Supreme Court of Ohio Clerk of Court - Filed February 07, 2017 - Case No. 2011-1921 In the Supreme Court of Ohio State of Ohio, : Appellee, : Case No. 2011-1921 -vs- : Anthony Sowell, : This is a capital case. Appellant. : ______________________________________________________________________________ Appellant Anthony Sowell’s Motion for Appointment of Counsel ______________________________________________________________________________ MICHAEL C. O’MALLEY OFFICE OF THE Cuyahoga County Prosecutor OHIO PUBLIC DEFENDER CHRISTOPHER D. SCHROEDER (0089855) DANIEL P. JONES (0041224) Assistant Prosecuting Attorney Assistant State Public Defender Counsel of Record Counsel of Record Office of the Cuyahoga County Prosecutor Office of the Ohio Public Defender The Justice Center, 8th floor 250 East Broad Street, Suite 1400 1200 Ontario Street Columbus, Ohio 43215 Cleveland, Ohio 44113 (614) 466-5394 (216) 443-7733 (614) 644-0708 (fax) [email protected] [email protected] COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT In the Supreme Court of Ohio State of Ohio, : Appellee, : Case No. 2011-1921 -vs- : Anthony Sowell, : This is a capital case. Appellant. : ______________________________________________________________________________ Appellant Anthony Sowell’s Motion for Appointment of Counsel ______________________________________________________________________________ Appellant Anthony Sowell respectfully moves this Court for the appointment of undersigned counsel, who is currently preparing for filing Sowell’s application for reopening, made pursuant to S.Ct.Prac.R. 11.06. A Memorandum in Support of this Motion is attached. Respectfully submitted, The Office of the Ohio Public Defender By: s/ Daniel P. Jones Daniel P. Jones (0041224) Counsel of Record 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 644-0708 – fax [email protected] Counsel for Appellant Sowell 1 MEMORANDUM IN SUPPORT On December 8, 2016, this Court affirmed Appellant Anthony Sowell’s convictions and death sentence. State v. Sowell, ___ Ohio St.3d ___, 2016-Ohio-8025. Mr. Sowell’s motion for reconsideration subsequently was denied by this Court on December 30, 2016. Undersigned counsel, an Assistant State Public Defender, hereby requests that this Court issue an order appointing him as counsel for purposes of preparing and filing an application for reopening pursuant to S.Ct.Prac.R. 11.06. The application is due for filing by March 30, 2017. I. THE SIXTH AND FOURTEENTH AMENDMENTS ENTITLE APPELLANT TO APPOINTED COUNSEL. Appellant Sowell is currently under a death sentence, and he has exercised his direct appeal as of right to this Court. See Ohio Constitution, Article IV, section (B)(2)(b); R.C. § 2929.05(A). Because this was Appellant’s first appeal of right, Appellant had a constitutional right to counsel. State v. Van Hook, 70 Ohio St.3d 1216, 1217 (1994); State v. Buell, 70 Ohio St.3d 1211, 639 N.E.2d 110 (1994). That right to counsel encompassed the right to the effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); State v. Buell, 70 Ohio St.3d 1211 (1994); See also State v. Van Hook, supra, 70 Ohio St.3d at 1217. II. APPELLANT WILL BE DENIED DUE PROCESS AND EQUAL PROTECTION IF HE LACKS THE BENEFIT OF APPOINTED COUNSEL WHO CAN PREPARE AND FILE AN APPLICATION FOR REOPENING ON HIS BEHALF. The appointment of counsel to pursue a claim of ineffective assistance of appellate counsel is currently contingent upon this Court determining that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal to this Court.” S.Ct.R.Prac. 11.06(E). But the state cannot premise the right to counsel on appeal upon the appellant first making a showing that he has viable appellate issues. Douglas v. California, 2 372 U.S. 353, 357 (1963); Anders v. California, 386 U.S. 738, 744 (1967). See also Draper v. Washington, 372 U.S. 487 (1963) (the state cannot make transcripts at no cost contingent upon the determination of a judge that an appeal would not be frivolous). In essence, strict construction of these provisions would require that Appellant Sowell now proceed without counsel with any effort to challenge the performance of the court-appointed counsel who represented him on the direct appeal. This result would require any pro se appellant to sift through legal books and court documentation in the effort to draft this “genuine issue” of ineffective assistance of appellate counsel, and to then identify issues that the court-appointed attorneys may have missed. Any appellant lacking the resources to retain counsel to prepare the application for reopening should not be forced to proceed alone through this procedural quagmire. It is inconsistent with due process and fair procedure that any indigent defendant be required to present the merits of his or her claims before counsel can be appointed. Equal justice must not be premised upon the amount of money any criminal defendant has, or lacks, with which to pay for the assistance of counsel. Destitute defendants must be afforded appellate review that is as adequate as defendants who have enough money to buy transcripts. Griffin v. Illinois, 351 U.S. 12, 18-19 (1956). III. THE PRACTICE OF THIS COURT HAS BEEN TO APPOINT COUNSEL TO PURSUE APPLICATIONS TO REOPEN IN CAPITAL CASES. This Court often has appointed counsel who can assist indigent capital defendants by preparing and filing their S.Ct.Prac.R. 11.06 applications. See, e.g., State v. Wesson, 137 Ohio St.3d 1494 (2014); State v. Osie, 140 Ohio St.3d 1431 (2014); State v. Mammone, 140 Ohio St.3d 1405 (2014); State v. Turner, 114 Ohio St.3d 1494 (2007); State v. Jackson, 108 Ohio 3 St.3d 1477 (2006); State v. Monroe, 107 Ohio St.3d 1679 (2005); State v. Cassano,101 Ohio St.3d 1478 (2004); State v. White, 88 Ohio St.3d 1439 (2000). IV. UNDERSIGNED COUNSEL IS QUALIFIED TO ACCEPT THE APPOINTMENT. Undersigned counsel is certified to represent death-sentenced individuals who are pursuing capital appellate processes in Ohio, in keeping with Ohio Supreme Court rules of practice governing capital indigent defense, as required by S.Ct.Prac.R. 11.02. V. CONCLUSION To ensure adequate appellate review of his conviction and sentence, undersigned counsel respectfully requests that this Court issue an order appointing him as counsel for purposes of preparing and filing Appellant Sowell’s application for reopening, to be made pursuant to S.Ct.Prac.R. 11.06. Respectfully submitted, OFFICE OF THE OHIO PUBLIC DEFENDER By: s/ Daniel P. Jones Daniel P. Jones (0041224) Counsel of Record Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-5394 (614) 644-0708 – fax [email protected] Counsel for Appellant Sowell 4 Certificate of Service I hereby certify that a copy of this Motion for Appointment of Counsel was forwarded by first-class, postage prepaid U.S. Mail, to Christopher D. Schroeder, Assistant Prosecuting Attorney, Cuyahoga County Prosecutor’s Office, The Justice Center, 8th floor, 1200 Ontario Street, Cleveland, Ohio 44113, on the 7th day of February, 2017. By: s/ Daniel P. Jones Daniel P. Jones (0041224) Counsel of Record Counsel for Appellant Sowell 5 .