IN THE SUPREME COURT OF OHIO

STATE OF OHIO

APPELLEE

VS

FREDRICK A. COBB

APPELLANTPRO SE

SUPREME COURO 6 ® 2374

* ON APPEAL FROM RICHLAND COUNTY

* COURT OF APPEALS

* 5th Appellant district.* CASEi 97 CR 720H* Appellant# 06 CA 15*

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT, FREDRICR A. COBB

FREDRICK A. COBB #357-266

PO BOX 4501

ALLEN CORRECTIONAL INST.

TOLEDO, OHIO 45802

JAMES J. MAYER, JR

PROSECUTOR ATTORNEY

38 SOUTH PARK STREET

MANSFIELD, OHIO 44902

Ll':. NED

DEC 18 2006

MARCIA J iEAIUEL, CLERKSUPREME COUHT OF OHIC

TABLE OF CON',TENTS

EXPLANATION OF WHY THIS CASE IS A FELONY CASE OF PUBLICOR GREAT INTEREST AND INVOLVES A SUBSTANTIAL COSTITTUTIONA.LQUESTION.

STATEMENT OF CASE Statement of the Facts

PROPOSITON OF LAW I: DEFENDANTS CONSTITUTIONAL RIGHTS WERE

VIOLATED BASEDl3Xe"1TRIAL COUNSELS FAILURE TO PREPARE FOR,

INVESTIGATE, AND LITIGATE DEFENDANTS TRIAL AND SENTENCING.

BY DELIBERATELY FAILING TO RAISE THE OBVIOUS ERRORS,

VIOLATED THE DEFENDANTS 6th AND 14th AMENDMENT RIGHTS,

WHTCH SEVERELY HARMED AND PREJUDICED THE DEFENDANT . ART I

-y510 OHIO CONSTITUTION.

PROPOSITION OF LAW II: IT IS UNCONSTITUTIONAL FOR THE DE-

FENDANT TO HAVE A FAIR TRIAL WHEN THE TRIAL COUNSEL WAS

INAFFECTIVE FOR NOT LAYING THE PROPER FOUNDATIONS TO HAVE

ALL THE DEFENDANTS MEDICAL RECORDS AND DOCTORS REPORTS

ADMITTED AT TRIAL AND DURING SENTENCING. WHEN COUNSEL FAIL

TO ASSIGN ERROR AND OR RAISE ISSUES WHICH WOULD ENTITLE HIM

OR HER TO RELEIF, THIS IS A VIOLATION OF THE SIXTH ANDFOURTEENTH AMENDMENT USCA AND ART I 10 OHIO CONST.

CONC LTJS ION

CERTIFICATE OF SERVICE

AFFIDAVIT OF INDIGENCY

1

1,2

5

6

6

8

APPENDIX

JUDGEMENT ENTRIES OF THE COURT OF APPEALS AND MOTION

OF RECONSIDERATION.

EXLANNATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL

INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

The Sixth and Fourteenth Amendments guarantee a person accused of a cr-ime the right to the aid of a lawwyer in preparing and presenting his defen-se. It has long been settled that "the right to counsel is the right to eff-ective assistance of counsel. Mc Mann v. Richardson, 397 US 754 (1970). Andnot to be deprived of that right for failure to object to evidence that wasadmitted erroneonsly at trial, failure to raise claims necessary to mitigateappellants culpability and intent at trial and sentence and for not layingthe proper foundation to have all of appellants medicial records and doctorsadmitted. The Sixth Amendment guarantee a defendant a right to a fair trialand if the appellant was convicted without the effective assistance of coun-sel required under the Sixth Amendment as interpreted by the courts he is en-titled to relief. THis court should grant jurisdicticn., vacate sentence, and

order a new trial.

STATEMENT OF THE CASE

Mr. Cobb was indicted on one count of AGGRIVATED MURDER, onecount of AGGRIVATED ROBBERY, with a firearm specification.

After a jury trial, Mr. Cobb was found guilty of all of the

charges, with the firearm specification. The trial judge sen-

tenced Mr. Cobb to 23 years too life with elgibility of paroleall ran concurrent.

Mr. cobb filed a timely appeal when the firearm specificatiowas vacated but the Aggrivated murder and robbery chargesremained the same on Dec 28, 1998.

Now mr. Cobb comes again to file a Post Conviction relief thatwas denied by the 5th Dstrict Appellate court on

Now Mr. Cobb Appeals to the honorable Supreme Court

STATEMENT OF THE FACTS

On November 21, 1997, Shawn Kilgore appeared in the Richland County Common Pleas

Court, and pled guilty to two counts of Drug Abuse and one count of illegal Possession

of Food Stamps. He was sentenced to one year incarceration. The court stayed execution

of the sentence until December 2, 1997, to give Kilgore an opportunity to get his

affairs in order over the Thanksgiving holiday.

Shawn Kilgore'3 plans after his court appearance included selling $3,500 worth of

crack cocaine, before he reported to prison. Kilgore was a known drug dealer in

Mansfield. In order to liquidate his crack cocaine supply before his incarceration,

he recruited Tacuma Fuller, a known drug dealer from Detroit, and appellant, a Detroit

drug dealer and enforcer.

On Sunday, November 23, 1997, Tacuma Fuller was at the residence of LaKesha

Williams in Mansfield. He retrieved $4,000 in cash from her mattress. Fuller gave the

money to Kilgore for safe keeping. He placed $2,000 cash in each of his shoes. While

Fuller was counting the stash, LaKesha Williams noticed appellant was carrying a black

.25 caliber handgun.

In the afternoon of November 23, 1997, Fuller gave Kilgore money to rent a room

at the Comfort Inn in Mansfield. The room was registered in KIlgore's name, as Fuller

was hiding from the police. That evening, Kilgore and Fuller cut up pieces of crack

cocaine and packaged it, preparing it for sale.

Four people spent the night in the hotel room: Kilgore, Fuller, appellant, and

Deanna Friend. At approximately 8:00 a.m. the next morning, Fuller left the room. at

(:05 a.m., appellant received a telephone call at the room. When he finished the

conversation, he ordered Deanna Friend to leave the room. While she was getting dressed,

Friend noticed Kilgore counting a large amount of crack cocaine. She also noticed that

he had a sizeable ball of money at the table. There was a .25 caliber handgun on a

table between the two beds in the room. She left the room at 9:25 a.m. to wait in the

hotel lobby for a cab. Appellant was still in the room. Appellant escorted Friend to

the hotel lobby.

Appellant returned to the room for five minutes. He again returned to the lobby.

kissed Friend, and returned to the room for ten to fifteen minutes. When he came back

to the lobby, he zipped up his jacket, and told Friend he was walking across the street

for a pack of cigarettes. Friend decided to go back to the room to call a cab. A "do

not disturb" sign was attached to the door knob. She knocked on the door, but no one

answered. She hollered for Kilgore to let her in the room, but there was no response.

Finally, a cab arrived at the hotel, and Friend returned to her residence.

Fegore leaving the hotel room, appellant called Robert Myers, a drug addict, for

a ride. Appellant told Myers he had to "get the hell out of here." Appellant was

picked up by a cab at a McDonald's restaurant, and dropped off at Myers's house. Myers

was interested in purchasing $50 worth of crack cocaine from the appellant. Appellant

produced a large sandwich baggie with a significant amount of crack in it. He also pulled

a large ball of money from his pocket. From past dealings with Appellant, Myers knew

that appellant was not known to possess large quantities of drugs or money. Appellant

showed Myers a white pillow case with a bullet hole in it. There was a black smudge

around the hole.

Meanwhile, at the Comfort Inn, a housekeeper observed a motionless, dressed, black

male lying face up on a bed inside the room registered to Kilgore. She returned later

to find the man in the same position. The discovery was reported to 9-1-1, and the

police and a rescue squad were dispatched to the Comfort Inn.

The crime scene revealed that Kilgore was shot once in the head. One of the two

pillows in the room had a bullet hole through it. A pillow case was missing. The victim

had one shoe on and one shoe off, and a .25 caliber semi-automatic handgun was found

near the victim. Police found $1.09 in the room, but no other cash or illegal drugs.

Upon further investigation, police concluded that Shawn Kilgore was placed on the bed

after he was shot.

Later that evening, appellant contacted a friend for a ride to the Knight's Inn

in Mansfield. The friend signed the hotel registxation on behalf of the appellant, as

LV

he was instructed to do. Appellant was later arrested for the murder of Shawn

Kilgore.

Appellant admitted that he shot Shawn Kilgore, but claimed the shooting was an

accident. He claimed that he was playing with the handgun, which he had placed

inside a pillow, when he accidentally shot Shawn Kilgore in the head.

Appellant was indicted by the Richland County Grand Jury on one count of

Aggravated Murder and one count of Aggravated Robbery, each carrying a firearm

specification. The case proceeded to jury trial. Appellant was convicted as charged.

He was sentenced to twenty years incarceration to life for Aggravated Murder, and

ten years incarceration for the Aggravated Robbery, to run concurrently. He was

sentenced to three years incarceration on the gun specifications.

Cy>

Proposition of Law I: Defendant's Constituional rights wereviolated based upon trial counsel's failure to prepare forminvestigate, and litigate the deendant's trial and sentencing.by deliberatly failing to raise the obvious errors, violated thedefendants 6th andl4th amendment rights, which severely harmedand prejudiced the defendant. Art IJ^ 10 Ohio Costitution.

It is the contention of the Petitioner that the trial counsewas ineffective for the reasons set forth herein, based upon triAlcounsel's failure to prepare for, investigate, and litigate theAppellant's trial and sentencing. A clear violation of AppellantSixth and Fourteenth Amendment rights occured and trial counselTdeliberate failure to raise the obvious errors and theand the prosecutorial misconduct that occured before the trialcourt severely harmed and prejudiced the Petitioner.

Because of ineffective assistance of counsel in failing toraise the claims cecessary to mitigate Appellants culpability anand intent at trial and at sentencing, Appellant's right to dueprocess was violated. Appellant, upon receiving and reviewing acopy of the discovery for Case No. 97-CR-720H, found numeroussevere constitutional violati0ons of his rights which wereignored by trial counsel, for which Appellant wishes to bringto the attention of this Honorable Court.

These errors were neither identified nor raised by trialcounsel and are evident and will appear on the face of therecord. Trial counsel, having failed to raise all of themeritorious claims which were the strongest claims, theresults of which denied Appellant the Sixth Amendment andFourteenth Amendment rights to effective assistance ofcounsel and due process.

wherefor, this Honourable Court should address the issuesraised and grant Appellant relief. Trial counsel's ineffectiveperformance for not raising the obvious errors at trial violatedfederal and state constitutional laws and indicate that therewere serious issues of the Appellant's right to due process oflaw. Under the prevaziling norms, this conduct cannot beconsidered competent assistance at trial or on appeal by lawyerswith ordinary skill and training in the criminal law. UnitedStates v Beasley, 491 F2d 687, (6th Cir.1984)., and if evaluatedunder the trial and appellate strategy and tactics standardimputed to counsel's control, it must be deemed unsound. C.F.Martin v Rose, 744 F2d 1245 (6th Cir. 1984).

The following errors were omission by trial counsel in thatthey were:

( `i )

1) Defective performance on the part of counsel that did notcompare with what a reasonable professional attorney would have

done in similar circumstances, and

2) Counsel's errors, had they not occured, Appellant may haveprevailed in obtaining acquittal of these charges, and or a newtrial, and Appellant may have been found not guilty by the"Triers of Fact". Strickland v Washington, (1984) U.S. 668:Evitts v Lucey, (1985) 469 U.S. 387.

Proposition of Law II: It is unconstitional for the defendant to

have a fair trial when the trial counsel was inaffective for not

laying the proper foundations to have all the defendants medical

records and doctor reports admitted at trial and during sentencin

When counsel fails to assign error and or raise Issues which woul^

entitle him/her to relief, this is ahfiolation of the 6th and 14th

amendment USCA and Art I^510 Oiho Const.

Appellant raises the claim that trial counsel was ineffectivefor not laying the proper foundation to have all of Appellantsmedical records and doctor reports admitted. Trial Counsel alsofailed to object to evidence that was admitted arroneously attrial. Never did trial counsel raise the issue of not havingcrucial, material evidence admitted into evidence. Under theStrickland standard, the Appellant was denied the effective assistance of counsel, because of counsels errors, thus denyinghim his constitutional right of due process.

CONCLUSION

This Court should accept jurisdiction so that the importantissues herein can be fully friefed and argued on the merits.

RESPECTFULLY SUBMITTED,

CERTIFICATE OF SERVICE

A COPY OF THIS FOREGOING MIMORANDUM IN SUUPPORT OF JURISDICTIONWAS MAILED TO THE RICHLAND COUNTY PROSECUTORS OFFICE ATt//83 SOUTH PARK STREET , MANSFIELD , OHI044902 on this

t--`DAY''OF?^ DECEM9$R 2006.

COURT OF APPEALSRICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:Hon. John W. Wise, P. J.

Plaintiff-Appellee Hon. W. Scott Gwin, J.Hon. John F. Boggins, J.

-vs-

FREDERICK A. COBB

Defendant-Appellarit

Case No. 06 CA 15

(UPiNION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of CommonPleas, Case No. 97 CR 720H

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

Affirmed

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. FREDERICK A. COBBPROSECUTOR ATTORNEY #357-266KIRSTEN L. PSCHOLKA-GARTNER TOLEDO CORRECTIONAL INSTUTITIONASSISTANT PROSECUTOR 2001 East Central Avenue38 South Park Street Toledo, Ohio 43808-80033Mansfield, Ohio 44902

Richland County, Case No. 06 CA 15 2

Wise, P. J.

{¶1} Appellant Frederick A. Cobb appeals from the denial of his petition for

post-conviction relief in the Richland County Court of Common Pleas. The relevant

facts leading to this appeal are as follows.

{¶2} On November 23, 1997, Shawn Kilgore was found fatally shot in the head

in a motel room in Mansfield, Ohio. Appellant was thereafter indicted for Kilgore's

murder. On December 8, 1997, appellant entered a plea of not guilty by reason of

insanity. Ori May 1, 1998, following a jury trial, appellant was convicted of one count of

aggravated murder and one count of aggravated robbery, each carrying a firearm

specification. Appellant was sentenced to twenty years to life in prison for aggravated

murder, and ten years for the aggravated robbery, to run concurrently. He was also

sentenced to three years in prison on the gun specifications; however, this portion of the

sentence was vacated on appeal. See State v. Cobb (Dec. 29, 1998), Richland

App.No. 98-CA-37.

{13} On November 5, 2005, more than seven years following his conviction and

sentence, appellant filed a petition for postconviction relief. The State filed a responsive

motion on November 18, 2005. On January 5, 2006, the trial court denied appellant's

petition without conducting an evidentiary hearing.

{14} Appellant filed a pro se notice of appeal on February 14, 2006.1 He herein

raises the following two identically-worded Assignments of Error:

1 We note the notice of appeal was thus filed more than thirty days after the judgmententry presently appealed. However, the postconviction relief process is a civil collateralattack on a criminal judgment. See State v. Wilhelm, Knox App.No. 05-CA-31, 2006-Ohio-2450, ¶ 10, citing State v. Calhoun (1999), 86 Ohio St.3d 279, 281. Appeals fromcourt action on postconviction petitions are governed by App.R. 4(A), which requires an

Richland County, Case No. 06 CA 15 3

{15} "I. INEFFECTIVE ASSISTANCE OF COUNSEL OF CONSTITUTIONAL

DEMENSIONS (SIC).

{¶6} "II. INEFFECTIVE ASSISTANCE OF COUNSEL OF CONSTITUTIONAL

DIMENSIONS."

I., II.

{¶7} In his First and Second Assignments of Error, appellant appears to

challenge the trial court's denial of his postconviction relief petition without an

evidentiary hearing.

{¶8} Our initial task is to address the facial untimeliness of appellant's petition

in the trial court. The pertinent jurisdictional time requirements for a postconviction

petition are set forth in R.C. 2953.21(A)(2) as follows: "A petition under division (A)(1)

of this section shall be filed no later than one hundred eighty days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the

judgment of conviction or adjudication ***." In order for a court to recognize an

untimely postconviction petition pursuant to R.C. 2953.23(A)(1), both of the following

requirements must apply:

{19} "(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely to present the

claim for relief, or, subsequent to the period prescribed in division (A)(2) of section

appeal, in a civil case, to be filed within thirty days of the later of entry of the judgmententry appealed, or, service of the notice of judgment and its entry if service is not madeon the party within the three day period in Rule 58(B) of the Ohio Rules of CivilProcedure. State v. Woolfolk (Aug. 10, 2000), Cuyahoga App. No. 76671. The docketin the case sub judice does not clearly indicate when service of the judgment entry ofJanuary 5, 2006 was served on appellant; hence, we find we have jurisdiction underApp.R. 4(A) in this matter.

Richland County, Case No. 06 CA 15 4

2953.21 of the Revised Code or to the filing of an earlier petition, the United States

Supreme Court recognized a new federal or state right that applies retroactively to

persons in the petitioner's situation, and the petition asserts a claim based on that right.

{¶10} "(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted or, if the claim challenges a

sentence of death that, but for constitutional error at the sentencing hearing, no

reasonable factfinder would have found the petitioner eligible for the death sentence."

{¶11} In the case sub judice, appellant focuses on his claim that his trial counsel

failed to properly present evidence on the issue of appellant's mental capacity at the

time of Kilgore's murder. Appellant asserts that he "has diligently tried to obtain all the

medical records and doctor reports and is still in the process of trying to 'track down' Dr.

Greenspan, who did not submit a crucial report at trial because she was too busy and

did not have the time, an act that further prejudiced the appellant in his quest for having

the evidence necessary to help in the mitigation of his sentence because Appellant was

under 'Extreme Emotional Disturbance' during the months preceding the fateful day of

the accidental shooting of Shawn Kilgore." Appellant's Brief at 6.

{¶12} An appellate court's standard of review is de novo when reviewing a trial

court's dismissal or denial of a petition for post-conviction relief without a hearing. State

v. Volgares, Lawrence App. No. 05CA28, 2006-Ohio-3788, ¶ 8, citing State v. Gibson,

Washington App. No. 05CA20, 2005-Ohio-5353. Having reviewed appellant's petition

and his present brief, we find appellant fails to show he was "unavoidably prevented"

Richland County, Case No. 06 CA 15 5

from discovery of his purported medical records, the specifics of which he does not^

presently reveal.

{¶13} Accordingly, we hold the court did not err in denying said petition without

conducting an evidentiary hearing. Cf. State v. Hurst (Jan. 10, 2000), Stark

App. No.1999CA00171.

{114} Appellant's First and Second Assignments of Error are therefore

overruled.

{115} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.

By: Wise, P. J.

Gwin, J., and

Boggins, J., concur.

JWW/d 815

fiIGHWVD CQUN'y p110Lc()

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIOFI

FIFTH APPELLATE DISTRICT2006N5V_9 A;llo,50

L lm

STATE OF OHIO

Plaintiff-Appellee

-vs-

FREDERIC:KA. CUBB

Defendant-Appellant

JUDGMENT ENTRY

CASE NO. 06 CA 15

This matter comes before the Court pursuant to Appellant Frederick A. Cobb's

two motions (filed, respectively, September 22 and 28, 2006) to reconsider our decision

of September 11, 2006, in which we affirmed the trial court's denial of his petition for

postconviction relief, which he had filed more than seven years after his 1998 conviction

for aggravated murder. In said decision, having therein reviewed said petition and his

appellate brief, we concluded, inter alia, "appellant fails to show he was 'unavoidably

prevented' from discovery of his purported medical records, the specifics of which he

does not presently reveal." Id. at 4-5.

Appellant's motion of September 22, 2006, includes several copied pages of

purported medical records, most of them in handwritten chart format, which he presents

to us in support of his claim of "Extreme Emotional Disturbance" at the time of his crime.

Upon review, we find no basis for further reconsideration of our decision of

September 11, 2006. The motions to reconsider are DENIED.

IT IS SO ORDERED.

^ CbSec'^u:-^as'