Appenzeller v. Miller , 2012 Ohio 6093 ( 2012 )

[Cite as Appenzeller v. Miller, 2012-Ohio-6093.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
RUSSELL APPENZELLER, )
)
PETITIONER, )
)
V. ) CASE NO. 12 BE 24
)
MICHELE MILLER, WARDEN, ) OPINION
) AND
RESPONDENT. ) JUDGMENT ENTRY
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner Russell Appenzeller
#514-991
P.O. Box 540
St. Clairsville, Ohio 43950-0540
For Respondent Michael DeWine
Ohio Attorney General
M. Scott Criss
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: December 24, 2012
[Cite as Appenzeller v. Miller, 2012-Ohio-6093.]
PER CURIAM.
{¶1} Petitioner Russell E. Appenzeller has filed a pro se petition for writ of
habeas corpus claiming his convictions and sentences are unlawful and void due to
violations of due process and equal protection of the laws. Respondent Michele
Miller, Warden of the Belmont Correctional Institution in St. Clairsville, Ohio answered
by filing a motion to dismiss.
{¶2} Appenzeller was indicted in the Lake County Common Pleas Court on
18 felony counts that included burglary, theft, and attempted burglary relating to a
pattern of residential break-ins that occurred in the Mentor area in February 2005. In
2006, a jury convicted Appenzeller on all counts and the trial court sentenced him to
an aggregate term of 28 years in prison. Appenzeller appealed his conviction and
sentence to the Eleventh District Court of Appeals. The court found there was
sufficient evidence to convict Appenzeller and that his conviction was not against the
manifest weight of the evidence. The court also found no error with the admission
into evidence of a photo line-up in which a witness identified Appenzeller as the
person leaving one of the residences that were broken into. Likewise, the court
found no error with the trial court’s denial of Appenzeller’s belated attempt to
represent himself pro se at trial. The court did, however, conclude that the multiple
counts of burglary and attempted burglary were allied offenses of similar import and
erred in failing to merge them together. It affirmed in part and reversed in part,
remanding the case for merging of certain offenses and resentencing. State v.
Appenzeller, 11th Dist. No. 2006-L-258, 2008-Ohio-7005. Upon resentencing, the
trial court again sentenced Appenzeller to an aggregate term of 28 years in prison.
The Eleventh District affirmed the trial court’s resentencing decision. State v.
Appenzeller, 11th Dist. No. 2009-L-027, 2009-Ohio-6384.
{¶3} Meanwhile, Appenzeller had filed a petition for postconviction relief
which the trial court denied. The Eleventh District affirmed that decision. State v.
Appenzeller, 11th Dist. No. 2007-L-175, 2008-Ohio-6982.
{¶4} Turning to the petition presently before this court, we note that “habeas
corpus lies only if the petitioner is entitled to immediate release from confinement.”
State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995). In
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habeas corpus cases, the burden of proof is on the petitioner to establish his right to
release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v.
Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). “[U]nsupported and
uncorroborated statements of the petitioner, standing alone, are not sufficient to
overcome the presumption of regularity of the court’s judgment.” Yarbrough, 174
Ohio St. at 288, 189 N.E.2d 136 (1963). “Like other extraordinary-writ actions,
habeas corpus is not available when there is an adequate remedy in the ordinary
course of law.” In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d
427, 2004–Ohio–5579, 816 N.E.2d 594, ¶6.
{¶5} In his petition, Appenzeller alleges prosecutorial misconduct and that he
was denied assistance of trial counsel “surreptitiously.” He contends there was no
“actual genuine” probable cause that he committed the break-ins and that four days
prior to trial the prosecution manufactured a photo array that was somehow different
than the one used during the investigation. He also argues that his trial counsel
knew that the photo array provided by the prosecution was not genuine and that his
opening statement to jurors amounted to “chicanery” and that he only gave the
appearance of a zealous defense by trying to impress upon the jurors that photo
arrays were unreliable. He incongruously argues that his trial counsel’s presentation
left the jury “embedded” with the knowledge that the photo array was not genuine.
{¶6} As for the basis of his petition, Appenzeller claims he was denied due
process and equal protection of the laws because there was a break in the chain of
custody of the transcript of proceedings that prevented the court of appeals from
assessing these errors that allegedly occurred at trial. He cites the Eleventh District
Court of Appeals Loc.R. 11 which provides:
When a Notice of Appeal has been filed in a particular case, the
entire trial court record, including the transcript of proceedings,
becomes subject to the exclusive direction and control of the Court of
Appeals. With a filing of the notice, any existing authority to allow
removal of the transcript of the proceedings from the Clerk of Courts’
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office is automatically superseded by the authority of the Court of
Appeals. Permission for removal of the transcript may be granted upon
application on a form provided and approved by the judges of this court.
Any removal permitted shall be conditioned upon the return of the
transcript within 14 days from the date of removal or 14 days before the
date set for oral argument, whichever is earlier. Copying and
disassembling of a transcript filed with the Court of Appeals is
prohibited. Failure to comply with this rule may result in the issuance of
a citation for contempt of court.
The Court of Appeals reserves the right to limit or restrict access
to all items of record in its possession in order to preserve the proper
chain of custody and maintain the evidential integrity of the record and
its contents.
(Emphasis sic.)
{¶7} Pointing to the docket sheet for his direct appeal, Appenzeller claims
that the Eleventh District Court of Appeals lost exclusive direction and control of the
transcript of proceedings when his appointed appellate counsel checked it out from
October 25, 2007, to November 19, 2007. He argues that this constituted an
“intolerable fundamental break in the chain of custody of all the entire evidence * * *
seriously affecting the integrity of both appellate proceedings substantially.” He
argues that “somebody” intentionally disassembled the transcript of proceedings so
as not to include his trial counsel’s opening statement.
{¶8} A review of Appenzeller’s petition reveals that it must be dismissed for
two reasons. First, Appenzeller has failed to present the type of claim for which
habeas is the appropriate avenue of legal relief. Generally, habeas corpus will lie
only to challenge the jurisdiction of the sentencing court. Stahl v. Shoemaker, 50
Ohio St.2d 351, 364 N.E.2d 286 (1977). Under R.C. 2725.05:
If it appears that a person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or
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magistrate, or by virtue of the judgment or order of a court of record,
and that the court or magistrate had jurisdiction to issue the process,
render the judgment, or make the order, the writ of habeas corpus shall
not be allowed.
{¶9} Here, Appenzeller does not challenge the jurisdiction of the sentencing
court, but rather that there were constitutional violations that resulted in an improper
conviction. Habeas is available in certain extraordinary circumstances where the
issues are nonjurisdictional. However, such situations are strictly limited to where
there was no adequate legal remedy, such as direct appeal or postconviction relief.
State ex rel. Pirman v. Mooney, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). In
the instant case, Appenzeller had an adequate remedy at law to pursue his claims,
namely a renewed petition for postconviction relief.
{¶10} Moreover, the Ohio Supreme Court has held that the specific types of
claims Appenzeller is attempting to assert here are not viable habeas corpus claims.
Claims involving the ineffective assistance of counsel are not cognizable in habeas
corpus. Bozsik v. Hudson, 110 Ohio St. 3d 245, 2006-Ohio-4356, 852 N.E.2d 1200,
¶7. Likewise, claims of fraud upon the court and prosecutorial misconduct are not
cognizable in habeas corpus. Keith v. Bobby, 117 Ohio St. 3d 470, 2008-Ohio-1443,
884 N.E.2d 1067, ¶15.
{¶11} The second reason Appenzeller’s petition must be dismissed goes to
his evidentiary burden. Even if this court were able to reach the merits of his claims,
Appenzeller has failed to meet his burden of proof to provide sufficient evidence to
overcome the presumption of regularity accorded the trial court’s and appellate
court’s proceedings. The Eleventh District Court of Appeals Loc.R. 11 allows for
removal of the transcript of proceedings with its permission. As indicated, in support
of his petition, Appenzeller has provided copies of the docket sheets from his direct
appeal reflecting that the transcript of proceedings were checked out by appointed
appellate counsel. The evidence provided by Appenzeller reveals no irregularities in
the trial court or appellate court proceedings. The docket sheets reflect only the
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routine practice of an appellate attorney checking out the transcript of proceedings in
order to prepare an appellate brief in furtherance of Appenzeller’s appeal. In sum,
Appenzeller has failed to support his claims by any relevant evidence beyond his own
self-serving conclusory assertions.
{¶12} For the foregoing reasons, the warden’s motion to dismiss is granted
and Appenzeller’s petition for writ of habeas corpus is hereby dismissed.
{¶13} Costs taxed against Appenzeller. Final order. Clerk to serve notice on
the parties as required by the Ohio Rules of Civil Procedure.
Donofrio, J. concurs.
Vukovich, J. concurs.
Waite, P.J., concurs.