State v. Neal

2020 Ohio 493

Opinion

[Cite as State v. Neal, 2020-Ohio-493.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108425 v. :

XAVIER NEAL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: February 13, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-630240-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brandon A. Piteo, Assistant Prosecuting Attorney, for appellee.

Stephen L. Miles, for appellant.

Xavier Neal, pro se.

RAYMOND C. HEADEN, J.:

Defendant-appellant Xavier Neal (“Neal”) filed a notice of appeal of

his conviction following his guilty plea. After reviewing the record, Neal’s appointed

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking leave to withdraw as counsel. After a thorough

review of the record, we grant counsel’s request to withdraw and dismiss the appeal.

Procedural and Substantive History

On June 19, 2018, in Cuyahoga C.P. No. CR-18-629586-A, the

Cuyahoga County Grand Jury indicted Neal on one count of felonious assault in

violation of R.C. 2903.11(A)(1), one count of felonious assault in violation of R.C.

2903.11(A)(2), and two counts of aggravated menacing in violation of R.C.

2903.21(A). This indictment was the result of Neal attacking a woman with a

baseball bat and breaking her arm.

On July 10, 2018, in Cuyahoga C.P. No. CR-18-630240-A, the

Cuyahoga County Grand Jury indicted Neal on one count of failure to comply in

violation of R.C. 2921.331(B) with a furthermore specification that his operation of

a motor vehicle caused a substantial risk of serious physical harm to persons or

property. This indictment was the result of Neal driving the wrong way down East

71st Street in Cleveland, Ohio at a high speed, ultimately driving across a field and

onto a sidewalk where children were riding bicycles. Neal was represented by

separate appointed counsel in each case.

On November 14, 2018, the court held a plea hearing. In

CR-18-630240-A, Neal pleaded guilty to one count of failure to comply as charged.

In CR-18-629586-A, Neal pleaded guilty to one count of felonious assault in

violation of R.C. 2903.11(A)(1) and one count of aggravated menacing as charged;

the remaining counts in that case were nolled. The court accepted Neal’s guilty pleas and referred him to the probation department for the preparation of a presentence-

investigation report. The court then heard a statement from the victim in

CR-18-629586-A.

On December 13, 2018, the court held a sentencing hearing. The

court heard from both defense attorneys, a friend and former colleague of Neal, Neal

himself, the victim in CR-18-629586-A, and the prosecutor. Both of Neal’s attorneys

requested that Neal receive treatment for alcohol abuse. The victim described the

extent of her injuries, stating that she suffered broken bones in her arm and had to

have a plate put in her arm. The prosecutor requested that Neal be sentenced to

prison.

The court commented on the serious and violent nature of the charges

at issue in both cases, as well as Neal’s significant criminal history. In

CR-18-630240-A, the court sentenced Neal to 24 months on the failure to comply

charge and imposed a ten-year Class 2 driver’s license suspension. In

CR-18-629586-A, the court sentenced Neal to five years in prison on the felonious

assault charge, to run consecutive to the 24-month sentence as a matter of law. The

court also sentenced Neal to six months on the aggravated menacing charge, to run

concurrently, for an aggregate sentence of seven years.

This appeal followed. Based on the belief that no prejudicial error

occurred in the trial court and that any grounds for appeal would be frivolous, Neal’s

counsel filed a motion to withdraw pursuant to Anders. This court entered a

judgment entry granting Neal 30 days to file a supplemental pro se brief raising any additional assignments of error. On September 18, 2019, Neal filed a supplemental

brief, raising one assignment of error for our review.

Law and Analysis

Anders outlined a procedure for counsel to follow to withdraw due to

the lack of any meritorious grounds for appeal. In Anders, the United States

Supreme Court held that if counsel thoroughly studies the case and conscientiously

concludes that an appeal is frivolous, he or she may advise the court of that fact and

request permission to withdraw from the case. Anders, 386 U.S. at 744, 87 S.Ct.

1396, 18 L.Ed.2d 493. Counsel’s request to withdraw must “be accompanied by a

brief referring to anything in the record that might arguably support the [a]ppeal.”

Id. Counsel must also furnish a copy of the brief to his or her client, and the court

must allow time for the appellant to file his or her own pro se brief. When these

requirements have been satisfied, the appellate court must complete an independent

examination of the trial court proceedings to determine whether the appeal is

“wholly frivolous.” Id. If we determine that the appeal is wholly frivolous, we may

grant counsel’s request to withdraw and dismiss the appeal without violating

constitutional requirements. If, however, we determine that a possible issue exists,

we must discharge counsel and appoint new counsel to prosecute the appeal. Id.

Former Loc.App.R. 16(C) of the Eighth District Court of Appeals

previously set forth the procedure regarding Anders briefs and motions to withdraw.

Pursuant to an amendment effective February 1, 2019, the rule no longer includes

any procedure regarding Anders briefs and motions to withdraw. “Nevertheless, this court has addressed the duties of defense counsel when filing an Anders brief

and those of the court of appeals when ruling on motions to withdraw as counsel on

grounds that an appeal would be frivolous.” State v. Williams, 8th Dist. Cuyahoga

No. 107847, 2019-Ohio-3766, ¶ 8, citing State v. Taylor, 8th Dist. Cuyahoga

No. 101368, 2015-Ohio-420, and State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d

323 (8th Dist.1978).

Several other districts have adopted a new procedure of no longer

accepting motions to withdraw pursuant to Anders. State v. Wilson, 2017-Ohio-

5772, 83 N.E.3d 942 (4th Dist.); State v. Cruz-Ramos, 2018-Ohio-1583, 125 N.E.3d

193, ¶ 14-17 (7th Dist.); State v. Wenner, 2018-Ohio-2590, 114 N.E.3d 800 (6th

Dist.). The Twelfth Appellate District, however, declined to adopt this new

procedure and has stated that it will continue to accept Anders briefs because they

are appropriate in certain situations. State v. Lawrence, 2018-Ohio-3987, 121

N.E.3d 1 (12th Dist.).

Since the amendment to Loc.App.R. 16(C), and in recognition of a

lack of clarity from the Ohio Supreme Court as to a uniform procedure appellate

courts should follow, this court has continued to follow the procedures outlined in

Anders. Williams; State v. Sims, 8th Dist. Cuyahoga No. 107724, 2019-Ohio-4975.

While we acknowledge that the divide among appellate districts is likely the result

of legitimate criticisms of the Anders approach, it nevertheless “‘sets forth a

procedure for ensuring that an indigent defendant’s right to counsel on appeal is

honored when his [or her] attorney asserts that the appeal is without merit.’” Williams at ¶ 11, quoting Taylor at ¶ 6. Therefore, we must consider whether Neal’s

counsel’s request to withdraw should be granted because any appeal would be

wholly frivolous. Although Neal’s counsel asserts that an appeal would be wholly

frivolous, he presents two potential assignments of error.

First, Neal’s counsel presents as a potential error whether Neal

entered his guilty plea knowingly, intelligently, and voluntarily. In order to ensure

that a defendant enters a plea knowingly, voluntarily, and intelligently, a trial court

must engage in an oral dialogue with the defendant in accordance with

Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). A

proper Crim.R. 11 colloquy ensures that the defendant is fully informed of his or her

nonconstitutional and constitutional rights and that he or she understands the

potential consequences of a guilty plea. Id. Upon an independent examination of

the record, we conclude that Neal’s guilty plea was entered knowingly, intelligently,

and voluntarily. The court strictly complied with Crim.R. 11(C) in engaging Neal in

a thorough colloquy before accepting his guilty plea.

Next, Neal’s counsel presents as a potential error whether the trial

court erred by sentencing Neal to consecutive sentences. Neal pleaded guilty to

failure to comply, in violation of R.C. 2921.331(B) for “operat[ing] a motor vehicle

so as willfully to elude or flee a police officer after receiving a visible or audible signal

from a police officer to bring the person’s motor vehicle to a stop.” This charge also

included a furthermore specification, providing that Neal caused “a substantial risk

of serious physical harm to persons or property.” Therefore, the offense constituted a felony of the third degree pursuant to R.C. 2921.331(C)(5)(a)(ii). Pursuant to

R.C. 2921.331(D), if a defendant is sentenced pursuant to division (C)(4) or (5) of

the statute for a violation of R.C. 2921.331(B) to a prison term, “the offender shall

serve the prison term consecutively to any other prison term or mandatory prison

term imposed upon the offender.”

Generally, a trial court must make certain findings, pursuant to

R.C. 2929.14(C)(4), before imposing consecutive sentences. Where a defendant is

convicted of a failure to comply offense and sentenced pursuant to

R.C. 2921.331(C)(5), however, the trial court is statutorily required to run his or her

sentence for failure to comply consecutive to any other prison term.

R.C. 2929.14(C)(3). Therefore, the trial court properly acted pursuant to a statutory

mandate in imposing consecutive sentences.

Finally, in his pro se brief, Neal argues that he received ineffective

assistance of counsel because his trial counsel failed to investigate exculpatory

information, incorrectly advised him regarding his guilty plea, and failed to request

that Neal receive treatment in lieu of prison. To establish ineffective assistance of

counsel, a defendant must demonstrate that counsel’s performance at trial was

seriously flawed and deficient and fell below an objective standard of reasonableness

and that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the trial would have been different. Strickland v. Washington,

466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Id. at 687-688. In deciding a claim of ineffective assistance, reviewing courts indulge

a strong presumption that counsel’s conduct falls within the range of reasonable

professional assistance, and defendants must therefore overcome the presumption

that the challenged action might be considered sound trial strategy. State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), citing Strickland.

With respect to Neal’s argument that his counsel was deficient for

failing to request that he receive treatment, we note that the record shows that both

attorneys representing him at his sentencing hearing discussed his alcohol abuse

and requested treatment. With respect to Neal’s argument that counsel failed to

investigate exculpatory information, we are unable to address this argument

because it necessarily involves matters outside the record. State v. Martin, 4th Dist.

Lawrence No. 01CA24, 2002-Ohio-6140, ¶ 36; State v. Harris, 2d Dist. Montgomery

No. 27179, 2017-Ohio-9052, ¶ 19. Finally, Neal’s argument regarding his counsel’s

advice regarding his guilty plea is based on his assertion that he was innocent of the

failure to comply charge and counsel was aware that Neal was maintaining his

innocence regarding this charge because of his knowledge of exculpatory

information. Because this argument is likewise based on matters outside the record,

it cannot support an ineffective assistance of counsel on appeal.

Therefore, following our independent review of the record, we find

that no meritorious argument exists and that an appeal would be wholly frivolous.

Appellate counsel’s request to withdraw is granted, and the appeal is dismissed.

Dismissed. It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

LARRY A. JONES, SR., P.J., and MARY EILEEN KILBANE, J., CONCUR