State v. Cleary
2017 Ohio 4120
| Ohio Ct. App. | 2017Background
- Roy J. Cleary was indicted for aggravated murder, murder, tampering with evidence, and aggravated robbery arising from the robbery and killing of Mark Westfall.
- Cleary moved to suppress his confession and evidence seized from his mother's home; the trial court denied those motions.
- Cleary entered a negotiated guilty plea to murder and aggravated robbery; aggravated murder and tampering counts were dismissed.
- The parties jointly recommended a sentence of 15 years to life (murder) plus five years (aggravated robbery), to be served consecutively (20 years to life); the trial court accepted and imposed that sentence.
- Appellate counsel filed a Toney brief asserting the appeal was frivolous; no pro se brief was filed by Cleary. The appellate court conducted an independent review under Toney and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of guilty plea (knowingly, voluntarily, intelligently) | Trial court complied with Crim.R. 11; plea was valid. | Plea was not properly informed; counsel failed to advise of right to appeal. | Court found Crim.R. 11 compliance (strict for constitutional rights, substantial for nonconstitutional); plea valid. |
| Right to appeal / delayed appeal | State had no objection; court granted delayed appeal, curing any denial of appeal right. | Claimed trial counsel failed to inform him of right to appeal. | Granting delayed appeal eliminated any prejudice from alleged failure to advise. |
| Sentencing challenge to jointly recommended sentence | Jointly recommended sentence is authorized by law and unreviewable on appeal when accepted by court. | Argued sentencing error and allied-offense analysis should have been conducted. | Court held the jointly recommended, lawfully authorized sentence cannot be appealed; no reviewable sentencing error. |
| Consecutive sentences statutory findings | Trial court made required R.C. 2929.14(C)(4) findings at sentencing (necessity, proportionality, and statutory factors). | Implicit challenge that findings were insufficient. | Court found the court made all required findings (no magic words required) and consecutive terms authorized. |
Key Cases Cited
- Toney v. State, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist. 1970) (procedure when appointed counsel deems appeal frivolous and must allow defendant opportunity to file pro se brief)
- Brady v. United States, 397 U.S. 742 (1970) (plea must be voluntary and intelligent under totality of circumstances)
- Boykin v. Alabama, 395 U.S. 238 (1969) (guilty plea invalid if not shown to be voluntary and intelligent regarding waiver of constitutional rights)