Appendix — Mankin v. Ohio

84-19 54. a TTles

JUN 24 Re

NO. ALEXANDER L. STEVag

CLERK

a

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

ROBERT MANKIN, SR., PETITIONER

V.

STATE OF OHIO

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR ROSS COUNTY, OHIO

William H. Allyn, Jr.*

75 West Second Street

Chillicothe, Ohio 45601

(614) 773-5534

and

J. Donald Ratcliff

282 West Second Street

Chillicothe, Ohio 45601

(614) 775-6944

Attorneys for Petitioner

*Counsel of Record

We

iti ee

TABLE OF CONTENTS

Appendix A

Entry & Order of the Court of Common Pleas of

Ross County, Ohio, of July 14, 1981................ A-1

Appendix B

Opinion of October 5, 1982, of the Court of Appeals

ee a oy acs a eee s eee A-3

Appendix C

Judgment Entry of October 22, 1981, of the Court

of Appeals for Ross County, Ohio ................. A-5

Appendix D

Journal Entry of March 2, 1983, of the Supreme

No ee ore et Pore A-6

Appendix E

Judgment Entry of Sentence of August 18, 1983, of

the Common Pleas Court of Ross County, Ohio ..... A-7

Appendix F

Opinion of the Court of Appeals of Ross County,

ee a Perr Tae Pee A-11

Appendix G

Judgment Entry of February 6, 1985, of the Court

of Appeals for Ross County, Ohio ................. A-15

Appendix H

Entry and Order of the Supreme Court of the

Slee OF GINS OF AGTH 97, TOE oe vec Cow ecceesees A-16

Appendix |

Constitutional Provisions, Statutes, and Rules

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Si cc ete ios bes cea aya enes Soba ween A-20

cc aus tasek' baked awk hh ka een A-21

IE Divan) ica ea hae WkS Rha) awe kRae Cee A-22

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APPENDIX A

ENTRY & ORDER OF THE COURT OF COMMON PLEAS OF

ROSS COUNTY, OHIO, OF JULY 14, 1981

IN THE COURT OF COMMON PLEAS

ROSS COUNTY

STATE OF OHIO

Plaintiff, Case No. 81 CR 58

vs JUDGE MOWREY

ROBERT MANKIN ENTRY

Defendant.

On the 6th day of July, 1981, this matter came on for

hearing upon the defendant’s motion to suppress evidence

filed May 15, 1981, and the State of Ohio’s Motion to strike

the defendant's motion to suppress evidence filed May 19,

1981 for the reason that the defendant’s motion was not

timely filed. After careful consideration of this matter and

the arguments of counsel, it is the order of the Court that

the State of Ohio’s motion to strike the defendant’s motion

to suppress from the record is hereby sustained and the

defendant’s motion to suppress evidence is hereby stricken,

to all of which the defendant excepts.

It is a further order of the Court that counsel for the

defendant comply with the Court’s order of May 15, 1981 by

providing reciprocal Discovery to the State of Ohio by July

8, 1981.

/s/ Valla B. Mowrey, Jr.

JUDGE VALLA B. MOWREY, JR.

Common Pleas Court

Ross County, Ohio

APPROVED:

/s/ Jack C. Kellengerger

JACK C. KELLENBERGER

Assistant Prosecuting Attorney

Ross County, Ohio

/s/ J. Donald Ratcliff

J. DONALD RATCLIFF

Attorney for Defendant

/s/ Richard B. Middleton

RICHARD B. MIDDLETON

Attorney for Defendant

A-2

APPENDIX B

OPINION OF OCTOBER 5, 1982, OF THE

COURT OF APPEALS FOR ROSS COUNTY, OHIO

COURT OF APPEALS, ROSS COUNTY, OHIO

STATE OF OHIO

Plaintiff- Appellee Case No. 922

vs. OPINION

ROBERT MANKIN, SR.

Defendant- Appellant

COUNSEL FOR APPELLANT:

J. Donald Ratcliff

28% W. Second St., Chillicothe, Ohio

Richard B. Middleton

10 E. Main St., Chillicothe, Ohio

COUNSEL FOR APPELLEE:

Richard G. Ward, Prosecuting Atty.

Ross Co., Ohio

18 Foulke Block, Chillicothe, Ohio

ABELE, J.:

This is an appeal from an October 5, 1981, Ross County

Common Pleas Court judgment overruling Defendant's Mo-

tion for Reconsideration of a July 14, 1981, pre-trial judg-

ment. The Grand Jury indicted Defendant on March 13,

1981, for two counts of Receiving Stolen Property in viola-

tion of Ohio Revised Code Section 2913.51 and one count of

Unlawful Possession of a Dangerous Ordnance in violation

of Ohio Revised Code Section 2923.17. The Court arraigned

Defendant on March 16, 1981. At an April 10, 1981, pre-

trial hearing, the Court extended the Ohio Criminal Rule

12 thirty-five day time limit for filing motions to suppress

until May 7, 1981.

A-3

On May 15, 1981, sixty days after his arraignment,

Defendant filed his Motion to Suppress. The State moved to

strike the Motion to Suppress. On July 14, 1981, the Court

ordered Defendant's Motion to Suppress striken from the

files.

At a September 30, 1981, pre-trial hearing, Defendant

moved the Court to reconsider the July 14, 1981 judgment

striking Defendant's Motion to Suppress from the files. On

October 5, 1981, the Court overruled Defendant's Motion

for Reconsideration.

Defendant appeals from the October 5, 1981, judg-

ment. Plaintiff moves to dismiss the appeal.

We must dismiss Defendant's appeal because the Oc-

tober 5, 1981, judgment is not a final appealable order.

Ohio Revised Code Section 2505.02 defines final appealable

orders:

“An order affecting a substantial right in an action

which in effect determines the action and prevents a

judgment, an order affecting a substantial right made

_ in a special proceeding or upon a summary application

in an action after judgment, or an order vacating or

setting aside a judgment and ordering a new trial is a

final order which may be reviewed, affirmed,

modified, or reversed, with or without retrial.”

Rulings or pre-trial motions in criminal cases are generally

not final appealable orders. State v. Curtis (1965) 2 0. App.

2d 206 N.E. 2d 217; State v. Himelrich (1954) 100 0. App.

476, 137 N.E. 2d 297. Judgments denying of motions to

suppress are not final appealable orders. State v. Wetzer

(1963) 118 0. App. 368, 194 N.E. 2d 911. Judgments on

motions for reconsideration are not final appealable orders.

Pitts v. Department of Transportation (1981) 67 0. St. 2d

378, 423 N.E. 2d 1105.

Appellee’s Motion to Dismiss is GRANTED.

APPEAL DISMISSED.

Grey, P.J.: Concur in Judgment & Opinion

Stephenson, J.: Concur in Judgment & Opinion

A-4

APPENDIX C

JUDGMENT ENTRY OF OCTOBER 22, 1981, OF THE

COURT OF APPEALS FOR ROSS COUNTY, OHIO

COURT OF APPEALS, ROSS COUNTY, OHIO

State of Ohio,

Plaintiff-Appellee, No. 922

vs.

Robert Mankin, Sr. JUDGMENT ENTRY

Defendant-Appellant

For the reasons set forth in the opinion filed previously

herein, i.e. that there is no final appealable order, this case

is dismissed. Costs to appellant.

/s/ Lawrence Grey

Lawrence Grey

Presiding Judge

A-5

APPENDIX D

JOURNAL ENTRY OF MARCH 2, 1983, OF THE

SUPREME COURT OF THE STATE OF OHIO

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO 1983 TERM

CITY OF COLUMBUS

To wit: March 2, 19838

STATE OF OHIO,

Appellee, No. 82-1749

vs. MOTION FOR LEAVE TO

APPEAL FROM THE

ROBERT MANKIN, SR. COURT OF APPEALS

Appeallant for Ross County

It is ordered by the court that this motion is overruled.

Costs: Motion fee, $20.00, paid by J. Donald Ratcliff.

I, James Wm. Kelly. Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the

Court this day

of 19 ila

Clerk

Deputy

A$

APPENDIX E

JUDGMENT ENTRY OF SENTENCE OF AUGUST 18, 1983,

OF THE COMMON PLEAS COURT OF ROSS COUNTY, OH!O

IN THE COURT OF COMMON PLEAS,

ROSS COUNTY, OHIO

STATE OF OHIO

Plaintiff, CASE NO. 81 CR 58

vs. JUDGE MOWREY

ROBERT MANKIN JUDGMENT ENTRY

OF SENTENCE

Defendant

On or about the 16th day of March 1981, the defendant,

Robert Mankin, represented by his attorneys Richard Mid-

dleton and J. Donald Ratcliff, and the State represented by

the Assistant Prosecuting Attorney were present before the

Court. At that time, the defendant, through his attorneys,

entered pleas of not guilty to the Indictment charging thie

counts, to-wit: Counts One and Two charging Receiving

Stolen Property, Section 2913.51 of the Ohio Revised Code

and Count Three charging Unlawful Possession of a

Dangerous Ordnance, Section 2923.17 of the Ohio Revised

Code.

On or about the Ist day of July, 1983, the defendant, his

attorneys and the Assistant Prosecuting Attorney were again

present before the Court. Thereupon the defendant,

through his attorneys advised the Court that he had decided

to enter pleas of guilty to the charges contained in the In-

dictment. The Court read the defendant Section 2913.51 of

the Ohio Revised Code and advised the defendant that the

offense of Receiving Stolen Property is a Fourth Degree

Felony carrying a maximum perialty of two to five years in a

penal institution and a possible fine of up to $2,500. The

Court then read the defendant Section 2913.51 of the Ohio

A-7

Revised Code and advised the defendant that the offense of

Receiving Stolen Property as charged in Count Two of the

Indictment is a First Degree Misdemeanor carrying a maxi-

mum penalty of six months in a penal institution and a

possible fine of up to $1,000. The Court then read the

defendant Section 2923.17 of the Ohio Revised Code and

advised the defendant that the offense of Unlawful Posses-

sion of a Dangerous Ordnance is a Fourth Degree Felony

carrying a maximum penalty of two to five years in a penal

institution and a possible fine of up to $2,500. The Court

further inquired of the defendant:

1. Whether he fully understood the effect of his pleas of

guilty and that the Court upon acceptance of his pleas,

might proceed with judgment and sentence.

2. Whether the defendant understood that by entering

pleas of guilty, he would be waiving his right to a trial by

jury or a trial by the court, to confront witnesses against

him, to have compulsory process for obtaining witnesses in

his favor (power of subpoena), and the right to require the

State to prove his guilt beyond a reasonable doubt at a trial

before the court or before a jury where the defendant could

not be compelled to testify against himself.

To each of the above inquiries, the defendant gave an

affirmative answer. Thereupon, the defendant, through

counsel, presented to the Court his completed petition to

enter pleas of guilty, signed by both the defendant and his

attorneys.

The Court, being fully satisfied that the defendant did

commit the offenses of Receiving Stolen Property (2 counts)

and Unlawful Possession of a Dangerous Ordnance and that

the defendant fully understands the nature of the charges

against him and the consequences of his pleas of guilty,

foune the defendant guilty as he stands charged in the

Indic.ment.

Taereupon, the defendant was served written notice by

the Court advising him that he had the choice to elect bet-

ween an indefinite sentence and a definite sentence for the

offenses of Receiving Stolen Property as charged in Count

One and Count Two of the Indictment and the offense of

Unlawful Possession of a Dangerous Ordnance as charged in

Count Three of the Indictment. Further, that should the

defendant elect an indefinite sentence, the minimum im-

prisonment for each charge would be one-half, one, one

and one-half, or two years but not more than five years. If

the defendant chose a definite sentence, he could be im-

prisoned for one-half, one, or one and one-half years. The

defendant was further advised that if he refused to choose

between either of the sentences, he would be sentenced pur-

suant to the law in effect at the time of the commission of

the offense. Defendant was further advised that the written

notice provided to him would have to be executed by him

and returned to the Court prior to sentencing.

On August 12, 1983, the defendant again appeared in

Court for sentencing and at that time, the Court found that

the defendant had elected an indefinite sentence for Counts

One and Three of the Indictment. The defendant was then

given an opportunity to speak on his own behalf and present

information in mitigation. Counsel for the defendant was

given an opportunity to make a statement on behalf of the

defendant. The Court finding no good and sufficient cause

being shown to mitigate the punishment and nothing being

said by the defendant as to why sentence should not now be

imposed, sentence and judgment was pronounced as

follows: For the offense of Receiving Stolen Property, Sec-

tion 2913.51 of the Ohio Revised Code as charged in Count

One of the Indictment, you are hereby sentenced to the

Ohio State Penitentiary for an indefinite period of not less

than six months nor more than five years. For the offense of

Receiving Stolen Property, Section 2913.51 of the Ohio

Revised Code as charged in Count Two of the Indictment,

you are hereby sentenced to the Ohio State Penitentiary for

a determinant period of six months. For the offense of

Unlawful Possession of a Dangerous Ordnance, Section

2923.17 of the Ohio Revised Code as charged in Count

Three of the Indictment, you are hereby sentenced to the

Ohio State Penitentiary for an indeterminate period of not

less than six months nor more than five years and ordered to

pay the costs of this prosecution and that any bond posted is

hereby released. It is the further order of the Court that you

be given jail time credit in the amount of 8 days toward the

sentence imposed.

/s/ Judge Val B. Mowrey, Jr.

JUDGE VAL B. MOWREY, JR.

Common Pleas Court

Ross County, Ohio

APPENDIX F

OPINION OF THE COURT OF APPEALS OF

ROSS COUNTY, OHIO, OF JANUARY 15, 1985

COURT OF APPEALS, ROSS COUNTY, OHIO

STATE OF OHIO,

Plaintiff- Appellee, No. 1075

vs.

ROBERT MANKIN, SR., OPINION

Defendant-Appellant

COUNSEL FOR APPELLANT:

J. Donald Ratcliff,

28% W. Second St., Chillicothe, Ohio 45601

Richard B. Middleton,

10 E. Main St., Chillicothe, Ohio 45601

COUNSEL FOR APPELLEE:

Christine B. Henthorne, Assistant Prosecutor

Suite 23, Foulke Block, Chillicothe, Ohio 45601

GREY, J.:

This is an appeal from the Ross County Court of Com-

mon Pleas, finding appellant guilty of two counts of receiv-

ing stolen property and one count of possession of a

dangerous ordnance. Appellant entered a plea of no contest

after the trial court denied a motion to suppress evidence.

Assignments of error 1 and 2 involve the motion to sup-

press:

I. It is error for the court to overrule the defendant

(appellant) Robert Mankin, Sr.’s motion which re-

quested the court to reconsider its previous ruling that

denied the defendant the right to suppress illegally ob-

tained evidence.

A-11

II. It was error for the trial court, after a plea of no

contest to find the defendant guilty upon evidence of-

fered by the State of Ohio; that was illegally obtained

evidence and based upon a search used as its probable

cause for its issue legally obtained evidence by an elec-

tronic surveillance of the appellant. The court orders

obtained for this eavesdropping by means of a trans-

mitter and receiver; such a method of obtaining pro-

bable cause for a search warrant, if it were not approv-

ed by a court in and of itself, would be illegal per se.”

Appellant’s motion to suppress was denied not on the

merits, but because it was not filed within the time limits of

Cr. R. 12(C), which requires that the motion be made

within 35 days of arraignment or at any other time set by

the court.

Appellant’s arraignment was March 16, 1981. The 35

day limit would have expired on April 21. On April 10, the

court extended the time for discovery. Appellant was to

complete his discovery requests by April 17th, and file his

motion to suppress by May 7th. The court also set a date

and time for hearing the motion, May 15th. Discovery was

completed according to schedule, but appellant did not file

his motion to suppress on May 7. Appellant also failed to

show for the hearing scheduled for 1:00 p.m. on the 15th.

Appellant’s counsel was located and several hours later,

about 3:30 p.m., did appear in court and filed a motion to

suppress. At appellant’s request the hearing was continued.

The state filed a motion to strike the motion to suppress. On

July 6th the court ordered the motion stricken as not timely

filed.

Under Cr. R. 12(G), appellant waived his right to sup-

press evidence by failing to bring his motion by the date set

by the court. The court may grant relief from this waiver for

good cause shown, but this is a matter of discretion. State

vs. Moody (1978), 55 Ohio St. 2d 64; State vs. Gibson

(1980), 69 Ohio App. 2d 91; Slate vs. Johnson (6th Cir.

A.49

Ohio, 1978) 579 Fed. 2d 1007. Appellant asserted that he

was overwhelmed by the State’s discovery response, contain-

ing a list of 127 items seized under a warrant. But he had

made no attempt to view the items, to inform the Court or

State of his concerns, or to request an extension. His failure

to appear in court is alone sufficient grounds for rejecting

his claim on procedural grounds. Even so, the trial court

did not summarily overrule appellant’s motion. It set a new

hearing and in the interim accepted appellant’s written

argument.

Under these circumstances, only the most compelling

constitutional violation would establish good cause to grant

relief from the waiver of appellant’s right to move for sup-

pression of evidence. We have reviewed the substance of ap-

pellant’s claim and find that it has no merit. Appellant's

claim is that an illegal electronic transmission and tape

recording was made of appellant’s conversations with a U.S.

Treasury Agent who purchased the stolen property and

dangerous ordnance from appellant. These taped conversa-

tions were offered as probable cause for the issuance of a

search warrant. Appellant argued that the transmission and

recording violated his expectations of privacy and federal

and state wiretapping’ laws. However, both the federal

wiretapping statute, 18 U.S.C. §2511, and the parallel state

statute, R.C. 1933.58 contain express permission for in-

terception of conversations when one of the parties has con-

sented. Appellant has cited no authority for a legitimate ex-

pectation of privacy in an oral conversation with a stranger.

Since the transmission and recording of these conversations

was legal, the search warrant was valid.

We therefore find no prejudicial error nor any reason

for relieving appellant from his failure to timely move for

the suppression of evidence. The trial court did not abuse its

discretion in striking the motion or in denying appellant's

subsequent request for reconsideration. Assignments of er-

ror 1 and 2 are overruled.

Assignment of error 3:

A-13

“The defense of entrapment is established where the

criminal design originates with the officials of the

government, and they implant in the mind of an inno-

cent person the disposition to commit the alleged of-

fense and induce its commission in order to prosecute.”

This assignment of error is totally without merit. Except

for the specific issues preserved under Cr. R. 12(H), a

defendant pleading no contest under Cr. R. 11(B)(2),

waives his rights to call witnesses, testify, and present a

defense. The rule clearly states that a plea of no contest is

an admission of the truth of the facts alleged in the indict-

ment. These matters are fully explained to appellant by the

court prior to its acceptance of his plea, and are contained

in the written plea statement signed by appellant.

The facts presented to the trial court satisfied the

statutory elements of receiving stolen property and posses-

sion of a dangerous ordnance, and the court properly ac-

cepted the plea. Appellant may not assign error to the ac-

ceptance of his plea of no contest by making exculpatory

allegations of fact in an appelate brief. Assignment of error

3 is overruled.

The judgment of the trial court is affirmed.

JUDGMENT AFFIRMED

ABELE, P.J. & STEPHENSON, J. CONCUR

IN JUDGMENT & OPINION

A-14

APPENDIX G

JUDGMENT OF ENTRY OF FEBRUARY 6, 1985, OF THE

COURT OF APPEALS FOR ROSS COUNTY, OHIO

IN THE COURT OF APPEALS OF

ROSS COUNTY, OHIO

State of Ohio

Plaintiff- Appellee, No. 1075

vs.

Robert Mankin, Sr., JUDGMENT ENTRY

Defendant- Appellant

This cause came to be heard upon the appeal on con-

sideration of law, assignments of error, the record from the

Court of Common Pleas of Ross County, and was submitted

to the court on the briefs.

Upon consideration thereof, the court finds that the

assignments of errors are not well taken for the reasons set

forth in the opinion filed herein and made a part thereof.

It is therefore ordered by the court that the judgment of

the trial court be, and the same is hereby affirmed.

It is further ordered that a mandate be sent to the Court

of Common Pleas of Ross County for execution upon this

judgment. |

Costs to be taxed in compliance with Rule 24, Appellate

Rules.

And the court being of the opinion that there were

reasonable grounds for this appeal, allows no penalty.

ft is further ordered that a certified copy of this judg-

ment, with a copy of the opinion attached, shall constitute

the mandate pursuant to Rule 27, Ohio Rules of Appellate

Procedure.

To all of which the appellant, by counsel, excepts.

/s/ Homer E. Abele, Presiding Judge

Homer E. Abele, Presiding Judge

A-15

APPENDIX H

ENTRY AND ORDER OF THE SUPREME COURT OF

THE STATE OF OHIO OF APRIL 17, 1985

THE SUPREME COURT OF OHIO, COLUMBUS

1985 TERM

To wit: April 17, 1985

State of Ohio,

Appellee, : Case No. 85-339

v. ENTRY

Robert Mankin, Sr.,

Appellant.

Upon consideration of the motion for an order directing

the Court of Appeals for Ross County to certify its record

and the claimed appeal as of right from same said Court, it

is ordered by the Court that said motion is overruled and

the appeal is dismissed sua sponte for the reason that no

substantial constitutional question exists therein.

COSTS:

Motion Fee, $20.00, paid by J. Donald Ratcliff.

/s/ Frank D. Celebrezze

FRANK D. CELEBREEZE

Chief Justice

I, James Wm. Kelly, Clerk of the Supreme Court of

Ohio, do hereby certify that the foregoing order was cor-

rectly copied from the records of said Court, to wit, from

the Journal of this Court.

IN WITNESS WHEREOF, I have hereunto subscribed

my name and affixed the seal of said Court, this date

/s/ James Wm. Kelly CLERK

/s/ Sam F. Adkins DEPUTY

aA Sete OLED

APPENDIX | - CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES INVOLVED

Appendix I-1 - U.S. Constitution, amendment IV.

Appendix I-2 - U.S. Constitution, amendment XIV,

Section 1.

Appendix I-3 - 18 U.S.C. §2510 (1), (2), (4), and (11).

Appendix I-4 - 18 U.S.C. §2515.

Appendix I-5 - 18 U.S.C. §2518 (10)(a).

Appendix I-6 - Rule 12, Ohio Rules of Criminal Procedure.

A-17

APPENDIX I-1: U.S. CONSTITUTION,

AMENDMENT IV

AMENDMENT IV

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be search-

ed, and the persons or things to be seized.

A.128

APPENDIX I-2: U.S. CONSTITUTION

AMENDMENT XIV, SECTION 1

AMENDMENT XIV (1868)

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or proper-

ty, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

A-19

APPENDIX I-3: 18 U.S.C. §2510

§2510. Definitions

As used in this chapter (18 USCS §§2510 et seq.)-

(1) “wire communication” means any communication

made in whole or in part through the use of facilities

for the transmission of communications by the aid of

wire, cable, or other like connection between the point

of origin and the point of reception furnished or

operated by any person engaged as a common carrier

in providing or operating such facilities for the

transmission of inerstate or foreign communications;

(2) “oral communication” means any oral communica-

tion uttered by a person exhibiting an exception that

such communication is not subject to interception

under circumstances justifying such expectation;

* * * * * * * * *

% * * * * * * * *

(4) “intercept” means the aural acquisition of the con-

tents of any wire or oral communication through the

use of any electronic, mechanical, or other device.

* * * . * * * * a

(11) “aggrieved person” means a person who was a

party to any intercepted wire or oral communication or

a person against whom the interception was directed.

A.On

APPENDIX I-4: 18 U.S.C. §2515

§2515. Prohibition of use as evidence of intercepted wire

or oral communications.

Whenever any wire or oral communication has been in-

tercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in

evidence in any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority of

the United States, a State, or a political subdivision thereof

if the disclosure of that information would be in violation of

this chapter.

(18 USCS §§2510 et seq.)

A-21

APPENDIX I-5: 18 U.S.C. §2518 (10a)

§2518. Procedure for interception of wire or oral com-

munications.

x * * * * * 2 ” *

(10)(a) Any aggrieved person in any u.al, hearing, or pro-

ceeding in or before any court, department, officer, agency,

regulatory body, or other authority of the United States, a

State, or a political subdivision thereof, may move to sup-

press the contents of any wire or oral communication in-

tercepted pursuant to this chapter (18 USC §§2510 et seq.),

or evidence derived therefrom, on the grounds that-

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which

it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with

the order of authorization or approval.

Such motion shall be made before the trial, hearing, or pro-

ceeding unless there was no opportunity to make such mo-

tion or the person was not aware of the grounds of the mo-

tion. If the motion is granted, the contents of the in-

tercepted wire or oral communication, or evidence derived

therefrom, shall be treated as having been obtained in

violation of this chapter (18 USCS §§2510 et seq.). The

judge, upon the filing of such motion by the aggrieved per-

son, may in his discretion make available to the aggrieved

person or his counsel for inspection such portions of the in-

tercepted communications or evidence derived therefrom as

the judge determines to be in the interests of justice.

APPENDIX 1-6: RULE 12

OHIO RULES OF CRIMINAL PROCEDURE

RULE 12. Pleadings and Motions Before Trial:

Defenses and Objections

(A) Pleadings and motions. Pleadings in criminal pro-

ceedings shall be the complaint, and the indictment or in-

formation, and the pleas of not guilty, not guilty by reason

of insanity, guilty, and no contest. All other pleas, demur-

rers, and motions to quash, are abolished. Defenses and ob-

jections raised before trial which heretofore could have been

raised only by one or more of them shall be raised only by

motion to dismiss or to grant appropriate relief, as provided

in these rules.

(B) Pretrial motions. Any defense, objection, or re-

quest which is capable of determination without the trial of

the general issue may be raised before trial by motion. The

following must be raised before trial:

(1) Defenses and objections based on defects in the in-

stitution of the prosecution;

(2) Defenses and objections based on defects in the in-

dictment, information, or complaint (other than failure to

show jurisdiction in the court or to charge an offense, which

objections shall be noticed by the court at any time during

the pendency of the proceeding);

(3) Motions to suppress evidence, including but not

limited to statements and identification testimony, on the

ground that it was illegally obtained. Such motions shall be

filed in the trial court only;

(4) Requests for discovery under Rule 16;

q (5) Requests for severance of charges or defendants

| under Rule 14.

. (C) Motion date. All pretrial motions excep as pro-

vided in Rule 7(E) and Rule 16(F) shall be made within

thirty-five days after arraignment or seven days before trial,

whichever is earlier. The court in the interest of justice may

extend the time for making pretrial motions.

| A-23

(D) Notice by the prosecuting attorney of the inten-

tion to use evidence.

(1) At the discretion of the prosecuting attorney. At

the arraignment or as soon thereafter as is practicable, the

prosecuting attorney may give notice to the defendant of his

intention to use specified evidence at trial, in order to afford

the defendant an opportunity to raise objections to such

evidence prior to trial under subsection (B)(3).

(2) At the request of the defendant. At the arraign-

ment or as soon thereafter as is practicable the defendant

may, in order to raise objections prior to trial under subsec-

tion (B)(3), request rotice of the prosecuting attorney's in-

tention to use evidence in chief at trial, which evidence the

defendant is entitled to discover under Rule 16.

(E) Ruling on motion. A motion made before trial

other than motion for change of venue, shall be timely

determined before trial. Where factual issues are involved

in determining a motion, the court shall state its essential

findings on the record.

' (F) Return of tangible evidence. Where a motion to

suppress tangible evidence is granted, the court upon re-

quest of the defendant shall order the property returned to

the defendant if he is entitled to lawful possession thereof.

Such order shall be stayed pending appeal by the state pur-

suant to Rule 12(J).

(G) Effect or failure to raise defenes or objections.

Failure by the defendant to raise defenses or objections or to

make requests which must be made prior to trial, at the

time set by the court pursuant to subdivision (C), or prior to

any extension thereof made by the court, shall constitute

waiver thereof, but the court for good cause shown may

grant relief from the waiver.

(H) Effect of plea of no contest. The plea of no contest

does not preclude a defendant from asserting upon appeal

that the trial court prejudicially erred in ruling on a pretrial

motion, including a pretrial motion to suppress evidence.

(I) Effect of determination. If the court grants a

A-24

+ 2 oeretinten tse

motion to dismiss based on a defect in the institution of the

prosecution or in the indictment, information, or com-

plaint, it may also order that the defendant be held in

custody or that his bail be continued for a specified time not

exceeding fourteen days, pending the filing of a new indict-

ment, information, or complaint. Nothing in this rule shall

affect any statute relating to periods of limitations. Nothing

in this rule shall affect the state’s right to appeal an adverse

ruling on a motion under subsections (B)(1) or (2), when

such motion raises issues which were formerly raised pur-

suant to a motion to quash, a plea in abatement, a demur-

rer, OF a motion in arrest of judgment.

(J) State’s right of appeal upon granting of motion to

return property or motion to suppress evidence. The state

may take an appeal as of right from the granting of a mo-

tion for the return of seized property, or from the granting

of a motion to suppress evidence if, in addition to filing a

notice of appeal, the prosecuing attorney certifies that: (1)

the appeal is not taken for the purpose of delay; and (2) the

granting of the motion as rendered the state’s proof with

respect to the pending charge so weak in its entirety that any

reasonable possibility of effective prosecution has been

destroyed.

Such appeal shall not be allowed unless the notice of ap-

peal and the certification by the prosecuting attorney are

filed with the clerk of the trial court within seven days after

the date of the entry of the judgment or order granting the

motion. Any appeal taken under this rule shall be diligently

prosecuted.

If the defendant has not previously been released, he

shall, except in capital cases, be released from custody on

his own recognizance pending such appeal when the pro-

secuting attorney files the notice of appeal and certification.

This appeal shall take precedence over all other appeals.

A-25

CERTIFICATE OF SERVICE

The undersigned, William H. Allyn, Jr., attorney for Robert

Mankin, Sr., and a member of the Bar of the Supreme Court of

the United States, hereby certifies that on the 2] stday of June,

1985, | served by mailing, in duly addressed envelopes with

first class postage prepaid, three (3) copies of the foregoing

Appendix to Petition for Writ of Certiorari on Richard G. Ward,

Prosecuting Attorney, 20 South Paint Street, Chillicothe, Ohio

45601, attorney for the State of Ohio, being all parties required

to be served.

[ble SA Allyn, Jr.

UY

Attorney at Law

75 West Second Street

Chillicothe, Ohio 45601

(614) 773-5534