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State v. Russell

Court of Appeals of Ohio, Tenth District

May 18, 2017

State of Ohio, Plaintiff-Appellee,
v.
Mark R. Russell, Defendant-Appellant.

         Appeal from the Franklin County Court of Common Pleas No. 01CR-6462

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

          Mark R. Russell, pro se.

          DECISION

          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Mark R. Russell, from a judgment of the Franklin County Court of Common Pleas denying his successive petition for post-conviction relief.

         {¶ 2} On November 1, 2001, appellant was indicted on one count of murder with a firearm specification. The indictment arose out of the shooting death of Kenneth Sartin on August 11, 2000. A jury subsequently found appellant guilty of the murder charge and the trial court sentenced him to a term of 15 years to life, with an additional term of 3 years incarceration for the firearm specification.

         {¶ 3} Appellant appealed his conviction asserting that he received ineffective assistance of counsel and that the trial court erred in refusing to allow into evidence tape- recorded interviews between appellant and police detectives. In State v. Russell, 10th Dist. No. 03AP-666, 2004-Ohio-2501 ("Russell I "), this court overruled appellant's assignments of error and affirmed the judgment of the trial court.

         {¶ 4} On July 3, 2003, appellant filed a motion for new trial citing the following three grounds: "(1) improper impeachment of appellant with his prior inconsistent statements; (2) denial of his request to play audio and video tapes of his previous statements; and (3) exclusion of evidence." State v. Russell, 10th Dist. No. 04AP-1149, 2005-Ohio-4063, ¶ 3 ("Russell II"). The trial court denied appellant's motion for new trial on the grounds of res judicata, holding that appellant's arguments were raised or could have been raised in his direct appeal. Appellant appealed the trial court's decision, and this court affirmed the judgment of the trial court in Russell II.

         {¶ 5} On November 2, 2004, appellant filed a petition for post-conviction relief, pursuant to R.C. 2953.21, asserting the following grounds for relief: "(1) prosecutorial misconduct; (2) trial counsel coercion; (3) ineffective assistance of trial counsel; and (4) improper admission of evidence." State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, ¶ 3 ("Russell III"). By decision and entry filed March 22, 2005, the trial court denied appellant's petition without a hearing. In Russell III, this court affirmed the judgment of the trial court finding the petition was untimely.

         {¶ 6} On January 20, 2005, appellant filed a motion to produce grand jury testimony. On November 21, 2005, the trial court denied the motion on the basis that it failed to set forth a particularized need for the disclosure. Appellant appealed that decision, and this court affirmed the judgment of the trial court in State v. Russell, 10th Dist. No. 05AP-1325, 2006-Ohio-5945 ("Russell IV ").

         {¶ 7} On December 12, 2005, appellant filed a second motion for new trial asserting the state had failed to disclose the identity and statement of an individual to whom appellant had allegedly confessed to the crime. The trial court denied appellant's motion for new trial, concluding that his claims were barred by the doctrine of res judicata. Following an appeal, this court affirmed the judgment of the trial court in State v. Russell, 10th Dist. No. 06AP-498, 2006-Ohio-6221 ("Russell V).

         {¶ 8} On July 23, 2010, appellant filed a motion for leave to file a delayed motion for new trial, asserting newly discovered evidence. The trial court denied the motion by decision and entry filed January 14, 2011. Appellant appealed that decision, and this court affirmed the judgment of the trial court in State v. Russell, 10th Dist. No. 11AP-108, 2011-Ohio-4519 ("Russell VI ").

         {¶ 9} On November 9, 2011, appellant filed a second petition for post-conviction relief. In response, the state filed a motion to dismiss the petition. By decision and entry filed February 13, 2012, the trial court granted the state's motion to dismiss. This court subsequently affirmed the judgment of the trial court. S ...


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