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Wednesday, May 14th, 2014

Appeals court upholds claim of bad counsel

Nicholas Schwieterman in prison for traffic crash that killed four

By Margie Wuebker
A former Chickasaw man serving 24 years in prison for a 2008 quadruple traffic fatality could get a trial after a U.S. appeals court recently upheld a claim that his attorneys were ineffective.
The Sixth Circuit U.S. Court of Appeals in Cincinnati on May 5 granted 28-year-old Nicholas Schwieterman's claim that his defense team - Dayton attorneys Marc T. Ross and Scott Calaway - failed to properly investigate circumstances of the crash and advised him to plead with inadequate information.
A federal three-judge panel will convene later this year in Cincinnati to determine whether the claim has merit. The panel could decide to proceed no further or order Schwieterman's no contest plea be withdrawn and grant a trial. An attorney from the Ohio Attorney General's Office will represent the state.  
In support of the ineffective-assistance claim, Schwieterman presented evidence including the affidavit of an expert witness on accident reconstruction.
Mercer County Sheriff's Office reports indicated Schwieterman on March 15, 2008, failed to stop at the intersection of Brockman Road and County Road 716A near St. Sebastian and struck another vehicle broadside. The four occupants - all Marion Township residents ages 18 and 19 - were pronounced dead at the scene. Investigators determined Schwieterman was under the influence of alcohol, cocaine and marijuana at the time of the crash.
The accident reconstruction expert hired by his current attorney, Eric J. Allen of Columbus, determined Schwieterman did stop at the stop sign before entering the intersection at 12 mph. The report also noted the other vehicle was traveling 84 mph prior to the crash.  
Mercer County Common Pleas Court Judge Jeffrey Ingraham, the Third District Court of Appeals in Lima and the Ohio Supreme Court previously turned down similar filings by Schwieterman. The U.S. Supreme Court declined to hear the case.
However, the federal court justices stated "there is reasonable probability that, but for counsel's errors, he (Schwieterman) would have not pleaded guilty and would have insisted on going to trial."
The justices dismissed other claims in the appeal, including Schwieterman's contention that his 24-year prison sentence, imposed in 2009 by Ingraham, violated his Eighth Amendment right.
Justices found the six-year prison terms for each of the four involuntary manslaughter convictions fell within the statutory maximum sentence of 10 years, and the trial court was within its discretion to impose consecutive sentences.
The ruling concluded that Schwieterman's other claims - alleged violation of due process of law due to the destruction of possibly exculpatory evidence (air bag sensors) and prosecutor misconduct - did not merit further proceedings.
According to the Sixth Circuit Court, Allen must submit a brief by June 17 detailing his arguments in the case with responses from the state due by July 21. Schwieterman will then have the opportunity to file a statement before the matter is turned over to the three-judge panel in Cincinnati, which could request oral arguments before deciding the merits of the case.
A staff member with the Sixth Circuit Court noted it is not uncommon for attorneys to request time extensions, meaning the case might not come before the judges until late this year.
Mercer County Prosecutor Matt Fox said he believes the appeals court will close the case.
"The state of Ohio is confidant that this claim will be determined by the Sixth Circuit Court of Appeals to also lack merit," he said.
The prosecutor's office contacted the parents of victims Jordan Moeller, Jordan Goettemoeller, Jordan Diller and Brad Roeckner to apprise them of the latest development from the Sixth Circuit Court.
Multiple calls seeking comment from Allen were not returned.
Schwieterman remains incarcerated at the Lorain Correctional Institution in Grafton. The Ohio Department of Rehabilitation and Corrections lists his scheduled release date as Oct. 9, 2032.
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