Opinion
Court of Appeals No. WD-18-064
07-01-2020
State of Ohio Appellee v. Kevin Ray Baldwin Appellant
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Donald Gallick, for appellant.
Trial Court No. 2017CR0507 DECISION AND JUDGMENT Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Donald Gallick, for appellant. MAYLE, J.
{¶ 1} This case is before the court upon (1) an application for reopening, and (2) a motion for leave of court to accept amended application, filed by defendant-appellant, Kevin Ray Baldwin. In his application, Baldwin argues that his initial appellate counsel failed to provide effective assistance of counsel by (1) failing to assign as error the trial court's denial of a motion for mistrial; and (2) failing to challenge the degree of the offenses of which he was charged and convicted. The state has opposed Baldwin's application.
I. Baldwin's Motion for Leave of Court to Accept Amended Application
{¶ 2} We first address Baldwin's motion for leave of court to accept amended application. His first application was timely-filed, but was 13 pages instead of the maximum ten pages permitted under App.R. 26(B)(4). Baldwin attached to his motion an amended application that complies with the rule and asks that we accept it and rule on the merits of his application. We find Baldwin's motion well-taken and accept his amended application for reopening.
II. Background
{¶ 3} According to the evidence presented by the state at trial, Kevin Baldwin and co-defendant, William Gentry, perpetrated a scheme to sell stolen trailers. Baldwin would acquire a stolen trailer. He would then contact Gentry to let him know that he had a trailer available and how much he expected to be paid for the trailer. Gentry would pick the trailer up from Baldwin, facilitate the sale of the trailer at a price that would allow him to make a profit, then pay Baldwin their previously agreed-upon price. In all, 45 trailers were stolen from their rightful owners and sold to third parties.
{¶ 4} Baldwin was charged in a four-count indictment with engaging in a pattern of corrupt activity, a violation of R.C. 2923.32(A)(1) and (B)(1), a first-degree felony (Count 1); two counts of receiving stolen property, violations of R.C. 2913.51(A) and (C), fifth-degree felonies (Counts 2 and 3); and receiving stolen property, a violation of R.C. 2913.51(A) and (C), a fourth-degree felony (Count 4).
{¶ 5} The case was tried to a jury on July 18-20, 2018. The jury convicted Baldwin of all four counts of the indictment. The trial court sentenced him to a prison term of eight years on Count 1, 12 months on Count 2, 12 months on Count 3, and 18 months on Count 4, to be served concurrently for an aggregate term of eight years, and a mandatory five-year period of postrelease control on Count 1 and three-year optional periods of postrelease control on the remaining counts. The court imposed the costs of prosecution.
{¶ 6} Baldwin appealed, assigning three errors.
{¶ 7} In his first assignment of error, Baldwin argued that the state failed to present sufficient evidence to support his convictions. He claimed that other than the testimony of a convicted felon and his co-defendant—whose testimony he claimed was not credible—"there was no direct evidence regarding where or how [he] had obtained the trailers or whether he acted alone or in concert with others." He also argued that the victims and Ohio Bureau of Motor Vehicles ("BMV") investigator who testified at trial lacked firsthand knowledge of his "actual dealings or involvement with the trailers," and complained that one of the victims did not testify.
{¶ 8} In his second assignment of error, Baldwin claimed that his convictions were against the manifest weight of the evidence, primarily for the same reasons advanced in support of his first assignment of error. He added that the BMV investigator's testimony was "lengthy" and "confused," potentially causing difficulty for the jury.
{¶ 9} In his third assignment of error, Baldwin argued that the trial court erred by imposing the costs of confinement and costs of prosecution without considering his current or future ability to pay such costs.
{¶ 10} In a decision and judgment released on February 28, 2020, we found Baldwin's three assignments of error not well-taken and we affirmed. State v. Baldwin, 6th Dist. Wood No. WD-18-064, 2020-Ohio-699.
III. App.R. 26(B) Standard
{¶ 11} App.R. 26(B) governs applications for reopening. It permits a defendant in a criminal case to apply for "reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel." App.R. 26(B)(1). An application for reopening must be filed within 90 days from journalization of the appellate judgment, and must present "[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)(1) and (2)(c). The applicant must provide "[a] sworn statement of the basis for the claim that appellate counsel's representation was deficient," and "the manner in which the deficiency prejudicially affected the outcome of the appeal," and the application must not exceed ten pages. App.R. 26(B)(2)(d) and (4). "An application for reopening shall be granted 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).
{¶ 12} A defense request for reopening under App.R. 26(B)(5) must be assessed under the two-prong analysis found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). This requires Baldwin to prove (1) that his counsel was deficient for failing to raise the issues he now presents, and (2) that had he presented those issues on appeal, there was a "reasonable probability" that he would have been successful. Id. Baldwin "bears the burden of establishing that there was a 'genuine issue' as to whether he has a 'colorable claim' of ineffective assistance of counsel on appeal." Id.
IV. Baldwin's Proposed Assignments of Error
{¶ 13} Baldwin identifies three additional assignments of error that his original appellate counsel failed to raise:
Proposed Assignment of Error IV
THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN DENYING THE MOTION FOR A MISTRIAL WITHOUT ARGUMENT AND WITHOUT A SIDEBAR AS THE SOLE PURPOSE OF THE WITNESS WAS TO SUGGEST DEFENDANT'S BROTHER WAS THREATENING THE WITNESS ON DEFENDANT'S BEHALF.
Proposed Assignment of Error V
TRIAL COUNSEL WAS INEFFECTIVE AND DEFENDANT SUFFEED [sic] FROM PLAIN ERROR BY COUNSEL'S FAILURE TO INFORM THE TRIAL COURT THAT THE FIRST-DEGREE FELONY CONVICTION WAS A SECOND-DEGREE OFFENSE UNDER OHIO LAW.
Proposed Assignment of Error VI
TRIAL COUNSEL WAS INEFFECTIVE AND DEFENDANT SUFFERED FROM PLAIN ERROR BY COUNSEL'S FAILURE TO INFORM THE TRIAL COURT THAT THE FOURTH-DEGREE FELONY CONVICTION FOR RECEIVING STOLEN PROPERTY COULD ONLY BE A FIFTH DEGREE FELONY AS THE STATE'S WITNESS OFFERED NO TESTIMONY REGARDING THE VALUE OF THE STOLEN TRAILER.
{¶ 14} We address each of these proposed assignments of error.
A. Denial of Motion for Mistrial
{¶ 15} One of the witnesses who testified against Baldwin was Michael Griffin. Griffin testified that on approximately four occasions, he stole trailers, sold them to Baldwin, and delivered them to Baldwin's residence. Griffin also testified that he received text messages from Baldwin's brother the night before his trial testimony, calling him an "undercover police snitching bitch." Although no physical threat was made, Griffin found Baldwin's brother's text messages to be threatening.
{¶ 16} Trial counsel objected to this testimony and moved for a mistrial, but his objection was overruled. His appellate counsel failed to assign error in the admission of this evidence or the denial of his motion for mistrial. Baldwin argues that Griffin's testimony concerning Baldwin's brother's intimidating behavior had no probative value, was irrelevant, was unduly prejudicial, should have been excluded, and was grounds for a mistrial.
{¶ 17} The state emphasizes the discretion afforded the trial court in admitting evidence and in ruling on a motion for mistrial. It maintains that any possible prejudice arising from Griffin's testimony was negligible and denies that the admission of this testimony rendered Baldwin's trial unfair.
{¶ 18} The state is correct that the admission of evidence and the decision to grant or deny a mistrial are matters within the discretion of the trial court. See State v. Lyles, 42 Ohio St.3d 98, 99, 537 N.E.2d 221 (1989); State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 92 (2004). Nevertheless, under some circumstances, the admission of irrelevant, unduly prejudicial evidence may constitute reversible error. See, e.g., State v. Johnson, 71 Ohio St.3d 332, 341, 643 N.E.2d 1098 (1994) (finding that letter containing offensive sexual content was irrelevant and unduly prejudicial to defendant and its admission "was not harmless error, especially in light of the weakness of the evidence in this case and the state's undue reliance on impermissible character evidence in its prosecution of defendant's capital trial").
{¶ 19} In State v. Brown, 2d Dist. Montgomery No. 24420, 2012-Ohio-416, a witness testified to threats received by the defendant's family. Defense counsel objected, the objection was sustained, and the trial court gave the jury a curative instruction, but counsel did not move for a mistrial. On appeal, the court found that the testimony "was clearly prejudicial, wholly irrelevant, and unsubstantiated on this record," and that counsel was deficient in failing to move for a mistrial. Id. at ¶ 36. It also found that the trial court's curative instruction was insufficient. The court found that this error, combined with the admission of testimony concerning the defendant's past criminal history to which counsel did not object, required reversal, particularly given that the evidence against the defendant was not otherwise overwhelming.
{¶ 20} Here, the trial court not only denied the motion for mistrial, but it also overruled trial counsel's objection to the evidence, thus, no curative instruction was given to the jury. Had appellate counsel raised this issue in the original appeal, there is at least a "reasonable probability" that it would have been successful. We, therefore, conclude that there is a genuine issue as to whether Baldwin was deprived of the effective assistance of appellate counsel due to his failure to raise proposed assignment of error No. IV in the original appeal, and we find Baldwin's application for reopening well-taken with respect to this proposed assignment of error.
B. Degree of Offense of Engaging in Pattern of Corrupt Activity
{¶ 21} Baldwin was convicted of engaging in a pattern of corrupt activity, a violation of R.C. 2923.32(A)(1) and (B)(1), a first-degree felony. But R.C. 2923.32(B)(1) provides that "Except as otherwise provided in this division, engaging in corrupt activity is a felony of the second degree." (Emphasis added.) Only under the following circumstances may it constitute a first-degree felony:
• if at least one of the incidents of corrupt activity is a felony of the first, second, or third degree, aggravated murder, or murder;R.C. 2923.32(B)(1).
• if at least one of the incidents was a felony under the law of this state that was committed prior to July 1, 1996, and that would constitute a felony of the first, second, or third degree, aggravated murder, or murder if committed on or after July 1, 1996;
• if at least one of the incidents of corrupt activity is a felony under the law of the United States or of another state that, if committed in this state on or after July 1, 1996, would constitute a felony of the first, second, or third degree, aggravated murder, or murder under the law of this state;
• if the offender also is convicted of or pleads guilty to a specification as described in section 2941.1422 of the Revised Code that was included in the indictment, count in the indictment, or information charging the offense.
{¶ 22} Baldwin argues that he was not charged with any corresponding criminal count that was a first, second, or third-degree felony, therefore, he could not be convicted of first-degree engaging in a pattern of corrupt activity. He insists that appellate counsel was ineffective for failing to raise this issue on appeal.
{¶ 23} The state's primary response to Baldwin's argument is that it is barred by res judicata because he challenged the sufficiency of the evidence in his original appeal. It further responds that the indictment identified the predicate act of tampering with records, a third-degree felony, to support the first-degree charge.
{¶ 24} To the extent that Baldwin's proposed assignment of error No. V may actually constitute a challenge to the sufficiency of the evidence, we acknowledge that Baldwin's original appeal assigned error relating to the sufficiency of the evidence. But while original appellate counsel phrased the assignment of error as a sufficiency challenge, the argument in support of this assignment of error is more appropriately characterized as a manifest-weight challenge. Thus, we find that res judicata does not bar Baldwin from raising this proposed assignment of error in a reopened appeal.
{¶ 25} As for the fact that the indictment identifies the predicate act as tampering with records, the jury verdict form does not indicate the degree of offense or that an aggravating element was found. "[W]here the severity of an offense varies depending on the presence or absence of specific elements, a defendant can be convicted of the more serious degree of the offense only when the signed jury verdict forms either indicate the degree of the offense of conviction or state that an aggravating element has been found." State v. Perry, 11th Dist. Lake No. 2011-L-125, 2013-Ohio-5803, ¶ 6, citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 4. R.C. 2945.75(A)(2) ("A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.").
{¶ 26} Had appellate counsel raised this issue in the original appeal, there is at least a "reasonable probability" that it would have been successful. We, therefore, conclude that there is a genuine issue as to whether Baldwin was deprived of the effective assistance of appellate counsel due to his failure to raise proposed assignment of error No. V in the original appeal, and we find Baldwin's application for reopening well-taken with respect to this proposed assignment of error.
C. Fourth-Degree Felony Conviction
{¶ 27} Baldwin was convicted of Count 4 of the indictment, receiving stolen property, a violation of R.C. 2931.51(A), a fourth-degree felony. The degree of a receiving-stolen-property offense depends on the value of the property stolen. If the value is more than $7,500 but less than $150,000, it is a fourth-degree felony. The jury verdict form specifies that the jury found the value of the trailer to be between $7,500 and $150,000.
{¶ 28} Baldwin argues that the owner of the property of the trailer that is the subject of Count 4 did not testify to the value of the trailer. The state agrees that the victim did not testify to the trailer's value, but claims that the BMV investigator testified that the value was $10,000—qualifying it as a fourth-degree felony. The state cites particular pages of the trial transcript and exhibit numbers as providing support for its assertion.
{¶ 29} Assuming that those citations are accurate, we find that there is no "reasonable probability" that appellate counsel would have been successful had he raised this issue in the original appeal. We, therefore, conclude that there is no genuine issue as to whether Baldwin was deprived of the effective assistance of appellate counsel due to his failure to raise proposed assignment of error No. VI in the original appeal, and we find Baldwin's application for reopening not well-taken with respect to this proposed assignment of error.
V. Conclusion
{¶ 30} We find Baldwin's application for reopening well-taken with respect to proposed assignments of error Nos. IV and V, but not well-taken with respect to proposed assignment of error No. VI. We find his motion for leave of court to accept amended application well-taken.
{¶ 31} The clerk shall serve notice of this order on the parties and the clerk of the trial court.
{¶ 32} This case shall proceed as on an initial appeal on proposed assignments of error Nos. IV and V, pursuant to App.R. 26(B)(7).
{¶ 33} It is so ordered.
Application granted, in part.
Mark L. Pietrykowski, J.
Arlene Singer, J.
Christine E. Mayle, J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE