State v. Morris

Ohio Court of Appeals, 8th District

Aug 23, 2024

110782

Versions:

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED

RELEASED AND JOURNALIZED: August 23, 2024

Cuyahoga County Court of Common Pleas Case No. CR-18-627807-A Application for Reopening Motion No. 575277

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew W. Moretto, Assistant Prosecuting Attorney, for appellee.

Richard Morris, pro se.

SEAN C. GALLAGHER, P.J.:

{¶ 1} Appellant-applicant, Richard Morris, seeks to reopen his appeal in State v. Morris, 2022-Ohio-1318 (8th Dist.). He claims appellate counsel was ineffective for not advancing 16 proposed assignments of error ranging from ineffective assistance of trial counsel to insufficient evidence to support his convictions. We deny the application.

{¶ 2} On April 23, 2018, Morris was indicted and charged with nine counts of rape, three counts of sexual battery, six counts of felonious assault, one count of gross sexual imposition, and one count of possessing criminal tools.¹ The charges related to three victims with separate incidents related to each. Morris’s counsel moved to have separate trials, but that motion was denied by the trial court on April 26, 2019. Also prior to trial, Morris was referred to the court psychiatric clinic for evaluation. Morris filed several pro se motions prior to trial when he was represented by counsel. The trial court did not address several motions, stating hybrid representation was not allowed. The trial court addressed pro se motions related to the removal of counsel, however. Morris’s pro se motions resulted in the replacement of Morris’s initial attorney with new counsel. Morris sought to remove that attorney or proceed in a hybrid form of representation. That motion was denied on April 2, 2020. Morris also filed a motion for transfer to the common pleas court’s mental health docket. The case was reassigned to a different judge on December 9, 2020, but was not transferred to the mental health docket.

{¶ 3} On April 21, 2021, Morris filed an unsuccessful affidavit to disqualify the judge that was appointed to the case on December 9, 2020. On June 2, 2024, Morris entered guilty pleas to three counts of sexual battery and four counts of felonious assault. The other charges were dismissed as a part of a plea agreement. On June 30, 2024, a journal entry was docketed that stated Morris received an aggregate 23-year prison sentence. Afterwards, Morris filed a pro se motion to withdraw his guilty pleas. There, he claimed that defense counsel promised him a lower sentence than what he received. On August 5, 2021, the trial court denied the motion to withdraw guilty pleas.

{¶ 4} On August 26, 2021, a notice of appeal was filed on Morris’s behalf by counsel, along with a motion for delayed appeal, which was granted by this court. Appellate counsel raised two assignments of error for review:

The trial court erred in denying appellant’s motion to withdraw plea without a hearing where appellant alleged he was denied his rights to effective assistance of counsel and due process as guaranteed by the Sixth and Fourteenth Amendments.
The trial court erred in imposing a consecutive sentence which was not clearly and convincingly supported by the record.

{¶ 5} In an opinion issued on April 21, 2022, this court overruled these two assignments of error and affirmed Morris’s convictions.

{¶ 6} On June 24, 2022, Morris filed a motion for a copy of the transcript with an attached application for reopening. Due to a clerical error and the way in which the items were filed, this application for reopening was not separately docketed. After receiving correspondence from Morris, this court reviewed the matter, and on June 10, 2024, directed the clerk to separately docket the application. We also issued an order giving the State 30 days to oppose the application, which it did on July 9, 2024.

{¶ 7} Morris’s application includes the following 16 proposed assignments of error with little in the way of argument supporting each:

Denied the effective assistance of appellate counsel where counsel failed to raise the following issues on direct appeal relating to issues of mental health raised during trial court proceedings:
(1) The trial court was bias and abused its discretion when it denied the defendant motion to have an independent psychologist to examine his mental issues raised on Dec 9, 2019 from Twin Valley Mental Facility; (2) The trial court abused its discretion and acted bias when it denied my request to transfer the case to mental health court; (3) The trial Court abused its discretion when it rejected the medical mental health diagnosis and psychosis rendered by the doctor from Twin Valley Mental Health Facility.
Denied the effective assistance of appellate counsel where counsel Failed to allow me to participation in the appeals process[.]
(1) The defendant appeals counsel abused her discretion by allowing her client to properly participate in his appeal and failed to communicate with her client throughout the appeal.
Denied the effective assistance of trial counsel where Criminal defense trial attorney withheld evidence and discovery. Phone records, Text records, medical records, affidavits, recordings of all statements audio/video.
(1) The trial attorney denied his defendant adequate representation by not showing his client all the evidence the state sent to trial attorney even after the trial judge ordered the trial attorney in open court on 3-4-21 to make arrangements for the defendant to go over the entire discovery.
Denied the effective assistance of trial counsel where Defense counsel advised the defendant to make a false statement during the Crim.R.11 proceeding by telling the court in that no promises had been made to me when in fact counsel informed me that I would receive high single digits (8 TO 9) years if I plead guilty the day before trial.
(1) The trial attorney abused his discretion and took advantage of the defendant by manipulating his client to accept the plea when the defendant hasn‘t seen all of the discovery to be able to weigh his options.
Abused of discretion of the trial court when he denied a mental health evaluation on prior to excepting [sic] my guilty plea.
(1) The trial court was bias and abused its discretion when it denied the defendant motion to have an independent psychologist to examine his mental issues raised on Dec 9, 2019 from Twin Valley Mental Facility; (2) The trial court abused its discretion and acted bias when it denied my request to transfer the case to mental health court; (3) The trial Court abused its discretion when it rejected the medical mental health diagnosis and psychosis rendered by the doctor from Twin Valley Mental Health Facility.
Denied the effective assistance of trial counsel where Defense counsel refuses to show defendant full discovery of entire case/evidence the state sent, ordered by the judge in open court via video zoom on 3/4/21,
(1) The trial attorney denied his defendant adequate representation by not showing his client all the evidence the state sent to trial attorney even after the trial judge ordered the trial attorney in open court on 3-4-21 to make arrangements for the defendant to go over the entire discovery.
Denied the effective assistance of trial counsel where Defense attorney failed to subpoena witnesses for trial and character witnesses.
(1) The trial attorney refused to properly prepare for trial by refusing to submit subpoenas on the behalf of his client.
Denied the effective assistance of trial counsel where Defense counsel refused to get a medical expert.
(1) The trial attorney refused to properly prepare for trial by refusing to seek a medical expert.
Denied the effective assistance of trial counsel where Defense counsel refused to provide medical documents for alleged victim(s) and their status.
(1) The trial attorney denied his defendant adequate representation by not showing his client all the evidence the state sent to trial attorney even after the trial judge ordered the trial attorney in open court on 3-4-21 to make arrangements for the defendant to go over the entire discovery.
Denied the effective assistance of trial counsel where Defense counsel refused to file a motion to have Judge Nancy Fuerst removed for retaliation reasons after defendant filed a motion to the Supreme Court to have judge removed from the case.
(1) The trial attorney abused his discretion by allowing the judge to seek retaliation on his client after defendant filed a motion to remove judge from case by not filing a motion to have the judge removed from case.
Trial court judge abused its discretion when he denied my motion to remove counsel off case.
(1) The trial judge abused their discretion when refusing to allow trial counsel to remove [themselves] from [the] case based on a conflict of interest between the defendant and his counsel for filing a complaint against the trial attorney.
Appellate counsel refused to argue that there was insufficient evidence on the issue of the victims suffering serious physical and psychological harm to them.
(1) The appellate attorney failed to raise the issues on the alleged victims suffering any physical and or psychological issues.
Morris’s claim, that the victims were not harmed by actually contracting the virus, rings hollow and fails to address the totality of the sentencing considerations in this particular case. App.R. 16(A)(7). In light of the limited arguments presented, we are unable to clearly and convincingly find that the consecutive sentences are not supported by the record. The final assignment of error is overruled.
(1) The appellate attorney refuse to argue that the victims were not harmed by actually contracting the virus and in light of the limited arguments presented, the appeals court was unable to clearly and convincingly find that the consecutive sentences are not supported by the record.
Denied the effective assistance of trial counsel where Defense counsel failed to file a motion for appeal to have each case tried separate for the sake of justice.
(1) The trial attorney refused to offer adequate representation in filing an appeal on the motion to separate each alleged victim(s).
Denied the effective assistance of appellate counsel where counsel failed to provide sufficient supporting facts and legal argument for the conflict of interest assignment of error as required pursuant to App.R.16(A)(7) State v. Morris, 2022-Ohio-1318, ¶15 [(8th Dist.)].
(1) The appellant asserts that he was denied effective assistance of appellate counsel where counsel failed to provide sufficient supporting facts and legal argument for the conflict of interest assignment of error. In this court’s opinion it determined that appellate counsel failed to provide sufficient supporting facts and legal argument for the conflict of interest claim.
The appellant was denied the effective assistance of appellate counsel where counsel failed to advise appellant of his constitutional right to file timely post-conviction petition, thereby denying appellant the right to file a post-conviction within 365 days of the filing of the record of appeals.
(1) The appellant asserts that his appellate counsel did not inform him that he had a right to file a post-conviction petition within 365 days of the filing of the appeal record. I did not find out of the available remedy until on or about April of 2022 while researching the issue of my case while at the Belmont Correctional Institution library.

{¶ 8} In an application for reopening under App.R. 26(B), the applicant has the burden of establishing a genuine issue of the ineffective assistance of appellate counsel. App.R. 26(B)(5); State v. Stewart, 2011-Ohio-1667, ¶ 15 (8th Dist.). The standard for reopening requires the applicant to show “that (1) appellate counsel’s performance was objectively unreasonable . . . and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ . . . . ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Citations omitted.) State v. Leyh, 2022-Ohio-292, ¶ 18, quoting Strickland v. Washington, 466 U.S. 688, 687, 694 (1984).

{¶ 9} Apart from a statement of the facts, Morris does not support the 16 proposed assignments of error with any argument or citation to the record. “Merely reciting assignments of error, without demonstrating prejudice and presenting legal argument and analysis, is not sufficient to support an App.R. 26(B) application for reopening.” State v. Townsend, 2022-Ohio-4398, ¶ 7 (8th Dist.), citing State v. Gaughan, 2009-Ohio-2702 (8th Dist.). Therefore, much of Morris’s application must be denied based on his failure to properly allege and argue any claim of ineffective assistance of appellate counsel sufficient to establish a genuine issue of appellate counsel’s ineffectiveness. However, we will address these proposed assignments of error to the extent they are presented.

{¶ 10} We must also note that Morris pled guilty to the charges in this case. “[A] defendant who enters a guilty plea waives ineffective assistance of counsel claims except to the extent that the ineffective assistance of counsel caused the defendant’s plea to be less than knowing, intelligent, and voluntary.” State v. Reed, 2018-Ohio-3040, ¶ 31 (8th Dist.), citing State v. Davner, 2017-Ohio-8862, ¶ 38 (8th Dist.). The same is true for other alleged errors that do not impact the knowing, intelligent, and voluntary nature of the plea. State v. Lewis, 2019-Ohio-4974, ¶ 14 (8th Dist.), citing State v. Barnett, 73 Ohio App.3d 244 (2d Dist. 1991), citing State v. Kelley, 57 Ohio St.3d 127 (1991).

{¶ 11} In Morris’s first and fifth proposed assignments of error, he claims the judge showed bias against him when his case was not transferred to the mental health docket, when an independent expert was not appointed to examine Morris, and when the judge rejected the diagnosis of a mental health professional. Morris also claims the court abused its discretion in ruling on these same issues. Morris’s claim that the judge showed bias against him or abused its discretion in ruling on motions is not supported by the record.

{¶ 12} The judge previously assigned to the case ordered several psychological evaluations for purposes of competency to stand trial, competency for self-representation, and for transfer to the mental health docket. The report on Morris’s competency to stand trial found Morris competent and was stipulated to by both parties. (Tr. 87-88.)

{¶ 13} Later, when Morris raised potential psychological conditions that were included in an independent psychological report but not referenced in a court psychiatric clinic report to determine Morris’s eligibility for the mental health docket, the trial court ordered further evaluation and consideration by the court psychiatric clinic. (Tr. 123.) After the hearing reconvened, the judge noted that it received an updated report from the court psychiatric clinic. (Tr. 128.) Morris did not stipulate to the report, but instead sought another independent evaluation to determine if he was eligible for the mental health docket, which was granted. (Tr. 130.) Around this time, a new judge was assigned.

{¶ 14} The new judge gave Morris additional time to complete the evaluation. Therefore, the judge, in fact, granted his motion for an additional independent evaluation. That further evaluation was not done, however. (Tr. 135.) Morris refused to be examined by the doctor recommended by his trial counsel and requested a specific doctor that Morris had seen in 2015. Contacts with the clinic where Morris was seen were not successful in locating the doctor. After these delays and Morris’s refusal, the court found that Morris was cogent in court and in pro se motions, he had already been found competent to stand trial, and there was no indication that Morris was eligible for the mental health docket. (Tr. 147-149.)

{¶ 15} Contrary to Morris’s argument, the trial judge did not deny Morris’s request for an independent evaluation. That request was granted, but Morris’s repeated delays in completing the evaluation resulted in the trial court going forward using the information from the numerous reports that had already been completed.

{¶ 16} Further, Morris does not allege how he was prejudiced. Morris does not allege how transfer to the mental health docket, or having multiple additional mental health evaluations would have changed the outcome of his case. Loc.R. 30.1 of the Court of Common Pleas of Cuyahoga County, General Division, establishes a mental health docket for “[d]efendants with a confirmed severe mental illness with a psychotic feature or developmental disabilities[.]” Loc.R. 30.1(A)(1). Assignment of the mental health docket is discretionary. State v. Ellis, 2013-Ohio-1184, ¶ 30 (8th Dist.). Thus, even if Morris qualified for the mental health docket, the trial judge decided, based on the competency evaluations in the record, not to seek transfer of the case. There is nothing in the application that supports that appellate counsel was ineffective for not advancing this proposed assignment of error.

{¶ 17} Similarly, Morris’s claims that the trial court showed bias in denying his motion to remove counsel is not supported by the record. This claim will be more thoroughly addressed below, but Morris’s sparse arguments about judicial bias are not supported in the record and do not establish a genuine issue of appellate counsel’s ineffectiveness.

{¶ 18} In his second proposed assignment of error, Morris claims that appellate counsel was ineffective for not letting Morris actively participate in the appellate process. Morris does not point to anything in the record to establish this but does assert in his affidavit that appellate counsel did not contact him. However, “appellate counsel has no duty to contact the appellant, and not contacting the appellant is not ineffective assistance of appellate counsel.” State v. Thomas, 2015-Ohio-4486, ¶ 6 (8th Dist.), citing State v. Inglesias-Rodriguez, 2000 Ohio App. LEXIS 4882 (8th Dist. Oct. 12, 2000). See also State v. Brown, 2017-Ohio-7239, ¶ 10 (8th Dist.). Therefore, this proposed assignment of error does not establish a genuine issue of ineffectiveness of appellate counsel.

{¶ 19} In his third, fourth, sixth, seventh, eighth, ninth, and tenth assignments of error, Morris claims that appellate counsel was ineffective for not raising an ineffective assistance of trial counsel claim regarding numerous alleged failings. These include that trial counsel did not show Morris all of the discovery turned over by the State, counsel made promises of a lesser sentence than Morris actually received, counsel failed to adequately prepare for trial, and counsel refused to file a motion to have the judge removed from the case after Morris filed pro se affidavits of disqualification with the Supreme Court of Ohio that were not successful.

{¶ 20} The bulk of these claims were previously addressed by this court in the direct appeal in the context of Morris’s assignment of error that alleged the trial court erred in denying Morris’s motion to withdraw his guilty pleas because he received ineffective assistance of trial counsel. Morris at ¶ 10-18. To the extent they were fully considered on appeal, they may not form the basis of an application for reopening even when raised in a separate context. “Res judicata bars the relitigation of an issue that was previously addressed, even if cast in a slightly different form. ‘Where an argument is raised by appellate counsel in a direct appeal, the same issue may not constitute grounds for reopening * * *.’” State v. Barnes, 2020-Ohio-4988, ¶ 13 (8th Dist.), quoting State v. Lindsey, 2019-Ohio-3358, ¶ 9 (8th Dist.), citing State v. Ahmed, 2008-Ohio-217, ¶ 6 (8th Dist.).

{¶ 21} Morris claims that trial counsel failed to prepare for trial, subpoena witnesses, or show him discovery. These claims were previously raised on appeal but were not fully addressed based on the conclusory arguments raised by appellate counsel. Morris at ¶ 10. Therefore, we will address them here to the extent that Morris actually argues them.

{¶ 22} These claims of ineffective assistance of appellate counsel are not borne out by the record. During various pretrials, trial counsel stated that he shared all the discovery that he could with Morris and the judge commented on the extensive discovery that counsel undertook. (Tr. 189-198.) During another pretrial, Morris claimed that counsel had not issued subpoenas for witnesses. The trial court inquired of Morris the names of witnesses he wanted to testify, and trial counsel stated he would seek subpoenas for these witnesses where they could be located. (Tr. 192-194.) Prior to trial, counsel again stated he would send out subpoenas for witnesses once the trial schedule and the timing of taking defense witness testimony was set. (Tr. 220.)

{¶ 23} In regard to promises of a lesser sentence, this court fully addressed that issue and found that it was not supported by anything in the record. Morris at ¶ 11-13. Morris has not provided anything that would change that determination. During the plea colloquy, the trial court asked Morris if any promises were made to Morris in order to get him to change his plea. Morris responded “No, ma’am.” (Tr. 244.) There is no evidence in the record that contradicts this.² Morris claims that trial counsel advised him to lie during the plea colloquy. However, there is no evidence of this in the record and Morris’s conclusory arguments do not provide a basis for reopening in this case.

{¶ 24} Similarly, there is no indication that any motion filed by trial counsel seeking the removal of the judge would have had any success or impacted the outcome in this case. Morris filed three affidavits of disqualification with the Supreme Court of Ohio. The first two were rejected because of procedural issues, but the third was accepted and denied. The trial judge discussed each in open court on the record. There is no indication that a motion filed by counsel would have caused the trial judge to remove itself from the case when the filing of three affidavits of disqualification did not. Nor does Morris allege any specific reason that the judge should have been removed from the case. Therefore, there is no genuine issue of ineffectiveness in this case for these proposed assignments of error.

{¶ 25} In assignment of error No. 11, Morris claims that the trial judge abused its discretion when it denied his motion to remove counsel from the case.

{¶ 26} This issue was raised and reviewed in the direct appeal. Morris at ¶ 15-17. However, it was not fully addressed based on the brevity of the arguments made in support of this assigned error on appeal. Therefore, we will address it to the extent that Morris argues it in this application.

{¶ 27} A decision to remove appointed counsel is trusted to the discretion of the trial judge. State v. Robinson, 2018-Ohio-285, ¶ 7 (8th Dist.), citing State v. Pendergrass, 2017-Ohio-2752, ¶ 15 (8th Dist.), citing State v. Patterson, 2014-Ohio-1621, ¶ 19 (8th Dist.). An indigent criminal defendant is entitled to counsel at State’s expense but is not entitled to counsel of choice. Therefore, a 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 (1988), paragraph four of the syllabus. “The Sixth Amendment does not guarantee ‘rapport’ or a ‘meaningful relationship’ between client and counsel.” State v. Henness, 79 Ohio St.3d 53, 65 (1997), quoting Morris v. Slappy, 461 U.S. 1, 13-14 (1983). The timing of a motion to remove counsel is a factor a court may consider when ruling on the motion. “When timing is an issue, ‘the trial court may determine whether the defendant’s request for new counsel was made in bad faith.’” Robinson at ¶ 8, quoting Pendergrass at ¶ 16.

{¶ 28} Throughout the roughly three years this case was pending, Morris sought to remove his trial counsel on numerous occasions. One of these motions was successful, and new trial counsel was appointed. Further, one of his motions to remove counsel was orally withdrawn at a hearing. On April 22, 2021, Morris again sought the removal of counsel at a pretrial hearing when the trial date was set for May 24, 2021. When the trial court asked Morris for the reasons to remove counsel, Morris stated that he did not trust counsel. (Tr. 178.) He also stated that counsel had not sought all the discovery Morris had requested. In the end, Morris stated that “I don’t trust him.” (Tr. 180.) The court pressed Morris for specifics, and Morris provided a list of names he wanted counsel to subpoena. The trial court found that Morris did not demonstrate sufficient grounds for the replacement of counsel and denied the motion.

{¶ 29} On the record before us, there is no genuine issue of ineffective assistance of appellate counsel for not arguing this issue to a greater extent on appeal. Morris’s stated reason for seeking new counsel was a lack of trust. That is not sufficient grounds for the removal of counsel. “Disagreement between the attorney and client over trial tactics and strategy does not warrant a substitution of counsel. Moreover, mere hostility, tension and personal conflicts between attorney and client do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense.” (Citations omitted.) State v. Coleman, 2004-Ohio-1305, ¶ 25 (2d Dist.). Based on a review of the record and the arguments raised, the application to reopen does not raise a genuine question of ineffective assistance of appellate counsel.

{¶ 30} Morris also argues in his 12th and 13th proposed assignments of error that appellate counsel failed to advance an argument that the victims did not suffer physical or psychological harm sufficient for felonious assault. As explained above, Morris waived these potential assignments of error by pleading guilty.

{¶ 31} “The plea of guilty is a complete admission of the defendant’s guilt.” Crim.R. 11(B)(1). Morris, in pleading guilty, admitted that each element was satisfied. Therefore, the State was not required to present evidence of any element of the offense. Appellate counsel was not ineffective for refusing to put forth a baseless assignment of error.

{¶ 32} In the 14th proposed assignment of error, Morris also argues that he was denied the effective assistance of trial counsel when trial counsel failed to file an appeal of a decision of the trial court to join for trial the three separate incidents with which Morris was charged. This proposed assignment of error appears to be founded on the mistaken proposition that such an order is immediately appealable. Morris is wrong. State ex rel. Eberling v. Nugent, 40 Ohio St.3d 129 (1988). Further, by pleading guilty, Morris has waived a challenge to the trial court’s decision on joinder of the offenses for trial. State v. Belton, 2024-Ohio-2357, ¶ 55 (8th Dist.).

{¶ 33} In the 15th assignment of error, Morris argues that appellate counsel was ineffective for not properly advancing sufficient facts and legal arguments for the conflict of interest assignment of error raised in the appeal. Morris does not assert what facts should have been advanced. Therefore, Morris has not raised a genuine issue of ineffective assistance of appellate counsel.

{¶ 34} Finally, in his 16th assignment of error, Morris asserts that appellate counsel was ineffective for failing to inform Morris of the existence of the ability of a defendant to file a postconviction-relief petition and the timing requirements.

{¶ 35} This proposed assignment of error does not provide a basis for reopening the present appeal. See State v. Wade, 2017-Ohio-4135, ¶ 19 (7th Dist.). Whether appellate counsel did or did not inform Morris of the ability to file a postconviction relief petition has no impact on the present appeal and does not present a claim that this court could remedy in reopening. The relief that an appellate court may grant in the present application is to reopen the appeal and proceed as on an initial appeal. A postconviction relief petition is not a part of Morris’s initial appeal, nor could it be. See State v. Clark, 2015-Ohio-2584, ¶ 34 (7th Dist.). Further, appellate counsel’s lack of explanation of the availability of other postconviction remedies is not grounds for excusing the procedural requirements of those remedies. State v. Harwell, 2019-Ohio-643, ¶ 22 (2d Dist.), quoting State v. Clay, 2018-Ohio-985, ¶ 12 (7th Dist.), citing State v. Taylor, 2018-Ohio-264, ¶ 4 (8th Dist.). This proposed assignment of error does not provide a basis for reopening the present appeal.

{¶ 36} Morris’s application for reopening is denied.

SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK DANIEL CELEBREZZE III, J., and MICHELLE J. SHEEHAN, J., CONCUR

Notes

A more detailed recitation of the facts and procedural history can be found in .

Morris’s postsentence motion to withdraw his guilty plea does state that trial counsel promised a lower sentence, but there was no evidence in support of this motion, only Morris’s unsworn arguments in the body of the motion.