Petition for Writ of Certiorari — Ahmed v. Ohio (No. 07-1541)

Cinrame Court. US.

ee 2

No. os) 071541 JUN 09 2008

\

OFFICE OF THE CLERK

IN THE .

Gnited States Supreme Court

>r-<<-—

AZZAM AHMED,

Petitioner,

VU.

STATE OF OHIO,

Respondent.

On Petition For a Writ of Certiorari to the

Ohio Court of Appeals for

the Eighth Judicial District

PETITION FOR A WRIT OF CERTIORARI

MICHAEL C. HENNENBERG

Of Counsel

DINN, HOCHMAN & POTTER, LLC

5910 Landerbrook Drive, Suite 200

Mayfield Heights, Ohio 44124

440-544-2000

Counsel of Record for Petitioner

June 9, 2008

i

QUESTIONS PRESENTED

Whether the elimination by judicial decision of

presumptions in favor of minimum sentences and

against maximum or consecutive sentences as

applied to a defendant convicted of crimes which

allegedly occurred prior to the judicial decision,

resulting in imposition of maximum, and consecu-

tive sentences, violates the proscription against ex

post facto laws and the Fourteenth Amendment.

Whether elimination of the consideration of

defendant’s criminal history is required by this

Court’s decisions in Apprendi v. New Jersey and

Blakely v. Washington.

Whether the failure of appellate counsel to raise

clear constitutional errors on appeal, which would

have resulted in the reversal and vacation of defen-

dant’s maximum, consecutive sentences, violates

the defendant’s Sixth Amendment right to the

effective assistance of counsel.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED.....................

gy |

SE) er

ET

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.................

A. Federal Constitutional Provisions ...

B. State Statutory Provisions.............

C. Other Pertinent Statutes...............

STATEMENT OF THE CASE..................

REASONS FOR GRANTING WRIT...........

I. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE RETROACTIVE APPLICATION

BY JUDICIAL DECISION OF THE ELIMINATION

OF PRESUMPTIONS IN FAVOR OF MINIMUM

SENTENCES, AND AGAINST MAXIMUM OR

CONSECUTIVE SENTENCES, TO A DEFENDANT

Page

CONVICTED OF OFFENSES ALLEGEDLY

COMMITTED PRIOR TO THE DECISION,

VIOLATES A DEFENDANT’S DUE PROCESS

RIGHTS AGAINST EX POST FACTO JUDICIAL

CREEP CPRPMIREEOTs 8 vac cvencvesedstsuesrcaneces 9

II. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE ELIMINATION OF A FIRST-

OFFENDING DEFENDANT'S PRESUMPTIVE

RIGHT TO A MINIMUM SENTENCE IS

REQUIRED BY THIS COURT’S DECISIONS

IN APPRENDI V. NEW JERSEY AND

BLAKELY V. WASHINGTON. ..........0scccceess 20

IIT. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER APPELLATE COUNSEL IS

INEFFECTIVE FOR FAILING TO RAISE

SENTENCING ERRORS ON APPEAL WHEN

THE FAILURE TO PROPERLY PRESERVE

THE ISSUE RESULTS IN THE AFFIRMANCE

OF THE MAXIMUM POSSIBLE SENTENCE. ...... 24

I a a 27

iv

TABLE OF APPENDICES

Appendix A:

Order dated March 12, 2008................

Appendix B:

Journal Entry and Opinion No. 88315

released on December 7, 2007..............

Appendix C:

Relevant Ohio Sentencing statutes:

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TABLE OF AUTHORITIES

Cases Page(s)

Apprendi v. New Jersey,

530 U.S. 466 (2000) .............4... gathe 11, 19, 21

Blakely v. Washington,

542 U.S. 296 (2004) ....... 7,9, 11, 322.2 2S

Booker v. United States,

Ne Ws ID oa se cdc cccencunwcees 18

Bouie v. Columbia,

Br NE RIOD sonic nceccceccesccewensase 17, 18

Calder v. Bull,

DS te. (epee) BOG C1 FOB) ........ 0. cccccccceess 12

Cunningham v. California,

GOT: SIN CNOD .........--.<<-<cenckessee 9

Gray v. Greer,

800 F.2d 644 (7th Cir. 1985).............. 25, 27

Hicks v. Oklahoma,

Ee ts Se HID ovinnnnscccinasvdacivceeresss 13-15

Jones v. Barnes,

Ie rs Pe IO wan ccc casnsccncccescneves 25

Marks v. United States,

Me ie EOE vino ccs<accusscaccteaenes 17

Mayo v. Henderson,

ED Foe Gee Coe Cir. 10048). .... 5.6.00... 00000. 25

Miller v. Florida,

Re tain: SE NED winen'nskuknsensncvencceenees 15-16

Page(s)

Pearson v. Ramos,

Oat Fue Sb (7th Cir. ZOO01)...... 6 cscccesee 26

Ring v. Arizona,

Oe Be Oe SED 5 socks accccccccsevacecesess 19

Roe v. Flores-Ortega,

ESS Re. 2.) t | ere 25

Rogers v. Tennessee,

eee AE WO 1 COED cic ccc ccsecisvceusceses 18

State v. Ahmed,

2005 Ohio 2999 (8th Dist. 2005) ........... 23

State v. Boland,

147 Ohio App. 3d 151 (7th Dist. 2002) ... 22

State v. Comer,

98 Ohio St. $d 463 (2008) ................... 22

State v. Foster, |

109 Ohio St.3d 1 (2006).......... 7-10, 12. 18, i6,

17, 19, 20, 22-24, 27

State v. Hairston, ___ Ohio St.3d ___,

Be CF BAGO COS) cones ak ccc cescecevscess 22. 33

State v. Jackson,

476 So. 34 1064 (Fin. 1985) ..........ccccee: 16

State v. Moore,

2008 Ohio 4699 (8th Dist. 2008)........... 15

Strickland v. Washington,

ME ID ooo ncisn cnvnccscesvavescsees 25

United States v. Aiello,

864 F.2d 257 (2d Cir. 1988).......... Foes 26

United States v. Barton,

455 F.3d 649 (6th Cir. 2006)................

United States v. Lanier,

RS Ye tS ee rere

Rules, Statutes, and Other Authorities

United States Constitution,

PRRURU BNO Uso cccnccccccesvccscavess

PN NS I sang so ce scveescaesccucccccesess

ie 0 I BID oc ss veces ceeccveve cence

I Ee I I iin os beds ice bss vesccndcbetens

Page(s)

11

Petitioner Azzam Ahmed respectfully prays that

a Writ of Certiorari issue to review the decision of

the Ohio Court of Appeals for the Eighth Judicial

District entered on June 11, 2007.

OPINIONS BELOW

The Ohio Court of Appeals for the Eighth Judi-

cial District announced its decision in this case on

December 7, 2007. A copy of that opinion is

attached as Appendix B. The Ohio Supreme Court

issued a one-page order denying discretionary

review of the Court of Appeals’ decision on March

12, 2008. A copy of that order is attached as Appen-

dix A. :

JURISDICTION

The Ohio Supreme Court denied discretionary

review on March 12, 2008. This Court has jurisdic-

tion pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Federal Constitutional Provisions

The Sixth Amendment to the United States Con-

stitution provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial by an impartial jury... and

to have the assistance of counsel for his defense.”

2

Article I, Section 10 of the United States Consti-

tution provides in relevant part: “No bill of attain-

der or ex post facto Law shall be passed.”

The Fourteenth Amendment to the United States

Constitution provides in relevant part: “[NJor shall

any state deprive any person of life, liberty, or

property, without due process of law... .”

B. State Statutory Provisions

Ohio Revised Code Section 2929.14(A) provides

in relevant part:

“(A) ... if the court imposing a sentence upon

an offender for a felony elects or is required to

impose a prison term on the offender pursuant

to this chapter, the court shall impose a defi-

nite prison term that shall be one of the follow-

ing:

“(1) For a felony of the first degree, the prison

term shall be three, four, five, six, seven, eight,

nine, or ten years.

“(3) For a felony of the third degree, the prison

term shall be one, two, three, four, or five

years.”

Ohio Revised Code Section 2929.14(B) provides

in relevant part:

“(B) Except as provided in division (C), (D)(1),

(D)(2), (D)(3), (D)(5), (D)(6), (G), or (L) of this sec-

tion, in section 2907.02 or 2907.05 of the Revised

Code, or in Chapter 2925. of the Revised Code, if

3

the court imposing a sentence upon an offend-

er for a felony elects or is required to impose a

prison term on the offender, the court shall

impose the shortest prison term authorized for

the offense pursuant to division (A) of this sec-

tion, unless one or more of the following

applies:

“(1) The offender was serving a prison term at

the time of the offense, or the offender previ-

ously had served a prison term.

“(2) The court finds on the record that the

shortest prison term will demean the serious-

ness of the offender’s conduct or will not ade-

quately protect the public from future crime by

the offender or others.

Ohio Revised Code Section 2929.14(C) provides

in relevant part:

“(C) Except as provided in division (G) or (L) of

this section or in Chapter 2925. of the Revised

Code, the court imposing a sentence upon an

offender for a felony may impose the longest

prison term authorized for the offense pur-

suant to division (A) of this section only upon

offenders who committed the worst forms of

the offense, upon offenders who pose the great-

est likelihood of committing future crimes,

upon certain major drug offenders under divi-

sion (D)(3) of this section, and upon certain

repeat violent offenders in accordance with

division (D)(2) of this section.”

4

Ohio Revised Code Section 2929.14(C)(4) pro-

vides in relevant part:

“(4) If multiple prison terms are imposed on an

offender for convictions of multiple offenses,

the court may require the offender to serve the

prison terms consecutively if the court finds

that the consecutive service is necessary to

protect the public from future crime or to pun-

ish the offender and that consecutive sentences

are not disproportionate to the seriousness of

the offender’s conduct and to the danger the

offender poses to the public, and if the court

also finds any of the following:

“(a) The offender committed one or more of the

multiple offenses while the offender was await-

ing trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17,

or 2929.18 of the Revised Code, or was under

post-release control for a prior offense.

“(b) At least two of the multiple offenses were

committed as part of one or more courses of

conduct, and the harm caused by two or more

of the multiple offenses so committed was so

great or unusual that no single prison term for

any of the offenses committed as part of any of

the courses of conduct adequately reflects the

seriousness of the offender's conduct.

“(c) The offender’s history of criminal conduct

demonstrates that consecutive sentences are

necessary to protect the public from future

crime by the offender.”

5)

Ohio Rule of Appellate Procedure 26(B) provides

in relevant part:

“(B) Application for reopening.

“(1) A defendant in a criminal case may apply

for reopening of the appeal from the judgment

of conviction and sentence, based on a claim of

ineffective assistance of appellate counsel. An

application for reopéning shall be filed in the

court of appeals where the appeal was decided

within ninety days from journalization of the

appellate judgment unless the applicant shows

good cause for filing at a later time.”

C. Other pertinent statutes

Relevant Ohio sentencing statutes, which are

attached as Appendix C, include the following:

Ohio R.C. § 2907.02 — Rape

Ohio R.C. § 2907.03 — Sexual Battery

Ohio R.C. § 2907.06 — Sexual Imposition

Ohio R.C. § 2953.08 — Grounds for Appeal of

Sentence

STATEMENT OF THe CASE

On August 29, 2002, the defendant, Dr. Azzam

Ahmed, a 55-year gynecologist, was arrested and

charged with sexual misconduct with a patient.

The arrest was accorded great local publicity, and

the Parma, Ohio, Police Department provided a

6

telephone number to call for other patients who

believed they might have been similarly treated.

The result was a secret indictment against

Dr. Ahmed, issued on May 20, 2008, alleging fifty-

three offenses involving thirty-seven patients:

twenty-seven counts of sexual imposition, a third-

degree misdemeanor, twenty-four counts of sexual

battery, a third-degree felony, and two counts of

rape, a first-degree felony.

The case proceeded to trial in January of 2004.

The prosecution dismissed three counts of sexual

imposition during trial. The jury ultimately acquit-

ted Dr. Ahmed of thirty of the remaining fifty

counts, rendering not guilty verdicts on thirteen of

the twenty-four counts of sexual imposition, and

seventeen of the twenty-four counts of sexual bat-

tery. It convicted him of eleven sexual imposition

counts, seven sexual battery counts, and the two

rape counts, which involved a single patient, based

on a theory that her capacity was diminished. The

complainant in the rape counts had testified for the

prosecution in its case-in-chief, but then returned

to the stand as a witness for the defense, and

recanted her testimony.

At the time of the trial, and at the time Dr. Ahmed

allegedly committed the crimes, Ohio’s sentencing

scheme did not give a judge unfettered discretion to

impose a sentence within the statutory range. If

the defendant had never served a prison sentence

before, the trial judge had to make certain factual

findings before imposing more than a minimum

sentence. The trial judge was also required to make

7

certain factual findings before imposing maximum

sentences, and certain factual findings before

imposing consecutive sentences. In short, a first

offender such as Dr. Ahmed was presumptively

entitled to a minimum, concurrent sentence. The

trial court imposed maximum sentences on each of

the offenses (two of the sexual battery convictions

merged with the two rape convictions), and ordered

the sentences to be served consecutively, for a total

sentence of forty-five years.

Upon appeal, the court of appeals affirmed the

convictions, but vacated the sentences, holding

that the findings made by the trial judge were not

sufficient to overcome the presumption against

maximum or consecutive sentences, and remanded

the matter for resentencing. It should be noted that

this was not. a case of the appellate court determin-

ing that the trial judge had failed to make any find-

ings; rather, the appellate court determined that

the findings the trial judge did make were legally

insufficient to support maximum or consecutive

sentences.

Prior to Dr. Ahmed’s resentencing, the Ohio

Supreme Court issued its decision in State v. Fos-

ter, 109 Ohio St.3d 1 (2006). The court held that the

judicial findings required by the statutes in order

to impose more than minimum, maximum, or con-

secutive sentences constituted judicial fact-finding

in derogation of a defendant’s Sixth Amendment

right to a jury trial, as explained in this Court’s

ruling in Blakely v. Washington, 542 U.S. 296

8

(2004). As a remedy, the court severed the portions

of the statute requiring those judicial findings.

The result was that a judge no longer had to

make any findings in order to impose more than

minimum, maximum, or consecutive sentences. At

Dr. Ahmed’s resentencing, that is precisely what

occurred: the trial judge again imposed maximum,

consecutive sentences.

Appeal was once more taken to the court of

appeals, which affirmed the sentences in an unpub-

lished opinion announced on May 31, 2007, and

journalized on June 11, 2007. Dr. Ahmed then

retained new appellate counsel, who filed an

appeal to the Ohio Supreme Court, alleging, inter

alia, that the application of Foster to crime alleged-

ly committed prior to the decision constituted a vio-

lation of defendant’s due process rights against ex

post facto judicia! rulings, and that the failure of

prior appellate counsel to raise that issue in the

court below constituted ineffective assistance. The

Ohio Supreme Court denied discretionary review.

Dr. Ahmed then timely filed an application to

reopen the appeal, under Ohio App.R. 26(B), which

permits such an application based on a claim of

ineffective assistance of counsel. On December 7,

2007, the Cuyahoga County Court of Appeals

denied the application. Dr. Ahmed then sought

review in the Ohio Supreme Court, and on March

12, 2008, Supreme Court denied review.

This Petition for Writ of Certiorari follows.

9

REASONS FOR GRANTING WRIT

I. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE RETROACTIVE APPLICATION BY

JUDICIAL DECISION OF THE ELIMINATION OF

PRESUMPTIONS IN FAVOR OF MINIMUM SEN-

TENCES, AND AGAINST MAXIMUM OR CONSECU-

TIVE SENTENCES, TO A DEFENDANT CONVICTED

OF OFFENSES ALLEGEDLY COMMITTED PRIOR TO

THE DECISION, VIOLATES A DEFENDANT’S DUE

PROCESS RIGHTS AGAINST EX POST FACTO JUDI-

CIAL DECISION-MAKING.

It is difficult to understate the effect of this

Court’s decision in Blakely v. Washington, 542 U.S.

296 (2004) upon state sentencing laws. Many, such

as Qhio’s, provided for “presumptive” sentences,

under which a defendant faced either an exact sen-

tence or a sentence within a specific range, and the

sentencing court was required to impose that sen-

tence unless it found certain facts sufficient to

override the presumption for the specified sen-

tence. This Court’s subsequent decisions, such as

Cunningham v. California, 127 S.Ct. 856 (2007)

make clear what the Ohio Supreme Court acknowl-

edged about Ohio’s sentencing scheme in State v.

Foster, 109 O.St.3d 1 (2006): that a system of pre-

sumptive sentencing which depended upon judicial

fact-finding to override those presumptions could

not survive Blakely.

Certiorari should be granted by this court to

resolve the question precisely raised by this case:

10

whether the ex post facto application of Foster’s

remedy—essentially, abolishing those presump-

tions and allowing a trial court unfettered discre-

tion in imposing more than minimum, maximum,

and consecutive sentences—violates the rights of a

defendant convicted of crimes which allegedly

occurred prior to Foster. While the immediate focus

of the Court’s review would be on Ohio’s sentencing

laws, as noted, a decision would provide clarity to

other states which employed the same type of pre-

sumptive sentencing scheme.

At the outset, it is important to understand the

Ohio system in effect at the time Dr. Ahmed

allegedly committed his crimes in 2001 and 2002.

At that time, as now, the statutory penalty for

first-degree felonies such as rape was a sentence of

from three to ten years, in yearly increments. The

statutory penalty for third-degree felonies such as

sexual battery was a sentence of one to five years,

again in yearly increments.

A trial judge, however, was not free to impose a

penalty anywhere within that range. If the defen-

dant had never served a prison term before

(Dr. Ahmed had never previously been charged, let

alone convicted, of a crime), the judge had to make

certain findings in order to impose more than the

minimum sentence: that a minimum sentence

“would demean the seriousness of the crime” or

“would not adequately protect the public.” Similar-

ly, the judge ~:so had to make certain findings in

order to impose a maximum sentence: that the

defendant had “committed the worst form[ } of the

11

offense” and that the defendant “pose|d] the great-

est likelihood of committing future crimes.” More-

over, before imposing consecutive sentences, the

trial judge had to make additional findings, such as

that “consecutive sentences are not disproportion-

ate to the seriousness of the offender’s conduct”

and that “[a]t least two of the multiple offenses

were committed as part of one or more courses of

conduct.” Finally, Ohio R.C. § 2953.98 provided

meaningful review of sentencing decisions, allow-

ing the appellate court to determine whether the

trial judge’s findings were sufficient to support

more-than-minimum, maximum, or consecutive

sentences.

In Blakely, this Court established that

“the ‘statutory maximum’ for Apprendi purpos-

es is the maximum sentence a judge may

impose solely on the basis of the facts reflected

in the jury verdict or admitted by the defen-

dant. In other words, the relevant ‘statutory

maximum’ is not the maximum sentence a

judge may impose after finding additional

facts, but the maximum he may impose without

any additional! findings.” 532 U.S. at 303-304.

(Emphasis in original).

Under Blakely, then, at the time he allegedly

committed his crimes, the maximum penalty

Dr. Ahmed faced—the maximum penalty which

could be imposed upon him without the trial court

making any additional findings—was a minimum,

concurrent sentence of three years. Any sentence

12

beyond the minimum, let alone maximum or con-

secutive sentences, required judicial fact-finding

that was barred by Blakely.

The Ohio Supreme Court recognized this in Fos-

ter, and as a remedy simply excised the portions of

the sentencing statutes which required fact-find-

ing, resulting in the elimination of the presump-

tions in favor of minimum sentences and against

maximum and consecutive sentences. Thus, at the

time Dr. Ahmed was resentenced in 2006,:he no

longer could claim the benefit of the presumptions

which had been in effect at the time he allegedly

committed the crimes for which he was convicted.

Dr. Ahmed contends that the retroactive applica-

tion of Foster to him, in the elimination of sentenc-

ing presumptions to which he was otherwise

entitled, constitutes a violation of his rights to due

process.

The prohibition against the retroactive applica-

tion of the criminal laws is contained in Article I,

Section 10 of the United States Constitution: “No

... ex post facto Law shall be passed.” In Calder v.

Bull, 3 U.S. (Dall.) 386, 390 (1798), this Court

defined the four types of laws which would run

afoul of that prohibition. The one pertinent to this

case is the third:

“Every law that changes the punishment, and

inflicts a greater punishment, than the law

annexed to the crime, when committed.”

13

As a result of the Ohio Supreme Court’s decision

in Foster, and its elimination of the presumptive

sentences to which Dr. Ahmed was entitled, he was

subjected to substantially greater punishment than

at the time he allegedly committed his crimes.

There are two prior decisions of this Court which

bear upon Dr. Ahmed’s situation. The first is Hicks

uv. Oklahoma, 447 U.S. 343 (1980), which involved

that state’s habitual offender statute. Hicks was

charged with heroin distribution, which carried a

maximum of 40-year prison sentence. Sentences

were imposed by juries in Oklahoma, and under the

habitual offender statute, the jury was required to

impose the maximum prison term if it determined

that the defendant had previously been convicted

of two felonies. Hicks had been previously convict-

ed of two felonies, and was thus given the 40-year

sentence by the jury. While the case was on appeal,

the state supreme court held that the habitual

offender statute was unconstitutional. Nonethe-

less, the Oklahoma courts affirmed the conviction

and sentence, deciding that Hicks wasn’t preju-

diced because the sentence was within the range of

punishment that “could have been imposed in any

event.” Hicks, 447 U.S. at 344. (Emphasis added).

This Court reversed, noting that

“It is argued that all that is involved in this

case is the denial of a procedural right of exclu-

sively state concern. Where, however, a State

has provided for the imposition of criminal

punishment in the discretion of the trial jury,

14

it is not correct to say that the defendant’s

interest in the exercise of that discretion is

merely a matter of state procedural law. The

defendant in such a case has a substantial and

legitimate expectation that he will be deprived

of his liberty only to the extent determined by

the jury in the exercise of its statutory discre-

tion, and that liberty interest is one that the

Fourteenth Amendment preserves against

arbitrary deprivation by the State. In this case

Oklahoma denied the petitioner the jury sen-

tence to which he was entitled under state law,

simply on the frail conjecture that a jury might

have imposed a sentence equally as harsh as

that mandated by the invalid habitual offender

provision. Such an arbitrary disregard of the

petitioner’s right to liberty is a denial of due

process of law.” 447 U.S. at 346-347 (footnotes

and internal citations omitted).

In Hicks, but for the unconstitutional statute,

the defendant would have been entitled to the exer-

cise of jury’s discretion in determining his sen-

tence. The state’s argument that he had no

“absolute right” to that sentence was correct, but

beside the point: as this Court noted, he had a

“right to have a jury fix his punishment in the first

instance, and this is the right that was denied.

Moreover, it is a right that substantially affects the

punishment imposed.” [bid. The change in the law

could not validly deprive him of his liberty interest.

15

Dr. Ahmed’s case presents the converse of that

situation. He was entitled to a minimum sentence

unless the trial judge made certain findings. Even

if those findings were made, he was entitled to a

non-maximum, concurrent sentence unless the

trial judge made additional findings. The appellate

court, in its initial review of the case, found that

the findings made by the trial judge did not justify

non-minimum, maximum, and consecutive sen-

tences. The Ohio Supreme Court then determined |

that the required are unconstitutional, and elimi-

nated them, not only subjecting Dr. Ahmed to max-

imum consecutive sentences without the findings

that would have been required to support it, but

also essentially eliminating any meaningful appel-

late review of the sentence.! Thus, like the defen-

dant in Hicks, Dr. Ahmed was deprived of his

liberty interest in being sentenced according to the

laws in effect at the time he committed the alleged

crimes.

This Court’s decision in Miller v. Florida, 482

U.S. 423 (1987) provides an even closer analogue.

That case dealt with Florida’s sentencing scheme,

which specified a range of presumptive sentences

for each offense. At the time the defendant com-

mitted his crime of sexual battery, the statutes pro-

1

Although the state supreme court has not ruled on this

issue, most Ohio appellate courts have concluded that the

appropriate standard for review of a sentence is the highly

deferential “abuse of discretion,” which even some judges

have acknowledged provides unfettered power to impose any

sentence within the statutory range. See State v. Moore, 2008

Ohio 4699 (8th Dist. 2008) (J. Gallagher, concurring).

16

vided a presumptive sentence of 3% to 4% years.

By the time he was convicted and sentenced, how-

ever, the presumptive sentence had been increased

to 5% to 7% years. The Florida Supreme Court

upheld the trial court’s imposition of the new sen-

tence, deciding that there was no ex post facto vio-

lation because “the presumptive’ sentence

established by the guidelines does not change the

statutory limits of the sentence imposed for a par-

ticular offense.” State v. Jackson, 478 So.2d 1054,

1056 (Fla. 1985).

On appeal, this Court first determined that

“to fall within the ex post facto prohibition, two

critical elements must be present: first, the law

‘must be retrospective, that is, it must apply to

events occurring before its enactment’; and sec-

ond, ‘it must disadvantage the offender affect-

ed by it.” 482 U.S. at 430.

The Court unanimously concluded that defen-

dant met both those criteria. The change in the law

had obviously been applied retroactively, and there

was no difficulty in concluding that the change in

the sentencing scheme “disadvantaged” the defen-

dant: it increased his presumptive sentence by two

to three years.

The same argument applies here: Dr. Ahmed was

entitled to a presumptive sentence of minimum,

concurrent terms, and the Foster decision’s elimi-

nation of that entitlement operated retrospectively

to his disadvantage.

17

The Florida change resulted from legislative

action, while Foster was of course a judicial deci-

sion. The Ohio Supreme Court’s ruling in Foster

does not directly implicate the Ex Post Facto

Clause, since that provision is only a limitation

upon the powers of the legislature, not the judicial

branch. Marks v. United States, 430 U.S. 188, 191

(1977).

This Court has held, however, that the retro-

active application of a judicial decision may be

similarly prohibited because of due process con-

siderations. In striking down the retroactive appli-

cation of an interpretation of a criminal statute by

the state’s highest court, this Court yusee in Bouie

v. Columbia, 378 U.S. 347 (1964),

“The Due Process Clause faaake the same

result ... where the State has sought to

achieve precisely the same effect by judicial

construction of the statute. While such a con-

struction is of course valid for the future, it

may not be applied retroactively, any more

than a legislative enactment may be, to impose

criminal penalties for conduct committed at a

time when it was not fairly stated to be crimi-

nal.” 378 U.S. at 362.

The protections afforded by due process consider-

ations against the retroactive application of judi-

cial decisions are not necessarily co-extensive with

the protections of the Ex Post Facto Clause against

the retroactive application of criminal] statutes.

The distinction in those protections was defined by

18

this Court in Rogers v. Tennessee, 532 U.S. at 451,

462 (2001), in which this Court stated,

“a judicial alteration of a common law doctrine

of criminal law violates the principle of fair

warning, and hence must not be given retroac-

tive effect, only where it is ‘unexpected and

indefensible by reference to the law which had

been expressed prior to the conduct in issue.”

(Quoting Bouie, 378 U.S. at 354).

Thus, the proper focus is on the warning and

notice a defendant has in the possibility of a judi-

cial decision retroactively enhancing the criminalli-

ty of his conduct or the penalty to be imposed for it.

United States v. Lanier, 520 U.S. 259, 266 (1997)

(“Due process bars courts from applying a novel

construction of a criminal statute to conduct that

neither the statute nor any prior judicial decision

has fairly disclosed to be within its scope.”)

Had Dr. Ahmed’s alleged crimes been committed

after Blakely was decided, an argument might be

advanced that Blakely gave just such notice. The

6th Circuit concluded as much with regard to an

argument on the retroactive application of Booker

v. United States, 543 U.S. 220 (2005):

“While it is true that precisely what effect

Blakely would have on the Guidelines was not

known, Blakely was decided before defendant

committed the robberies here. Thus, it would

not have been a leap of logic to expect the

Supreme Court to apply Blakely to the Guide-

19

lines in some manner.” United States v. Bar-

ton, 455 F.3d 649, 653-654 (6th Cir. 2006).

There can be no such argument here, however;

Dr. Ahmed’s alleged crimes occurred several years

before Blakely was decided, and while this Court’s

earlier decisions in Apprendi v. New Jersey, 530

U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 684

(2002) served as the groundwork for Blakely, it

would be difficult to argue that more than a few

legal scholars anticipated the Blakely decision, let

alone that the average individual had “fair warn-

ing” of it.

Moreover, the change wrought by Foster specifical-

ly impacted Dr. Ahmed. As noted, his original sen-

tence was vacated not because the judge failed to

make any findings justifying a maximum, consecu-

tive sentences, but because the findings the trial

judge did make did not warrant maximum, consecu-

tive sentences. Given the trial court’s failure to

make those findings, had it not been for the Foster

decision, the trial judge would have been bound to

give Dr. Ahmed no worse than non-maximum, con-

current sentences. Because of Foster, the trial court

gained unfettered discretion to sentence Dr. Ahmed

to maximum, consecutive sentences of 45 years.’

In summary, due process mandates that a judi-

cial decision nullifying the presumptive sentences

2

Ohio law does not provide for parole or any other

method of early release for someone sentenced to more than

ten years in prison. Dr. Ahmed’s scheduled release date from

prison is February of 2049, when he will be 102 years old.

20

contained in Ohio’s statutes cannot be retroactive-

ly applied to Dr. Ahmed so as to deny him the ben-

efit of those statutes. The Ohio Supreme Court’s

retroactive elimination of the presumptive sentenc-

ing in Foster disadvantaged Dr. Ahmed in the same

fashion that the South Carolina Supreme Court’s

retroactive expansion of the criminal trespass

statute disadvantaged the defendants in that case.

II. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER THE ELIMINATION OF A FIRST-OFFEND-

ING DEFENDANT’S PRESUMPTIVE RIGHT TO A

MINIMUM SENTENCE IS REQUIRED BY THIS

COURT’S DECISIONS IN APPRENDI V. NEW JER-

SEY AND BLAKELY V. WASHINGTON.

At the time Dr. Ahmed allegedly committed the

crimes for which he was convicted, Ohio R.C.

§ 2929.14(B) provided that if a court imposed a

prison sentence for a felony, it had to impose the

minimum sentence unless either “(1) The offender

was serving a prison term at the time of the

offense, or the offender previously had served a

prison term,” or “(2) The court finds on the record

that the shortest prison term will demean the seri-

ousness of the offender’s conduct or will not ade-

quately protect the public from future crime by the

offender or others.”

In Foster, supra, the Ohio Supreme Court cor-

rectly concluded that the second subsection—

whether the minimum sentence would “demean the

seriousness of the offense” or “not adequately pro-

tect the public”’—required judicial fact-finding not

21

permitted under Blakely v. Washington, supra.

Having determined that the sub-section of the

statute was constitutionally defective, the next

question presented was the determination of an

appropriate remedy. The court chose to sever the

entire section.

Defendant respectfully submits that this remedy

was neither necessary nor appropriate. In Apprendi,

supra, this Court had held that the Sixth Amend-

ment posed no impediment to consideration of a

defendant’s prior criminal record:

“Other than the fact of a prior conviction, any

fact that increases the penalty for a crime

beyond the prescribed statutory maximum

must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490

(emphasis supplied).

This holding was affirmed in Biakely.

There was nothing unconstitutional about Ohio

R.C. § 2929.14(B) or § 2929.14(B)(1): Apprendi and

Blakely clearly permit a sentencing court to take

into account a defendant’s criminal history, which

is exactly what Ohio R.C. § 2929.14(B)(1) permit-

ted. The only infirmity was in § 2929.14(B)(2). As

long as (B)(1), concerning whether a defendant had

previously been imprisoned, was intact, the section

could withstand constitutional scrutiny. The excis-

ing of the entire section, rather than just (B)(2), the

offending subsection, was not constitutionally

required.

22

Moreover, complete severance, along with sever-

ance of the presumptions against maximum and

consecutive sentences, ran contrary to the intent of

the legislature. The enabling statute for the 1996

reforms clearly intended for the statutes enacted to

provide uniformity and proportionality “with

increased penalties for offenses based upon the

seriousness of the offense and the criminal history

of the offender,” and with judicial discretion to be

limited by those goals. Those goals were embodied

in the statutes ultimately enacted and subsequent-

ly reviewed by the Ohio Supreme Court. That

court, in fact, expressly stated that the intent of

Senate Bill 2 was to reserve enhanced sentences for

the worst offenses and offenders. State v. Comer, 99

Ohio St.3d 463, at 468 (2003), citing State uv.

Boland, 147 Ohio App. 3d 151, 162 (7th Dist. 2002).

At least three judges of the Ohio Supreme Court

recognized this in the recent decision of State v.

Hairston, ___ Ohio St.3d ___, 2008 Ohio 2338 (2008).

While concurring in the judgment, which affirmed

maximum and consecutive sentences totaling 134

ye: ts for a 24-year-old defendant who had commit-

ted “noncapital offenses arising from three events

that fortunately did not involve serious physical

harm to his four victims,” Justice Lanzinger, joined

by Chief Justice Moyer and Justice Pfeifer, noted

that the Foster court had foreseen the exact prob-

lem addressed here: “By vesting sentencing judges

with full discretion, it may be argued, [severance]

vitiates S.B. 2’s goals, particularly with respect to

reducing sentencing disparities and promoting uni-

23

formity ... [Foster], 109 Ohio St.3d [at 30].” State

v. Hairston, supra (Lanzinger, J., concurring).

The problems with the severance remedy are

amply demonstrated by Dr. Ahmed’s case. The

appellate court in the first appeal had clearly

rejected the trial court’s justification for imposing

maximum, consecutive sentences, noting,

“The trial court reasoned that the harm of the

offenses was so great and unusual because of the

number of victims who had to ‘bare their souls’

in testifying against Ahmed. We fail to see how

this reasoning relates to the harm of the specific

offenses. Typically, most criminal cases involve

victims testifying as to the circumstances of the

offense. Although we recognize the sensitive

nature of the victims’ testimony in the instant

case, we find the trial court’s reliance on this fac-

tor misplaced for purposes of justifying consecu-

tive sentences.” State v. Ahmed, 2005 Ohio 2999,

at 7106, fn. 9 (8th Dist. 2005).

Yet at the resentencing after remand, since it

came after the intervening decision in Foster, the

trial court was not required to advance any justifi-

cation whatsoever for imposing a sentence under

which Dr. Ahmed, a first offender, will remain

imprisoned uriil February 2049, wher he will be

102 years old. Allowing a trial court wholly unfet-

tered discretion in imposing a sentence is com-

pletely at odds with the purpose of the sentencing

reforms enacted in 1996. The Ohio Supreme

Court’s sentencing remedy in Foster was not con-

24

stitutionally required, and was clearly contrary to

the intent of the legislature in crafting the 1996

sentencing reforms. Foster’s severance remedy, at

least as it pertains to the presumption for mini-

mum sentences for first offenders, exceeded the

requirements for sentencing imposed by this Court

in Apprendi and Blakely, and should be reversed.

III. CERTIORARI IS APPROPRIATE TO DECIDE

WHETHER APPELLATE COUNSEL IS INEFFECTIVE

FOR FAILING TO RAISE SENTENCING ERRORS ON

APPEAL WHEN THE FAILURE TO PROPERLY PRE-

SERVE THE ISSUE RESULTS IN THE AFFIRMANCE

OF THE MAXIMUM POSSIBLE SENTENCE.

As noted, prior appellate counsel did not raise

the due process violation inherent in the retroac-

tive application of Foster to Dr. Ahmed’s case. That

issue was raised for the first time by present appel-

late counsel, in the Memorandum in Support of

Jurisdiction seeking discretionary review by the

Ohio Supreme Court, which was denied. Ordinari-

ly, the failure to raise an issue on appeal! in the

lower court constitutes a waiver of that issue on

further appeal.

The failure to raise the issue below does not con-

stitute a waiver, however, where prior appellate

counsel was ineffective in failing to raise it.* The

3 Present appellate counsel also asserted the issue of the

ineffective assistance of prior appellate counsel, in their fail-

ure to raise the due process issue, in the aforementioned

Memorandum in Support of Jurisdiction seeking discre-

tionary review by the Ohio Supreme Court.

25

test for ineffective assistance of counsel enunciated

by this Court in Strickland v. Washington, 466 U.S.

668 (1984) also pertains to appellate counsel. Roe v.

Flores-Ortega, 528 U.S. 470 (2000).

This does not impose upon appellate counsel a

duty to raise all non-frivolous assignments of error.

Jones v. Barnes, 463 U.S. 745 (1983). A defendant

may be able to establish constitutionally inade-

quate performance, however, by demonstrating

that counsel omitted significant and obvious issues

while pursuing issues that were clearly and signif-

icantly weaker. Mayo v. Henderson, 13 F.3d 528,

533 (2d Cir. 1994). Essentially, the procedure for

resolving that question is that outlined in Gray v.

Greer, 800 F.2d 644, 646 (7th Cir. 1985):

“When a claim of ineffective assistance of coun-

sel is based on failure to raise viable issues, the

district court must examine the trial court

record to determine whether appellate counsel

failed to present significant and obvious issues

on appeal. Significant issues which could have

been raised should then be compared to those

which were raised. Generally, only when

ignored issued are clearly stronger than those

presented, will the presumption of effective

assistance of counsel be overcome.”

Prior appellate counsel, in his Brief to the Ohio

Court of Appeals, made two sentence-related argu-

ments. (A third assignment of error related to the

application of bond money to fines and costs.) The

sum of counsel’s argument was that while the Fos-

26

ter remedy “gave Trial Courts [sic] the ability to

sentence at any level, maximum sentence, consecu-

tive sentence or both, without stating reasons,”

Dr. Ahmed’s resulting 45-year sentence, “violates

the Eighth Amendment” and constituted “an

‘exceptional sentence’ based upon facts neither

admitted nor found by a jury.” Brief at 11.

These arguments represent a complete misread-

ing of Blakely and its progeny. An “exceptional sen-

tence” under Blakely is one in which the trial court

employs judicial fact-finding to impose additional

prison time, over and above what the jury verdict

would allow. Foster permitted trial courts to

impose maximum penalties without any fact-find-

ing. Whether this is good policy might be subject to

debate, but there is nothing in this Court’s cases

which suggest that this is constitutionally imper-

missible, let alone that it is an “exceptional sen-

tence” under Blakely.

Moreover, the arguments are wholly at odds with

prevailing Eighth Amendment jurisprudence,

which limits consideration of that issue to single

sentences, as opposed to the effect of sentences for

multiple offenses. United States v. Aiello, 864 F.2d

257, 265 (2d Cir. 1988) (“Eighth amendment analy-

sis focuses on the sentence imposed for each specif-

ic crime, not on the cumulative sentence”); Pearson

uv. Ramos, 237 F.3d 881, 886 (7th Cir. 2001) (“every

sentence *** must be treated separately, not

cumulatively, for purposes of determining whether

it is crue] and unusual.”)

27

To a large extent, this Court’s resolution of the

first argument raised in support of granting certio-

rari is outcome-determinative for the second argu-

ment: if this Court concludes that the retroactive

application of the Foster remedy violates the due

process rights of Dr. Ahmed, then it necessarily fol-

lows that prior appellate counsel was ineffective in

not asserting that argument, and instead relying

on “issues that were clearly and significantly weak-

er.” Gray v. Greer, supra. It is respectfully submit-

ted that just such a conclusion is warranted in this

case.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

submits that this Court should grant the Petition

for Certiorari.

Respectfully submitted,

MICHAEL C. HENNENBERG

Of Counsel

DINN, HOCHMAN & POTTER, LLC

5910 Landerbrook Drive

Suite 200

Mayfield Heights, Ohio 44124

440-544-2000

Counsel for Petitioner

APPENDIX

THE SUPREME COURT OF OHIO

Case No. 2008-0134

[STAMP]

FILED

MAR 12, 2008

CLERK OF COURT

SUPREME COURT OF OHIO

STATE OF OHIO

oti y. a

AZZAM AHMED

ENTRY

Upon consideration of the jurisdictional memo-

randa filed in this case, the Court dismisses the

appeal as not involving any substantial constitu-

tional question.

(Cuyahoga County Court of Appeals; No. 88315)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

2a

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 883815

STATE OF OHIO,

Plaintiff-Appellee,

= Vv. aun

AZZAM AHMED,

Defendant-Appellant.

JUDGMENT: APPLICATION DENIED

APPLICATION FOR REOPENING

MOTION No. 399910

LOWER CourT No. CR-437437

COMMON PLEAS COURT

RELEASE DATE: December 7, 2007

ATTORNEY FOR PLAINTIFF-APPELLEE

WILLIAM D. MASON

Cuyahoga County Prosecutor

Kristen L. Sobieski

Assistant County Prosecutor

8th Floor, Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

3a

ATTORNEY FOR DEFENDANT-APPELLANT

Michael C. Hennenberg

DINN, HOCHMAN & POTTER, LLC

5910 Landerbrook Drive, Suite 220

Mayfield Heights, Ohio 44124-6500

JUDGE ANN DYKE:

{7 1} On August 14, 2007, the applicant, Azzam

Ahmed, applied pursuant to App.R. 26(B) to reopen

this court’s judgment in State v. Ahmed, Cuyahoga

App. No. 88315, 2007-Ohio-2639, in which this court

overruled Ahmed’s three assignments of error

regarding his resentencing!, but remanded to clar-

ify an inconsistency between the sentencing hear-

ing at which the judge imposed a forty-five year

sentence and the journal entry which imposed a

fifty-five year sentence. On September 24, 2007,

the State of Ohio filed a brief in opposition. For the

following reasons, this court denies the application

to reopen.

{q 2} First, res judicata properly bars this appli-

cation. See, generally, State v. Perry (1967), 10

Ohio St.2d 175, 226 N.E.2d 104. Res judicata pre-

vents repeated attacks on a final judgment and

1 In State v. Ahmed, Cuyahoga App. No. 84220, 2005-

Ohio-2999, this court affirmed his convictions for two counts

of rape, seven counts of sexual battery and eleven counts of

sexual imposition, but reversed and remanded for resentenc-

ing.

2 On remand on July 25, 2007, the trial judge clarified

that Ahmed’s sentence is to be forty-five years.

4a

applies to all issues which were or might have been

litigated. In State v. Murnahan (1992), 63 Ohio

St.3d 60, 584 N.E.2d 1204, the Supreme Court of

Ohio ruled that res judicata may bar a claim of

ineffective assistance of appellate counsel] unless

circumstances render the application of the doc-

trine unjust.

{q 3} In the present case Ahmed appealed to the

Supreme Court of Ohio, which denied his appeal.

State v. Ahmed, Supreme Court of Ohio Case No.

07-1357. This court has consistently held that such

appeals bar claims of ineffective assistance of

appellate counsel based on the principles of res

judicata. State v. Kaszas (Sept. 21, 1998), Cuya-

hoga App. Nos. 72546 and 72547, reopening disal-

lowed (Aug. 14, 2000), Motion No. 16752; State v.

Bussey (Dec. 2, 1999), Cuyahoga App. No. 75301,

reopening disallowed (Aug. 8, 2000), Motion No.

16647 and State v. Bluford (Dec. 9, 1999), Cuya-

hoga App. No. 75228, reopening disallowed (May

31, 2000), Motion No. 15241. Moreover, before the

Supreme Court of Ohio, Ahmed argued, inter alia,

(1) ineffective assistance of appellate counsel, espe-

cially as to the failure to preserve arguments;

(2) that the application of State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, violated

the Ex Post Facto and Due Process Clauses; and

(3) that because Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed2d 403 (2004), did not

prohibit judicial fact finding on whether the defen-

dant had previously served prison time, the trial

court erred in imposing more than the minimum

sentence. Ahmed’s current application to reopen

5a

raises these exact issues. The application of res

judicata in this case would not be unjust.

{q 4} Moreover, under App.R. 26(B)(5) Ahmed has

failed to show there is genuine issue as to whether

he was deprived of the effective assistance of appel-

late counsel. In order to establish a claim of ineffec-

tive assistance of appellate counsel, the applicant

must demonstrate that counsel’s performance was

deficient and that the deficient performance preju-

diced the defense. Strickland v. Washington (1984),

466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052; State .

uv. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373,

cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258.

{7 5} In Strickland the United States Supreme

Court ruled that judicial scrutiny of an attorney’s

work must be highly deferential. The Court noted

that it is all too tempting for a defendant to second-

guess his lawyer after conviction and that it would

be all too easy for a court, examining an unsuccess-

ful defense in hindsight, to conclude that a partic-

ular act or omission was deficient. Therefore, “a

court must indulge a strong presumption that

counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the

defendant must overcome the presumption that,

under the circumstances, the challenged action

‘might be considered sound trial strategy.” Strick-

land, 104 S.Ct. at 2065.

{7 6} Specifically, in regard to claims of ineffective

assistance of appellate counsel, the United States

Supreme Court has upheld the appellate advocate’s

prerogative to decide strategy and tactics by select-

6a

ing what he thinks are the most promising argu-

ments out of all possible contentions. The court

noted, “Experienced advocates since time beyond

memory have emphasized the importance of win-

nowing out weaker arguments on appeal and focus-

ing on one central issue if possible, or at most on a

few key issues.” Jones v. Barnes (1983), 463 U.S.

745, 77 L.Ed.2d 987, 103 S.Ct. 3308, 3313. Indeed,

including weaker arguments might lessen the

impact of the stronger ones. Accordingly, the Court

ruled that judges should not second-guess reason-

able professional judgments and impose on appel-

late counsel] the duty to raise every “colorable” issue.

Such rules would disserve the goal of vigorous and

effective advocacy. The Supreme Court cf Ohio reaf-

firmed these principles in State v. Allen, 77 Ohio

St.3d 172, 1996-Ohio-366, 672 N.E.2d 638 and State

v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987.

{{ 7} Moreover, even if a petitioner establishes

that an error by his lawyer was professionally unrea-

sonable under all the circumstances of the case, the

petitioner must further establish prejudice: but for

the unreasonable error there is a reasonable prob-

ability that the results of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in

the outcome. A court need not determine whether

counsel’s performance was deficient before examin-

ing prejudice suffered by the defendant as a result

of alleged deficiencies.

{7 8} Ahmed first argues that his appellate coun-

sel should have raised the following assignment of

7a

error: The Trial Court erred in sentencing Appel-

lant to more than minimum sentences, as the impo-

sition of a minimum sentence upon a defendant

who has not previously been imprisoned did not

constitute judicial fact-finding under Blakely uv.

Washington, 542 U.S. 296 (2004). The gravamen of

this argument is that the Supreme Court of Ohio

improperly declared all of R.C. 2929.14(B) uncon-

stitutional, when it should have only invalidated

subsection (B)(2) and preserved the General

Assembly’s presumption of a minimum sentence.

Ahmed further recognizes that this court, if pre-

sented with this argument, should not have upheld

it, because the argument seeks the partial overrul-

ing of Foster. Nevertheless, Ahmed maintains that

his appellate counsel was ineffective for failing to

preserve the argument for review by the Supreme

Court of Ohio.

{7 9} It is hard to imagine a more basic strategic

choice than deciding whether to advance an imme-

diately losing argument so that it can be raised at

the next level or to argue an issue on existing law

in the hope of an immediate benefit to the client.

This court will not second guess appellate counsel’s

strategic decisions.

{7 10} Ahmed next submits that his appellate

cevuse! should have argued that Foster violated the

Ex Post Facto Clause and deprived him of the pre-

sumptions of a minimum sentence and against max-

imum, consecutive sentences. However, this court

fully considered the Ex Post Facto argument and

rejected it in State v. Mallette, Cuyahoga App. No.

8a

87984, 2007-Ohio-715. See, also, State v. Moviel,

Cuyahoga App. No. 88984, 2007-Ohio-5947. Appel-

late counse! is not ineffective for rejecting a losing

argument. Furthermore, appellate counsel did

argue that the trial court erred in imposing maxi-

mum anc consecutive sentences which violated the

Ohio and United States Constitutions and that the

sentencing criteria as interpreted in Foster violat-

ed the Sixth Amendment. Again, this court will not

second guess the professional judgments of counsel.

{f 11} Finally, Ahmed asserts that his appellate

counsel mishandled the third assignment of error,

that the triai court erred in allowing Ahmed’s bail

money which had been provided by his wife to be

app.ied to fines, by failing to submit a full and ade-

quate record. In the subject appeal Ahmed argued

that when his trial lawyer posted the $50,000 bond,

he signed a “Clerk’s Office Form” which authorized

the application of this money toward any fine

imposed. At tne initial sentencing the trial judge

imposed a $115,000 fine, and the clerk’s office

applied the bond money to the fine the next day.

When this court vacated the sentence in Case No.

84220, this necessarily vacated the fine also. Thus,

on remand Ahmed argued that Mrs. Afnan Ahmed

supplied the money for bail, but neither she nor

Ahmed had given the trial attorney authorization

to sign the form allowing the bond money to be

applied toward the fines, or they had revoked any

such authorization before the resentencing. The

argument continued that because R.C. 2937.40(B)

provides that money deposited for bail may not be

applied to fines except upon express approval of the

9a

person who deposited the money, the bond money

should be returned. The trial court rejected this

argument and reimposed the fines. This court over-

ruled this assignment of error, because neither the

bond nor the clerk’s office form were in the record,

and without those documents this court could not

review the assignment.

{7 12} In the application to reopen, Ahmed includ-

ed copies of the “Felony Bail Recognizance” and the

clerk’s office form signed by the trial attorney.

Ahmed argues that his appellate counsel was inef-

fective for failing to provide an adequate record

and for failing to argue the following assignment of

error: “The Trial Court erred in ordering the Appel-

lant’s bond to be applied to his costs and fines with-

out first conducting a hearing to determine who

had paid the bond.”

{7 13} However, Ahmed’s argument fails to show

prejudice. R.C. 2937.40(B) provides that if someone

other than accused provides the money for bail,

that money may not be applied toward the satis-

faction of a fine, except upon the express approval

of the person who deposited the money. Subsection

(C) provides that if the accused uses his own money

for bail, then, if the accused is not indigent, the

court may apply the bond money toward the fine.

Thus, the threshold issue is whose money was

used, Ahmed’s or his wife’s. At the resentencing

Ahmed submitted his wife’s affidavit which stated,

“That money came from my account.” This is not

necessarily identical to stating, “That was my

money.” More importantly, during the resentencing

10a

the trial judge explicitly heard argument on

whether the bail money could be used toward satis-

fying the fines. The trial judge rejected the evi-

dence presented: “Forget Mrs. Ahmed, because

I wouldn’t believe anything she said. Nothing

Mrs. Ahmed would say would I believe.” (May 23,

2006 Transcript, Pg. 14.) Furthermore, the docu-

ments submitted with the application do not aid

Ahmed’s case. The clerk’s office form identified the

money as the property of the defendant, and the

Felony Bail Recognizance form was signed by

Assam Ahmed, not Afnan Ahmed. Therefore,

because the trial judge did hear the matter and

because of the lack of evidence establishing the bail

money as the wife’s property, the proposed assign-

ment of error would not have been well taken.

There is no prejudice.

{ft 14} Accordingly, the application to reopen is

denied.

ANN DYKE, JUDGE

CHRISTINE T. MCMONAGLE, P.J., AND

MELODY J. STEWART, J., CONCUR

lla

ORC Ann. 2907.02 (2008)

§§ 2907.02. Rape

(A)(1) No person shall engage in sexual conduct

with another who is not the spouse of the offender

or who is the spouse of the offender but is living

separate and apart from the offender, when any of

the following applies:

(a) For the purpose of preventing resistance, the

offender substantially impairs the other person’s

judgment or control by administering any drug,

intoxicant, or controlled substance to the other

person surreptitiously or by force, threat or force,

or deception.

(b) The other person is less than thirteen years of

age, whether or not the offender knows the age of

the other person.

(c) The other person’s ability to resist or consent is

substantially impaired because of a mental or

physical condition or because of advanced age, and

the offender knows or has reasonable cause to

believe that the other person’s ability to resist or

consent is substantially impaired because of a

mental or physical condition or because of

advanced age.

(2) No person shall engage in sexual conduct with

another when the offender purposely cumpels the

other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape,

a felony of the first degree. If the offender under

division (A)(1)(a) of this section substantially

12a

impairs the other person’s judgment or control by

administering any controlled substance described

in section 3719.41 of the Revised Code to the other

person surreptitiously or by force, threat of force,

or deception, the prison term imposed upon the

offender shall be one of the prison terms pre-

scribed for a felony of the first degree in section

2929.14 of the Revised Code that is not less than

five years. Except as otherwise provided in this

division, notwithstanding sections 2929.11 to

2929.14 of the Revised Code, an offender under

division (A)(1)(b) of this section shall be sentenced

to a prison term or term of life imprisonment pur-

suant to section 2971.03 of the Revised Code. If an

offender is convicted of or pleads guilty to a viola-

tion of division (A)(1)(b) of this section, if the

offender was less than sixteen years of age at the

time the offender committed the violation of that

division, and if the offender during or immediate-

ly after the commission of the offense did not

cause serious physical harm to the victim, the vic-

tim was ten years of age or older at the time of the

commission of the violation, and the offender has

not previously been convicted of or pleaded guilty

to a violation of this section or a substantially

similar existing or former law of this state, anoth-

er state, or the United States, the court shall not

sentence the offender to a prison term or term of

life imprisonment pursuant to section 2971.03 of

the Revised Code, and instead the court shall sen-

tence the offender as otherwise provided in this

division. If an offender under division (A)(1)(b) of

this section previously has been convicted of or

ahha

13a

pleaded guilty to violating division (A)(1)(b) of

this section or to violating an existing or former

law of this state, another state, or the United

States that is substantially similar to division

(A)(1)(b) of this section, if the offender during or

immediately after the commission of the offense

caused serious physical harm to the victim, or if

the victim under division (A)(1)(b) of this section

is less than ten years of age, in lieu of sentencing

the offender to a prison term or term of life

imprisonment pursuant to section 2971.03 of the

Revised Code, the court may impose upon the

offender a term of life without parole. If the court

imposes a term of life without parole pursuant to

this division, division (F) of section 2971.03 of the

Revised Code applies, and the offender automati-

cally is classified a tier III sex offender/child-vic-

tim offender, as described in that division.

(C) A victim need not prove physical resistance to

the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim’s

sexual activity, opinion evidence of the victim’s

sexual activity, and reputation evidence of the vic-

tim’s sexual activity shall not be admitted under

this section unless it involves evidence of the ori-

gin of semen, pregnancy, or disease, or the vic-

tim’s past sexual activity with the offender, and

only to the extent that the court finds that the evi-

dence is material to a fact at issue in the case and

that its inflammatory or prejudicial nature does

not outweigh its probative value.

l4a

Evidence of specific instances of the defendant’s

sexual activity, opinion evidence of the defendant’s

sexual activity, and reputation evidence of the

defendant’s sexual activity shall not be admitted

under this section unless it involves evidence of the

origin of semen, pregnancy, or disease, the defen-

dant’s past sexual activity with the victim, or is

admissible against the defendant under Section

2945.59 of the Revised Code, and only to the extent

that the court finds that the evidence is material to

a fact at issue in the case and that its inflammato-

ry or prejudicial nature does not outweigh its pro-

bative value.

(E) Prior to taking testimony or receiving evidence

of any sexual activity of the victim or the defen-

dant in a proceeding under this section, the court

shall resolve the admissibility of the proposed evi-

dence in a hearing in chambers, which shall be

held at or before preliminary hearing and not less

than three days before trial, or for good cause

shown during the trial.

(F) Upon approval by the court, the victim may be

represented by counsel in any hearing in cham-

bers or other proceeding to resolve the admissibil-

ity of evidence. If the victim is indigent or

otherwise is unable to obtain the services of coun-

sel, the court, upon request, may appoint counsel

to represent the victim without cost to the victim.

(G) It is not a defense to a charge under division

(A)(2) of this section that the offender and the vic-

tim were married or were cohabiting at the time of

the commission of the offense.

15a

ORC Ann. 2907.03 (2008)

§§ 2907.03. Sexual battery

(A) No person shall engage in sexual conduct with

another, not the spouse of the offender, when any

of the following apply:

(1) The offender knowingly coerces the other per-

son to submit by any means that would prevent

resistance by a person of ordinary resolution.

(2) The offender knows that the other person’s

ability to appraise the nature of or control the

other person’s own conduct is substantially

impaired.

(3) The offender knows that the other person sub-

mits because the other person is unaware that the

act is being committed.

(4) The offender knows that the other person sub-

mits because the other person mistakenly identi-

fies the offender as the other person’s spouse.

(5) The offender is the other person’s natural or

adoptive parent, or a stepparent, or guardian, cus-

todian, or person in loco parentis of the other per-

son.

(6) The other person is in custody of law or a

patient in a hospital or other institution, and the

offender has supervisory or disciplinary authority

over the other person.

(7) The offender is a teacher, administrator,

coach, or other person in authority employed by or

serving in a school for which the state board of

ak 5 SF. oC tie = os K

16a

education prescribes minimum standards pur-

suant to division (D) of section 3301.07 of the

Revised Code, the other person is enrolled in or

attends that school, and the offender is not

enrolled in and does not attend that school.

(8) The other person is a minor, the offender is a

teacher, administrator, coach, or other person in

authority employed by or serving in an institution

of higher education, and the other person is

enrolled in or attends that institution.

(9) The other person is a minor, and the offender

is the other person’s athletic or other type of

coach, is the other person’s instructor, is the

leader of a scouting troop uf which the other per-

son is a member, or is a person with temporary or

occasional disciplinary control over the other per-

son.

(10) The offender is a mental health professional,

the other person is a mental health client or

patient of the offender, and the offender induces

the other person to submit by falsely representing

to the other person that the sexual conduct is nec-

essary for mental health treatment purposes.

(11) The other person is confined in a detention

facility, and the offender is an employee of that

detention facility.

(12) The other person is a minor, the offender is a

cleric, and the other person is a member of, or

attends, the church or congregation served by the

cleric.

17a

(B) Whoever violates this section is guilty of sexu-

al battery. Except as otherwise provided in this

division, sexual battery is a felony of the third

degree. If the other person is less than thirteen

years of age, sexual battery is a felony of the sec-

ond degree, and the court shall impose upon the

offender a mandatory prison term equal to one of

the prison terms prescribed in section 2929.14 of

the Revised Code for a felony of the second degree.

(C) As used in this section:

(1) “Cleric” has the same meaning as in section

2317.02 of the Revised Code.

(2) “Detention facility” has the same meaning as

in section 2921.01 of the Revised Code.

(3) “Institution of higher education” means a state

institution of higher education defined in section

3345.011 [3345.01.1] of the Revised Code, a pri-

vate nonprofit college or university located in this

state that possesses a certificate of authorization

issued by the Ohio board of regents pursuant to

Chapter 1713. of the Revised Code, or a school cer-

tified under Chapter 3332. of the Revised Code.

18a

ORC Ann. 2907.06 (2008)

§§ 2907.06. Sexual imposition

(A) No person shall have sexual contact with

another, not the spouse of the offender, cause

another, not the spouse of the offender, to have

sexual contact with the offender; or cause two or

more other persons to have sexual contact when

any of the following applies:

(1) The offender knows that the sexual contact is

offensive to the other person, or one of the other

persons, or is reckless in that regard.

(2) The offender knows that the other person’s, or

one of the other person’s, ability to appraise the

nature of or control the offender’s or touching per-

son’s conduct is substantially impaired.

(3) The offender knows that the other person, or

one of the other persons, submits because of being

unaware of the sexual contact.

(4) The other person, or one of the other persons,

is thirteen years of age or older but less than six-

teen years of age, whether or not the offender

knows the age of such person, and the offender is

at least eighteen years of age and four or more

years older than such other person.

(5) The offender is a mental health professional,

the other person or one of the other persons is a

mental health client or patient of the offender,

and the offender induces the other person who is

the client or patient to submit by falsely repre-

senting to the other person who is the client or

19a

patient that the sexual contact is necessary for

mental health treatment purposes.

(B) No person shall be convicted of a violation of

this section solely upon the victim’s testimony

unsupported by other evidence.

(C) Whoever violates this section is guilty of sexu-

al imposition, a misdemeanor of the third degree.

If the offender previously has been convicted of a

violation of this section or of section 2907.02,

2907.03, 2907.04, 2907.05, or 2907.12* of the

Revised Code, a violation of this section is a mis-

demeanor of the first degree.

20a

ORC Ann. 2953.08 (2008)

§§ 2953.08. Grounds for appeal by defendant or prosecu-

tor of sentence for felony; appeal cost oversight committee

[Pertinent provision]

(A) In addition to any other right to appeal and

except as provided in division (D) of this section, a

defendant who is convicted of or pleads guilty to a

felony may appeal as a matter of right the sen-

tence imposed upon the defendant on one of the

following grounds:

(1) The sentence consisted of or included the max-

imum prison term allowed for the offense by divi-

sion (A) of section 2929.14 or section 2929.142

[2929.14.2] of the Revised Code, the sentence was

not imposed pursuant to division (D)(3)(b) of sec-

tion 2929.14 of the Revised Code, the maximum

prison term was not required for the offense pur-

suant to Chapter 2925. or any other provision of

the Revised Code, and the court imposed the sen-

tence under one of the following circumstances:

(a) The sentence was imposed for only one offense.

(b) The sentence was imposed for two or more

offenses arising out of a single incident, and the

court imposed the maximum prison term for the

offense of the highest degree.

(2) The sentence consisted of or included a prison

term, the offense for which it was imposed is a

felony of the fourth or fifth degree or is a felony

drug offense that is a violation of a provision of

Chapter 2925. of the Revised Code and that is

21a

specified as being subject to division (B) of section

2929.13 of the Revised Code for purposes of sen-

tencing, and the court did not specify at sentenc-

ing that it found one or more factors specified in

divisions (B)(1)(a) to (i) of section 2929.13 of the

Revised Code to apply relative to the defendant. If

the court specifies that it found one or more of

those factors to apply relative to the defendant,

the defendant is not entitled under this division to

appeal as a matter of right the sentence imposed

upon the offender.

(3) The person was convicted of or pleaded guilty

to a violent sex offense or a designated homicide,

assault, or kidnapping offense, was adjudicated a

sexually violent predator in relation to that

offense, and was sentenced pursuant to division

(A)(3) of section 2971.03 of the Revised Code, if

the minimum term of the indefinite term imposed

pursuant to division (A)(3) of section 2971.03 of

the Revised Code is the longest term available for

the offense from among the range of terms listed

in section 2929.14 of the Revised Code. As used in

this division, “designated homicide, assault, or

kidnapping offense” and “violent sex offense” have

the same meanings as in section 2971.01 of the

Revised Code. As used in this division, “adjudicat-

ed a sexually violent predator” has the same

meaning as in section 2929.01 of the Revised

Code, and a person is “adjudicated a sexually vio-

lent predator” in the same manner and the same

circumstances as are described in that section.

(4) The sentence is contrary to law.

22a

(5) The sentence eonsisted of an additional prison

term of ten yee*s imposed pursuant to division

(D)(2)(a) of section 2929.14 of the Revised Code.

(6) The sentence consisted of an additional prison

term of ten years imposed pursuant to division

(D)(3)(b) of section 2929.14 of the Revised Code.

KKK

(G)(1) If the sentencing court was required to

make the findings required by division (B) or (D)

of section 2929.13, division (D)(2)(e) or (E)(4) of

section 2929.14, or division (H) of section 2929.20

of the Revised Code relative to the imposition or

modification of the sentence, and if the sentencing

court failed to state the required findings on the

record, the court hearing an appeal under division

(A), (B), or (C) of this section shall remand the

case to the sentencing court and instruct the sen-

tencing court to state, on the record, the required

findings.

(2) The court hearing an appeal under division

(A), (B), or (C) of this section shall review the

record, including the findings underlying the sen-

tence or modification given by the sentencing

court.

The appellate court may increase, reduce, or oth-

erwise modify a sentence that is appealed under

this section or may vacate the sentence and

remand the matter to the sentencing court for

resentencing. The appellate court’s standard for

review is not whether the sentencing court

abused its discretion. The appellate court may

23a

take action authorized by this division if it clearly

and convincingly finds either of the following:

(a) That the record does not support the sentenc-

ing court’s findings under division (B) or (D) of

section 2929.13, division (D)(2)(e) or (E)(4) of sec-

tion 2929.14, or division (H) of section 2929.20 of

the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

KEKE

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