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Tuesday, May 19th, 2009

Schwieterman appeal rejected

By Margie Wuebker
The Third District Court of Appeals has rejected the appeal of a Chickasaw man sentenced to 24 years in prison for the traffic deaths of four area teenagers. His attorneys claimed the lengthy sentence represented cruel and unusual punishment.
The judgment filed Monday in Lima means the conviction and sentence of 23-year-old Nicholas Schwieterman, currently an inmate at the Toledo Correctional Institution, will stand.
In another court case, the Mercer County Prosecutor's Office filed its response to a motion from defense attorney John Poppe seeking a new trial for Schwieterman. Poppe alleges the accident did not happen the way authorities believe.
Schwieterman pleaded no contest last fall to four counts of involuntary manslaughter and one count each of possessing drugs and operating a vehicle under the influence. The charges stem from a March 15, 2008, traffic accident that occurred at the intersection of Brockman Road and County Road 716 near St. Sebastian. The four victims, ages 18 and 19, died at the scene.
In the case appealing the sentence, Judge John R. Willamowski noted Schwieterman's legal team selected "comparable" cases for the appeal based on defendants having operated motor vehicles while intoxicated. However, none of the defendants were under the influence of illegal drugs and none were convicted of the same crimes as Schwieterman, the judge wrote.
Willamowski also wrote that the Mercer County court did give reasons for the sentences even though it was not required to. The imposed sentences achieved the principles and purposes of felony sentencing and did not demean the seriousness of the defendant's conduct, the judge wrote in his rejection of the appeal.
Now Poppe and co-defense counsel Eric Allen will turn their attention toward their latest court filing to seek a new trial. They claim their client was denied due process by the state not fully investigating the collision, destroying air bag sensors in one of the cars and misconduct by prosecutors. Other claims involve ineffective legal counsel and that Schwieterman's incarceration is cruel and unusual because he is innocent.
Prosecutor Andy Hinders and Assistant Prosecutor Matt Fox deny Schwieterman was denied due process. They claim the defense never requested independent testing of the airbag sensors, and the Mercer County Sheriff's Office processed the sensors in the manner recommended by a dealership.
As for pretrial publicity being raised as misconduct, the prosecutors claim no comments made by the state violated Ohio's Code of Professional Conduct.
"The Schwieterman family issued their own press release in this matter admitting Schwieterman's guilt," the reply stated. "Attorney Poppe has issued press releases and held a press conference. The state did not initiate or invite any publicity in this matter, and has only responded to press releases and responded to questions from the press."
On the matter of ineffective counsel by Dayton attorneys Marc Ross and Scott Callaway, the prosecutors claim such allegations are not sufficient to warrant reversal of a conviction.
After months of negotiations, Schwieterman pleaded no contest and the plea was accepted.
"This defense strategy was successful," according to the prosecutor's response. "The defendant was ordered to serve approximately 57 percent of the available prison sanction (42 years) in this case."
Poppe has stated accident reconstruction allegedly shows Schwieterman stopped at the stop sign and then proceeded into the intersection at approximately 12 miles per hour. Calculations provided by an accident reconstruction expert reportedly indicate the other car was traveling in excess of 84 miles per hour.
Hinders and Fox maintain that Schwieterman's family and his current defense team "presumably paid a lot of money to have someone give them an 'opinion' that they all wanted to hear. That opinion may give Nicholas Schwieterman 'solace' in that he believes now that he was not at fault in this accident, but that 'opinion' does nothing to exonerate Schwieterman from his culpability or guilt."
"Even if you assume Schwieterman stopped, which the laws of acceleration tell us is impossible, he then pulled into the intersection," the prosecutors state.
They ask that Poppe's motion be turned down without the benefit of a hearing, adding the new "theory" is based not upon evidence but speculative and varying assumptions.
The matter now rests with Mercer County Commons Pleas Court Judge Jeffrey Ingraham.
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