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 Photo provided: Terrance Cole, 37, of Van Wert, in the white shirt, is helped to shore after being pulled from Grand Lake St. Marys Friday afternoon. By MIKE BURKHOLDER
Managing Editor
CELINA — Two area men were pulled from the cold waters of Grand Lake St. Marys Friday afternoon. |
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Response Filed In Case |
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Tuesday, 19 May 2009 |
By MIKE BURKHOLDER
Managing Editor
CELINA — Prosecuting attorneys in Mercer County Monday filed their response to a request by a Chickasaw man’s defense counsel asking for post-conviction relief for his role in an accident that killed four Mercer County teens.
Prosecuting Attorney Andy Hinders and Assistant Prosecuting Attorney Matt Fox rejected Nicholas Schwieterman’s attorneys’ claims that their client should be granted post-conviction relief as well as a hearing so evidence in the case can be heard. Wapakoneta attorney John Poppe and Columbus attorney Eric Allen filed the motion in Mercer County Common Pleas Court earlier this month.
“Ohio’s post-conviction petition relief remedy is a collateral civil attack on a criminal judgment, not an appeal of the judgment,” the two wrote. “It is a means to reach Constitutional issues that would otherwise be impossible to reach because the trial court record does not contain evidence supporting those issues. A petitioner seeking post-conviction relief is not automatically entitled to an evidentiary hearing.”
In their filing, Poppe and Allen claim Schwieterman was denied due process by the state of Ohio because it did not fully investigate the collision and that it destroyed exculpatory evidence in the form of airbag sensors, acts they claim resulted in prosecutorial misconduct. The pair also claims Schwieterman’s previous attorneys provided inadequate representation and that Schwieterman’s incarceration is cruel and unusual because he is innocent — claims Hinders and Fox rejected.
“There is neither factual basis nor a legal basis to grant relief to Schwieterman in this case,” the filing said. “Moreover, though numerous in allegation and voluminous in appearance, none of Schwieterman’s claims are supported by actual probative evidence. As such, Schwieterman fails to carry his burden to establish the necessity for an evidentiary hearing in this case.”
Hinders and Fox deny Schwieterman was denied due process as well as allegations they destroyed evidence, specifically airbag sensors. The two said Poppe and Allen’s opinion of the way the investigation was conducted “is irrelevant.”
“The airbag sensors are not exculpatory evidence,” they wrote. “Mere speculation that the state acted in bad faith in destroying potentially useful evidence or that the state withheld favorable and material evidence does not meet the accused’s burden to show that the withheld evidence is material.”
Hinders and Fox said the defense team was given full access to all information gathered during the investigation. They also said deputies with the Mercer County Sheriff’s Office processed the airbag sensors in the manner they had been advised by the dealership and that the defense team did not request independent testing of the devices.
Hinders and Fox also rejected claims of misconduct alleged by Poppe and Allen.
The prosecuting attorneys said Hinders visited the scene of the crash to assist in the preparation of search warrants if needed and to provide law enforcement with legal advice.
“Neither Hinders (nor) Fox had any direct contact with Schwieterman,” they wrote. “No search warrants were executed at the hospital. Instead, both Schwieterman and Schmitmeyer both gave consent for blood and urine samples to be collected.”
The pair also rejected Poppe and Allen’s assertion that Schwieterman is innocent because he did not cause the fatal collision. Poppe and Allen, in their filing, claim Schwieterman stopped at a stop sign at the intersection and was going 12 mph when his vehicle was struck by one traveling 84 mph that was driven by Jordan Moeller, 18, with Bradley Roeckner, 19, of Celina, Jordan Goettemoeller, 19, and Jordan Diller, 19, of Maria Stein, as passengers.
“The claimed speed of the Moeller vehicle and the claimed obstructed view of the roadway are irrelevant in this case,” Hinders and Fox wrote. “It is well settled that any contributory negligence of the decedent cannot be a defense to vehicular homicide, unless it is the sole proximate cause of the accident.”
The prosecuting attorneys said Poppe and Allen’s crash expert gave them “an opinion they all wanted to hear.” Hinders and Fox also said Schwieterman’s statement that he used cocaine to counteract the affects of alcohol show that he is not innocent of the crimes.
“Even if you assume Schwieterman stopped, which the laws of acceleration tell us is impossible, he then pulled into the intersection,” they wrote. “Even if struck by the Moeller vehicle, instead of striking the Moeller vehicle, which the laws of physics tell us is impossible, Schwieterman’s car was in the intersection. Schwieterman was drunk and high on alcohol, marijuana and cocaine and he admitted to driving after ingesting alcohol and drugs. His belief that consuming cocaine will counteract the affects of alcohol does not prove he is actually innocent. Rather it demonstrates his lack of judgment and further guilty for his crimes.”
Hinders and Fox closed their filing by claiming Schwieterman failed to introduce any evidence that would require a hearing to be scheduled.
“Unfortunately for the defendant, he has put forth no evidence,” the two wrote. “He merely has alleged a dubious opinion not based upon evidence, but rather based upon speculation and conjecture. Moreover, the defendant does not proffer any relevant and material evidence dehors or outside the record. He only presents a new theory based not upon any new evidence, but instead upon his speculative and varying assumptions.” |
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Last Updated ( Wednesday, 27 May 2009 )
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