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State v. Stull

Court of Appeals of Ohio, Ninth District

June 19, 2013



KIRK A. MIGDAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.


CARLA MOORE, Presiding Judge.

{¶1} Defendant, Rachel A. Stull, appeals from the judgment of the Summit County Court of Common Pleas. This Court dismisses the appeal for lack of a final appealable order.


{¶2} In Ms. Stull's direct appeal, this Court set forth the underlying factual and procedural history of this case as follows:

[Ms.] Stull purchased property at 721 Victoria Avenue in 2006. In October 2010, [Ms.] Stull was residing there with her ten-year[-]old daughter and on-again/off-again boyfriend, Solomon Stallings. In the early morning hours of October 19, 2010, the police executed a search warrant on the Victoria Avenue home in search of illegal drugs. After announcing their presence, SWAT officers forcibly entered the home. [Ms.] Stull and her two pit-bull dogs were at the top of the stairs and delayed officers from accessing the second floor. While the officers were on the stairs trying to get by [Ms.] Stull and the dogs, [Mr.] Stallings was observed moving frantically about the second-floor master bedroom, creating a security concern for the officers. Officers located on the outside of the house watched as [Mr.] Stallings broke the master bedroom window and tossed out a bag containing heroin, cocaine, and marijuana. Ultimately, SWAT officers were able to secure the second floor.
During a search of the master bedroom, the police found two digital scales, over $1, 200 in cash, and [Mr.] Stallings' cell phone, which contained cocaine in an envelope made from a used lottery ticket. In the dining room, the police found small plastic bags and a stack of used lottery tickets. The police also recovered the bag of drugs that had been thrown from the master bedroom window.
[Mr.] Stallings and [Ms.] Stull were both charged with possession of the bag of drugs thrown from the window, possession of drug paraphernalia, and child endangering. [Mr.] Stallings was additionally charged with possession of the cocaine found in his cell phone. Upon motion, the cases were severed. After a jury trial, [Ms.] Stull was convicted of (1) possession of heroin in violation of R.C. 2925.11(A)/(C)(6), (2) possession of cocaine in violation of R.C. 2925.11(A)/(C)(4), (3) possession of marijuana in violation of R.C. 2925.11(A)/(C)(3), (4) possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), and (5) child endangering in violation of R.C. 2919.22(A). The court sentenced [Ms.] Stull to 60 days in jail and three years of community control.

State v. Stull (Stull I), 9th Dist. No. 26146, 2012-Ohio-3444, ¶ 2-4. Ms. Stull appealed from her conviction, arguing in part that her trial attorneys were "ineffective for failing to object to the introduction of evidence that [Mr.] Stallings, [Ms.] Stull's co-defendant, had a history of drug offenses. [Ms.] Stull further argue[d] that her attorneys were ineffective for referencing [Mr.] Stallings' prior criminal history during opening statements and direct examination." Id. at ¶ 5. We overruled Ms. Stull's assignments of error and affirmed her convictions. Id. at ¶ 19.

{¶3} On July 20, 2012, Ms. Stull filed a petition in the trial court to vacate or set aside her conviction, in which she argued that her trial attorneys were ineffective and that she was denied equal protection under the law. Ms. Stull based her ineffective assistance of counsel claims on three purported errors: (1) trial counsel's failure to challenge the search warrant of Ms. Stull's house, (2) trial counsel's failure to present receipts at trial which purportedly evidenced a legitimate purpose for cash recovered from underneath a bed in the home, and (3) trial counsel's failure to call Mr. Stallings to testify. In support of these arguments, Ms. Stull attached the following documentation to her petition: (1) the affidavit submitted in support of the search warrant, (2) affidavits from Mr. Stallings, Mr. Stallings' brother, and herself, (3) a purported flier and invoices for a tanning conference in Nashville, and (4) a letter from one of Ms. Stull's trial attorneys.

{¶4} The trial court denied Ms. Stull's motion in a journal entry dated August 6, 2012. Ms. Stull filed a notice of appeal from this entry, and she now presents two assignments of error for our review. We have consolidated the ...

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