[Cite as State v. Leib, 2024-Ohio-1081.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 23CA4
v. :
WAYNE LEIB, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
___________________________________________________________________ APPEARANCES:
James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, for appellee.
Christopher Bazeley, Cincinnati, Ohio, for appellant.1 ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:3-18-24 ABELE, J.
{¶1} This is an appeal from a Meigs County Common Pleas Court
judgment of conviction and sentence for aggravated murder.
{¶2} Wayne Leib, defendant below and appellant herein, assigns
two errors for review:
FIRST ASSIGNMENT OF ERROR:
“BECAUSE LIEB HAD TO SPECULATE AS TO WHETHER HE HAD THE INTENT TO COMMIT AGGRAVATED MURDER, HIS GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY, OR
1 Different counsel represented appellant during the trial court proceedings. 2 MEIGS, 23CA4
INTELLIGENTLY GIVEN.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S SENTENCE IS CONTRARY TO LAW BECAUSE IT CONSIDERED LIEB’S SILENCE AS A LACK OF REMORSE.”
{¶3} On September 30, 2022, appellant, who was homeless, rode
his bicycle to the victim’s residence and killed the victim with a
firearm. Eyewitnesses heard a gunshot and observed appellant
hurriedly leave the residence on his bicycle. When law enforcement
found appellant, another eyewitness stated that appellant admitted
that he killed the victim and hid the firearm at that location.
Appellant later said that he killed the victim because he
believed the victim molested children.
{¶4} In November 2022, a Meigs County Grand Jury returned an
indictment that charged appellant with one count of aggravated
murder in violation of R.C. 2903.01(A) and one count of murder in
violation of R.C. 2903.02(A), both with firearm specifications and
both unclassified felonies. Appellant pleaded not guilty by reason
of insanity (NGRI), and the trial court ordered an assessment.
{¶5} Appellant’s psychological evaluation revealed that he had
been hospitalized for 12 days in 2019 and has a history of bipolar
disorder, schizophrenia and “self-injurious behavior consisting of
punching himself and using heroin to cope with hallucinations.” 3 MEIGS, 23CA4
Appellant has “been homeless and * * * using substances,” reported
hearing voices telling him to hurt himself, reported feeling that
he is “being watched, targeted, and followed for the last three
years,” and believed “smoke-like figures” that were “demon[s] in
the Bible hundreds of years ago” put “thoughts in his head for
years.”
{¶6} The evaluation further provided that appellant “spoke
coherently and relevantly and had no indication of a formal thought
disorder at the time of the interview.” In addition to daily
illicit drug use, clinical impressions included that appellant “has
a severe mental illness, schizoaffective disorder, which in his
case involves hallucinations, delusions, and magical thinking, as
well as mood symptoms, including unstable mood, periods of mania,
depression, and anxiety.” The evaluation also revealed that
appellant stated that he killed the victim to avenge the victim’s
alleged victimization of children. The report specified that
appellant fled the scene, hid incriminating evidence, and refused
to speak when interrogated. The evaluation concluded that
appellant “had a severe mental disease, but not a mental defect, at
the time of the offense, but that a severe mental disease or defect
did not cause the defendant to fail to know the wrongfulness of his
actions at the time of the offense charged.” 4 MEIGS, 23CA4
{¶7} At the change of plea hearing, appellant indicated that
he consulted with his attorney, who read the plea agreement to him,
and expressed satisfaction with his representation. Appellant also
acknowledged that he understood the plea agreement, the allegations
contained in the indictment, the rights he waived with his guilty
plea, and possible penalties. The trial court specified that the
sentence is mandatory, that appellant is ineligible for community
control and judicial release, must pay costs, and, if released,
will be on parole for the remainder of his life.
{¶8} When the trial court questioned appellant about the
underlying facts, appellant stated, “Uh, just basically like what
it said. I, you know, I shot Dwayne Qualls. Took his life on that
day.” When the trial court asked, “So, [you] shot him with the
intent of killing him,” appellant replied, “I suppose so, yea.”
Consequently, appellant withdrew his not guilty plea and pleaded
guilty to one count of aggravated murder in violation of R.C.
2903.01(A).
{¶9} After the plea hearing, the trial court immediately
proceeded to sentencing. After the state and the defense spoke,
the court asked, “Mr. Leib, do you have anything to say on your own
behalf or to present any information in mitigation of punishment?” 5 MEIGS, 23CA4
Appellant replied, “no.” The court asked, “[d]on’t want to say
anything at all?” Appellant replied, “No, ma’am.”
{¶10} In reviewing the sentencing factors, the trial court
noted, “Um, the Court has not had the opportunity to look at
whether or not there’s remorse because there’s no * * * no
statement from the defendant, although he has readily admitted the
offense, uh, it sounds like and taken responsibility here today,
has not tried to blame others or anything like that.”
{¶11} After consideration, the trial court (1) sentenced
appellant to serve life in prison without the possibility of
parole, (2) dismissed count two and the gun specifications without
prejudice, and (3) ordered appellant to pay all costs. This appeal
followed.
I.
{¶12} In his first assignment of error, appellant asserts that
he did not enter a knowing, intelligent and voluntary guilty plea
because he had “to speculate as to whether he had the intent to
commit the offense.” In particular, appellant refers to his
response to the trial court’s questioning about his intent to kill
the victim “I suppose so, yea,” at sentencing as speculative.
{¶13} “Because a no-contest or guilty plea involves a waiver of
constitutional rights, a defendant’s decision to enter a plea must 6 MEIGS, 23CA4
be knowing, intelligent, and voluntary.” Crim.R. 11, State v.
Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10,
citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121
L.Ed.2d 391 (1992). Thus, if the defendant did not enter the plea
knowingly, intelligently, and voluntarily, enforcement of that plea
is unconstitutional. Id.
{¶14} Appellate courts apply a de novo standard of review when
evaluating a plea’s compliance with Crim.R. 11(C). State v. Nero,
56 Ohio St.3d 106, 108-109, 564 N.E.2d 474 (1990). Moreover,
evidence of a written waiver form signed by the accused constitutes
strong proof of a valid waiver. State v. Clark, 38 Ohio St.3d 252,
261, 527 N.E.2d 844 (1988). In the present case, appellant does
not challenge the trial court’s compliance with Crim.R. 11, but
rather argues that due to his “speculative” response, he did not
enter a knowing, intelligent, or voluntary guilty plea.
{¶15} In the case sub judice, appellant’s signed written plea
of guilty form is included in the record. Also, during the plea
colloquy the trial court reviewed the elements of the charge, the
possible sentence and asked appellant if he understood that his
guilty plea waived his right to a jury trial, right not to testify
against himself, right to confront witnesses, right to compulsory
process, and right to require the state to prove his guilt beyond a 7 MEIGS, 23CA4
reasonable doubt. Appellant responded that he did understand. The
court further reviewed appellant’s mental health and medication
history and asked appellant if he entered his plea intelligently,
knowingly, and voluntarily. Appellant characterized the offense as
“just basically like what it said. I, you know, I shot Dwayne
Qualls. Took his life on that day.” The court then asked, “So,
shot him with the intent of killing him?” Appellant replied, “I
suppose so, yea.” After that, appellant withdrew his not guilty
plea and entered a plea of guilty to the aggravated murder charge.
{¶16} Appellant asserts that he did not enter a knowing,
voluntary, or intelligent plea because his response to the trial
court’s inquiry indicated speculation regarding intent to commit
the offense. Appellant argues that, when asked if he intended to
kill the victim, he responded, “I suppose so.” The record,
however, indicates that appellant replied, “I suppose so, yea.”
The latter part of the phrase shows an affirmative response.
Turning to the words, “I suppose so,” the Supreme Court of Ohio has
held that “[t]o determine the common, everyday meaning of a word,
we have consistently used dictionary definitions.” State v. Wells,
91 Ohio St.3d 32, 34, 740 N.E.2d 1097 (2001); Campus Bus Serv. v.
Zaino, 98 Ohio St.3d 463, 2003-Ohio-1915, 786 N.E.2d 889, ¶ 21.
Thus, a court may take judicial notice of definitions in standard 8 MEIGS, 23CA4
dictionaries. Andrews v. Tax Comm. of Ohio, 135 Ohio St. 374, 21
N.E.2d 106 (1939). In addition to dictionary definitions, courts
may also look to the “meaning that the word [] ha[s] acquired when
* * * used in case law.” Rancho Cincinnati Rivers, L.L.C. v.
Warren Cty. Bd. of Revision, 165 Ohio St.3d 227, 2021-Ohio-2798,
177 N.E.3d 256, ¶ 21.
{¶17} The Online Oxford English Dictionary defines “suppose,”
inter alia, as “to hold as a belief or opinion; to believe in the
truth of; to think, be of the opinion” and “[t]o assume (without
reference to truth or falsehood) as a basis of argument, or for the
purpose of tracing consequences; to frame as a hypothesis; to put
as an imaginary case; to posit,” and “[t]o believe as a certainty,
know, understand.” Oxford English Dictionary, s.v. “suppose, v.”,
September 2023. (accessed
December 11, 2023). The online edition of Merriam-Webster’s
Dictionary defines “suppose” as a transitive verb meaning “a. to
lay down tentatively as a hypothesis, assumption, or proposal, b.
to hold as an opinion, or to think probable or in keeping with the
facts.” Merriam-Webster.com. Dictionary, “suppose, v.”
(accessed
December 11, 2023). Webster’s New World Dictionary defines
“suppose” as “to suppose, assume * * * to assume to be true, as for 9 MEIGS, 23CA4
the sake of argument, or to illustrate a proof.” Third College
Edition Webster’s New World Dictionary of American English 1346
(1991). Finally, the Shorter Oxford English Dictionary on
Historical Principles defines “suppose” as “[h]old as an opinion;
believe as a fact; think as if certain that.” And the same
dictionary defines “suppose so” as “expressing hesitant agreement.”
Shorter Oxford English Dictionary on Historical Principles 316-317
(Sixth Ed.2007). Thus, the dictionary definitions collectively
lead us to conclude that appellant’s response “I suppose so”
indicates a belief or opinion held as fact.
{¶18} In State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323
(1983), the Supreme Court of Ohio considered the meaning of the
phrase “I suppose so,” uttered during voir dire. The court
observed that the expression is a colloquialism. Id. at 288. The
court pointed out: “[D]epending on the facial movements or physical
gesture that accompany [it], [the colloquialism] can be as
unequivocal as [a] ‘yes’ answer.” Id. Moreover, the court noted
that because a trial court is best positioned to observe a juror’s
demeanor during voir dire, the court refrained from challenging the
“propriety of its determination.” Id. See also State v. Anthony,
2019-Ohio-5410, 151 N.E.3d 13, ¶ 15 (11th Dist.)(trial court best
position to determine defendant’s genuineness); State v. Moore, 6th 10 MEIGS, 23CA4
Dist. Lucas No. L-17-1291, 2019-Ohio-1032, ¶ 35 (trial court best
position to judge credibility). We believe that appellant’s
statement acknowledged his commission of the offense and his desire
to enter a guilty plea.
{¶19} Consequently, after our review we conclude that appellant
entered a knowing, intelligent, and voluntary guilty plea.
Accordingly, we overrule appellant’s first assignment of error.
II.
{¶20} In his second assignment of error, appellant asserts that
the trial court’s sentence is contrary to law because the court
considered appellant’s silence at sentencing as a lack of remorse.
This argument involves the trial court’s consideration of the
sentencing factor in R.C. 2929.12(D)(5). State v. Brunson, 171
Ohio St.3d 384, 2022-Ohio-4299, 218 N.E.3d 765.
{¶21} As Brunson points out, an appellate court’s review of the
R.C. 2929.11 and 2929.12 sentencing factors is limited under R.C.
2953.08(G)(2)(b). Id. R.C. 2953.08(G) provides, in relevant part,
that after an appellate court reviews the record, it “may increase,
reduce, or otherwise modify a sentence that is appealed under this
section or may vacate the sentence and remand * * * if it clearly
and convincingly finds * * * [t]hat the sentence is * * * contrary 11 MEIGS, 23CA4
to law.” R.C. 2953.08(G)(2)(b). Moreover, whether a trial court
improperly considered an offender’s silence at sentencing as
demonstrating a lack of remorse falls within the parameters of
whether a sentence is “otherwise contrary to law,” and is therefore
proper for appellate review under R.C. 2953.08(G)(2)(b). See
Brunson at ¶ 70.
{¶22} In the case sub judice, in light of no objection to the
trial court's alleged inference of lack of remorse from appellant’s
decision not to speak at sentencing, this court is limited to a
plain error review. Brunson at ¶ 65-67 (applying plain-error
review when defendant did not object to “the trial court's
consideration of his decision to remain silent and waive allocution
in finding that he lacked remorse”).
{¶23} For the plain error doctrine to apply, the party claiming
error must establish (1) that “‘an error, i.e., a deviation from a
legal rule’” occurred, (2) that the error was “‘an “obvious” defect
in the trial proceedings,’” and (3) that this obvious error
affected substantial rights, i.e., the error “‘must have affected
the outcome of the trial.’” State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 22, quoting State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); accord State v.
Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62; 12 MEIGS, 23CA4
State v. Young, 2018-Ohio-4990, 125 N.E.3d 177, ¶ 4 (4th Dist.).
For an error to be “plain” or “obvious,” the error must be plain
“under current law” “at the time of appellate consideration.”
Johnson v. United States, 520 U.S. 461, 467, 468, 117 S.Ct. 1544,
137 L.Ed.2d 718 (1997); accord Barnes, 94 Ohio St.3d at 27, 759
N.E.2d 1240; State v. G.C., 10th Dist. Franklin No. 15AP-536, 2016-
Ohio-717, ¶ 14. “We take ‘[n]otice of plain error * * * with the
utmost caution, under exceptional circumstances and only to prevent
a manifest miscarriage of justice.’” Obermiller at ¶ 62, quoting
State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
“Reversal is warranted only if the outcome of the [proceeding]
clearly would have been different absent the error.” State v.
Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001).
{¶24} Crim.R. 32(A) requires trial courts to allow defendants
to speak during sentencing hearings. “‘The purpose of allocution
is to permit the defendant to speak on his own behalf or present
any information in mitigation of punishment.’” (Citations omitted.)
State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d
1121, ¶ 85. The Crim.R. 32 inquiry “is much more than an empty
ritual: it represents a defendant’s last opportunity to plead his
case or express remorse.” State v. Green, 90 Ohio St.3d 352, 359-
360, 738 N.E.2d 1208 (2000). However, the opportunity for a 13 MEIGS, 23CA4
defendant to speak during a sentencing hearing does not require
that a defendant speak. “‘Any effort by the State to compel [the
defendant] to testify against his will at the sentencing hearing
clearly would contravene the Fifth Amendment.’” Mitchell v. United
States, 526 U.S. 314, 326, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999),
quoting Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981). Thus, a sentencing court cannot use silence at
sentencing against a defendant because the right against self-
incrimination follows the defendant to sentencing. Mitchell at
321. Mitchell also held that it is inappropriate to infer facts of
the crime from a defendant’s silence at sentencing. However,
Mitchell “did not address whether a defendant’s ‘silence bears upon
the determination of a lack of remorse, or upon the acceptance of
responsibility for the purposes of the downward adjustment provided
[in the federal sentencing guidelines].’” Brunson at ¶ 76, quoting
Mitchell at 330.
{¶25} Although the United States Supreme Court did not address
whether lack of remorse could be inferred from a defendant’s
silence at sentencing, the Supreme Court of Ohio addressed the
issue in Brunson. The court cited White v. Woodall, 572 U.S. 415,
134 S.Ct. 1697, 188 L.Ed.2d 698 (2014), to point out that Mitchell
may permit some negative inferences regarding a defendant’s silence 14 MEIGS, 23CA4
at sentencing. Brunson at ¶ 77, citing Woodall at 422, 134 S.Ct.
1697. Brunson held that “a trial court errs in its evaluation of a
defendant’s lack of remorse when it considers that defendant’s
decision to waive allocution and remain silent at sentencing if the
defendant pleaded not guilty and exercised his or her right to a
jury trial.” (Emphasis added.) Brunson at ¶ 4. The court stated
that the “focus in determining whether a negative inference from a
defendant’s silence may be considered as a demonstration of that
defendant’s lack of remorse is on whether the inference affects the
factual determinations in the case.” Id. at ¶ 78. The court wrote
at ¶ 81:
Because ‘remorse’ is a loaded term and showing remorse requires a person to acknowledge that he or she committed an offense, a finding of a lack of remorse necessarily goes ‘to factual determinations respecting the circumstances and details of the crime’ (emphasis sic), Mitchell, 526 U.S. at 328, 119 S.Ct. 1307, 143 L.Ed.2d 424, because it implicates the defendant’s role in the crime. For a criminal defendant who pleaded not guilty and took the case to trial, thus maintaining his or her innocence, a finding of a lack of remorse based on the defendant’s silence is to use that silence to infer the defendant’s involvement in the crime. If the trial court is permitted to use the defendant’s silence to infer his or her involvement in the crime, the defendant ‘might reasonably feel compelled to trade the certainty of incrimination by silence for the possibility of incrimination by statement.’ State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 40 (O’Connor, J., concurring). Such an inference would violate the Fifth Amendment. See Mitchell at 326-327, 119 S.Ct. 1307 (any effort by the state to compel a defendant to testify at sentencing would clearly contravene the Fifth Amendment). And such an inference would go against the [Cite as State v. Leib, 2024-Ohio-1081.]
essential purpose of the right to remain silent - ‘to protect a defendant from being the unwilling instrument of his or her own condemnation,’ id. at 329, 119 S.Ct. 1307.
{¶26} Other Ohio courts have held that a defendant’s silence at
sentencing may not be used against the defendant in fashioning a
sentence. State v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-
5533, ¶ 29. However, lack of remorse is a sentencing factor under
R.C. 2929.12(D)(5). Therefore, even when a defendant does not
speak at sentencing, “the court’s statement that the defendant
demonstrated a lack of remorse and an unwillingness to take
responsibility, does not demonstrate that a court’s sentencing
decision is based upon the silence but shows only that the court
was considering the statutory sentencing factors.” State v.
Clunen, 7th Dist. Columbiana No. 12 CO 30, 2013-Ohio-5525, ¶ 21;
State v. Moore, 11th Dist. Geauga No. 2011-G-3027, 2012-Ohio-3885,
¶ 47; Hodges, supra, at ¶ 11.
{¶27} The Eleventh District recently considered facts similar
to the facts present in the case at bar. After the defendant
pleaded guilty, the appellate court pointed out that the Brunson
holding “that a court may not infer a lack of remorse from a
defendant’s silence at sentencing [is] limited to where a defendant
has pleaded not guilty and gone to trial, which is not the case
here.” State v. Gurto, 11th Dist. Ashtabula No. 2022-A-0045, 2023- [Cite as State v. Leib, 2024-Ohio-1081.]
Ohio-2351, ¶ 19. Thus, the court held that because the defendant
pleaded guilty, “we cannot discern how an inference of lack of
remorse pertains to facts of the case, as Gurto already
acknowledges wrongdoing through his guilty plea.” Id. at ¶ 20.
{¶28} In State v. Lowery, 2d Dist. Clark No. 2023-CA-4, 2023-
Ohio-4444, the Second District considered a case similar to the
instant case. In Lowery, the defendant pleaded guilty, but later
alleged that the prosecutor’s argument that Lowery’s failure to
identify his codefendant constitutes an aggravating sentencing
factor that violated his Fifth Amendment rights. In rejecting this
contention, the Second District held at ¶ 19:
We note too that Ohio case law preceding Brunson permitted a trial court to infer a lack of remorse from silence following a guilty plea without running afoul of the Fifth Amendment. See State v. Duhl, 2d Dist. Champaign No. 2016- CA-30, 2017-Ohio-5492, ¶ 31 (“Duhl pled guilty to the crimes. Furthermore, * * * the court here was not trying to draw adverse inferences about the circumstances of the crime in order to punish Duhl more severely. Instead, the transcript clearly indicates that the trial court's focus was on whether Duhl was remorseful for the crimes he had committed.”); State v. Taft, 6th Dist. Huron No. H-18-003, 2019-Ohio-1565, ¶ 33, quoting Duhl at ¶ 31 (“[A] trial court does not violate a defendant's right against self- incrimination when it notes that the defendant's silence shows a lack of remorse or an unwillingness to take responsibility for the crime because it is not using the silence ‘to draw adverse inferences about the circumstances of the crime in order to punish [the defendant] more severely.’ ”). In light of the foregoing authority, we see no obvious Fifth Amendment violation arising from the trial court's inference of a lack of remorse based on Lowery's refusal to identify his accomplice at sentencing. [Cite as State v. Leib, 2024-Ohio-1081.]
Id. at ¶ 19.
{¶29} In the case sub judice, after our review we do not
believe that the trial court penalized appellant for his silence at
sentencing. After appellant’s guilty plea, the trial court
analyzed the sentencing factors and stated, “Uh, the Court has not
had the opportunity to look at whether or not there’s remorse
because there’s no * * * no statement from the defendant, although
he has readily admitted the offense, uh, it sounds like and taken
responsibility here today, has not tried to blame others or
anything like that.” We believe that the trial court’s comments
represent the court’s review of the R.C. 2929.12 factors, rather
than drawing any adverse inference and penalizing appellant for his
silence. Moreover, as in Gurto and Lower, we conclude that when
appellant pleaded guilty, he already had acknowledged wrongdoing.
Therefore, we find no error, plain or otherwise, and overrule
appellant’s second assignment of error.
{¶30} Accordingly, for all of the foregoing reasons, we affirm
the trial court’s judgment.
JUDGMENT AFFIRMED. [Cite as State v. Leib, 2024-Ohio-1081.] MEIGS, 23CA4 19
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee recover from appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.