State v. FreemanState v. Freeman
APPEARANCES:
Wendall Kent Freeman, South Point, Ohio, pro se appellant.1
Shane A. Tieman, Prosecuting Attorney, and Matthew F. Loesch, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Hess, J.
{¶1} Wendall K. Freeman appeals from a judgment of the Lawrence County Court of Common Pleas convicting him, pursuant to a guilty plea, of disorderly conduct, a minor misdemeanor. Freeman presents one assignment of error asserting he received ineffective assistance of counsel in connection with his defense, guilty plea, and sentencing proceeding, resulting in a plea that was not voluntary. For the reasons which follow, we overrule the assignment of error and affirm the trial court’s judgment.
{¶2} In May 2022, Freeman was indicted on one count each of retaliation, a third-degree felony, obstructing official business, a fifth-degree felony, aggravated menacing, a first-degree misdemeanor, and resisting arrest, a second-degree misdemeanor. The trial court appointed him counsel, and Freeman initially pleaded not guilty to the charges. On December 6, 2022, the court conducted a hearing at which the state moved to dismiss the retaliation, obstructing official business, and aggravating menacing counts and to amend the resisting arrest count to disorderly conduct, a minor misdemeanor. The court granted the motion, and Freeman pleaded guilty to the amended count of disorderly conduct. He executed a proceeding on plea of guilty form in which he answered a series of questions. He indicated that he had confidence in his attorney, that no promises, threats, or inducements were made to persuade him to plead guilty, and that he was making the plea of his own free will. He indicated that he or his counsel had competent evidence to offer to show that he was not guilty of the offense charged, but he also indicated that he and his counsel believed there was a factual basis for the guilty plea. The trial court accepted the guilty plea and found Freeman guilty of disorderly conduct.
{¶3} On December 28, 2022, the trial court conducted the sentencing hearing. The next day, the court issued a judgment entry ordering Freeman to pay a $100 fine and court costs. The court noted that there was a negotiated plea and that the sentence had been jointly recommended by the parties.
II. ASSIGNMENT OF ERROR
{¶4} Freeman presents one assignment of error:
Mr. Freeman received ineffective assistance of counsel in connection with his defense, guilty plea, and sentencing proceeding, resulting in a plea that was not voluntary.2
III. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶5} In his sole assignment of error, Freeman contends that he received ineffective assistance of counsel in connection with his defense, guilty plea, and sentencing proceeding, resulting in an involuntary plea. Freeman claims he gave trial counsel evidence and information demonstrating his innocence and told counsel he wanted this case to be dismissed or to go to trial. However, counsel “indicated that he would not provide a legal defense” for him and refused to file a motion to dismiss. Counsel also incorrectly advised him that he had to either accept a plea deal in this case and another unrelated case or “go to trial for both cases jointly,” which would have been “extremely prejudicial” to him. Counsel said that “there was no way he was going to prevail,” that “he would be going to prison after enduring a joint trial on both cases with no chance to defend,” and that “the plea offer for both cases were [sic] his best choice.” Counsel “bullied” him, “repeatedly cursed” at him, and said he was a “damned fool” and “idiot” if he did not accept “this deal of a life time [sic].” Freeman “believed he was being threatened and coerced to plead guilty to a crime that he did not commit” and accepted the plea offer “[u]nder duress and intimidation.” Freeman claims that he later asked counsel to move to withdraw his plea, but counsel refused. Freeman asserts that a “reasonable attorney” would have “recognized his innocence,” “explored all genuine avenues of defending” him, and filed a motion to dismiss instead of “pressuring” him “to plead guilty without supporting facts or evidence for the amended indictment.” Freeman
A. Standard of Review
{¶6} “Upon direct appeal, appellate courts generally review claims of ineffective assistance of counsel on a de novo basis, simply because the issue originates at the appellate level; no trial court has ruled on the issue. Appellate courts review the trial record and are left to judge from the bare record whether the assistance was effective.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 53. “To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial.” State v. Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 15, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal to the claim. See Strickland at 697. The defendant “has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” Gondor at ¶ 62.
{¶7} “‘In order to show deficient performance, the defendant must prove that counsel’s performance fell below an objective level of reasonable representation.‘” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 89 (4th Dist.), quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. When considering counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might
B. Analysis
{¶8} Freeman has not demonstrated that counsel’s performance was deficient.
{¶9} The limited record before this court does not support Freeman’s contention that trial counsel’s performance was deficient. The record does not indicate that counsel gave Freeman incorrect advice about the joinder of cases, that counsel refused to provide him with a defense even though he is innocent, or that counsel coerced him into pleading guilty. Freeman executed a form indicating that he had confidence in his attorney, that no promises, threats, or inducements were made to persuade him to plead guilty, and that he was making the plea of his own free will. Although Freeman indicated on the form that he or his counsel had competent evidence to offer to show that he was not guilty of the offense charged, he also indicated that he and his counsel believed there was a factual basis for the guilty plea. Moreover, any motion to dismiss based on alleged evidence of innocence would have been futile because “a motion to dismiss that goes beyond the face of an indictment essentially is a motion for summary judgment, and a trial court has no authority to grant such a motion in a criminal case.” State v. Robinson, 4th Dist. Athens No. 01CA51, 2002-Ohio-6150, ¶ 27. In addition, the record does not reflect that Freeman asked counsel to move to withdraw his guilty plea, and even if Freeman did, he has not shown such a motion would have been successful.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the LAWRENCE COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: _________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.