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STATE OF OHIO,

Plaintiff-Appellee,

vs.

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D efenciant-A ppellant.C.A. Case No. /"

IMO'I'ZON FOR LEAVE TO FILE DELAYED APPEAL OFAPPELLANT^^-r ^•>- ^ 3. "^ ^r^^^t

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DEFENDANT APPELLANT, PRO Sv-

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PROSECUTOR NAN

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COUNSEL FOR APPELL.EE, STA"TE OF OHTO

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CLERK OF COURTREME caUR°C OF ONi

IN THE SUPREME COURT OF OHIO

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IN THE SUPR rME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

vs.

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Defendant-Appellant.

Case No.

On Appeal from the

County C©urt of AppealsAppellate District

C.A. Case iNo. ^^^RQ^ U

MOTION FOR LEAVE TO FILE DELAYED APPEA^^ OFAPPI LLA I`IT^u C'L^^^ I

respectfully moves this Court for leave to fie a delayed appeal.

Drac.Rule 4^S.Ct. ^ 2 .^̀'(A)(4)(a), . ^ ^ . .

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An affidavit supportinla the Appellant's allegations is attached hereto. Because the

Appellant did not unduly delay the filing of this appeal, thi.s Court should perinit the Appellant to

file a delayed appeal.

Respectfully submitted,

Sicnzfiu PE

Nh1.Tt AND MJ1.^ER a.

(NSTITIITION

ADDRESS

Atc11^ ^̂?CITY. STATc A LIP

DEFENDANIT-APPEi:,LANT. PRO SE

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CERTIFICATE OF SERVICE

I herehy certify that a copy of the foregoina ?^^Iotion For Leave to File Delayed Appeal

was forwarded by regular J.S. Mail to .^^e.^^ , ^Y , Prosecuting Attorney

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DEFENDANT-APPELLANT, PRO SE

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IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STA T E OF OHiO

Plaintiff-Appellee

v.

Appellate Case No. 25198/25209

Trial Court Case No, 2012-CR-57

ARRIE D. YELDELL

Defendant-Appeliant

(Criminal Appeal fromCommon Pleas Court)

OPINION

Rendered on the 10th day of May, 2013.

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, AssistantProsecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division,Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio45422

Attorney for Plaintiff-Appellee

ARRIE D. YELDELL, Inmate No. 659-018, Lebanon Correctional Institution, P.O. Box 56,Lebanon, Ohio 45036

Defendant-Appellant, pro se

THOMAS SCHIFF, Atty. Reg. No. 0039881, 500 Lincoln Park Blvd., Suite 216, Kettering,Ohio 45429-6412

Attorney for Defendant-Appellant

- lqo

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

WELBAUM, J.

1) Defendant-Appellant, Arrie D. Yeldell, appeals from his criminal conviction and

sentence following a jury trial in which he was found guilty of one count of Attempted Rape

(by force), a second degree felony, one count of Kidnapping (sexual activity), a first degree

felony, and one count of Assault, a first degree misdemeanor. The counts for Attempted

Rape and Kidnapping merged as allied offenses and the Appellee, the State of Ohio,

elected to have Yeldell sentenced under Kidnapping. The trial court imposed a four-year

prison sentence for Kidnapping and a six-month prison sentence for Assault. The

sentences are to be served concurrently.

(12) Yeldell's appellate counsel filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-

frivolous issues for our review. Thereafter, Yeldell filed a pro se brief, advancing three

assignments of error. The State did not file a brief in response.

(13) Yeldell's first assignment of error states:

Indictment [sic] Violated the Constitutional Ban Against Double Jeopardy.

(14) Under this assignment of error, Yeldell argues that his constitutional rights

were violated upon being convicted for both Attempted Rape and Kidnapping. Yeldell

argues that this is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution because the requirements foreach offense are indistinguishable

and the offenses were committed against the same victim.

{¶ 5) In State v. Sturgell, 2d Dist. Darke No. 1751, 2009-Ohio-5628, this district

stated the following with respect to the Double Jeopardy Clause:

The double jeopardy clause protects against a second prosecution

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

for the same offense after acquittal or conviction, and against multiple

punishments for the same offense. In that regard, the double jeopardy

clause generally forbids successive prosecutions and cumulative

punishments for a greater and lesser included offense involving the same

conduct. Conviction on a lesser included offense generally bars

subsequent prosecution for a greater offense. (Citations omitted.) Id, at

¶10.

{16} Furthermore, R.C. 2941.25 codifies the protections of the Double Jeopardy

Clause, and it "`clearly provides that there may be only one conviction for allied offenses

of similar import.' " State v. Ayers, 2d Dist. Montgomery No. 25208, 2012-Ohio-6038, ¶16,

quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, % 26.

"`Thus, a trial court is prohibited from imposing individual sentences for counts that

constitute allied offenses of similar import.'" Id.

{¶ 7) In this case, the record establishes that Yeldell's counts for Attempted Rape

and Kidnapping were merged as allied offenses of similar import, and Yeldeli was only

sentenced for Kidnapping. Yeldell was, therefore, not subject to multiple punishments for

the same offense. For this reason, Yeldell's constitutional rights were not violated, and his

First Assignment of Error is without arguable merit.

8) Yeldell's Second Assignment of Error states:

The Judgement [sic] Entered by the Trial Court and Indictment

Returned by the Montgomery County Grand Jury Are Null and Void for

Lack of Subject Matter Jurisdiction and for Failure to Charge as Defined

By the State Statute, R.C. 2305.01, When it Failed to Allege an Offense.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

{¶ 9} Under this assignment of error, Yeldell provides no explanation or discussion

supporting his argument. We find nothing in the record suggesting that the trial court

lacked subject matter jurisdiction. Furthermore, the statute cited by Yeldell, R.C. 2305.01,

concerns jurisdiction in civil matters, and therefore has no bearing on this case. For this

reason, Yeldell's Second Assignment of Error is without arguable merit.

{¶10) Yelde(!'s Third Assignment of Error states:

Counsel Was Ineffective in Allowing[,] Without Objection{,] [the

Jury] to Witness Testimony of Clearly Three (3) Different Testimony's [sic]

By State Witnesses.

(111) Under this assignment of error, Yeldell argues that defense counsel was

ineffective by failing to object to testimony of the State's trial witnesses, which according

to Yeldell, yielded "three (3) different testimony's [sic]." Yeldell provides no further

explanation or discussion in sup ort of this arciument, and he does not indicate which

witnesses or what testimonv he is referrin to. Tne basis for Yeldell's Chird Assignment

of Error is, therefore, unclear.

(112) "A claim of ineffective assistance of trial counsel requires both a showing that

trial counsel's representation fell below an objective standard of reasonableness, and that

the defendant was prejudiced as a result." State v. Clark, 2d Dist. Champaign No. 2011-

CA-32, 2013-Ohio-300, ¶ 38, citing Strickland v. Washington, 466 U.S. 668, 688, 692, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). We have reviewed the entire record and have found

no facts indicating that defense counsel's conduct fell below an objective standard of

reasonableness. The State is permitted to present witness testimony to support its claims

against Yeldell, and all of the State's witnesses were disclosed as required by Crim.R. 16.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

Accordingly, defense counsel had no reason to object to allowing the jury to hear the

witness testimony presented by the State. Yeldell's Third Assignment of Error is without

arguable merit.

{¶ 13} Pursuant to our responsibilities under Anders, we have conducted an

independent review of the record. Based on that review, we agree with appellate counsel's

determination that there are no non-frivolous issues for appeal related to Yeldell's criminaa

conviction and sentence.

(114) The judgment of the trial court is affirmed.

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Mathias H. HeckCarley J. IngramArrie D. YeldellThomas SchiffHon. Gregory F. Singer

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO

Rlaintiff-App,eileeAppellate Case Nos. 25198/25209

Trial Court Case No. 2012-CR-57V.

ARRIE D. YELDELL

Defendant-Appellant

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 1 oth day

of n^'-1 v , 2013, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Montgomery

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

^

MIKE FAIN, Presiding Judge

THE COllR"]' OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

3V11CHA L T. HALL, Judge

FFRr=Y M. VVELBAUNI, Judge

Copies mailed to:

Mathias H. Heck, Jr.Carley J. IngrarreMontgomery County Prosecutor's OfficeP.O. Box 972Dayton, OH 45422

Arrie D. YeldellInmate #659-018Lebanon Correctional lnstitutionP.O. Box 56Lebanon, OH 45036

Thomas Schiff500 Lincoln Park Blvd., Suite 216Kettering, OH 45429-6412

Hon. Gregory F. SingerMontgomery County Common Pleas Court41 N, Perry StreetDayton, OH 45422

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DIS"I'RICT