Prosecutor takes issue with appeals court move

Repeated delays in BP trial are challenged

7/1/2011

Claiming the appellate court wrongly agreed to hear the appeal of an accused killer who is still awaiting trial, Lucas County Prosecutor Julia Bates has filed a complaint against the 6th Ohio District Court of Appeals to stop the appellate process.

Mrs. Bates' office filed a "writ of prohibition" last week with the Ohio Supreme Court, asking it to order the aggravated murder case of Anthony Belton be returned to Lucas County Common Pleas Court.

The case has been put on hold in Common Pleas Court after the appellate court agreed to hear the arguments of Mr. Belton's lawyers in a challenge of the constitutionality of the state's death penalty law.

The appeals court, represented by the Ohio Attorney General's Office, has not filed a response.

"We filed a lawsuit in the Ohio Supreme Court for the purpose of challenging the actions of the 6th District Court of Appeals in granting appellate jurisdiction of what we believe was a [nonappealable] decision," said John Weglian, chief of the special units division of the prosecutor's office. "Our reason for doing this is to try and get this case to trial."

Mr. Belton, 25, is accused in the shooting death of Matthew Dugan, 34, during an Aug. 13, 2008, robbery at the former BP gas station at Dorr Street and Secor Road.

Authorities said Mr. Belton entered the store and demanded money. He allegedly shot Mr. Dugan once in the back of the head after the clerk turned around in response to the assailants's demands for phone cards.

Two of Mr. Belton's alleged accomplices have entered pleas and been sentenced for their roles in the robbery.

Tony Bivens, Jr., was sentenced in April, 2009, to six years in prison after he was convicted of conspiracy to commit aggravated robbery when he admitted to driving the getaway vehicle for the armed robbery.

Dymon Bolton was sentenced in December, 2008, to four years in prison after pleading guilty to two counts of obstructing justice for lying to police during the investigation. He was released after serving five months in an intensive prison program.

Mr. Belton, who faces the death penalty if convicted of aggravated murder and aggravated robbery, has had several trial dates postponed.

Lucas County Common Pleas Judge Ruth Ann Franks recently set an Oct. 11 trial date.

At issue before the appeals court is an argument made last year by Mr. Belton's trial attorneys asking that a jury be empaneled to decide the possible sentence of death if Mr. Belton were to enter a plea in the case.

The defense argued that state law violates Mr. Belton's constitutional right to a jury because it does not let a defendant plead to aggravated murder with death-penalty specifications and then proceed to the penalty phase before a jury.

Judge Franks had denied the defense motion early last year and reaffirmed her decision Oct. 25.

It is that ruling that Mr. Belton's attorneys have asked the appellate court to review.

The appeals court decided June 10 to accept a delayed appeal of the issue.

In the complaint filed in the Ohio Supreme Court, the prosecutor's office disagreed with that decision.

"According to our analysis of what has transpired, we do not believe this is an appellate issue. We believe it is a proceeding that has been interposed for the purpose of a delay at best," Mr. Weglain said. "There has been an endless series of motions filed by the defense to delay the prosecution of this case. It is our hope that by filing this writ of prohibition that we might be able to eliminate that delay that would come with a filed appeal."

Mrs. Bates was unavailable for comment Thursday.

Francis King, administrator for the appellate court, declined to comment and referred questions to the Attorney General's office.

Lisa Hackley, spokesman for Ohio Attorney General Mike DeWine's office, said that the office was aware of the writ and was looking at what was filed.

She confirmed that the Attorney General's office would represent the appellate court.

In the 197-page complaint -- including multiple exhibits -- the prosecutor's office claimed the 6th District "patently and unambiguously lacks jurisdiction because the order is not a final, appealable order under [state law.]"

The office further filed a 22-page memorandum in support that requested the Supreme Court remand the case to the Common Pleas Court or stop further action in the appellate court until after both sides have submitted full arguments.

Attorney Jeffrey Gamso is representing Mr. Belton in the 6th District Court of Appeals.

He said that the argument of jurisdiction had come up in the appellate court, which decided that it did have the right to hear the case.

"The simple thing to say, I think the prosecutor's office is wrong. I think the court of appeals got it exactly right," he said.

Mr. Gamso said he will likely request a stay on the appellate court proceedings until a decision is made by the high court. Mr. Gamso said he, along with Mr. Belton's trial lawyers Pete Rost and Ronnie Wingate, may consider filing something in the Supreme Court case as well.

"The real question is, does [Mr. Belton] ever have a right to complain about [this issue,]" he said.

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.