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State v. Ojile

Court of Appeals of Ohio, First District, Hamilton

December 29, 2017

STATE OF OHIO, Respondent-Appellee,
v.
UGBE OJILE, Petitioner-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NOS. B-1007149-C B-1006797-C

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Respondent-Appellee,

          The Olawale Law Firm, LLC, and Emmanuel Olawale, for Petitioner-Appellant.

          OPINION

          Zayas, Presiding Judge.

         {¶1} Petitioner-appellant Ugbe Ojile appeals the denial of his petitions pursuant to R.C. 2953.21 et seq. for postconviction relief. We hold that Ojile was entitled to a hearing on the first ground for relief advanced in the petition filed in the case numbered B-1006797, challenging his trial counsel's effectiveness in establishing his alibi for the aggravated robbery charged in count three of the indictment in that case. For that reason, we reverse in part the judgment entered in that case denying his petition.

         {¶2} In 2011, Ojile was convicted on multiple counts of aggravated robbery, robbery, conspiracy to commit aggravated robbery, and complicity to robbery. Following his resentencing in 2013 upon our remand in his direct appeals, he stood convicted on four counts of aggravated robbery, five counts of complicity, and a single count of conspiracy. State v. Ojile, 1st Dist. Hamilton Nos. C-110677 and C-110678, 2012-Ohio-6015, appeal not accepted, 135 Ohio St.3d 1414, 2013-Ohio-1622, 986 N.E.2d 30.

         {¶3} In 2012 and in 2016, in each of the cases numbered B-1007149-C and B-1006797-C, Ojile filed with the common pleas court a postconviction petition. On appeal from the denial of Ojile's 2012 petitions, we affirmed the common pleas court's judgments. State v. Ojile, 1st Dist. Hamilton No. C-120601 (June 12, 2013). In this appeal from the court's judgments dismissing Ojile's 2016 petitions, he presents two assignments of error, challenging the dismissal of those petitions for lack of jurisdiction and the court's failure to conduct an evidentiary hearing. We address the assignments of error together and sustain them in part.

          The Trial

         {¶4} Ojile, Amy Hoover, and Kenyatta Erkins were indicted on multiple counts of aggravated robbery, robbery, conspiracy to commit aggravated robbery, and complicity to robbery, following an investigation by the Cincinnati Police Department and other local police agencies into reports that patrons of two gambling casinos had been followed from the casinos to their homes and robbed at gunpoint. The relevant charges here are contained in count three of the indictment in the case numbered B-1006797-C, charging Ojile, Hoover, and Erkins with the February 2009 aggravated robbery of Michael Weisbrod, and in counts 12 and 14 of the indictment in the case numbered B-1007149-C, charging Ojile and Erkins with the April 2010 aggravated robbery of Daniel Duncan and the June 2010 aggravated robbery of Tien Dao. Ojile and Erkins were tried together to the court. Hoover had accepted a plea offer of case consideration in exchange for her testimony at their trial.

         {¶5} At trial, Michael Weisbrod testified that he had left a casino on February 9, 2009, in possession of over $8, 000 in cash and returned to his apartment in the early morning hours of February 10. Video from the casino's security camera showed Erkins following Weisbrod that night. After Weisbrod had returned home, a woman knocked on his door and asked him if anyone was living in the apartment downstairs. Through the closed door, Weisbrod told her, "No, " and she left. On the night of February 10, a man came to Weisbrod's door, asked the same question, and received the same response. Then, on February 11, at around 9:00 p.m., Weisbrod was in the basement of his apartment building, checking for the cause of a power outage in his apartment, when he was confronted by a man and a woman who told him that they were armed, tied him up, and ordered him to tell them where the money was. The robbers left with more than $8, 000 in cash, along with Weisbrod's cell phone, wallet, and car keys. In April, Weisbrod was again robbed of over $8, 000 after a night at the casino, this time by two armed men who relieved him of his wallet and cash as he was returning to his apartment. From a news report when Ojile, Erkins, and Hoover were arrested six months later, Weisbrod identified Hoover as the woman who had knocked on his door before the February robbery and Ojile and Erkins as the men who had robbed him in April. At trial, Hoover testified that she had been the woman who, on February 10, came to Weisbrod's door, while Erkins and Ojile waited in the car, and that the three of them had returned to the apartment building on the night of February 11 and robbed Weisbrod. The state also presented at trial the testimony of Tyrone Tanks, who had been confined with Ojile in the Hamilton County Justice Center. Tanks testified that Ojile had provided him with a detailed account of the February 11 robbery.

         {¶6} In April 2010, an armed man whose face was concealed with a bandana relieved Daniel Duncan of approximately $1, 250 in cash and his .40-caliber Glock handgun, along with the Smith and Wesson ammunition that he carried for the gun. When Ojile and Erkins were apprehended in October 2010, police found sitting on the floor of Erkins's car, between Ojile's legs, a backpack containing Duncan's gun and ammunition, along with personal papers belonging to Ojile. Tanks testified that Ojile had admitted to his involvement in a robbery during which he had stolen the victim's gun.

         {¶7} In June 2010, two armed men relieved Tien Dao of his wallet after he had returned home from a casino. Security-camera video showed Erkins following Dao as he left the casino. Contents of Dao's wallet, including two California driver's licenses, a social security card, and a credit card, were recovered by police in a search of Ojile's apartment after his arrest. Tanks testified that Ojile had admitted to his involvement in a robbery in which the victim's California driver's license had been found in his apartment.

         The Postconviction Petitions

         {¶8} To prevail on a postconviction claim, a postconviction petitioner must demonstrate a denial or infringement of his rights during the proceedings resulting in his conviction that rendered that conviction void or voidable under the Ohio Constitution or the United States Constitution. R.C. 2953.21(A)(1). The petitioner bears the initial burden of demonstrating, through the petition, any ...


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