STATE OF OHIO, Plaintiff-Appellee, vs. WILLIAM PENNINGTON, Defendant-Appellant.
APPEAL NO. C-200358
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 24, 2021
[Cite as State v. Pennington, 2021-Ohio-3365.]
TRIAL NO. B-1101474
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 24, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Patituce & Associates and Kimberly Kendall Corral, for Defendant-Appellant.
{1} Defendant-appellant William Pennington appeals the Hamilton County Common Pleas Court‘s judgment overruling his
{2} Pennington was indicted in 2011 on three counts of aggravated robbery and robbery, four counts of having weapons while under a disability, and single counts of aggravated murder, carrying a concealed weapon, and possession of cocaine, in connection with three incidents in a single week: the robberies of two different pizza-delivery drivers and the shooting death of a restaurant cashier during an armed robbery. Six months later, Pennington was convicted upon guilty pleas to a reduced charge of murder and two counts of aggravated robbery and was sentenced to agreed concurrent prison terms totaling 18 years to life. He did not appeal his convictions.
{3} In 2019, Pennington filed with the common pleas court a
{4} In his
{5} Pennington supported his motion with outside evidence in the form of the Cincinnati Police Department‘s summary of its investigation into the October 30, 2010 murder of the restaurant cashier. That summary included a statement to police made on December 3, 2010, by area drug dealer Benny Lyles, after a confidential informant told the police that Lyles had information about the murder. In an unrecorded interview, Lyles identified Pennington as one of two men who he saw mask up and cross the street toward the restaurant at the time of the murder. And from a video of the robbery, Lyles identified Pennington as the shooter. The summary also included a detective‘s “[n]ote” that, “[a]t this time, Benny Lyles is uncooperative with participating in [Pennington‘s] prosecution, however I will be making attempts to encourage his cooperation. * * * Lyles is on felony probation for drug trafficking * * *.” Lyles was not included in the summary‘s witness list. And the state did not list him as a witness in its response to Pennington‘s discovery request.
{6} The summary provided other details of the murder investigation. The restaurant robbery homicide was captured on video. The video showed that the shooter had stood on a countertop to fire the fatal shot. From that countertop, the police lifted “shoe prints with visible wear patterns.” The video also prompted police to look for someone who was experienced in armed robbery and familiar with the
{7} The motion was also supported with an affidavit made in 2018 by Benny Lyles. In his affidavit, Lyles stated that because of “bad blood” between him and Pennington, he had given a “false” statement to police that he had seen a masked Pennington enter the restaurant at the time of the murder. Lyles insisted that his conscience now compelled him to “clear” the “[i]naccurate details” in his statement, because “actually [he] had seen [Pennington] & other friends earlier before 10 PM [but] was at home by 10 PM,” when the murder occurred.
{8} Pennington provided his own affidavit. He averred that he had accepted the state‘s plea offer, because trial counsel told him that if he went to trial, Lyles‘s testimony would almost certainly convict him of aggravated murder and subject him to a sentence of life without the possibility of parole, but that if he accepted the state‘s plea offer with the agreed sentence, he would “be out at the age of 36.” Pennington also offered the investigation summary in support of his assertion that, but for Lyle‘s “false” statement, he would not have pled guilty to
{9} Finally, Pennington argues that the common pleas court denied his
{10} The standard of review.
{11} A counseled knowing, voluntary, and intelligent plea of guilty to an offense constitutes a complete admission of the facts underlying the offense and effectively removes from the case any issue concerning the defendant‘s factual guilt of the offense. See
{13}
{14} In deciding a
{15} No abuse of discretion. The record of the proceedings at Pennington‘s plea and sentencing hearing contradicts his self-serving statement in his affidavit that his trial counsel had told him that, with the agreed sentence, he would “be out at the age of 36.” At that hearing, Pennington acknowledged his understanding of the agreed indefinite 18-to-life sentence, of the potential maximum sentence of 38 years to life if his sentences were run consecutively, and that the Ohio Department of Corrections could place him on parole “if released from prison.” He also said nothing when the trial court advised the murder victim‘s family spokesperson that the department of corrections or the parole board would determine “whether Mr. Pennington ever gets out.” And he denied that his plea had been compelled by any threat or promise.
{16} Nor does the evidence support Pennington‘s claim that his trial counsel had been ineffective in urging him to plead to a reduced charge of murder rather than face an almost-certain aggravated-murder conviction based on Lyles‘s testimony. Lyles, in his 2019 affidavit, confirmed that he had earlier seen Pennington in the vicinity of the restaurant, but asserted that he had been home at 10:00 p.m., when the murder occurred. That effort by Lyles to “clear [up]” the “[i]naccurate details” in his 2010 statement to the police did not exonerate Pennington in the cashier‘s murder. The common pleas court would not have abused its discretion in discrediting that “cl[arification],” when it directly contradicted his statement to the police, and the judge deciding Pennington‘s
We Affirm
{17} Pennington did not sustain his burden of demonstrating a prejudicial deficiency on the part of his trial counsel in advising him to plead guilty to the reduced charge of murder. Thus, he failed to show that withdrawal of his guilty pleas was necessary to correct a manifest injustice. We, therefore, hold that the common pleas court did not abuse its discretion in denying, without an evidentiary hearing, his
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
WINKLER
JUDGE