Case Information
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[Cite as
State v. Beaty
,
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24048 v. : T.C. NO. 09CR4075 JOSHUA L. BEATY : (Criminal appeal from
Common Pleas Court) Defendant-Appellant :
:
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O P I N I O N
Rendered on the 30 th day of September , 2011.
. . . . . . . . . .
LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant JOSHUA L. BEATY, #627871, 5900 B.I.S. Road, Lancaster, Ohio 43130
Defendant-Appellant
. . . . . . . . . .
FROELICH, J. Joshua L. Beaty pled no contest to two counts of felonious assault,
with gun specifications, and having weapons while under disability. The charges stemmed from the shooting of Markus Singleton, allegedly because Beaty believed that Singleton had thrown away Beaty’s cocaine. Two weeks before the shooting, Beaty had been convicted of possession of cocaine and placed on community control; this conviction resulted in a prohibition against possessing firearms. See State v. Beaty , Montgomery C.P. No. 2009 CR 2404. The trial court found Beaty guilty of the charges, merged the two
felonious assault counts and specifications, and sentenced Beaty to five years in prison for felonious assault and to three years in prison for having weapons while under disability. The sentences were to be served concurrently with each other, but subsequent to three years of incarceration for the firearm specification. The sentences were also made concurrent to the 12-month sentence imposed in Case No. 2009 CR 2404 for Beaty’s violation of community control. Beaty was ordered to pay restitution to Singleton and costs. Beaty appealed from his convictions. Beaty’s appointed appellate
counsel subsequently filed a brief pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, wherein counsel represented that, after a thorough examination of the record, he was unable to discover any errors by the trial court that were prejudicial to Beaty. Counsel proposed one assignment of error with six potential issues for appeal, but argued that the assignment of error was frivolous. By magistrate’s order of March 11, 2011, we informed Beaty that his
counsel had filed an Anders brief and of the significance of such a brief. We invited Beaty to file a pro se brief assigning errors for review. Beaty responded with a letter, which we construe as a pro se brief.
{¶ 5}
The case is now before us for our independent review of the record.
Penson v. Ohio (1988),
I {¶ 6} Beaty’s appellate counsel raises one potential assignment of error, which states:
{¶ 7} “WHETHER THE COURT ERRED IN FINDING NO FLAWS IN EFFECTIVENESS OF COUNSEL, POLICE QUESTIONING, DEFENDANT’S PLEAS, AND THE REASONABLENESS OF DEFENDANT’S SENTENCE SUFFICIENT TO COMPROMISE DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FIFTH , EIGHTH , AND FOURTEENTH AMENDMENT[S] [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO STATE CONSTITUTION .” (Emphasis in original.) We will address the individual issues within that assignment of error separately. First, appellate counsel raises the issue that Beaty’s trial counsel
failed to thoroughly investigate and properly prepare Beaty’s case, such that Beaty was forced to enter a plea. We review alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S.
668,
brief as to what Beaty’s trial counsel should have done, but did not. And, based on the record, it is unclear how a more thorough investigation by Beaty’s trial counsel would have affected the outcome of Beaty’s case. Beaty admitted to police officers and to the media that he had shot Singleton. There is no suggestion in the record that Beaty acted in self-defense, that the shooting was an accident, or that he had any other defense to the charges. If evidence of self-defense or some other defense exists, Beaty does not allege it in his pro se brief; regardless, it is outside the record and cannot be considered on direct appeal. Moreover, we find no basis to conclude that Beaty’s trial counsel
failed to properly prepare the case. Counsel moved to suppress Beaty’s incriminating statements to the police. [1] The record reflects that there were extensive plea negotiations. In light of Beaty’s confession to the police and public admission to the media that he had shot Singleton, counsel did not have a lot to work with. Accordingly, given the record before us, we agree that there is no potentially meritorious claim of ineffective assistance of counsel based on counsel’s alleged failure to investigate Beaty’s case more thoroughly and to properly prepare his case. Second, appellate counsel raises whether the trial court erred in
concluding that Beaty knowingly, intelligently, and voluntarily waived his Miranda rights during police questioning and thus denying his motion to suppress.
In addressing a motion to suppress, the trial court assumes the role of
the trier of fact. State v. Morgan, Montgomery App. No. 18985,
694, the United States Supreme Court held that the State may not use statements
stemming from a defendant’s custodial interrogation unless it demonstrates the use
of procedural safeguards
to secure
the defendant’s privilege against
self-incrimination. Id. at 444. In order for a defendant’s statements made during a
custodial interrogation to be admissible, the State must establish that the accused
knowingly, voluntarily, and intelligently waived his or her rights. Miranda, supra;
State v. Edwards (1976),
not required, a defendant’s statement may be involuntary and subject to exclusion.
State v. Porter , 178 Ohio App.3d 304,
DeBorde and Detective Darryl Smith interviewed Beaty in a police interview room regarding a shooting that had happened the night before. The room was approximately five feet square with a tile floor and no windows; there was a small table with three chairs. DeBorde did not recall if Beaty was initially handcuffed, but he stated that he would have asked for any handcuffs to be removed or he would have removed them himself. The detectives entered the room, introduced themselves, and told
Beaty that they were there to interview him regarding a felonious assault. Beaty asked what felonious assault meant, and DeBorde explained that to him. The detectives asked Beaty if he were injured and obtained certain personal information, such as Beaty’s name, address, birthday, phone number, and Social Security number. Beaty was nineteen years old and had ten years of schooling. DeBorde also knew from a computer search prior to the interview that Beaty had prior contacts with the police. The detectives presented Beaty with a Pre-Interview form. DeBorde
wrote Beaty’s identifying information, as well as the date, interview location, and offense, on the form. DeBorde asked Beaty if he could read; Beaty indicated that he could. DeBorde asked Beaty to read the first line of the form out loud. Beaty complied. DeBorde read each right to Beaty. Beaty indicated that he understood each right, and he agreed to talk with the detectives without an attorney. Beaty signed the Pre-Interview form. DeBorde testified that he did not promise Beaty anything or threaten Beaty. The detectives spoke with Beaty for twenty to thirty minutes.
DeBorde described Beaty as “very open” with the officers. Beaty informed them that he had been at Gilcy Market and that he had brought cocaine into the store. Beaty left the store to answer a cell phone call and, when he returned, his found that his cocaine was missing. Beaty blamed Singleton, who was supposedly sweeping the store. Beaty related that he retrieved a handgun that he had placed in a newsstand inside the market and threatened Singleton with it. Beaty then looked through trash cans for the cocaine. Beaty left the market and waited for Singleton to leave. Beaty admitted that he shot Singleton when Singleton came out of the store. The detectives asked Beaty if he wished to make a written or video statement; Beaty declined. The record supports the trial court’s conclusions that Beaty knowingly,
intelligently, and voluntarily waived his Miranda rights and that his statements were made voluntarily. Beaty could read the Pre-Interview form, he was read his rights, he agreed to speak to the officers without an attorney, and he signed the Pre-Interview form. There is no evidence that Beaty was under the influence of drugs or alcohol or was otherwise impaired. Beaty was not handcuffed, and there is no evidence of threats or coercion by the detectives. The interview lasted no more than 30 minutes. In short, we find no arguably meritorious argument that the trial court erred in denying Beaty’s motion to suppress. Third, appellate counsel raises whether the State presented sufficient
facts at the plea hearing to support Beaty’s no contest plea. Because Beaty did
not raise this argument at the plea hearing, we review this issue for plain error.
State v. Peoples , Miami App. No. 2005 CA 20,
specifications against Beaty, using the language of the indictment. Because the charges against Beaty were felonies, the trial court was permitted to find Beaty guilty based on the facts as alleged in the indictment; the trial court was not required to hear an explanation of the circumstances surrounding the offense. Beaty’s potential claim based on the State’s alleged failure to present sufficient facts at the plea hearing is frivolous. Fourth, appellate counsel raises a potential claim that Beaty’s plea
was not knowingly, intelligently, and voluntarily made. Counsel notes that the plea hearing occurred while the jury waited outside the courtroom. “Crim.R. 11(C)(2) requires the court to (a) determine that the
defendant is making the plea voluntarily, with an understanding of the nature of the
charges and the maximum penalty, and, if applicable, that the defendant is not
eligible for probation or for the imposition of community control sanctions; (b) inform
the defendant of and determine 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 sentencing; and (c) inform the defendant and determine
that he understands that, by entering the plea, the defendant is waiving the rights to
a jury trial, to confront witnesses against him, to have compulsory process for
obtaining witnesses, and to require the state to prove his guilt beyond a reasonable
doubt at a trial at which he cannot be compelled to testify against himself.” State v.
Brown , Montgomery App. No. 21896,
with Crim.R. 11. Clark at ¶29. However, because Crim.R.11(C)(2)(a) and (b)
involve non-constitutional rights, the trial court need only substantially comply with
those requirements. E.g., State v. Nero (1990),
to support a contention that Beaty’s pleas were not made knowingly, intelligently, and voluntarily. The trial court ascertained that Beaty had ten years of education, could read and understand the plea forms, and that there was nothing that would interfere with his understanding the forms and the proceedings. The trial court determined that Beaty understood the nature of the charges and the potential penalties. The court informed Beaty that he was eligible for community control for having weapons while under disability, but not felonious assault; the court told Beaty that he would not receive community control. The court further informed him that the plea would constitute a violation of his community control and that community control would be revoked. The court explained each of Beaty’s constitutional rights and determined that Beaty understood that he was waiving those rights by entering his no contest plea. Beaty indicated that he wanted to plead no contest to the charges. The court found that Beaty’s plea was knowing, intelligent and voluntary. The record demonstrates that the trial court’s plea hearing complied with the requirements of Crim.R. 11. As noted by appellate counsel, the one issue that arose at the plea
hearing concerned whether Beaty was satisfied with his attorney. A few weeks before the plea hearing, Beaty had filed a pro se motion for a new attorney based on ineffective assistance of counsel. Beaty wrote that he didn’t “feel Mr. Goraleski is thinking about my best interest and [I] don’t trust him. I feel he aint got time for my case and he is just trying to get it over with as fast as he can.” We see no indication that the trial court ruled on this motion.
At the plea hearing, Beaty had the following exchange with the trial court:
“THE COURT: Are you satisfied with Mr. Goraleski’s representation? “THE DEFENDANT: No.
“THE COURT: Why not?
“THE DEFENDANT: I just – I just – just not.
“THE COURT: Well, what did you want him to do?
“THE DEFENDANT: It’s over with now.
“THE COURT: Huh?
“THE DEFENDANT: I said it’s over with now.
“THE COURT: No. *** Because if you feel that you’re doing something here today that you feel is not appropriate, then we’re not going to do this.
“THE DEFENDANT: I didn’t – I ain’t saying what I was doing right now –
“THE COURT: Well, what is it --
“THE DEFENDANT: – ain’t appropriate.
“THE COURT: – about his representation that you’re not satisfied with? It’s my understanding, sir, and I’m going to be real blunt with you; okay? I mean, I saw what you said on TV. You know, in front of two television cameras, you admitted that you shot the guy. Okay? You talked with the detective. You made a statement, admitted it. What is it that you expected him to do?
“THE DEFENDANT: It was nothing.
{¶ 47} “THE COURT: There was nothing?
{¶ 48} “THE DEFENDANT: No, ma’am.
{¶ 49} “THE COURT: Then why is it that you’re not satisfied with his representation?
{¶ 50} “THE DEFENDANT: It’s fine.
{¶ 51} “THE COURT: All right. Sir, are you entering your pleas today voluntarily? That means is this what you want to do? “THE DEFENDANT: Yes, ma’am.” We do not find that this exchange creates an arguable issue that
Beaty’s plea was involuntarily. Although Beaty apparently believed that his
counsel should have done more on his case, he did not articulate for the court how
his counsel was allegedly ineffective. With respect to the plea, Beaty did not
express that he disagreed with the decision to enter a no contest plea. To the
contrary, he told the trial court that he was not saying that the plea was
inappropriate and that he wanted to enter his plea. We find no potentially
meritorious claim that Beaty’s plea was not knowing, intelligent, and voluntary.
Although not explicitly raised by Beaty in his pro se brief or by
appellate counsel as part of his “issue” that the plea was not knowingly made, we
further note that the trial court told Beaty that he was ineligible for community
control for the felonious assault, even though the law permitted such a sentence.
See State v. Swimer , Clark App. No. 08 CA 38,
ineligible for community control for felonious assault. Because community control
is a less severe punishment than prison, Beaty could not have detrimentally relied
on the trial court’s misstatement in deciding whether to enter a plea. Moreover, the
trial court made clear that Beaty would not receive community control in this case.
We find no potentially meritorious argument that the trial court’s misstatement
regarding Beaty’s eligibility for community control for felonious assault affected the
voluntariness of Beaty’s plea. See State v. Kennedy , Champaign App. No. 2011
CA 3,
prior to sentencing, seeking to withdraw his plea due to ineffective assistance of counsel. Beaty claimed that his counsel did not prepare for trial, failed to investigate the facts of the case, provided false information to him, and coerced him to enter a plea. Beaty further stated that he was not permitted to participate in the selection of the jury. A defendant’s motion to withdraw a plea, made before sentencing,
should be freely and liberally granted, provided the movant demonstrates a
reasonable and legitimate basis for the withdrawal. State v. Xie (1992), 62 Ohio
St.3d 521, 526. However, a defendant does not have an absolute right to withdraw
his plea prior to sentencing. Id. A trial court must hold a hearing on the motion to
determine if a reasonable and legitimate basis exists for the withdrawal. Id.; State
v. Bennett ,
a plea is demonstrated where: (1) the accused is represented by highly competent
counsel, (2) the accused was afforded a full hearing, pursuant to Crim.R. 11, before
entering the plea, (3) after the motion to withdraw is filed the accused is given a
complete and impartial hearing on the motion, and (4) the record reveals that the
trial court gave full and fair consideration to the plea withdrawal request.” State v.
Chavez , Montgomery App. No. 22892,
pro se motion to withdraw his plea. The court told Beaty that he would go to trial immediately if he were permitted to withdraw his plea, and that the court was willing to schedule a hearing on the motion. The court stated repeatedly that having a hearing on the motion did not mean that the motion would be granted. Beaty and his trial counsel conferred twice. When Beaty expressed confusion to the trial court, the court stated:
“THE COURT: It means I haven’t made up my mind. You filed a motion – anybody’s free to file a motion at any time if they want to.
“THE DEFENDANT: Right.
“THE COURT: Okay? Just because you have a hearing on it doesn’t mean your motion’s going to be granted. Just because you asked to withdraw your plea doesn’t mean that it’s going to happen.
“THE DEFENDANT: All right.
“THE COURT: All right? If you want to have a hearing on it, I’ll set it for hearing next week. I’ll make a decision on it then.
“THE DEFENDANT: I mean, we can just – we can just forward with sentence.
“THE COURT: Is that what – so you’re saying on the record you want to go forward with sentencing? You’re asking to withdraw your motion to withdraw your plea; is that right?
“THE DEFENDANT: Yes.
“THE COURT: Is that what you want to do?
“THE DEFENDANT: Yes.”
We find no arguably meritorious issues related to Beaty’s motion to withdraw his plea. At the beginning of the sentencing hearing, the trial court noted that a motion to withdraw Beaty’s plea had been filed, and the court repeatedly offered Beaty the opportunity for an evidentiary hearing on that motion. The record reflects that Beaty voluntarily withdrew his motion after conferring with counsel and discussing the motion with the trial court. The trial court did not pressure Beaty into withdrawing the motion; it merely emphasized that scheduling a hearing on the motion did not guarantee that the motion would be granted. And because Beaty’s motion was withdrawn, the record does not include any evidence demonstrating that Beaty had a reasonable and legitimate basis for his motion. Finally, appellate counsel raises whether Beaty’s sentence was an
abuse of discretion. We review a felony sentence using a two-step procedure.
State v. Kalish , 120 Ohio St.3d 23,
with a maximum sentence of eight years, and having weapons while under disability, a third degree felony with a maximum sentence of five years. Beaty received five years for felonious assault and three years for having weapons while under disability, to run concurrently. Each of these sentences is within the sentencing range. And, as required by law, Beaty received three years for the firearm specification, to be served prior to and consecutive to the sentences for the offenses. Beaty’s sentence was not contrary to law.
{¶ 73} The record reflects that Beaty shot the victim because he believed the victim had stolen his drugs. At the time of the shooting, Beaty had been on community control in another case for less than a month. Considering the circumstances of the crime and the mid-range, concurrent sentences that Beaty received, Beaty has no potentially meritorious challenge to the length of his sentences.
{¶ 74} In his pro se brief, Beaty raises several of the issues that were included in appellate counsel’s brief. We have already addressed those issues and will not repeat our analysis. He also raises several additional arguments, which we will address separately. Beaty asserts that he filed a motion to suppress the news footage and
that his motion was denied. The record does not contain such a motion. And we cannot conclude, based on the record before us, that such a motion would have been successful even if it had been filed. Beaty next claims that the trial court found him guilty because the
judge had seen the news footage. It is unclear what Beaty means by this claim. Perhaps Beaty is arguing that the trial court’s reference at the plea hearing to Beaty’s admission to the media meant that the court was predetermined to find him guilty, regardless of whether he entered a plea or went to trial. Or perhaps Beaty means that the court would not allow him to withdraw his plea “[n]o matter what was said” at a hearing on that motion. “A judge is presumed to follow the law and not to be biased, and the
appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George , 100 Ohio St.3d 1241,
footage during the plea hearing in order to emphasize that the State had a strong case against him based on his own confessions and to question Beaty on how he believed his counsel should have proceeded. Prior to this exchange, the trial court had informed Beaty that, “based upon the facts in the indictment and the plea itself, the Court will proceed to a judgment of guilty on all three counts and set your case for sentencing on April 21 st .” We find no reasonable argument that Beaty’s conviction was based on judicial bias. Beaty also claims that he was not permitted to participate in jury
selection and that the jury was tainted because they were in the same hallway as Beaty, his mother, and his trial counsel when Beaty’s counsel advised him to enter a plea. The trial court began the plea hearing by stating: “The record should reflect that the jury is present and we’re prepared to get started with the trial ***.” However, it is unclear from the record whether the trial court was referring to potential jurors who had responded to the court’s summons or whether a jury had already been selected. Even assuming that a jury had been selected, Beaty has not provided a transcript of the jury selection portion of his trial. Consequently, the record does not portray the error that Beaty alleges. Moreover, there is no evidence, and it is extremely doubtful, that any jurors (potential or selected) were present during the plea discussion. And considering that Beaty’s case did not go to trial, Beaty has not demonstrated how he was prejudiced by these alleged errors. Finally, Beaty claims that he was sentenced two days after the scheduled trial date, without having entered a plea, in front of the news media. Beaty entered a no contest plea on April 5, 2010, after a proper Crim.R. 11 plea hearing. The plea forms were signed by Beaty and his trial counsel. Beaty was brought before the court for sentencing on April 28, 2010. He returned to the court on July 21, 2010, after the trial court was informed that the original judgment entry was not a final appealable order because it failed to specify the amount of restitution. Beaty’s assertion that he was found guilty without a plea and was sentenced two days later is frivolous. In addition to reviewing the issues raised by Beaty’s appellate counsel
and by Beaty in his pro se brief, we have conducted an independent review of the trial court’s proceedings and have found no potential assignments of error having arguable merit. The trial court’s judgment will be affirmed.
. . . . . . . . . .
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Laura M. Woodruff
Richard A. Nystrom
Joshua L. Beaty
Hon. Mary Katherine Huffman
Notes
[1] The suppression motion was inadvertently filed in Montgomery Case. No. 2009CR2404, Beaty’s prior case for possession of cocaine. Beaty’s trial counsel orally renewed the motion to suppress in this case. A hearing was held, and the motion was denied.