STATE OF OHIO, Plaintiff-Appellee, - vs - MARQUES JAMES SHANNON, Defendant-Appellant.
CASE NO. 2017-T-0012
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 22, 2017
[Cite as State v. Shannon, 2017-Ohio-9344.]
DIANE V. GRENDELL, J.
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR 000863. Judgment: Affirmed.
Desirae D. DiPiero Chieffo, 7330 Market Street, Youngstown, OH 44512 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Marques James Shannon, appeals from the judgment of the Trumbull County Court of Common Pleas, resentencing him and denying his Motion to Withdraw Plea. The issue before this court is whether an appeal is wholly frivolous where a defendant claims his guilty plea was involuntary when he had expressed concerns about entering the plea and the court advised him of his rights and
{¶2} On November 24, 2015, Shannon was indicted by the Trumbull County Grand Jury for the following: Felonious Assault (Count One), a felony of the second degree, in violation of
{¶3} On March 3, 2016, a Finding on Guilty Plea to the Amended-Indictment was filed. At the plea hearing, the State moved to dismiss the pregnant victim specification, as well as Count Three, in exchange for a plea of guilty to the remaining counts and an agreed sentence of three years in prison. The court reviewed the rights Shannon would be waiving by pleading guilty, which Shannon indicated he understood. When asked if he was satisfied with counsel, Shannon stated “not fully,” citing arguments with counsel.
{¶4} The following exchange took place:
Shannon: I don‘t want to go to trial because [counsel] said it was a 90 percent chance he‘d lose. So I‘m forced to take three years. I got four children to get out here to. I‘m getting ready to go to school.
The Court: If you don‘t want to take this plea, we‘ll go to trial on Monday.
Shannon: I‘ve got to take three years. I don‘t want to go to trial and get up to 15 years. That‘s what I‘m facing, right? That‘s what you said?
The Court: I think it‘s 14.
Shannon: 14. I don‘t want to do that.
{¶5} The court indicated that it wanted Shannon to understand his rights and that no one was threatening him. Shannon said, “I don‘t want to go to trial” and stated he understood his counsel‘s advice. When asked if he was threatened or promised anything to enter the plea, he responded “No. Other than the threat of 14 years.” The trial court explained: “That‘s hanging out there, though, because that‘s the maximum sentence.” The court then reviewed the elements of the crimes and the potential maximum penalties.
{¶6} Shannon indicated that he voluntarily signed the plea agreement, explaining “I had to sign it” and “take the three years.” The court found Shannon guilty of Counts One, Two, Four, and Five, the presentence investigation was waived, and the matter proceeded to sentencing. When asked if he wanted to speak prior to the entry of his sentence, Shannon indicated “I‘m innocent.” The court twice asked if he would like to withdraw his plea and go to trial, to which Shannon responded negatively, reiterating counsel‘s advice that he would lose at trial. The court sentenced him to three years in prison on Count One, three years for Count Two, one year for Count Four, and 60 days for Count Five, all to run concurrent for a three-year sentence. This verdict was memorialized in a March 3, 2016 Entry on Sentence. A subsequent untimely request to appeal that judgment was denied by this court on June 27, 2016. State v. Shannon, 11th Dist. Trumbull No. 2016-T-0039, 2016-Ohio-4602.
{¶8} The trial court issued an Amended Entry on Sentence on November 7, 2016. It noted that a resentencing hearing had been held on October 4, 2016 to correct a merger issue. It found Counts One, Two and Four “shall merge for the purposes of sentencing,” the State elected to proceed on Count One, and the court sentenced Shannon to three years in prison for that count, to be served concurrently with a 90-day sentence for Count Five. The court also denied the Motion to Withdraw.
{¶9} Shannon appealed from that Entry. Appellate counsel filed Shannon‘s appellate brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel represented that she had found “no prejudicial errors,” and requested permission to withdraw on the basis that the appeal is frivolous. Pursuant to Anders, “if counsel finds his client‘s case to be wholly frivolous, counsel should advise the court and request permission to withdraw; * * * the request to withdraw must be accompanied by a brief referring to anything in the record that might arguably support the appeal; [and] * * * time must be allowed for the client to raise any points he chooses.” State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695, ¶ 5, citing Anders at 744. The appellate court must then conduct “a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Anders at 744.
{¶10} On August 9, 2016, this court granted Shannon 30 days to file a submission in support of his appeal, “if he so chooses.” Appellate counsel‘s request to withdraw was held in abeyance.
{¶12} Shannon raises several errors in a brief he filed on his own behalf:
{¶13} “[1.] The trial court committed prejudicial error by involving itself in the plea bargaining process and threatening appellant with the maximum sentence if he exercised his right to trial by jury.
{¶14} “[2.] Trial court erred by accepting an invalid guilty plea, therefore, defendant[‘]s plea is invalid and was not entered voluntarily, knowingly and intelligently and trial court abused [its] discretion when it sentenced defendant contrary to law according to
{¶15} “[3.] Trial court made plain error by coercing defendant to plead guilty to a sentence that was contrary to law according to
{¶16} “[4.] Defendant appellant received ineffective trial counsel in violation of his due process and constitutional rights, therefore defendant[‘]s convictions, guilty plea and sentence should be void, vacated and set aside. This case should be dismissed as well due to failure of meeting speedy trial date with a legal and valid conviction and sentence.”
{¶17} To conduct a review of this matter, we will focus primarily on Shannon‘s alleged errors, as they overlap the areas reviewed by appellate counsel.
{¶19} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶20} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” (Citation omitted.) State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. We find no evidence that Shannon‘s plea was entered involuntarily, by “coercion” from the judge or otherwise.
{¶21} There is no question that Shannon was advised of the consequences of entering a plea, the rights he was waiving by entering such a plea, and that the court explained the charges and the potential maximum penalties, as required by
{¶22} In support of his contention that he was coerced or forced into pleading guilty, Shannon points to his various statements at the plea hearing that he felt he “had” to take the deal. A review of the entire hearing and the testimony outlined above, viewed in context, reveals that Shannon agreed to accept the deal because he was aware he faced a greater penalty if he went to trial. His various statements that he “had” to sign the plea agreement were nothing more than acknowledgements that he was choosing what he believed to be the better of two possible negative outcomes he faced. When a defendant is “faced with the stark reality of either pleading guilty pursuant to the plea bargain the state offered, or going to trial,” the fact that he has been “openly presented with unpleasant alternatives” does not render his guilty plea involuntary. State v. Gibbs, 4th Dist. Washington No. 96CA44, 1997 WL 341908, *3 (June 16, 1997), citing Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Cruse, 10th Dist. Franklin Nos. 01AP-1074 and 01AP 1075, 2002-Ohio-3259, ¶ 50. Shannon‘s statements indicated he believed the plea benefited him and he only later decided otherwise. A defendant is not entitled to withdraw his plea because he has a change of heart. State v. Montgomery, 11th Dist. Ashtabula Nos. 2016-A-0057 and 2016-A-0058, 2017-Ohio-1414, ¶ 16.
{¶23} While Shannon contends that the court influenced his decision or interjected itself into the proceedings, this is incorrect. Again, a review of the hearing reveals that the court merely asked questions to ensure that the plea was entered voluntarily. On multiple occasions where Shannon indicated reservations with accepting the plea, the court informed him that, if he did not want to enter a plea, he
{¶24} The first assignment of error is without merit.
{¶25} In his second assignment of error, Shannon argues that his amended sentence was improperly ordered eight months after the speedy trial deadline had expired.
{¶26} Shannon was first sentenced on March 3, 2016, and was resentenced on November 7, 2016, due to an error relating to merger. Shannon fails to explain how the date of sentencing implicates his speedy trial rights. Ohio speedy trial law dictates the time within a defendant must be brought to trial.
{¶27} Shannon argues in both his second and third assignments of error that the trial court erred when it imposed separate convictions and sentences for offenses that
{¶28} To the extent that Shannon may imply within these assignments of error that the court‘s failure to apply the merger doctrine impacted his plea, he provides no specific argument or case law to support this position.
{¶29} Within his third assignment of error, Shannon also raises various factual allegations, many outside of the record, in support of his contention that he did not commit the offenses. This is irrelevant given that he entered a guilty plea and he also did not dispute the explanation of the crime as presented by the State at the plea hearing.
{¶30} The second and third assignments of error are without merit.
{¶31} In his fourth assignment of error, Shannon argues that trial counsel was ineffective for various reasons that related to the plea deal and this justified allowing him to withdraw his plea.
{¶33} Shannon first argues that counsel failed to visit him in jail to review his case and also describes how they “urged” him to sign the deal on several occasions. To the extent that these arguments relate to matters outside of the record, they cannot be considered in the present proceedings. State v. Coleman, 85 Ohio St.3d 129, 134, 707 N.E.2d 476 (1999). Similarly, Shannon‘s criticisms about appellate counsel‘s performance are also not properly before the court at this stage.
{¶34} Relating to Shannon‘s contentions that counsel was ineffective for encouraging him to take a plea deal, and, thus, the trial court should have allowed him to withdraw his plea, there is no evidence in the record that they acted inappropriately. As noted above, they helped him secure a favorable deal which avoided a potentially greater prison sentence. It has been held that “an attorney‘s advice to take a plea deal is not ineffective assistance of counsel.” (Citation omitted.) State v. Sturgill, 12th Dist. Clermont No. CA2014-09-066, 2015-Ohio-1933, ¶ 20. This court has rejected arguments that a plea was involuntary in similar cases when a defendant was “urged”
{¶35} Shannon also argues that trial counsel was ineffective for failing to raise the merger and speedy trial arguments outlined above. Since these arguments are either meritless or did not result in a prejudicial outcome for Shannon, they do not provide grounds for reversal.
{¶36} The fourth assignment of error is without merit.
{¶37} Based on the foregoing review, we conclude the instant appeal is wholly frivolous. The judgment of the Trumbull County Court of Common Pleas is affirmed and counsel‘s motion to withdraw is granted. Costs to be taxed against appellant.
THOMAS R. WRIGHT, J., concurs in judgment only with Concurring Opinion,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
THOMAS R. WRIGHT, J., concurs in judgment only with Concurring Opinion.
{¶38} Generally, to meet the requirements of
{¶39} Nevertheless, I affirm without further briefing because the merger issue is barred under res judicata as Shannon could have challenged this issue on direct appeal from his conviction. State v. Lacking, 10th Dist. Franklin Nos. 14AP-691 & 14AP-692, 2015-Ohio-1715, ¶13; State v. Lusane, 11th Dist. Portage No. 2016-P-0036, 2017-Ohio 1513, ¶12. I concur in judgment only.
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{¶40} The majority finds this appeal is wholly frivolous based on Anders v. California, 386 U.S. 738 (1967). For the reasons stated, I respectfully dissent.
{¶41} It is this writer‘s position that this court should no longer accept motions to withdraw under Anders. The statutory right to appeal is set forth in
{¶43} Upon consideration, this court should take the following approach, as recently set forth by the Fourth District, adopting the Idaho rule: after counsel is appointed to represent a criminal defendant during appeal, we will not permit counsel to submit an Anders brief and withdraw solely on the basis that the appeal is frivolous but rather counsel will file a brief on the merits. Wilson, supra, at ¶23, citing McKenney, supra, 1214.
{¶44} Regarding this approach, the Fourth District further held:
{¶45} “We believe that the Idaho rule clearly satisfies the constitutional requirement of substantial equality and fair process referred to in Anders at 744. It also preserves the integrity of the attorney-client relationship and better serves the appellate court. The Anders procedure is inefficient, unduly burdensome on the court, and
{¶46} Based on my prior dissenting opinions regarding Anders as well as the Fourth District‘s recent decision in Wilson, I respectfully dissent.