State v. SaurState v. Saur
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Ronald L. Saur, pro se.
ON APPLICATION FOR REOPENING
CONNOR, J.
{¶ 1} Defendant-appellant, Ronald L. Saur (“defendant“), has filed a pro se application, pursuant to
{¶ 2} On March 26, 2010, defendant was indicted on charges of kidnapping, felonious assault, and domestic violence. On October 18, 2010, defendant entered a plea of guilty to felonious assault. Pursuant to the plea agreement, the other two offenses
{¶ 3} Laurie was eventually able to free herself, so she ran into the hallway. Defendant followed her and dragged her back into the apartment by her hair. A neighbor heard her screams in the hallway and called 911. Once she was inside the apartment again, appellant threw Laurie on the floor of the bedroom, sat on her chest, and held her down, covering her mouth and nose with his hand while choking her and stating he was going to kill her. When the police arrived they arrested defendant and took Laurie to Grant Hospital, where Laurie remained for several days due to the severity of her injuries.
{¶ 4} At the plea hearing, the trial court engaged in a plea colloquy with defendant and accepted defendant‘s guilty plea. The court ordered a presentence investigation.
{¶ 5} At the sentencing hearing, a victim witness assistant read a statement from Laurie into the record. Defense counsel presented the court with mitigating evidence, and defendant personally addressed the court. The trial court sentenced defendant to an eight year prison term, the maximum prison sentence possible for a second degree felony felonious assault charge, explaining “[t]hat woman took a hell of a beating that night. That‘s why you got the maximum sentence.” (Nov. 29, 2010, Tr. 16.)
{¶ 6} In his direct appeal, defendant, through counsel, raised two assignments of error. He argued that his sentence was contrary to law and that his trial counsel rendered ineffective assistance of counsel. Defendant asserted his sentence was contrary to law for the following reasons: (1) the trial court violated the conservation of resources principle set forth in
{¶ 7} On January 25, 2012, defendant filed a handwritten document with this court, consisting of an affidavit and a memorandum in support. Defendant averred that the statements in the affidavit were made “in support of [defendant‘s] application to reopen in Accordance with Appellate Rule 26(B).” On February 1, 2013, this court issued a judgment entry construing defendant‘s January 25, 2012 filing as an
{¶ 8}
{¶ 9} An application for reopening must set forth “[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel‘s deficient representation.”
{¶ 10} To prevail on an application to reopen, defendant must make “a colorable claim” of ineffective assistance of appellate counsel under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Lee, 10th Dist. No. 06AP-226, 2007-Ohio-1594, ¶ 2, citing State v. Sanders, 75 Ohio St.3d 607 (1996). Under Strickland, defendant must demonstrate the following: (1) counsel was deficient in failing to raise the issues defendant now presents, and (2) defendant had a reasonable probability of success if the issue had been presented on appeal. Lee at ¶ 2, citing State v. Timmons, 10th Dist. No. 04AP-840, 2005-Ohio-3991.
{¶ 11} An appellate attorney has wide latitude and the discretion to decide which issues and arguments will prove most useful on appeal. Furthermore, appellate counsel is not required to argue assignments of error that are meritless. Lee at ¶ 3, citing State v. Lowe, 8th Dist. No. 82997, 2005-Ohio-5986, ¶ 17.
{¶ 12} Defendant‘s application alleging his appellate counsel was ineffective lacks clear assignments of error. Defendant‘s affidavit contains the following averments:
[1.] My appellate counsel was ineffective for failing to properly research and argue on appeal: I was denied due process by the trial court by not being properly addressed personally. I was never told the nature or elements of my charge.
[2.] I was substantially prejudiced because these errors were not raised and could have resulted in receiving a new trial and could have been brought to light and supported.
[3.] Appellates [sic] counsel failure to raise these facts on appeal constitutes ineffective assistance of counsel.
[4.] Appellates [sic] counsel failure to recognize ineffective assistance of trial counsel constitutes ineffective [sic] of counsel.
I. NATURE OF THE CHARGES
{¶ 14} Defendant asserts that he did not knowingly enter his guilty plea because he “did not possess a full understanding of the law in relation to the facts.” (Application to Reopen, 1.) Defendant claims the trial court, in violation of
{¶ 15} The record does not support defendant‘s contentions. Pursuant to
(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.
{¶ 17} Here, defendant asserts the trial court erred in accepting his plea without addressing him personally to determine if he understood the nature of the charges and the maximum penalty involved. “However,
{¶ 18} The transcript of the plea hearing demonstrates that the trial court engaged in a proper
{¶ 19} The court further noted it had before it defendant‘s signed guilty plea form. The court asked defendant “Did you go over the document with [your attorney] Mr. Hunt before you signed it?” (Oct. 18, 2010, Tr. 3.) Defendant responded “Yes, sir.” (Oct. 18, 2010, Tr. 3.) After reviewing with defendant the various sanctions which might accompany his plea, including the mandatory term of post-release control, and reviewing the constitutional rights listed in
The Court: Mr. Hunt, you‘ve had an opportunity to review the form with your client. Do you feel he is knowingly, intelligently, and voluntarily proceeding?
Mr. Hunt: Absolutely.
The Court: Do you feel this plea arrangement‘s in his best interest?
Mr. Hunt: Yes, Your Honor.
The Court: Have you discharged your duties pursuant to the Ohio Criminal Rules in representing you client?
Mr. Hunt: I have, Your Honor.
The Court: Are you satisfied with his representation?
The Defendant: Yes, sir.
The Court: Has he answered all your questions?
The Defendant: Yes, sir.
The Court: Done you a good job?
The Defendant: Excellent.
(Oct. 18, 2010, Tr. 11.)
The Court: I‘ll find the Defendant knowingly, intelligently entered a plea with a full understanding of the various consequences, including the maximum penalty.
I‘ll further find Mr. Saur and I had a discussion on the record. I was very pleased. He was very attentive. He appeared to understand his rights and knowingly and voluntarily gave them up.
Is that correct, Mr. Saur?
The Defendant: That‘s correct, sir.
(Oct. 18, 2010, Tr. 14.)
{¶ 21} Based on the foregoing, it is apparent the trial court substantially complied with
{¶ 22} The record reveals that the trial court properly advised defendant pursuant to
II. AGGRAVATED ASSAULT
{¶ 23} Defendant asserts “that his version of the facts supported an affirmative defense of aggravated assault
{¶ 24} Defendant pled guilty to felonious assault, which prohibits any person from knowingly causing serious physical harm to another.
{¶ 25} At the sentencing hearing, defendant‘s trial counsel presented facts in mitigation. Defense counsel noted that:
Mr. Saur‘s has always maintained that he in no way ever even attempted to or came close to tying her up or kidnapping her in any form or fashion. * * * [T]his was an event that took place over a period of time after they had gotten into a verbal argument, that she had a large commercial stapler and was hitting him over the head with it.
Again does that give him the right to punch her in the face? Probably not, or we would not have pled.
(Nov. 29, 2010, Tr. 7-8.)
{¶ 27} Defendant asserts that his guilty plea was not “made knowingly or voluntarily” as the trial court failed to make defendant “aware [of] the nature of the charge or the essential elements * * * of provocation” during the plea colloquy. (Application to Reopen, 14.) However, defendant cites to nothing to support his contention that the trial court had an obligation to inform defendant during the plea colloquy about the elements of an offense to which defendant was not pleading guilty. Compare State v. Jefferson, 8th Dist. No. 95949, 2011-Ohio-4951, ¶ 4, 8 (where the defendant asserted error because the trial court did not inform him “of the effect and potential consequences of his guilty pleas” relative to other charges pending against the defendant, the appellate court concluded the trial court “had no responsibility to explain to Jefferson the potential effect of guilty pleas in subsequent potential cases“).
{¶ 28} Defendant‘s main contention that his trial counsel was ineffective in failing to inform defendant of the elements of aggravated assault would require evidence of conversations between defendant and his counsel from outside the record. “When allegations of ineffective assistance of counsel hinge on facts not appearing in the record, the proper remedy is a petition for post-conviction relief rather than a direct appeal.” State v. Davis, 10th Dist. No. 05AP-193, 2006-Ohio-193, ¶ 19. Even so, the following statements from counsel at the sentencing hearing strongly indicate that counsel discussed potential defenses and potential lesser included or inferior offenses with defendant before defendant decided to plead guilty to felonious assault:
And we spent a lot of time going over whether we were going to try this case or not as to what our possible defenses were, and the Court properly inquired about that at the plea.
However, with that said, after viewing the same photographs that the Court‘s going to and has viewed, after going over both case law and the statute itself regarding felonious assault, my client made, what I believe to be, a very informed decision, was very patient about what, you know, the best advice would be for him rather than jumping to conclusions that this wasn‘t a felonious assault or, you know, it may be something less than that. He studied every piece of information the State provided and also all the case law and, again, statutory law that I provided him regarding felonious assault, and he made an informed decision that he believed at trial the jury would, in fact, find him guilty of a felonious assault, and that‘s why he plead to it.
(Emphasis added.) (Nov. 29, 2010, Tr. 8-9.)
{¶ 29} Moreover, the facts contained in the record before us do not demonstrate that defendant would have been entitled to an instruction on aggravated assault had he gone to trial. The offense of aggravated assault is an inferior degree of felonious assault because its elements are identical to or contained within the offense of felonious assault, coupled with the additional presence of one or both mitigating circumstances of sudden passion or a sudden fit of rage brought on by serious provocation occasioned by the victim. See State v. Stewart, 10th Dist. No. 10AP-526, 2011-Ohio-466, ¶ 7, citing State v. Logan, 10th Dist. No. 08AP-881, 2009-Ohio-2899, fn.1, citing State v. Deem, 40 Ohio St.3d 205 (1988). In other words, aggravated assault is the same conduct as felonious assault but its nature and penalty are mitigated by provocation. Stewart at ¶ 7, citing State v. Scott, 10th Dist. No. 00AP-868 (Mar. 27, 2001).
{¶ 30} Although aggravated assault is an inferior offense of felonious assault, rather than a lesser-included offense, the Supreme Court of Ohio held in Deem that, in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given. Stewart at ¶ 8, citing Deem at 211. The test for whether the trial court should instruct the jury on aggravated assault when the defendant is charged with felonious assault is the same test applied when an instruction on a lesser-included offense is sought. Id., citing State v.
{¶ 31} Serious provocation under
{¶ 32} Here the facts in the record do not support serious provocation. The facts demonstrate the following events: defendant and Laurie had a verbal argument in their apartment, the police arrived and arranged for defendant to leave the apartment, defendant attempted to drive away from the apartment but could not because the car did not have gas in it, defendant went back inside the apartment where the verbal altercation continued and escalated into a physical altercation. During the physical altercation defendant struck Laurie repeatedly, dragged her by her hair, and sat on top of her trying to choke her. At some point during these events, Laurie struck defendant with a commercial stapler.
{¶ 34} Accordingly, because the record before us does not present facts to support the serious provocation element of aggravated assault, defendant has not demonstrated a reasonable probability of success on a claim of ineffective assistance of counsel based on trial counsel‘s alleged failure to inform defendant about the inferior offense of aggravated assault. Even if defendant‘s trial counsel had informed defendant about aggravated assault, and defendant had gone to trial, there is no indication that the trial court would have instructed the jury on aggravated assault. Moreover, because the claim of ineffective assistance of counsel based on trial counsel‘s failure to communicate the existence of an inferior offense to his client would necessarily require evidence from outside the record, appellate counsel cannot be considered deficient for failing to raise a meritless assignment of error. Lee at ¶ 3
III. CONCLUSION
{¶ 35} Based on the foregoing, we find defendant has failed to establish a genuine issue demonstrating that he was deprived of the effective assistance of counsel and that he suffered prejudice as a result of appellate counsel‘s performance. Consequently, we find defendant‘s proposed assignments of error to be without merit. Because defendant‘s arguments fail to establish a colorable claim of ineffective assistance of counsel, we deny defendant‘s application for reopening.
Application for reopening denied.
BRYANT and TYACK, JJ., concur.
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