State v. ReynoldsState v. Reynolds
JUDGMENT: APPLICATION DENIED
RELEASED AND JOURNALIZED: October 30, 2019
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.
Kimberly Kendall Corral, for appellant.
ANITA LASTER MAYS, P.J.:
{¶ 1} On May 22, 2019, the applicant, Pierson Reynolds, pursuant to
{¶ 2} The grand jury indicted Reynolds on two counts of aggravated burglary, two counts of burglary, one count of aggravated robbery, four counts of robbery, three counts of theft, one count of attempted theft, one count of kidnapping, and one count of felonious assault for crimes committed against six individuals, ages 76 to 94. These crimes occurred between July 29, 2016, and September 16, 2016.
{¶ 3} By May 22, 2017, the state and Reynolds had reached a plea bargain under which Reynolds would plead guilty to two counts of burglary and one count each of aggravated burglary, aggravated robbery, robbery, and felonious assault. In return, the state would nolle the other charges and would recommend an agreed sentence of 13 years. The court accepted the plea on that date and set sentencing for June 29, 2017. As part of the presentence investigation report, defense counsel asked for and received a mitigatory psychological evaluation.
{¶ 5} By October, Reynolds had been restored to competency. At a hearing on November 8, 2017, defense counsel moved to withdraw the guilty plea because Reynolds was not competent at that time to do so. The state said that it had no objection to the withdrawal, but that the agreement of a 13-year sentence would be off the table. The mental health docket judge granted the motion to withdraw but opined that the state was being mean and acting in bad faith in revoking the 13-year agreement.
{¶ 6} By January 17, 2018, Reynolds and the state had again reached a plea bargain. Reynolds pled guilty to the same two counts of burglary, and one count each of aggravated burglary, aggravated robbery, robbery, and felonious assault. The state nolled the other charges, but would not recommend an agreed sentence of 13 years. Instead, in its sentencing memorandum, it asked for maximum penalties. However, at the sentencing hearing on March 1, 2018, the state asked that the court sentence Reynolds commiserate with the acts he committed and provide the community an opportunity to be safe from his actions. The mental health docket
{¶ 7} Appellate counsel raised one assignment of error:
Mr. Reynolds’ right to due process and a fair sentence were violated where the prosecution abandoned its sentence recommendation for no justifiable reason and encouraged the court to impose the maximum and where the trial court, again, for no justifiable reason, imposed a sentence beyond that which had been originally agreed upon.
Pursuant to this argument, appellate counsel proposed that the prosecutor sought to punish Reynolds for exercising his constitutional right to move to withdraw his plea and for his mental illness. There were no intervening circumstances, such as additional crimes, that would justify a harsher sentence. Therefore, “the harsher sentence creates a presumption of vindictiveness, and nothing in the record or in what the trial court said overcomes it.” (Appellant’s brief, pg. 6.) Appellate counsel concluded that the harsher sentence was vindictive and punished him for his mental disabilities. Reynolds asked that this court vacate his sentence and remand the matter for a new sentence.
{¶ 8} In overruling this assignment of error, this court reasoned that because Reynolds was incompetent at the time of the guilty plea, he did not knowingly, intelligently, and voluntarily plead guilty to an offense. Thus, the plea was void, and the state was not bound by the terms of the initial plea agreement. Moreover, the trial court was not bound by the terms of the initial plea agreement
{¶ 9} Now Reynolds argues that his appellate counsel was ineffective and should have argued the following: (1) Reynolds was denied effective assistance of counsel when his counsel withdrew his plea, resulting in denying Reynolds the benefit of the plea bargain that was negotiated and agreed to; (2) Reynolds was denied effective assistance of trial counsel when trial counsel failed to argue for specific performance; and (3) the trial court abused its discretion in failing to give proper weight to mitigating circumstances of Reynolds[’s] mental health, rather considering them as an aggravating factor.
{¶ 10} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶ 11} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney’s work must be highly deferential. The court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore, “a court must
{¶ 12} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 13} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the
{¶ 14} Appellate counsel chose to address the loss of the agreed-upon 13-year sentence directly by arguing that the state and the judge acted vindictively by abandoning that recommendation, rather than indirectly through the lens of ineffective assistance of trial counsel. Such an approach avoids the additional analysis of examining whether trial counsel’s decisions came within the ambit of reasonable strategy and tactics. This is especially true when a review of the record shows that trial counsel’s sentencing strategy was to present a very sympathetic view of Reynolds, through family support and remorse. Thus, following the admonition of the Supreme Court this court will not second-guess appellate counsel’s decision to attack an issue directly. State v. Schwarzman, 8th Dist. Cuyahoga No. 100337, 2015-Ohio-516; State v. Hilliard, 8th Dist. Cuyahoga No. 102214, 2016-Ohio-2828. By arguing that the state and the judge acted vindictively, appellate counsel argued in essence that the trial court abused its discretion in imposing the longer sentence.
{¶ 15} Moreover, Reynolds cannot show prejudice. This court found that because of Reynolds’s incompetency, the initial plea bargain was void and the state was not bound by it. Thus, defense trial counsel could not insist upon specific performance or argue that because Reynolds was competent in November 2017, the earlier plea bargain made when he was incompetent should still remain.
{¶ 17} Accordingly, the application to reopen is denied.
ANITA LASTER MAYS, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR