State v. Sneed

2011 Ohio 268

Opinion

[Cite as State v. Sneed, 2011-Ohio-268.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : DEMETRIUS SNEED : Case No. 10-CA-00058 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 10 CR 044

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 21, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRIAN WALTZ JUSTIN T. RADIC Assistant Prosecutor 57 East Main Street 20 S. 2nd Street Newark, OH 43055 Newark, OH 43055 Licking County, Case No. 10-CA-00058 2

Farmer, J.

{¶1} Appellant was indicted on two counts of Aggravated Robbery, felonies of

the first degree, in violation of R.C. 2911.01(A)(1), two counts of Robbery, felonies of

the second degree, in violation of R.C. 2911.02(A)(2), and a firearm specification in

violation of R.C. 2929.14(D) and 2941.145.

{¶2} Appellant was charged with committing offenses on two different days.

The first offense occurred on November 19, 2009 wherein Appellant and a co-defendant

requested a cab be dispatched to the area of Allen Street in Newark, Licking County,

Ohio. When the cab arrived, the driver was robbed at knifepoint.

{¶3} On January 11, 2010, Appellant and a co-defendant ordered a pizza from

Incredible Pizza. The pizza was scheduled to be delivered to an address on

Reddington Court in Newark, Licking County, Ohio. When the driver attempted to

deliver the pizza to the requested address, he could not locate the specific address.

While the driver was checking to see if he had the correct information, he was attacked,

his money was stolen, and his car was stolen. The pizza delivery car was located with

a gun in the car. The phone number used to call Incredible Pizza was traced to an

address where Appellant was found. Appellant admitted to police his involvement in

both offenses.

{¶4} Appellant entered no contest pleas to all of the charges contained in the

indictment. Each count of robbery was merged with a count of aggravated robbery.

Appellant received a four-year sentence for each offense in addition to a three-year gun

specification for a total sentence of eleven years in prison. Licking County, Case No. 10-CA-00058 3

{¶5} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth three proposed

Assignments of Error. Appellant did not file a pro se brief alleging any additional

Assignments of Error.

I.

{¶6} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE PRISON

SENTENCES UPON APPELLANT.”

II.

{¶7} “THE APPELLANT’S NO CONTEST PLEAS WERE NOT FREELY,

VOLUNTARILY AND UNDERSTANDIBLE ENTERED.”

III.

{¶8} ”APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.”

{¶9} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines Licking County, Case No. 10-CA-00058 4

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

{¶10} Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm Appellant’s conviction:

{¶11} In his first assignment of error, Appellant argues the trial court erred in

imposing consecutive sentences.

{¶12} In State v. Foster, the Ohio Supreme Court held, trial courts “have full

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, ¶ 100.

{¶13} The Ohio Supreme Court recently reaffirmed its hold in Foster, “We hold

that the decision of the United States Supreme Court in Oregon v. Ice does not revive

Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and

2929.41(A), which were held unconstitutional in State v. Foster. Because the statutory

provisions are not revived, trial court judges are not obligated to engage in judicial fact-

finding prior to imposing consecutive sentences unless the General Assembly enacts

new legislation requiring that findings be made.” State v. Hodge, 2010 WL 5392914 . Licking County, Case No. 10-CA-00058 5

{¶14} Because the sentences in this case are within the range provided by R.C.

2929.14, the trial court did not abuse its discretion in imposing consecutive sentences.

For this reason, Appellant’s first assignment of error is overruled.

{¶15} In his second assignment of error, Appellant maintains his no contest

pleas were not freely, voluntarily, and intelligently made.

{¶16} Criminal Rule 11 governs the process of entering a plea. Criminal Rule

11(C) provides:

{¶17} “(2) In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally and doing all of the following:

{¶18} “(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and, if

applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.”

{¶19} In accepting a no contest plea, a trial court must substantially comply with

Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474. Substantial

compliance with Crim.R. 11(C) is determined upon a review of the totality of the

circumstances. State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757.

{¶20} We have reviewed the exchange between the trial court and Appellant

which was made under oath. Appellant testified he was a high school graduate who

had no difficulties in reading, writing, or understanding the English language. He further

testified he received and read his indictment, and he had discussed it with his attorney. Licking County, Case No. 10-CA-00058 6

Appellant completed a form outlining all of his constitutional rights and was orally

advised of those rights by the trial court. During the colloquy, the trial court advised

Appellant of the maximum penalties involved including the imposition of post release

control. Appellant advised the Court his pleas were entered freely and voluntarily.

There is no evidence in the record to support Appellant’s contention that his pleas were

not entered knowingly, intelligently, and voluntarily. For this reason, Appellant’s second

assignment of error is overruled.

{¶21} Appellant argues in his final assignment of error that he was denied

effective assistance of counsel based upon counsel’s failure to file a motion to suppress

as well as counsel’s failure to cause the discovery provided by the State to be made

part of the record available for appellate review.

{¶22} We have reviewed the record in this case which contains numerous letters

which purport to be from the Appellant wherein he repeatedly confesses to the crimes

with which he has been charged.

{¶23} The standard for reviewing claims for ineffective assistance of counsel

was set forth in Strickland v. Washington (1984), 466 U.S. 668. We must follow a two-

prong analysis in reviewing a claim for ineffective assistance of counsel. First, we must

determine whether counsel's assistance was ineffective. Whether counsel's

performance fell below an objective standard of reasonable representation and violative

of any of his essential duties to the client. In determining whether counsel's

representation fell below an objective standard of reasonableness, judicial scrutiny of

counsel's performance must be highly deferential. Id. at 142. Because of the difficulties Licking County, Case No. 10-CA-00058 7

inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists counsel's conduct fell within the wide range of

reasonable, professional assistance. Id.

{¶24} The second prong requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the proceeding

would have been different. “Prejudice from defective representation sufficient to justify

reversal of a conviction exists only where the result of the trial was unreliable or the

proceeding fundamentally unfair because of the performance of trial counsel. State v.

Carter (1995), 72 Ohio St.3d 545, 558, citing Lockhart v. Fretwell (1993), 506 U.S. 364.

It is based on this standard that we review the two arguments appellant raises in

support of this assignment of error.

{¶25} Based upon the record before us, there is no evidence a motion to

suppress would have been successful even if it had been filed. Further, even had the

motion been successful, the record contains numerous letters of confession which

appear to have been written by Appellant which demonstrates Appellant would not have

been prejudiced by the failure to file a motion to suppress.

{¶26} Finally, Appellant suggests he was denied effective assistance of counsel

because the discovery provided by the State was not made part of the record in this

case for our review. This argument is completely speculative. There is no evidence

before this Court that our inability to review the discovery has prejudiced the Appellant

in any way. For these reasons, Appellant’s third assignment of error is overruled.

{¶27} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion that no arguably meritorious claims exist upon which to base Licking County, Case No. 10-CA-00058 8

an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant

counsel's request to withdraw, and affirm the judgment of the Licking County Court of

Common Pleas. Costs to Appellant.

_s/ Sheila G. Farmer_ _____________

_s/ William B. Hoffman________________

_s/ John W. Wise _________________

JUDGES

SGF/as 111 Licking County, Case No. 10-CA-00058 9

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DEMETRIUS SNEED : : Defendant-Appellant : CASE NO. 10-CA-00058

For the reasons stated in our accompanying Memorandum-Opinion, counsel’s

motion to withdraw is granted, and the judgment of the Court of Common Pleas of

Licking County, Ohio is affirmed. Costs to appellant.