ORlCMfT_IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff,

-vs-

XEITH ALLEN

Defendant,

Case NO.09^^1 ^0

On Appeal from theCuyahoga County Coartof Appeals, EighthAppellate District

Court of AppealsCase No.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT,. KEITH ALLEN

DONALD R. MURPHY (0024068)Attorney At Law12800 Shaker Blvd.Cleveland, OH 44120

COUNSEL FOR DEFENDANT-APPELLANT

WILLIAM MASONJustice Center-9`h Floor1200 Ontario StreetCleveland, OH 44113

COUNSEL FOR PLAINTIFF-APPELLEE

TABLE OF CONTENTSPage No.

EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONQUESTION AND ISA CASE OF PUBLIC OR GREAT GENERAL INTEREST

STATEMENT OF THE CASE AND FACTS .....................:....................... 2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

FIRST PROPOSITION OF LAW

A DEFENDANT IS DENIED EFFECTIVE ASSISTANCE OF COUNSELWHERE HIS ATTORNEY FAILED TO INVESTIGATE THE INITIALWARRANTLESS AUTOMOBILE STOP AND FILE A MOTION TOSUPPRESS CHALLENGING THE VALIDITY OF THE SEARCH ANDSEIZURE, RESULTING IN A VIOLATION UNDER THE FOURTH . ANDSIXTH AMENDMENT AS GUARNTEED PURSUANT TO THE U.S.CONSTITUTION.

.............. ............. ................. .............................................. ... 3

SECOND PROPOSIITON OF LAW

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSELWHERE THE GUARANTEES OF THE SIXTH AND EIGHTHAMENDMENTS REQUIRE REASONABLE INVESTIGATION OFMITIGATION EVIDENCE.

............................................................................................... 6

THIRD PROPOSIITON OF LAW

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSELAS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONWHERE COUNSEL FAILED TO RECOGNIZE THAT HIS CLIENT WASNOT GUILTY BY REASON OF INSANITY

.......... .................................. .................................................. 12

CONCLUSION .. ..... .. ... ... .. ..... . .. .. ... .. ..... ..... ....... .. ... .. ..... ..... ..... ............... .. . . ..15

CERTIFICATE OF SERVICE .................................................................. ...........................

11

APPENDIX:

Cuyahoga County Court of Appeals Decision and Journal Entry, State v AllenEighth Judicial District App. No. 91750.

May 11, 2009)

iii

EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONQUESTION.AND IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST

This case affects hundreds, if not thousands of mentally ill, developmentally disabled offenders

and the protection of the public. The Ninth District's Court of Appeals refused to reverse and remand

the trial court's error and order the correct application of Local Rules 30, 30.1, and 33. The Ninth

District sought to avoid the federal constitutional claim in this case by frivolously finding that

Appellant did not raise a jurisdictional claim in a timely manner. The jurisdictional error is clearly

upon the face of the record below and does need the supportive evidentiary documents to support the

jurisdictional claim.

The Court of Appeals erred, because increasingly, more and more inmates' in the nation's jail

and prison systems are mentally ill. Jails and prisons have become the institutions of the last resort for

the mentally ill. Development of the Mental Health Court Docket became a critical collaborative

initiative between the criminal justice and the mental health treatment systems. In 2002, the Court of

Common Pleas developed the Mental Health Court Docket model for presentation and ultimate

acceptance at the Eighth District Judicial Conference.

The focus of this collaboration is to identify existing programs and services that serve these

populations; to identify the gaps in services, and expand resources; to enhance communication and

training which ultimately provides an efficient, effective and consistent criminal response. The

objectives of the collaboration are early identification and linkages to treatment services for offenders

with mental illness or those offenders that are developmentally disabled. Here, Appellant is such an

offender, as he was diagnosed with schizophrenia and found to be eligible by the jail psychologist.

Yet, the Court of Appeals ignored this great public interest. The Eighth District Court of

Appeals decision focused more on the defendant-appellant's prior convictions, than his medical

evaluation, referral by the jail psychiatrist, and his trial counsel's deficiency in making the request for

1

submission to the mental health court docket prior to the inducement to plead guilty and the actual

entering of the guilty plea. Both the trial court and the trial counsel should have recognized that

specialized attorney and the mental health were the proper authorities to try, hear and decide this case.

The problem with mentally ill defendant's trial rights being violated is so tantamount there is a

great outcry in the community to bring change. In this surge there are.several stakeholders, Alcohol &

Drug Addiction Services Board, Case Western Reserve University, Center for Mental Retardation,

City of Cleveland, Cleveland Municipal Court, Cleveland Municipal Court Psychiatric Clinic,

Cleveland Police Department, Cuyahoga Community Mental Health Board, and Cuyahoga County

Adult Probation & Pretrial Services, and there are many more at the County and state levels.

This is a case of first impression, and the trial court's decision and the court of appeals

affirmation has dangerous implications. Moreover, the decision is cruel and unusual punislunent upon

those members within our society who should be protected the most. This decision makes Local Rules

30, 30.1, and 33 of no value in getting mentally challenged offenders assessed, transferred to the

mental health court, and appointment of specialized counsel prior to rushing them to enter and the trial

court to accept their guilty plea. Therefore, this Court should grant review of this case.

STATEMENT OF THE CASE AND FACTS

On April 15, 2008 Defendant-Appellant in open court with his trial counsel James A. Gay retracted his

plea of not guilty and entered into a negotiated plea. On recommendation of the prosecutor count 1 of the

indictment was amended by deletion of a three year firearm specification. Additionally, count 2 was amended to

attempted escape, R.C.2923.02/2921.34(A)(1). Defendant-Appellant then entered a guilty plea to the above

counts, and one count of aggravated robbery pursuant to R.C. 2911.01(B) a felony of the first degree, and a one

year firearm specification, R.C. 2941.141.

On May 20, 2008, Appellant was scheduled, and came before the trial court for sentencing. At the

request of trial counsel, a continuance of the sentencing date was granted by the trial court. The purpose of the

2

continuance was based upon trial counsel's oral motion requesting that his client "Keith Allen" be

transferred to the mental health court docket. The trial court granted the oral motion and continued

Appellant's sentencing date to June 6, 2008. However, on June 6, 2008, although a medical expert found

that Appellant was eligible to be placed on the Mental Health Court Docket the trial court denied the

request based upon trial counsel's failure to file such a request prior to pleading guilty.

On November 3, 1999, the Cuyahoga County Grand Jury indicted Defendant KEITH ALLEN on

the following six counts: carrying a concealed weapon in violation of Ohio:Revised Code § 2923.12;

having a weapon while under disability in violation of Ohio Revised Code § 2923.13 with a firearm

specification; the possession of crack cocaine in an amount exceeding one hundred grams in violation of

Ohio Revised Code § 2925.11, with a major drug offender specification and a firearm specification; the

preparation of drugs for sale in violation of Ohio Revised Code § 2925.07 with a schoolyard specification

and a firearm specification; possessing criminal tools in violation of Ohio Revised Code § 2923.24; and

the possession of PCP in an amount greater than one times the bulk amount but not exceeding five times

the bulk amount in violation of Ohio Revised Code § 2925.11 with a firearm specification.

In this case the defendant entered an unintelligent and coerced plea in the trial court. A timely

appeal was taken and oral arguments were held on the merits. The Court of Appeals reviewed the several

assignments of error and made a final disposition. The Court of Appeals denied the assignment of errors.

Now comes Appellant making a timely appeal to this Honorable Court and asking that he be granted

jurisdiction to pursue the merits of his claim.

FIRST PROPOSITION OF LAW

A DEFENDANT IS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE HISATTORNEY FAILED TO INVESTIGATE THE INITIAL WARRANTLESS AUTOMOBILESTOP AND FILE A MOTION TO SUPPRESS CHALLENGING THE VALIDITY OF THESEARCH AND SEIZURE, RESULTING IN A VIOLATION UNDER THE FOURTH ANDSIXTH AMENDMENT AS GUARNTEED PURSUANT TO THE U.S. CONSTITUTION

3

In order to conduct an investigatory stop, police must be able to point to specific and

articulable facts which, taken together with the rational inferences from those facts, reasonably

warrant the intrusion. Terry v. Ohio (1968), 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v.

White (January 18, 2002), Montgomery App. No. 18731. The propriety of an investigative stop must

be viewed in light of the totality of the surrounding facts and circumstances. State v. Bobo (1988), 37

Ohio St.3d 177, 524 N.E.2d 489. These circumstances must be viewed through the eyes of a

reasonable and prudent police officer on the scene who must react to events as they unfold. State v.

Andrews (1991), 57 Ohio St.3d 86, 565 N.E.2d 1271. Accordingly, the court must take into

consideration the officer's training and experience and understand how the situation would be viewed

by the officer on the street. Id at ¶ 14.

The particulars in this case demonstrate that the area in which this Allen was stopped is

located in a high crime area. While that factor alone is insufficient to justify an investigatory stop, it

is a relevant factor to be considered. Bobo; Illinois v. Wardlow (2000), 528 U.S. 119, 120 S.Ct. 673,

145 L.Ed.2d 570. Additionally, there are no articulated factors that can be pointed to that the

investigating and arresting officers in this case observed any criminal activity afoot or so much as a

traffic violation occurring to justify the stop at its inception. State v. Davie (1993), 86 Ohio App.3d

460.

Moreover, counsel's focus went solely towards whether his client had attempted to disarm an officer,

and not what the officers saw while Appellant was in his vehicle and what the officers approach were

and Appellant's reaction to the officer, which is a relevant factor to be considered. State v. D ly esb.y

(Nov. 22, 2006), Montgomery App. No. 21648, 2006-Ohio-6229; Wardlow, supra. The Strickland

presumption of effective representation is premised upon a lawyer's strategic decision-making to

promote his client's best interest. This presumption fails, however, if any of the assumptions

4

underlying it fail. For example, if a lawyer is burdened by a conflict of interest, the Court can no

longer assume that a lawyer is acting in the best interests of his client. See Holloway v. Arkansas

435 U.S. 475, 490-91 (1978). This premise is also extended to cases such as the present concerning

Fourth Amendment issues, as demonstrated in Kimmelman v. Morrison, 477 U.S. 365 (1986), a

decision can be unreasonable because it is uninformed.

The record in this case clearly reveals that Appellant Allen's attorney failed to file a suppression

motion, not due to strategic considerations, but because he was unaware of the search and of the

State's intention to introduce the cigarette in the astray containing PCP into evidence. Counsel was

unapprised of the search and seizure because he had conducted no pretrial discovery concerning the

automobile stop.

Counsel's failure to request discovery, again, was. not based on "strategy," but on counsel's mistaken

beliefs that the State was obliged to take the initiative and turn over all of its inculpatory evidence to

the defense and that the victim's preferences would determine whether the State proceeded to trial

after an indictment had been returned.

There is no justification why for this startling ignorance of the law, and complete failure to prepare a

pre trial motion to challenge the warrantless stop. Counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary.

Counsel neither investigated, nor made a reasonable decision not to investigate, the State's case

through complete discovery. Such a complete lack of pre-trial preparation puts at risk both the

defendant's right to an ample opportunity to meet the case of the prosecution, and the reliability of the

adversarial testing process. Whcrefore, this First Proposition must proceed forward on its merit.

SECOND PROPOSITION OF LAW

5

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHERE THEGUARANTEES OF THE SIXTH AND EIGHTH AMENDMENTS REQUIREREASONABLE INVESTIGATION OF MITIGATION EVIDENCE.

The right to effective counsel, which derives from the right to counsel, guarantees a defendant

the assistance "necessary to ensure that the trial is fair." Strickland v. WashinQton, 466 U.S. 668, 685

(1984); see also Gideon v. WainwriQht, 372 U.S. 335, 344 (1963). As the Court made clear in

Strickland, either the Government or defense counsel may be responsible for depriving the accused of

the benefit of counsel. 466 U.S. at 686. Thus, either governmental stumbling blocks or defense

counsel's ineptitude may undermine defense counsel's.ability to make strategic and tactical decisions

in an independent manner. See id. at 686, 689.

As identified by the United States Supreme Court, the basic duties of an effective lawyer are

loyalty, avoidance of conflicts of interest, advocacy (described as the overarching duty), and

consultation and communication with the client; "[c]ounsel also has a duty to bring to bear such skill and

knowledge as will render the trial a reliable adversarial testing process." Id. at 688. Id. at 385 (citations

omitted). Appellant argues in his second assignment of error that he was denied effective assistance of

counsel. Specifically, Appellant claims that his counsel was ineffective in not having a psychological

evaluation performed prior to negotiating a guilty plea. Here, the record fully demonstrates that a

psychological evaluation was needed, as Appellant displayed the type of behavior that would alert trial

counsel to make such a request.

For the Strickland presumption to stand, a lawyer's decisions must be formulated from a

reasonable understanding of the law and the facts. See id. As with all obligations, the duty to

investigate reasonably is not an independent good; rather, it is a means of ensuring that the adversarial

process functions properly and that counsel's decisions are reasonable, tactical, and strategic. As a

result, if lawyers' decisions are based on ignorance, they are neither reasonable nor strategic. See, e.g.,

Horton v. Zant, 941 F.2d 1449, 1462 (11°i Cir. 1991) ("[O]ur case law rejects the notion that a`strategic'

6

decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice

between them."). If lawyers have not conducted a reasonable investigation, they do not have a

reasonable understanding of the facts; consequently, they have nothing to which to apply their legal

skill and judgment.

In the present case, counsel's failure to investigate, obtain, or present any mitigating evidence

to the trial court prior to the guilty plea and sentencing, let alone the powerful mitigating evidence of

Allen's borderline mental retardation, psychiatric disorders, and history of (PCP) drug abuse,

undermines the confidence in Allen's plea being knowingly, voluntarily and intelligently entered, and

his six year sentence. It concludes that counsel's failure to conduct any mitigation investigation was

inherently unreasonable because it deprived Appellant of his opportunity to humanize himself before

the trial court.

The transcript of the sentencing hearing is replete of the trial court's references to Appellant's

drug and violent convictions, in fact in one instance the trial court made a dehumanizing statement as

towards the Appellant's physical characteristics. The primary purpose of the penalty phase is to insure

that the sentence is individualized by focusing [on] the particularized characteristics of the defendant.

By failing to provide such evidence to the sentencing court, though readily available, trial counsel's

deficient performance prejudiced Appellant's ability to receive an individualized sentence." In this

case, counsel's absolute failure to investigate, obtain, or present any evidence, let alone the powerful,

concrete, and specific mitigating evidence that was available is fatal. Instead, counsel left Appellant alone in

trying to explain his past and present behavior to the trial court. Appellant clearly could not distinguish the

acts of when he was a juvenile from the recent acts of when he was an adult.

In essence, the trial court was asked to decide Appellant Allen's fate without hearing anything

about his borderline mental retardation, his schizotypal personality disorder, his antisocial personality

disorder, his drug and alcohol dependencies, and history of having had brain damage and loss of

7

memory from blunt force to the head was readily made available by Cuyahoga County's Mental

Health Physician, counsel made no effort whatsoever to obtain these expert findings for sentencing

purposes. The trial court stated although Appellant was eligible to be placed on the Mental Health

Court's Docket, his trial counsel had made a blunder in submitting the issue to the court after the

Appellant had been urged by counsel to enter a guilty plea.

Appellant was prejudiced by his trial counsel's deficient performance, if counsel would have

communicated with Appellant on more than one jail visit he would have readily discovered that he

was not sane. Cuyahoga County Common Pleas Court created the Mental Health Court Docket

(MHCD) in 2002 through amendments to Local Rules 30, 30.1, and 33.Rules to protect the rights of

criminal defendants like Appellant. Counsel owed a duty to his client to know about the enactment of

these rules, and the time limitations for invoking such, as much as their applicability to his case.

Although trial counsel fail to make a timely written pre trial motion to the court to have the

case transferred to the Mental health Court, at the very least counsel should have stated at the

sentencing hearing that the fact that his client was eligible albeit untimely, appellant's eligibility was a

mitigating factor itself.

Counsel's obtaining and production of the above mentioned evidence to the trial court would

have tilted the scale in favor of the trial court handing down a lesser penalty. The record lends

credibility to the reasonable probability that the sentencing outcome would have been different where

the trial initially considered a three year sentence, but dismissed the consideration after reviewing

Appellant's prior run ins with police authorities.

To be reasonable, an investigation of mitigation evidence should be complete and thorough.

See ABA Prosecution Function and Defense Function Standards, Standard 4.-4.1 ("Duty to

Investigate") ("Defense counsel should conduct a prompt investigation of the circumstances of the

8

case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the

event of conviction" (emphasis supplied)). By implication, these ABA policies encompas.s two aspects

of investigation: (1) the breadth of the investigation (where counsel must research); and (2) the depth

of the investigation (how far counsel must research in any particular area). In other words, the

independent pretrial investigation into mitigation evidence must be both: (1) complete; and (2) khorough.

Thorough investigation and planning for mitigation must begin immediately upon counsels'

acceptance, of representation. See [Terry] Williams v. Taylor, 529 U.S. 362, 395-396 (2000)

(notwithstanding fact that trial counsel "competently handled the guilt phase of the trial," counsel's

failure to begin to prepare for sentencing phase until a week before trial fell below professional

standards, and counsel "did not fulfill their obligation to conduct a thorough investigation of the

defendant's background"); The duty to investigate exists regardless of the accused admissions or

statements to defense counsel of facts constituting guilt or the accused stated desire to plead guilty.").

A perfunctory investigation into one or all areas that a reasonable attomey would research does

not satisfy the guarantees of the Sixth and Eighth Amendments. Lawyers, in consultation with their

client, cannot make a valid strategic decision about the presentation of mitigating evidence without a

reasonable understanding of all available mitigating evidence. Skimming through a criminal

defendant's psychosocial history or, as here, interviewing Appellant in the County Jail, does not

provide the necessary depth of understanding to enable either the lawyer or the client to make

informed strategic decisions. Lawyers need to look reasonably deeply into each mitigation area they

investigate (e.g. family, friends, co-workers, school records, and medical records). Counsel cannot

surrender simply because their first steps are frustrated, or because they find some information that

they are unlikely to present.

9

Counsel's decision not to present the evidence was unreasonable. Once counsel was aware that

the evidence existed, it was incumbent that he evaluated its potential benefit or harm by examining it

and subjecting it to proper consideration. The record shows that counsel was made aware of a

document sent to a Mr. Dan Peterca of the probation department from Dr. Smarty the jail psychiatrist

who evaluated Appellant and diagnosed his psychosis. See (Vol. II May 20, 2008 Tr. p 5.). This

information came to counsel well in advance of his'7une 6, 2008 sentencing date. Dr. Smarty should

have been summoned by counsel to provide expert testimony, particularly where the courtmade

references to its layperson understanding about its second hand opinion from experts on the subject of

how Appellant was affected by his use of PCP.

Dr. Smarty finding of Appellant's psychosis was essential to provide some sort of explanation

for Allen's behavior. Despite the availability of such evidence, however, none was presented by

counsel at sentencing for mitigation. Appellant's attorney's representation was ineffective; the record

shows that the onerous burden to present mitigation evidence was placed upon him by the trial court.

At Appellant's sentencing, his counsel offered little in mitigation and no new evidence with the

exception of Appellant being the father of three children. Moreover, counsel could not get his client's

age correct holding that he was 27 years old. Lawyers may not rely upon their own client for all of the

available information that could be proffered to convince a court to adhere to hand down a minimum

sentence. Nor may counsel fail to conduct an investigation because of the client's desire not to present

mitigating evidence. See, Carter v. Bell, 218 F,3d 581, 596 (6`h Cir. 2000) ("The sole source of

mitigating factors cannot properly be that information which defendant inay volunteer; counsel must make some

effort at independent investigation in°order to make a reasoned, informed decision as to their utility... ").

Counsel shouid never underestimate how much shame, embarrassment, and anguish certain

mitigation evidence, such as childhood sexual abuse or other traumas, mental retardation or other

10

developmental or mental disorders, causes defendants. The defendant may have repressed much of the

information. As in the present case, Appellant did not comprehend the information that was being

conveyed to him. Thus, he assumed that counsel was educated in all matters relevant to his sentence.

On the contrary, Dr. Smarty would have been far better equipped to convey Appellant's history

of physical, emotional, and sexual abuse, combined with neurological and psychiatric impairment,

including mental retardation, if any, as these characteristics are prevalent among defendants charged

with violent crimes. Moreover, Dr. Smarty would have known how Appellant's mental illness and his

self-medication with drugs and alcohol, further compounded Appellant's condition. Here, Appellant's

perceptions and ability to communicate with the trial court was.limited by substance abuse, mental

illness, or developmental problems, not to mention the head injury suffered during his arrest.

It was dangerous that counsel, who is untrained and unadvised in these areas, would move to

represent Appellant in area where tremendous limitations existed. Here, what counsel did not see

limited his ability to represent Appellant and unreasonably restricted the scope of the investigation.

Counsel was therefore compelled to rely on sources of information from Dr. Smarty an expert to

obtain all potentially relevant mitigation evidence to effectively represent Appellant.

Although the duties to be competent and diligent are distinct from the duty to communicate, a

lawyer cannot fulfill the duty to communicate with his client if he has not first been competent and

diligent. See e.g., Attorney Grievance Comm'n v. Zdravkovich, 762 A.2d 950, 963-64 (Md. 2000)

(failure to exercise diligence, leading to the failure to keep the client reasonably informed). If a lawyer

does not conduct an adequate investigation into all potentially available areas of mitigation evidence

that can be presented in the penalty phase, he will not have sufficient information to make informed

decisions as to those decisions he will make; nor will the client have sufficient information to

11

"participate intelligently in decisions concerning the objectives of the representation and the means by which

they are to be pursued" See Model Rules of Professional Conduct Rule 1.4 cmt. 5 (2002).

The duty to communicate takes on added significance as the role of the client becomes more

important to the decision making process. That role is recognized in the rules of professional conduct

that specifically address the allocation of responsibility between the lawyer and the client. As the

Model Rules observe, "[The] client has ultimate authority to determine the purposes to be served by legal

representation, within the limits imposed by law and the lawyer's professional obligations." Model Rules of

Professional Conduct, Rule 1.2, cmt. 1 (2002). Thus, the ABA's ethical standards for the profession

attach the same importance to full investigation and consultation with the client as is reflected in the

constitutional jurisprudence of criminal litigation.

Wherefore, this Second Proposition of Larv must proceed forward on its merits.

THIRD PROPOSITION OF LAW

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ASGUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTION WHERECOUNSEL FAILED TO RECOGNIZE THAT HIS CLIENT WAS NOT GUILTY BYREASON OF INSANITY

The question under this assignment of error is whether trial counsel was ineffective for failing

to pursue a defense of not guilty by reason of insanity. He was. The Ohio Supreme Court, in State v.

Staten (1969), 18 Ohio St.2d 13, 247 N.E.2d 293, paragraph two of the syllabus, enunciated the test

for demonstrating legal. "In order to establish the defense of, insanity where raised by plea in a

criminal proceeding, the accused must establish by a preponderance of the evidence that disease or

other defect of his mind had so impaired his reason that, at the time of the criminal act with which he

is cbarged, either he did not know that such act was wrong or he did not have the ability to refrain

from doing that act."

12

Even more, it is well-recognized in Ohio, however, that: **[T]he defense of insanity cannot

be successfully established simply on the basis that the condition resulted from the use of intoxicants or drugs,

where such use is not shown to be habitual or chronic. * **" State v. Toth (1977), 52 Ohio St.2d 206, 210,

6 O.O. 3d 461, 464, 371 N.E.2d 831, 834 (modified on other grounds in State v. Muscatello [1978],

55 Ohio St.2d 201, 9 O.O. 3d 148, 378 N.E.2d 738), citing Rucker v. State (1928), 119 Ohio St. 189,

162 N.E. 802, paragraph three of the syllabus.

However, in the present case Appellant's mental condition goes beyond the basis of use of

intoxicants or drugs. At the hearing trial counsel acknowledged to the trial court that Appellant had

no recollection whatsoever, as to the events that occurred on the date of his arrest.

The trial court went on to find Appellant guilty of aggravated robbery pursuant to R.C.

2911.01(B) a felony of the first degree, and a one year firearm specification, R.C. 2941.141., and

attempted escape, pursuant to R.C.2923.02/2921.34(A)(1). Despite the strong evidence in this case

lending to a defense of not guilty by reason of insanity, Appellant was told entering a guilty plea. to

the above counts was the best thing to do by his trial counsel. Appellant's trial attorney rendered

ineffective assistance of counsel by failing to investigate and pursue possible defenses, including not

guilty by reason of insanity.

This case is in the same vein as another decision of the Cuyahoga County Court of Appeals in

State v. Brown (1992), 84 Ohio App.3d 414, 616 N.E.2d 1179,.and the similarly captioned decision of

this court, State v. Brown (Feb. 19, 1993), 1st Dist. No. C-920300, which held that a trial attorney is

ineffective for not raising competency or sanity_ issues whenever the defendant cannot recall the

"event at issue" and presents "mental health issues."

Appellant suffered mental disorders at the time of his physical struggle with police officer

Ganaway and such disorders prevented him from knowing that his acts were wrong and impaired his ability to

refrain from committing such acts. Moreover, Appellant was diagnosed with psychosis by Dr.. Smarty and his

13

disorders were compounded by his long-term, chronic abuse of PCP. The Case Information Form in this

case filed on February 27, 2008 reveals that appellant was arrested for. a violation of state drug law

for using PCP pursuant to R.C. 2925. Thus, the record amply supports the trial counsel was ineffective

for overlooking evidence tlrat Appellant's mental disorders were already in place and further compounded

by chronic or habitual drug abuse within the meaning of Toth, supra and Rucker supra.

R.C. 2945:37 mandates a hearing on the issue of defendant's competency to stand trial where the

issue is raised before trial, and for good cause shown where raised after trial has begun. In the

present case, the issue of Appellant's competency was never raised, and the discourse above does not

constitute a hearing on that issue. From the statements read by the judge, it is evident that the

psychiatric evaluation was performed to evaluate Appellant's sanity at the time the criines were

committed, and not his competency to be transferred to the Mental Health Court.

Although the court concluded that counsel had submitted the request after the guilty plea was

entered under the facts and circumstances of this case, it was incumbent upon appellant's counsel to,

at the very least, request for leave or to have the guilty plea withdrawn pursuant to Crim.R.32.1 to

raise the issue of Appellant's competency to stand trial. Trial procedures concerning the insanity

issues are governed by R.C. 2945.37 through R.C. 2945.40. It should first be noted that, in the instant

case, Appellant was not referred for an evaluation for competency to stand trial nor was a written plea

of not guilty by reason of insanity entered on his behalf.

When a defendant is referred for an evaluation of sanity at the time of the act, there is no statutory

requirement that a hearing be held on the issue in the absence of a formal plea of not guilty by reason on

sanity. Indeed, if the issue of competency (as distinguished from sanity at the time of the act) is raised,

R.C. 2945.37 mandates that'the Court shall hold a hearing on the issue as provided in the above section.

Appellant's trial counsel had an opportunity to be heard concerning the contents of the Dr.

Smarty's report, yet made no efforts to do so. Appellant's counsel presumably could have challenged

14

the knowing and voluntary nature of the plea based on the report by whatever means he chose,.but

elected not to do so, instead requesting that the court give his client the minimum sentdnce, an act

which it was far from being persuaded to do. However, the trial court gave Appellant's trial counsel

every opportunity to be heard. Appellant's courisel could have made a request to have the examining

psychiatrist testify by affidavit in support of a request for leave to file a motion to set aside the conviction.

There is no trial tactic or strategy which would reasonably have led trial counsel under such

circumstances to fail to enter a plea of not guilty by reason of insanity on behalf of his client. Until

such a plea was entered, the trial judge had no obligation to even consider ordering the requested

independent evaluation pursuant to R.C. 2945.39(A). This. failure to enter a plea of not guilty by

reason of insanity pursuant to Crim.R. 11 falls below an objective standard of reasonable

representation. Here, Appellant was prejudiced by the failure of counsel to bring before the court the

only possible theory of defense to the charges against him.

Another Court recently confronted this issue in State v. Anaya, 6th Dist. No. Z-06-1375, 2008-Ohio-

1853, where it was stated: "Where facts and circumstances indiqate that a plea of not guilty by reason of

insanity would have had a reasonable probability of success, it is ineffective assistance of counsel to fail to

enter the plea." Brown supra.

CONCLUSION

Wherefore, this Third Proposition of Law and all other Propositions as set forth above must be

granted, and Appellant must be allowed to proceed forward and perfect a Merit Brief on his claims.

Respectfully submitted,

Donald R. Murphy, 0 4068)Attorney At Law12800 Shaker Blvd.Cleveland, OH 44120

15

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Memorandum in Support of Jurisdiction has

been forwarded via U.S. mail on this 22"d day of June, 2009 to the following:

WILLIAM MASONCuyahoga County Prosecuting AttomeyThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113

ATTORNEY FOR PLAINTIFF-APPELLEE

Attorney At Lawnald R. Murph

APPENDIX

MAY 1 1 2009

Tuurt of Appettls af 04iuEIGHTH APPELLATE DISTRICT

COUNTY OP CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 91750

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

KEITH ALLEN

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-507753

BEFORE: Gallagher, J., Cooney, A.J., and McMonagle, J.

CA08091750 57542461RELEASED: April 30, 2009 111,11, 1111, 1111, 1111, 1111, 1111,JOURNALIZED:

MAY.flk'"91 p9043Z

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ATTORNEY FOR APPELLANT

Donald R. Murphy12800 Shaker Blvd.Shaker Heights, Ohio 44120

ATTORNEYS FOR APPELLEE

William D.. MasonCuyahoga County Prosecutor

BY: Lisa StickanAssistant Prosecuting AttorneyThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113

FILED AND JOURNALIZEDPER APP. R. 22(E)

MAY 1 1 2009

GERALD_E. FUER$TCLERK O^'YHC^C,^UI^^,APPEALS

BY ^ 1(.(! _ / DEP.

ANNaDNCE34DNTOF IIRCISTONP8R APP. R. 221Bj, 2201 AND 26(A)RFCE;tVpD

APR 3 0 2009

GERALD E, FUERBTCLERK 0BY HEG F7 GF qppEALS

rDEP.

CA08091750 57286001

^ IIIIII IIIII I^^II IIIII I^III IIIII IIIII III'I II'I IIII

N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will be journalized and will become the judgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

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SEAN C. GALLAGHER, J.:

Appellant, Keith Allen, appeals his conviction and sentence in the

Cuyahoga County Court of Common Pleas for aggravated robbery in violation

of R.C. 2911.01(B) with a one-year firearm specification, and attempted escape

in violation of R.C. 2923.02 and 2921.34(A)(1). For the reasons stated herein, we

affirm.

Allen was indicted on March 5, 2008, on charges of aggravated robbery

with firearm specifications, and escape. The aggravated robbery charge alleged

that on February 26, 2008, Allen "unlawfully and without privilege to do so, did

knowingly remove or attempt to remove a deadly weapon from the person of ***

a law enforcement officer, while the law enforcement officer was acting within

the course and scope of her duties and the offender khew or had reasonable

cause to know that [the person] was a law enforcement officer." The escape

charge alleged that Alleii "unlawfully and knowing he was under detention or

being reckless in that regard, did purposely break or attempt to break such

detention and/or knowing he was under detention or being reckless in that

regard, did purposely fail to return to detention, either following temporary

leave granted for a specific purpose or limited period, or at the time required

when serving a sentence in intermittent confinement, and the offense for which

he was under detention was a felony of the third, fourth, or fifth degree."

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Defense counsel filed a request for evidence, a motion for discovery, and

a motion for bill of particulars.

Allen subsequently pled guilty to the charges, as amended, of aggravated

robbery with a one-year firearm specification and attempted escape. At his plea

hearing, Allen engaged in a dialogue with the court. He. disclosed that he was

currently on probation in federal court, and he expressed an understanding of

the proceedings and charges against him, the nature of his plea, and his rights.

The trial court found that Allen's guilty plea was knowingly and voluntarily

made. The court referred the matter to the probation department for a

presentence investigation report.

Allen returned for a sentencing hearing on May 20, 2008. It was revealed

that a court psychiatrist had diagnosed Allen with psychosis (not otherwise

specified).. The court indicated that the matter was eligible for placement on the

mental health docket. Defense counsel then requested such a transfer.

Because the request to be placed on the mental health docket was not

made prior to the time of the plea, the case was not permitted to be assigned to

the mental health docket. The trial court proceeded with a.sentencing hearing

on June 6, 2008.

V40 681 R6O 435

At the sentencing hearing, defense counsel represented that Allen was on

PCP at the time of the offense, was unaware of his interaction-with the police,

and was remorseful. Defense counsel requested a minimum sentence.

The trial court found that Allen had an extensive criminal record, a history

of violence, a history of noncompliance on supervision, and repeated criminal

behavior.. He was on federal probation at the time ofthe offenses in this matter.

The court considered the victim impact statement, as well as the nature of the

offenses involved. The court found that the offenses were very serious, that

trickery was involved, and that Allen.was on PCP, a dangerous drug. The court

recognizedAllen's remorse as a mitigating factor and also indicated that defense

counsel "has been pitching hard on [Allen's] behalf." The court sentenced Allen

to a total aggregate prison term of six years.

Thereafter, Allen filed a motion to withdraw his guilty plea pursuant to

Crim.R. 32.1. No ruling was made on the motion because Allen also filed a

notice of appeal. The matter is before us for review.

Allen raises three assignments of error for our review. All three

assignments argue that he was denied effective assistance of counsel.

In order to substantiate a claim of ineffective assistance of counsel, the

appellant is required to demonstrate that (1) the performance of defense counsel

was seriously flawed and deficient, ^(2tPe result of the appellant's trial or6-8 SU43 6

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legal proceeding would have been different had defense counsel provided proper

representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks

(1986), 25 Ohio St.3d 144. "Judicial scrutiny of counsel's performance is to be

highly deferential, and reviewing courts must refrain from second-giuessing the

strategic decisions of trial counsel." State v. Carter (1995), 72 Ohio St.3d 545,

558. Further, "trial counsel is entitled to a strong presumption that all decisions

fell within the wide range of reasonable, professional assistance." State v. Sallie

(1998), 81 Ohio St.3d 673, 675, citing State v. Thompson (1987), 33 Ohio St.3d

1,10.

Allen's first assignment of error provides as follows: "Appellant was

denied effective assistance of counsel where his attorney failed to investigate the

initial warrantless automobile stop and file a motion to suppress challenging the

validity of the search and seizure, resulting in a violation under the Fourth and

Sixth Amendments."

Allen argues that defense counsel was ineffective for failing to investigate

the source of Allen's traffic stop, failing to file a motion to suppress, and failing

to conduct any pretrial discovery. Initially, the record clearly demonstrates that

defense counsel did investigate and obtain discovery in the matter. Defense

counsel filed.a request for evidence, a motion for discovery, and a motion for bill

of particulars. Therefore, counsel was not ineffective in this regard.

A tO 681 SO 43.7

5

With respect to a motion to suppress, "a guilty plea *** renders irrelevant

those constitutional violations not logically inconsistent with the valid

establishment of factual guilt and which do not stand in the way of conviction if

factual guilt is validly established." State v. Fitzpatrick, 102 Ohio St.3d 321,

333, 2004-Ohio-3167, quoting Menna v. New York (1975), 423 U.S. 61, 62, 96

S.Ct. 241, 46 L.Ed.2d 195, fn. 2. Also, the failure to file or pursue a motion to

suppress does not automatically constitute ineffective assistance of counsel.

State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448. Such failure constitutes

ineffective assistance of. counsel only where the record demonstrates a

reasonable probability that the motion would have been granted. State v.

Jackson, Cuyahoga App. No. 86542, 2006-Ohio-1938.

In this case, Allen pled guilty. Also, as part of the plea agreement, the

state agreed. not to pursue the charges from the original traffic stop. Finally,

from what we can glean from the record before us, the incident for which Allen

was charged did not stem from the original traffic stop, but rather from an

incident that happened later, after Allen was transported to the hospital. At the

hospital, Allen was able to break free from detention and assault a police officer

and attempt to take the officer's gun. Consequently, the original stop was not

even relevant.

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Upon our review, we find the recoxd fails to demonstrate a reasonable

probability that a motion to suppress would have been granted. Because Allen

has failed to demonstrate deficient performance or resulting prejudice, we

overrule his first assignment of error.

Allen's second assignment of error provides as follows: "Appellant was

denied effective assistance of counsel where the guarantees of the Sixth and

Eighth Amendments require reasonable investigation of mitigation evidence."

Allen argues that the failure of defense counsel to. investigate, obtain, or

present any evidence prior to his plea or in mitigation of sentencing with respect

to his "borderline mental retardation, psychiatric disorders, and history of (PCP)

drug abuse," rendered his counsel's performance ineffective.

Our review of the record does not demonstrate any mental impairment

that created an inability of Allen to understand the nature of the proceedings

and the charges against him or an inability to knowingly, voluntarily, and

intelligently enter his plea. Although it was determined during the presentence

investigation that Allen suffered from a psychosis, the record demonstrates that

he was able to clearly.communicate with the trial court and that he showed no

signs of a mental impairment. Accordingly, Allen has failed to show that the

outcome of the proceedings would have been different.

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We also firid that the record does not demonstrate defense counsel was

ineffective for failing to further investigate or present mitigating factors.

Indeed, there is no indication that such factors would have yielded a different

outcome. As conceded by Allen, the trial court was presented with a history of

his drug convictions, and the court was aware that Allen was on PCP at the time

of the offense. The court pointed out that Allen was only 25 years old, that he

had 27 offenses as a juvenile, numerous misdemeanors and felonies as an adult

in state court, as well as convictions in federal court, and that he was on federal

probation. The trial court considered Allen's remorse and the fact that he took

responsibility for his actions. Defense counsel requested the minimum sentence,

and the trial court specifically acknowledged that defense counset "has been

pitching hard on [Allen's] behalf." The court considered the dangerousness of

Allen's actions, his history of violence and crimes, and found that he was

"dangerous to society." The court indicated that it had "seriously considered

giving [Allen] more time, much more time."

Finding no deficient performance or resulting prejudice, we overrule

Allen's second assignment of error.

Allen's third assignment of error provides as follows: "Appellant was

denied effective assistance of counsel where counsel failed to realize that his

client was not guilty by reason of insanity."

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Allen argues that defense counsel was ineffective for failing to pursue a

defense of not guilty by reason of insanity. He argues that he had no recollection

of the offense, and he asserted his belief that if he had reached for the officer's

gun, he would have gotten it. However, the record in this case demonstrates

that Allen was on PCP at the time he committed the offenses, and thus, his

judgment would have been impaired.

"[W]here facts and circumstances. indicate that a plea of not guilty by

reason of insanity would have had a reasonable probability of success, it is

ineffective assistance of counsel to fail to enter the plea. Where, however, the

facts indicate that counsel was pursuing a reasonable strategy in failing to so

plead, or where the likelihood of success for the plea is low, counsel's actions

cannot be called unreasonable." State v. Mangus, Columbiana App. No. 07 CO

36, 2008-Ohio-6210 (internal citations omitted); State v. Garcia, Lucas App. No.

L-07-1104, 2008-Ohio-2095.

R.C. 2901.01(A)(14) provides that, "[a] person is `not guilty by reason of

insanity' relative to a charge of an offense only if the person proves, in the

manner specified in section 2901.05 of the Revised Code [by a preponderance of

the evidence], that at the time of the commission of the offense, the person did

not know, as a result of a severe.mental disease or defect, the wrongfulness of

the person's acts."

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Allen has not alleged that he was unable to understand the wrongfulness

of his conduct.at the time of the alleged offenses. His argument is merely

speculative,. and he has failed to show any reasonable, probability that an

insanity defense would have succeeded. Also, it is apparent from the record that

the indictment was amended and that no additional charges were brought as a

result of a plea agreement. This appears to be a tactical decision on the part of

counsel, which this court will not second-guess. Accordingly, we overrule Allen's

third assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate,F'rocedure.

COLLEEN CONWAY COONEY, A.J., andCHRISTINE T. MCMONAGLE, J., CONCUR

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