State v. Morris , 2022 Ohio 1318 ( 2022 )

[Cite as State v. Morris, 2022-Ohio-1318.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110782
v. :
RICHARD MORRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627807-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
SEAN C. GALLAGHER, A.J.:
Richard Morris appeals from multiple convictions stemming from his
pleading guilty and being sentenced to three sexual battery and four felonious
assault counts for engaging in sexual intercourse with four victims, one of whom was
a minor, without disclosing his HIV-positive status. For the following reasons, we
affirm.
Morris has not provided a recitation of pertinent facts as required
under App.R. 16(A)(6). According to the state, Morris engaged in sexual conduct
with four victims, at least two of whom “consented” to the sexual relationship but
were uninformed of Morris’s having tested positive for HIV. The other two victims
were a brother and sister who lived with Morris. Morris was involved in a
relationship with the sister but also failed to disclose his HIV status despite engaging
in sexual conduct. The brother was a juvenile under his sister’s care. During the
time period in which he was engaging in sexual conduct with the juvenile, Morris
attempted to attain custody of the juvenile, although he was already filling a
parental-type role.
After Morris pleaded guilty to two counts of sexual battery in violation
of R.C. 2907.03(A)(5) (third-degree felonies), a single count of felonious assault in
violation of R.C. 2903.11(B)(3) (a second-degree felony), a single count of sexual
battery in violation of R.C. 2907.03(A)(1) (a third-degree felony), and three counts
of felonious assault in violation of R.C. 2903.11(B)(1) (second-degree felonies), the
trial court sentenced Morris to an aggregate term of imprisonment of 23 years and
designated him as a Tier III sex offender. The court imposed the sentences on the
felonious assaults to be consecutively served, but only one of those sentences was
the maximum possible of eight years. The remaining three sentences were five-year
terms.
Following his sentencing hearing, Morris filed a pro se motion to
withdraw his plea, in which he claimed that his counsel of record refused to file a
motion to withdraw the guilty plea the day before the hearing. That motion was
denied. According to Morris, his attorney was not prepared for trial and promised
Morris that the guilty plea would result in Morris being sentenced to less time than
the 10-20 years the state was seeking. The remaining discussion was limited to
attacking his attorney’s personal and professional character. Nevertheless, it is
unclear whether the state was seeking a sentencing range of 10-20 years. At the
change-of-plea hearing, the parties did not discuss any agreement with respect to
sentencing as part of the plea deal, and at the sentencing hearing, the state requested
that the court impose the maximum possible sentence. Tr. 261, 267 (at the same
hearing, the state also requested a minimum term of imprisonment of “at least 15
years,” but that is still not the 10- to 20-year term Morris claims). In this case,
imposing consecutive maximum terms would have resulted in a 45.5-year aggregate
term of imprisonment. Morris’s counsel, on the other hand, argued for an aggregate
term of less than 10 years, again outside of the range that Morris claims to have
existed. Tr. 276.
Before addressing the merits of this delayed appeal, we note that
there are two orders discussed in the merit briefing, only one of which was included
in the notice of appeal. Morris was sentenced on June 29, 2021, and the court denied
the postsentence motion to withdraw his guilty plea on August 5, 2021. Morris filed
a delayed appeal seeking to appeal his final conviction on August 26, 2021, but the
only entry referenced therein was the final entry of conviction, and not the
subsequent order denying the postsentence motion to withdraw the guilty plea,
contrary to App.R. 3(D). Although all interlocutory rulings previous to the final
entry of conviction merge for the purposes of appellate review, postconviction
decisions are separate. Compare State v. Harris, 2d Dist. Clark No. 2020-CA-29,
2021-Ohio-1431, ¶ 7 (court’s ruling on an oral motion to withdraw a plea after the
announcement of the sentence was an interlocutory order that merged into the
subsequent judgment of conviction), with State v. Geraci, 8th Dist. Cuyahoga Nos.
101946 and 101947, 2015-Ohio-2699, ¶ 6, fn. 2 (noting the consolidation of two
appeals filed by the defendant, one from the final convictions and the other from the
denial of a postsentence motion to withdraw his guilty plea), and State v. McGraw,
8th Dist. Cuyahoga No. 96606, 2012-Ohio-174, ¶ 21-22 (failure to file a separate
appeal from the motion to withdraw a guilty plea that was filed after perfecting the
notice of appeal is jurisdictional, and the appellate court lacks authority to consider
the postconviction ruling).
The merit briefing addresses the trial court’s resolution of the
postconviction motion. Under App.R. 3(D) and Loc.App.R. 3(B)(1), the notice of
appeal must include a copy of the judgment or order from which the appeal is filed,
but the attachments are not a jurisdictional defect if the appeal is nonetheless timely.
Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 322, 649 N.E.2d 1229 (1995)
(the only jurisdictional requirement for filing a valid appeal is the timely filing of a
notice of appeal; all other defects are subject to discretionary sanctions); see also
Midland Funding L.L.C. v. Hottenroth, 2014-Ohio-5680, 26 N.E.3d 269, ¶ 4 (8th
Dist.) (applying the court’s local rules to the same effect). In light of the facts that
the state has not preserved the issue for further review, this court has jurisdiction
over the underlying case, and the notice of appeal was timely filed from the
postconviction motion, we will consider the matter on its merits in the exercise of
our discretion under App.R. 3 and Loc.App.R. 3.
In the first assignment of error, Morris claims that the trial court
erred by denying his postsentence motion to withdraw his guilty plea without a
hearing because of his claimed denial of the effective assistance of counsel during
and before the change-of-plea hearing.
“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.” Crim.R. 32.1. “Manifest injustice” is defined as a “fundamental flaw in
the path of justice so extraordinary that the defendant could not have sought redress
from the resulting prejudice through another form of application reasonably
available to him or her. It has also been defined as ‘a clear or openly unjust act,’
which exists only in extraordinary cases.” State v. Cottrell, 8th Dist. Cuyahoga No.
95053, 2010-Ohio-5254, ¶ 15, citing State v. Owens, 8th Dist. Cuyahoga No. 94152,
2010-Ohio-3881. In general, self-serving statements alleging the existence of a
constitutional deprivation are insufficient in and of themselves to demonstrate a
manifest injustice. State v. Robinson, 8th Dist. Cuyahoga No. 110358, 2022-Ohio-
82, ¶ 17; State v. Kirklin, 11th Dist. Portage No. 2021-P-0089, 2022-Ohio-435, ¶ 11;
State v. Dowers, 1st Dist. Hamilton No. C-180565, 2019 Ohio App. LEXIS 4609, 2
(Nov. 6, 2019); State v. Elko, 8th Dist. Cuyahoga No. 84602, 2005-Ohio-110, ¶ 11;
State v. Combs, 100 Ohio App.3d 90, 98, 652 N.E.2d 205 (1st Dist. 1994).
Appellate review of the denial of a postsentence motion to withdraw
a guilty plea occurs under the abuse-of-discretion standard of review. State v.
Straley, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 15, citing State v.
Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of the syllabus,
and State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.
“A trial court is not required to hold a hearing on every postsentence motion to
withdraw a guilty plea”; a hearing is required only “if the facts alleged by the
defendant, accepted as true, would require that the defendant be allowed to
withdraw the plea.” State v. D-Bey, 8th Dist. Cuyahoga No. 109000, 2021-Ohio-60,
¶ 57, citing State v. Norman, 8th Dist. Cuyahoga No. 105218, 2018-Ohio-2929, ¶ 16,
and State v. Vihtelic, 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶ 11. A court
will allow an offender to withdraw his plea only if he can establish that changing the
plea is necessary to avoid a manifest injustice. State v. Smith, 49 Ohio St.2d 261,
361 N.E.2d 1324 (1977); Crim.R. 32.1. The logic behind this guideline is to
discourage a defendant from pleading guilty to test the weight of a potential sentence
and later withdrawing the plea if the sentence is unexpectedly severe. State v.
Caraballo, 17 Ohio St.3d 66, 477 N.E.2d 627 (1985), citing State v. Peterseim, 68
Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).
In this case, Morris claims that he was deprived of effective assistance
of counsel before entering his guilty plea, and that that deprivation caused his plea
to be anything but knowingly, voluntarily, and intelligently entered. After reciting
the black-letter law regarding the ineffective assistance of counsel standard under
Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), Morris argues, in its entirety:
Here, if the facts alleged by Mr. Morris are accepted as true, the facts
would require that he be allowed to withdraw his guilty plea. Because
the trial court denied his Motion without a hearing, it necessarily
abused its discretion. In fact, it can be argued that the court did not
exercise any discretion at all because the court did not hold a hearing
to evaluate the allegations made by Mr. Morris. Because Mr. Morris
was not provided the opportunity to present evidence of his claims for
the court’s consideration, the court abused its discretion.
In his Motion, Mr. Morris argued that counsel should not have
encouraged him to enter into a plea before sharing all the discovery
with him and before gathering all relevant evidence which could have
been helpful to his defense. (See Defendant’s Motion to Withdraw
Guilty Plea). Further, the trial court should have granted a hearing on
this Motion to determine if in fact counsel fell below the objective
standard of reasonableness. If Mr. Morris’s allegations were true, and
counsel did fail to share discovery, and did fail to obtain exculpatory
evidence, then his conduct would have fallen below an objective
standard of reasonable representation which necessarily would have
implicated the knowing, intelligent and voluntary nature of his plea.
The trial court’s decision not to hold a hearing based on the allegation
contained in Mr. Morris’s Motion was an abuse of discretion.
In resolving Morris’s last attempt to have his appointed counsel removed for alleged
discovery issues during the three years of pretrial proceedings, and after he
submitted several pro se motions that were voluntarily withdrawn upon discussing
the issue with the trial court on the record, the trial court repeatedly remarked that
Morris’s attorney undertook extensive discovery review. Tr. 189-198. Morris’s
conclusory statements to the contrary that lack any analysis or discussion pertaining
to the trial court’s hearing, consideration, and conclusion on the discovery issue are
not sufficient to warrant further discussion. App.R. 16(A)(7).
Morris also claims that his trial counsel rendered ineffective
assistance because Morris believed he would receive a shorter sentence “based on
communications he had with his counsel.” According to Morris, his trial counsel
“promised” that the sentencing resulting from a guilty plea would be between 10-20
years, directly contradicting his statement to the contrary at the change-of-plea
hearing in which Morris unequivocally averred that no one “promised [him]
anything or threatened [him] in any way in order to get [him] to” plead guilty.
Tr. 244. The aggregate term of imprisonment in this case was 23 years, the
cumulative total of a single maximum term coupled with three mid-range sentences
on the second-degree felonious assault counts that all were consecutively imposed.
The sole question is whether that three-year aggregate difference amounts to
prejudice; in other words, whether Morris has demonstrated that but for the
difference between the trial counsel’s “promise” of 20 years and the 23-year
aggregate term of imprisonment actually imposed, Morris would have elected to
proceed to trial. State v. Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d
716, ¶ 78, citing Strickland at 687-688, 694, and State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Morris presents
the divided panel decision in State v. Davner, 2017-Ohio-8862, 100 N.E.3d 1247,
¶ 1 (8th Dist.), as being directly on point and the sole support of his claim.
In Davner, the defendant appeared for trial on charges of rape, but
his counsel of record indicated on the record that he was unprepared to proceed
because he assumed that the defendant would accept a plea offer first presented on
the morning of trial. Id. at ¶ 15. Davner’s attorney was paid $20,000 for the pretrial
proceedings and was to receive $1,000 a day should the matter proceed to trial. Id.
at ¶ 6. The rape charges were based on DNA evidence after Davner initially claimed
he did not have sexual contact with the victim. After the DNA evidence was
disclosed, Davner claimed the sexual conduct was consensual. During the pretrial
proceedings, Davner’s attorney “never responded to the state’s discovery request,
never filed any motions, never interviewed any witnesses and never hired an
investigator.” Id. at ¶ 8. Davner claimed “that he repeatedly told [his attorney] that
he was innocent and that he wanted to go to trial and did not want to plea.” Id. at
¶ 7. On the morning of the scheduled trial date, the state tendered its first plea offer.
Id. at ¶ 15. There was a limited time frame to accept that offer because the trial was
set to proceed within hours. Id.
The Davner majority concluded after considering the unique facts
and totality of the circumstances in this case, including the limited time frame in
which Davner was given to consider the state’s plea offers; the incomplete
information Davner received from counsel regarding judicial release; Davner’s
demonstrated lack of a full and complete understanding, prior to the plea hearing,
of the offenses to which he would be pleading guilty and the consequences of his
guilty pleas; the limited information Davner received regarding the nature of the
offenses and the effect of his guilty pleas at the plea hearing; counsel’s admission
that he was not prepared to try the case if Davner rejected the state’s plea offers; and
Davner’s testimony that, but for this confluence of events, he would not have entered
his guilty pleas, that it was necessary to withdraw the defendant’s plea to avoid a
manifest miscarriage of justice. Id. at ¶ 59.
The outcome of Davner is fact-dependent and not applicable to the
limited arguments advanced in this case. As the trial court expressly concluded in
this case, Morris’s attorney engaged in extensive discovery throughout the three-
year progression of the case, and nothing in the record indicates that Morris had a
limited time to consider the plea agreement or that his trial counsel was unprepared
for trial.
Morris next claims that a conflict of interest arose between his trial
counsel and him based on Morris’s attempt to force his attorney to withdraw from
the case. Morris filed at least two motions to disqualify his attorney of record, which
Morris voluntarily withdrew after having a discussion with the trial court. Tr. 149;
187. He also filed a grievance with the Ohio Supreme Court in an attempt to create
a conflict of interest requiring new counsel to be appointed a month before trial, at
which time Morris’s counsel stated that his withdrawal at that point would be
prudent unless he was going to be the trial attorney or the matter was further
delayed should new counsel be appointed. The court denied Morris’s request,
essentially reasoning that his attorney represented him for three years and raising
the issue a month before trial was dilatory more than substantive.
After reciting the black-letter law on conflicts of interest between
criminal defendants and their appointed attorneys, and detailing the procedural
history of Morris’s voluntarily withdrawn pro se motions filed in the underlying
proceedings, Morris claims, in its entirety, that
[h]ere the trial court did not conduct a meaningful examination of Mr.
Morris’s concerns, nor did the court consider how these concerns may
have affected his right to counsel. It is undeniable that Mr. Morris and
his Counsel had a conflict of interest after his filing a Grievance against.
[sic] Further, it appears from Defense Counsel’s Motion that he agreed
that he should have been removed as Counsel. The trial court failed to
consider this issue and abused its discretion when failing to remove
trial counsel as a result.
The record contradicts Morris’s claim. The trial court discussed and considered the
issue extensively in the pretrial proceedings and issued a judgment entry
memorializing the reason behind the decision. Tr. 189-198.
The short, conclusory paragraph of analysis Morris provided in
support of the assigned error is insufficient to warrant any detailed review. App.R.
16(A)(7). Contrary to Morris’s statement that the trial court failed to “meaningfully
consider” his argument, the trial court considered the matter on the record and
explained the reason for its decision. Tr. 189-198. In order to determine that the
trial court abused its discretion in denying Morris’s repeated attempts to delay
proceedings through seeking new appointed counsel because he harbored
discontent with the representation, this court would have to supplement the
arguments provided with our own analysis. This is not our role. State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78
(O’Donnell, J., concurring in part and dissenting in part).
Nonetheless, in support of that claim, Morris also cites State v. Smith,
5th Dist. Richland Nos. 94-CA-62 and 94-CA-64, 1995 Ohio App. LEXIS 4235, 5
(Aug. 28, 1995), in which the panel concluded that the trial court erred in failing to
conduct a hearing on whether a conflict existed between the defense attorney and
their client. Id. In a terse decision, the Fifth District panel provided in total:
In his first assignment of error, appellant claims the trial court erred in
denying counsel’s request to withdraw at the revocation hearing.
Appellant’s counsel stated that a conflict of interest existed because
appellant filed a grievance against him with the local bar association.
Pursuant to the case of State v. Gillard (1992), 64 Ohio St.3d 304, 595
N.E.2d 878, we find appellant’s first assignment of error well-taken.
The Gillard case imposes an affirmative duty upon the trial court to
inquire as to whether a conflict of interest actually exists. Id. at
syllabus. Where there is a right to counsel, there is also a correlative
right to representation free from conflicts of interest. Id.In the case sub judice, the trial court did not conduct a hearing to
determine whether a conflict of interest existed between appellant and
his trial counsel. The trial court noted in overruling counsel’s request
to withdraw that counsel was being paid by the court to represent
appellant, was an officer of the court, and should therefore be able to
discharge his duties. Tr. of Probation Revocation Hearing, July 18,
1994, p. 29.
The trial court had an affirmative duty to further explore the possibility
of a conflict of interest between appellant and his appointed trial
counsel as a result of the grievance appellant filed with the local bar
association. Appellant’s first assignment of error is sustained.
Id. at 5-6. Even if we could find that summary conclusion persuasive, in this case,
the trial court conducted a hearing by considering the matter on the record with all
parties present. Smith is factually distinct. The first assignment of error is
overruled.
In the final assignment of error, Morris claims that his consecutive
sentences are not supported by the record. Morris is HIV positive, but during his
sexual encounters, he failed to disclose that fact and had sexual intercourse with a
minor in violation of Ohio law. According to Morris, he did not actually infect any
of the victims and, therefore, his consecutive sentences are disproportionate to his
crimes.
We need not dwell on this argument. Morris was convicted of
felonious assault under R.C. 2903.11(B)(1) and (3): “no person with knowledge that
the person has tested positive as a carrier of a virus that causes acquired
immunodeficiency syndrome, shall knowingly” engage in sexual conduct with
another without disclosing that knowledge, or engaging in sexual conduct with a
minor. He also was convicted of sexual battery under R.C. 2907.03(A)(1) and (5):
“no person shall engage in sexual conduct with another * * * when” the offender
knowingly coerces or overcomes the will of the victim, or is the victim’s “natural or
adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis”
of the victim. In short, Morris’s argument that none of the victims became infected
with HIV and, therefore, the consecutive-sentencing findings are not clearly and
convincingly supported by the record, misses the point — his criminal conduct was
not dependent on that fact.
Felony sentences are reviewed under the standard provided in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. A reviewing court may overturn the imposition of consecutive sentences
only if it clearly and convincingly finds that either (1) “the record does not support
the sentencing court’s findings under * * * [R.C. 2929.14(C)(4)],” or (2) “the
sentence is otherwise contrary to law.” R.C. 2953.08. Before a trial court may
impose consecutive sentences, the court must make specific findings mandated by
R.C. 2929.14(C)(4) and then incorporate those findings in the sentencing entry.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The trial
court is not required to give a rote recitation of the statutory language. Id. “[A]s long
as the reviewing court can discern that the trial court engaged in the correct analysis
and can determine that the record contains evidence to support the findings,
consecutive sentences should be upheld.” Id. at ¶ 29. Appellate review of the
underlying findings is narrower. In order to reverse the imposition of consecutive
sentences, the defendant must clearly and convincingly demonstrate that the record
does not support the sentencing court’s findings under R.C. 2929.14(C)(4). State v.
Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 28.
In essence, Morris is asking for a de novo review of the imposition of
consecutive sentences without deference to the trial court’s findings and the totality
of the record. His sole focus is on an irrelevant fact, none of the victims were
infected, to the exclusion of the totality of the sentencing considerations. According
to the trial court, the victims suffered serious physical and psychological harm, with
the victims being unable to present themselves in the courtroom, instead having
family speak on their behalf. One of the victims, a minor, was under Morris’s care,
and Morris took steps to become the juvenile victim’s guardian, compounding the
seriousness of Morris’s conduct. Morris’s claim, that the victims were not harmed
by actually contracting HIV, rings hollow and fails to address the totality of the
sentencing considerations in this particular case. App.R. 16(A)(7). In light of the
limited arguments presented, we are unable to clearly and convincingly find that the
consecutive sentences are not supported by the record. The final assignment of
error is overruled.
Morris’s convictions are affirmed.
It is ordered that appellee recover from 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
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MICHELLE J. SHEEHAN, J., CONCUR