[Cite as State v. Charity, 2020-Ohio-3162.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                              STATE OF OHIO

                                              Plaintiff-Appellee,

                                                      v.

                                       EARL L. CHARITY, III,

                                         Defendant-Appellant


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 19 MA 0001


                                          Application to Reopen

                                        BEFORE:
                 Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                                 JUDGMENT:
                                                   Denied



 Atty. Paul Gains, Mahoning County Prosecutor, Atty. Ralph Rivera, Assistant
 Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th
 Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and

 Earl L. Charity, III, (PRO SE), #A754-922, Lake Erie Correctional Institution, 501
 Thompson Road, P.O. Box 8000, Conneaut, Ohio 44030-8000, for Defendant-
 Appellant.
                                                                                        –2–


                                       May 29, 2020



 PER CURIAM.

       {¶1}   Defendant-appellant, Earl Charity, III, has filed an application to reopen his
direct appeal from his conviction of aggravated murder and a firearm specification. State
v. Charity, 7th Dist. Mahoning No. 19 MA 0001, 2019-Ohio-5252. For the following
reasons, the application is denied.
       {¶2}    An application to reopen an appeal must be filed “within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.” App.R. 26(B). Our judgment in this case was filed on December 11,
2019. Appellant filed this application on March 4, 2020. Thus, it is timely.
       {¶3}    Ineffective assistance of appellate counsel is the basis for an application
to reopen an appeal. App.R. 26(B)(1). When considering an application for reopening
pursuant to App.R. 26(B), we must first determine, based upon appellant's application,
affidavits, and portions of the record before us, whether appellant has set forth a colorable
claim of ineffective assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist.
Franklin No. 89AP-655, 1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d
91, 623 N.E.2d 146 (10th Dist.1993). In order to show ineffective assistance of appellate
counsel, appellant must prove that his counsel was deficient for failing to raise the issues
he now presents and that there was a reasonable probability of success had he presented
those claims on appeal. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d
700, ¶ 5, (explaining that the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984), test is used to determine if appellate counsel was ineffective).
       {¶4}    Appellant asserts his appellate counsel was ineffective for failing to raise
three assignments of error.
       {¶5}    First, appellant claims his appellate counsel was ineffective for failing to
assert:

              APPELLATE          COUNSEL          WAS         CONSTITUTIONALLY
       INEFFECTIVE       FOR    FAILING     TO    ASSIGN     AS    ERROR,      TRIAL
       COUNSEL’S INEFFECTIVENESS AS DEFENSE COUNSEL FAILED TO


Case No. 19 MA 0001
                                                                                          –3–


       FULFILL HIS ADVERSARIAL ROLE TO THE STATE’S CASE DURING
       THE PLEA NEGOTIATION PROCESS AND PREPARATION FOR TRIAL.

       {¶6}     Appellant contends that his appellate counsel should have argued that his
trial counsel was ineffective for three reasons. First, appellant argues that his trial counsel
was ineffective for not filing a motion to dismiss the charges. Second, appellant argues
that his trial counsel was ineffective for not filing a motion to suppress the firearms and
machete found at the scene of the murder. Third, appellant argues that his trial counsel
was ineffective for not personally investigating the scene of the murder or attempting to
find other witnesses.
       {¶7}     Addressing appellant’s motion to dismiss argument, motions to dismiss
are governed by Crim.R. 12(C). Pursuant to the rule, “any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of determination without
the trial of the general issue.” Appellant argues that his indictment should have been
dismissed because an autopsy and ballistics report was not completed until two months
after he was indicted.
       {¶8}     A motion to dismiss an indictment on non-constitutional grounds looks at
whether “the charging instrument was adequate on its face[.]” See State v. Owens, 6th
Dist. Lucas No. L-16-1218, 2017-Ohio-2909, ¶ 16 quoting Vermillion v. Meinke, 6th Dist.
Erie No. E-12-037, 2013-Ohio-2250. Because there is no indication the indictment was
inadequate on its face, appellant’s counsel was not deficient for failing to raise this
argument.
       {¶9}     Addressing appellant’s motion to suppress argument, a motion to
suppress is a “[d]evice used to eliminate from the trial of a criminal case evidence which
has been secured illegally,” generally in violation of constitutional rights. State v. French,
72 Ohio St.3d 446, 449, 65 N.E.2d 887 (1995) quoting Black’s Law Dictionary (6 Ed.1990)
1014. Appellant makes no showing that the firearms and machete in his case were
obtained in violation of his constitutional rights. He only argues that the firearms and
machete should have been suppressed because no DNA evidence connected him to
those items. Because appellant makes no argument that the firearms and machete were
obtained in violation of his constitutional rights, his appellate counsel was not deficient for
failing to raise this argument.


Case No. 19 MA 0001
                                                                                        –4–


       {¶10}    Addressing appellant’s investigation argument, appellant argues that his
trial counsel was ineffective because, despite having the keys to the building where the
murder occurred, his trial counsel did not inspect the building nor did trial counsel attempt
to interview potential witnesses. We note that the record has no indication of what pretrial
investigation appellant’s trial counsel conducted.       Courts should not “infer a defense
failure to investigate from a silent record.” State v. Thompson, 141 Ohio St.3d 254, 2014-
Ohio-4751, 23 N.E.3d 1096, ¶ 247 quoting State v. Ware, 118 Ohio St.3d 448, 2008-
Ohio-2762, 890 N.E.2d 263.
       {¶11} Thus, appellant has not demonstrated that his appellate counsel was
ineffective for failing to raise an issue of ineffective assistance of trial counsel.
       {¶12} Second, appellant claims his appellate counsel was ineffective for failing to
assert:

               APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILURE TO
       ASSIGN AS ERROR THE TRIAL COURT’S DENIAL OF CHARITY’S
       RIGHT TO APPEAL, RIGHT TO APPELLATE COUNSEL AND THE
       RECORD AT STATE’S EXPENSE WHERE THE TRIAL COURT DID NOT
       ADVISE CHARITY OF THE FUNDAMENTAL RIGHT TO APPEAL IN
       VIOLATION OF THE SIXTH AND DUE PROCESS CLAUSE OF THE
       FOURTEENTH           AMENDMENTS           TO      THE      UNITED       STATES
       CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION.

       {¶13}    Appellant argues that his appellate counsel was ineffective for failing to
raise an argument that his guilty plea was not knowingly, intelligently, or voluntarily
entered into because the trial court advised him at his change of plea hearing that he had
no right to appeal his conviction.
       {¶14}    A guilty plea waives the right to appeal trial court errors except for errors
in the plea itself. State v. Truax, 7th Dist. Belmont No. 06 BE 66, 2007–Ohio–4993, ¶ 8,
citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 at paragraph two of the syllabus.
Thus, the trial court did not misadvise appellant that he could not appeal his conviction




Case No. 19 MA 0001
                                                                                          –5–


after he pled guilty and appellate counsel was not deficient for failing to raise this
argument.
       {¶15} Moreover, appellant was not prejudiced by this lack of argument. Appellant
timely appealed, was appointed appellate counsel, and his appellate counsel filed a merit
brief raising two assignments of error.
       {¶16} Thus, appellant has not demonstrated that his appellate counsel was
ineffective for failing to raise an issue regarding the trial court’s advisement about his right
to appeal.
       {¶17} Finally, appellant claims his appellate counsel was ineffective for failing to
assert:

               APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO
       ASSIGN AS ERROR TRIAL COURT’S ABUSE OF DISCRETION IN
       SENTENCING CHARITY TO A TERM OF IMPRISONMENT WITHOUT
       KNOWLEDGE OF THE AGGREGATED TOTAL.

       {¶18}    At the time appellant pled guilty to aggravated murder with a firearm
specification, he was on parole for involuntary manslaughter and felonious assault.
Appellant informed the trial court during his change of plea hearing that he was on parole.
Appellant states that, as of the date he filed this application, he has not received any
notice that his parole has been revoked. Appellant argues that his appellate counsel was
ineffective for not raising an argument that the trial court inappropriately sentenced him
to life imprisonment with parole eligibility after 23 years without knowing his sentence for
violating parole.
       {¶19}    At the change of plea hearing, the trial court advised appellant that the
maximum prison sentence he could receive was life imprisonment without parole plus an
additional three-year consecutive sentence for the firearm specification. Pursuant to R.C.
2929.03(A)(1), aggravated murder is punishable by: life imprisonment without parole; life
imprisonment with parole eligibility after 30 years; life imprisonment with parole eligibility
after 25 years; or life imprisonment with parole eligibility after 20 years. Pursuant to R.C.
2941.145(A), firearm specifications carry an additional mandatory three-year term of
incarceration. Thus, not only is appellant’s sentence of life imprisonment with parole


Case No. 19 MA 0001
                                                                                         –6–


eligibility after 23 years within statutory guidelines, it is the statutorily minimum sentence
appellant could have received.
       {¶20}    As for appellant’s parole violation, it is a separate and distinct proceeding
from this case. Any and all issues appellant may have with a future parole violation
proceeding, including a sentence for violating parole, are not before this court now.
Attempting to analyze the impact a future sentence may have on this case would require
us to go beyond the current record.
       {¶21}    Thus, appellant has not demonstrated that his appellate counsel was
ineffective for failing to raise an issue regarding any possible sentence he may receive
for violating parole.
       {¶22} For the reasons stated above, appellant’s application to reopen his appeal
is hereby denied.




 JUDGE GENE DONOFRIO

 JUDGE CAROL ANN ROBB

 JUDGE DAVID A. D’APOLITO




                                  NOTICE TO COUNSEL

 This document constitutes a final judgment entry.




Case No. 19 MA 0001
