STATE OF OHIO, Plаintiff-Appellee -vs- SIRIUS E. UNDERWOOD, Defendant-Appellant
Case No. CT2017-0024
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 23, 2018
2018-Ohio-730
Hon. John W. Wise, P. J., Hon. William B. Hoffman, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2016-0122; JUDGMENT: Affirmed
For Plaintiff-Appellee
D. MICHAEL HADDOX
PROSECUTING ATTORNEY
GERALD V. ANDERSON II
ASSISTANT PROSECUTOR
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702-0189
For Defendant-Appellant
TONY A. CLYMER
1420 Matthias Drive
Columbus, Ohio 43224
Wise, P. J.
{¶1} Appellant Sirius E. Underwood appeals from his convictions in the Court of Common Pleas, Muskingum County, on one count of aggravated murder, two counts of aggravated robbery, and other felony offensеs. Appellee is the State of Ohio. The relevant procedural facts leading to this appeal are as follows.
{¶2} On February 24, 2017, stemming from an indictment by the Muskingum County Grand Jury issued on March 30, 2016, appellant appeared with counsel and entered an Alford plea to felony charges consisting of one count for the aggravated murder of Brandy Daniels, with a firearm specification (set forth as Count 9), two counts of aggravated robbery, two counts of conspiracy to commit aggravated robbery, two counts of theft, two counts of having a weapon while under a disability, one count of aggravated burglary, one count of engaging in a pattern of corrupt activity, and one сount of tampering with evidence. This plea was entered following several months of negotiation between trial counsel for appellant and the State of Ohio, through the Muskingum County Prosecutor‘s Office.
{¶3} During the aforementioned plea hearing, the assistant prosecutor, Ron Welch, made inter alia the following statements to the trial court: “In exсhange for the defendant‘s plea ***, the parties agree to the joint recommendation that the defendant be sentenced to an aggregate prison term of life in prison with eligibility for parole after the defendant has served 25 years in prison, plus a mandatory consecutive three-year term for the firearm specificatiоn attached to Count 9. *** The parties stipulate the facts sufficient for a finding of guilty to be made. And the defendant agrees to make restitution
{¶4} At that point, the court asked defense counsel if he had anything to add, to which he reрlied: “Not for the purposes of the change of plea, Your Honor. Mr. Welch‘s recitation of the change of plea was accurate.” Id. at 5.
{¶5} The trial court thereupon engaged in a plea colloquy with appellant, following which Mr. Welch extensively summarized the facts of the case. The court then ordered a presentence investigation.
{¶6} A sentencing hearing was held on March 20, 2017. Once again, the State of Ohio, through the assistant prosecuting attorney, Mr. Welch, outlined the plea agreement that had been entered into between appellant and the State of Ohio. Tr., Sentencing Hearing, at 4-5. The State of Ohio further indicated that negotiations in the case “came about over a course of time involving the State and defense, as well as consultation with the family members that have been involved in this matter.” Id. Furthermore, trial counsel for appellant reiterated the lengthy discussions that took place regarding the plea agreement and requested that the trial court follow the jоint recommendation.
{¶7} Following the hearing, the trial court sentenced appellant to life in prison with eligibility for parole after twenty-eight years (twenty-five plus a three-year firearm specification) on the aggravated murder charge, consecutive to ten years in prison on the other counts (to be served concurrently with eаch other), for an aggregate prison term of life in prison with the eligibility for parole after thirty-eight years. Appellant was also ordered inter alia to pay restitution in the amount of $22,265.24.
{¶9} Appellant filed a notice of appeal on April 4, 2017. He herein raises the following four Assignments of Error:1
{¶10} “I. THE TRIAL COURT RENDERED APPELLANT‘S PLEA INVOLUNTARY AND VIOLATED APPELLANT‘S STATE AND FEDERAL CONSTITUTIONAL RIGHTS BY IGNORING THE JOINT RECOMMENDATION OF SENTENCE AND IMPOSING A SENTENCE THAT EXCEEDED THE AGREED-UPON SENTENCING RECOMMENDATION.
{¶11} “II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.
{¶12} “III. THE TRIAL COURT ERRED BY NOT CONSIDERING THE PRINCIPLES AND PURPOSES OF SENTENCING AS REQUIRED BY
{¶13} “IV. THE TRIAL COURT PLAINLY ERRED IN ORDERING APPELLANT TO PAY RESTITUTION AND COURT COSTS SINCE APPELLANT IS INDIGENT AND THE COURT NEVER REFERENCED APPELLANT‘S PRESENT OR FUTURE ABILITY TO PAY.”
{¶14} In his First Assignment of Error, appellant contends the trial court committed reversible error and violated his constitutional rights by rejecting the parties’ agreed recommended sentence, resulting in a term of life in prison with the eligibility for parole after thirty-eight years. We disagree.
{¶15} This Court has recognized that a trial court is not bound by a sentencing recommendation proffered by the State. See State v. Hartrum, 5th Dist. Licking No. 14-CA-106, 2015-Ohio-3333, ¶ 14, citing State v. Kitzler, 3rd Dist. Wyandot No. 16-02-06, 2002-Ohio-5253, ¶ 9. Thus, where a trial court complies with
{¶16} During the plea hearing, the trial court asked appellant: “You understand, Mr. Underwood, the joint recommendation is not binding on this Court; and at sentencing, I do not have to follow it?” Tr., Plea Hearing, at 13. Appellant answered in the affirmative. Id. As such, the record does not suppоrt appellant‘s claim that his plea was not knowing and voluntary in this respect.
{¶17} Appellant nonetheless cites Hartrum, supra, for the proposition that a trial court is not bound by a plea agreement unless there has been “active participation by the trial court in the agreement.” Id., citing State v. Hutchison, 5th Dist. Tuscarawas No. 2001AP030020, 2001 WL 1356356. Put another way, appellant maintains the trial court in the case sub judice was an active participant in the plea deal, and thus should be
{¶18} It is well-established that “[a] trial court assures that a plea is knowingly, voluntarily and intelligently entered during the plea colloquy as required by
{¶19} Appellant further contends the trial court should have, in the alternative, permitted him to withdraw his plea upon the court‘s decision to reject the jointly recommended sentence. However, the general rule in Ohio “requires motions to withdraw guilty plea to be freely granted if they are made before sentencing.” State v. Rickman, 3rd Dist. Seneca No. 13-13-15, 2014-Ohio-260, ¶ 12 (emphasis added), citing State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). In one of the cases appellant cites, State v. Buell, 10th Dist. Franklin No. 15AP-789, 2016-Ohio-2734, the Tenth District Court of Appeals indeed stated that “[i]In the vast majority of cases in Franklin County, Ohio, if the parties agree as to the appropriate sentence, the trial court judge accepts that argument and imposes the agreed-upon sentence.” Id. at ¶ 2. However, in Buell, the defendant had asked at the sentencing hearing, before pronouncement of sentence, that he be permitted to withdraw his guilty plea. Id. at ¶ 5. Appellant provides no direct authority for his claim that a trial court, in the absence of a motion under
{¶20} Appellant‘s First Assignment of Error is therefore overruled.
II.
{¶21} In his Second Assignment of Error, appellant contends he was deprived of the effective assistance of trial counsel during the plea proceedings. We disagree.
{¶22} Our standard of review for ineffective assistance сlaims is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel‘s assistance was ineffective; i.e., whether counsel‘s performance fell below an objective standard of reasonable representation and was violative of аny of his or her essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel‘s ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable
{¶23} Furthermore, trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267.
Issue of Prosecutor‘s Recitation
{¶24} Appellant first contends his defense counsel was ineffective for failing to object to the assistant prosecutor‘s lengthy recitation of facts, which runs approximately twenty-nine pages in the transcript.
{¶25} We have recognized that a trial court record also must contain “strong evidence of guilt” before an Alford plea may be accepted, and therefore, such a plea should not be made without the presentation of some basic facts surrounding the offenses charged. See State v. McKinley, 5th Dist. Delaware No. 14 CAA 08 0045, 2015-Ohio-2436, ¶ 19, citing State v. Scott, 3rd Dist. Seneca No. 13-2000-34, 2001-Ohio-2098. Given that appellant in this instance pled to all but one count and several specifications of a thirteen-count indictment, the issuance of which followed an extensive three-year investigation by federal, Ohio, and Alaska authorities (see Plea Tr. at 34), we find in regard to the issue of the prosecutor‘s recitation that appellant was not deprived of the effective assistance of trial counsel in violation of his constitutional rights.
Lack of Objection by Defense Counsel
{¶26} Appellant secondly urges that his defense counsel ineffectively “stood silent,” i.e., did not enter an objection, pursue some type of sentencing mitigation, or move
{¶27} The United States Supreme Court and the Ohio Supreme Court have held that a reviewing court need not determine whether counsel‘s performance was deficient before еxamining the prejudice suffered by the defendant as a result of the alleged deficiencies. See Bradley at 143, quoting Strickland at 697. Furthermore, appellate courts will generally refrain from second-guessing the strategic decisions of trial counsel. State v. Lyons, 7th Dist. Jefferson No. 16 JE 0008, 2017-Ohio-4385, ¶ 32.
{¶28} In the case sub judice, given that appellant was facing charges of aggravated murder and several other serious felonies, we find it would be unacceptably speculative on our part to question defense counsel‘s strategic decision to work out a plea deal in lieu of a lengthy trial and simply accept the possibility of a rejection of the recommended sentence.2 In addition, we are unable to determine with any confidence that the trial court‘s sentence would have been different had counsel objected. Cf. State v. Morrison, 5th Dist. Muskingum No. CT2014-0042, 2015-Ohio-2018, ¶ 13. As may occur in any number of sentencing situations, “[c]ounsel‘s strategy may have been to say nothing in order to avoid further detriment to his [or her] client.” State v. Noble, 2nd Dist. Montgomery No. 13955, 1994 WL 100694.
{¶29} Accordingly, appellant‘s Second Assignment of Error is overruled.
{¶30} In his Third Assignment of Error, appellant contends his sentence was contrary to law. We disagree.
{¶31} As an initial matter, reiterating that appellant was convicted inter alia of aggravated murder, we note
{¶32} In State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647, 2013 WL 1777258, an appeal of an aggravated murder conviction, we reviewed the aforesaid statute and succinctly held as follows: “Pursuant to
{¶33} Appellant first maintains the trial court completely failed to consider the sentencing factors of
{¶34} Appellant secondly contends the trial court improperly “placed an unreasonable amount of weight” on a portion оf a letter from a family member of the aggravated murder victim, Brandy Daniels. Appellant‘s Brief at 15. The trial court stated: “I‘ve been a judge for many years. This is one of the quotes in the letter that struck me. It says: [‘] I beg you, do not go soft on the devil.[‘] Would you blame the family to feel any differently?” Sentencing Tr. at 8. However, at that point in the hearing, we observe the trial court had already clearly articulated that it had reviewed the pre-sentence investigation report, appellant‘s criminal record (including his two previous incarcerations and multiple robberies), and all the letters from Brandy‘s family. See Sentencing Tr. at 6-8.
{¶36} Appellant lаstly revisits his claim that the trial court should have sua sponte permitted appellant to withdraw his plea upon its decision not to follow the jointly recommended sentence. We find this claim is a challenge to the plea proceeding, not a sentencing issue, and it has previously been addressed in this opinion.
{¶37} Appellant‘s Third Assignment of Error is therefore оverruled.
IV.
{¶38} In his Fourth Assignment of Error, appellant contends the trial court erred in ordering him to pay restitution and court costs. We disagree.
Restitution
{¶39}
{¶40} In the case sub judice, while we recognize the trial court did not fully follow the joint recommendation when it came to the prison sentence, the specific restitution amount of $22,265.24 was part of the agreemеnt of the parties. See Plea Tr. at 5. In addition, appellant did not object to the trial court‘s restitution order or request a hearing on the issue. See Sentencing Tr. at 10-11. As such, we find he has waived all but plain error. See State v. Bauer, 5th Dist. Licking No. 11-CA-93, 2012-Ohio-2457, ¶ 7. The plain error rule is to be applied with utmost caution and invoked only under exceptional circumstances, in order tо prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 95, 372 N.E.2d 804. We are not inclined to do so under the aforementioned circumstances of the present case.
Court Costs
{¶41} In regard to court costs, we note
{¶42} Appellant‘s Fourth Assignment of Error is therefore overruled.
{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, P. J.
Hoffman, J., and
Baldwin, J., concur.
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