State v. MorrisState v. Morris
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-627807-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee.
Susan J. Moran, for appellant.
SEAN C. GALLAGHER, A.J.:
{¶ 1} Richard Morris appeals from multiple convictions stemming from his pleading guilty and being sentenced to three sexual battery and four felonious assault counts for engaging in sexual intercourse with four victims, one of whom was
{¶ 2} Morris has not provided a recitation of pertinent facts as required under
{¶ 3} After Morris pleaded guilty to two counts of sexual battery in violation of
{¶ 5} Before addressing the merits of this delayed appeal, we note that there are two orders discussed in the merit briefing, only one of which was included in the notice of appeal. Morris was sentenced on June 29, 2021, and the court denied the postsentence motion to withdraw his guilty plea on August 5, 2021. Morris filed a delayed appeal seeking to appeal his final conviction on August 26, 2021, but the
{¶ 6} The merit briefing addresses the trial court‘s resolution of the postconviction motion. Under
{¶ 7} In the first assignment of error, Morris claims that the trial court erred by denying his postsentence motion to withdraw his guilty plea without a hearing because of his claimed denial of the effective assistance of counsel during and before the change-of-plea hearing.
{¶ 8} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶ 9} Appellate review of the denial of a postsentence motion to withdraw a guilty plea occurs under the abuse-of-discretion standard of review. State v. Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus, and State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. “A trial court is not required to hold a hearing on every postsentence motion to withdraw a guilty plea“; a hearing is required only “if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea.” State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60, ¶ 57, citing State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-Ohio-2929, ¶ 16, and State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶ 11. A court will allow an offender to withdraw his plea only if he can establish that changing the plea is necessary to avoid a manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977);
Here, if the facts alleged by Mr. Morris are accepted as true, the facts would require that he be allowed to withdraw his guilty plea. Because the trial court denied his Motion without a hearing, it necessarily abused its discretion. In fact, it can be argued that the court did not exercise any discretion at all because the court did not hold a hearing to evaluate the allegations made by Mr. Morris. Because Mr. Morris was not provided the opportunity to present evidence of his claims for the court‘s consideration, the court abused its discretion.
In his Motion, Mr. Morris argued that counsel should not have encouraged him to enter into a plea before sharing all the discovery with him and before gathering all relevant evidence which could have been helpful to his defense. (See Defendant‘s Motion to Withdraw Guilty Plea). Further, the trial court should have granted a hearing on this Motion to determine if in fact counsel fell below the objective standard of reasonableness. If Mr. Morris‘s allegations were true, and counsel did fail to share discovery, and did fail to obtain exculpatory evidence, then his conduct would have fallen below an objective standard of reasonable representation which necessarily would have implicated the knowing, intelligent and voluntary nature of his plea. The trial court‘s decision not to hold a hearing based on the allegation contained in Mr. Morris‘s Motion was an abuse of discretion.
In resolving Morris‘s last attempt to have his appointed counsel removed for alleged discovery issues during the three years of pretrial proceedings, and after he submitted several pro se motions that were voluntarily withdrawn upon discussing the issue with the trial court on the record, the trial court repeatedly remarked that
{¶ 11} Morris also claims that his trial counsel rendered ineffective assistance because Morris believed he would receive a shorter sentence “based on communications he had with his counsel.” According to Morris, his trial counsel “promised” that the sentencing resulting from a guilty plea would be between 10-20 years, directly contradicting his statement to the contrary at the change-of-plea hearing in which Morris unequivocally averred that no one “promised [him] anything or threatened [him] in any way in order to get [him] to” plead guilty. Tr. 244. The aggregate term of imprisonment in this case was 23 years, the cumulative total of a single maximum term coupled with three mid-range sentences on the second-degree felonious assault counts that all were consecutively imposed. The sole question is whether that three-year aggregate difference amounts to prejudice; in other words, whether Morris has demonstrated that but for the difference between the trial counsel‘s “promise” of 20 years and the 23-year aggregate term of imprisonment actually imposed, Morris would have elected to proceed to trial. State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 78, citing Strickland at 687-688, 694, and State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Morris presents
{¶ 12} In Davner, the defendant appeared for trial on charges of rape, but his counsel of record indicated on the record that he was unprepared to proceed because he assumed that the defendant would accept a plea offer first presented on the morning of trial. Id. at ¶ 15. Davner‘s attorney was paid $20,000 for the pretrial proceedings and was to receive $1,000 a day should the matter proceed to trial. Id. at ¶ 6. The rape charges were based on DNA evidence after Davner initially claimed he did not have sexual contact with the victim. After the DNA evidence was disclosed, Davner claimed the sexual conduct was consensual. During the pretrial proceedings, Davner‘s attorney “never responded to the state‘s discovery request, never filed any motions, never interviewed any witnesses and never hired an investigator.” Id. at ¶ 8. Davner claimed “that he repeatedly told [his attorney] that he was innocent and that he wanted to go to trial and did not want to plea.” Id. at ¶ 7. On the morning of the scheduled trial date, the state tendered its first plea offer. Id. at ¶ 15. There was a limited time frame to accept that offer because the trial was set to proceed within hours. Id.
{¶ 13} The Davner majority concluded after considering the unique facts and totality of the circumstances in this case, including the limited time frame in which Davner was given to consider the state‘s plea offers; the incomplete information Davner received from counsel regarding judicial release; Davner‘s demonstrated lack of a full and complete understanding, prior to the plea hearing,
{¶ 14} The outcome of Davner is fact-dependent and not applicable to the limited arguments advanced in this case. As the trial court expressly concluded in this case, Morris‘s attorney engaged in extensive discovery throughout the three-year progression of the case, and nothing in the record indicates that Morris had a limited time to consider the plea agreement or that his trial counsel was unprepared for trial.
{¶ 15} Morris next claims that a conflict of interest arose between his trial counsel and him based on Morris‘s attempt to force his attorney to withdraw from the case. Morris filed at least two motions to disqualify his attorney of record, which Morris voluntarily withdrew after having a discussion with the trial court. Tr. 149; 187. He also filed a grievance with the Ohio Supreme Court in an attempt to create a conflict of interest requiring new counsel to be appointed a month before trial, at which time Morris‘s counsel stated that his withdrawal at that point would be prudent unless he was going to be the trial attorney or the matter was further delayed should new counsel be appointed. The court denied Morris‘s request,
{¶ 16} After reciting the black-letter law on conflicts of interest between criminal defendants and their appointed attorneys, and detailing the procedural history of Morris‘s voluntarily withdrawn pro se motions filed in the underlying proceedings, Morris claims, in its entirety, that
[h]ere the trial court did not conduct a meaningful examination of Mr. Morris‘s concerns, nor did the court consider how these concerns may have affected his right to counsel. It is undeniable that Mr. Morris and his Counsel had a conflict of interest after his filing a Grievance against. [sic] Further, it appears from Defense Counsel‘s Motion that he agreed that he should have been removed as Counsel. The trial court failed to consider this issue and abused its discretion when failing to remove trial counsel as a result.
The record contradicts Morris‘s claim. The trial court discussed and considered the issue extensively in the pretrial proceedings and issued a judgment entry memorializing the reason behind the decision. Tr. 189-198.
{¶ 17} The short, conclusory paragraph of analysis Morris provided in support of the assigned error is insufficient to warrant any detailed review.
{¶ 18} Nonetheless, in support of that claim, Morris also cites State v. Smith, 5th Dist. Richland Nos. 94-CA-62 and 94-CA-64, 1995 Ohio App. LEXIS 4235, 5 (Aug. 28, 1995), in which the panel concluded that the trial court erred in failing to conduct a hearing on whether a conflict existed between the defense attorney and their client. Id. In a terse decision, the Fifth District panel provided in total:
In his first assignment of error, appellant claims the trial court erred in denying counsel‘s request to withdraw at the revocation hearing. Appellant‘s counsel stated that a conflict of interest existed because appellant filed a grievance against him with the local bar association. Pursuant to the case of State v. Gillard (1992), 64 Ohio St.3d 304, 595 N.E.2d 878, we find appellant‘s first assignment of error well-taken.
The Gillard case imposes an affirmative duty upon the trial court to inquire as to whether a conflict of interest actually exists. Id. at syllabus. Where there is a right to counsel, there is also a correlative right to representation free from conflicts of interest. Id.
In the case sub judice, the trial court did not conduct a hearing to determine whether a conflict of interest existed between appellant and his trial counsel. The trial court noted in overruling counsel‘s request to withdraw that counsel was being paid by the court to represent appellant, was an officer of the court, and should therefore be able to discharge his duties. Tr. of Probation Revocation Hearing, July 18, 1994, p. 29.
The trial court had an affirmative duty to further explore the possibility of a conflict of interest between appellant and his appointed trial counsel as a result of the grievance appellant filed with the local bar association. Appellant‘s first assignment of error is sustained.
{¶ 19} In the final assignment of error, Morris claims that his consecutive sentences are not supported by the record. Morris is HIV positive, but during his sexual encounters, he failed to disclose that fact and had sexual intercourse with a minor in violation of Ohio law. According to Morris, he did not actually infect any of the victims and, therefore, his consecutive sentences are disproportionate to his crimes.
{¶ 20} We need not dwell on this argument. Morris was convicted of felonious assault under
{¶ 21} Felony sentences are reviewed under the standard provided in
{¶ 22} In essence, Morris is asking for a de novo review of the imposition of consecutive sentences without deference to the trial court‘s findings and the totality of the record. His sole focus is on an irrelevant fact, none of the victims were
{¶ 23} Morris‘s convictions are affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and MICHELLE J. SHEEHAN, J., CONCUR