State v. McKnellyState v. McKnelly
For Plaintiff-Appellee JOSEPH A. PALMER 27 North Fifth Street Zanesville, OH 43701
For Defendant-Appellant JOHN RUTAN 336 South High St. Columbus, OH 43214
{¶1} In exchange for the state‘s agreement to dismiss several felony charges and firearm specifications, and also to jointly recommend a sentence of life in prison with parole eligibility after twenty years, defendant-appellant Devin C. McKnelly [“McKnelly“] with retained counsel, entered a negotiated guilty plea to one count of aggravated murder in 2021. His pro sе petition for post-conviction relief was denied August 25, 2022. McKnelly did not appeal that decision. On November 6, 2023, McKnelly, through retained counsel, filed a motion to withdraw his guilty plea. The trial judge denied the motion without a hearing on December 22, 2023.
{¶2} Retained counsel filed an appeal. On appeal, McKnelly contends that the trial judge erred by not granting his post sentence motion to withdraw his negotiated guilty plea, and also, that he received ineffective assistance from his trial counsel.
{¶3} Because we find that McKnelly has failed to dеmonstrate a manifest injustice such that a fundamental flaw occurred in the proceedings resulting in a miscarriage of justice, or is inconsistent with the demands of due process, and further has failed to demonstrate that trial counsel rendered constitutionally deficient performance with respect to the plea, we affirm the judgment of the Muskingum County Court of Common Pleas.
Facts and Procedural History
{¶4} On May 19, 2021, McKnelly was indicted on the following counts,
Count 1: Aggravated Murder (firearm specification), unclassified felony,
Count 3: Aggravated Burglary (firearm specification), felony of the first degree,
Count 4: Tampering with Evidence, felony of the third degree,
Count 5: Possession of Criminal Tools, felony of the fifth degree,
{¶5} The facts giving rise to the indictment were set forth on the record at McKnelly‘s change of plea hearing as follows.
{¶6} On April 27, 2021, officers with the Zanesville Police Department were dispatched to 46 South Sixth Street, Apartment 2, in Zanesville, Ohio, at approximately 7:00 p.m., in reference to a woman who had been shot. T. Change of Plea, May 24, 2021 at 11. The deceased person was identified as J.W. Id. She died of multiple gunshot wounds. The caller identified the shooter as Tristaney Baker1. Id. He further claimed that Baker was in a relationship with McKnelly. The caller further told police that Baker had come down the day before and caused a disturbance, breaking a window. The caller told the police that Baker was driving a blue car that is owned by her current boyfriend, McKnelly.
{¶7} Police also spoke to a woman that was exiting a business near where the shooting had occurred. Id. at 11-12. While she was attempting to cross the alley, a two-dоor sports car, robin egg blue in color, drove south in the alley in the rear of 46 South
{¶8} Surveillance video showed a blue car, as described by the witness, parked in the parking lot apartments at the dumpster. Video shows a skinny female wearing shorts and hoodie exit the vehicle and go towards the apartment building. A short time later, she is again observed returning quickly back to the vehicle. T. Change of Plea, at 13.
{¶9} When Baker was later arrested, McKnelly was also inside the apartment. Id. at 14. He too was taken into custody. McKnelly was in possession of a blue in color Honda car, that matched the vehicle seen in the security video leaving the scene of the shooting. Id. at 15.
{¶10} The police also interviewed K.C. who told them that Baker admitted to shooting a girl about ten times. Id. at 15. K.C. described Baker as jealous of the girl in reference to a drug-dealer boyfriend. Baker told her she shot the victim in the thigh and just kept shooting until she was out of bullets. K.C. described Baker as being proud of whаt had occurred and showing no remorse. K.C. also stated that McKnelly told her that
{¶11} McKnelly was interviewed by detectives. He initially denied having any knowledge of the homicide, later admitting that he obtained the firearm for Baker, provided her with transportation from Columbus to Newark to get the gun and then from Newark to Zanesville. Id. at 15-16. He stated that Baker had said that she wanted to shoot the victim, although he believed that she was joking. He told the police where they could find the handgun used in the shoоting. Inside McKnelly‘s car, the police found a sweatshirt with blood on it, and a pair of white latex gloves with residue consistent with gunshot residue. Blood was also found on the outside of the car. Id. at 16.
{¶12} On May 24, 2021, McKnelly executed a written Plea of Guilty form that specified,
Upon a plea of “guilty” to Count One as contained in the indictment, the parties agree to a joint recommendation that Defendant be sentenced to life in prison, with the possibility of parole after twenty (20) years. The State agrees to dismiss all remaining Counts of the indictment at the time of sentеncing.
Emphasis in original. McKnelly entered a plea to one count of aggravated murder with the possibility of parole after twenty years on May 24, 2021.
{¶13} The trial judge sentenced McKnelly on June 28, 2021 to a term of 15 years to life. A nunc pro tunc sentencing entry was filed on July 13, 2021 to clarify the parole possibility to be after twenty years.
{¶15} On November 6, 2023, McKnelly, through retained counsel, filed a motion to withdraw his guilty plea. The state filed a response on December 21, 2023. The trial judge denied the motion without hearing by Judgment Entry filed December 22, 2023.
{¶16} On January 10, 2024, McKnelly, through retained counsel, filed a Notice of Appeal purporting to appeal from the final judgment of sentencing on June 28, 2021 and the December 22, 2023 denial of the motion to withdraw his guilty plea. Also, on January 10, 2024, McKnelly filed a motion to file a delayed appeal seeking to appeal the trial court‘s final judgment entry of sentencing filed June 28, 2021. By Judgment Entry filed January 29, 2024, this Court denied McKnelly‘s motion to file a delayed appeal; however, the Court noted McKnelly‘s appeal from the trial court‘s entry denying the motion to withdraw his guilty plea was timely filed.
Assignments of Error
{¶17} McKnelly raises two Assignments of Error,
{¶18} “I. THE TRIAL COURT ERROED [sic.] BY NOT GRANTING APPELLANT‘S MOTION TO WITHDRAW HIS GUILTY PLEA.
{¶19} “II. THE APPELLANT‘S TRIAL COUNSEL WAS INEFFECTIVE BY RUSHING A GUILTY PLEA.”
I.
Standard of Appellate Review
{¶21}
{¶22} Although
{¶23} “A motion made pursuant to
{¶24} This Court has recognized that an abuse of discretion can be found where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 2014-Ohio-477, ¶ 35 (9th Dist.);
Issue for Appellate Review: Whether the trial judge abused his discretion by overruling McKnelly‘s post sentence motion to withdraw his negotiated guilty plea
McKnelly‘s Guilty Plea
{¶25} A defendant has “the ultimate authority” to determine “whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751(1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1 (1977) (Burger, C. J., concurring). A plea оf guilty constitutes a complete admission of guilt.
{¶26}
{¶27} The non-constitutional rights that the defendant must be informed of are: (1) the nature of the charges; (2) the maximum penalty involved, which includes, if applicable, an advisement on post-release control; (3) if applicable, that the defendant is not eligible
{¶28} For the non-constitutional rights, the trial court must substantially comply with
{¶29} In addition, a written waiver of constitutional rights is presumed to have been voluntary, knowing, and intelligent. State v. Turner, 2005-Ohio-1938, ¶ 25; State v. Clark, 38 Ohio St.3d 252, 261 (1988); see also, North Carolina v. Butler, 441 U.S. 369, 374-375 (1979) (Reviewing a suspect‘s waiver of Miranda rights).
{¶30} McKnelly does not argue that the trial judge failed to comply with
{¶31} McKnelly acknowledged that he understood the constitutional rights that he was waiving by entering a guilty plea, the specific charge to which he was pleаding, and the maximum penalties involved. At the change of plea hearing McKnelly told the trial judge that he was “absolutely” satisfied with the advice and help given him by his attorney. T. Plea, May 24, 2021 at 7. McKnelly told the trial judge that he understood the charges and any possible defenses that he may have to those charges. Id. at 7.
{¶32} McKnelly‘s attorney was not appointed; rather, McKnelly‘s attorney was retained. In addition, McKnelly signed a written plea agreement, together with his attorney, that was filed with the trial court.
{¶33} McKnelly does not claim that he was unaware, was not properly advised or misunderstood the constitutional or non-constitutional rights that he was waiving before he entered his guilty plea. McKnelly does not argue that the trial judge failed to give him an opportunity to speak or bring to the trial judge‘s attention any of the contentions he now seeks to raise concerning his possible defenses or his attorney.
McKnelly‘s argument that the indictment lacks complicity language is without merit
{¶35} Generally, a criminal defendant has aided or abetted an offense if he has supported, assisted, encouraged, cooperated with, advised, or incited another person to commit the offense. See, State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. ““Participation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed.” State v. Mendoza, 137 Ohio App.3d 336, 342 (3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561, 568–569 (4th Dist. 1997).
McKnelly‘s contention that the state‘s recitation of facts in the indictment or at the plea hearing did not adequately support an aggravated-murder guilty charge is unsupported by the record.
{¶36} Baker and the victim had verbal altercations within the past week and were feuding. Baker had come down in a blue car the day before and caused a disturbance at the apartment, breaking a window. Baker bragged to a friend, K.C. that she shot the victim
{¶37} Circumstantial evidence is defined as “testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.” State v. Nicely, 39 Ohio St.3d 147,150 (1988), quoting Black‘s Law Dictionary (5th Ed. 1979). “Circumstantial evidence and direct evidence inherently possess the same probative value.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4 (1997). ““[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. McKnight, 2005-Ohio-6046, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238(1990).
{¶38} In the cаse at bar, ample circumstantial evidence existed that would allow the trier of fact to conclude that McKnelly supported, assisted, encouraged, cooperated
McKnelly‘s Change of Heart Does Not Amount to Manifest Injustice
{¶39} McKnelly‘s claim that he was rushed or coerced into pleading guilty is based on a potential challenge to the state‘s evidence and not any misrepresentation, by his trial counsel, of the state‘s evidence. McKnelly‘s subsequent belief that there was a potential challenge to the state‘s evidence does not render his plea invalid. See, e.g., State v. Piacella, 27 Ohio St.2d 92, 94, 271 N.E.2d 852 (1971), quoting Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (A plea is not invalidated by a defendant‘s failure to “correctly assess every relevant factor” or “because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State‘s case[.]“); State v. Graham, 2024-Ohio-1300, ¶ 27(6th Dist.)
{¶40} In the case at bar, while it is concerning that McKnelly entered his plea quickly after being indicted, it is not unheard of for an individual to enter a negotiated plea to a Bill of Information prior to the return of an Indictment. McKnelly‘s attorney was retained and is an experienced criminal defense attorney. Although McKnelly claims he did not meet or discuss the evidence with his attorney, McKnelly told the trial judge that he was “absolutely” satisfied with the advice and help given him by his attorney. T. Plea, May 24, 2021 at 7. His attorney presented ten letters of support for McKnelly during his sentencing hearing. T. Sentencing, June 28, 2021 at 4. His attorney further represented to the trial judge that he met with his client on multiple occasions. Id. During sentencing McKnelly said to the victim‘s family that he was sorry he had any role in this. He further
{¶41} We are not privy to the conversations between McKnelly and his attorney, or defense counsel‘s conversations with the prosecutor. McKnelly was free to discharge his retained counsel if he was dissatisfied with his representation instead of entering into the negotiated guilty plеa.
{¶42} Based upon the entire record before us, it is entirely plausible that McKnelly was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both. The fact that a different attorney later expresses a belief that McKnelly could have made a better deal is purely speculative and does not amount to a manifest injustice allowing McKnelly to withdraw his plea after sentencing.
Conclusion
{¶43} We find based upon our review of the entire record, the record discloses that: (1) McKnеlly‘s guilty plea was not the result of coercion, deception or intimidation; (2) retained counsel was present at the time of the plea; (3) counsel‘s advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and, (5) McKnelly was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both. Therefore, the guilty plea has been voluntarily and intelligently made. See, State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), paragraph one of the syllabus.
{¶44} Accordingly, under the circumstances of the case sub judice, we are unpersuaded the trial judge abused his discretion in declining to find a manifest injustice
II.
{¶45} In his Second Assignment of Error, McKnelly argues he was denied the effective assistance of trial counsel.
Standard of Appellate Review
{¶46} To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel‘s performance fell below an objective standard of reasоnableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-688 (1984).
{¶47} To show deficiency, a defendant must show that “counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688. In addition, to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; Andtus v. Texas, 590 U.S. 806, 813-814 (2020).
{¶48} A defendant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to consider the other. Strickland at 697; State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
McKnelly‘s Contentions that Counsel Rushed McKnelly into Pleading Guilty, And Did Not Review the Evidence or His Defenses with Him is Unsupported by The Record
{¶50} As we explained in our disposition of McKnelly‘s First Assignment of Error, McKnelly‘s guilty plea was not the result of coercion, deception or intimidation; counsel‘s advice was competent in light of the circumstances surrounding the indictment; the plea was made with the understanding of the nature of the charges; and, McKnelly was motivated either by a dеsire to seek a lesser penalty or a fear of the consequences of a jury trial, or both.
***
{¶51} “Not every restriction on counsel‘s time or opportunity to consult with his client or otherwise to prepare for trial violates a defendant‘s Sixth Amendment right to counsel.” Morris v. Slappy, 461 U.S. 1, 11 (1983). “[T]here is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” United States v. Cronic, 466 U.S. 648, 659(1984) at n. 26; Accord, State v. Hancock, 2006-Ohio-160, “[T]he Sixth Amendment imposes on counsel a duty to investigate, because reasonably effective assistance must be bаsed on professional decisions and informed legal choices can be made only after
{¶52} The right to competent counsel does not require that a criminal defendant develop and share a “meaningful relationship” with his attorney. Morris v. Slappy, 461 U.S. 1, 13, (1983); State v. Blankenship, 102 Ohio App.3d 534(12th Dist. 1995); State v. Burroughs, 2004-Ohio-4769, ¶ 11 (5th Dist.). In a case in which the defendant asked the trial court to discharge his court appointed attorney, the Court in State v. Cowans, 87 Ohio St.3d 68, (1999) noted:
Even if counsel had explored plea options based on a belief that Cowans might be guilty, counsel‘s belief in their client‘s guilt is not good cause for substitution. “A lawyer has a duty to give the accused an honest appraisal of his case. *** Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.” Brown v. United States (D.C. 1959), 264 F.2d 363, 369 (U.S. App. D.C. 1959) (en banc), cert. denied 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959), quoted in McKee v. Harris, 649 F.2d 927, 932 (2nd Cir. 1981). ““If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.” McKee, 649 F.2d at 932, quoting McKee v. Harris (S.D.N.Y. 1980), 485 F.Supp. 866, 869.
{¶53} The statements of the witnesses interviewed by the police do not exonerate McKnelly. No one disputed that Baker was the person who shot the victim. The fact that Baker may have been fearful does not explain her decision to shoot the victim multiple times. The witnesses do not provide an insight into why McKnelly hid the gun after the shooting, and why he did not contact the police. Baker and the victim had verbal altercations within the past week and were feuding. Baker had come down in a blue car the day before and caused a disturbance at the apartment, breaking a window. Baker bragged to a friend, K.C., that she shot the victim in the thigh and just kept shooting until she was out of bullets. K.C. described Baker as being proud of what had occurred and showing no remorse. K.C. also stated that McKnelly told her that he got Baker the gun and she believed that he got it from his mom‘s house. The trier of fact could just as easily dismiss McKnelly‘s claim that he did not believe Baker was going to use the gun to shoot the victim as a purely self-serving claim made after the fact to relive McKnelly of his responsibility for his actions.
{¶54} There is no evidence that indicates the result of the plea was unreliable or the proceeding was fundamentally unfair as a result of defense counsels’ representatiоn of McKnelly. McKnelly received a benefit of having the possibility of imprisonment without the possibility of parole exchanged for a sentence that included the possibility of parole after twenty years. The evidence in the record supports a finding that McKnelly‘s attorney
{¶55} Accordingly, we find McKnelly fails to demonstrate either the deficit performance or prejudice that Strickland requires to support his allegation of ineffective assistance of counsel.
{¶56} McKnelly‘s Second Assignment of Error is overruled.
{¶57} The judgment of the Muskingum County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Baldwin, J., and
King, J., concur