[Cite as State v. Brusiter, 2013-Ohio-3803.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98614


                                       STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                                  vs.

                                      DARIN BRUSITER
                                                  DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                               Cuyahoga County Common Pleas Court
                                      Case No. CR-549689
                                    Application for Reopening
                                       Motion No. 466045
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                   RELEASE DATE:   August 30, 2013


FOR APPELLANT

Darin Brusiter, pro se
Inmate #624-263
Lorain Correctional Institution
2075 S. Avon-Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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EILEEN A. GALLAGHER, J.:

       {¶1} On June 24, 2013, the applicant, Darin Brusiter, pursuant to App.R. 26(B)

and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this

court’s judgment in State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-Ohio-1445, in

which this court affirmed Brusiter’s convictions for aggravated murder and kidnapping

both with three-year firearm specifications, and insurance fraud and tampering with

evidence.   Brusiter argues that his appellate counsel was ineffective for not arguing that

aggravated murder and kidnapping were allied offenses.       On July 16, 2013, the state of

Ohio filed its brief in opposition, and Brusiter filed his reply brief on July 29, 2013. For

the following reasons, this court denies the application to reopen.

       {¶2} The record indicates that Brusiter and Samuel Wilson conspired to murder

Wilson’s wife for insurance money. According to Brusiter’s statement, Wilson drove his

wife and Brusiter to various places until they stopped, and Brusiter got out of the backseat

and shot and killed Wilson’s wife. The grand jury indicted Brusiter on two counts of

aggravated murder, with one-, three- and six-year firearm specifications, a felony murder

specification and a murder for hire specification, one count of kidnapping with the

three-year firearm specification, one count of insurance fraud, and one count of tampering

with evidence.   After prolonged negotiations, Brusiter and the state of Ohio reached a
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plea bargain, under which Brusiter would plea to count one, aggravated murder, with the

three-year firearm specification and the felony murder specification, kidnapping with the

three-year firearm specification, insurance fraud, and tampering with evidence.

Brusiter and the state further agreed to a 33-years-to-life sentence, as well as to a

stipulation that the murder charge and the kidnapping charge would not merge as allied

offenses, but the sentence for kidnapping would be served concurrently with the murder

sentence.   (Tr. 100, 103 and 109.)   The trial court accepted the plea deal as presented.

      {¶3} On appeal, counsel argued that the trial court erred in overruling Brusiter’s

motion to suppress his confession because the state did not timely provide Miranda

warnings.     This   court affirmed because Brusiter’s guilty plea waived any error

relating to the motion to suppress. Now Brusiter argues that his appellate counsel should

have argued that the murder charge and the kidnapping charge were allied offenses.

However, this argument is meritless, because the parties had stipulated that the murder

charge and the kidnapping charge would not merge as allied offenses.             Appellate

counsel in the exercise of professional judgment properly rejected an argument that had

no foundation in the record.   Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d

987 (1983) and State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.

      {¶4} Accordingly, this court denies the application to reopen.
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EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
