[Cite as State v. Yeldell, 2013-Ohio-1918.]

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

ARRIE D. YELDELL 

Defendant-Appellant 

Appellate Case No. 25198/25209 

Trial Court Case No. 2012-CR-57 

(Criminal Appeal from 

(Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 10th day of May, 2013. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting 

Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts 

Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

ARRIE D. YELDELL, Inmate No. 659-018, Lebanon Correctional Institution, P.O. Box 56, 

Lebanon, Ohio 45036 

Defendant-Appellant, pro se

THOMAS SCHIFF, Atty. Reg. No. 0039881, 500 Lincoln Park Blvd., Suite 216, Kettering, Ohio 

45429-6412 

Attorney for Defendant-Appellant 
2

. . . . . . . . . . . . . 

 

WELBAUM, J. 

{¶ 1} Defendant-Appellant, Arrie D. Yeldell, appeals from his criminal conviction and 

sentence following a jury trial in which he was found guilty of one count of Attempted Rape (by 

force), a second degree felony, one count of Kidnapping (sexual activity), a first degree felony, 

and one count of Assault, a first degree misdemeanor. The counts for Attempted Rape and 

Kidnapping merged as allied offenses and the Appellee, the State of Ohio, elected to have Yeldell 

sentenced under Kidnapping. The trial court imposed a four-year prison sentence for Kidnapping 

and a six-month prison sentence for Assault. The sentences are to be served concurrently. 

{¶ 2} Yeldell’s appellate counsel filed a brief pursuant to Anders v. California, 386 

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any non-frivolous 

issues for our review. Thereafter, Yeldell filed a pro se brief, advancing three assignments of 

error. The State did not file a brief in response. 

{¶ 3} Yeldell’s first assignment of error states: 

Indictment [sic] Violated the Constitutional Ban Against Double Jeopardy. 

{¶ 4} Under this assignment of error, Yeldell argues that his constitutional rights were 

violated upon being convicted for both Attempted Rape and Kidnapping. Yeldell argues that 

this is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution because the requirements for each offense are indistinguishable and the offenses 

were committed against the same victim. 

{¶ 5} In State v. Sturgell, 2d Dist. Darke No. 1751, 2009-Ohio-5628, this district 

stated the following with respect to the Double Jeopardy Clause: 
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The double jeopardy clause protects against a second prosecution for 

the same offense after acquittal or conviction, and against multiple 

punishments for the same offense. In that regard, the double jeopardy clause 

generally forbids successive prosecutions and cumulative punishments for a 

greater and lesser included offense involving the same conduct. Conviction on 

a lesser included offense generally bars subsequent prosecution for a greater 

offense. (Citations omitted.) Id. at ¶ 10. 

{¶ 6} Furthermore, R.C. 2941.25 codifies the protections of the Double Jeopardy 

Clause, and it “ ‘clearly provides that there may be only one conviction for allied offenses of 

similar import.’ ” State v. Ayers, 2d Dist. Montgomery No. 25208, 2012-Ohio-6038, ¶16, 

quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26. “‘Thus, 

a trial court is prohibited from imposing individual sentences for counts that constitute allied 

offenses of similar import.’ ” Id. 

{¶ 7} In this case, the record establishes that Yeldell’s counts for Attempted Rape and 

Kidnapping were merged as allied offenses of similar import, and Yeldell was only sentenced for 

Kidnapping. Yeldell was, therefore, not subject to multiple punishments for the same offense. 

For this reason, Yeldell’s constitutional rights were not violated, and his First Assignment of 

Error is without arguable merit. 

{¶ 8} Yeldell’s Second Assignment of Error states: 

The Judgement [sic] Entered by the Trial Court and Indictment 

Returned by the Montgomery County Grand Jury Are Null and Void for Lack 

of Subject Matter Jurisdiction and for Failure to Charge as Defined By the State 
4

Statute, R.C. 2305.01, When it Failed to Allege an Offense. 

{¶ 9} Under this assignment of error, Yeldell provides no explanation or discussion 

supporting his argument. We find nothing in the record suggesting that the trial court lacked 

subject matter jurisdiction. Furthermore, the statute cited by Yeldell, R.C. 2305.01, concerns 

jurisdiction in civil matters, and therefore has no bearing on this case. For this reason, Yeldell’s 

Second Assignment of Error is without arguable merit. 

{¶ 10} Yeldell’s Third Assignment of Error states: 

Counsel Was Ineffective in Allowing[,] Without Objection[,] [the Jury] 

to Witness Testimony of Clearly Three (3) Different Testimony’s [sic] By State 

Witnesses. 

{¶ 11} Under this assignment of error, Yeldell argues that defense counsel was 

ineffective by failing to object to testimony of the State’s trial witnesses, which according to 

Yeldell, yielded “three (3) different testimony’s [sic].” Yeldell provides no further explanation 

or discussion in support of this argument, and he does not indicate which witnesses or what 

testimony he is referring to. The basis for Yeldell’s Third Assignment of Error is, therefore, 

unclear. 

{¶ 12} “A claim of ineffective assistance of trial counsel requires both a showing that 

trial counsel’s representation fell below an objective standard of reasonableness, and that the 

defendant was prejudiced as a result.” State v. Clark, 2d Dist. Champaign No. 2011-CA-32, 

2013-Ohio-300, ¶ 38, citing Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984). We have reviewed the entire record and have found no facts indicating 

that defense counsel’s conduct fell below an objective standard of reasonableness. The State is 
5

permitted to present witness testimony to support its claims against Yeldell, and all of the State’s 

witnesses were disclosed as required by Crim.R. 16. Accordingly, defense counsel had no 

reason to object to allowing the jury to hear the witness testimony presented by the State. 

Yeldell’s Third Assignment of Error is without arguable merit. 

{¶ 13} Pursuant to our responsibilities under Anders, we have conducted an independent 

review of the record. Based on that review, we agree with appellate counsel’s determination that 

there are no non-frivolous issues for appeal related to Yeldell’s criminal conviction and sentence. 

{¶ 14} The judgment of the trial court is affirmed. 

. . . . . . . . . . . . . 

FAIN, P.J. and HALL, J., concur. 

Copies mailed to: 

Mathias H. Heck 

Carley J. Ingram 

Arrie D. Yeldell 

Thomas Schiff 

Hon. Gregory F. Singer