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State v. Zeune

Court of Appeals of Ohio, Tenth District

September 24, 2013

State of Ohio, Plaintiff-Appellee,
Rodney D. Zeune, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 09CR-4919)

Ronald J. O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

Rodney D. Zeune, pro se.



(¶ 1} Defendant-appellant, Rodney D. Zeune, appeals from a judgment entered by the Franklin County Court of Common Pleas denying his petition for postconviction relief. Because we find that the trial court committed no error, we affirm the judgment.


(¶ 2} On August 18, 2009, appellant was indicted on one count of trafficking in cocaine, which was at that time a third-degree felony. Appellant entered a not guilty plea, and the case proceeded to a jury trial.

(¶ 3} At trial, Ayman Musleh testified that he and appellant had been friends for several years, they often used cocaine together, and Musleh sometimes bought cocaine from appellant. In 2009, Musleh became a confidential informant for the Mt. Vernon Police Department after he was arrested on charges that included a felony cocaine possession charge. In exchange for the dismissal of these charges, Musleh agreed to purchase cocaine from appellant, who was being investigated by the Drug Enforcement Agency. On March 5, 2009, Musleh arranged to buy an ounce of cocaine from appellant. After appellant changed the meeting place a couple times, appellant rode in Musleh's car and directed him to drive to an apartment complex near the Columbus airport. While in route, appellant contacted the drug supplier, Rayshon Alexander, to tell him they were on their way. After they arrived at the apartment complex, Musleh gave appellant the money to buy the cocaine, and appellant gave the money to Alexander. Alexander then gave the cocaine to appellant, who handed it to Musleh. On the way back to appellant's vehicle, appellant snorted some of the cocaine. Musleh's car had been wired by police investigators so they could listen to what transpired.

(¶ 4} During the trial, it was disclosed that police had certain tape recordings of telephone calls from Musleh to appellant, including those in which they set up the drug deal, which were not turned over to appellant and his trial counsel during discovery. Appellant did not testify at the trial, his trial counsel did not request a jury instruction on the defense of entrapment, and the trial court did not provide such an instruction. See State v. Zeune, 10th Dist. No. 10AP-1102, 2011-Ohio-5170, ¶ 16-17 ("Zeune I ").

(¶ 5} Following trial, the jury found appellant guilty of complicity in trafficking in cocaine. On October 22, 2010, the trial court sentenced appellant to four years in prison, with the sentence to be served consecutively to his sentence in a case in a different county. The trial court found that the prison term was not mandatory.

(¶ 6} On direct appeal from his judgment of conviction and sentence, this court sustained appellant's assignment of error contesting the lawfulness of the sentence "[b]ecause it is unclear what sentence the trial court might have imposed had it realized that appellant was not eligible for judicial release, and because appellant's prison term was mandatory." Id. at ¶ 30. At the same time, however, we rejected appellant's remaining assignments of error, including those in which he contended that the trial court should have instructed the jury on the defense of entrapment and that he received ineffective assistance of his trial counsel, including by his counsel not requesting an entrapment instruction. Appellant was represented by different counsel in his direct appeal. Because the court sustained appellant's assignment regarding the sentencing error, we reversed that limited portion of the judgment and remanded the case to the trial court for resentencing.

(¶ 7} On February 6, 2012, the trial court resentenced appellant to the same four-year prison term, but this time found it to be mandatory pursuant to R.C. 2929.13(F). On appeal, this court affirmed. State v. Zeune, 10th Dist. No. 12AP-198, 2012-Ohio-5476 (" Zeune II ").

(¶ 8} On July 5, 2011, while his appeal in Zeune I was pending, appellant, through counsel, filed a petition for postconviction relief In his petition, appellant raised two grounds. Appellant attached his affidavit to the petition.

(¶ 9} First, appellant claimed that his conviction and sentence are void or voidable because appellee withheld from him and his trial counsel exculpatory evidence- recorded telephone conversations between appellant and Musleh on March 5, 2009 and several days preceding that date. Appellant stated that Musleh repeatedly promised he would repay appellant $4, 500 toward a $6, 000 debt owed to him for equipment sold, that was the only reason appellant agreed to help Musleh buy cocaine, and that "[h]ad the audio recordings of telephone conversations between Mr. Musleh and [appellant] been demanded by [his trial counsel], or had they been provided during discovery, ...

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