State v. OsleyState v. Osley
Appellee Trial Court No. CR0201102460
v.
Luis Silvera Osley DECISION AND JUDGMENT
Appellant Decided: March 29, 2013
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Julia R. Bates, Lucas County Prosecuting Attorney, and Andrew J. Lastra, Assistant Prosecuting Attorney, for appellee.
Stephen Long, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Luis Silvera Osley, appeals the September 26, 2011 judgment of the Lucas County Court of Common Pleas which, following appellant’s plea
{¶ 2} On December 21, 2010, appellant was indicted on one count of aggravated murder and one count of aggravated robbery with firearm specifications. The charges stemmed from the December 11, 2010 robbery and shooting death of William Carswell while he was working at Main Street Exchange, in Toledo, Lucas County, Ohio. Appellant’s cousin, Alexander Osley was also charged in the indictment.
{¶ 3} On September 19, 2011, appellant, by information, was charged with one count of involuntary manslaughter, with a firearm specification, and one count of aggravated robbery. On September 20, 2011, following extensive plea discussions and plea hearing, appellant entered an Alford plea to the charges in the information. Pursuant to the plea agreement, a nolle prosequi as to the charges in the December 21, 2010 indictment was entered.
{¶ 4} On September 26, 2011, appellant was sentenced to the maximum of ten years of imprisonment for involuntary manslaughter, ten years of imprisonment for aggravated robbery, and three years of imprisonment for the firearm specification. The sentences were ordered to be served consecutively. This appeal followed.
{¶ 5} Appellant has appealed the conviction and sentence to this court through appointed counsel. Appellant’s counsel advises the court, however, under procedures announced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),
{¶ 6} Counsel notified appellant of his inability to find meritorious grounds for appeal and provided appellant with copies of both the Anders brief and his motion to withdraw. Counsel advised appellant of his right to file his own appellate brief. Appellant has filed an additional brief.
{¶ 7} In the Anders brief, counsel has asserted four potential assignments of error:
- The trial court erred in sentencing appellant to maximum consecutive sentences.
- The trial court committed plain error in sentencing appellant to consecutive sentences as they were allied offenses of similar import.
- The trial court erred in failing to adequately determine whether appellant’s guilty plea pursuant to North Carolina v. Alford was entered knowingly, intelligently and voluntarily.
- Appellant was denied effective assistance of counsel.
{¶ 8} Appellant’s pro se brief raises four assignments of error:
- The trial court committed plain error in failing to determine whether appellant’s offenses were allied offenses of similar import.
The trial court committed plain error in sentencing appellant to consecutive sentences as they were allied offenses of similar import. - The court erred in violation of appellant’s constitutional guarantee to due process in failing to adequately determine whether appellant’s guilty plea [pursuant to North Carolina v. Alford] was entered knowingly, intelligently and voluntarily.
- Appellant was denied his constitutional guarantee to effective assistance of counsel.
{¶ 9} In appellant’s counsel’s first potential assignment of error he argues that the trial court erred when imposing appellant’s maximum sentence. Appellant was convicted of one count of involuntary manslaughter, in violation of
{¶ 10}
{¶ 11} Counsel’s second potential assignment of error and appellant’s first and second potential assignments of error are related and will be jointly addressed. Appellant and his counsel contend that the trial court erred by sentencing appellant to consecutive sentences because the crimes of involuntary manslaughter and aggravated robbery, committed during a single course of conduct, were allied offenses.
{¶ 12} The Supreme Court of Ohio has identified a two-step analysis to determine allied offenses under
{¶ 13} Appellant was convicted of involuntary manslaughter and aggravated robbery which, it is undisputed, can be committed with the same conduct. At the September 19, 2011 plea hearing, prior to accepting appellant’s Alford plea, the prosecutor detailed the facts he expected to prove in the underlying indictment had the case proceeded to trial. On the day of the incident, appellant and cousin, Alexander Osley, entered Main Street Exchange under the pretext of purchasing a television set. Their actual intent was to rob the store of what they believed were narcotics in pill form. Following the shooting, an individual familiar with the store noticed that things had been knocked over and that there were signs of a struggle. Nothing had been taken from the store and it was surmised that once the shooting took place, appellant and his cousin quickly left the store before another individual, who had left the store to get batteries, could return.
{¶ 14} At sentencing, the court concluded that “under the circumstances of this case, independently committing the involuntary manslaughter in the commission of the felony felonious assault and the separate aggravated robbery,” supported finding a separate animus and ordering consecutive sentences. Reviewing the record before us, we
{¶ 15} Counsel’s and appellant’s third potential assignment of error argue that the court failed to determine whether appellant’s Alford plea was knowingly and voluntarily entered. Before accepting a guilty plea,
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 16} The underlying purpose of
{¶ 17} For nonconstitutional rights, scrupulous adherence to
{¶ 18} We have carefully reviewed the transcript from the plea hearing below and conclude that the court strictly complied with the constitutional aspects of
{¶ 19} Counsel’s and appellant’s fourth potential assignment of error assert that appellant was denied the effective assistance of trial counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. When considering a claim of ineffective assistance of counsel, the court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
{¶ 21} This court, as required under Anders, has undertaken its own independent examination of the record to determine whether any issue of arguable merit is presented for appeal. We have found none. Accordingly, we find this appeal is without merit and wholly frivolous. We grant the motion of appellant’s counsel to withdraw as counsel in this appeal and affirm the judgment of the Lucas County Court of Common Pleas. Pursuant to
Judgment affirmed.
L-11-1236
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.