[Cite as State v. Brusiter, 2013-Ohio-3803.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98614
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DARIN BRUSITER
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Common Pleas Court
Case No. CR-549689
Application for Reopening
Motion No. 466045
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RELEASE DATE: August 30, 2013
FOR APPELLANT
Darin Brusiter, pro se
Inmate #624-263
Lorain Correctional Institution
2075 S. Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Mary H. McGrath
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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EILEEN A. GALLAGHER, J.:
{¶1} On June 24, 2013, the applicant, Darin Brusiter, pursuant to App.R. 26(B)
and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this
court’s judgment in State v. Brusiter, 8th Dist. Cuyahoga No. 98614, 2013-Ohio-1445, in
which this court affirmed Brusiter’s convictions for aggravated murder and kidnapping
both with three-year firearm specifications, and insurance fraud and tampering with
evidence. Brusiter argues that his appellate counsel was ineffective for not arguing that
aggravated murder and kidnapping were allied offenses. On July 16, 2013, the state of
Ohio filed its brief in opposition, and Brusiter filed his reply brief on July 29, 2013. For
the following reasons, this court denies the application to reopen.
{¶2} The record indicates that Brusiter and Samuel Wilson conspired to murder
Wilson’s wife for insurance money. According to Brusiter’s statement, Wilson drove his
wife and Brusiter to various places until they stopped, and Brusiter got out of the backseat
and shot and killed Wilson’s wife. The grand jury indicted Brusiter on two counts of
aggravated murder, with one-, three- and six-year firearm specifications, a felony murder
specification and a murder for hire specification, one count of kidnapping with the
three-year firearm specification, one count of insurance fraud, and one count of tampering
with evidence. After prolonged negotiations, Brusiter and the state of Ohio reached a
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plea bargain, under which Brusiter would plea to count one, aggravated murder, with the
three-year firearm specification and the felony murder specification, kidnapping with the
three-year firearm specification, insurance fraud, and tampering with evidence.
Brusiter and the state further agreed to a 33-years-to-life sentence, as well as to a
stipulation that the murder charge and the kidnapping charge would not merge as allied
offenses, but the sentence for kidnapping would be served concurrently with the murder
sentence. (Tr. 100, 103 and 109.) The trial court accepted the plea deal as presented.
{¶3} On appeal, counsel argued that the trial court erred in overruling Brusiter’s
motion to suppress his confession because the state did not timely provide Miranda
warnings. This court affirmed because Brusiter’s guilty plea waived any error
relating to the motion to suppress. Now Brusiter argues that his appellate counsel should
have argued that the murder charge and the kidnapping charge were allied offenses.
However, this argument is meritless, because the parties had stipulated that the murder
charge and the kidnapping charge would not merge as allied offenses. Appellate
counsel in the exercise of professional judgment properly rejected an argument that had
no foundation in the record. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d
987 (1983) and State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶4} Accordingly, this court denies the application to reopen.
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EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
SEAN C. GALLAGHER, J., CONCUR