IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee,

-vs-

MARVIN D. CLINTON

Appellant

Case No.:

On Appeal From the

Franklin County Court of Appeals,

Tenth Appellate District

Court of Appeals

Case No. 13AP-985

_________________________________________________________________

MEMORANDUM IN SUPPORT OF JURISDICTION OF

APPELLANT MARVIN D. CLINTON

_________________________________________________________________

Yeura R. Venters 0014879

Franklin County Public Defender

-and-

David L. Strait 0024103

Assistant Franklin County Public Defender

373 South High Street, 12th

Floor

Columbus, Ohio 43215

Telephone: 614/525-8872

Facsimile: 614/461-6470

E-Mail: dlstrait@franklincountyohio.gov

Attorney for Appellant

Ronald J. O'Brien 0017245

Franklin County Prosecuting Attorney

-and-

Steven L. Taylor 0043876

Assistant Franklin County Prosecuting Attorney

Counsel of Record

373 South High Street, 14th Floor

Columbus, Ohio 43215

Phone: 614/462-3555

Fax: 614/462-6103

Attorney for Appellee

Supreme Court of Ohio Clerk of Court - Filed December 23, 2014 - Case No. 2014-2218

i

TABLE OF CONTENTS

Page No.

Explanation of Why This Case Presents a Substantial

Constitutional Question and Matters of Public or Great

General Interest ..............................................................................................1

Statement of the Case and Facts ....................................................................2

Argument .......................................................................................................3

First Proposition of Law

When a criminal conviction results from the introduction of

inflammatory, irrelevant, inherently prejudicial testimony that

deprived the defendant of a fair trial, a reviewing court should

reverse the conviction. ...................................................................................... 9

Second Proposition of Law

Expert opinion testimony must satisfy the requirements of the Ohio

Rules of Evidence. ............................................................................................. 10

Third Proposition of Law

R.C. 2929.14(B)(2)(a) and 2941.149 violate the right to trial by

jury guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution and Section 16, Article I of the Ohio

Constitution.. ...................................................................................................... 12

Fourth Proposition of Law

Before imposing an additional term of incarceration on a repeat

violent offender specification, a trial court must make the findings

required by R.C. 2929.14(B)(2)(a).. ................................................................. 13

Conclusion .....................................................................................................15

Certificate of Service .....................................................................................16

Appendix ........................................................................................................17

ii

Appendix Page No.

Court of Appeals Judgment Entry, November 19, 2014 ................................A-1

Court of Appeals Opinion, November 18, 2014 ............................................A-3

1

Explanation of Why This Case Presents a Substantial

Constitutional Question and Matters of Public or Great

General Interest

Due process guarantees fundamental fairness in the trial of a criminal defendant. As

applied to a criminal trial, denial of due process is the failure to observe that fundamental

fairness essential to the very concept of justice. In order to declare a denial of it we must

find that the absence of that fairness fatally infected the trial; the acts complained of must be

of such quality as necessarily prevents a fair trial. Lisenba v. California, 314 U.S. 219, 236,

62 S.Ct. 280, 86 L.Ed. 166 (1941). This fundamental precept was violated in the trial

proceedings below.

First, the introduction of inflammatory, irrelevant, inherently prejudicial testimony

falsely asserting that Appellant was a sex offender violated Appellant’s right to a fair trial.

Second, the introduction of expert opinion testimony regarding the presence of gunshot

residue on Appellant’s person violated the Ohio Rules of Evidence and, further, denied his

right to a fair trial.

The case also presents important issues regarding sentencing. The trial court

imposed an additional term of incarceration based upon the trial court’s determination that

he as a repeat violent offender. To the extent that R.C. 2929.14(B)(2)(a) and 2941.149

purport to vest the court, and not the jury, with the authority to make this determination,

they violate the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments

to the United States Constitution and Section 16, Article I of the Ohio Constitution.

Further, before imposing an additional term of incarceration on a repeat violent

offender specification, a trial court must make the findings required by R.C.

2

2929.14(B)(2)(a). Despite the clear language of the statute, the appellate court below held

to the contrary.

All of these issues are of critical importance in Ohio criminal practice. Appellant

therefore respectfully urges this Honorable Court to accept jurisdiction.

STATEMENT OF THE CASE AND FACTS

On December 27, 2010, the Franklin County Grand Jury returned an indictment

charging Defendant-Appellant Marvin D. Clinton with aggravated murder (R.C.

2903.01), murder (R.C. 2903.02), tampering with evidence (R.C. 2921.12), and having a

weapon while under legal disability (R.C. 2923.12), arising from the slaying of Kelsey

Ray Ellis on December 18, 2010. (R.2)

Clinton, through counsel, later asserted an insanity defense, and the trial court

ordered Clinton to submit to an examination to determine his mental condition at the time

of the alleged offense. (R. 154) The parties and the trial court agreed that trial would

involve two juries—one to determine guilt or innocence, the other to rule upon the

affirmative defense of insanity. (Tr. 57)

In the first trial, Kimberly Craig testified that she was currently in custody of the

Franklin County Juvenile Detention Center regarding a 2007 disorderly conduct

adjudication. (Tr. 132) She once lived with her friend Patricia at 816 Greenfield Drive.

Nicole Oxley is her cousin. (Tr. 132-33) She also knows Clinton from the neighborhood.

(Tr. 133) She called Clinton the night of December 17 to go pick up her cousin Nicole

Oxley and some food. Clinton agreed to do so. (Tr. 134-35)

3

Nicole later called her. According to Kimberly, after that call, Kimberly called

Clinton and asked him whether he shot anyone. He said he hadn’t and told her that she

“can’t be saying stuff like that.” (Tr. 136-37)

Kimberly later said that Clinton showed her and the others his gun when he was

standing outside. He told them to come in, and she was going to go in, but her cousin told

her not to because they had heard that he was a sex offender. (Tr. 158)

According to Kimberly, Clinton told her he was going to go rob a man down the

street who sold weed. That night, Nicole went down the street and bought weed from the

man. She mentioned to Clinton that the man had a lot of weed. Clinton said something

about going to rob him. (Tr. 155) He walked that way, and then the heard a gunshot. (Tr.

159)

Kimberly stated that she was in the juvenile detention center on a probation

violation. She met Clinton a couple of days earlier. She met him on the street in front of

her house. She said that Nicole had called her about 3:10 a.m. that night and told her that

Clinton had killed somebody. She then called Clinton and asked him why he had killed

someone, and he denied that he had. (Tr. 150)

Zoran McIlroy testified that he was living with a former girlfriend, Emily

Anderson, and her kids Nicole and Jason Oxley. (Tr. 171) He knew Clinton from the

neighborhood and also knew Clinton drove a green truck. (Tr. 172)

In the early morning hours of December 18, 2010, McIlroy as in his living room

with Nicole, as they waited for Clinton to come pick her up. They got a phone call.

Nicole said it was Clinton who was right down the street picking up a Swisher Sweet.

About two minutes later there was a crash outside. (Tr. 173)

4

After he heard the crash, McIlroy and Nicole ran outside and saw a green truck

with a white SUV behind it. A short black man got out of the truck, and they started

arguing. The driver of the white SUV was a bigger, heavyset white man. He was leaning

out the window of his SUV. (Tr. 174) The two men argued about money. The black man

asked if he had money to fix the truck, and the SUV driver said that he barely hit the

bumper. The man in the SUV told him to get in his truck and go. (Tr. 176)

In the midst of the argument, Nicole walked behind the green truck and in front of

the white SUV, and got into the passenger side of the green truck. (Tr. 176-77) When the

black man got back in the truck, Nicole got out and went back in the house. The man

started to drive off in his green truck. The white man in the white SUV pulled out and

pulled up to the house right on the other side of the alley. The green truck stopped, the

black man got out, walked around the back of the truck, walked up to the SUV, and shot

the driver of the SUV. (Tr.176-80) He ran back to his truck and took off rapidly. (Tr.

180)

McIlroy testified that he was barefoot the whole time, and he ran inside to grab

his boots. He ran down the street to check on the SUV driver, but he was already dead.

(Tr.180-81) He stayed at the scene until police arrived. They took him to the corner of

Sullivant and Central where they asked him to ID someone. They showed him a short,

black guy in a yellow, parka-type overcoat. McIlroy couldn’t identify the man because

the man who fired the shot was not wearing a yellow coat. (Tr. 182) McIlroy said,

however, that the truck at Sullivant and Central was the same truck. (Tr. 183)

On cross-examination, McIlroy stated that he is legally blind in one eye and has

astigmatism in the other. (Tr. 190) He knew the driver of the white SUV as Skip, a local

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drug dealer. (Tr. 192) Columbus Police Officer Joseph Albert testified that he was on

patrol in the Hilltop area when he heard a dispatch regarding the shooting. (Tr. 226) He

was going to head to the scene but he knew other officers were there. He proceeded to

drive around and look for the green Dodge pickup described in the dispatch. (Tr. 226) He

saw a green Dodge Ram pickup with one male occupant traveling southbound on Central

Avenue. Albert turned around and got behind the truck. (Tr. 226-27)

Albert aired over the radio to see if there was further description of the truck.

Officers at the scene said there was a chance the vehicle had rear end damage. He noticed

that the right rear taillight on the Dodge pickup had a section missing out of, like a piece

of the glass was missing. There was a white light illuminating through the red shield. He

also noticed a crack in the right rear bumper next to the right of the license plate. (Tr.227)

Albert stopped the vehicle and ordered the driver to turn the vehicle off and throw

the keys out of the driver’s side window. He told the driver to get out, and he complied.

He told them to lift his hands up. The man had gloves in his left hand, and his right fist

was clenched. He told the man to drop the gloves and to unclench his right fist. The man

dropped the gloves, but made a throwing motion with his right hand. (Tr. 227-28)

He took the man into custody, and placed him in the rear of the cruiser. Albert

then looked in the snow by the passenger side of the vehicle, and found three pills. (Tr.

228)

Officer Donald Jones testified that he is assigned to the Crime Scene Search Unit.

Members of the Unit photograph scenes, collect evidence, preserve evidence, and do

diagrams of scenes. He was responsible for drawing a diagram of the murder scene. (Tr.

247)

6

Jones discussed evidence obtained from the Dodge truck at the police impound

lot. It included a black nylon holster found under the rear bench seat. The item was a

pistol holster that had a Velcro pouch on it. Inside the pouch was a pistol magazine that

said on it “9 millimeter” and the brand “Ruger.” He also described a plastic ammo tray

that you get typically in a box of 50 rounds of ammunition. The tray was found behind

the center console. (Tr. 275-78)

Jones also testified that there was damage on the front of the SUV that was the

same height as the ball hitch on the pickup. He collected a rust sample from the bumper.

(Tr. 279-82) Jones also collected a gunshot residue sample from Clinton the night of the

incident. (Tr. 309-312) Clinton told him he had exploded firecrackers. (Tr. 312) He took

the sample at police headquarters. He did not take sample from the handcuffs on Clinton,

or the table, chair or car. There was no control sample.

Jones found no ammunition, or spent cartridges, or gun. (Tr. 321-22) He did not

test for gunshot residue in the truck or on Clinton’s clothing. (Tr. 322) He did not test the

ammo tray for fingerprints or DNA. (Tr. 322-23)

When he took sample from Clinton’s hands, they were not bagged. He did not

take a sample from the table or chair where Clinton was sitting. (Tr. 316) He did not take

a sample of the car that transported Clinton. (Tr. 316-17) He took no control samples at

all. (Tr. 316-17)

Max Larijani, a forensic scientist with the Ohio Bureau of Criminal Investigation,

testified on voir dire that he conducted GSR analysis and found three microscopic

particles on one of Clinton’s hands, and two microscopic particles on the other. (Tr.

290) The particles are one one-hundredth the size of the tip of a human hair. He stated

7

that “[a]ny object containing GSR particles can transfer those particles to you hand if

you’re touching them or handling it.” (Tr.294)

Larijani testified that his conclusion was that “[p]articles highly indicative of

gunshot primer residue were identified on the sample from Marvin Clinton” and that an

“identification of particles highly indicative of gunshot primer residue on a person’s

hands is consistent with that individual having discharged a firearm, having been in the

vicinity of a firearm when it was discharged, or handling an item with gunshot primer

residue on it.” (Tr. 295-96)

Larijani could not testify that Clinton fired a handgun. He did not know based on

his report whether or not he fired a handgun or got these particles from handcuffs or a car

seat. (Tr. 300)

Forensic scientist Mark Hardy testified that the spent projectile taken from the

victim was a .38 caliber bullet fragment. (Tr. 377) A .380 automatic cartridge and a 9

millimeter Markarov cartridge are approximately the same diameter and weight, though

the 1 millimeter cartridge is different in length. (Tr. 377-78) There is no forensic way to

tell what bullets were in the ammo tray. (Tr. 380)

James Andrew (“Andy”) Moyer admitted that in 2003 he was convicted in

Federal court of conspiracy involving possession of cocaine with the intent to distribute.

(Tr. 390) Moyer was a close friend of Ellis, whom he called “Skip.” Moyer also knew

Shawn Underwood. (Tr. 391) Underwood lived on Schultz Avenue. In the early morning

hours of December 18, 2010, Moyer was in Underwood’s living room. Underwood and

his girl Amanda were there as well.

8

According to Moyer, they were sitting in the front room talking about Skip when

he pulled up. Moyer heard a truck slide. He stated it was icy outside. He looked out the

blind and saw Skip’s white Escalade sitting a little bit off the curb. (Tr. 393) Moyer

opened the door. He heard arguing from the other truck, which he described as a two-tone

Dodge work truck. (Tr. 395) The truck was in the lane of travel by pretty much parallel to

Skip’s Escalade. (Tr. 396) There was a shot, and the other truck pulled away. (Tr. 393-

34) He could not see the occupant of the Dodge, but he could tell it was one person. (Tr.

399)

Moyer ran out to see where Skip was, passing the font of the Escalade as he ran.

He noticed the front end of the Escalade was damaged, but it was not when he saw it

earlier. (Tr. 400) He found Skip lying in the street with his head against the side of the

truck. (Tr. 401) He tried to give Skip mouth to mouth, and tried to talk to the 911

operator. Moyer told the 911 operator his name was Shawn Underwood. He did so

because he was on Federal probation and was not allowed to be around felons. (Tr. 405)

Later, detectives took him to the Marathon station on Central and Sullivant to see

if Moyer could identify the vehicle. (Tr. 407) He told police that it was the truck that the

person who shot Ellis left in. (Tr. 408)

Moyer knew that Ellis and Robert Shivelik had some disagreements about money

owed from some rehabbing work. Shivelik drove a navy blue Dodge truck that was

different from the truck he saw next to Ellis’ truck the night of the shooting. (Tr. 413-14)

On cross-examination, Moyer stated that he had heard that Skip got into a fight

with Joe Jenkins in a bar the night of the shooting. (Tr. 415) He acknowledged he told the

police that the truck involved in the shooting was “dark, right, navy blue or dark green.”

9

(Tr. 422) He stated that before the shooting that the Escalade pulled up first before the

Dodge, and the Dodge pulled to the side in the center of the Escalade. Ellis then got out

of the Escalade and stood beside the passenger side of the Dodge. (Tr. 416-17)

The jury returned verdicts finding Clinton not guilty of aggravated murder, and

guilty of murder and tampering with evidence. During the July 12 sentencing hearing, the

court entered a finding of guilty on the repeat violent offender specification. (Tr. 1128)

By judgment entry filed August 2, 2013, the court imposed a sentence of fifteen

years to life on the murder count, plus a three year term on a firearm specification; plus

an additional consecutive ten year term on a repeat violent offender specification; and

thirty six month sentences on the tampering with evidence and weapons under disability

count for an aggregate sentence of thirty one years. (R. 383)

Clinton appealed to the Tenth Appellate District. By Decision rendered on

November 18, 2014, and judgment entry filed November 18, 2014, the Court of Appeals

affirmed the trial court’s judgment.

ARGUMENT

First Proposition of Law

When a criminal conviction results from the introduction of inflammatory,

irrelevant, inherently prejudicial testimony that deprived the defendant of a

fair trial, a reviewing court should reverse the conviction.

During her testimony, Kimberly Craig testified that Clinton showed her and her

cousin Nicole his gun when he was standing outside his residence. He told them to come

in, and she was going to go in, but her cousin told her not to because they had heard that

he was a sex offender. (Tr. 158) Although this unsolicited was inherently prejudicial,

there was no response to it either by the court or trial counsel for Clinton.

10

This statement is fraught with problems. It is factually incorrect; it comes from a

hearsay source, and Clinton had no opportunity to confront the declarant as required by

the Confrontation Clause of the Sixth Amendment; if confuses the issues; it constitutes a

character attack on the non-testifying Clinton; and it is inflammatory.

The law does not permit the introduction of such statements. As was noted in

State v. Goines, 111 Ohio App.3d 840, 847, 677 N.E.2d 412 (1996), "`[a]n accused

cannot be convicted of one crime by proving he committed other crimes or is a bad

person.'", quoting State v. Jamison, 49 Ohio St.3d 182, 184, 552 N.E.2d 180 (1990).

(Emphasis added.)

The trial court should have taken steps to ensure Clinton’s Due Process right to a

fair trial. The court should have declared a mistrial or, at a minimum, provided a limiting

instruction to the jury. The failure to do so deprived Clinton of a fair trial, and constituted

reversible error. In the circumstances of this case, the trial court should have acted sua

sponte; the failure to do so constituted plain error cognizable under Crim.R. 52(B).

Further, it could be argued that trial counsel, consistent with the guarantee of effective

assistance of counsel, should have made such requests. The failure to do can be seen as a

violation of an essential duty of counsel that resulted in prejudice to the accused and that

constituted a denial of the Sixth Amendment’s guarantee of effective assistance of

counsel under the analysis of State v. Madrigal, 87 Ohio St.3d 378, 388–389, 2000–

Ohio–448, 721 N.E.2d 52.

Second Proposition of Law

Expert opinion testimony must satisfy the requirements of the Ohio Rules

of Evidence.

11

In the prosecution below, the State relied heavily on the testimony of Max

Larijani, who testified that he conducted gunshot residue (“GSR”) analysis and found

three microscopic particles on one of Clinton’s hands, and two microscopic particles on

the other. (Tr. 290) The GSR evidence introduced at trial fails to meet the threshold of

reliability established by the Supreme Court in Daubert. v. Merrell Dow

Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993). See, also, Ohio

Evid. R. 702(C).

Larijani’s analysis and testimony are flawed because they did not take into

account the possibility if not likelihood of contamination. Officer Donald Jones collected

the gunshot residue sample from Clinton the night of the incident. (Tr. 309-312) He took

the sample at police headquarters. He did not take sample from the handcuffs on Clinton,

or the table, chair or car. There was no control sample.

He did not test for gunshot residue in the truck or on Clinton’s clothing. (Tr. 322)

When he took sample from Clinton’s hands, they were not bagged. He did not take a

sample from the table or chair where Clinton was sitting. (Tr. 316) He did not take a

sample of the car that transported Clinton.(Tr. 316-17) He took no control samples at all.

(Tr. 316-17)

These factors required exclusion of Larijani’s expert opinion testimony. A recent

Minnesota court's decision demonstrates how the high potential for contamination in the

law enforcement environment significantly impacts the reliability of GSR evidence. In

Minnesota v. Moua (Minn. Dist. Ct. July 7, 2006), No. K5-05-7335, at 23, the court

excluded GSR evidence as unreliable due to issues of contamination in the police

environment, holding that it had "no probative value for the trier of fact.".

12

In addition, the court below should have excluded this evidence under Ohio Rule

of Evidence 403(A). The evidence from the GSR test was of low probative value

because the test results could not determine to any degree of scientific certainty whether

the elements identified were deposited as a result of the defendant’s discharge of a

firearm or originated from another source.

Third Proposition of Law

R.C. 2929.14(B)(2)(a) and 2941.149 violate the right to trial by jury

guaranteed by the Sixth and Fourteenth Amendments to the United States

Constitution and Section 16, Article I of the Ohio Constitution.

The Ohio Revised Code sets forth a procedure whereby a sentencing court can

add an additional prison term to offenders whom, based on their records, are determined

to be repeat violent offenders. A growing and evolving body of case law from the United

Stated Supreme Court stands for the proposition that the guarantees of the Sixth

Amendment require jury determination of any fact that increases the maximum

punishment authorized for the offense. See Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000). Alleyne v. United States, 570 U.S. ___, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013) is the Court’s most recently pronouncement in this area.

Alleyne significantly extends the Apprendi analysis to a case involving an increase in

minimum prison sentences based upon a factual finding by a court rather than a jury.

On its face, the Ohio statutory scheme would seem to violate this authority. R.C.

2941.149(B) states that “the court shall determine the issue of whether an offender is a

repeat violent offender.” R.C. 2929.14(B)(2)(a) sets forth the factors the sentencing court

must find in order to make this determination. Under the Apprendi-Alleyen analysis, the

Constitution would require jury determination of these issues.

13

Authority holds, however, that determination of the fact of a prior conviction falls

outside this analysis and is for the court. See Almendarez-Torres v. United States, 523 U.

S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) and State v. Hunter, 123 Ohio St.3d 164,

2009-Ohio-4147, 915 N.E.2d 292.

But in its opinion in Alleyene, the Court included a footnote that may signal that

the Court will revisit this issue and reach a conclusion contrary to Almendarez-Torres.

The Court stated at footnote 1:

In Almendarez-Torres v. United States, 523 U. S. 224 (1998), we

recognized a narrow exception to this general rule for the fact of a prior

conviction. Because the parties do not contest that decision’s vitality, we

do not revisit it for purposes of our decision today.

Appellant concedes that, at present, Almendarez-Torres and Hunter remain the

law. But in order to preserve this issue for possible later review, Appellant raises the

issue in this Assignment of Error.

Fourth Proposition of Law

Before imposing an additional term of incarceration on a repeat violent

offender specification, a trial court must make the findings required by

R.C. 2929.14(B)(2)(a).

Appellate review of a felony sentence is a two-step procedure. State v. Kalish, 120

Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 4. “The first step is to ‘examine the

sentencing court’s compliance with all applicable rules and statutes in imposing the

sentence to determine whether the sentence is clearly and convincingly contrary to law.’”

State v. Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, 900 N.E.2d 1037, ¶ 4 (2d Dist.),

quoting Kalish at ¶ 4. “If this step is satisfied, the second step requires that the trial

court’s decision be ‘reviewed under an abuse-of-discretion standard.’” Id.

14

The trial court has full discretion to impose any sentence within the authorized

statutory range, and the court is not required to make any findings or give its reasons for

imposing maximum or more than minimum sentences. See State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus. However,

the trial court must comply with all applicable rules and statutes, including R.C. 2929.14.

See State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.

Despite this broad grant of discretion, the statutory scheme created by 2011

Am.Sub. H.B. 86, effective September 30, 2011, now requires judicial fact-finding.

Pursuant to R.C. 2929.14(B)(2)(a), in addition to the longest prison term authorized for

the offense, the sentencing court may impose an additional definite prison term of one,

two, three, four, five, six, seven, eight, nine, or ten years for the repeat violent offender

specification, if all of the following criteria are met:

* * *

(iv) The court finds that the prison terms imposed * * * are

inadequate to punish the offender and protect the public from future crime,

because the applicable factors under section 2929.12 of the Revised Code

indicating a greater likelihood of recidivism outweigh the applicable

factors under that section indicating a lesser likelihood of recidivism.

(v) The court finds that the prison terms imposed * * * are

demeaning to the seriousness of the offense, because one or more of the

factors under section 2929.12 of the Revised Code indicating that the

offender's conduct is more serious than conduct normally constituting the

offense are present, and they outweigh the applicable factors under that

section indicating that the offender's conduct is less serious than conduct

normally constituting the offense.

The court did not find on the record that the maximum sentence was

inadequate to protect the public from future crime or to punish appellant because

those factors indicated a greater likelihood of recidivism. Additionally, the trial

court did not find on the record that the maximum sentence was demeaning to the

15

seriousness of the offense because one or more of the factors under R.C. 2929.12

indicated that appellant's conduct was more serious than conduct normally

constituting the offense.

The trial court erred by sentencing Appellant to an additional term of

imprisonment as a repeat violent offender without making the findings. See State

v. Warren, 8th Dist. Cuyahoga No. 97837, 2012 -Ohio- 4721.

Although trial counsel did not object on this basis, the matter is cognizable

here as plain error under Crim.R. 52(B). In construing an analogous provision,

courts have held that the "[f]ailure to fully comply with R.C. 2929.14(C)(4) is

plain error as a matter of law." State v. Bailey, 10th Dist. Franklin No. 12AP-699,

2013-Ohio-3596, ¶ 46. See also State v. Hunter, 10th Dist. Franklin No. 13AP-

196, 2013-Ohio-4013, ¶ 9.

CONCLUSION

For the foregoing reasons, Appellant respectfully urges this Court to accept

jurisdiction and reverse the judgment of the Franklin County Court of Appeals.

Respectfully submitted,

Yeura R. Venters 0014879

Franklin County Public Defender

BY:/s David L. Strait_______________

David L. Strait 0024103

373 South High Street, 12th

Floor

Columbus, Ohio 43215

Telephone: 614/525-8872

Attorney for Appellant

16

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true copy of the foregoing Memorandum in

Support of Jurisdiction was served upon the following by electronic mail this 23rd

day of

December 2014

Steven L. Taylor 0043876

Assistant Franklin County Prosecuting Attorney

Counsel of Record

373 South High Street, 14th Floor

Columbus, Ohio 43215

Phone: 614/462-3555

Fax: 614/462-6103

BY:/s David L. Strait_______________

David L. Strait 0024103

Attorney for Appellant

17

APPENDIX

Appendix Page No.

Court of Appeals Judgment Entry, November 19, 2014 ................................A-1

Court of Appeals Opinion, November 18, 2014 ............................................A-3

A-1

A-2

A-3

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A-5

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A-7

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