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Law School Case Brief

State v. Fetter - 2003-Ohio-5778 (Ct. App.)


Although it is customary for defense counsel to make a motion for acquittal as a matter of course to test the sufficiency of the State's evidence, the failure to follow that course of action does not mean the performance of a defendant's trial counsel falls below a reasonable standard of representation. Despite this custom of raising a motion for acquittal, counsel is not required to raise meritless motions. 


The Wayne County Grand Jury indicted defendant Denny Fetter on two separate counts of involuntary manslaughter and having a weapon while under a disability. The involuntary manslaughter count also carried a firearm specification. During a jury trial in Ohio state court, Fetter filed two motions for acquittal on pursuant to Crim.R. 29. However, the motions solely addressed the weapon count. The trial court denied both motions, and the jury found Fetter guilty of both counts. The trial court sentenced him accordingly. Fetter did not perfect a timely appeal but moved for leave to file a delayed appeal. The court granted Fetter leave to file a delayed appeal. 


Was Fetter denied effective assistance of counsel due to his counsel's failure to move for an acquittal in regard to the involuntary manslaughter charge?




The lower court's decision was affirmed. The court held that as Fetter failed to raise the Ohio R. Crim. P. 29 motion for acquittal in regard to the involuntary manslaughter charge, he waived any error regarding the sufficiency of the evidence. Where the evidence showed that Fetter got drunk and killed the victim with a shot through the heart from his shotgun, his convictions under Ohio Rev. Code Ann. § 2903.04(B) and Ohio Rev. Code Ann. § 2923.13 were not against the manifest weight of the evidence. As Fetter had completed his sentence, he could not challenge the length of the sentence imposed unless he also challenged the underlying conviction. Fetter had served approximately 15 months, which exceeded one year; accordingly, he had satisfied his sentence relating to his conviction for having a weapon while under a disability. As Fetter failed to challenge the underlying conviction, he was unable to raise as error the imposition of the maximum sentence. Finally, as a motion for acquittal based on insufficient evidence would have been meritless, the failure of trial counsel to move for acquittal was not ineffective assistance of counsel.

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