State v. PelphreyState v. Pelphrey
{¶ 1} On December 17, 2001, at approximately 3:00 a.m., defendant-appellant Jeremy O. Pelphrey drove to 457 Samoht Ridge in Delhi Township, where a party was in progress. Pelphrey threw sulfuric acid on four of the people who were attending the party. The four victims suffered serious injuries that resulted in scars and permanent disfigurement. Pelphrey’s mother, Belinda Euliss, was also splashed with the sulfuric acid during the attack.
{¶ 2} Pelphrey was indicted for ten counts of felonious assault. Counts 1, 3, 5, 7, and 9 charged that Pelphrey had knowingly caused serious physical harm to each victim, in violation of
{¶ 3} Pelphrey pleaded guilty to counts 1, 3, 5, and 7. The remaining counts were dismissed. The trial court sentenced Pelphrey to four years’ incarceration on each count and ordered the sentences to be served consecutively. Pelphrey appealed his convictions on July 12,'2001, under the case numbered C-010452.
{¶ 4} On September 4, 2001, Pelphrey, now represented by new counsel, filed a motion in the trial court captioned “motion for leave to withdraw guilty pleas and alternative petition for postconviction relief pursuant to
{¶ 5} The trial court entered an order, on October 22, 2001, entitled “findings of fact, conclusions of law, and entry denying postconviction relief.” The court dismissed the petition for postconviction relief, finding that “all questions raised can be resolved from the existing record” and that, therefore, “no evidentiary hearing [would] be held.” The trial court held that res judicata barred the claim of conflict of interest because it “could have been raised at trial, sentence, or on appeal.” The trial court did not separately rule on Pelphrey’s motion to withdraw his guilty pleas, but, under its conclusions of law, the trial court, citing
State v. Xie
(1992),
{¶ 6} Pelphrey has appealed from the dismissal of his motion under the case numbered C-010702. This court has consolidated the appeals. Pelphrey has raised two assignments of error for our review.
{¶ 7} Pelphrey’s first assignment of error alleges:
{¶ 8} “The trial court erred to the substantial prejudice of the defendant by accepting his plea[s] of guilty when his attorney was also representing the victim of the offense.”
{¶ 9} The Sixth Amendment right to counsel guarantees a defendant’s right to conflict-free assistance of counsel. See
Glasser v. United States
(1942),
{¶ 10} In
State v. Gillard
(1992),
{¶ 11} “Where a trial court knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. The duty to inquire arises not only from the general principles of fundamental fairness, but from the principle that where there is a *583 right to counsel, there is a correlative right to representation free from conflicts of interest.”
{¶ 12} The trial court and defense counsel have an affirmative duty to ensure the defendant a conflict-free representation. See
State v. Dillon
(1995),
{¶ 13} In reviewing a claim of conflict of interest, an appellate court must first determine whether the trial court had a duty to investigate the alleged conflict of interest. See
State v. Gillard,
supra;
State v. Ingol
(1993),
{¶ 14} We hold that the trial court had a duty in this case to inquire into the alleged conflict of interest when Pelphrey filed his
{¶ 15} “Postsentence motions to withdraw guilty or no contest pleas and postconviction relief petitions exist independently.”
State v. Bush,
{¶ 16} “A defendant who seeks to withdraw a plea of guilty after the imposition of sentence has the burden of establishing the existence of manifest injustice.
{¶ 17} “A motion made pursuant to
*584 {¶ 18} We hold that, under the facts of this case, the trial court was required to hold a hearing to determine whether an actual conflict of interest existed, and, if so, whether the conflict of interest worked a “manifest injustice” upon Pel-phrey. Pelphrey would have then had the burden to establish the existence of manifest injustice.
{¶ 19} The first assignment of error is sustained to the extent that it alleges that the trial court erred in dismissing Pelphrey’s
{¶ 20} Pelphrey has not raised an assignment of error alleging that the trial court erred in overruling his petition for postconviction relief. We point out that Pelphrey’s claim of conflict of interest was raised on direct appeal, and, therefore, that he is barred by the doctrine of res judicata from raising the claim in his postconviction petition.
{¶ 21} Pelphrey’s second assignment of error alleges that the trial court erred in imposing consecutive sentences.
{¶ 22}
{¶ 23} “If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{¶ 24} “(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶ 25} “(b) The harm caused by the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender’s conduct.
{¶ 26} “(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crimes by the offender.”
{¶ 27} Pursuant to
*585 {¶ 28} The record here does not contain a sentencing worksheet. In imposing consecutive sentences, the trial court stated:
{¶ 29} “Mr. Pelphrey, I’ve been on the bench 32 years and been on a lot of capital death penalty cases; lot of shootings, weapons, guns and knives.
{¶ 30} “It would probably seem to be almost better if you had used a gun or knife. The terrible destruction that something like this has cost everyone, and what I indicated before, you destroyed your own life, your family’s life, and all of these people’s lives and their families.
{¶ 31} “I do want to make the necessary findings for the sentencing guidelines that there are prior delinquencies and prior adult convictions.
{¶ 32} “I do find with regard to Section [2929.14(E)(4) ] that the harm that was caused was great and/or unusual, and that consecutive sentences are necessary to fulfill the purposes of Revised Code 2929.11.”
{¶ 33} The trial court effectively found that “consecutive service is necessary to protect the public from future crime or to punish the offender” when it stated that consecutive sentences were necessary to fulfill the purposes of
{¶ 34} The court did not make a finding that “consecutive sentences [were] not disproportionate to the seriousness of the offender’s conduct and to the danger the offender pose[d] to the public,” as required by
{¶ 35} Therefore, the judgment of conviction is reversed to the extent that it imposes consecutive sentences, those sentences are vacated, and the cause is remanded to the trial court for resentencing in accordance with law. Further, the trial court’s judgment dismissing Pelphrey’s
Judgment affirmed in part, reversed in part and cause remanded.