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State v. Linde

Court of Appeals of Ohio, Ninth District

August 14, 2013

STATE OF OHIO Appellee
v.
ROBERT LINDE Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 06 1461 (A)

LEONARD J. BREIDING, II, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

(¶1} Defendant-Appellant, Robert Linde, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

(¶2} A grand jury indicted Linde on counts of aggravated robbery, aggravated burglary, and possession of criminal tools after he and another man, Angelo Santamaria, broke into the home of George Nemeth and later assaulted him. Linde pleaded guilty to aggravated robbery and aggravated burglary. In exchange for his guilty plea, the State dismissed the charge for possession of criminal tools. The court then sentenced Linde on both his aggravated robbery and aggravated burglary counts for a combined total of 15 years in prison. Linde appealed from his convictions.

(¶3} On appeal, this Court reversed Linde's convictions because the trial court had not applied State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, in the first instance to determine whether Linde's convictions were allied offenses of similar import. State v. Linde, 9th Dist. Summit No. 26209, 2012-Ohio-2885, 4. The court conducted a hearing upon remand and determined that Linde's convictions should not merge under Johnson. The court then ordered a pre-sentence investigation report ("PSI") and set the matter for a sentencing hearing. Subsequently, the court ordered Linde's sentences to run consecutively and sentenced him to a total of 15 years in prison.

(¶4} Linde now appeals and raises two assignments of error for our review.

II

(¶5} Linde argues on appeal that the trial court erred when it imposed sentences on allied offenses and when it imposed consecutive sentences. These issues are fact-intensive and cannot be resolved without a complete understanding of all material and relevant facts. Unfortunately, Linde's brief is devoid of any facts about the offenses.

(¶6} It is appellate counsel's duty to preface legal arguments with a candid presentation of all relevant facts, both good and bad. The clear command of Local Rule 7(B)(6) is that the statement of the facts must be relevant to the assignments of error and "should always be completely accurate, contain reference to all material facts, both favorable and unfavorable, and * * * be supported by references to the record * * *." To avoid any confusion about the importance of the facts to this Court, an appendix to the Local Rules further explains what the Court expects to see in the statement of the facts. This brief fails to meet these expectations.

(¶7} Further, Linde's brief lacks reference to specific pages or paragraphs. Local Rule 7(G) requires citations to include case citations with the particular page or paragraph numbers relevant to the point of law for which the case is cited. Linde's brief includes citations to several cases, including quotes and block quotes, but there is not a single pinpoint cite in the entire brief

(¶8} Local Rule 7(B)(7) requires a brief to include an argument and law. This section of the brief should include the appellant's argument and supporting reasons with citations to authorities. Linde's brief includes citations to authorities, but lacks a cogent argument. For example, the "argument" for the first assignment of error includes only two paragraphs and ignores the standard of review. The argument section contains conclusory statements that are not supported by any facts about the offenses or analysis that would support them.

(¶9} After having read the brief, we know only that Linde was convicted of aggravated robbery and aggravated burglary. We do not know anything else about the circumstances of the two offenses and, therefore, it is impossible to evaluate whether the trial court erred by reading the brief Although the brief concludes that Linde's intent "was to commit a robbery, with the burglary being merely incidental to the robbery[, ]" the brief presents no facts to support this conclusion. The reader is at a complete loss to understand anything about the facts or circumstances of the offenses. This is particularly problematic when the facts are precisely what this Court must consider when reviewing the trial court's decision.

(¶10} Notwithstanding the problems with the brief highlighted above, we have reviewed the record and considered the claims raised by Linde.

Assignment of Error Number One

THE TRIAL COURT ERRED IN DETERMINING THAT THE OFFENSES OF AGGRAVATED ROBBERY AND AGGRAVATED BURGLARY WERE NOT ...

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