[Cite as State v. Underwood, 2018-Ohio-730.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2017-0024 SIRIUS E. UNDERWOOD
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2016-0122
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 23, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX TONY A. CLYMER PROSECUTING ATTORNEY 1420 Matthias Drive GERALD V. ANDERSON II Columbus, Ohio 43224 ASSISTANT PROSECUTOR 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2017-0024 2
Wise, P. J.
{¶1} Appellant Sirius E. Underwood appeals from his convictions in the Court of
Common Pleas, Muskingum County, on one count of aggravated murder, two counts of
aggravated robbery, and other felony offenses. Appellee is the State of Ohio. The relevant
procedural facts leading to this appeal are as follows.
{¶2} On February 24, 2017, stemming from an indictment by the Muskingum
County Grand Jury issued on March 30, 2016, appellant appeared with counsel and
entered an Alford plea to felony charges consisting of one count for the aggravated
murder of Brandy Daniels, with a firearm specification (set forth as Count 9), two counts
of aggravated robbery, two counts of conspiracy to commit aggravated robbery, two
counts of theft, two counts of having a weapon while under a disability, one count of
aggravated burglary, one count of engaging in a pattern of corrupt activity, and one count
of tampering with evidence. This plea was entered following several months of negotiation
between trial counsel for appellant and the State of Ohio, through the Muskingum County
Prosecutor’s Office.
{¶3} During the aforementioned plea hearing, the assistant prosecutor, Ron
Welch, made inter alia the following statements to the trial court: “In exchange for the
defendant’s plea ***, the parties agree to the joint recommendation that the defendant be
sentenced to an aggregate prison term of life in prison with eligibility for parole after the
defendant has served 25 years in prison, plus a mandatory consecutive three-year term
for the firearm specification attached to Count 9. *** The parties stipulate the facts
sufficient for a finding of guilty to be made. And the defendant agrees to make restitution Muskingum County, Case No. CT2017-0024 3
in the amount of $22,265.24. I have here a signed four-page entry of guilty plea form, if I
may approach.” Tr., Plea Hearing, at 4-5.
{¶4} At that point, the court asked defense counsel if he had anything to add, to
which he replied: “Not for the purposes of the change of plea, Your Honor. Mr. Welch’s
recitation of the change of plea was accurate.” Id. at 5.
{¶5} The trial court thereupon engaged in a plea colloquy with appellant,
following which Mr. Welch extensively summarized the facts of the case. The court then
ordered a presentence investigation.
{¶6} A sentencing hearing was held on March 20, 2017. Once again, the State
of Ohio, through the assistant prosecuting attorney, Mr. Welch, outlined the plea
agreement that had been entered into between appellant and the State of Ohio. Tr.,
Sentencing Hearing, at 4-5. The State of Ohio further indicated that negotiations in the
case "came about over a course of time involving the State and defense, as well as
consultation with the family members that have been involved in this matter." Id.
Furthermore, trial counsel for appellant reiterated the lengthy discussions that took place
regarding the plea agreement and requested that the trial court follow the joint
recommendation.
{¶7} Following the hearing, the trial court sentenced appellant to life in prison
with eligibility for parole after twenty-eight years (twenty-five plus a three-year firearm
specification) on the aggravated murder charge, consecutive to ten years in prison on the
other counts (to be served concurrently with each other), for an aggregate prison term of
life in prison with the eligibility for parole after thirty-eight years. Appellant was also
ordered inter alia to pay restitution in the amount of $22,265.24. Muskingum County, Case No. CT2017-0024 4
{¶8} A final sentencing entry was issued on March 21, 2017.
{¶9} Appellant filed a notice of appeal on April 4, 2017. He herein raises the
following four Assignments of Error:1
{¶10} “I. THE TRIAL COURT RENDERED APPELLANT'S PLEA INVOLUNTARY
AND VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS
BY IGNORING THE JOINT RECOMMENDATION OF SENTENCE AND IMPOSING A
SENTENCE THAT EXCEEDED THE AGREED-UPON SENTENCING
{¶11} “II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL
CONSTITUTIONS.
{¶12} “III. THE TRIAL COURT ERRED BY NOT CONSIDERING THE
PRINCIPLES AND PURPOSES OF SENTENCING AS REQUIRED BY R.C. 2929.11
AND 2929.12 AND NOT PERMITTING THE APPELLANT THE OPPORTUNITY TO
WITHDRAW HIS GUILTY PLEA PRIOR TO IMPOSITION OF SENTENCE RENDERING
THE SENTENCE CONTRARY TO LAW.
{¶13} “IV. THE TRIAL COURT PLAINLY ERRED IN ORDERING APPELLANT
TO PAY RESTITUTION AND COURT COSTS SINCE APPELLANT IS INDIGENT AND
THE COURT NEVER REFERENCED APPELLANT’S PRESENT OR FUTURE ABILITY
TO PAY.”
1 Appellant has failed to include or attach with his brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in the record. Muskingum County, Case No. CT2017-0024 5
I.
{¶14} In his First Assignment of Error, appellant contends the trial court committed
reversible error and violated his constitutional rights by rejecting the parties’ agreed
recommended sentence, resulting in a term of life in prison with the eligibility for parole
after thirty-eight years. We disagree.
{¶15} This Court has recognized that a trial court is not bound by a sentencing
recommendation proffered by the State. See State v. Hartrum, 5th Dist. Licking No. 14-
CA-106, 2015–Ohio–3333, ¶ 14, citing State v. Kitzler, 3rd Dist. Wyandot No. 16–02–06,
2002–Ohio–5253, ¶ 9. Thus, where a trial court complies with Crim.R. 11 by informing
the defendant that the State's sentencing recommendation is not binding upon it, a
defendant's plea is knowingly and voluntarily made. State v. Campbell, 9th Dist. Summit
No. 27300, 2014-Ohio-4780, ¶ 9, citing State v. Williamson, 9th Dist. Summit No. 17927,
1997 WL 72085.
{¶16} During the plea hearing, the trial court asked appellant: “You understand,
Mr. Underwood, the joint recommendation is not binding on this Court; and at sentencing,
I do not have to follow it?” Tr., Plea Hearing, at 13. Appellant answered in the affirmative.
Id. As such, the record does not support appellant’s claim that his plea was not knowing
and voluntary in this respect.
{¶17} Appellant nonetheless cites Hartrum, supra, for the proposition that a trial
court is not bound by a plea agreement unless there has been “active participation by the
trial court in the agreement.” Id., citing State v. Hutchison, 5th Dist. Tuscarawas No.
2001AP030020, 2001 WL 1356356. Put another way, appellant maintains the trial court
in the case sub judice was an active participant in the plea deal, and thus should be Muskingum County, Case No. CT2017-0024 6
required to follow it. He specifically submits: “[T]he fact that the trial court alluded to the
joint recommendation of sentence several times as well as specifically mentioning each
and every detail of the plea agreement and that appellant was entering the plea to avoid
the consequences of a greater sentence, it is obvious that this is ‘active participation’ in
the agreement.” Appellant’s Brief at 6-7.
{¶18} It is well-established that “[a] trial court assures that a plea is knowingly,
voluntarily and intelligently entered during the plea colloquy as required by Crim.R. 11.”
State v. Ford, 9th Dist. Summit No. 26260, 2012-Ohio-4028, ¶ 10. Generally, where it
affirmatively appears to the trial court that an Alford plea will be asserted, a “more detailed
Crim.R. 11 colloquy” is required to inquire into the reasoning for such Alford plea. See
State v. McKinley, 5th Dist. Delaware No. 14 CAA 08 0045, 2015-Ohio-2436, ¶ 16, citing
State v. Hayes, 101 Ohio App.3d 73, 654 N.E.2d 1348 (3rd Dist.1998). The record also
must contain “strong evidence” of guilt before an Alford plea may be accepted. Id., citing
State v. Scott, 3rd Dist. Seneca No. 13–2000–34, 2001–Ohio–2098. Upon review, we find
no merit in appellant’s claim that the trial court’s acts in this instance of ensuring its
compliance with Crim.R. 11 equates to “active participation” in the parties’ plea agreement
to the extent that the court was required to order the agreed sentence of life with twenty-
eight years before parole eligibility.
{¶19} Appellant further contends the trial court should have, in the alternative,
permitted him to withdraw his plea upon the court’s decision to reject the jointly
recommended sentence. However, the general rule in Ohio “requires motions to withdraw
guilty plea to be freely granted if they are made before sentencing.” State v. Rickman, 3rd
Dist. Seneca No. 13-13-15, 2014-Ohio-260, ¶ 12 (emphasis added), citing State v. Xie, Muskingum County, Case No. CT2017-0024 7
62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). In one of the cases appellant cites, State
v. Buell, 10th Dist. Franklin No. 15AP-789, 2016-Ohio-2734, the Tenth District Court of
Appeals indeed stated that “[i]In the vast majority of cases in Franklin County, Ohio, if the
parties agree as to the appropriate sentence, the trial court judge accepts that argument
and imposes the agreed-upon sentence.” Id. at ¶ 2. However, in Buell, the defendant had
asked at the sentencing hearing, before pronouncement of sentence, that he be permitted
to withdraw his guilty plea. Id. at ¶ 5. Appellant provides no direct authority for his claim
that a trial court, in the absence of a motion under Crim.R. 32.1, must sua sponte consider
a plea withdrawal where it declines to accept an agreed recommended sentence.
{¶20} Appellant's First Assignment of Error is therefore overruled.
II.
{¶21} In his Second Assignment of Error, appellant contends he was deprived of
the effective assistance of trial counsel during the plea proceedings. We disagree.
{¶22} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio
adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. First, we must determine whether counsel's assistance
was ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing that there is a reasonable Muskingum County, Case No. CT2017-0024 8
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id.
{¶23} Furthermore, trial counsel is entitled to a strong presumption that all
decisions fall within the wide range of reasonable professional assistance. State v. Sallie
(1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.
Issue of Prosecutor’s Recitation
{¶24} Appellant first contends his defense counsel was ineffective for failing to
object to the assistant prosecutor’s lengthy recitation of facts, which runs approximately
twenty-nine pages in the transcript.
{¶25} We have recognized that a trial court record also must contain “strong
evidence of guilt” before an Alford plea may be accepted, and therefore, such a plea
should not be made without the presentation of some basic facts surrounding the offenses
charged. See State v. McKinley, 5th Dist. Delaware No. 14 CAA 08 0045, 2015-Ohio-
2436, ¶19, citing State v. Scott, 3rd Dist. Seneca No. 13–2000–34, 2001–Ohio–2098.
Given that appellant in this instance pled to all but one count and several specifications
of a thirteen-count indictment, the issuance of which followed an extensive three-year
investigation by federal, Ohio, and Alaska authorities (see Plea Tr. at 34), we find in
regard to the issue of the prosecutor’s recitation that appellant was not deprived of the
effective assistance of trial counsel in violation of his constitutional rights.
Lack of Objection by Defense Counsel
{¶26} Appellant secondly urges that his defense counsel ineffectively “stood
silent,” i.e., did not enter an objection, pursue some type of sentencing mitigation, or move Muskingum County, Case No. CT2017-0024 9
to withdraw the plea, when it became clear that the trial court was not going to accept the
joint sentencing recommendation. Appellant’s Brief at 12.
{¶27} The United States Supreme Court and the Ohio Supreme Court have held
that a reviewing court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. See Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct.
2052. Furthermore, appellate courts will generally refrain from second-guessing the
strategic decisions of trial counsel. State v. Lyons, 7th Dist. Jefferson No. 16 JE 0008,
2017-Ohio-4385, ¶ 32.
{¶28} In the case sub judice, given that appellant was facing charges of
aggravated murder and several other serious felonies, we find it would be unacceptably
speculative on our part to question defense counsel’s strategic decision to work out a plea
deal in lieu of a lengthy trial and simply accept the possibility of a rejection of the
recommended sentence.2 In addition, we are unable to determine with any confidence
that the trial court's sentence would have been different had counsel objected. Cf. State
v. Morrison, 5th Dist. Muskingum No. CT2014-0042, 2015-Ohio-2018, ¶ 13. As may occur
in any number of sentencing situations, “[c]ounsel's strategy may have been to say
nothing in order to avoid further detriment to his [or her] client.” State v. Noble, 2nd Dist.
Montgomery No. 13955, 1994 WL 100694.
{¶29} Accordingly, appellant's Second Assignment of Error is overruled.
2 As an indicator of the potential scope of a trial in this case, one of the trial court documents indicates that 280 people were on the State’s initial witness list, and that figure grew to over 300 after discovery. See Docket Item No. 81. Muskingum County, Case No. CT2017-0024 10
III.
{¶30} In his Third Assignment of Error, appellant contends his sentence was
contrary to law. We disagree.
{¶31} As an initial matter, reiterating that appellant was convicted inter alia of
aggravated murder, we note R.C. 2953.08(A) states that “[i]n addition to any other right
to appeal and except as provided in division (D) of this section, a defendant who is
convicted of or pleads guilty to a felony may appeal as a matter of right the sentence
imposed upon the defendant on [one of the grounds listed in subsections (A)(1) through
(A)(5)]”. (Emphasis added). In turn, R.C. 2953.08(D)(3) provides: “A sentence imposed
for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised
Code is not subject to review under this section.”
{¶32} In State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647,
2013 WL 1777258, an appeal of an aggravated murder conviction, we reviewed the
aforesaid statute and succinctly held as follows: “Pursuant to R.C. 2953.08(D)(3) and
case law interpreting this statute, this Court is without statutory authority to review
appellant's sentence on an evidentiary basis.” Id. at ¶ 70. See, also, State v. Porterfield,
106 Ohio St.3d 5, 829 N.E.2d 690, 2005-Ohio-3095, ¶ 17. We will therefore not apply our
analysis in the present assigned error to Count 9.
{¶33} Appellant first maintains the trial court completely failed to consider the
sentencing factors of R.C. 2929.11 and 2929.12, i.e., the purposes of felony sentencing
and the factors of seriousness and recidivism. However, it is well-established that “* * * a
court is merely required to ‘consider’ the purposes of sentencing in R.C. 2929.11 and the
statutory * * * factors set forth in R.C. 2929.12.” See State v. Sutton, 8th Dist. Cuyahoga Muskingum County, Case No. CT2017-0024 11
No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th Dist. Lake No. 2006–L–
185, 2007–Ohio–3013, ¶ 44 (internal quotations omitted). The failure to indicate at the
sentencing hearing that the court has considered the factors in R.C. 2929.11 and 2929.12
does not automatically require reversal. State v. Reed, 10th Dist. Franklin No. 09AP–
1163, 2010–Ohio–5819, 2010 WL 4884904, ¶ 8 (emphasis added). Any findings of the
trial court in regard to R.C. 2929.11 and 2929.12 need not be in the sentencing transcript
if the findings are contained in the journal entry. See State v. Boyd, 5th Dist. Richland No.
13 CA 62, 2014–Ohio–2019, ¶ 12, citing State v. O'Donnell, 9th Dist. Summit No. 23525,
2007–Ohio–1943, ¶ 7 (additional citations omitted). Upon review, we find the sentencing
entry in this case adequately sets forth that the trial court took into consideration the
principles and purposes of sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12.
{¶34} Appellant secondly contends the trial court improperly “placed an
unreasonable amount of weight” on a portion of a letter from a family member of the
aggravated murder victim, Brandy Daniels. Appellant’s Brief at 15. The trial court stated:
“I’ve been a judge for many years. This is one of the quotes in the letter that struck me. It
says: [‘] I beg you, do not go soft on the devil.[’] Would you blame the family to feel any
differently?” Sentencing Tr. at 8. However, at that point in the hearing, we observe the
trial court had already clearly articulated that it had reviewed the pre-sentence
investigation report, appellant’s criminal record (including his two previous incarcerations
and multiple robberies), and all the letters from Brandy’s family. See Sentencing Tr. at 6-
8. Muskingum County, Case No. CT2017-0024 12
{¶35} Appellate review of felony sentences is governed by R.C. 2953.08, which
provides that we may increase, reduce, modify a sentence, or vacate and remand for
resentencing if we clearly and convincingly find that the record does not support the
sentencing court's statutory findings, if applicable, or the sentence is contrary to law. State
v. Theodorou, 8th Dist. Cuyahoga No. 105630, 2017-Ohio-9171, ¶ 7, citing R.C.
2953.08(G)(2). Appellant does not presently contend that his sentences are outside the
statutory ranges of the Ohio Revised Code. Appellant further does not raise a specific
challenge to the consecutive portions of his overall sentence. Based on our review of the
record, we do not find by clear and convincing evidence that the record does not support
the sentence or that the sentence is contrary to law.
{¶36} Appellant lastly revisits his claim that the trial court should have sua sponte
permitted appellant to withdraw his plea upon its decision not to follow the jointly
recommended sentence. We find this claim is a challenge to the plea proceeding, not a
sentencing issue, and it has previously been addressed in this opinion.
{¶37} Appellant's Third Assignment of Error is therefore overruled.
IV.
{¶38} In his Fourth Assignment of Error, appellant contends the trial court erred in
ordering him to pay restitution and court costs. We disagree.
Restitution
{¶39} R.C. 2929.18(A) states in pertinent part that “[e]xcept as otherwise provided
in this division and in addition to imposing court costs pursuant to section 2947.23 of the
Revised Code, the court imposing a sentence upon an offender for a felony may sentence Muskingum County, Case No. CT2017-0024 13
the offender to any financial sanction or combination of financial sanctions authorized
under this section * * *.” R.C. 2929.18(A)(1) sets forth that restitution is one such sanction.
{¶40} In the case sub judice, while we recognize the trial court did not fully follow
the joint recommendation when it came to the prison sentence, the specific restitution
amount of $22,265.24 was part of the agreement of the parties. See Plea Tr. at 5. In
addition, appellant did not object to the trial court's restitution order or request a hearing
on the issue. See Sentencing Tr. at 10-11. As such, we find he has waived all but plain
error. See State v. Bauer, 5th Dist. Licking No. 11–CA–93, 2012–Ohio–2457, ¶ 7. The
plain error rule is to be applied with utmost caution and invoked only under exceptional
circumstances, in order to prevent a manifest miscarriage of justice. State v. Long (1978),
53 Ohio St.2d 91, 95, 372 N.E.2d 804. We are not inclined to do so under the
aforementioned circumstances of the present case.
Court Costs
{¶41} In regard to court costs, we note R.C. 2947.23(A)(1)(a) states in pertinent
part: “In all criminal cases, including violations of ordinances, the judge or magistrate shall
include in the sentence the costs of prosecution, including any costs under section
2947.231 of the Revised Code, and render a judgment against the defendant for such
costs. * * * .” (Emphasis added). Accordingly, even if a defendant is indigent, a sentencing
court must include the costs of prosecution in the sentence and render a judgment against
the defendant for costs. State v. McHenry, 5th Dist. Stark No. 2017CA00119, 2017-Ohio-
7672, ¶ 12, citing State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393,
¶ 8. But see R.C. 2949.092. Furthermore, appellant did not object to the imposition of
court costs, even though the trial court orally stated they were part of the sentence. Muskingum County, Case No. CT2017-0024 14
Sentencing Tr. at 10. Upon review, we find no reversible error in this instance in regard
to the imposition of court costs.
{¶42} Appellant's Fourth Assignment of Error is therefore overruled.
{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas,
Muskingum County, Ohio, is hereby affirmed.
By: Wise, P. J.
Hoffman, J., and
Baldwin, J., concur.
JWW/d 0202