STATE OF OHIO v. RICHARD MORRIS
Court of Appeals No. L-18-1187
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: February 28, 2020
[Cite as State v. Morris, 2020-Ohio-704.]
Trial Court No. CR0201703167
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DECISION AND JUDGMENT
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Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Eric Allen Marks, for appellant.
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OSOWIK, J.
{1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which found appellant guilty of two counts of felonious assault with specifications. For the reasons set forth below, this court affirms the judgment of the trial court.
{3} The first count was for felonious assault against a peace officer with a deadly weapon, a violation of
{4} Appellee alleged that on December 6, 2017, appellant and the co-defendants were observed by Toledo police to enter a vehicle “suspected of being involved in a shooting incident earlier that day.” On December 6, 2017, appellant was on community control for an unrelated 2016 criminal conviction. When the vehicle stopped at a carryout, two policemen attempted to surround the vehicle from different directions, and
{5} Appellant originally pled not guilty to all of the charges, and after a series of pretrials and discovery exchanges, on July 19, 2018, he chose to withdraw his earlier not guilty pleas and enter guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to lesser included offenses that deleted the references to the victims as police officers and the firearms specification in one count. He pled to the first count for felonious assault with a deadly weapon, a violation of
{6} Appellant then filed a sentencing memorandum requesting leniency at the upcoming sentencing hearing. The sentencing hearing was held on August 6, 2018, and
{7} Appellant timely filed his appeal setting forth two assignments of error:
FIRST ASSIGNMENT OF ERROR: The trial court erred in finding appellant guilty of felonious assault where the factual basis was legally insufficient, in light of the defendant‘s protestation of innocence, in violation of the due process guarantees of the Fifth Amendment and Fourteenth Amendment of the United States Constitution and Article I, Section 16, of the Ohio Constitution..
SECOND ASSIGNMENT OF ERROR: The trial court erred by considering an improper sentencing factor when imposing a maximum sentence.
{8} In support of his first assignment of error, appellant argued the trial court erred by accepting his Alford guilty pleas where there was insufficient evidence because he maintained his innocence. Appellant argued the trial court failed to inquire and determine that he made a rational calculation to plead guilty despite his belief in his innocence. He argued the trial court failed to inquire of his reasons for deciding to plead
{9} In response, appellee argued the trial court did not err when it accepted appellant‘s Alford plea. Appellee there was sufficient evidence for then finding appellant guilty of both felonious assault offenses.
{10} A guilty plea is a complete admission of guilt: an admission of committing the crime charged against the defendant and consent to entry of judgment without a trial. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 14. Unless the defendant asserts his actual innocence when entering a plea of guilty, the defendant “is presumed to understand that he has completely admitted his guilt.” Id. at ¶ 19.
{11} In contrast, in an “’Alford plea’ * * * a defendant pleads guilty yet maintains actual innocence of the charges.” Id. at ¶ 13, citing Alford, infra. The standard of validity of an Alford plea is “a criminal defendant may enter a guilty plea while maintaining his innocence provided that the plea is entered voluntarily, knowingly, and
{12} “Before accepting an Alford plea, the trial court must * * * require the state to show a basic factual framework for the charge and plea.” (Citation omitted.) State v. Woods, 6th Dist. Lucas No. L-13-1181, 2014-Ohio-3960, ¶ 6. The trial court may rely on the entire record to determine that basic factual framework. State v. Dyer, 6th Dist. Lucas No. L-17-1258, 2019-Ohio-1558, ¶ 10.
The Ohio Supreme Court has outlined the analysis required to determine whether an Alford plea has been voluntarily and intelligently made: “[W]here the record affirmatively discloses that: (1) a guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) his advice was competent in light of the circumstances surrounding the plea; (4) the plea was made with the understanding of the nature of the charges; and, (5) the plea was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made.”
Woods at ¶ 7, quoting State v. Piacella, 27 Ohio St.2d 92, 96, 271 N.E.2d 852 (1971).
Court: Now you‘re entering a guilty plea pursuant to a case known as North Carolina versus Alford. It‘s a unique type of guilty plea. It‘s one in which you‘re saying, judge, I‘m pleading guilty but I deny I did anything wrong, and I wish to plead guilty to avoid the risk of going to trial on more serious charges, and being sentenced on those more serious charges, okay? The law allows you to do that. And what you need to understand is that if I accept this Alford plea from you, you will be found guilty of the charges and sentenced as if you are, in fact, guilty of those charges. There‘s no lessor (sic.) penalty because you haven‘t pled guilty. Do you understand that?
A: I understand.
Court: Do you also understand most importantly that by entering these pleas today you‘re waiving your right to a trial?
A: Correct.
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A: I am, judge.
Court: Are you satisfied with his advice in this matter?
A: I am.
Court: Do you believe it‘s in your best interest to enter in this plea agreement?
A: I do.
Court: Has anyone threatened you in any way to get you to enter this plea?
A: Not at all.
Court: The promises that I have been made aware of and there are a number of them are as follows, I think you already heard them, but let‘s clarify that. You heard the state ask this court to amend both Count 1 and 3 from a first degree felony to a second degree felony. That‘s one promise. In exchange for you entering pleas to those two amended counts as well as the 3-year gun specification attached to the first count, the state is also recommending that at time of sentence the remaining 5-year gun specifications and the 3-year gun specification attached to Count 3 will be dismissed as well as Counts 5 and 6, correct?
A: Correct.
A: No.
Court: Have you reviewed this plea form?
A: Yes.
Court: Any questions about what this document says?
A: No.
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Court: Record will reflect this defendant has in open court this date reviewed and then signed this plea agreement, his signature having been obtained in open court, has been witnesses by his attorney, as well as the assigned assistant county prosecutor to whom I look for recitation of facts.
Mr. Herr: Thank you, Your Honor. May it please the court, had this case proceeded to trial the State of Ohio intended to produce evidence to prove beyond a reasonable doubt that on or about the 6th day of December, of 2017, in Lucas County, Ohio, this defendant * * * [with two other co-defendants] were involved in a shootout with members of the Toledo Police division.
Judge, there was a shooting incident that happened earlier that day in the City of Toledo was well as some ongoing problems that caused members of the special intelligence group from the Toledo Police division
The police continued their surveillance on the move. * * * [T]he defendants pulled into a parking area in front of a carryout, the Monroe Carryout itself.
The police, knowing the dangers involved, set up and intended to do something called a vehicle containment technique. They were going to block the car in once it started to move again. And that‘s what happened. After the car started to back from the parking lot, members of the special intelligence group came in front different directions and blocked that * * * tan Chevy Trailblazer in its place and almost immediately shots rang out.
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So as the police blocked in this tan Chevy Trailblazer another shot came from the rear seat, and that was where Richard Morris was seated at the time. There‘s a perforation from the inside of the driver side window
Detective Norm Carroll (sic.), as I described earlier, was magnificent in all of this chaos and as he moved from the cover of his vehicle while being shot at, he managed to shoot through the gap going towards the cover of his door and strike [a co-defendant]. Now at that very same time, this defendant exited the rear seat of the vehicle and was running away when he was encountered by Sergeant Duane Poole, Detective Poole. Detective Poole yelled police, stop. A civilian as well as Detective Poole would indicate that this defendant then raised his pistol as if he was going to try to shoot then Sergeant Poole. Detective Poole fired, hitting the defendant above the left buttock area, and then he dropped the gun, ran off a short distance, and was apprehended at the scene.
As it turns out the weapon that was pointed at this detective, through a witness, her name was Kiera Johnson, described as looking like he was trying to shoot the officer, was found to have been jammed. The earlier shot that was fired, the spent shell casing did not eject properly, so it made it impossible to fire at that point, but he (sic.) could have easily been ejected, that spent casing, and made operable to fire again.
So this defendant was then taken into custody at the scene. The gun was recovered. The gun involved was test fired by Kevin Belsick of the
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Court: So Mr. Morris, do you have any questions of me as it relates to this plea?
A: No, sir.
Court: Do you want me to accept this plea you now entered into?
A: Yes, I would.
Court: And you‘re entering this plea as your own free will?
A: Yes.
Court: Court accepts the plea agreement. * * *
{14} We find appellant‘s guilty pleas were voluntarily and intelligently made. We further find the record affirmatively discloses that: (1) appellant‘s guilty pleas were not the result of coercion, deception or intimidation; (2) counsel was present at the time of appellant‘s pleas; (3) counsel‘s advice was competent in light of the circumstances surrounding the pleas; (4) the pleas were made with the understanding of the nature of the charges; and, (5) the pleas were motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both. Given the dialogue between appellant and the trial court, his voluntary execution of the plea form, the explanations of the amended, lesser charges, and the state‘s summary of the evidence it would have presented at trial, we find that the trial court properly determined appellant‘s reasons for
{15} The record shows that at no time did appellant raise with the trial court any concerns about the validity of his Alford pleas. This court has previously stated that where appellant failed to raise the validity of his plea to the trial court prior to being sentenced, the appellant waived the issue on appeal except for plain error. State v. Little, 6th Dist. Lucas No. L-17-1008, 2018-Ohio-2864, ¶ 10. “Plain error does not exist unless it can be said that but for the error, the outcome below would clearly have been otherwise.” State v. Jells, 53 Ohio St.3d 22, 24, 559 N.E.2d 464 (1990). We reviewed the entire record and find no actual and obvious plain error from which the trial court clearly would not have accepted his Alford pleas and convict him of the two felonious assault offenses.
{16} Although, appellant argued there was insufficient evidence with which the trial court could find him guilty of the two amended felonious assault offenses because the victims’ status as peace officers was removed from each charge, we find he waived this argument with his valid Alford plea in which he waived his right to require appellee to prove his guilt beyond a reasonable doubt. State v. Battigaglia, 6th Dist. Ottawa No. OT-09-009, 2010-Ohio-802, ¶ 20.
{17} Appellant‘s first assignment of error is not well-taken.
{19} In response, appellee argued the trial court did not err because the victims’ status as police officers was not an element of each felonious assault offense. Appellee further argued the record supported imposing the maximum sentences because appellant was likely to commit future crimes: (1) appellant committed these new felonies while on community control in another matter, (2) appellant “had stopped reporting for that community control in March and that a capias had been issued for his arrest after he failed to appear in May,” (3) appellant‘s lack of credibility insisting he was only in the wrong place at the time he shot at the victims, and (4) appellant‘s lack of remorse for the offenses.
{20} We review a contrary-to-law challenge to a trial court‘s felony sentencing determination for clear and convincing evidence in the record.
{21} Appellant was sentenced to a total of 19 years in prison. As stated in the August 13, 2018 journalized sentencing judgment entry, the trial court sentenced appellant to serve eight years in prison plus an additional mandatory, consecutive three years pursuant to
{22} For a felony in the second degree committed prior to March 22, 2019, the trial court could impose a prison term within the range from two to eight years.
{23} For the specification that appellant displayed, brandished, indicated possession of or used a firearm pursuant to
{24} As further stated in the August 13, 2018 journalized sentencing judgment entry, the trial court sentenced appellant to serve a consecutive eight years in prison for the third count. The court‘s findings were not dependent on the victims’ status as police officers. Rather, the trial court found “the defendant was on community control, the harm caused was great or unusual such that no single prison term is adequate, and the defendant‘s criminal history demonstrates that consecutive sentences are necessary to protect the public, therefore the sentences are ordered to be served consecutively.”
{25} According to the August 6, 2018 sentencing hearing transcript in the record, one victim testified, “On December 6th, 2017, Richard Morris fired one round at me and thankfully it missed. * * * The round missed, and his gun jammed. Thankfully it jammed since I was already in a gun battle with the front seat passenger. The outcome could have been a lot worse had his gun not jammed.”
{26} During appellant‘s statement at the sentencing hearing, he admitted to shooting at somebody. “Fearing for my own safety, yes, sir, I did blindly like (sic.) shoot out of the closed driver‘s side window hoping that like (sic.) to stop whoever was shooting into the vehicle from continuing to do so long enough for me to get out of the vehicle.”
Court: Where to begin with you. Let‘s begin with you at the beginning, meaning the prior case. Do you even remember what you said to me when you stood in front of me on that other case at the time that I said we‘ll give you an opportunity on community control and I placed you on community control? Do you remember what you said about that case?
A: Absolutely.
Court: Do you see the pattern with what you said there verses what you said here?
A: Yes.
Court: And that pattern is once again I‘m in the wrong place at the wrong time.
A: Yes, sir.
Court: I‘m in a car with a dude selling drugs that gets stopped by undercover cops. He flees. * * * And I end up pleading to those drug counts because that guy, the driver fled, and I‘m just, Judge, I‘m sorry, I‘m in the wrong place at the wrong time. That‘s what you said. Placed you on community control. You did fairly well until March of last year when you stopped reporting. * * * Your last physical appearance was in May. * * *
It is striking to me the cavalierness with which I‘ll just pick up a gun and start shooting. * * * If you had only known they were police officers, I would have never shot at them. Do you understand how horrible that is? Do you understand what that says? It says, well, if it was just people out there who was (sic.) trying to do me wrong, I‘m going to kill them, because if I don‘t kill them they‘ll kill me. What does that say about your life, the lifestyle and the people that you‘re hanging with? * * * What does that say about our community, that that‘s how you have to live, and therefore, when you get caught in this situation, it‘s like, oh, I didn‘t know they were police officers. Holy God. * * * You‘ll listen to me because I have a gun pointing at you. That‘s not how civilized societies can and should function.
{28} Our review of the record finds clear and convincing evidence supporting appellant‘s felony sentences for two counts of felonious assault with one firearm specification, and the sentences were not contrary to law. State v. Davis, 6th Dist. Lucas No. L-16-1313, 2018-Ohio-2984, ¶ 45-46. We find the trial court considered the purposes and principles of sentencing under
{29} Appellant‘s second assignment of error is not well-taken.
{30} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, J.
CONCUR.
JUDGE
JUDGE
JUDGE