Prosecution urges court to deny defendant’s petition

Last updated: June 04. 2014 7:29PM - 593 Views
Amber Gillenwater agillenwater@civitasmedia.com

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GALLIPOLIS — The state has filed a response in relation to a recent woman’s petition to vacate the judgment in relation to her prison sentence through the Common Pleas Court of Gallia County.

In a motion filed a signed by Gallia County Assistant Prosecuting Attorney Britt Wiseman, the state moves the court to dismiss a motion filed by Mary C. Marcum last month that petitions the court for “post conviction relief” due to alleged ineffectiveness of counsel at trial.

Marcum, 34, of Gallipolis, is currently serving a 10-year sentence in the Ohio Reformatory for Women after she was found guilty of a first-degree-felony charge of the illegal manufacture of methamphetamine — an offense committed in the vicinity of a juvenile.

A two-day jury trial was held last summer in this case, and, after approximately two hours of deliberation on June 12, the jury returned with their guilty verdict.

This matter was later continued for sentencing, and, during a hearing late last June, Common Pleas Judge D. Dean Evans handed down a 10-year sentence against Marcum and ordered the defendant pay a $10,000 mandatory fine.

An appeal was later filed in this case, and last month, Marcum’s new appointed counsel, Stephen Hardwick, an assistant Ohio public defender, filed a motion for relief as the Fourth District Court of Appeals has yet to render a decision on the defendant’s appeal.

According to the motion filed by Hardwick, the alleged “errors” that entitle Marcum relief from the sentence are based on evidence not included in the record, and, therefore, cannot be considered on appeal.

Hardwick claims that the trial counsel was ineffective in this case as counsel failed to call Aaron Fitzpatrick, Marcum ’s co-defendant, as a witness.

The motion reads, “Mr. Fitzpatrick would have credibly testified that he and two others were responsible for the methamphetamine materials found on Ms. Marcum’s front porch, and that Ms. Marcum had no role in the crime. No reasonable strategic decision supported the decision not to call him [as a witness].”

Attached to the defendant’s petition is an affidavit from Fitzpatrick who claims that, at the time of Marcum’s arrest, he lived with the defendant, her mother and her children, and that, further, he became friends with two other individuals who he claims visited the house without Marcum’s knowledge and assisted him in making methamphetamine.

“I made methamphetamine with the materials found on Mary’s porch. We did that without Mary ’s knowledge or her consent,” the affidavit reads.

Fitzpatrick further states that, at the time of his and Marcum’s arrest, the other two individuals were not present and were, therefore, not implicated in the crime.

Fitzpatrick was reportedly not called as a witness during Marcum’s trial last June.

In the state’s response to the defendant’s motion, Assistant Prosecutor Wiseman argues that, although the defendant’s sole basis for relief is based on the allegation of ineffective assistance of counsel, she “has not show that her trial court counsel engaged in a substantial violation of any essential duties to her client” and has failed to show that this ineffectiveness in counsel has resulted in “prejudice, meaning that the trial result would have been different but for the alleged deficiencies of trial counsel.”

As for Fitzpatrick’s statement in regard to his role in the production of meth at Marcum’s residence, the prosecution argues that this is a “self-serving statement made out of court by Defendant-Petitioner’s boyfriend/romantic counterpart without any opportunity for cross examination by the state of Ohio.”

The motion by the state also points to the fact that Fitzpatrick was under indictment through the common pleas court for the same offense as the defendant, as well as to trial testimony by the defendant that contradicts Fitzpatrick’s recent affidavit.

“Without re-litigating the issues that are currently being considered by the Fourth District Court of Appeals, the State submits that the affidavit of co-Defendant Aaron Fitzpatrick does not alter the jury’s finding that the Defendant-Petitioner engaged in any part of the production of methamphetamine,” the state’s response reads.

In addition, the state argues that the court should not hold a evidentiary hearing in this matter as the defendant has failed to provide enough evidence that would warrant such a hearing before the court.

Marcum was arrested along with Fitzpatrick, 20, during the early morning hours of Jan. 31, 2013, by deputies with the Gallia County Sheriff’s Office at Marcum’s residence located at 1962 Georges Creek Road.

Deputies had reportedly responded to the home to investigate a citizen tip concerning the possibility of methamphetamine being produced in the home.

After being given permission to search the home by Marcum deputies reportedly discovered three “one-pot” type containers used in the production of methamphetamine in a trash bag located on the front porch of the residence. The bag was reportedly located approximately 15-20 feet from where two children, ages 11 and 9, were sleeping, according to the police report filed in this case.

Also discovered at the home were several “precursor” ingredients commonly used in the production of the drug, including sulfuric acid, sodium chloride, lithium batteries and pseudoephedrine.

Marcum and Fitzpatrick were both later indicted on charges of illegally manufacturing methamphetamine and Fitzpatrick later negotiated a plea agreement in his own case, pleading guilty to the illegal manufacture of methamphetamine. He was sentenced in July 2013 to four years of imprisonment in the Ohio Department of Rehabilitation and Correction and was further ordered to pay a mandatory fine of $10,000.

Fitzpatrick is reportedly being held in the London Correctional Institution and is scheduled to be released on April 26, 2017, according to the Ohio Department of Rehabilitation and Correction’s website.

Marcum reported date of release will be June 6, 2023.

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