State v. Leonard , 2017 Ohio 8421 ( 2017 )

[Cite as State v. Leonard, 2017-Ohio-8421.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27411
:
v. : T.C. NO. 16-CR-1078
:
THOMAS E. LEONARD : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of November, 2017.
...........
HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142 and DOUGLAS D. BRANNON, Atty.
Reg. No. 0021657, 130 W. Second Street, Suite 900, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Thomas E. Leonard pled guilty in the Montgomery County Court of Common
Pleas to one count of aggravated vehicular homicide, a felony of the third degree. The
trial court sentenced him to 48 months in prison and suspended his driver’s license for 10
years; the court did not fine Leonard or order restitution or court costs. Leonard appeals
from his conviction, claiming that his trial attorney provided ineffective assistance. For
the following reasons, the trial court’s judgment will be affirmed.
I. Background and Procedural History
{¶ 2} According to the presentence investigation report (PSI), around 7:20 a.m. on
August 26, 2015, Leonard drove his Ford F-350 southbound on Interstate 75 in
Montgomery County. Witnesses saw Leonard weaving in and out of traffic, driving at a
high rate of speed, and causing several near-crashes. As Leonard proceeded down the
highway, “he swiped another vehicle, causing the right-side mirror of that vehicle to be
destroyed.” Leonard continued from that crash without stopping.
{¶ 3} Near the exit for Ohio State Route 725, Leonard attempted to pass a vehicle
that was driving in the right-hand lane. While attempting to pass the vehicle, Leonard
drove on the right shoulder and collided with a 2003 Audi that was pulled over to the side
of the highway, with its hazard lights illuminated. Witnesses noted that no brake lights
were initiated on Leonard’s truck. Mitchell Munoz, the driver of the Audi, was inside his
vehicle, waiting for roadside assistance for a flat tire.
{¶ 4} The PSI further stated: “Upon impact, Mr. Leonard’s vehicle suffered heavy
damage to the right front corner and then overturned[,] sliding for an extended distance
on the roof. The 2003 Audi was noted as being demolished[,] as the vehicle suffered
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severe damage as a result of being run over and struck by Mr. Leonard’s vehicle. The
rear end and roof of the vehicle were separated from the car as a result of the crash.”
Leonard was transported to the hospital; Munoz was killed by the collision and declared
dead at the scene. Blood tests at the hospital indicated the presence of cocaine and
opiates in Leonard’s blood.
{¶ 5} On June 1, 2016, Leonard was indicted for aggravated vehicular homicide.
On June 21, 2016, Leonard’s counsel filed a motion requesting “all relevant documents
related to the entire crash reconstruction report” be produced; counsel itemized 22 items
that were included in the request. On June 27, 2016, Leonard’s counsel requested a
continuance due to the “accident reconst[ruction] [report].” The trial court granted a
continuance until July 21, 2016. On July 19, 2016, defense counsel filed a request for
discovery, pursuant to Crim.R. 16(B).
{¶ 6} On July 29, 2016, the trial court set a final pre-trial conference for November
3, 2016, and scheduled the trial for November 14, 2016.
{¶ 7} On November 9, 2016, Leonard pled guilty to the charged offense of
aggravated vehicular homicide; the parties had no agreement as to sentencing.
(Leonard faced a possible maximum penalty of 60 months in prison, a fine up to $10,000,
and a Class 2 driver’s license suspension (3 years to life), plus restitution and court costs.)
The trial court accepted Leonard’s guilty plea, ordered a presentence investigation, and
scheduled a sentencing hearing for December 16, 2016. The State subsequently filed a
sentencing memorandum, detailing the circumstances of the collision and requesting a
maximum sentence. Defense counsel sent a letter to the presentence investigator,
advocating for “community control with a commitment to a lengthy drug treatment
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program.” Counsel’s letter is part of the PSI.
{¶ 8} At the sentencing hearing, the trial court heard from members of Munoz’s
family, defense counsel, and Leonard, and it indicated that it had reviewed the
presentence investigation report and the State’s sentencing memorandum. As stated
above, the trial court imposed 48 months in prison and suspended Leonard’s driver’s
license for 10 years. Leonard appeals.
II. Ineffective Assistance of Counsel
{¶ 9} In his sole assignment of error, Leonard claims that his retained counsel
rendered ineffective assistance in two respects. He argues that his counsel failed to file
any motions in his defense, other than a request for discovery, and that his counsel
advised him to plead guilty to the charged offense without any agreement as to sentencing
or any other incentive to plead guilty.
{¶ 10} We review alleged instances of ineffective assistance of trial counsel under
the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial
counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland, 466 U.S. at 688.
{¶ 11} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
See id.; Bradley at 142. A debatable decision concerning trial strategy cannot form the
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basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 516,
524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, __ N.E.3d __, ¶ 38 (2d
Dist.).
{¶ 12} Leonard’s argument focuses on the fact that his trial counsel filed “one
document” and then “five months later, trial counsel advised Mr. Leonard to plead guilty
to the precise crime he had been charged with, with no agreement from the prosecution
to reduce the severity of the charge, or even recommend a reduced sentence.” Leonard
likens his attorney’s conduct to a “complete lack of action.”
{¶ 13} A plea of guilty is a complete admission of guilt. E.g., State v. Faulkner, 2d
Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9. Consequently, a guilty plea
waives all appealable errors, including claims of ineffective assistance of counsel, except
to the extent that the errors precluded the defendant from knowingly, intelligently, and
voluntarily entering his or her guilty plea. E.g., State v. Frazier, 2016-Ohio-727, 60
N.E.3d 633, ¶ 81 (2d Dist.). If a defendant pleads guilty on the advice of counsel, he
must demonstrate that the advice was not “within the range of competence demanded of
attorneys in criminal cases.” (Citations omitted.) Frazier at ¶ 81. Furthermore, “[o]nly if
there is a reasonable probability that, but for counsel’s errors, the defendant would not
have pleaded guilty but would have insisted on going to trial will the judgment be
reversed.” State v. Huddleson, 2d Dist. Montgomery No. 20653, 2005-Ohio-4029, ¶ 9,
citing Hill v. Lockhart, 474 U.S. 52, 52-53, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). (Other
citations omitted.)
{¶ 14} The trial court conducted a plea hearing in accordance with Crim.R. 11.
Leonard expressed that he was “voluntarily and of his own free will” pleading to
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aggravated vehicular homicide, and he indicated that he understood that there was no
agreement as to sentencing. There is nothing in the plea hearing transcript or the record
as a whole that suggests that Leonard’s attorney engaged in any conduct that rendered
Leonard’s plea other than knowing, intelligent, and voluntary.
{¶ 15} Moreover, we find nothing in the record to suggest that defense counsel
acted deficiently. Leonard complains that his attorney failed to file additional motions,
but he has not suggested what additional motions should have been filed. Leonard also
claims that his attorney was ineffective in advising him to plead guilty, but there is nothing
in this record expressly indicating that defense counsel advised Leonard to plead guilty.
It is possible that it was Leonard, not his attorney, that preferred a plea, perhaps to avoid
the victim’s family from having to testify or in order to accept responsibility for his actions.
{¶ 16} Even if counsel had advised Leonard to plead guilty to the charged offense,
the record suggests that such advice was a reasonable strategy. The record reflects that
trial counsel requested and received extensive discovery from the State, including, among
other things, the crash report, the accident reconstruction report, witness statements,
laboratory reports, vehicle service records, the EMS run report for Leonard, information
from Leonard’s employer, a DVD containing the Montgomery County Coroner’s Office’s
scene and autopsy photographs, a DVD containing the Ohio State Highway Patrol’s crash
scene photographs, a DVD containing surveillance video from the ODOT camera located
at Interstate 75 and State Route 725, and curriculum vitae of the crash reconstructionist
and coroner. (See Doc. #21, 29, 30, 71.)
{¶ 17} At sentencing, the trial court read aloud portions of the section of the State’s
sentencing memorandum that detailed some of the witness statements. The trial court
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read:
“A grandmother-to-be was speeding home to Kentucky that morning
for the birth of her grandchild. She admitted she was driving 80 miles per
hour on I-75 South when a dually truck1 sped past her, driving on the rumble
strips in the right-side emergency lane. She saw the truck drive into her
lane ahead of her, then drive back into the emergency lane, and then back
onto the interstate, and then back into the emergency lane where she saw
the truck rear-end a car that was in the emergency lane.”
* * * “A retired truck driver was driving his wife to work that morning,
when they came in contact with the defendant’s lethal driving. His wife was
so impacted by defendant’s driving, she typed up a statement that same
morning. She reported that a dually truck whizzed past them in the middle
lane going extremely fast. And she boldened [sic] and upper-cased the
word, ‘extremely’ in her statement. She thought that she and her husband
had just merged into some kind of high-speed chase, but then realized that
she was wrong when she saw that no pursuit vehicles were flashing lights.”2
Another driver was headed for class that morning in Wilmington. He
reports the defendant almost clipped his van as the defendant passed by
1
A “dually” truck is a pickup truck that has dual rear wheels on each side. Matthew
Suedkamp, What Is a Dually Truck?, https : // itstillruns . com /dually –truck -6962287
.html (accessed Sept. 2017).
2
This sentence of the sentencing memorandum actually reads, “She thought that she
and her husband had just merged into some kind of high speed chase but then realized
she was wrong when she saw no pursuit vehicles with flashing lights.” (Emphasis
added.)
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driving in the grass berm and then cut over in front of him. He reports
seeing the defendant hit the left side of another pickup truck and then return
to driving in the grass berm. He reports seeing a car stopped in the far-
right safety lane with his hazard lights on. He then saw the defendant veer
into the safety lane and strike the parked car without hitting his brakes, and
then sending the parked car down into the ditch. He estimated the
defendant was driving 90 to 100 miles per hour as he passed people in the
grass.
And a witness from Tipp City was driving on southbound I-75 and
headed to work. She spotted a dark dually truck speeding past her, driving
over the rumble strips in the emergency lane. She was driving about 70
miles per hour. She felt the highway shaking as he sped past her.
Another witness from Tipp City reports first spotting defendant on
south I-75 after driving past State Route 35. She reports the defendant
was driving very fast and switching lanes and driving on the shoulder of the
highway, and also in the grass. She estimated the defendant drove in this
lethal manner, in and out of traffic, for at least five to ten miles before
crashing into the rear of a disabled vehicle stopped in the shoulder with its
flashers on.
(Footnotes added.)
{¶ 18} The trial court also read a portion of the State’s sentencing memorandum
that detailed the traffic reconstruction results. The court read:
“The crash report calculated that the severely damaged Audi, Mr. [Mitchell]
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Munoz’s car, reached a post-impact speed of 49 to 54 miles per hour from
the force of the collision. The traffic crash expert calculated that at the
point of impact when defendant crashed into the rear of Mitchell’s stopped
Audi, defendant’s truck was travelling at a speed of 108 to 117 miles per
hour. The posted speed limit is 65 miles per hour. There was no sign of
breaking prior to the impact.”
{¶ 19} Although the discovery received by defense counsel is not in the record,
defense counsel did not object to the trial court’s statements at the sentencing hearing or
otherwise indicate that the facts as set forth in the PSI and the State’s sentencing
memorandum were inaccurate.
{¶ 20} In the light of the factual circumstances, as presented in the PSI and
sentencing memorandum, defense counsel could have reasonably concluded that
Leonard did not have a reasonable chance of success at trial and that Leonard’s best
option was to plead guilty, express remorse, and seek leniency from the trial court at
sentencing. The State’s sentencing memorandum sought a maximum sentence, and
there is no indication in the record that the State would have agreed to a plea to a reduced
charge or to a lesser sentence. Based on the record before us, defense counsel
engaged in a reasonable strategy, which we will not second-guess.
{¶ 21} Leonard’s assignment of error is overruled.
III. Conclusion
{¶ 22} The trial court’s judgment will be affirmed.
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WELBAUM, J. and TUCKER, J., concur.
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Copies mailed to:
Heather N. Jans
Matthew C. Schultz
Douglas D. Brannon
Hon. Dennis J. Langer