IN TdE SFSPk

STATE OF OI3IO,

Plaintiff-Appellee,

vs.

Jg?FREY DOWSBIM ,

Defendant-Appellant.

C OF OHtO

On Appcyal fron the ClarkCormty Cou.rt of Appeals,Second Appellate District

Court of Appeals Case No.08-CA-0101

Supreme Court Case No.

MkMRANDi)Ai/i IN SUPPORT OF JIIRISDICTIONOF APPE•Tdnrr jEg_-F^,,y BMSiIM

Jeffrey BOashier#518-.027WD-116

Madison Correctional InstitutionP.O. Box 740

London, Ohio 43140-0740

OInMAN'I-APPELLANP, PRO SE

Stephen A. Schzunaker

Clark County Prosecuting AttorneyP.O. Box 1608

Springfield, Ohio 45501

CODNSEL FOR APPELLEErSTATE OF OHIO

JUd Uu ?.`?10

CLERK O F COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

PAGE MS.

EXPI..P.NATION OF W1'̂ Y TI-IZS CASE IS A CASE OF PUBLIC OR ME,AT £^EMZAT• IFI`IOWI' ANDINVOLVES A SIT23:;.L:4N'IIAL (%?NSSI°I'7 fI`r()€ETAI, QUE.STION ... ... .... ....... . ........ , ... 1

S1'ATEAMP OF THE CASE ................................,....................... 2

S"IATU412TP OF TffE FACTS ............... ................................. ,...... 2,3

PRJPOSI'TZON OF LA4V ... .... ............................. .................. -

p3o;rosition of iaw No. I: Appellate Counsel was ineffective for failure toraise as error the following issue on Defendant-AppellanVs first appeal.

A. The trial court erred to defendant's prejudice when it failed to mergemultiple counts which charged identical conduct and instead imposed separ-ate and consecutive sentences for those counts State v. Cabrales, 118 OhioSt. 3d 54, 2008-Ohio -1625, 886 N.E. 2d 181.

B. The evidence presented below was insufficient, as a matter of law, to est-ablish Defendant's guilt beyond a reasonable doubt for trafficking, and pos-session of drugs.

C. Defendant-Appellant was Denied the Effective Assistance of Counsel at tr-ial, in Violation of the Sixthe Amendment of the United States Constitution,Strickland v. Washington (1984), 466 U.S, 668, 104 S. Ct. 2052, 80 L.Ed. 2d674.

1) Counsel was ineffective for failing to ask for Continuous.2) Counsel was ineffective for failing to object to hearsay testimony of De-

tective Woodruff, about alleged confidential informant's alleged informa-tion that lead up to his eventual arrest, and implicatiom of being a all-eged drug dealer

3) Counsel was ineffective for failing to object to argue for merger of all-ied offenses prior to sentencing, and for failing to object to consecutivesentences for these offenses.

D. Defendant was denied his right to confrontation where the State presented,and the jury considered, hearsay about alleged confidential informant ide-ntify Defendant as alleged drug dealer. Crawford v. Washington, 541 U.S.36, 53-54, 124 S. Ct. 1354, 158 L.Ed. 2d 177.

CONCLUSION .......... .........................................................

CERTMCATE OF SERVICE ............. ..........................................

APPENDIX:

State v. Bowshier, Case No. 2008 CA 101, Decision and Entx.y, May 20th, 2010.

i

FsXP&MILATIOLS OF WHY THIS CASE IS A CASE OF p 3!3F..,IC OR t>I2F,AT Ga3^,̀ ^.2TiL 7iVtR%.R= AND

INVOLVES A FE[MY AND SUB.STAnFrrrAi. MNST'.tTfFrIC7114AL QUESTION

This case involves a case where a criminal defendant raised as error counse-

l's ineffectiness on a first round of direct appeal. Defendant-Appellant here-

by moves this Honorable Court to accept jurisdiction of this case to clarify if

a criminal defendant asserts a claim of ineffective assistance of appellate co-

unsel claim in an application to reopen his direct appeal, do he has meet the

same trust hold of a license practicing attorney and brief the Application as

an attorney is required to do when pointing out issue's of appellate counsel

ineffectiveness.

, iii this case, the Second Appellate District Court of Appeals denied Defenda-

nt's application based upon the fact that defendant did not brief the issue's

he claimed as counsel's ineffectiveness for failing to raise as error on his

first round of direct appeal. The Second Appellate District in it's holding he-

ld defendant to the same standard of a license practing attorney by holding th-

at defendant failed to show us how counsel below was ineffective for failing to

object to issue's at the trial court level, and for failing to request an cont-

inuance after a surpise witness was produced by the state.

In essence, the second appellate Court of appeals expected a pro se defendant

to present the same sort of legal arugment a license practing attorney is requ-

ire to put forth. Defendant made clear in his application the issue's counsel

failed to raise on his appeal, and asked the court below to appoint counsel to

brief the issue.

Therefore, Defendan-Appellant Mr. Bowshier respectfully asks this Court to ac-

cept jurisdiction of.this case to make clear the standard and the court below

duty in resolving claims in reopening appeals.

Respqqtfully submitted,

,u" T^

S'SPAT.FiJNU OF THE CASE

In this case, P9r. Bowshier was charged and indicted by a Clark County Grand Jury

on a mulitple count indicted, 'to include Trafficking in Drugs, and Possession

of Drugs, in violation of R.C. 2925.11(A), and R.C. 2925.01 (K).

Mr. Bowshier case proceeded to trial after many pretrial motion was file3,.on

March 27, 2006. Following the conclusion of evidence, the jury returned a verdict

of guilty on all charges presented to them. The trial court immediately proceed-

ed to sentencing and imposed a sentence of thirty (3)) years upon the defendant

as weel as ordering forfeiture of property previosly seized by the State.

Mr. Bowshier successfully appealed his conviction and sentence, and a retrial

was ordered by the Second Appellate District Court of Appeals.

Mr. Bowshier was retried, and was convicted a second time by a Clark County

Grand Jury. Mr. Bowshier appealed his conviction and sentence again, but the C

ourt of affirmed conviction and sentence, but overruled forfeiture order.

STATIIMESTP OF THE FACPS

After the Second Appellate District affirmed his conviction and sentence, Mr.

Bowshier sought to reopen his appeal based on a claim of ineffective assistance

of appellate counsel.

Mr. Bowshier raised several issue for that court's review. Howver, the Second

District Court of Appeals denied his request, and this is what this appeal is

based upon.

1

Progosition of Law No: I

A. The trial court erred to defendant's prejudice when it failed to irterge multi-ple counts which charged identical conduct and instead imposcJ, separateand consecutive sentences for those counts State v. Cabrales, 118 OhioSt. 3d 54, 2008-Ohio-1625, 886 N.E,2d 181.

In this case, Mr. Bowshier was charged and indicted by a Clark County Grand

Jury on a multiple count indictment, to include Trafficking in Drugs, and Poss-

ession of Drugs, in violation of R.C. 2925.11(A), and R.C. 2925.01(K),

"In determining whether offenses are allied offenses of similar import under

R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to

find an axact alignment of the elements. Instead, if in comparing the elements

of the offenses in the abstract, the offenses are so similar that the commissi-

on of the other, then the offenses are allied offenses of similar import. State

v. Czbrales, 118 Ohio St. 3d 54, 886 N.E.2d 181, 2008-0hio-1625, paragraph one

of the syllabus.

This case comes before this Court after presented to the Second District Court

of Appeals, and after a successful appeal under case number CA-0041 and subseq-

uent retrial. In Mr. Bowshier's previous appeal, the Second Appellate District

reversed in part and affirmed in part the trial court's decision and remanded

the case for retrial. Mr. Bowshier was retried in the Court of Conunon Pleas Cl-

ark County, Ohio on September 25 and 26.

At retrial, the State called Detective Scott Woodruff to testify. (Trial Tra-

nscript p. 90). Woodruff is a Detective with the Springfield Police Department.

Id. He testified as to his involvement in the plot to apprehend Mr. Bowshier on

drug trafficking charges. Specifically, Woodruff testified that he was contacted

by DEA Agent Jorge Del Rio about information regarding Mr. Bowshier alleged il-

2

licit endeavors. Id at 94. This information, according to Woodriff, came from

informant attempting to alleviate his own legal entanglements. Id at 94, 122.

Woodruff testified that he and Del Rio created a plan whereby Del Rio would uo-

se.as an Arizona druq supplier and approach Mr. 13owshi_er with the opportunity

to purchase a large amount of marijuana. Td. at 123-125. Woodruff testified that

Del Rio initiated contact with Bowshier and dictated the relevant portions of

the plan to him. Id at 126-130. -

Del Rio told Mr. Bowshier where to go, how much marijuana would be sold, how

much the marijuana would cost, and what forms of currency would be acceptable

as payment. Id. It was the testimony of Del Rio that, per an agreement between

himself and Woodruff, as puppeteers of this scheme, that cocaine would be sugg-

ested as an alternative form of currency. Id at 173-179. Del Rio testified that

he made the suggestion to Mr. Bowshier that, in lieu of full monetary payment,

cocaine in the quantity of two (2) kiio3rams would be sufficient as part payment.

Sd.

Prior to Del Rio taking the stand, Woodruff was questioned on his role in the

search of Mr. Bowshier's alleged residence subsequent to his arrest. (t.p. 140-

141). Woodruff testified that during the search of the residence, he discovered

a large, black duffel bag containing marijuana in the basement of the home. Id

at 114-115, 141. Woodruff further testified that he found cocaine in one of the

compartments of the duffel bag in addition to the marijuana. Id at 119. Woodrzff

went on to further testify that additional cocaine was dicovered in another set-

ion of the house. Id at 117. This cocaine was found in abedroom in between two

mattresses and in a ladies' purse. Id. Woodruff testified that it was his bel-

ief that the drugs found in the house belonged to Mr. Bowshier. Id at 121.

Mr. Bowshier contends that the trial court erred in imposing sentence on both

3

trafficking in drugs, and possession of dnzgs resultinq from the same transac-

tion. State v. Cabra3es, trafficking in marijnana, and possession of cocaine are

allied offense of similar import.

Law enforcement agents designed a scheme to catch Mr. Bowshier in selling drugs,

After the apphension of Ps. Bowshier, law enforcement agents conducted a search

of the alleged residence of Mr. 13owshier where they found other drugs.

Mr. Bowshier contends that the drugs found at this residence are allied offe-

nse of similar imporL to thc- drugs seized at the location set up by law enfore-

ment agents at time of Mr. 13owshier arrest.

Therefore, Mr. Bowshier respectfully moves this Court to sustain this error,

and reopen Mr. Bowshier's DirectAppeal, appointing counsel to brief this issue,

or in the alternative remand this error back to the trial court with instruction

to merge for the purpose for sentence, or allow the-State to chose which offense

it will pursue on remand. State v. Whitfield,2010-Ohio-2

Piaposition of Law No. II

B. The evidence presented below was insufficient, as a matterof law, to establish Defendant's guilt beyond a reasonabledoubt for trafficking, and possession of drugs.

The evidence presented by the state w3s insufficient as a mat-

ter of law to support a conviction beyond a reasonable 9ouht. Sta-

te v. Jenks,.T( 991 1^.̀^:hL-G ^ ^}. ,^^ •nSt 4i9%n,-F.. ^7-y.,iit Re i'disii^ lv), 387 U.S. 358,

363, 90 S.Ct. 1068, 25 L.F,d.2d; Jackson v. Virginia (1979), 443 U.

S. 307, 319, 99 S.Ct. 2781, 61 L.Fd.2d 560.

In this case, the evidence presented at trial was the testimony

of Detective Scott Woodruff. Woodruff is a Detective with the Spr-

indfield Police Department. He testified as to his involement in

the plot to apprehend Mr. Rowshier on drug traffiking charqes. Sp-

ecifically, Woodruff testified that he was contacted by DEA Agent

.4

Jorge Del Rio about information reqarding Mr. I3owshier alleged illicit endeavors.

Sd at 94. This information according to Woocsuif, came from informant attempt-

ing to alleviate his own legal entanglements. Id at 94, 122. Woodruff testific.^,

that he and Del Rio created a plan whereby Del Rio would pose as an Asizona dr-

ug supplier and approach Mr. Bowshier with-the opportunity to purchase a large

amount of marijuana. Id. at 123-125. Woodruff testified that Del Rio initiated

contact with Bowshier and dictated the relevant portions of the plan to him. Id

at 126-130.

Ps articulated in assigrnment of error number one of this application, "pel

Rio told Mr. Bowshier where to go, how much marijuana would be sold, how much

the marijuana would cost, and what forms of currency would be acceptable as na-

yment. " Id. As further articulate, the testimny of Del Rio, per an agreement

between himself and Woodruff, as puppeteers of this scheme, that cocaine would

be suggested as an alternative form of currency. Id at 173-179, supports Mr. 130-

wshier's contention that the evidence presented below does not support a convi-

ction of traifficking in drugs. The standard of review this Court must conduct

is "?lftier reviewing the record, the evidence must show that a rational trier

of fact, after viewing the evidence in a light most favorable to the prosecuti-

on, could have found that the state had proved a reasonable doubt all the elem-

ents of Trafficking ; and possessior of d-rugs.

Mr. Bowshier asserts that the evidence presented does not prove trafficking

in drugs because the whole scheme was devised by Woodruff, and Del Rio. Mr. 8o-

wshier further asserts that his involement was orc hestrated from the very begi-

ning to the very end by law enforement agents. Further, the evidence found at

the alleged residence of Mr. Bowshier, cannot be said to actual belong to him.

There were no evidence presented to support a conviction for possession of dr-

ugs, when the drugs found during the search could have belonged to any resident

5

living there since the drugs was found in a common area of the re-

sidence. No finger-prints, or any other forensic evidence linking

the drugs to Mr. Bowshier was found to heln substantiate the con-

viction below of drug trafficking, and drug possession. To convict

a person of possession of drugs, the State must prove the accused

was actual or constructive possession or control of the drugs. St-

ate v. Givens, 2005-Ohio-6670. "Possessi_on defined in Ohio Revised

Code §2925.01(K) as follows:

"Possession means having control over a thing or substance, butnot be inferred soley from mere access to the thing or subtancethrough ownership or occupation of the premises upon which thething or substance is found."

Possession may be actual or constructive. State v. Haynes (1971),

25 Ohio St.2d 264, 267 N.E.2d 787; State v. ftankerson (1982), 70

Ohio St. 2d 87, 434 N.E.2d 1362. Constructive possession will be

established where the accused was able to exercise dominion or co-

ntrol over the contrband. State v. Wolery (1976), 46 Ohio St. 2d

316, 348 N.E.2d 351.

Bowshier asserts that the evidence below fails to support a con-

viction beyond a reasonable doubt in this case of Trafficking, and

possession of drugs. Therefore, Mr. Bowshier respectfully moves th-

is Honorable Court to sustain this error, and reverse the convict-

ion of the court below of counts, I, ZI, and IiI, of the indictmQSt for

failure to present evidence sufficient enouqh to sustain a convict-

ion in this case.Proposition of Iaw No. III

C_pefendant-Appellant was Denied the Fffective_Assistance ofCounsel at trial, in Violation of the Sixth Amendment of theUnited States Constitution, Strickland V. Washington (1984),466 U.B. 668, 104 S.St. 2052, 80 L.Ed.2d 674

1) Counsel was ineffective for failing to ask for Continuous

6

2) Counsel was ineffective for failing to object to hearsay test-imony of Detective Tnioodruff, about aileged confidential infor-mant's alleged information that lead up to his eventual arr-est, and implication of being a eli2ged drug dealer

3) Counsel was ineffective for failinq to object to argue for me-rger of allied offenses prior to senteiicing, and for failingto object to consecutive sentences for these offenses.

(Argued together)

Defendant-Appellant, Mr. Bowshier asserts the arqument raised

in Assignment of Error B(A) as if re-stated herein full. The fail-

ure on the part of defense counsel to interpose objections which

would have barred damaging evidence and comment, or to viqorously

advocate merger of allied offenses inffective assistance of couns-

el. It is error so severe that it undermines confidence in the out-

come of the trial. Without advice from his counsel, Mr. Bowshier

cannot be expected to raise these issues on his own. Nor should he

be required to do so. Defense counsel had the duty to raise an ob-

jection to damaging testimony and comment's to research the issue

raised by multiple charges and challenge the state's assertion that

merger was not required. Failure to do so rendered his representat-

ion ineffective.

Reversal of judgment of conviction, or sentence, based upon in-

effective assistance requires Defendant to meet a two-pronq stand-

ard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104

S.Ct. at 2064. Strickland requires a showing of (a), deficient per-

formance, or errors so serious that counsel was not functioning as

the counsel guaranteed Defendant by the Sixth Amendment, and a sh-

owing of (b),.prejudice by counsel's errors that deprived the Def-

endant of a fair trial; a trial whose result is reliable. To esta-

7

blish prejudice, Defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the re-

sul.t of the proceedings would have been different. A reasonable pr-

obability sufficient to undermine confidence in the outcome.

Given the lack of any abmissible evidence from Detective Woodr-

uff about allege confidential informant's implicating Mr. Bowshier

as a alleged drug dealer, counsel's error for failing to object to

the testimony of Woodruff must undermine confidence in the verdict

of the jury on Count's one, and two of the indictment.

Further, counsel's failure to asks the court for and continuous

after the State presented a surpise witness over counsel's objection

further constitutes ineffective assistance of counsel.

Failure to object and raise relevant authority on allied offenses

resulted in an additional conseputiye five years being imposed un-

der count two. Counsel's failure to object to Woodruff's testimony

and counsel's failure to asks the court for a continuous, all und-

ermine confidence in the verdict of the jury on all counts in the

indictment. Due process and the right to effective assistance of

counsel require reversal.Proposition of Iaw No. IV.

D. Defendant was denied his right to confrontation where theState presented, and the jury considered, hearsay about all-eged confidential informant identify Defendant as alleged dr-ug dealer. Crawford v. Washington, 541 U.S. 36, 53-54, 124S.t. 1354, 158 L.ed.2d 177.

Testimony_of Police Officer WoodrVff, and DFA Agent Jorge Del Rio

given a.t t.rial:concerns information they obtained from alleged co-

nfidential informant "Snook", alleging that ?4r.'Rowshier was an I

alleged drug dealer supported the conviction below of drug traffi-

8

cking and drug possession. The right of every accused citi.zen to confront his

accusers in open court is guaranteed by the Sixth Amendment of the U.S. Const-

itution, and Article One, Section 10 of the Ohio Constitution. The state may not

shield its witnesse.s from cross-examination and confrontation by presenting th-

eir evidence through a third party, such as police officer. The Confrontation

Clause bars "admission of testimonial statements of a witness who did not appe-

ar at trial unless he was unavailable to testify, and defendant had a prior op-

portunity for cross-examination. Crawfor v. Washington. 541 U.S. 36, 53-54, 124

S.Ct. 1354, 158 L.Ed. 2d 177.

The statements maded by Officer Woodruff, and DEA Agent Del Rio were clearly

testimonial in nature. They fall squarely within the confines of Crawford's pr-

ohibition against admission of testimonial hearsay. Defendant had a unquestion-

able right to confront Confidential Informant of alleged statements implicating

him as a drug dealer. For this reason, Defendant's conviction must be reversed.

V. Conclusion

Mr. Bowshier's appellate counsel was ineffective for failing to raise these

issue's as error presented above in this Memorandum, and the Second Appellate

District Court of Appeals erred when it failed to sustain the issue's raised in

Mr. Bowshier Application to Reopen his Direct Appeal, and appointing counsel to

brief the issue's presented in his Application.

Respectfully submitted,

!r GJCIFI^I)7'/d^^'

Certificate of service

I, Jeffrey Bowshier certify that a true and accurate copy of this Memorandwt:'=_d

sIt, support has been forwarded to the Springfielcz County Prosecutor on this

j/

9

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee C.A. CASE NO. 2008 CA 101

V.

JEFFREY BOWSHIER

Defendant-Appellant

T.C. NO. 2005 CR 1113

DECISION AND ENTRY

Rendered on the 20th day of May , 2010.

AMY M. SMITH, Atty. Reg. No. 0081712, Assistant Prosecuting Attorney, 50 E. ColumbiaStreet, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501

Attorney for Plaintiff-Appellee

JEFFREY BOWSHIER, #518-027, Madison Correctional Institution, P. O. Box 740,London, Ohio 43140

Defendant-Appellant

PER CURIAM:

This matter is before the court upon defendant-appellant, Jeffrey Bowshier's,

application to reopen his appeal pursuant to App.R. 26(B). Bowshier was convicted after

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2

a jury trial of trafficking in cocaine in an amount more than 500 grams, possession of

cocaine in an amount more than 500 grams, and possession of marijuana in an amount

more than 1,000 grams. Although the case was remanded for further proceedings with

regard to the forfeiture specifications (which Bowshier does not contest in his application

to reopen), in all other respects, the judgment was affirmed. State v. Bowshier, Clark App.

No. 08-CA-101, 2009-Ohio-6387.

App.R. 26(B) provides that a criminai appeilant may apply for reopening of his

appeal based on a claim of ineffective assistance of counsel. The appellant must identify

"[o]ne or more assignments of error or arguments in support of assignments of error that

previously were not considered on the merits in the case by any appellate court or that

were considered on an incomplete record because of appellate counsel's deficient

representation." App. R. 26(B)(2).

A reviewing court must grant an application for reopening "if there is a genuine issue

as to whether the applicant was deprived of the effective assistance of counsel on appeal."

App.R. 26(B)(5). In order to establish that appellate counsel's performance was

ineffective, Bowshier must demonstrate that counsel's performance fell below an objective

standard of reasonable representation by failing to raise the issues now presented and that

there is a reasonable probability that, but for counsel's failures, the outcome of his original

appeal would have been different. Strickland v. Washington (1984), 466 U.S. 668, 667,

104 S.Ct. 2052, 80 L.Ed.2d 674. Appellate counsel need not have raised every possible

issue in the original appeal in order for his assistance to have been constitutionally

effective. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, at ¶ 7.

Bowshier contends that his appellate counsel was ineffective because he failed to

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

raise the following issues on direct appeal:

Bowshier claims that the evidence was insufficient to prove his guilt beyond a

reasonable doubt for trafficking and possession of drugs, and that his appellate counsel

did not argue insufficiency.

Bowshier is technically correct that the appellate attorney did not raise sufficiency

of the evidence, although the first assignment of error did deal with manifest weight of the

evidence. VNlhile there are legal differences between the sufficiency test and manifest

weight test, they are not controlling here. Our previous opinion thoroughly discussed the

evidence, and trial counsel was not ineffective for not separately assigning insufficiency of

the evidence as in error.

Bowshier next contends, without any detail, that his appellate counsel was

ineffective for failing to argue that his trial counsel was ineffective for failing to ask for a

continuance. He apparently alleges that his appellate counsel should have argued that his

trial counsel's failure to request a continuance "afterthe State presented a surprise witness

over counsel's objection. .." constitutes ineffective assistance of appellate counsel.

Evidently he is referencing the testimony of William Litteral, an employee of the clerk's

office of the Sprirgfield MunicipalGourt. This issue was raised and rejecied in Bowshier's

fourth assignment of error in our previous opinion. Bowshier does not identify how a

continuance would have benefitted him, let alone had the likelihood of a different result.

Bowshier argues that the testimony of certain officers regarding information they

received from the confidential informant constituted hearsay and was introduced in

violation of the defendant's confrontation rights. Any testimony from the officers regarding

information they received from the informant was not admitted for the truth of the matter,

._.THECOURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

4

and the jury was so instructed.

Bowshier also argues that appellate counsel fai{ed to assign as errorthe trial court's

faiEure to merge "multiple counts which charged identical conduct and instead imposed

separate and consecutive sentences for those counts."

The trial court ordered the sentences for the trafficking in cocaine and possession

of cocaine to be served concurrently, but consecutively with the charge of possession of

marijuana. Any assignment by appellate counsel that the cocaine and marijuana charges

were allied offenses of similar import would not have been successful with the facts before

the jury. See, e.g., State v. Pitts (Nov. 6, 2000), Scioto App. No. 99 CA 2675.

While it is unclear whether this is raised by the applicant, we recently addressed the

question of whether the charges of possession of cocaine and trafficking in cocaine are

allied offenses of similar import and held, with the State's agreement, that theywere. State

v. Charlton, Montgomery App. No. 23227, 2010-Ohio-1683, at ¶ 47. The Charlton court

had imposed concurrent sentences, and we remanded for resentencing since the statute

provides that the defendant may be convicted of only one. R.C. 2941.25(A). Here, the trial

court appropriately merged the trafficking and possession of cocaine and only sentenced

Bowshier on Count !, rather than on both counts.

Bowshier has failed to establish that appellate counsel's performance was deficient

and/or that there is a reasonable probability that, but for counsel's failures, the outcome

of this original appeal would have been different. Therefore, he has not demonstrated his

claim of ineffective assistance of appellate counsel and the application to reopen is denied.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

iT IS SO ORDERED.

MIKE FAIN, Judge

40,

j ^^Wq FROELICH, Judge

Copies mailed to:

Amy M. Smith, Assistant Prosecuting Attorney for AppelleeJeffrey Bowshier, Appellant pro seHon. Douglas M. Rastatter

5

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT