STATE OF OHIO, Plaintiff-Appellee -vs- JOHN BEATTY, Defendant-Appellant
Case No. CT2020-0015
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 8, 2021
[Cite as State v. Beatty, 2021-Ohio-355.]
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court of Common Pleas, Case Nos. CR2019-0035 & CR2019-0400. JUDGMENT: Affirmed.
For Plaintiff-Appellee
D. MICHAEL HADDOX Prosecuting Attorney Muskingum County, Ohio
TAYLOR P. BENNINGTON Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street P.O. Box 189 Zanesville, Ohio 43702-0189
For Defendant-Appellant
JAMES ANZELMO 446 Howland Drive Gahanna, Ohio 43230
Hoffman, J.
{¶1} Appellant John Beatty appeals the judgment entered by the Muskingum County Common Pleas Court in Case No. CR2019-0035 convicting him of aggravated burglary(
STATEMENT OF THE FACTS AND CASE
{¶2} Around 3:00 a.m. on January 16, 2019, police received a call from the Walmart store in Zanesville, Ohio, indicating a man in the store, later identified as Appellant, was acting in a suspicious manner. Appellant randomly filled a cart with high price items, which store staff found unusual for that hour of the morning. Further, the store recently had experienced thefts by a man matching Appellant‘s description.
{¶3} Deputy Wade Kanavel responded to the call. Dep. Kanavel went to the electronics department to observe Appellant, then made contact with Appellant. The deputy explained Walmart was concerned with the amount of merchandise Appellant had in his cart, and he asked how Appellant intended to pay for the merchandise. Appellant indicated he intended to pay with cash. However, Appellant admitted upon further questioning he did not have cash on his person. Appellant then told the deputy he would pay with a credit card. However, Appellant also did not have a credit card with him. Appellant told the deputy he would call his mother to come pay for the items.
{¶4} Dep. Kanavel asked Appellant for infоrmation about his identity. Appellant provided two different names, and a date of birth. The deputy escorted Appellant to the
{¶5} Unable to confirm Appellant‘s identity, police indicated Appellant would be detained until they could ascertain his identity and check for outstanding warrants. Appellant refused to stand up from the bench upon request. As the deputies attempted to get Appellant off the bench, Appellant lowered his shoulder into Dep. Hood. Both deputies fell to the ground, dislocating and fracturing Dep. Hood‘s ankle.
{¶6} Appellant ran to the parking lot. Dep. Kanavel‘s attempt to stop Appellant with a taser gun was unsuccessful. Appellant got into a Toyota Tacoma truck and left the parking lot. Other officers responded and began pursuit.
{¶7} Appellant was eventually pursued to Crock Road, where he turned into a driveway. The driveway was icy, allowing Appellant to circle around and return to the roadway. Appellant then backed into the police cruiser behind him, pushing it into a second cruiser which had been following. Appellant continued to refuse to stop his truck.
{¶8} Eventually, a third cruiser arrived on the scene and pinned Appellant‘s truck between the cruisers. Appellant was apprehended.
{¶9} Appellant was indicted by the Muskingum County Grand Jury in case number CR2019-0035 with aggravated burglary, aggravated robbery, felonious assault on a peace officer, failure to comply, two counts of vandalism, and possession of criminal tools, with a specification for forfeiture of the Toyota Tacoma truck.
{¶10} Apрellant was initially found incompetent to stand trial. The court ordered Appellant to be placed in a behavioral health facility in Athens, Ohio, for evaluation. While
{¶11} Appellant was restored to competency and the cases proceeded to a negotiated plea. Appellant entered pleas of guilty in case number CR2019-0035 to aggravated burglary, assault on a peace officer (amended from felonious assault on a peace officer), one count of vandalism, and possession of criminal tools, including the forfeiture specification. All other charges were dismissed. The trial court sentenced him to eight years incarceration for aggravated burglary, eighteen months incarceration for assault on a peace officer, twelve months incarceration for vandalism, and twelve months incarceration for possession of criminal tools, to be served concurrently to each other, but consecutively to the sentence imposed in CR2019-0400. Appellant also entered a plea of guilty to escape in case number CR2019-0400. The trial court sentenced him pursuant to the Reagan Tokes Act to a term of incarceration of 3-4½ years, to be served consecutively to the sentence imposed in CR2019-0035, for an aggregate tеrm of incarceration of 11-12½ years.
{¶12} It is from the February 19, 2020 judgments of the Muskingum County Common Pleas Court Appellant prosecutes his appeal, assigning as error:
I. JOHN BEATTY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY IN CR2019-0035 OR CR2019-0400, IN
II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING BEATTY‘S TWO MOTIONS TO DISMISS HIS TRIAL COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT ERRED IN FINDING THAT BEATTY WAS COMPETENT TO PROCEED WITH THE LEGAL MATTERS AGAINST HIM, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
IV. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE‘S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND OHIO.
V. THE TRIAL COURT PLAINLY ERRED BY FAILING TO MERGE BEATTY‘S OFFENSE OF POSSESSION OF CRIMINAL TOOLS AND VANDALISM.
VI. JOHN BEATTY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE
I.
{¶13} In his first assignment of error, Appellant argues his guilty pleas were not knowingly, willingly and intelligently made because the trial court failed to inform him his plea was a complete admission of guilt.
{¶14}
(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:
(b) Infоrming the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶15}
{¶16} The information a guilty plea is a complete admission of guilt, along with the other information required by
{¶17} Although the failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption it was entered involuntarily and unknowingly, failure to comply with respect to rights which are not constitutional in nature will not invalidate a plea unless the defendant thereby suffered prejudice. Id. at 108, 564 N.E.2d 474. The test for prejudice is “whether the plea would have otherwise been made.” Id. A defendant who has entered a guilty plea without asserting actual innocence is presumed to understand he has completely admitted guilt. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus. In such circumstances, a court‘s failure to inform the defendant of the effect of his guilty plea as required by
{¶18} In the instant case, the trial court failed to inform Appellant his guilty plea would constitute a complete admission of guilt. However, while at earlier hearings in the case Appellant asserted there was no basis for the charges of aggravated burglary and aggravated robbery, at the plea hearing Appellant failed to assert actual innocence of any of the charges to which he was entering a plea. In fact, Appellant‘s statement on the record immediately after entering his pleas acknowledges his guilt:
THE DEFENDANT: Yes, sir, Your Honor. I wrote this last night. Your Honor, I would like to start by saying that I am truly sorry to everyone my actions affected. I don‘t want to make excuses, but during the time that these things took place, I was suffering a lot of loss. I lost my grandma, my
best friend, my dog, and recently my wife. That‘s not an excuse, but at the time I wasn‘t thinking right. I personally wanted tо die and be with them. Everything was just so unreal. Nobody can prepare for a loss like that. I am so sorry to everyone I affected while being so self-destructive. I know I handled things wrong, but I don‘t feel that this sentence reflects my crime. I am a man of my Lord and Savior Jesus Christ, and whatever I receive today, I will take in faith. I just want the Court to understand my actions that day were not made in a clear mind. Thanks for your time, Your Honor.
{¶19} Tr. (2/18/20) 24-25.
{¶20} We find the
{¶21} Appellant also argues he was forced to go forward with counsel who wanted tо pursue a plea bargain, and he did not have adequate time to consider his options before being pressured by counsel to proceed with a guilty plea. He relies on representations made in his docketing statement and his own statements made in the hearing on his motion to dismiss counsel in support of his claims. The docketing statement is not evidence, and the record does not support Appellant‘s claim he did not have adequate time to consider his options. Further, the mere fact counsel sought to pursue a plea bargain does not demonstrate сounsel pressured Appellant into entering a plea, rendering Appellant‘s plea involuntary. We find the record does not support Appellant‘s claim his
{¶22} The first assignment of error is overruled.
II.
{¶23} In his second assignment of error, Appellant argues the trial court erred in overruling his two motions to dismiss his court-appointed attorney.
{¶24} “To discharge a court-appointed attorney, the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus. “An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.” State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999), quoting United States v. Iles, 906 F.2d 1122, 1130 (C.A.6, 1990).
{¶25} The trial court‘s decision is reviewed under an abuse of discretion standard. Id. In order to find an abuse of discretion, we must determine the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶26} On October 31, 2019, Appellant filed his first motion to remove his appointed attorney. In his memorandum in support, he argued she discussed the possibility of a plea deal with him despite the fact he believed there was no evidence to support the charges of aggravated burglary and aggravated robbery and he was not interested in a plea deal, and she refused his demands to file various pre-trial motions, including a motion to suppress, a motion to dismiss, and a motion to continue the case.
{¶28} The record demonstrates counsel communicated with Appellant. Her statements to the court reflect she understood what Appellant wanted; however, she could only represent him within the bounds of the ethical rules and what she determined to be competent legal representation under the facts of the instant case. There was not a breakdown in communication between Appellant and his attorney, but rather a disagreement as to the best line of defense. See State v. Murphy, 91 Ohio St.3d 516, 524, 2001-Ohio-112, 747 N.E.2d 765, 782. We find the trial court did not abuse its discretion in overruling Appellant‘s first motion to dismiss his attorney.
{¶29} Appellant filed a second motion to dismiss his attorney on February 7, 2020. The trial court overruled the motion on February 18, 2020, after considering statements made by Apрellant and counsel at a hearing held February 14, 2020. A transcript of this hearing has not been provided to this Court. Appellant‘s praecipe for the transcript of the proceedings requested only the transcript of the February 18, 2020 hearing on his change of plea and sentencing. Appellant later filed a motion to supplement the record with the transcripts of the hearings held on November 13, 2019 (first motion to dismiss counsel) and June 14, 2019 (competency). This Court granted the motion to supplement; however,
{¶30} The second assignment of error is overruled.
III.
{¶31} In his third assignment of error, Appellant argues the trial court erred in finding him competent to stand trial.
{¶32} The standard for competence is set forth in
A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, bеcause of the defendant‘s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant‘s defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
{¶33} Appellant was initially found incompetent to stand trial. The court ordered Appellant to be placed in a behavioral health facility in Athens, Ohio, for evaluation. On June 12, 2019, a report of Dr. John Tilley was filed in the trial court, finding Appеllant was
{¶34} Appellant now argues the conclusion he was competent was undermined by the fact “the evaluator made a contradictory conclusion that Beatty had an ‘underlying personality pathology’ that interfered with his ability to effectively engage in the legal proceedings.” Brief of Appellant, p. 10. The trial court‘s judgment includes the full quote concerning this personality pathology, taken from the report of Dr. Tillеy:
Dr. Tilley went on to state, “Secondary to what appears to be underlying personality pathology, there is a substantial risk that Mr. Beatty will intentionally act inappropriately or present as uncooperative with his attorney or the legal proceedings in some fashion. However, any such behavior will not, in all probability, be attributable to mental illness. Presently, he has the capacity to understand the nature and objective of the proceedings against him, he has the capacity to assist in his defense, and he has the capacity to conform his behaviors to thе demands of the legal system, if he chooses to do.”
{¶35} Judgment Entry, June 17, 2019.
{¶36} The findings of Dr. Tilley concerning Appellant‘s “underlying personality pathology” are not in fact contradictory to his conclusion Appellant was competent to stand trial. Rather, Dr. Tilley notified the trial court any appearance of incompetence on Appellant‘s part was most likely intentional misbehavior, and not a result of Appellant‘s
{¶37} The third assignment of error is overruled.
IV.
{¶38} Appellant was sentenced for his conviction of escape pursuant to the Reаgan Tokes Act. He argues the presumptive release provisions of the Act are unconstitutional.
{¶39} For the reasons stated in this Court‘s opinion in State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal allowed, 2020-Ohio-6835, we find Appellant‘s constitutional challenge is not yet ripe for review.
{¶40} The fourth assignment of error is overruled.
V.
{¶41} In his fifth assignment of error, Appellant argues the trial court committed plain error in failing to merge his convictions of possession of criminal tools and vandalism as allied offenses of similar import.
{¶42} An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of thе proceeding and reversal is necessary to correct a manifest miscarriage of justice. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Accordingly, an accused has the burden to demonstrate a reasonable probability the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus. Id. Absent such showing, the accused cannot
{¶43} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, the Ohio Supreme Court revised its allied-offense jurisprudence. When considering whether there are allied offenses that merge into a single conviction under
{¶44} In the instant case, Appellant was indicted on one count of possession of criminal tools, a 1997 Toyota Tacoma, with purpose to use the same in commission of a felony. The indictment does not specify the underlying felony offense, and a bill of particulars was not filed in the instant case.
{¶45} Appellant argues the possession of criminal tools offense pertains to his use of his truck to commit felony vandalism. The State argues in response Appellant committed the offense of possession of criminal tools as soon as he fled Walmart in the Toyota Tacoma. We agree.
{¶46} The crime оf possession of criminal tools is defined by
{¶47} The crime of escape is defined by
(A)(1) No person, knowing the person is under detention, other than supervised release detention, or being reckless in that regаrd, shall purposely break or attempt to break the detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited period, or at the time required when serving a sentence in intermittent confinement.
{¶48} The recitation of the facts set forth following Appellant‘s plea states Appellant was detained at the front of the store by Dep. Kanavel, while Dep. Hood waited at the front door to the Walmart. Officer indicated Appellant was going to continue to be detained while they аttempted to ascertain his identity in order to check for outstanding warrants. While attempting to remove Appellant from the bench in the front of the store, a scuffle ensued, during which Appellant knocked Dep. Hood to the ground, fracturing Hood‘s ankle. At this point, Appellant escaped the store. Dep. Kanavel attempted to tase Appellant to stop him, but was unsuccessful, and Appellant fled the parking lot in the Toyota Tacoma truck.
{¶49} Although Appellant was not separately charged with the felony offense of escape relating to the events оccurring at Walmart, the record demonstrates the court
{¶50} We find Appellant has not demonstrated the convictions аre for allied offenses of similar import committed with the same conduct and without a separate animus, and therefore we find the trial court did not commit plain error in failing to inquire whether the offenses should merge.
{¶51} The fifth assignment of error is overruled.
VI.
{¶52} In his sixth assignment of error, Appellant argues counsel was ineffective for failing to raise the issue of the constitutionality of the Reagan Tokes Act, and for failing to argue the offenses of vandalism and possession of criminal tools were allied offenses of similar import and should therefore have merged.
{¶53} A properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of ineffective assistance of counsel, Appellant must show counsel‘s performance fell below an objective standard of reasonable representation and but for counsel‘s error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). In other words, Appellant must show counsel‘s conduct so undermined the
{¶54} For the reasons stated in our discussion of Appellant‘s fourth assignment of error, the issue of the constitutionality of the Reagan Tokes Act is not yet ripe for review, and therefore Appellant has not shown a reasonable probability of a change in the outcome had counsel raised the issue in the trial court.
{¶55} For the reasons stated in our discussion of Appellant‘s fifth assignment of error, Appellant has not demonstrated a reasonable probability of a change in the outcome had counsel argued possession of criminal tools and vandalism were allied offenses of similar import and should therefore have merged.
{¶56} The sixth assignment of error is overruled.
{¶57} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, Earle, J. concurs
Gwin, P.J., concurs in part, dissents in part
{¶58} I respectfully cоncur in the majority‘s disposition of Beatty‘s First, Second Third, and Fifth Assignments of Error. However, I do so for the following reasons.
{¶59} In State v. Barksdale, 2 Ohio St.3d 126, 443 N.E.2d 501(1983), Barksdale was indicted on one count of breaking and entering in violation of
This court is convinced that were wе to find that appellee, by virtue of his felonious intent, lost his right to enter the lot, a dramatic and completely unfounded change would be wrought in our system of justice. Literally thousands of criminal defendants, heretofore chargeable with only one offense, would suddenly find themselves answerable for a second, with no concomitant benefit accruing to society for whose protection the criminal statutes replete with their penalties exist. Without regard to the nature of their crimes, defendants would incur liability for breaking and entering
whenever they stepped onto premises-whеther stores, offices or even their own friends’ and relatives’ homes-with the intention of committing a felony. Though we certainly do not wish to reward criminals for exploiting the innocently extended invitations of merchants, shopkeepers and gracious hosts, neither do we care to penalize criminals indiscriminately for acts for which the General Assembly clearly intended no punishment. The treatment that would be accorded a shoplifter, if appellant‘s construction of
R.C. 2911.13(B) were to become the law, best exemplifies the potential oppressiveness of such an interрretation of the breaking and entering statute. Traditionally, theft and larceny statutes have been relied on to prosecute shoplifters. Under the regime which appellant envisions, however, a shoplifter would also be liable for breaking and entering, his felonious purpose-shoplifting-having vitiated his privilege to enter the store, a privilege enjoyed by the general public. The General Assembly clearly did not intend such a radical and unwarranted extension of the breaking and entering statute.
2 Ohio St.3d at 128, 443 N.E.2d 501. The Supreme Court concurred with the reasoning expressed by the courts in Florida, Wiscоnsin and North Carolina which have addressed the question posed in Barksdale concerning the proper application of breaking and entering statutes. The Ohio Supreme Court concluded,
R.C. 2911.13 was designed to punish unauthorized entry with felonious intent upon another‘s property where the entry itself was significantly egregious. The statute was not meant to function so as toenhance every criminal violation occurring on property not owned by the defendant. Such a construction does no more than trivialize the offense of breaking and entering, and cannot be embraced. Moreоver, we are strengthened in the views we express today by the strictures of
R.C. 2901.04(A) , which mandates that: “Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” To interpret the breaking and entering statute in a way that imposes greater liabilities upon criminal defendants than the General Assembly intended comports with neither the words nor the spirit ofR.C. 2901.04(A) . See State v. Carroll (1980), 62 Ohio St.2d 313, 405 N.E.2d 305 [16 O.O.3d 359]
2 Ohio St.3d at 129, 443 N.E.2d 501.
{¶60} I find the same reasoning would apply to the instant case. Beatty‘s entrance into the store open to the public would normally be insufficient to рrove the element of “trespass” necessary to sustain a conviction for aggravated burglary. The fact that he either committed a theft offense or assaulted the police officer while in the store cannot enhance those crimes into an aggravated burglary under the reasoning adopted by the Ohio Supreme Court in Barksdale. However, a review of the record in the case at bar reveals a letter to Beatty from his attorney dated March 20, 2019 that states, in relevant part,
Please find enclosed a notice from Walmart informing you that you were placed on the no trespass list on July 14, 2018. The Prosecutor provided this as part of discovery.
{¶62} I respectfully dissent from the majority‘s opinion concerning ripeness and Appellant‘s Fourth and Sixth Assignments of Error for the reasons set forth in my dissenting opinion in State v. Wolfe, 5th Dist., Licking No. 2020 CA 00021, 2020-Ohio-5501.
{¶63} I further notе that the Ohio Supreme Court has accepted a certified conflict on the issue of whether the constitutionally of the Reagan Tokes Act is ripe for review on direct appeal or only after the defendant has served the minimum term and been subject to extension by application of the Act. See, State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702, order to certify conflict allowed, State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150(Table); State v. Downard, 5th Dist. Muskingum No. CT2019-0079, 2020-Ohio-4227, appeal accepted on Appellant‘s Proposition of Law No. II, State v. Downard, 160 Ohio St.3d 1507, 2020-Ohio-6835, 159 N.E.3d 1507 (Table)(Sua sponte, cause held for the decision in 2020-1266, State v. Maddox).
STATE OF OHIO, Plaintiff-Appellee -vs- JOHN BEATTY, Defendant-Appellant
Case No. CT2020-0015
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the judgment of the Muskingum County Court of Common Pleas, is affirmed. Costs assessed to Appellant.