Petition for Writ of Certiorari — John Beatty, Petitioner v. Ohio
Supreme Court briefDec 8, 2021
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I
r
J
Supreme Court, U.S.
FILED
IN THE
SUPREME COURT OF THE UNITED STATES
DEC - 8 2021
office of the clerk
JOHN A. BEATTY
(Your Name)
— PETITIONER
vs.
STATE OF OHIO
— RESPONDENT(S)
ON PETITION FOR A WRIT OF CERTIORARI TO
(
The Fifth District Court of Appeals of Ohio
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
John A
(Your Name)
f # A 7 5Q . 1 28 ~)
Beatty
15708 MrCnnnel svi 1 1 e Road
(Address)
Caldwell. Ohio 43724-8902
(City, State, Zip Code)
N/A
L
(Phone Number)
QUESTION(S) PRESENTED
n
\
1.
477 U.S.
Is the standards set forth in Smith v. Murray,
527 ,
536 (1986) and Evitts v. Lucey, 469 U.S. 387, 396 (1985) the
more
appropriate
test
for
appellate
counsel's
performance
as
opposed to the two-prong standard for trial counsel's performance
in Strickland v. Washington, 466 U.S. 668 (1984)?
2.
of
the
Is a guilty plea valid where it is made to less than all
elements
of
the
offense,
thereby
constituting
selective
enforcement of criminal laws?
3.
stantive
Can a state disenfranchise a criminal defendant of subrights
where
there
is
no
relinquishment
or
abandonment
of a known right?
4.
Does
a
State
Appellate
Coart's
refasal
to
reopen
a
direct appeal violate Dae Process where an appellant makes the
proper showing of
prejudice,
ineffective assistance
and that but
for such
of
Appellate
Counsel,
ineffective assistance,
there
is a reasonable likelihood the outcome of the appeal would have
been different,
where the State Rule makes
reopening mandatory
upon such showing?
5.
Does
a
State
Trial
Court
violate
Due
Process
by
rendering Judgment of conviction and sentencing a defendant after
the State
Trial Court
lost jurisdiction
as
a
matter
of
State
law?
6.
Does a State Court of Appeals violate Due Process by
refusing to reopen an appeal and by failing to vacate a judgment,
upon where
it has
been shown
that the
Trial
Court's
was rendered without, and after having lost, jurisdiction?
Judgment
7.
Can a criminal Judgment be Constitutionally
sustained
where State law has severed and terminated, with prejudice,
the
Trial Court's Jurisdiction over the
criminal
of
proper notice of
and the State's
a pending charge,
case
for
lack
failure to
bring a matter to trial within the required statutory time limit?
8.
Can
a
defendant
be
Constitutionally
convicted
of
an
offense that requires prior notice of a "no trespass order" where
the record does not affirmatively show such notice was validly
given?
LIST OF PARTIES
[V^All parties appear in the caption of the case on the cover page.
[ ] All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
i
i.
TABLE OF CONTENTS
r
OPINIONS BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
3
REASONS FOR-GRANTING THE WRIT
A
CONCLUSION
5
INDEX TO APPENDICES
\
\
APPENDIX A
Judgment Entry of the Fifth District Court of
Appeals (May 26, 2021)
APPENDIX B
Entry of the Ohio Supreme Court
(Sept. 14, 2021)
APPENDIX C
"Notification of Restriction from Property"
APPENDIX D
Defendant's Motion to Withdraw Counsel, Filed 10-31-19
APPENDIX E
Defendant's Motion to Fire Defense Counsel Filed 2-7-20
APPENDIX F
December 18, 2019 Letter to Trial Counsel demanding
her witdrawa from the Petitioner's Case.
Appendix G
Field Case Report, Muskingum County Sheriff Dept • f Pages
17, 21, 22, 29, 45, 47, 56.
Table of Authorities
Gases
5
Evitts v. Lacey, 469 U.S. 387, 396 (1985)........................................
5
McCarthy v. United States, 39 U.S, 459, 66 (1969).................
5
Menna v. New York, 423 U.S. 61, 62 at Fh. 2.....................................
5
Oyler v. Boles, 368 U.S. 448, 456 (1962)..........................................
Smith v. Murray, 477 U.S. 527, 536 (1986)......................... ..............
5
3
State v. Beatty, Muskingum County Court of Appeals No. CT2020-0015
4
State v. Beatty, Ohio Supreme Court No. 2021-0838 (2021 Ohio 3091)
9
State v. Briggs, 2019 Ohio 5290................................... ............ ••••
State v. Brown, 131 Ohio App.3d 387, 392.........................................
13
13
State v. Curry, 1997 Ohio App. Lexis 95.........................................
12
State v. Dillon (2007), 11 Ohio St.3d 154, P23.......... ....................
State v. Fitch, 37 Ohio App.3d 159, 162............................................ 12, 13
13
State v. Martin, 16 (Mo App. 3d 172..................................................
10
State v. Nigrin, 2016 Ohio 2901
10
State v. Popp, 2017 Ohio 7432............................................................
10
State v. Zuravel, 2017 (Mo 1540..............
5
Strickland v. Washington, 466 U.S. 668 (198)......................
Statutes and Rules
Ohio Revised Code Section 2911.11.....
Ohio Revised Code Section 2911.21.......
Ohio Revised Code Section 2941.401....
Ohio Revised Code Section 2945.71.......
Ohio Rule of Appellate Procedure 26(B)
6
8, 9
12, 13
12
14
Other
Article IV, Section 5 Ohio Constitution
14
IN THE
n
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[ ] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix
the petition and is
to
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
l
The opinion of the United States district court appears at Appendix
the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[t^For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix__A__to the petition and is
[ ] reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
jy^is unpublished.
The opinion of the Otho caLtPfcgyws
CT"
court
to the petition and is
appears at Appendix
[V^reported at l(nQ Q&ib
IM3A.J
CMip BO*?/; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
L
1.
to
JURISDICTION
(
[ ] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was______________________
[ ] No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: ____________
and a copy of the
order denying rehearing appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including _
(date) on
(date)
in Application No.
A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
(
(V^or cases from state courts:
The date on which the highest state court decided my case was Sgpf« I.
A copy of that decision appears at Appendix *£>
.
[ ] A timely petition for rehearing was thereafter denied on the following date:
--------------------------- :____, and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including____
(date) on
(date) in
Application No. __ A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2.
Statement of the Case
This Fetition for a Writ of Certiorari is taken from a denial
by the Maskingam Coanty,
Ohio,
Coart of Appeals
reopen
Direct
Appeal
the
Petitioner's
Appellate Proced are
Petitioner's
that
the
and bat
26{B),
showing
that
ineffective
for
ander
which reqaires
Appellate
performance
Appellate Coansel*s
ref asal
to
Ohio
Rale
of
reopening
apon
the
Coansel
was
ineffective,
prejudiced
the
Petitioner,
deficient
performance,
there
is a reasonable likelihood that the oatcome of the Appeal wo aid
have been different.
The Petitioner easily satisfied those reqairemenis by showing
that he was scared into pleading gailty by threats made by the
State that were backed jp by Trial Coansel,
in a case where
the State Trial Coart had entirely lost jarisdiction to render
judgment of conviction and to, impose sentence; where the record
shows that
there is Constitrtionally insafficient evidence
have convicted the Petitioner;
by
either
Trial
or
and where raising these
Appellate
Coansel
weald
have
to
issaes
reqaired
dismissal of the indictment, with prej adice.
However, Appellate Coansel failed to raise these argaments,
which are "dead bang winners", and May 26, 2021, the Appellate
Co art deprived the
Petitioner of Dae Process
by
refasing
to
reopen the Appeal to allow these issaes to be decided on their
merits.
Tee State v. Beatty, Maskingam Coanty Appeal No. C7?Q2G~
0015, Appendix A.
The Petitioner then timely filed his Notice of Appeal and
Memorandam in Sapport of Jarisdiction in the Ohio Sapreme Coart.
3
The Ohio
14,
2021.
Sapreme Coart declined jarisdiction on September
See State v.
Beatty,
Ohio Sapreme Co art No.
2021-
0838, Appendix B.
The Petitioner now seeks review of the United States Sapreme
Coart, and requests that the United States Sapreme Chart Grant
Certiorari to correct the manifest miscarriage of jastice,
vacate the Jadgment
of
the Maskingara Coanty Coart of
Pleas that is void for want of j arisdiction,
violation of
and
Common
and otherwise in
Federal Law and the United States Constitation,
as pointed oat and argaed in this Petition.
4
REASONS FOR GRANTING THE PETITION
r
This Honorable Court ought to grant petition and set a brightline
rule
on
appellate
standard
counsel.
of
review
Albeit
this
for
Court
ineffective
assistance
has
unambiguously
made
it
of
clear that the hallmark of effective appellate advocacy is focusing
on
arguments
527,
"more
likely
to
succeed",
Smith v.
Murray,
477 U.S.
536 (1986), and due process is violated when appellate counsel
is
unable
to
protect
thee
v.
Lucey,
469
U.S.
the
midst
of
the
pronounced
in
Strickland
387,
appellant's
396
v.
such
(1985),
overshadowing,
substantive
misapplied
Washington,
has
rights,
lost
its
force
trial counsel
466 U.S.
668
Evitts
in
standard
(1984).
the
problem with universally applying Strickland to appellate proceed
ings
(
is
that
process .
late
of
equating
the
review
process
with
the
Both processes proceed under unique rules.
counsel
may
critique
the
performance
of
conviction
While appel-
trial
counsel,
the
same cannot be said of trial counsel critiquing appellate counsel's
Appellate counsel's role is a little more complex, because he isn't
constrained
to
just
out
plain
may
point
is
presumed
with
those
the
issues
error
or
omission
preserved
by
trial
jurisdictional
issues.
Prejudice
of
winning
arguments
"dead-bang"
counsel
but
and that is just what happened here.
It is plain error for a court to accept a guilty plea to less
than all
of the elements of an offense,
and this Court has previ
ously established such in McCarthy v. United States,
466
(1969)(must
Menna v.
l
be
New York,
a
423 U.S.
must be established);
(selective
formal
enforcement
criminal
61,
62
at
charge
fn.
and Oyler v. Boles,
of
the criminal
5
2
394 U.S.
supported
by
facts);
(1975)(factual
368 U.S.
laws when
459,
guilt
448, 456 (1962)
the elements are
not supported toy facts).
Elements of Aggravated Burglary:
As the Ohio Supreme Court denied jurisdiction to determine
the Petitioner's Claims, Ohio Court of Appeals was the highest
State Court to decided the claims, and based its denial of the
Petitioner's
and
challenge
sentence,
"trespass",
which
by
Petitioner on
to
he
holding
a
"no
his
Aggravated
Burglary
based
mostly
upon
the
element
of
Walmart's
act
of
placing
the
that
trespassing"
list
and
conviction
therefor
could
be
found to have trespassed,
stating that "While Walmart was open
to the public, it was not
'open' to him."
See judgment Entry
(Appendix B).
However, the Court of Appeals ignored the notice and knowledge
requirement of "trespass" in order to come up with the untenable
conclusion that a business, otherwise open to the public, could
single out and cause a person to become a criminal trespasser
by simply putting his name on
a list without showing that it
also provided notice to the person.
Ohio's
of which
version
of
Aggravated
Burglary,
the Petitioner was charged,
states, in pertinent part,
or deception,
another person
R.C.
2911 ,^(A) (1),
convicted and sentenced,
that "Wo person, by force,
shall trespass in an occupied structure
♦ « •
is present#
with purpose to commit
stealth,
when
••*
•••
any
criminal offense, if any of the following apply: (1) The offender
inflicts, or attempts to inflict physical harm on another".
Notwithstanding
that
the
Petitioner
is
actually
of the element of "inflict physical harm on another"
6
innocent
as
is
proven by Walmart video recording showing that it was the police
officer's own actions that caused himself injury, and a victim
injuring
his
own
self
is
very
different
than
"the
offender
the law and facts of the
inflicts physical harm on another",
case show the Petitioner is actually innocent of the elements
of the offense's main provision, Section (A).
The first element of Aggravated Burglary consists of three
alternative elements: by force, stealth, or deception*
One element of the main body of supposed "Aggravated Burglary"
was alleged to have occurred when the Petitioner walked through
a front door into a Walmart, while it was open to the public,
just like any other patron; the Petitioner did not have to force
his way in; nor did he have to sneak in by "stealth"; nor did
he have to engage
in "deception",
as he did not have to
lie
to anybody to gain entrance: he simply walked in.
Additionally, when the Petitioner was approached by police,
he was
"caught" in the attrocious
act of being in possession
of a shoping cart containing products in the very same manner
as
almost
all other
As
walmart shoppers,
the
police
failed
to find any items stashed in the Petitioner's pockets, or any
other indication
committed,
the
that
a
Petitioner
"with purpose to commit
However,
failure of
crime
because
•*•
of
is also
been
or
was
innocent of
about
to
be
the element of
any criminal offense".
his
his Appellate
had
lack
of
legal
knowledge
Counsel
to
raise these
and
the
issues,
the
Petitioner chose to base the majority of his challenge on the
essential
element of
"trespass":
7
invalidating that element
in
this
case
is a
"dead bang
winner",
and
the
allowing the Charge of Aggravated Burglary,
implications
of
and especially the
element of "trespass, to be misapplied and misused by Ohio Courts
will undoubtedly result
in
illegal
incarceration of
countless
Ohio citizens in the future.
Based upon the mere fact that the Petitioner was
able to
simply walk into Walmart unhindered and unchallenged, the State
could prove he was
trespassing only
the Petitioner had knowledge,
an
element
specifically
even
listed
if the
though
in
State could
"knowledge"
Aggravated
prove
is
Burglary.
not
This
is shown under the rule of "Para Materia":
Under Ohio law,
no person is guilty of "trespass"
without
"knowledge", and no person can have "knowledge" without "notice".
Arravated
Burglary's
"trespass"
element
is
a
"criminal
the phrase
"trespass
in
an
occupied
trespass"
as
exposed by
structure
•««
with purpose to commit in the structure
criminal
offense",
and
therefor,
Ohio's
"Criminal
«* •
any
Trespass"
statute, R.C. 2911,21, is relevant.
R.C.
prohibits
persons,
without
privilege to
do
so,
from
recklessly entering or remaining the land or premises of another,
as to which notice against unauthorized access or presence has
been given by actual
communication to the offender,
or
in
a
manner prescribed by law, or by posting in a manner reasonably
calculated
to
come
to
the
attention
of
potential
intruders,
or by fencing or other enclosure manifestly designed to restrict
access.
(A)(1)
generally prohibits persons
8
from Knowingly
entering
or remaining on the land or premises of another, under similar
circumstances•
(A)(2) prohibits the same conduct, with the same "Knowingly"
scienter, while more specifically relating to land or premises
that is lawfully restricted to certain persons, purposes,
or hours,
when the offender knows he
is
modes
in violation of any
such restrictions or is reckless in that regard.
(A)(3)
uses the same general language as
"Knowingly",
but
includes
a
specific
(A)(1),
requirement
including
that
notice
is given in some manner, and the offender disregards the risk
that he is intruding.
The Committee Notes that accompany R.C. 2911.21 are relevant
and show, not only that knowledge and notice are required, but
also, at ft 2,
that "All of the four separate types of conduct
defined as criminal
unprivileged.
trespassing
require that
such conduct
be
’Privilege*is defined by new section 2901.01 • • •
Privlege includes an invitation to enter, which is the premise
of
all
commercial
retail
advertisement,
including
Walmart's;
and especially Walmart's advertisements that it is open 24 hours
per day, every day, and never closes.
Ohio
law
does
allow
for
commercial,
as
well
as
other,
establishments, to rescind their invitation, and thus, a person’s
privilege to enter, but only where notice is actually provided
to the specific person.
In State v. Briggs,
2019 Ohio 5290, it was determined that
evidence was sufficient to establish a criminal trespass where
the State provided two letters sent to that defendant by a retail
9
establishment,
and
there
was
no
indication
that
the
retail
establishment had rescinded their letters.
In State v, Zuravel, 201? Ohio 1540, it was determined that
evidence was sufficient to establish a criminal trespass where
the State provided a letter sent to that defendant by a mayor
revoking that defendant's privilege to enter City Hall,
In State v, Popp,
2017 Ohio
7432,
it was determined that
evidence was sufficient to establish a criminal trespass where
a school
principal and
police officer told
that defendant
to
leave the school premises, and he refused.
In State v, Nigrin,
2016 Ohio 2901 , it was determined that
evidence was sufficient to establish a criminal trespass where
that defendant was aware he was not permitted on the premises,
having been warned by the resident and the police.
The State Court of Appeals* determination, in the Petitioner’s
case, that it was sufficient that Walmart had put his name on
a "no trespassing list", fails to meet the mark of the required
notice,
as nothing in that finding,
or on the record of
the
case, shows that the Petitioner was provided any notice at all,
let alone the actual notice required by Ohio law.
It
is
important
to
note
that
the
Committee
Notes
also
expressly state, though not in these exact words, that accidental
or
trespass
not
an
caused by error,
offense
under
Ohio
mistake,
law,
or
exposing
lack of notice,
that
knowlege
is
is
essential to prove trespass as an element of Aggravated Burglary,
The "notice" element of Aggravated Burglary that is inherent
in the "knowlege" required to establish the "trespass" element,
10
is notice that nust be given prior to the alleged "trespass"; without which,
there is no trespass, and thjts, no Aggravated Burglary; not the "Oh, by the
way III! after the fact "notice" relied on by the State Court of Appeals.
The record does contain a written no trespass order allegedly issued
to the Petitioner by Walmart, but that notice does not amount to the actual
and legal notice required by Ohio law, and is insufficient to prove Criminal
Trespass necessary to support a conviction of Aggravated Burglary.
One problem with the alleged "notice" is not signed,
wrote "refused" on the signature line.
Rather, someone
If Due Process allows unsigned
"notices", surely due process would also require sufficient evidence that
it was actually presented to a person who actually refused to sign, and that
the person was actually the Petitioner.
Another problem with the alleged "notice" is that it was alleged to
have been issued at a different Walmart, which leaves plenty of room for
reasonable doubt as to how employees of a different Walmart many miles from
the Walmart that supposedly issued the alleged "notice", could have identified
the Petitioner as being the same person who apparently refused to sign the
alleged "notice". See Appendix C: Notification of Restriction from Property.
A third problem with the alleged "notice" is that it was obviously
altered: the name originally written on the "notice" was visibly scratched
out, and the Petitioner's name written over top of the original, raising
the question: Was it merely an act of correcting an error; an act of amending
the "notice" previously issued to someone with a name similar make it appear
as if it had been issued to the Petitioner; or was it a complete fabrication?
Either way, the alleged "notice" is legally deficient and cannot be
relied upon to Constitutionally and lawfully deprive the Petitioner of years
of his life.
11
The State Coart of Appeals simply accepted the ansigned and modified
"notice" as real and accorate despite there being no evidence pat within
the record that woaid tend to show the alleged "notice" was genaine, or that
the person who "refased to sign" it was in fact the Petitioner, or that it
had ever actoally been presented to the Petitioner as "notice".
In deed,
had the Petitioner sabmitted a similar docoment porportedly exonerating him,
claiming, withoat evidence, that it was issaed by or to Walmart, bat Walmart
employees "refased to sign", the State Coart of Appeals woold have dismissed,
it as a forgery or as "self serving."
The Trial Co art Lacked Jorisdlctlon over the Criminal Action Below:
Under Ohio law, the time in which a person who is Incarcerated in a
state prison mast be tried is governed by R.C. 2941.401, rather than R.C.
2945.71, which relates to persons who are either free on bond or held in
a Coonty Jail.
R.C. 2941.401 enjoins a daty on the State to inform the incarcerated
person in writing, the Petitioner in this case, when a charge is pending,
so the incarcerated person may demand a speedy disposition of the charge(s)
in order to invoke the 180 day limit set by the statate before the State
Trial Coart loses jarisdiction over the criminal action.
It woold nallify the parpose of R.C. 2941.401 if the State's failore
to provide that notice woold operate to relieve the State of its harden and
daty to try cases within the time limit and mandates of the statate.
State
v. Fitch, 37 Ohio App.3d 159, 162.
Farther, if the State coaid simply avoid its statatory daty to provide
the notice mandated by the provision, the State coaid circamvent the parposes
of the statate, and relieve itself of its statatory daty and harden to try
cases within the time constraints set by R.C. 2941.401, State v. Dillon (2007)
12
144 Ohio St.3d 154, P23.
"The statute places an affirmative duty upon the state to
promptly advise the incarcerated defendant of his right to demand
final disposition of
the charge as well
existence of the charge.
as
the
fact of
the
Absent such advice, the state cannot
rely upon the defendant's failure to demand final disposition,
but must count the time as having commencing under R.C. 2941.401
upon the happening of
the
Brown,
387,
131
Ohio App.3d
Ohio App.3d
172;
Fitch,
first triggering event."
392,
Supra;
citing State v,
quoting
State v.
State v.
Martin,
Curry,
16
1997
Ohio App, Lexis 4495.
In accord with other Ohio Courts, Brown * s Trial Court held
the failure of the
State to perform its duty and notify the.
imprisoned defendant of the pending charges,
the defendant's duty to
request
so as to trigger
speedy disposition,
triggered
the 180-day time limit and required dismissal of the indictment
with prejudice;
the
State appealed,
and
the Court of Appeals
affirmed.
Thus, because the State failed to inform the Petitioner of
the
fact
that
the
charges were
pending
in
the
actions
below,
the
180-day
limit
for
purposes
2941.401
began
in
July
time
2019,
and
had
expired
disposition in the cases on February 18, 2020,
two
prior
criminal
of
R.C.
to
the
and the statute
specifically states that "If the action is not brought to trial
within the time provided,
subject to any continuances
allowed
pursuant to this section
(which no such continuances
occurred
in
Petitioner's
case),
no
court
13
any
longer
has
jurisdiction
thereof,
the
indictment,
information,
or
complaint
is
void,
and the court shall enter an order dismissing the action with
prejudice".
The Petitioner's right to notice is a substantive due process
right, as is his right to have each of the elements of an offense
proven beyond a reasonable doubt.
The Co art of Appeals Deprived the Petitioner of Dae Process of Law by
Failing to Reopen the Appeal Under Ohio Rule of Appellate Procedure 26(B).
Ohio law mimics Constitutional Separation of Powers.
Article IV, Section 5, of Ohio's Constitution gives Ohio’s Supreme Court
the power to set Rules of Practice, including Appellate Rule 26(B).
The
power as law equaling that of Ohio’s statutory law is demonstrated by the
clause that declares a Rule of Procedure supersedes any statutory provision
governing procedure that conflicts with the Rule of Procedure.
Ohio Rule of Appellate Procedure 26(B) has a provision that states a
Court of Appeals shall reopen an appeal, making it mandatory, where an
Appellant demonstrates he was prej udiced by an actual showing of Ineffective ■
Assistance of Appellate Counsel.
Ohio law requires proof beyond a reasonable doubt that a defendant
knowingly trespass in an occupied structure for the purpose of committing
a criminal offense therein.
App.R. 26(B) requires a showing that there is a reasonably likelihood
that, but for the ineffective assistance of Appellate Counsel, the outcome
of the appeal would have been different; it does not require an absolute
certainty the outcome would have been different.
This case has no reliable evidence, i.e • 9 ins uf ficient evidence, of
the trespass element because the unsigned "notice" and lack of evidence to
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show the Petitioner was served with it, and was actually the person who
refused to sign it, and therefore knew of the "notice".
Without Notice,
there is no trespass under Ohio law, and with no trespass, there is no
Aggravated Burglary, and therefore, Appellate Counsel provided ineffective
assistance by failing to raise and argue that issue, as, had that issue been
raised and argued, but for Appellate Counsel's ineffective assistance, there
is a reasonable likelihood the outcome of the appeal would have been
different.
Ihe Petitioner filed two Motions seeking to fire his Trial Counsel,
outlining his claim that the State's Response to his Discovery Bequest .
revealed no evidence of Aggravated Burglary and other offenses, and outlining
that his Trial Counsel was singly attempting to get a better plea deal rather
than preparing for an actual trial. (See Appendices D, E, and F.)
I. ■' ' '
: ;
■■ j
These Motions and attache! letter to Trial Counsel show the Petitioner
entered his guilty plea out of fear only after Trial Counsel and the
Prosecutor, both threatening the Petitioner together as a team, coerced the
Petitioner and stating that a trial would result in conviction and a sentence
of at least 30 years.
The mere existence of these Motions on the record show competent Counsel
should have been aware of the issues.
lastly, because Ohio law is that the failure of the State to provide
the Petitioner with written notice of pending charges deprives the Petitioner
of his ability to demand a speedy trial, and therefore begins the 180 tine
limit,
from the first triggering event,
until the Trial Court
loses
jurisdiction over the case, as if notice had been given the Petitioner, and
demand had been made for speedy disposition, had that issue been raised and
argued by Appellate Counsel, there is a reasonable likelihood that the outcome
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of the trial woaid have been different.
Prejodice seems obvioas to the Petitioner: bat for Appellate Coonsel's
ineffective assistance, there is a reasonable likelihood his conviction wo aid
have been overtamed, and he woaid have been acqaitted of Aggravated Borglary
at a minimom; considering that he had prodacts in a shopping cart and not
concealed; Walmart employees only saspected him of something they coalcln't
qaite name; the police officer who was Injored, injored himself when he tackled
' the Petitioner, who had, at that point, only lied aboat his identity to avoid
arrest on a pending warrant, had not assaalted the officers and had not yet
attempted to flee.
(See Field Case Report excerpt, page 17, Appendix G.)
These Issaes, which reqoire reversal onder Ohio and Federal law, presented
a prima facie showing of ineffective assistance of Appellate Coonsel, and
the State Coart of Appeals deprived the Petitioner of Dae Process by failing
to reopen the Direct Appeal as mandated by Ohio Rale of Appellate Procedore
26(B).
Conclasion
The Petitioner was deprived of NOTICE of the so called "No Trespass Order"
then convicted of a major offense that reqaires NOTICE of that prior to the
offense having been committed,
Imagine: Walmart, or any other. store that
is open to the poblic, can pick and choose who goes to jail or prison simply
by saying they served a "No Trespass Order" and the person refosed to sign,
after calling the police to say the saspect, as in this case, MIGHT be ap
to something simply becaase he was wearing a hood and had Items in a shopping
cart.
(See Field Case Report excerpt, page 21, 29, 56.)
The Petitioner simply
had prodacts in a cart, and there is no evidence, other than he was wearing
a hood (as many people do), and "looked very saspicloas", that he was doing
anything other than shopping.
(If that were safficient, nobody who wears
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a hood, or pats items in a shopping cart coaid ever enter a store again.
The Petitioner was also deprived of NOTICE of the pending charged despite
a clear statatory mandate enjoining a specific daty apon the State to provide
the Petitioner with NOTICE; then,
in a 180 degree flip of what the law
reqaires, the Petitioner was held accountable by the State Court of Appeals
for "failing" to make a demand for a speedy disposition that he had no
knowledge or means of making without such NOTICE, and thus, he was held
accountable for the State's failure to comply with mandatory law to provide
the Petitioner with that NOTICE.
This case revolves around the lack of NOTICE, and NOTICE is an apex
element of Due Process.
Without NOTICE, there can be no Due Process, as Due
Process begins with NOTICE.
Wherefore, the United States Supreme Court should GRANT Certiorari and
allow this matter to be fully briefed, argued, and decided on its merits,
and a decision rendered answering the Questions Presented.
John A. Beatty
Petitioner
Dated:
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.