[Cite as State v. Beaty, 2011-Ohio-5014.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24048
v. : T.C. NO. 09CR4075
JOSHUA L. BEATY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of September , 2011.
LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, th 301 W. Third Street, 5 Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
JOSHUA L. BEATY, #627871, 5900 B.I.S. Road, Lancaster, Ohio 43130 Defendant-Appellant
FROELICH, J.
{¶ 1} Joshua L. Beaty pled no contest to two counts of felonious assault,
with gun specifications, and having weapons while under disability. The charges 2
stemmed from the shooting of Markus Singleton, allegedly because Beaty believed
that Singleton had thrown away Beaty’s cocaine. Two weeks before the shooting,
Beaty had been convicted of possession of cocaine and placed on community
control; this conviction resulted in a prohibition against possessing firearms. See
State v. Beaty, Montgomery C.P. No. 2009 CR 2404.
{¶ 2} The trial court found Beaty guilty of the charges, merged the two
felonious assault counts and specifications, and sentenced Beaty to five years in
prison for felonious assault and to three years in prison for having weapons while
under disability. The sentences were to be served concurrently with each other,
but subsequent to three years of incarceration for the firearm specification. The
sentences were also made concurrent to the 12-month sentence imposed in Case
No. 2009 CR 2404 for Beaty’s violation of community control. Beaty was ordered
to pay restitution to Singleton and costs.
{¶ 3} Beaty appealed from his convictions. Beaty’s appointed appellate
counsel subsequently filed a brief pursuant to Anders v. California (1967), 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493, wherein counsel represented that, after a
thorough examination of the record, he was unable to discover any errors by the
trial court that were prejudicial to Beaty. Counsel proposed one assignment of
error with six potential issues for appeal, but argued that the assignment of error
was frivolous.
{¶ 4} By magistrate’s order of March 11, 2011, we informed Beaty that his
counsel had filed an Anders brief and of the significance of such a brief. We
invited Beaty to file a pro se brief assigning errors for review. Beaty responded 3
with a letter, which we construe as a pro se brief.
{¶ 5} The case is now before us for our independent review of the record.
Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
I
{¶ 6} Beaty’s appellate counsel raises one potential assignment of error,
which states:
{¶ 7} “WHETHER THE COURT ERRED IN FINDING NO FLAWS IN
EFFECTIVENESS OF COUNSEL, POLICE QUESTIONING, DEFENDANT’S
PLEAS, AND THE REASONABLENESS OF DEFENDANT’S SENTENCE
SUFFICIENT TO COMPROMISE DEFENDANT’S CONSTITUTIONAL RIGHT TO
DUE PROCESS UNDER THE FIFTH, EIGHTH, AND FOURTEENTH
AMENDMENT[S] [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I
SECTION 10 OF THE OHIO STATE CONSTITUTION.” (Emphasis in original.)
{¶ 8} We will address the individual issues within that assignment of error
separately.
{¶ 9} First, appellate counsel raises the issue that Beaty’s trial counsel
failed to thoroughly investigate and properly prepare Beaty’s case, such that Beaty
was forced to enter a plea.
{¶ 10} We review alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in
State v. Bradley (1989), 42 Ohio St.3d 136. Pursuant to those cases, trial counsel
is entitled to a strong presumption that his or her conduct falls within the wide range 4
of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction
based on ineffective assistance of counsel, it must be demonstrated that trial
counsel’s conduct fell below an objective standard of reasonableness and that his
errors were serious enough to create a reasonable probability that, but for the
errors, the result of the trial would have been different. Id.
{¶ 11} There is no indication in either appellate counsel’s or Beaty’s pro se
brief as to what Beaty’s trial counsel should have done, but did not. And, based on
the record, it is unclear how a more thorough investigation by Beaty’s trial counsel
would have affected the outcome of Beaty’s case. Beaty admitted to police
officers and to the media that he had shot Singleton. There is no suggestion in the
record that Beaty acted in self-defense, that the shooting was an accident, or that
he had any other defense to the charges. If evidence of self-defense or some
other defense exists, Beaty does not allege it in his pro se brief; regardless, it is
outside the record and cannot be considered on direct appeal.
{¶ 12} Moreover, we find no basis to conclude that Beaty’s trial counsel
failed to properly prepare the case. Counsel moved to suppress Beaty’s 1 incriminating statements to the police. The record reflects that there were
extensive plea negotiations. In light of Beaty’s confession to the police and public
admission to the media that he had shot Singleton, counsel did not have a lot to
work with. Accordingly, given the record before us, we agree that there is no
1 The suppression motion was inadvertently filed in Montgomery Case. No. 2009CR2404, Beaty’s prior case for possession of cocaine. Beaty’s trial counsel orally renewed the motion to suppress in this case. A hearing was held, and the motion was denied. 5
potentially meritorious claim of ineffective assistance of counsel based on counsel’s
alleged failure to investigate Beaty’s case more thoroughly and to properly prepare
his case.
{¶ 13} Second, appellate counsel raises whether the trial court erred in
concluding that Beaty knowingly, intelligently, and voluntarily waived his Miranda
rights during police questioning and thus denying his motion to suppress.
{¶ 14} In addressing a motion to suppress, the trial court assumes the role of
the trier of fact. State v. Morgan, Montgomery App. No. 18985, 2002-Ohio-268,
citing State v. Curry (1994), 95 Ohio App.3d 93, 96. The court must determine the
credibility of the witnesses and weigh the evidence presented at the hearing. Id.
In reviewing the trial court's ruling, an appellate court must accept the findings of
fact made by the trial court if they are supported by competent, credible evidence.
Id. However, “the reviewing court must independently determine, as a matter of
law, whether the facts meet the appropriate legal standard.” Id.
{¶ 15} In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694, the United States Supreme Court held that the State may not use statements
stemming from a defendant’s custodial interrogation unless it demonstrates the use
of procedural safeguards to secure the defendant’s privilege against
self-incrimination. Id. at 444. In order for a defendant’s statements made during a
custodial interrogation to be admissible, the State must establish that the accused
knowingly, voluntarily, and intelligently waived his or her rights. Miranda, supra;
State v. Edwards (1976), 49 Ohio St.2d 31, 38, overruled on other grounds, (1978),
438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155. 6
{¶ 16} Even when an individual is not in custody and Miranda warnings are
not required, a defendant’s statement may be involuntary and subject to exclusion.
State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, ¶14, citing Dickerson v.
United States (2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. “In deciding
whether a defendant’s confession is involuntarily induced, the court should consider
the totality of the circumstances, including the age, mentality, and prior criminal
experience of the accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment; and the existence of threat or
inducement.” Edwards, 49 Ohio St.3d 31, paragraph two of the syllabus. A
defendant’s statement to police is voluntary absent evidence that his will was
overborne and his capacity for self-determination was critically impaired due to
coercive police conduct. Colorado v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct.
851, 93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 562, 1996-Ohio-108.
{¶ 17} Detective Michael DeBorde was the sole witness at the hearing on
Beaty’s motion to suppress his statements to the police. His testimony, which the
trial court credited, established the following facts.
{¶ 18} At approximately 10:40 a.m. on December 4, 2009, Detective
DeBorde and Detective Darryl Smith interviewed Beaty in a police interview room
regarding a shooting that had happened the night before. The room was
approximately five feet square with a tile floor and no windows; there was a small
table with three chairs. DeBorde did not recall if Beaty was initially handcuffed, but
he stated that he would have asked for any handcuffs to be removed or he would
have removed them himself. 7
{¶ 19} The detectives entered the room, introduced themselves, and told
Beaty that they were there to interview him regarding a felonious assault. Beaty
asked what felonious assault meant, and DeBorde explained that to him. The
detectives asked Beaty if he were injured and obtained certain personal
information, such as Beaty’s name, address, birthday, phone number, and Social
Security number. Beaty was nineteen years old and had ten years of schooling.
DeBorde also knew from a computer search prior to the interview that Beaty had
prior contacts with the police.
{¶ 20} The detectives presented Beaty with a Pre-Interview form. DeBorde
wrote Beaty’s identifying information, as well as the date, interview location, and
offense, on the form. DeBorde asked Beaty if he could read; Beaty indicated that
he could. DeBorde asked Beaty to read the first line of the form out loud. Beaty
complied. DeBorde read each right to Beaty. Beaty indicated that he understood
each right, and he agreed to talk with the detectives without an attorney. Beaty
signed the Pre-Interview form. DeBorde testified that he did not promise Beaty
anything or threaten Beaty.
{¶ 21} The detectives spoke with Beaty for twenty to thirty minutes.
DeBorde described Beaty as “very open” with the officers. Beaty informed them
that he had been at Gilcy Market and that he had brought cocaine into the store.
Beaty left the store to answer a cell phone call and, when he returned, his found
that his cocaine was missing. Beaty blamed Singleton, who was supposedly
sweeping the store. Beaty related that he retrieved a handgun that he had placed
in a newsstand inside the market and threatened Singleton with it. Beaty then 8
looked through trash cans for the cocaine. Beaty left the market and waited for
Singleton to leave. Beaty admitted that he shot Singleton when Singleton came
out of the store. The detectives asked Beaty if he wished to make a written or
video statement; Beaty declined.
{¶ 22} The record supports the trial court’s conclusions that Beaty knowingly,
intelligently, and voluntarily waived his Miranda rights and that his statements were
made voluntarily. Beaty could read the Pre-Interview form, he was read his rights,
he agreed to speak to the officers without an attorney, and he signed the
Pre-Interview form. There is no evidence that Beaty was under the influence of
drugs or alcohol or was otherwise impaired. Beaty was not handcuffed, and there
is no evidence of threats or coercion by the detectives. The interview lasted no
more than 30 minutes. In short, we find no arguably meritorious argument that the
trial court erred in denying Beaty’s motion to suppress.
{¶ 23} Third, appellate counsel raises whether the State presented sufficient
facts at the plea hearing to support Beaty’s no contest plea. Because Beaty did
not raise this argument at the plea hearing, we review this issue for plain error.
State v. Peoples, Miami App. No. 2005 CA 20, 2006-Ohio-4162, ¶11. “To be
‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in
the trial proceedings.” State v. Landgraf, Montgomery App. No. 21141,
2006-Ohio-838, ¶24, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
{¶ 24} The requirements for a no contest plea in felony cases differ from
those for a no contest plea in misdemeanor cases. Pursuant to R.C. 2937.07, the
trial court in a misdemeanor case is required to hear an explanation of the 9
circumstances surrounding the offense and then determine whether the facts are
sufficient to convict on the misdemeanor offense. See State v. Adams,
Montgomery App. No. 22493, 2009-Ohio-2056, ¶14. The Supreme Court of Ohio
has held that “the provision in R.C. 2937.07 requiring an explanation of
circumstances following a plea of no contest [in a misdemeanor case] has not been
superseded by the enactment of Crim.R. 11 because the statutory provision confers
a substantive right.” Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, 151.
{¶ 25} R.C. 2937.06(A)(1) does not authorize a no contest plea in felony
cases. See Landgraf at ¶20, n.1 (commenting that there appears to be no
statutory provision in Ohio for no contest pleas in felony cases). However, Crim.R.
11 “permits a plea of no contest to a criminal charge, and does not require an
explanation of the circumstances. Instead, the rule permits the court to enter
judgment only based upon the facts as alleged in the indictment.” Adams at ¶14.
“Where an indictment, information, or complaint contains sufficient allegations to
state a felony offense and the defendant pleads no contest, the court must find the
defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d 582,
1998-Ohio-606.
{¶ 26} At the plea hearing, the prosecutor read the charges and
specifications against Beaty, using the language of the indictment. Because the
charges against Beaty were felonies, the trial court was permitted to find Beaty
guilty based on the facts as alleged in the indictment; the trial court was not
required to hear an explanation of the circumstances surrounding the offense.
Beaty’s potential claim based on the State’s alleged failure to present sufficient 10
facts at the plea hearing is frivolous.
{¶ 27} Fourth, appellate counsel raises a potential claim that Beaty’s plea
was not knowingly, intelligently, and voluntarily made. Counsel notes that the plea
hearing occurred while the jury waited outside the courtroom.
{¶ 28} “Crim.R. 11(C)(2) requires the court to (a) determine that the
defendant is making the plea voluntarily, with an understanding of the nature of the
charges and the maximum penalty, and, if applicable, that the defendant is not
eligible for probation or for the imposition of community control sanctions; (b) inform
the defendant of and determine that the defendant understands the effect of the
plea of guilty [or no contest] and that the court, upon acceptance of the plea, may
proceed with judgment and sentencing; and (c) inform the defendant and determine
that he understands that, by entering the plea, the defendant is waiving the rights to
a jury trial, to confront witnesses against him, to have compulsory process for
obtaining witnesses, and to require the state to prove his guilt beyond a reasonable
doubt at a trial at which he cannot be compelled to testify against himself.” State v.
Brown, Montgomery App. No. 21896, 2007-Ohio-6675, ¶3. See, also, State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶27.
{¶ 29} The Supreme Court of Ohio has urged trial courts to literally comply
with Crim.R. 11. Clark at ¶29. However, because Crim.R.11(C)(2)(a) and (b)
involve non-constitutional rights, the trial court need only substantially comply with
those requirements. E.g., State v. Nero (1990), 56 Ohio St.3d 106, 108; Greene at
¶9. The trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to
the waiver of federal constitutional rights. Clark at ¶31. 11
{¶ 30} We have reviewed the transcript of the plea hearing and find nothing
to support a contention that Beaty’s pleas were not made knowingly, intelligently,
and voluntarily. The trial court ascertained that Beaty had ten years of education,
could read and understand the plea forms, and that there was nothing that would
interfere with his understanding the forms and the proceedings. The trial court
determined that Beaty understood the nature of the charges and the potential
penalties. The court informed Beaty that he was eligible for community control for
having weapons while under disability, but not felonious assault; the court told
Beaty that he would not receive community control. The court further informed him
that the plea would constitute a violation of his community control and that
community control would be revoked. The court explained each of Beaty’s
constitutional rights and determined that Beaty understood that he was waiving
those rights by entering his no contest plea. Beaty indicated that he wanted to
plead no contest to the charges. The court found that Beaty’s plea was knowing,
intelligent and voluntary. The record demonstrates that the trial court’s plea
hearing complied with the requirements of Crim.R. 11.
{¶ 31} As noted by appellate counsel, the one issue that arose at the plea
hearing concerned whether Beaty was satisfied with his attorney. A few weeks
before the plea hearing, Beaty had filed a pro se motion for a new attorney based
on ineffective assistance of counsel. Beaty wrote that he didn’t “feel Mr. Goraleski
is thinking about my best interest and [I] don’t trust him. I feel he aint got time for
my case and he is just trying to get it over with as fast as he can.” We see no
indication that the trial court ruled on this motion. 12
{¶ 32} At the plea hearing, Beaty had the following exchange with the trial
court:
{¶ 33} “THE COURT: Are you satisfied with Mr. Goraleski’s representation?
{¶ 34} “THE DEFENDANT: No.
{¶ 35} “THE COURT: Why not?
{¶ 36} “THE DEFENDANT: I just – I just – just not.
{¶ 37} “THE COURT: Well, what did you want him to do?
{¶ 38} “THE DEFENDANT: It’s over with now.
{¶ 39} “THE COURT: Huh?
{¶ 40} “THE DEFENDANT: I said it’s over with now.
{¶ 41} “THE COURT: No. *** Because if you feel that you’re doing
something here today that you feel is not appropriate, then we’re not going to do
this.
{¶ 42} “THE DEFENDANT: I didn’t – I ain’t saying what I was doing right now
–
{¶ 43} “THE COURT: Well, what is it --
{¶ 44} “THE DEFENDANT: – ain’t appropriate.
{¶ 45} “THE COURT: – about his representation that you’re not satisfied
with? It’s my understanding, sir, and I’m going to be real blunt with you; okay? I
mean, I saw what you said on TV. You know, in front of two television cameras,
you admitted that you shot the guy. Okay? You talked with the detective. You
made a statement, admitted it. What is it that you expected him to do?
{¶ 46} “THE DEFENDANT: It was nothing. 13
{¶ 47} “THE COURT: There was nothing?
{¶ 48} “THE DEFENDANT: No, ma’am.
{¶ 49} “THE COURT: Then why is it that you’re not satisfied with his
representation?
{¶ 50} “THE DEFENDANT: It’s fine.
{¶ 51} “THE COURT: All right. Sir, are you entering your pleas today
voluntarily? That means is this what you want to do?
{¶ 52} “THE DEFENDANT: Yes, ma’am.”
{¶ 53} We do not find that this exchange creates an arguable issue that
Beaty’s plea was involuntarily. Although Beaty apparently believed that his
counsel should have done more on his case, he did not articulate for the court how
his counsel was allegedly ineffective. With respect to the plea, Beaty did not
express that he disagreed with the decision to enter a no contest plea. To the
contrary, he told the trial court that he was not saying that the plea was
inappropriate and that he wanted to enter his plea. We find no potentially
meritorious claim that Beaty’s plea was not knowing, intelligent, and voluntary.
{¶ 54} Although not explicitly raised by Beaty in his pro se brief or by
appellate counsel as part of his “issue” that the plea was not knowingly made, we
further note that the trial court told Beaty that he was ineligible for community
control for the felonious assault, even though the law permitted such a sentence.
See State v. Swimer, Clark App. No. 08 CA 38, 2009-Ohio-903, ¶48. Presumably,
the trial court was focusing on the firearm specification attached to those counts,
which had a mandatory prison sentence. Beaty was properly informed by the trial 14
court that he was eligible for community control for having weapons while under
disability.
{¶ 55} Beaty elected to plead no contest despite being informed that he was
ineligible for community control for felonious assault. Because community control
is a less severe punishment than prison, Beaty could not have detrimentally relied
on the trial court’s misstatement in deciding whether to enter a plea. Moreover, the
trial court made clear that Beaty would not receive community control in this case.
We find no potentially meritorious argument that the trial court’s misstatement
regarding Beaty’s eligibility for community control for felonious assault affected the
voluntariness of Beaty’s plea. See State v. Kennedy, Champaign App. No. 2011
CA 3, 2011-Ohio-4291, ¶61 (finding that trial court’s misstatement that defendant
would receive a mandatory jail term was not prejudicial where the actual sentence
would be less severe than what the trial court outlined).
{¶ 56} Fifth, appellate counsel raises that Beaty sent a letter to the court
prior to sentencing, seeking to withdraw his plea due to ineffective assistance of
counsel. Beaty claimed that his counsel did not prepare for trial, failed to
investigate the facts of the case, provided false information to him, and coerced him
to enter a plea. Beaty further stated that he was not permitted to participate in the
selection of the jury.
{¶ 57} A defendant’s motion to withdraw a plea, made before sentencing,
should be freely and liberally granted, provided the movant demonstrates a
reasonable and legitimate basis for the withdrawal. State v. Xie (1992), 62 Ohio
St.3d 521, 526. However, a defendant does not have an absolute right to withdraw 15
his plea prior to sentencing. Id. A trial court must hold a hearing on the motion to
determine if a reasonable and legitimate basis exists for the withdrawal. Id.; State
v. Bennett, 192 Ohio App.3d 608, 2011-Ohio-961, ¶9. A trial court may satisfy the
requirement for a full and fair hearing on a motion to withdraw a plea by allowing
the defendant and his attorney to speak at a sentencing hearing and to explain the
basis for the motion. Bennett at ¶10; State v. Burnett, Montgomery App. No.
20496, 2005-Ohio-1036, ¶20-21. The decision whether to grant or deny a
presentence request to withdraw a guilty plea is a matter resting within the trial
court’s sound discretion. Xie, 62 Ohio St.3d at 526. Such decisions will not be
disturbed on appeal absent a showing that the trial court abused its discretion by
acting in an unreasonable, arbitrary, or unconscionable manner. Id.
{¶ 58} “No abuse of discretion in denying a presentence motion to withdraw
a plea is demonstrated where: (1) the accused is represented by highly competent
counsel, (2) the accused was afforded a full hearing, pursuant to Crim.R. 11, before
entering the plea, (3) after the motion to withdraw is filed the accused is given a
complete and impartial hearing on the motion, and (4) the record reveals that the
trial court gave full and fair consideration to the plea withdrawal request.” State v.
Chavez, Montgomery App. No. 22892, 2009-Ohio-3758, ¶61, citing State v.
Peterseim (1980), 68 Ohio App.2d 211.
{¶ 59} At the sentencing hearing, the trial court began by addressing Beaty’s
pro se motion to withdraw his plea. The court told Beaty that he would go to trial
immediately if he were permitted to withdraw his plea, and that the court was willing
to schedule a hearing on the motion. The court stated repeatedly that having a 16
hearing on the motion did not mean that the motion would be granted. Beaty and
his trial counsel conferred twice. When Beaty expressed confusion to the trial
court, the court stated:
{¶ 60} “THE COURT: It means I haven’t made up my mind. You filed a
motion – anybody’s free to file a motion at any time if they want to.
{¶ 61} “THE DEFENDANT: Right.
{¶ 62} “THE COURT: Okay? Just because you have a hearing on it doesn’t
mean your motion’s going to be granted. Just because you asked to withdraw your
plea doesn’t mean that it’s going to happen.
{¶ 63} “THE DEFENDANT: All right.
{¶ 64} “THE COURT: All right? If you want to have a hearing on it, I’ll set it
for hearing next week. I’ll make a decision on it then.
{¶ 65} “THE DEFENDANT: I mean, we can just – we can just forward with
sentence.
{¶ 66} “THE COURT: Is that what – so you’re saying on the record you want
to go forward with sentencing? You’re asking to withdraw your motion to withdraw
your plea; is that right?
{¶ 67} “THE DEFENDANT: Yes.
{¶ 68} “THE COURT: Is that what you want to do?
{¶ 69} “THE DEFENDANT: Yes.”
{¶ 70} We find no arguably meritorious issues related to Beaty’s motion to
withdraw his plea. At the beginning of the sentencing hearing, the trial court noted
that a motion to withdraw Beaty’s plea had been filed, and the court repeatedly 17
offered Beaty the opportunity for an evidentiary hearing on that motion. The record
reflects that Beaty voluntarily withdrew his motion after conferring with counsel and
discussing the motion with the trial court. The trial court did not pressure Beaty
into withdrawing the motion; it merely emphasized that scheduling a hearing on the
motion did not guarantee that the motion would be granted. And because Beaty’s
motion was withdrawn, the record does not include any evidence demonstrating
that Beaty had a reasonable and legitimate basis for his motion.
{¶ 71} Finally, appellate counsel raises whether Beaty’s sentence was an
abuse of discretion. We review a felony sentence using a two-step procedure.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. “The first step is to
‘examine the sentencing court’s compliance with all applicable rules and statutes in
imposing the sentence to determine whether the sentence is clearly and
convincingly contrary to law.’” State v. Stevens, 179 Ohio App.3d 97,
2008-Ohio-5775, ¶4, quoting Kalish at ¶4. “If this step is satisfied, the second step
requires that the trial court’s decision be ‘reviewed under an abuse-of-discretion
standard.’” Id.
{¶ 72} Beaty pled no contest to felonious assault, a second degree felony
with a maximum sentence of eight years, and having weapons while under
disability, a third degree felony with a maximum sentence of five years. Beaty
received five years for felonious assault and three years for having weapons while
under disability, to run concurrently. Each of these sentences is within the
sentencing range. And, as required by law, Beaty received three years for the
firearm specification, to be served prior to and consecutive to the sentences for the 18
offenses. Beaty’s sentence was not contrary to law.
{¶ 73} The record reflects that Beaty shot the victim because he believed the
victim had stolen his drugs. At the time of the shooting, Beaty had been on
community control in another case for less than a month. Considering the
circumstances of the crime and the mid-range, concurrent sentences that Beaty
received, Beaty has no potentially meritorious challenge to the length of his
sentences.
{¶ 74} In his pro se brief, Beaty raises several of the issues that were
included in appellate counsel’s brief. We have already addressed those issues
and will not repeat our analysis. He also raises several additional arguments, which
we will address separately.
{¶ 75} Beaty asserts that he filed a motion to suppress the news footage and
that his motion was denied. The record does not contain such a motion. And we
cannot conclude, based on the record before us, that such a motion would have
been successful even if it had been filed.
{¶ 76} Beaty next claims that the trial court found him guilty because the
judge had seen the news footage. It is unclear what Beaty means by this claim.
Perhaps Beaty is arguing that the trial court’s reference at the plea hearing to
Beaty’s admission to the media meant that the court was predetermined to find him
guilty, regardless of whether he entered a plea or went to trial. Or perhaps Beaty
means that the court would not allow him to withdraw his plea “[n]o matter what was
said” at a hearing on that motion.
{¶ 77} “A judge is presumed to follow the law and not to be biased, and the 19
appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241,
2003-Ohio-5489, ¶5; Rejas Invests. v. Natl. City Bank, Montgomery App. No.
21243, 2006-Ohio-5586, ¶98. Intermediate appellate courts, such as this one,
have no jurisdiction to disqualify a judge based on claims of bias; such claims must
be brought to the Chief Justice of the Ohio Supreme Court. See Beer v. Griffith
(1978), 54 Ohio St.2d 440, 441-442. If there were a concern about judicial bias,
Beaty should have raised the issue at that time and not waited for the appeal.
Janis v. Janis, Montgomery App. No. 23898, 2011-Ohio-3731, ¶95.
{¶ 78} Regardless, it is apparent that the trial court commented on the news
footage during the plea hearing in order to emphasize that the State had a strong
case against him based on his own confessions and to question Beaty on how he
believed his counsel should have proceeded. Prior to this exchange, the trial court
had informed Beaty that, “based upon the facts in the indictment and the plea itself,
the Court will proceed to a judgment of guilty on all three counts and set your case
for sentencing on April 21st.” We find no reasonable argument that Beaty’s
conviction was based on judicial bias.
{¶ 79} Beaty also claims that he was not permitted to participate in jury
selection and that the jury was tainted because they were in the same hallway as
Beaty, his mother, and his trial counsel when Beaty’s counsel advised him to enter
a plea. The trial court began the plea hearing by stating: “The record should reflect
that the jury is present and we’re prepared to get started with the trial ***.”
However, it is unclear from the record whether the trial court was referring to 20
potential jurors who had responded to the court’s summons or whether a jury had
already been selected. Even assuming that a jury had been selected, Beaty has
not provided a transcript of the jury selection portion of his trial. Consequently, the
record does not portray the error that Beaty alleges. Moreover, there is no
evidence, and it is extremely doubtful, that any jurors (potential or selected) were
present during the plea discussion. And considering that Beaty’s case did not go
to trial, Beaty has not demonstrated how he was prejudiced by these alleged errors.
{¶ 80} Finally, Beaty claims that he was sentenced two days after the
scheduled trial date, without having entered a plea, in front of the news media.
Beaty entered a no contest plea on April 5, 2010, after a proper Crim.R. 11 plea
hearing. The plea forms were signed by Beaty and his trial counsel. Beaty was
brought before the court for sentencing on April 28, 2010. He returned to the court
on July 21, 2010, after the trial court was informed that the original judgment entry
was not a final appealable order because it failed to specify the amount of
restitution. Beaty’s assertion that he was found guilty without a plea and was
sentenced two days later is frivolous.
{¶ 81} In addition to reviewing the issues raised by Beaty’s appellate counsel
and by Beaty in his pro se brief, we have conducted an independent review of the
trial court’s proceedings and have found no potential assignments of error having
arguable merit. The trial court’s judgment will be affirmed.
GRADY, P.J. and FAIN, J., concur.
Copies mailed to: 21
Laura M. Woodruff Richard A. Nystrom Joshua L. Beaty Hon. Mary Katherine Huffman