State v. Carmichael

2020 Ohio 6767

• Court: Ohio Court of Appeals
• Decided: December 18, 2020
• Docket: 2020-CA-7
• Status: Published

Opinion

[Cite as State v. Carmichael, 2020-Ohio-6767.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-7 : v. : Trial Court Case Nos. 2015-CR-677 & : 2016-CR-07A ADAM CARMICHAEL : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 18th day of December, 2020.

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

MISTY M. CONNORS, Atty. Reg. No. 0075457, P.O. 340246, Dayton, Ohio 45434 Attorney for Defendant-Appellant

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DONOVAN, J. -2-

{¶ 1} Adam Carmichael appeals from the trial court’s January 2, 2020 order which

denied his pro se motion to withdraw his guilty pleas without a hearing. Carmichael’s

appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967). This court advised Carmichael that appellate counsel had

filed an Anders brief and granted him 60 days to file a pro se brief assigning any errors

for review by this court. No pro see brief has been received. Having conducted a

thorough review of the record for potentially meritorious issues, and having found none,

we hereby affirm the judgment of the trial court.

{¶ 2} On December 28, 2015, Carmichael was indicted in Clark C.P. No. 2015-CR-

677, on one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), with a firearm

specification, and one count of aggravated burglary, in violation of R.C. 2911.11(A)(1),

both felonies of the first degree. On January 4, 2016, Carmichael was indicted in Clark

C.P. No. 2016-CR-07A on one count of aggravated robbery, in violation of R.C.

2911.01(A)(3), a felony of the first degree; one count of felonious assault, in violation of

R.C. 2903.11(A)(1), a felony of the second degree; and one count of abduction, in

violation of R.C. 2905.02(A)(2), a felony of the third degree.

{¶ 3} On March 4, 2016, pursuant to a plea agreement, Carmichael pled guilty to

aggravated robbery in Case No. 2015-CR-677, and the firearm specification and the

charge of aggravated burglary were dismissed. In Case No. 2016-CR-07A, Carmichael

pled guilty to aggravated robbery and felonious assault, and the charge of abduction was

dismissed. Carmichael was sentenced to an agreed sentence of four years on each

offense, to be served consecutively, for an aggregate prison term of 12 years. He did

not file a direct appeal. -3-

{¶ 4} On March 21, 2017, in Case No. 2016-CR-07A, Carmichael filed a pro se

motions for appointment of counsel, to “compel discovery of transcript,” and for

resentencing. The State opposed the motion for resentencing. On April 26, 2017, the

court overruled all of Carmichael’s motions, noting that he had agreed to his sentence “in

open court and by a written guilty plea.”

{¶ 5} On August 28, 2017, Carmichael filed a pro se motion in Case No. 2016-CR-

07A to withdraw his guilty plea pursuant to Crim.R. 32.1; his motion asserted that his

mouth had been wired shut at the plea hearing, that he had been unable to speak, that

he had been under the influence of medication at the time, and that he did not understand

the documents he signed Carmichael also filed a motion for transcripts. The State

opposed Carmichael’s motion to withdraw his pleas on February 7, 2018.

{¶ 6} The court did not rule on the motion to withdraw and, on November 12, 2019,

Carmichael filed another pro se motion to withdraw his guilty pleas pursuant to Crim.R.

32.1; he again argued that his mouth had been wired shut at his plea hearing, that he had

been under the influence of pain medication, and that, because he could not talk during

the Crim.R. 11 hearing, it “cannot be reasonably said” that the plea hearing “was properly

conducted.” The State opposed the second motion to withdraw plea.

{¶ 7} On January 2, 2020, the court denied Carmichael’s motion without a hearing,

stating that, based on its review the pleadings, plea agreement, Carmichael’s motion, and

the State’s response, the court found that Carmichael had not demonstrated a manifest

injustice.

{¶ 8} We review an Anders appeal as follows:

An appellate court, upon the filing of an Anders brief, has a duty to -4-

determine, “after a full examination of the proceedings,” whether the appeal

is, in fact, “wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18

L.Ed. 493; Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d

300 (1988). An issue is not frivolous based upon a conclusion that the

State has a strong responsive argument. State v. Pullen, 2d Dist.

Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. A frivolous issue, instead,

is one about which, “on the facts and law involved, no responsible

contention can be made that offers a basis for reversal.” State v. Marbury,

2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. If we find that any

issue is not wholly frivolous, we must reject the Anders brief and appoint

new counsel to represent the defendant.

State v. Allen, 2d Dist. Clark No. 2018-CA-60, 2019-Ohio-1253, ¶ 5.

{¶ 9} Carmichael’s appellate counsel asserts that she thoroughly examined the

record in this case, researched applicable law, and found no meritorious issues upon

which to base an appeal. However, she asserts two potential assignments of error. The

first potential assignment of error is as follows:

DID THE TRIAL COURT ERR BY DENYING DEFENDANT’S

MOTION TO VACATE A VOID JUDGMENT OR WITHDRAW HIS GUILTY

PLEA WITHOUT AN EVIDENTIARY HEARING BECAUSE DEFENDANT

WAS TAKING OXYCODONE WHEN HE ENTERED THE PLEA

AGREEMENT?

{¶ 10} Crim. R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct manifest injustice the court -5-

after sentence may set aside the judgment of conviction and permit the defendant to

withdraw his or her plea.”

{¶ 11} As this Court recently noted:

* * * “ ‘A “manifest injustice” comprehends a fundamental flaw in the

path of justice so extraordinary that the defendant could not have sought

redress from the resulting prejudice through another form of application

reasonably available to him or her.’ ” State v. Brooks, 2d Dist. Montgomery

No. 23385, 2010-Ohio-1682, ¶ 8 quoting State v. Hartzell, 2d Dist.

Montgomery No. 17499, 1999 WL 957746, *2 (Aug. 20, 1999). Therefore,

“[w]ithdrawal of a plea after sentencing is permitted only in the most

extraordinary cases.” State v. Ray, 2d Dist. Champaign No. 2019-CA-31,

2020-Ohio-4769, ¶ 13, citing State v. Jefferson, 2d Dist. Montgomery No.

26022, 2014-Ohio-2555, ¶ 17, citing State v. Smith, 49 Ohio St.2d 261, 264,

361 N.E.2d 1324 (1977).

“[A] defendant ordinarily may establish a manifest injustice within the

context of Crim.R. 32.1 by showing that he did not enter the guilty plea in a

knowing, intelligent, or voluntary manner.” State v. Riley, 4th Dist.

Washington No. 16CA29, 2017-Ohio-5819, ¶ 18 citing State v. Fry, 7th Dist.

Mahoning No. 12 MA 156, 2013-Ohio-5865, ¶ 12 (“A guilty plea that was

not entered knowingly, intelligently, or voluntarily, creates a manifest

injustice that would entitle a defendant to withdraw a guilty plea.”); State v.

Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012-Ohio-199, ¶ 13

(“If a defendant's guilty plea is not knowing and voluntary, it has been -6-

obtained in violation of due process and is void.”); State v. Hall, 4th Dist.

Jackson No. 99CA847, 2000 WL 245492, *2 (Feb. 25, 2000) (“A trial court

violates a defendant's due process rights, and hence may produce a

manifest injustice, if it accepts a guilty plea that the defendant did not enter

knowingly, intelligently, and voluntarily.”).

“ ‘A motion made pursuant to Crim.R. 32.1 is addressed to the sound

discretion of the trial court, and the good faith, credibility, and weight of the

movant's assertions in support of the motion are matters to be resolved by

that court.’ ” State v. Hawke, 2d Dist. Greene Nos. 2019-CA-24 and 2019-

CA-25, 2020-Ohio-511, ¶ 14, quoting State v. Yapp, 2015-Ohio-1654, 32

N.E.3d 996, ¶ 19 (8th Dist.), citing Smith at paragraph two of the syllabus.

“ ‘Consequently, an appellate court's review of a trial court's denial of a

post[-]sentence motion to withdraw a guilty plea is limited to a determination

of whether the trial court abused its discretion.’ ” (Citations omitted.) Id.,

quoting Yapp at ¶ 9. An abuse of discretion occurs when a trial court's

decision is “unreasonable, arbitrary or unconscionable.” AAAA Ents., Inc.

v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990).

State v. Leifheit, 2d Dist. Clark No. CA 78, 2020-Ohio-5106, ¶ 15-17.

{¶ 12} As this Court has further noted:

The trial court is not required to hold an evidentiary hearing on every

post-sentence motion to withdraw a plea. E.g., State v. Harden, 2d Dist.

Montgomery No. 24063, 2012-Ohio-1657, ¶ 14. “A hearing is required only -7-

if the facts alleged by the defendant, if accepted as true, would require the

plea to be withdrawn.” State v. McComb, 2d Dist. Montgomery Nos.

22570, 22571, 2009-Ohio-295, ¶ 19. The trial court should hold a hearing

“unless it is clear that denial of the motion is warranted.” Id., quoting State

v. Francis, 104 Ohio St.3d 490, 500, 2004-Ohio-6894, 820 N.E.2d 355, ¶

51.

State v. Hall, 2d Dist. Greene No. 2011-CA-32, 2012-Ohio-2539, ¶ 11.

{¶ 13} In Carmichael’s case, the record reflects that, at the March 4, 2016 plea

hearing, the prosecutor described the plea agreement to the court, and defense counsel

acknowledged that the prosecutor had correctly described the agreement. Defense

counsel further informed the court that Carmichael had been recently assaulted in jail and

that his jaw was wired shut, but that he could “say yes and no.” Defense counsel

reiterated how Carmichael intended to plead, and then the following exchange occurred:

THE COURT: Is that what you want to do this afternoon, Mr.

Carmichael?

THE DEFENDANT: Yes, sir.

THE COURT: Are you under the influence of any drugs, alcohol or

medication this afternoon?

THE DEFENDANT: For my jaw.

THE COURT: Is that pain medication?

THE COURT: What pain medication are you taking?

THE DEFENDANT: I don’t know. * * * -8-

[DEFENSE COUNSEL]: Judge, I can answer the question for you,

if you give me a moment.

(Counsel looks through papers.)

[DEFENSE COUNSEL]: Mr. Carmichael is on amoxicillin. * * *

[H]e’s also taking oxycodone. * * *

THE COURT: * * * Do those medications to the best of your ability or

knowledge, are they affecting your ability to understand what’s happening

today?

THE DEFENDANT: No.

THE COURT: I’m holding up two written plea agreements, and they

appear to have your signature on them. Did you sign these two plea

agreements?

THE COURT: And did you have a chance to go over these

documents with your lawyer?

THE COURT: Did you understand everything in them?

***

THE COURT: Has anyone threatened you to get you to plead guilty?

THE DEFENDANT: No, sir.

THE COURT: Are you pleading guilty voluntarily?

THE DEFENDANT: Yes, sir. -9-

THE COURT: Did you understand the factual statement that the

prosecutor put on record about these offenses?

THE COURT: * * *

Do you understand that while the Court has agreed to the twelve year

sentence, you understand that the maximum penalty for these offenses is what I

stated1?

{¶ 14} The trial court further advised Carmichael regarding post-release control,

advised him of and ascertained that he understood his constitutional rights, and found

that he had knowingly, voluntarily, intelligently waived his rights and entered a plea of

guilty to these three offenses. The court then found him guilty on his plea. Defense

counsel then asked the court to impose the agreed-upon sentence, and the court imposed

a four-year term for each offense, to be served consecutively.

{¶ 15} The record demonstrates that Carmichael was not unable to speak at the

plea hearing. Further, he clearly advised the court that his ability to understand the

proceedings was not impaired by his medications and that he intended to enter his pleas

pursuant to the plea agreement. As appellate counsel acknowledges in the brief, “[w]ith

these admissions on the record, an evidentiary hearing would have been superfluous,”

and based on Carmichael’s admissions, the trial court reasonably concluded that he had

1 The court had advised Carmichael that the maximum sentence for aggravated robbery was 11 years, the maximum sentence for felonious assault was eight years, and that the maximum penalty he could receive for all three of these offenses was 30 years. -10-

entered his pleas knowingly, intelligently, and voluntarily. Therefore, the trial court

properly denied Carmichael’s motion to withdraw his guilty plea, because accepting the

plea agreement was not manifestly unjust under the circumstances presented. In other

words, the denial of the motion to withdraw was clearly warranted, and a hearing was not

required. Carmichael’s first potential assignment of error lacks arguable merit.

{¶ 16} Carmichael’s second potential assignment of error is as follows:

WAS TRIAL COUNSEL’S FAILURE TO FILE A TIMELY NOTICE OF

APPEAL INEFFECTIVE ASSISTANCE OF COUNSEL?

A. Was the Trial Court’s Sentence Excessive and Inconsistent with

Sentences Imposed for Similar Crimes Committed by Similar Offenders?

B. Did the Trial Court Correctly Inform Defendant About his Post-Release

Control Requirements and Consequences of Violations?

{¶ 17} Counsel for Carmichael asserts that nothing in the record in this case

suggests that Carmichael’s conviction would have been reversed on direct appeal, if such

an appeal had been filed, based on the trial court’s acceptance of his plea, the length of

his sentence, or the manner in which post-release control was imposed.

{¶ 18} Carmichael’s appeal in this case is limited to the trial court’s decision of

January 2, 2020, which overruled his motion to withdraw his guilty plea. Defense

counsel’s failure to file a direct appeal in 2016 is not properly before us. We further note

that, in August 2019 in Case No. 2015-CR-677, Carmichael also filed a pro se motion to

vacate void sentence based on the trial court’s alleged failure to properly advise him of

post-release control; the court overruled that motion, and Carmichael did not appeal.

Moreover, an agreed sentence is not subject to appellate review. State v. Gurra, 2d Dist. -11-

Miami No. 2015-CA-28, 2016-Ohio-5647, ¶ 14 (“[A]n agreed-upon sentence that is

authorized by law is simply not subject to review on appeal.”) Accordingly, we conclude

that Carmichael’s second potential assignment of error lacks merit.

{¶ 19} Since Carmichael’s Anders brief and our independent review of the record

disclose no meritorious issues upon which to base an appeal, the trial court’s judgment

denying Carmichael’s motion to withdraw his pleas is affirmed.

TUCKER, P.J. and WELBAUM, J., concur.

Copies sent to:

John M. Lintz Misty M. Connors Adam Carmichael Hon. Douglas M. Rastatter