State of Ohio, Plaintiff-Appellee, v. Michael L. Frye, Defendant-Appellant.
No. 14AP-988 (C.P.C. No. 07CR-3561), No. 14AP-989 (C.P.C. No. 07CR-9129)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
July 28, 2015
2015-Ohio-3012
SADLER, J.
(REGULAR CALENDAR)
Rendered on July 28, 2015
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Michael L. Frye, pro se.
APPEALS from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Michael L. Frye, appeals from judgments of the Franklin County Court of Common Pleas in favor of plaintiff-appellee, State of Ohio, denying appellant‘s “motion for leave to file a delayed motion for new trial.” For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In May 2007, a Franklin County Grand Jury indicted appellant for murder, with a three-year firearm specification. The grand jury subsequently indicted appellant in a related case on one count of tampering with evidence and one count of obstructing justice. On June 2, 2008, appellant pleaded guilty to voluntary manslaughter with a
[PROSECUTOR]: * * * Back on May 9, 2007, the victim in this case, Adrian Haithcock, resided at 133 South Champion Avenue here in Franklin County, Ohio. Apparently the Defendant, Mr. Frye, was at least staying or may have been even living for a short period next door to that location with a friend of his, Corey Hart, and his girlfriend, Ashley Atkins.
On this day, Mr. Frye and Mr. Haithcock got into an argument. If witnesses had testified, they would have testified to the fact that * * * [t]here was some argument over a period of time either for the repayment of maybe money owed by Mr. Haithcock to Mr. Frye or there was maybe a drug debt, and some of the witnesses would have probably testified that they believed that there may have been a drug debt that was actually owed by Mr. Haithcock to Mr. Frye and possibly some other individuals, including Corey Hart.
* * *
At one point, Mr. Haithcock took a running start at Mr. Frye, who was at that time standing on a landing that would have gone into the two apartments. Some witnesses would have testified that Mr. Haithcock took a swing at Mr. Frye and may have struck him in the side of the face with his fist, at which time Mr. Frye shot Mr. Haithcock once with a firearm, handgun that he had on his person. That bullet struck Mr. Haithcock in the chin and then the bullet entered his chest area. Mr. Haithcock was taken by Columbus medics to Grant Hospital, where he expired.
* * *
THE COURT: * * * [A]ny exceptions or additions?
[DEFENSE COUNSEL]: Yes, Your Honor, I have one exception that does not affect the underlying basis of the plea. However, I thoroughly investigated this case, and I believe that we would have provided testimony that there was no debt or obligation between Mr. Frye and Mr. Haithcock, that the drug transaction was between Mr. Hart and Mr. Haithcock.
(June 2, 2008 Tr. 6-10.)
I‘m here to take full responsibility for what I‘ve done. I want the family to know that I‘m very sorry and it wasn‘t my intentions to hurt nobody. This all stems from a laptop that was stolen from Mr. Haithcock‘s home that I played no part in stealing. Over a period of time explaining to him and his wife that I did not take part in stealing his laptop, I guess he just didn‘t believe me, so threats was made and the situation escalated and got out of hand. I understand and know that nobody‘s life is worth a laptop, and I didn‘t mean this to happen, and I am truly sorry.
(June 2, 2008 Tr. 11.) The trial court imposed a prison term of 15 years. Appellant did not timely appeal from his conviction and sentence.
{¶ 4} On October 7, 2014, more than six years after his conviction and sentence, appellant filed a “motion for leave to file a delayed motion for new trial.” On November 4, 2014, the trial court denied appellant‘s motion in a decision that reads, in relevant part, as follows:
Upon consideration the Court does not find the motion well taken. First, the Court finds Defendant‘s motion is untimely pursuant to the requirements of
R.C. 2953.21(A)(2) applicable to petitions for post-conviction relief. Second, the Court finds that Defendant‘s claim is barred by res judicata as Defendant could have raised this issue on direct appeal. Finally, the Court finds that Defendant has not met the burden of proving manifest injustice and therefore is not entitled to a hearing.
(Citations omitted.) (Decision, 1-2.)
{¶ 5} Appellant filed a timely notice of appeal to this court on December 1, 2014.1
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following as error:
[I.] Defendant-Appellant was denied effective assistance of counsel as guaranteed under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution. [II.] Defendant-Appellant‘s convictions is against the manifest weight of the evidence.
[III.] Defendant-Appellant was entitled to file a delayed motion for new trial based upon Newly Discovered Evidence of prosecution‘s misconduct in withholding and concealing exculpatory evidence.
[IV.] The trial court abused its discretion and erred to the prejudice of Defendant-Appellant by denying his motion for leave to file a delayed motion for a new trial where evidence was presented that the prosecution knowingly and unlawfully withheld and concealed exculpatory evidence Brady Material, he was entitled to a hearing.
(Emphasis sic.)
III. STANDARD OF REVIEW
{¶ 7} The trial court treated appellant‘s October 7, 2014 motion as a
{¶ 8} Whether res judicata bars claims raised in a motion to withdraw a guilty plea is a question of law for the court. Id., citing State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 11. We review questions of law under a de novo standard. Id.
A. Legal Analysis
{¶ 9} As a preliminary matter, we find that the trial court properly treated appellant‘s motion as a
B. First Assignment of Error
{¶ 10} In his first assignment of error, appellant argues that the trial court abused its discretion when it denied his motion inasmuch as he submitted evidence to support a claim of ineffective assistance of trial counsel. The specific instances of ineffective assistance of trial counsel appellant raised in his motion are as follows: (1) counsel‘s failure to raise the Castle Doctrine2 as a defense to the murder charge, (2) counsel‘s failure to follow up on a pre-trial motion to dismiss the indictment, and (3) counsel‘s failure to properly investigate the case and obtain a police report in support of his defense to the murder charge.
{¶ 11} “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial [court] cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish a claim of ineffective assistance of counsel, a defendant must show that the performance of trial counsel was deficient and that the deficient performance prejudiced him. Id. at 687. The failure to make either showing defeats a claim of ineffective assistance of counsel. Id. at 697.
{¶ 12} “Ineffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of a guilty plea.” State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶ 18 (10th Dist.), citing State v. Lake, 10th Dist. No. 95APA07-847 (Mar. 28, 1996). In determining whether a claim of ineffective assistance of counsel allows the withdrawal of a guilty plea, the Supreme Court of Ohio has held that the defendant must demonstrate both of the following: (1) counsel‘s performance was deficient, and (2) there is a reasonable probability that, but for counsel‘s errors, defendant would not have pleaded guilty. Id., citing State v. Xie, 62 Ohio St.3d 521, 524 (1992), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
C. Res judicata
{¶ 13} Even if we were to conclude that appellant‘s trial counsel‘s performance was deficient in the manner he alleges, res judicata bars claims of ineffective assistance of counsel that could have been raised in a timely appeal from the conviction and sentence. Totten; Muhumed. In a direct appeal to this court from his conviction and sentence, appellant could have raised counsel‘s alleged ineffectiveness both in failing to assert a defense based on the Castle Doctrine and in failing to follow up on the motion to dismiss. Each of these alleged deficiencies in the performance of trial counsel occurred prior to the guilty plea and are reflected in the trial court record. Consequently, res judicata barred appellant from raising claims of ineffective assistance in his post-conviction motion that were based on trial counsel‘s alleged failure to assert the Castle Doctrine as a defense to the murder charge and counsel‘s failure to follow up on a pre-trial motion to dismiss the indictment.
D. The Police Report
{¶ 14} Appellant submitted a copy of a police report as an exhibit to his motion. The document, entitled “Columbus Division of Police Preliminary Investigation,” states that on April 27, 2007, the victim‘s wife accused the victim of stealing her laptop computer and that “[t]his stems from [a] domestic violence incident.” (Oct. 7, 2014 Motion, Exhibit C.3) Appellant now claims that the information in the police report would have proven his claim of self-defense and that his trial counsel provided ineffective assistance by failing to obtain the police report in his investigation of the case.3
{¶ 16} In this case, appellant filed his motion more than seven years after the victim‘s death and more than six years after he pleaded guilty. Given the lengthy delay, the state could be significantly prejudiced if appellant were permitted to withdraw his guilty plea. See State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 40 (“The more time that passes between the defendant‘s plea and the filing of the motion to withdraw it, the more probable it is that evidence will become stale and that witnesses will be unavailable.“). Other than his incarceration, appellant has not asserted any reason why he could not have earlier discovered the police report.
{¶ 17} Moreover, even if we were to conclude that trial counsel should have discovered this evidence, appellant‘s affidavit confirms that there were several individuals who could have testified that the victim accused appellant of stealing his wife‘s laptop computer. In addition to appellant‘s roommate and his girlfriend, appellant avers that the victim also told appellant‘s neighbors that appellant had broken into his home and stolen his wife‘s laptop.4 Though the police report would have provided evidence that the victim knew his allegations against appellant were false, it is not clear to the court how this
{¶ 18} We hold that the trial court did not abuse its discretion when it denied appellant‘s motion to withdraw his guilty plea. Appellant‘s first assignment of error is overruled.
E. Second Assignment of Error
{¶ 19} In appellant‘s second assignment of error, he argues that his convictions are against the manifest weight of the evidence. Appellant pleaded guilty to involuntary manslaughter with a firearm specification and tampering with evidence. Consequently, there was no trial in this matter. A manifest weight analysis is inapplicable where a defendant has pleaded guilty. State v. Reeves, 10th Dist. No. 14AP-631, 2015-Ohio-2123, ¶ 9. Accordingly, appellant‘s second assignment of error is overruled.
F. Third Assignment of Error
{¶ 20} In his third assignment of error, appellant contends that the prosecutor was guilty of misconduct at his plea hearing when he stated that a drug debt was the cause of the dispute between appellant and the victim. Because the trial court record reveals the very conduct of which appellant now complains, appellant could have raised the prosecutor‘s alleged misconduct in a direct appeal to this court. State v. Hillman, 10th Dist. No. 06AP-1230, 2008-Ohio-2341, ¶ 62. Accordingly, res judicata barred appellant
G. Fourth Assignment of Error
{¶ 21} In appellant‘s fourth assignment of error, appellant contends that his guilty plea was the result of the prosecutor‘s misconduct in failing to disclose material exculpatory evidence in the form of the previously mentioned police report. We disagree.
{¶ 22} Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the prosecution‘s suppression of evidence favorable to the accused violates due process where the evidence is material to either guilt or punishment, irrespective of a good or bad faith of the prosecution. Id. at 87. ” ‘Evidence suppressed by the prosecution is “material” within the meaning of Brady only if there exists a “reasonable probability” that the result of the trial would have been different had the evidence been disclosed to the defense.’ ” State v. Moore, 10th Dist. No. 11AP-1116, 2013-Ohio-3365, ¶ 43, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 27. The accused bears the burden of proving a Brady violation and consequent denial of due process. Id., citing State v. Jackson, 57 Ohio St.3d 29, 33 (1991).
{¶ 23} Even if we were to conclude that the prosecutor suppressed the police report, as noted above, the report is merely cumulative of other evidence available to appellant at the time he pleaded guilty. Nor is the evidence probative of appellant‘s claim of self-defense. Accordingly, appellant‘s fourth assignment of error is overruled.
IV. CONCLUSION
{¶ 24} Having overruled appellant‘s four assignments of error, we affirm the judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
BROWN, P.J., and KLATT, J., concur.