State v. Floyd , 2011 Ohio 558 ( 2011 )

[Cite as State v. Floyd , 2011-Ohio-558.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA14
:
vs. : Released: January 27, 2011
:
MICHAEL C. FLOYD, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Michael A. Davenport, Ironton, Ohio, for Appellant.
J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Robert. C.
Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio,
for Appellee.
_____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a plea entered, pursuant to a negotiated
plea agreement and agreed sentence, in the Lawrence County Court of
Common Pleas, by Appellant, Michael Floyd, to one count of assault on a
peace officer, a fourth degree felony, in violation of R.C. 2903.13(A)(C)(3).
On appeal, Appellant raises three purported assignments of error, although
only one is separately argued or briefed. Those assignments of error are as
follows: 1) the court erred in failing to sentence Appellant while he was
properly medicated and thus capable of knowingly and intelligently waiving
Lawrence App. No. 10CA14 2
his rights and entering a plea; 2) the court erred in failing to ascertain that
Mr. Floyd’s medications had not been properly and consistently
administered during the period between his return to the Lawrence County
jail and his sentencing hearing; and 3) at the time of sentencing, Appellant
was not capable of understanding the proceedings due to failure of the
responsible authorities to provide his needed psychiatric medications and to
schedule his hearing in a timely manner.
{¶2} Because Appellant did not separately argue or brief his first and
second purported assignments of error, we decline to address them. App.R.
12(A)(2). Further, because we conclude that Appellant did not move to
withdraw his plea at the trial court level, we are precluded from reviewing
the issue for the first time on appeal. As such, we overrule Appellant’s third
and final assignment of error. Accordingly, the judgment of the trial court is
affirmed.
FACTS
{¶3} Appellant was indicted on February 13, 2009, on charges of
assault on a peace officer, a fourth degree felony in violation of R.C.
2903.13(A)(C)(3), and resisting arrest, a first degree misdemeanor in
violation of R.C. 2921.33(B). Appellant entered joint pleas of not guilty and
not guilty by reason of insanity to the charges. On February 23, 2009, the
Lawrence App. No. 10CA14 3
trial court issued an order directing the evaluation of Appellant’s mental
condition at the time of the commission of the offenses. Thereafter, an
evaluation was conducted and on May 27, 2009, the results of the evaluation
by Shawnee Forensic Center were filed with court, indicating that the
evaluator was unable to conclude whether or not Appellant met the criteria
for a not guilty by reason of insanity plea.
{¶4} As a result, at a hearing conducted May 27, 2009, the parties
stipulated that Appellant was incompetent to stand trial, but that he was also
restorable to competency. Subsequently, by order dated June 8, 2009, the
trial court ordered that Appellant receive psychiatric stabilization and
restoration at Appalachian Behavioral Heathcare, a facility operated by the
Ohio Department of Mental Heath. On July 27, 2009, Appalachian
Behavioral Healthcare, drafted a letter to the trial court stating the Appellant
had been restored to competency. Thereafter, the trial court held a hearing
on July 31, 2009, wherein the parties stipulated to Appellant’s competency
based upon the report and the trial court permitted Appellant to withdraw his
previous plea of not guilty by reason of insanity.
{¶5} On August 19, 2009, a change of plea and sentencing hearing
was held. At the hearing, Appellant waived his right to a trial by jury both
in writing and orally on the record. He entered a plea of “Guilty. No contest
Lawrence App. No. 10CA14 4
guilty” pursuant to a negotiated plea agreement whereby the State agreed to
dismiss the misdemeanor charge and recommend four years of community
control and time served, in exchange for Appellant’s agreeing to plead to the
felony charge. The trial court accepted Appellant’s plea and sentenced him
accordingly, issuing its final, appealable order on August 21, 2009.
{¶6} On March 25, 2010, Appellant filed a motion for leave to file
appeal out of time. In the motion, Appellant stated that he suffered from a
lifelong mental disability for which he takes prescription medications and
that at the time of his sentencing, he had not been receiving his medications
in proper dosages or at all. By entry dated May 12, 2010, we granted
Appellant’ motion. On appeal, Appellant sets forth the following
assignments of error.
ASSIGNMENTS OF ERROR
“I. THE COURT ERRED IN FAILING TO SENTENCE MR. FLOYD
WHILE HE WAS PROPERLY MEDICATED AND THUS
CAPABLE OF KNOWINGLY AND INTELLIGENTLY WAIVING
HIS RIGHTS AND ENTERING A PLEA.
II. THE COURT ERRED IN FAILING TO ASCERTAIN THAT MR.
FLOYD’S MEDICATIONS HAD NOT BEEN PROPERLY AND
CONSISTENTLY ADMINISTERED DURING THE PERIOD
BETWEEN HIS RETURN TO THE LAWRENCE COUNTY JAIL
AND HIS SENTENCING HEARING.
III. AT THE TIME OF SENTENCING, THE APPELLANT WAS NOT
CAPABLE OF UNDERSTANDING THE PROCEEDINGS DUE TO
FAILURE OF THE RESPONSIBLE AUTHORITIES TO PROVIDE
Lawrence App. No. 10CA14 5
HIS NEEDED PSYCHIATRIC MEDICATIONS AND TO
SCHEDULE HIS HEARING IN A TIMELY MANNER.”
ANALYSIS
{¶7} As indicated above, Appellant did not argue his first and second
assignments separately in his brief, as required by App.R.16(A). Thus, in
accordance with App.R. 12(A)(2), we decline to address them.
{¶8} In his third assignment of error, Appellant contends that at the
time of sentencing, he was not capable of understanding the proceedings due
to failure of the responsible authorities to provide his needed psychiatric
medications and to schedule his hearing in a timely manner. Specifically,
Appellant alleges that he was without his prescription medications for at
least five days prior to his plea and sentencing hearing. These prescription
medications were ones prescribed in connection with Appellant’s restoration
to competency, in order to stand trial. As a result, he contends he was in a
state of diminished capacity and thought he was pleading to the
misdemeanor charge that was dismissed, rather than the felony charge upon
which he was ultimately convicted. Thus, Appellant essentially argues that
he did not knowingly and intelligently waive his constitutional rights and
seeks withdrawal of his plea on that basis.
{¶9} Initially, we question whether Appellant can pursue this appeal,
considering that that R.C. 2953.08(D) normally bars a defendant from
Lawrence App. No. 10CA14 6
appealing a jointly recommended sentence that has been accepted by the trial
judge, as is the case sub judice. However, because Appellant is arguing that
his plea was invalid, R.C. 2953.08, which deals solely with sentencing, is
not controlling. State v. Gibson, Mahoning App. No. 07MA98, 2008-Ohio-
4518 at ¶ 7 (reasoning that the challenge of plea agreement is not governed
by R.C. 2953.08); See, also, State v. Royles, Hamilton App. No. C-060875-
76, 2007-Ohio-5348 at ¶10 (noting that while an appellate court cannot
review and agreed sentence, it can review the validity of the plea leading to
the agreed sentence).
{¶10} Nonetheless, before reaching the merits of Appellant’s assigned
error, we also note that Appellant, having never moved for withdrawal of his
plea at the trial court level, is challenging the validity of his plea for the first
time on appeal. In State v. Sumes, the fifth district court of appeals was
confronted with a similar situation, wherein the appellant, having never filed
a motion to withdraw his plea at the trial court level, claimed for the first
time on appeal that his plea was involuntary. Stark App. No. 2001CA00196,
2002-Ohio-1582. In Sumes, the court stated as follows:
“We note that appellant makes this argument for the first time on appeal.
The record and transcript of the plea hearing indicate that appellant never
made any request in the trial court to withdraw his guilty plea prior to or
following sentencing as required by Crim.R. 32.1. Failure to assert an
alleged error in the trial court waives that error on appeal. State v. Awan
(1986), 22 Ohio St.3d 120, 122, 489 N.E.2d 277.”
Lawrence App. No. 10CA14 7
As in Sumes, Appellant herein failed to seek a withdrawal of his plea either
before or after sentencing at the trial court level. Thus, we are precluded
from reviewing that issue for the first time on appeal.
{¶11} We are mindful that in other cases, such as State v. Ketterer,
111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48 and State v. Ferguson,
108 Ohio St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, the Supreme Court
of Ohio addressed requests for withdrawal pleas on appeal, with no apparent
request having previously been made at the trial court level. However, we
note that in each of those cases, arguments were raised regarding ineffective
assistance of counsel, which inquiry involves a separate test that questions
whether the plea would have been made but for the ineffective assistance of
counsel. Because ineffective assistance of counsel has not been raised in the
present appeal, we find the aforementioned cases to be factually
distinguishable, and instead find Sumes to be more factually on point.
{¶12} We also note, for the record, that the only actual evidence
Appellant offers in support of his argument that he was without his
medication for five days prior to sentencing, is in the form of an
Appalachian Behavioral Healthcare Discharge Summary, which appears in
the appendix of Appellant’s brief. However, we note that this document was
not made part of the record below and, had we reached the merits of the
Lawrence App. No. 10CA14 8
appeal, we would not have been permitted to consider it, as it was not
properly before us.
{¶13} In light of the foregoing, Appellant’s third assignment of error
is overruled. Accordingly, we affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Lawrence App. No. 10CA14 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Lawrence County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Harsha, P.J. and Abele, J.: Concur in Judgment Only.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.