case he was investigating, but that the Marietta

Police Department indicated that nothing criminal in

nature existed about the texts.

Based upon this information, appellant filed a

motion to stay execution of his sentence, a motion to

dismiss, and a motion to issue subpoenas. In his

motion to dismiss, appellant raised two basic

arguments. First, appellant argued that the trial court

should allow him to withdraw his guilty plea.

Appellant asserted that the state failed to disclose

evidence in violation of Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, thus, he

could not have knowingly and intelligently entered his

guilty plea. Appellant claimed that the state failed to

disclose the existence of text messages between Officer

Ellenwood and the victim. Appellant argued that the

text messages contain evidence of an inappropriate,

intimate relationship between Officer Ellenwood and

the victim. Appellant asserted that the officer’s

conduct undermines his credibility as a witness, as

well as the credibility of the information that he

obtained from the victim. Appellant contended that

the officer likely used the relationship “to dissuade

(the victim) from recanting her accusations.”

Appellant thus argued that the evidence concerning

Officer Ellenwood’s conduct would have allowed hm to

impeach the officer at trial and that the evidence

constituted material evidence under Brady. Appellant

argued that the state’s failure to disclose the evidence

concerning Officer Ellenwood entitled him to withdraw

his guilty plea and have his sentence vacated.

A-13

Second, appellant contended that if the trial

court permitted him to withdraw his guilty plea, the

court then must dismiss the indictment. Appellant

asserted that “the behavior of Officer Ellenwood was so

insidious and poisonous, both he and the accuser in

this case should be prohibited from testifying,” thus

making “a new trial * * * impossible.” Appellant

claimed that the officer’s conduct tainted and rendered

unreliable all of the state’s evidence. Appellant

therefore argued that the court must dismiss the

indictment.

Among the documents appellant submitted to

support his argument is a copy of a Marietta Police

report regarding the

alleged inappropriate

relationship between Officer Ellenwood and the victim.

The report indicates that Officer Ellenwood’s wife

contacted the Marietta Police Department and

“reported several hundred text messages being

exchanged between (Ellenwood) and (the victim).” The

Marietta Police Chief requested the Sheriff’s Office to

investigate. Sheriff detectives then met with the

victim and the victim’s mother, and they permitted the

detectives to analyze the victim’s phone. The analysis

of the victim’s phone did not reveal any text messages

that would lead anyone to believe she and Officer

Ellenwood were in a relationship. Also, children

services case worker interviewed the victim ,and the

victim denied any type of inappropriate relationship

with Ellenwood. Ellenwood also denied any type of

inappropriate relationship. The sheriff’s office closed

the case as “unfounded.”

A-14

Appellant also submitted the affidavit of

Michael D. Lyman, a self-described “expert witness in

the area of police procedures.” Lyman opined that “at

least 95% of the 517 text messages exchanged between

* * * Ellenwood and the alleged 16-year-old victim * *

* were unnecessary, inappropriate, and served no

legitimate law enforcement of investigative purpose.”

He further opined that “because the investigation was

ongoing during the time of the 517 text messages * * *

it is likely that the overly-personal and inappropriate

nature of the 517 text messages created an atmosphere

whereby (the victim) was more subject to suggestion

than she would have been had Officer Ellenwood

maintained a proper, objective, and professional

relationship with her. Thus, the reliability of any

testimony provided by her should be viewed as highly

questionable as it may have been improperly

influenced by the police.”

Subsequently, the trial court conducted an in

camera inspection of the evidence regarding the

investigation into the relationship between Officer

Ellenwood and the victim to determine whether a

Brady violation had occurred. After its review, the

court overruled appellant’s motions. The trial court

found that the information relating to the

investigation into the relationship between officer

Ellenwood and the victim is not relevant or material

evidence pertaining to the criminal charges against

appellant. The court determined that “(a)ll of the

behavior alleged by the defense to be inappropriate

occurred after the investigation, arrest, indictment,

and pre-trial offer” and that the communications

A-15

between the officer and the victim were not criminal.

The court found that the text messages reveal that

“the officer counseled the victim toward recovery from

(appellant)’s behavior, encouraging her to read books,

watch movies, go to church, make good choices, seek

counseling to help her address what she was

experiencing.” The court did not find the material to

contain any exculpatory evidence and that it contains

“marginally, if at all, impeachable” evidence. The

court thus determined that none of the information

constitutes relevant, material, or discoverable

evidence. The court concluded that the information

failed to establish that a manifest injustice occurred so

as to permit appellant to withdraw his guilty plea or so

as to warrant a dismissal of the charges. This appeal

followed.

I

Because appellant’s first three assignments of

error raise related issues, for ease of discussion we

consider them together. In his first, second, and third

assignments of error, appellant in essence, asserts that

the trial court abused its discretion by denying his

request to withdraw his guilty plea.5 Appellant

5

Appellant framed his motion a “motion to dismiss.” Within the

text of that motion, however, appellant cited Crim.R. 32.1, the

standard applicable to guilty pleas withdrawals. We thus

construe appellant’s “motion to dismiss” as a combined “motion to

dismiss” and a motion to withdraw his guilty plea. Also,

appellant’s “motion to dismiss” cited Crim.R.33, which governs

new trial motions. Crim.R. 33 new trial motions, however, are

A-16

basically asserts that the trial court erred by

determining that the state’s failure to disclose the

investigation regarding Officer Ellenwood’s

relationship with the victim did not violate Brady.

Appellant disagrees with the trial court’s

determinations that the officer did not engage in an

improper relationship with the victim, and that the

evidence concerning the relationship is not material

impeachment evidence.

Initially, we note that a guilty plea

constitutes “an admission of factual guilt so reliable

that, where voluntary and intelligent, it quite validly

removes the issue of factual guilt from the case.”

Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46

L.Ed.2d 195 (1975), fn.2; Crim.R. 11(B)(1); accord

United States v. Broce, 488 U.S. 563, 569, 109 S.Ct.

757, 102 L.Ed.2d 927 (1989) (explaining that a guilty

plea and subsequent conviction “comprehend all of the

factual and legal elements necessary to sustain a

binding, final judgment of guilt and a lawful

sentence”). Therefore, a guilty plea “renders irrelevant

those constitutional violations not logically

inapplicable when defendant pleads guilty. See State v. Cooper,

8th Dist. Cuyahoga No. 100537, 2014-Ohio-2404, ¶20 (stating that

Crim.R. 33(B) has no application to cases in which the defendant

entered a guilty plea”). We further recognize that neither party

has claimed that appellant’s “motion to dismiss” should be

construed as an R.C. 2953.21 postconviction relief petition. See

State v. Redavide, – N.E.3d –, 2016-Ohio-7804 (2nd Dist.); but see

State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d

522. We therefore have no need to address the issue and express

no opinion on its merits.

A-17

inconsistent with the valid establishment of factual

guilt and which do not stand in the way of conviction

if factual guilt is validly established.’” State v.

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810

N.E.2d 927, ¶78, quoting Menna, 423 U.S. at 62, fn.2;

accord State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio2459, 38 N.E.3d 860, ¶19. Consequently, a defendant

who voluntarily, knowingly, and intelligently admits

“in open court that he is in fact guilty of the offense

with which he is charged * * * may not thereafter raise

independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of

the guilty plea.” Tollett v. Henderson, 411 U.S. 258,

267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Fitzpatrick

at ¶78. In other words, a voluntary, knowing, and

intelligent guilty plea waives any alleged

constitutional violations unrelated to the entry of the

guilty plea and nonjurisdictional defects in the

proceedings. State v. Ketterer, 111 Ohio St.3d 70,

2006-Ohio-5283, 855 N.E.2d 48, ¶105; State v. Storms,

4th Dist. Athens No. 05CA30, 2006-Ohio-3547, 2006

WL 1882428, ¶9.

Consequently, a guilty plea

“‘effectively waives all appealable errors at trial

unrelated to the entry of the plea.’” Ketterer at ¶105,

quoting State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d

658 (1991), paragraph two of the syllabus.

After the trial court imposes sentence, however,

Crim.R. 32.1 gives a trial court discretion to allow a

defendant to withdraw a guilty plea upon a showing of

A-18

manifest injustice.6 State v. Francis, 104 Ohio St.3d

490, 2004-Ohio-6894, 820 N.E. 2d 355, ¶26; State v.

Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627

(1985). In general, a “manifest injustice” means “a

clear and openly unjust act.” State ex rel. Schneider v.

Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998)

(citation omitted). “Manifest injustice relates to some

fundamental flaw in the proceedings which result(s) in

a miscarriage of justice or is inconsistent with the

demands of due process.” State v. Williams, 10th Dist.

Franklin

No. 03AP-1214, 2004-Ohio-6123, ¶5.

Accordingly, “a postsentence withdrawal motion is

allowable only in extraordinary cases.” State v. Smith,

49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977); e.g.,

State v. Cassell, – N.Ed.3d –, 2017-Ohio-769, 2017 WL

837074, ¶25; State v. Yost, 4th Dist. Meigs No. 03CA13,

2004-Ohio-4687, ¶7.

Trial courts possess discretion when reviewing

postsentence motions to withdraw a guilty plea, “and

the good faith, credibility and weight of the movant’s

6

In the case sub judice, appellant filed his motion after the trial

court imposed sentence at the sentencing hearing, but before the

trial court journalized its sentencing entry. Ohio courts generally

treat motions to withdraw a guilty plea “made after the court’s

pronouncement of sentence but before the court’s filing of the

sentencing entry * * * as postsentence motions.”

State v.

Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, 2014

WL 7251568, ¶26 (citations omitted). We therefore construe

appellant’s motion as a postsentence motion to withdraw his

guilty plea that requires a showing of manifest injustice. Id. at

¶32.

A-19

assertions in support of the motion are matters to be

resolved by th[e trial] court.” Smith at paragraph two

of the syllabus; accord Caraballo, 17 Ohio St.3d at 67.

Thus, appellate review of trial court decisions

regarding postsentence Crim.R. 32.1 motions to

withdraw a guilty plea is deferential. Consequently, a

reviewing court should not disturb a trial court’s ruling

concerning a postsentence motion to withdraw a guilty

plea unless the court abused its discretion. Caraballo,

17 Ohio St.3d at 67. An “abuse of discretion” means

that the court acted in an “‘unreasonable, arbitrary, or

unconscionable’” manner or employed “‘a view or

action that no conscientious judge could honestly have

taken.’” State v. Kirkland, 140 Ohio St.3d 73, 2014Oho-1966, 15 N.E.3d 818 ¶67, quoting State v. Brady,

119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671,

¶23. Moreover, a trial court generally abuses its

discretion when it fails to engage in a “‘sound

reasoning process.’” State v. Morris, 132 Ohio St.3d

337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14, quoting

AAAA Ents., Inc. V. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990). Additionally, “[a]buse-of-discretion

review is deferential and does not permit an appellate

court to simply substitute its judgment for that of the

trial court.” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶34.

In the case at bar, appellant asserts that the

trial court abused its discretion by failing to determine

that withdrawal of his plea is necessary to correct a

manifest injustice. Appellant claims that allowing his

plea to stand when the state failed to disclose what he

A-20

believes constitutes material impeachment evidence

under Brady deprived him of the ability to entre a

knowing and intelligent plea and demonstrates a

manifest injustice.

Enforcing a plea that the defendant did not

enter in a knowing, intelligent, and voluntary manner

is “‘unconstitutional under both the United States

Constitution and the Ohio Constitution.’” State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881

N.E.2d 1224, ¶7, quoting State v. Engle, 74 Ohio St.3d

525, 527, 660 N.E.2d 450 (1996). Therefore, a

defendant ordinarily may establish a manifest

injustice within the context of Crim.R. 32.1 by showing

that he did not enter a guilty plea in a knowing,

intelligent, or voluntary manner. State v. Fry, 7th Dist.

Mahoning No. 12MA156, 2013-Ohio-5865, 2013 WL

6918639, ¶12 (“A guilty plea that was not entered

knowingly, intelligently, or voluntarily, creates a

manifest injustice that would entitle a defendant to

withdraw a guilty plea.”); State v. Brown, 2d Dist.

Montgomery Nos. 24520 and 24705, 2012-Ohio-199,

¶13 (“If a defendant’s guilty plea is not knowing and

voluntary, it has been obtained in violation of due

process and is void.”); State v. Hall, 4th Dist. Jackson

No. 99CA847, *2 (Feb. 25, 2000) “(A trial court violates

a defendant’s due process rights, and hence may

produce a manifest injustice, if it accepts a guilty plea

that the defendant did not enter knowingly,

intelligently, and voluntarily.”); accord State v. Salter,

10th Dist. Franklin Nos. 15AP-968 and 15AP-970,

2016-Ohio-4772, 2016 WL 3574564, ¶14; State v.

A-21

Martinez, 10th Dist. Franklin No. 13AP-704, 2014Ohio-2425, 2014 WL 2565890, ¶20; State v. Bush, 3d

Dist. Union No. 14-2000-44, 2002-Ohio-6146, ¶11;

State v. Beck, 1st Dist. Hamilton Nos. C-020432, C020449, C-030062, 2003-Ohio-5838, ¶8.

An appellate court that is evaluating whether a

defendant voluntarily, knowingly, and intelligently

entered a guilty plea ordinarily begins its inquiry by

independently reviewing the record to ensure that the

trial court complied with the constitutional and

procedural safeguards contained within Crim.R.

11(C)(2).7 State v. Spates, 64 Ohio St.3d 269, 272, 595

N.E.2d 351 (1995); State v. Kelley, 57 Ohio St.3d 127,

128, 566 N.E.2d 658 (1991) (“When a trial court or

appellate court is reviewing a plea submitted by a

defendant, its focus should be on whether the dictates

of Crim.R. 11 have been followed.”); see State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,

¶13 (“Before accepting a guilty or no-contest plea, the

court must make the determinations and give the

warnings required by Crim.R. 11(C)(2)(a) and (b) and

notify the defendant of the constitutional rights listed

in Crim.R. 11(C)(2)(c).”) Crim.R. 11(C)(2) states:

In felony cases the court may

refuse to accept a plea of guilty or a plea

7

As an aside, we note that this plenary standard of review

applicable to the entry of a guilty plea appears somewhat at odds

with the discretionary standard of review that applies to

Crim.R.32.1 postsentence motions to withdraw a guilty plea.

A-22

of no contest, and shall not accept a plea

of guilty or no contest without first

addressing the defendant personally and

doing all of the following:

(a) Determining that the

defendant is making the plea voluntarily,

with understanding of the nature of the

charges and of the maximum penalty

involved, and if applicable, that the

defendant is not eligible for probation or

for the imposition of community control

sanctions at the sentencing hearing.

(b) Informing the defendant of and

determining that the defendant

understands the effect of the plea of

guilty or no contest, and that the court,

upon acceptance of the plea, may proceed

with judgment and sentence.

(c) Informing the defendant and

determining that the defendant

understands that by the plea the

defendant is waiving the rights to jury

trial, to confront witnesses against him

or her, to have compulsory process for

obtaining witnesses in the defendant’s

favor, and to require the state to prove

the defendant’s guilt beyond a reasonable

doubt at a trial at which the defendant

cannot be compelled to testify against

himself or herself.

Additionally, the United States Supreme Court

has established various other principles that guide a

A-23

reviewing court’s inquiry into the voluntary,

intelligent, and knowing nature of a guilty plea. For

instance, “[t]he rule that a plea must be intelligently

made to be valid does not require that a plea be

vulnerable to later attack if the defendant did not

correctly assess every relevant factor entering into his

decision.” Brady v. United States, 397 U.S. 742, 757,

90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). Moreover, “[a]

defendant is not entitled to withdraw his plea merely

because he discovers * * * after the plea has been

accepted that his calculus misapprehended the quality

of the State’s case or the likely penalties attached to

alternative courses of action.” Id. Consequently, the

Constitution does not require that a defendant “be

permitted to disown his solemn admissions in open

court that he committed the act with which he is

charged simply because it later develops that the State

would have had a weaker case than the defendant had

thought * * *.” Id. Furthermore, “a counseled

defendant may not make a collateral attack on a guilty

plea on the allegation that he misjudged the

admissibility of his confession.” Broce, 488 U.S. at

572. Instead, “‘[w]aiving trial entails the inherent risk

that the good-faith evaluations of a reasonably

competent attorney will turn out to be mistaken either

as to the facts or as to what a court’s judgment might

be on given facts.” McMann, 397 U.S. at 770.

In the case at bar, appellant does not argue that

the trial court failed to comply with any particular

aspect of Crim.R. 11(C)(2). Instead, appellant asserts

that he did not voluntarily, knowingly, and

intelligently enter his guilty plea due to the state’s

A-24

failure to disclose allegedly favorable and material

impeachment evidence. Appellant claims that he could

not have entered his plea in a voluntary, knowing, or

intelligent manner without complete knowledge of the

information pertaining to Officer Ellenwood’s

relationship with the victim. Appellant argues that he

could have used the information at trial to impeach

both the officer and the victim. Appellant contends

that because the material contained impeachment

information, then under Brady v. Maryland, the state

had a duty to disclose it to him before entering into

plea negotiations. Appellant further claims that the

state’s failure to disclose the information deprived him

of his due process right to a fair trial (or plea

proceeding). We therefore must determine whether

the Brady rule applies when a defendant waives his

right to a fair trial under Crim.R. 11(C)(2).

In Brady v. Maryland, the court held that the

prosecution’s suppression of evidence that is favorable

to an accused and that is material to either guilt or

punishment violates a criminal defendant’s due

process right to a fair trial. Accord Weary v. Cain, –

U.St. –, 136 S.Ct. 1002, 1006, 194 L.Ed2d 78 (2016);

Smith v. Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181

L.Ed.2d 571 (2012); Untied States v. Bagley, 473 U.S.

667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); State

v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d 898

(1988). To establish that the prosecution’s failure to

disclose evidence violated a defendant’s due process

right to a fair trial, the defendant must establish each

of the following:

A-25

(1) the evidence at issue is “favorable to

the accused, either because it is

exculpatory, or because it is impeaching”;

(2) the [prosecution] suppressed the

evidence, “either willfully or

inadvertently” and (3) “prejudice * * *

ensued.”

Skinner v. Switzer, 562 U.S. 521, 536, 131 S.Ct. 1289,

179 L.Ed.2d 233 (2011), quoting Strickler v. Greene,

527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286

(1999).

Evidence that is favorable to an accused means

evidence that “if disclosed and used effectively, * * *

may make the difference between conviction and

acquittal.” Bagley, 473 U.S. at 676. Favorable

evidence to an accused includes both exculpatory and

impeachment evidence. Id. At 676, citing Napue v.

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3

L.Ed.2d 1217 (1959) (“The jury’s estimate of the

truthfulness and reliability of a given witness may

well be determinative of guilt or innocence, and it is

upon such subtle factors as the possible interest of the

witness in testifying falsely that a defendant’s life or

liberty may depend”). Evidence is material “only if

there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the

proceeding would have been different. A ‘reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id. At 682; Weary, 136

S.Ct. at 1006. “The defendant has the burden to prove

a Brady violation rising to the level of a due-process

A-26

violations.” State v. Pickens, 141 Ohio St.3d 462,

2014-Ohio-5445, 25 N.Ed.3d 1023, 102.

The Brady rule exists principally to protect a

criminal defendant’s right to a fair trial. Bagley, 473

U.S. at 675-676, quoting United States v. Agurs, 427

U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)

(“For unless the omission deprived the defendant of a

fair trial, there was no constitutional violation

requiring that the verdict be set aside; and absent a

constitutional violation, there was no breach of the

prosecutor’s constitutional duty to disclose”); United

States v. Moussaoui, 591 F.3d 264, 285 (4th Cir. 2010)

(“The Brady right, however, is a trial right * * * and

exists to preserve the fairness of a trial verdict and to

minimize the chance that an innocent person would be

found guilty.”).

The purpose of the Brady rule is not to

displace the adversary system as the

primary means by which truth is

uncovered, but to ensure that a

miscarriage of justice does not occur.

Thus, the prosecutor is not required to

deliver his entire file to defense counsel,

but only to disclose evidence favorable to

the accused that, if suppressed, would

deprive the defendant of a fair trial.

Bagley, 473 U.S. at 675 (footnotes omitted).

When a defendant pleads guilty, however,

concerns regarding a defendant’s right to a fair trial

A-27

“are almost completely eliminated because” the

defendant admitted guilt. Moussaoui, 591 F.3d at 285

(citations omitted). Accordingly, “the Constitution

does not require the Government to disclose material

impeachment evidence prior to entering a plea

agreement with a criminal defendant.” United States

v. Ruiz, 536 U.S. 622, 628 and 633, 122 S.Ct. 2450, 153

L.Ed.2d 586 (2002); Disciplinary Counsel v. KelloggMartin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.

2d 125, ¶29 (“Ruiz plainly holds that the state is not

required to disclose impeachment evidence to a

defendant before the defendant pleads guilty.”).

In Ruiz, the court considered whether a criminal

defendant’s guilty plea waives the right, encompassed

with the right to a fair trial, to disclosure of material

impeachment information. Id. at 628. The Ninth

Circuit Court of Appeals “held that a guilty plea is not

‘voluntary’ (and that the defendant could not, by

pleading guilty, waive her right to a fair trial) unless

the prosecution first made the same disclosure of

material impeachment information that the

prosecutors would have had to make had the

defendant insisted upon a trial.” Id. at 629. The

United States Supreme Court disagreed with the

Ninth Circuit and concluded that the Constitution does

not require “preguilty plea disclosure of impeachment

information.” Id. The court explained that the United

States Constitution does not require “prosecutors,

before entering into a binding plea agreement with a

criminal defendant, to disclose ‘impeachment

information relating to any informants or other

witnesses.’” Id. at 625.

A-28

In reaching its decision, the court first examined

whether a criminal defendant’s preguilty plea

ignorance of impeachment information affects the

voluntary nature of a guilty plea. The court recognized

that a defendant who enters a guilty plea waives

significant constitutional guarantees, such as the right

to a fair trial, the privilege against self-incrimination,

the right to confront one’s accusers, and the right to

trial by jury. Id. at 628-629. The court thus stated:

Given the seriousness of the matter, the

Constitution insists, among other things,

that the defendant enter a guilty plea

that is “voluntary” and that the

defendant must make related waivers

“knowing[ly], intelligent[ly], [and] with

sufficient awareness of the relevant

circumstances and likely consequences.”

Id. at 629, quoting Brady v. United States, 397 U.S. at

748.

The court determined that “impeachment

information is special * * * not in respect to whether a

plea is voluntary (‘knowing,’ ‘intelligent,’ and

‘sufficient[ly] aware’),” but instead, “in relation to the

fairness of a trial.” Id. (emphasis sic). The court

agreed that “the more information the defendant has,

the more aware he is of the likely consequences of a

plea, waiver, or decision, and the wiser that decision

will be.” Id. The court found, however, that “the

Constitution does not require the prosecutor to share

A-29

all useful information with the defendant.”

(citation omitted). Instead, the court explained:

[T]he law ordinarily considers a waiver

knowing, intelligent, and sufficiently

aware if the defendant fully understands

the nature of the right and how it would

likely apply in general in the

circumstances-even if the defendant may

not know the specific detailed

consequences of invoking it.

A

defendant, for example, may waive his

right to remain silent, his right to a jury

trial, or his right to counsel even if the

defendant does not know the specific

questions the authorities intend to ask,

who will likely serve on the jury, or the

particular lawyer the State might

otherwise provide. It is particularly

difficult to characterize impeachment

information as critical information of

which the defendant must always be

aware prior to pleading guilty given the

random way in which such information

may, or may not, help a particular

defendant. The degree of help that

impeachment information can provide

will depend upon the defendant’s own

impeachment knowledge of the

prosecution’s potential case-a matter that

the Constitution does not require

prosecutors to disclose.

Id.

A-30

Id. at 629-630 (citation omitted) (emphasis sic). The

court additionally observed that a plea does not

become unknowing simply because a defendant does

not have “complete knowledge of the relevant

circumstances” or labors under “various forms of

misapprehension.” Id. at 630 (citations omitted).

The court further concluded that “due process

considerations * * * argue against the existence of” a

right to preguilty plea disclosure of impeachment

information. Id. at 631. The court found that “a

constitutional obligation to provide impeachment

information during plea bargaining, prior to entry of a

guilty plea, could seriously interfere with the

Government’s interest in securing those guilty pleas

that are factually justified, desired by defendants, and

help to secure the efficient administration of justice.”

Id. The court thus held “that the Constitution does not

require the Government to disclose material

impeachment evidence prior to entering a plea

agreement with a criminal defendant.” Id. at 633.

We believe that Ruiz is dispositive of appellant’s

first, second, and third assignments of error. Although

we may not fully agree with this particular view, Ruiz

holds that appellant had no constitutional right to

preguilty plea disclosure of material impeachment

information (we presume, for the sake of argument,

that the information regarding Officer Ellenwood

constitutes material impeachment information). Thus,

the state’s failure to disclose the information before

appellant entered his guilty plea did not deprive

appellant of a fair trial and did not render his guilty

A-31

plea less than voluntary, knowing, and intelligent.

Accordingly, the state’s failure to disclose the alleged

impeachment evidence does not demonstrate a

manifest injustice. See Ferra v. United States, 456

F.3d 278, 291 (1st Cir. 2006) (“Even though [appellant]

obviously would be interested in knowing all the

strengths and weaknesses of the government’s proof

before deciding whether to plead guilty or risk a trial,

the government’s refusal to render the whole of its

case transparent before a defendant makes that

election does not, in the ordinary course, constitute the

kind of severe misconduct that is needed to render a

plea involuntary.”).

We further observe that appellant did not allege

that the evidence regarding Officer Ellenwood’s

relationship with the victim is exculpatory.8 Rather,

8

In general, an “exculpatory statement or evidence,” means:

A statement or other evidence which tends to

justify, excuse or clear the defendant from alleged

fault or guilt. State v. Cobb, 2 Ariz.App. 71, 406

P.2d 421, 423. Declarations against declarant’s

interest which indicate that defendant is not

responsible for crimes charged. U.S. v. Riley, C.A.

Iowa, 657 F.2d 1377, 1385. Evidence which

extrinsically tends to establish defendant’s

innocence of crimes charged as differentiated from

that which although favorably, is merely

collateral or impeaching. Com. V. Jeter, 273

Pa.Super. 83, 416 A.2d 1100, 1102, for purposes of

rule constraining State from disposing of

potentially exculpatory evidence, is evidence

which clears or tends to clear accused person from

alleged guilt. Gibson v. State, 110 Idaho 631, 718

A-32

appellant asserts that the evidence would have

allowed him to impeach, or discredit, Officer

Ellenwood and the victim. We therefore have no need

to determine whether the Ruiz rule applies to both

impeachment and exculpatory evidence, or if it is

limited to impeachment evidence. See Petegorsky,

Plea Bargaining in the Dark: The Duty to Disclose

Exculpatory Brady Evidence During Plea Bargaining,

81 Fordham L. Rev. 3599, 3602 (2013) (noting

conflicting opinions regarding this issue among United

States Circuit Courts of Appeal).

Accordingly, based upon the foregoing reasons,

we overrule appellant’s first, second, and third

assignments of error.

II

In his fourth assignment of error, appellant

asserts that the trial court erred by failing to rule on

his motion to suppress Officer Ellenwood’s statements.

Appellant, however, agreed to withdraw the motion

when he entered his guilty plea. Moreover, his guilty

plea waived the right to argue that a violation of his

constitutional right occurred at a point in time before

he entered his guilty plea. E.g., Tollett, 411 U.S. at

267; State v. Sharpe, 4th Dist. Hocking No. 14CA9,

2015-Ohio-2128, 2015 WL 3513337, ¶9; State v.

P.2d 283, 285.

State v. Davis, 2nd Dist. Montgomery No. 18172, 2001 WL 10037,

*2-3, quoting Black’s Law Dictionary, 6th Edition, 566.

A-33

Johnson, 4th Dist. Hocking No. 14CA16, 2015-Ohio-

854, ¶¶5-6.

Accordingly, based upon the foregoing reasons,

we overrule appellant’s fourth assignment of error.

III

In his fifth assignment of error, appellant

asserts that the trial court erred by relying upon

evidence that it reviewed in camera when ruling upon

appellant’s motions. Appellant, however, cites no

authority to support this proposition.

Under App.R. 16(A)(7), an appellant’s brief shall

include “[a]n argument containing the contentions of

the appellant with respect to each assignment of error

presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes,

and parts of the record on which appellant relies.”

Appellate courts do not have any duty “to root out” an

argument in support of an assignment of error. Prokos

v. Hines, 4th Dist. Athens Nos. 10CA51 and 10CA57,

2014-Ohio-1415, 2014 WL 1339676, ¶55; Thomas v.

Harmon, 4th Dist. Lawrence No. 08CA17, 2009-Ohio3299, ¶14; State v. Carman, 8th Dist. Cuyahoga No.

90512, 2008-Ohio-4368, ¶31. “It is not the function of

this court to construct a foundation for [an appellant’s]

claims; failure to comply with the rules governing

practice in the appellate courts is a tactic which is

ordinarily fatal.” Cantanzarite v. Boswell, 9th Dist.

Summit No. 24184, 2009-Ohio-1211, ¶16, quoting

Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d

A-34

1006 (9th Dist. 1996). Appellate courts possess

discretion to disregard any assignment of error that

fails to include citations to the authorities in support.

Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28,

2015-Ohio-119, 2015 WL 223007, ¶33; State v. Adkins,

4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶34,

citing Frye v. Holzer Clinic, Inc., 4th Dist. Gallia No.

07CA4, 2008-Ohio-2194, ¶12; App.R. 12(A)(2).

In the case sub judice, appellant failed to cite

authority to support his fifth assignment of error.

Consequently, we will not address this “undeveloped

argument [] or assume [appellant]’s duty and

formulate an argument for him.”9 State v. Palmer, 9th

Dist. Summit No. 28303, 2017-Ohio-2639, 2017 WL

1749087.

Accordingly, based upon the foregoing reasons,

we overrule appellant’s fifth assignment of error.

9

We believe, however, than any error that the court may have

arguably committed by conducting an in camera review of alleged

Brady evidence constitutes harmless error. Assuming, arguendo,

that the court erred by conducting an in camera review of alleged

Brady material, appellant cannot show that the court’s alleged

error would render Ruiz inapplicable and would allow him to

withdraw his guilty plea. See Crim.R. 52(A) discussion, infra.

A-35

IV

In his sixth and seventh assignments of error,10

appellant challenges the following statement contained

in the trial court’s decision:

In the context of this case and the

allegations of sexual activity which have

been admitted by the Defendant, the

repeated allegations of an “inappropriate

relationship” between Officer Ellenwood

and the victim is in itself grossly

inappropriate.

Appellant contends that his expert, and not the

defense, characterized the relationship as

“inappropriate.” He also asserts that his guilty “plea

cannot be used as a measuring stick to examine the

behavior of the officer prior to [the] plea to see if it is

material.”

We, however, believe that our disposition of

appellant’s first, second and third assignments of error

render his sixth and seventh assignments of error

moot. We determined that pursuant to Ruiz, the state

did not have any duty to disclose the alleged

impeachment evidence before appellant entered his

guilty plea. Thus, whether the trial court incorrectly

10

We again point out that we have re-designated appellant’s

assignments of error “6A” and “6B” as the sixth and seventh

assignments of error, respectively.

A-36

determined that the evidence was not material

impeachment information or contained evidence of an

“inappropriate relationship” is no longer of

consequence to our decision.

Therefore, these

arguments are moot and we need not address them.

App.R. 12(A)(1)(c).

Moreover, assuming, arguendo, that the trial

court improperly attributed the “inappropriate

relationship” language to defense counsel, instead of

appellant’s expert, appellant has not shown that this

alleged error would constitute reversible error. An

appellate court may not correct an error unless the

error affected the defendant’s substantial rights, i.e.,

the error must have affected the outcome of the trial.

State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761,

789 N.E.2d 222, ¶7; Crim.R. 52(A) (“Any error, defect,

irregularity, or variance which does not affect

substantial rights shall be disregarded.”). Appellant

cannot show that any error the court may have

committed by attributing the “inappropriate

relationship” language to the defense affected the

outcome of the court’s decision to reject his request to

withdraw his guilty plea.

Accordingly, based upon the foregoing reasons,

we overrule appellant’s sixth and seventh assignments

of error and affirm the trial court’s judgment.11

11

We observe that in the “conclusion” portion of appellant’s brief,

appellant suggests that if we do not reverse the trial court’s

decision rejecting his request to withdraw his guilty plea, we

A-37

JUDGMENT AFFIRMED.

should at least remand for an evidentiary hearing. Appellant did

not, however, frame this as an assigment of error. App.R.

12(A)(1)(b) states that an appellate court shall “[d]etermine the

appeal on its merits on the assignments of error set forth in the

briefs under App.R. 16.” App.R. 12(A)(2) permits an appellate

“court [to] disreghard an assignment of error presented for review

if the party raising it * * * fails to argue the assignment

separately in the brief, as requied under App.R. 16(A).” We also

note that a trial court need not hold an evidentiary hearing

regarding a postsentence withdrawal motion “if the facts alleged

by the defendant, even if accepted as true, would not require the

court to grant the motion to withdraw the guilty plea.” State v.

Layne, 4th Dist. Highland No. 11CA17, 2012-Ohio-1627, ¶5. As we

previously indicated, Ruiz forecloses appellant’s claim that the

prosecution had a duty to disclose material impeachment evidence

prior to entering plea negotiations. Thus, an evidentiary hearing

would appear to be unnecessary. In his “conclusion,” appellant

further posits that if we do not agree that he should be entitled to

withdraw his guilty plea, or at least receive a hearing, then we

“could” dismiss “the entire case.” Appellant has not formulated an

assignment of error concerning this argument, and we therefore

do not address it. App.R. 12(A)(1)(b) and (A)(2). We note,

however, that the record presented on appeal does not contain any

evidence to indicate that dismissal of the entire case is warranted.

A-38

Hoover, J., concurring in judgment and opinion in part

and concurring in judgment only in part with opinion.

I concur in the judgment and opinion of the lead

opinion a to Assignments of Error Four, Five, Six, and

Seven. However, I respectfully concur in the judgment

only as to Assignments of Error One, Two, and Three

of the lead opinion. I write separately to note my

misgivings with the application of United States v.

Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.E.2d 586

(2002) to this case.

The lead opinion relies upon Ruiz, supra at 628

and 633, for the proposition that “the Constitution

does not require the Government to disclose material

impeachment evidence prior to entering a plea

agreement with a criminal defendant.”

However, I have doubts as to the applicability of

Ruiz to the facts of this case. I believe that the lead

opinion’s application of Ruiz may be too broad because

Ruiz is distinguishable from the case sub judice. In

Ruiz,

Immigration agents found thirty

kilograms of marijuana in Angela Ruiz’s

luggage, after which federal prosecutors

offered her what is known in the

Southern District of California as a “fast

track” plea bargain. A “fast track” plea

bargain asks a defendant to waive

indictment, trial, and an appeal. In

return, the government agrees to

A-39

recommend to the sentencing judge a

two-level departure downward from the

otherwise applicable United States

Sentencing Guidelines sentence.

***

[Ruiz] did not make a written discovery

demand for all “exculpatory” evidence. In

fact, Ruiz did not make a discovery

demand at all. Rather, the government’s

proposed “fast track” plea agreement

required Ruiz to acknowledge that the

government had turned over “any

[known] information establishing the

factual innocence of the defendant” and

provide

the

government’s

acknowledgement that it has a

continuing duty to provide such

information. Ruiz refused to accept the

“fast track” plea agreement because of its

requirement that she also waive the right

to receive “impeachment information

relating to any informants or other

witnesses.” In its analysis, the Court

considered it relevant that Ruiz was

protected both by the provision in the

federal “fast track” plea agreement

requiring the government to provide her

“any information establishing the factual

innocence of the defendant,” and by other

guilty-plea safeguards contained in the

federal rules.

A-40

(Citations omitted.) State v. Harris, 266 Wis.2d 200,

667 N.W.2d 813, ¶¶16 and 27 (Wis.App.2003).

In Harris, a Wisconsin appellate court found

Ruiz to be inapplicable to the state proceeding. Id. at

¶¶15, 27-30. The appellate court found that the state

had violated Harris’s constitutional and statutory

rights by failing to disclose potentially exculpatory

evidence when Harris had demanded such evidence.

Id. at ¶¶36, 46. Thus, the court found that a manifest

injustice had occurred. Id. at ¶47.

Similar to the Harris case, Riley was prosecuted

by a state court-Ohio-and not a federal court. Riley

was likewise not protected by a specific provision such

as that found in the federal “fast track” agreement

offered to Ruiz. Furthermore, Riley was not protected

by the guilty-plea safeguards contained in the Federal

Rules of Criminal Procedure.

Moreover, in contrast to Ruiz, Riley made a

motion for discovery which specifically requested

“‘[a]ny exculpatory material known or by the exercise

of due diligence may become known to the attorney for

the State.”

Riley thus invoked the State’s

constitutional obligation, as well as the obligation

under the Rules of Criminal Procedure, to comply.

As a result of the basic difference set forth

above, I believe that Ruiz does not apply to this case.

Nonetheless, I must note that the Ohio Supreme Court

has relied upon the Ruiz holding on two occasions. See

Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d

A-41

415, 2010-Ohio-282, 923 N.E.2d 125, ¶29 (“Ruiz

plainly holds that the state is not required to disclose

impeachment evidence to a defendant before the

defendant pleads guilty.”); State v. Ketterer, 126 Ohio

St.3d 448, 2018-Ohio-3831, 935 N.E.2d 9, ¶35 (“Ruiz

supports the state’s argument as it pertains to the

disclosure of impeachment evidence.”) (Emphasis

sic.).

As the lead opinion states, although we may not

fully agree with this particular view, we are bound to

follow our highest court’s precedent. Therefore,

despite my doubts concerning the application of Ruiz

to the case at bar, I still concur with the judgment of

the lead opinion with respect to Assignments of Error

One, Two, and Three. I concur in the judgment and

opinion with respect to Assignments of Error Four,

Five, Six, and Seven.

A-42

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and

that appellee recover of appellant the costs herein

taxed.

The Court finds there were reasonable grounds

for this appeal.

It is ordered that a special mandate issue out of

this Court directing the Washington County Common

Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release

upon bail has been previously granted, it is continued

for a period of sixty days upon the bail previously

posted. The purpose of said stay is to allow appellant

to file with the Ohio Supreme Court an application for

a stay during the pendency of the proceedings in that

court. The stay as herein continued will terminate at

the expiration of the sixty day period.

The stay will also terminate if appellant fails to

file a notice of appeal with the Ohio Supreme Court in

the forty-five day period pursuant to Rule II, Sec. 2 of

the Rules of Practice of the Ohio Supreme Court.

Additionally, if the Ohio Supreme Court dismisses the

appeal prior to the expiration of said sixty days, the

stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute

that mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.

A-43

Hoover, J.; Concurs in Judgment & Opinion as

to Assignments of Error 4, 5, 6 & 7; Concurs in

Judgment Only as to Assignments of Error 1,2 & 3

with Concurring Opinion.

Harsha, J.; Concurs in Judgment Only.

For the Court

BY: /s/Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document

constitutes a final judgment entry and the time period

for further appeal commences from the date of filing

with the clerk.

A-44

APPENDIX D

IN THE COURT OF COMMON PLEAS

WASHINGTON COUNTY, OHIO

The State of Ohio,

Plaintiff,

v.

Dennis Riley,

Defendant.

Case No. 16 CR 5

Judge Randall G. Burnworth

Filed 09/13/2016

DECISION

This case comes before the Court to address a

Motion for Issuance of Court Ordered Subpoenas and

a Motion to Dismiss filed August 10, 2016 by

Defendant. The State responded August 16, 2016.

Defendant filed a Reply covering the subpoena issued

August 17, 2016. The State filed a clarification to the

Defense Reply August 22, 2016.

Finally, the

Defendant filed a Further Reply to State Reponse (sic)

August 26, 2016 supplemented August 29, 2016.

The Defendant, Dennis Riley, was arrested and

charged January 5, 2016 with Sexual Battery in

violation of RC 2907.03(A)(7). The charge alleges a

sexual relationship between himself, a teacher at

Marietta Senior High School, and a 16 year old female

student occurring in December, 2015. On the date of

the arrest, Marietta City Police were alerted to

suicidal threats by the Defendant. Officers Ellenwood,

A-45

Linscott, and Warden responded with Officer

Ellenwood entering the home. He overheard two men

talking as he moved through the home. He made

contact with the Defendant and Attorney William L.

Burton, observed the butt of a gun under the couch,

and arrested the Defendant.

Defendant waived a preliminary hearing

January 8, 2016 and was Indicted January 29, 2016

charged with three (3) Counts of Sexual Battery.

Defendant was arraigned February 3, 2016. A Pretrial was held February 16, 2016. An offer was made

by the State of Ohio and the Court was informed that

the parties were attempting to resolve the case

promptly. The trial scheduled for March 28, 2016 was

continued on Defendant’s Motion to May 11, 2016.

Defendant filed a Motion to Suppress April 21,

2016 seeking to suppress statements Officer Ellenwood

heard January 5, 2016 responding to the Defendant’s

home. Defendant asserted that Officer Ellenwood was

illegally in the home and that the conversation was

subject to Attorney/Client privilege. The State filed a

Response April 27, 2016 and the motion was set for

hearing May 6, 2016. The issue of whether Officer

Ellenwood was appropriately in the Defendant’s home

January 5, 2016 or whether the statements he

overheard were an attorney/client conversation did not

come before the Court as the parties continued

negotiating and ultimately entered a Written Plea of

Guilty in open Court to one (1) Count of Sexual

Battery that day. Defendant withdrew the previously

filed Motion to Suppress. The Defendant appeared

A-46

July 1, 2016 and was sentenced to the agreed

disposition memorialized in the Written Plea of Guilty

executed and filed May 6, 2016. Despite the inherent

harm associated with the charge, for both the victim

and the Defendant, there was nothing “extraordinary”

about this case. Defendant was represented by

experienced and capable attorneys who negotiated an

appropriate resolution to the charges. The sentencing

entry was filed August 18, 2016.

Subsequent to the sentencing, defense counsel

became aware of issues involving Officer Ellenwood

that had occurred earlier in the year and filed a

Motion to Stay Execution of Sentence July 15, 2016.

The stay was granted by Entry of August 18, 2016

ordering Defendant held in the Washington County

Jail and not transported pending resolution of the

pending motions. Defense counsel was provided with

copies of text communications between Officer

Ellenwood and the victim. The Court has made an incamera inspection of recorded interviews by the

Washington County Sheriff’s Office of Officer

Ellenwood and the victim and has reviewed all of the

texts provided to the defense.

Officer Ellenwood confronted his wife about

52 texts he discovered on her phone between her and

“Robbie” during one of his shifts. Marital discord

ensued. She, in turn, looked at his phone and

contacted Marietta City Police Chief Rodney Hupp

about the hundreds of text messages between Officer

Ellenwood and the victim in this case. Chief Hupp

referred the matter to the Washington County Sheriff’s

A-47

Office for an independent evaluation. The Sheriff’s

Office reviewed the texts, interviewed Officer

Ellenwood and the victim and found no criminal

behavior reporting that conclusion to Chief Hupp.

Officer Ellenwood has also been charged with

telecommunication harassment associated with

allegedly continuing to contact his wife after being told

to quit.

The defense has alleged prosecutorial

misconduct in withholding the information of an

investigation, the texts and the report from the

defense having to do with the lead investigator on the

case, Officer Ellenwood. The State argues that the

foregoing was not material or relevant to the

underlying case and thus, not discoverable. After

having read 517 texts and listened to the interviews,

the Court agrees with the State. All of the behavior

alleged by the defense to be inappropriate occurred

after the investigation, arrest, indictment, and pretrial offer. Nothing in the communication between

Officer Ellenwood and the victim, a 16 year old, was

criminal. In a nutshell, the officer counseled the

victim toward recovery from the Defendant’s behavior,

encouraging her to read books, watch movies, go to

church, make good choices, and seek counseling to help

her address what she was experiencing. In the context

of this case and the allegations of sexual activity which

have been admitted by the Defendant, the repeated

allegations of an “inappropriate relationship” between

Officer Ellenwood and the victim is in itself grossly

inappropriate.

A-48

The Court finds that none of the behavior which

the defense now tries to seize upon to turn the clock

back is relevant, material or discoverable. It is not

exculpatory in nature and marginally, if at all,

impeachable. The case is not “extraordinary” and

there is no manifest injustice to Defendant warranting

the withdrawal of his plea entered May 6, 2016 or

dismissal of the charges.

Defendant’s Motion for Issuance of Court

Ordered Subpoenas and Motion to Dismiss are denied.

Counsel for the State of Ohio to journalize.

Costs assessed to Defendant.

The Stay of Execution of Sentence issued

August 18, 2016 is vacated.

A Praecipe for Transportation of Defendant to

the Ohio Correctional Reception Center at Orient,

Ohio, shall issue.

/s/Judge Randall G. Burnworth

c.

Attys. Rings/Wolfe

Attys. Cosenza/Burton