# Appendix — Mankin v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0337%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 474 U.S. 825 ## Text 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 ee eel all aioe pate g ee Dad aN elk pig A-17 ec ka dal be habeas bee NO RS CREO A-18 ee a Clog ava Ae dak ee ERO A-19 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 EE eee ee eee A-23 I ae eee ee A-26 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0337%3A2. Public record. Not legal advice.