State v. Brown , 2022 Ohio 893 ( 2022 )

[Cite as State v. Brown, 2022-Ohio-893.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ROY WILTON BROWN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0012
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 19 CR 249
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Daniel P. Fry, Assistant
Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for Plaintiff-
Appellee
Roy Wilton Brown, Pro Se, # 785-299, Lebanon Correctional Institution, P.O. Box 56,
Lebanon, Ohio 45036. Atty. Louis DeFabio, 4822 Market Street, Suite 220, Boardman,
Ohio 44512, and Atty. Alexander Keane, P.O. Box 92, Canfield, Ohio 44406, for
Defendant-Appellant.
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Dated: March 21, 2022
D’Apolito, J.
{¶1} Appellant, Roy W. Brown, appeals from the February 18, 2021 judgment of
the Belmont County Court of Common Pleas consecutively sentencing him to seven years
in prison for tampering with evidence, possession of heroin, and possession of cocaine
following a guilty plea. On appeal, Appellant argues (1) the trial court erred in denying
his pre-sentence motion to withdraw his guilty plea following a hearing on the basis that
his initially retained trial counsel’s assistance was ineffective; and (2) that his second
retained trial counsel (counsel that filed and argued his motion to withdraw guilty plea)
also rendered ineffective assistance. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On July 24, 2019, deputies with the Belmont County Sheriff’s Department
went to Lansing Gardens Apartment C-4 to serve an arrest warrant on the tenant, Brittany
Foster. Upon arrival, the deputies knocked on the door but no one answered. The
deputies heard footsteps and rustling inside. Upon entering, the deputies heard glass
breaking. Appellant, who was inside Foster’s apartment, broke through a bedroom
window and fled.
{¶3} The deputies began a foot pursuit. Appellant was ordered to stop on
multiple occasions but failed to comply. During his flight, Appellant was observed
discarding multiple items including drugs and drug paraphernalia from his person as he
ran through the neighborhood. Appellant was ultimately tasered and arrested.
{¶4} On November 8, 2019, Appellant was indicted by the Belmont County
Grand Jury on five counts: count one, aggravated trafficking in drugs, a felony of the first
degree, in violation of R.C. 2925.03(A)(1)(C)(1)(e), with an R.C. 2941.1417(A) forfeiture
specification; count two, tampering with evidence, a felony of the third degree, in violation
of R.C. 2921.12(A)(1)(B); count three, aggravated possession of drugs, a felony of the
first degree, in violation of R.C. 2925.11(A)(C)(1)(d); count four, possession of heroin, a
felony of the second degree, in violation of R.C. 2925.11(A)(C)(6)(d); and count five,
possession of cocaine, a felony of the fifth degree, in violation of R.C.
Case No. 21 BE 0012
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2925.11(A)(C)(4)(a). Appellant, through his initially retained trial counsel, pled not guilty
at his arraignment.1
{¶5} Discovery was provided to Appellant and his initial trial counsel. (1/2/2020
Judgment Entry). On January 27, 2020, Appellant filed a motion to suppress. At the
scheduled hearing, Appellant and Appellee, the State of Ohio, advised the trial court that
a resolution had been reached and the matter was converted to a plea proceeding.
{¶6} On February 26, 2020, Appellant withdrew his former not guilty plea and
pled guilty to count two, tampering with evidence, a felony of the third degree, in violation
of R.C. 2921.12(A)(1)(B); an amended count four, possession of heroin, a felony of the
third degree, in violation of R.C. 2925.11(A)(C)(6)(c); and count five, possession of
cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A)(C)(4)(a). The trial
court accepted Appellant’s guilty plea after finding it was made in a knowing, intelligent,
and voluntary manner pursuant to Crim.R. 11 and dismissed counts one and three. The
court ordered a PSI and deferred sentencing2. Due to the Covid-19 pandemic, the
sentencing hearing was continued several times.
{¶7} Appellant’s initial trial counsel withdrew. On October 2, 2020, Appellant’s
second retained trial counsel filed a notice of appearance. Appellant’s initial trial counsel
was ordered by the trial court to provide a copy of the case file to Appellant’s second trial
counsel. (11/3/2020 Judgment Entry). Appellant’s second trial counsel advised the trial
court that he received discovery from Appellant’s initial trial counsel and from the State.
(12/2/2020 Judgment Entry).
{¶8} On January 25, 2021, Appellant, through his second retained trial counsel,
filed a motion to withdraw his guilty plea. The State filed a response in opposition. A
hearing was held on January 28, 2021. Appellant was the only witness to testify.
{¶9} According to Appellant, his initial trial counsel showed him a video of
Appellant jumping out of the apartment window and fleeing on foot. (1/28/21 Motion to
Withdraw Hearing T.p., 15). As stated, the deputies chased Appellant and ordered him
1 Appellant had two different attorneys-of-record represent him at the trial court level.
2 The PSI includes Appellant’s numerous prior misdemeanor and felony offenses which span three pages
in length.
Case No. 21 BE 0012
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to stop several times but he failed to comply. During his flight, Appellant was observed
discarding drugs and drug paraphernalia from his person as he ran through the
neighborhood. Appellant was ultimately tasered and arrested. Appellant testified his
initial trial counsel told him the case was not winnable and that he could face 20 years in
prison. (Id. at 15-18). Appellant said he was told by an inmate that he should have
received his motion for discovery. (Id. at 15). Appellant made a general assertion that if
he had the opportunity to review discovery, he would have never signed the plea
agreement. (Id. at 20). Appellant claimed he only had an opportunity to review the
evidence after retaining his second trial counsel. (Id.)
{¶10} Following the hearing, the trial court denied Appellant’s motion to withdraw
his guilty plea.
{¶11} On February 18, 2021, the trial court consecutively sentenced Appellant
based upon his previously entered guilty plea to 36 months on count two, tampering with
evidence, 36 months on amended count four, possession of heroin, and 12 months on
count five, possession of cocaine, for a total of seven years in prison. Appellant was
given 170 days of jail-time credit.
{¶12} Appellant filed this appeal and raises two assignments of error.3
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT DENIED MR. BROWN’S MOTION
TO WITHDRAW GUILTY PLEA ON THE BASIS OF INEFFECTIVE
ASSISTANCE OF COUNSEL.
{¶13} Appellant argues the trial court erred in denying his pre-sentence motion to
withdraw his guilty plea following a hearing on the basis that his initially retained trial
counsel’s assistance was ineffective.
An appellate court reviews the disposition of a motion to withdraw a guilty
plea for an abuse of discretion. State v. Carabello, 17 Ohio St.3d 66, 67,
3On appeal, Appellant claims both of his trial court level attorneys were ineffective. Appellate counsel was
appointed but after filing Appellant’s brief, that attorney withdrew. Appellant is now being represented by
his fourth attorney.
Case No. 21 BE 0012
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477 N.E.2d 627 (1985). “Abuse of discretion means an error in judgment
involving a decision that is unreasonable based upon the record; that the
appellate court merely may have reached a different result is not
enough.” State v. Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶ 21.
State v. Brewer, 7th Dist. Mahoning No. 14 MA 0127, 2016-Ohio-3224, ¶ 10.
Even though the general rule is that motions to withdraw guilty pleas before
sentencing are to be freely allowed and treated with liberality, * * * still the
decision thereon is within the sound discretion of the trial court. * * * Thus,
unless it is shown that the trial court acted unjustly or unfairly, there is no
abuse of discretion. * * * One who enters a guilty plea has no right to
withdraw it. It is within the sound discretion of the trial court to determine
what circumstances justify granting such a motion. * * * (Internal citations
omitted.)
State v. Muldrow, 7th Dist. Mahoning Nos. 19 MA 0124 and 19 MA 0125, 2020-Ohio-
4815, ¶ 15, quoting State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992); Crim.R.
32.1.
“It is well-settled that in order to establish a claim of ineffective assistance
of counsel, appellant must show two components: (1) counsel’s
performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defense.” State v. Price, 3d
Dist. No. 13-05-03, 2006-Ohio-4192, ¶ 6, citing State v. Kole (2001), 92
Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
In the context of a guilty plea, the defendant must demonstrate that “there
is a reasonable probability that, but for his counsel’s deficient or
unreasonable performance, the defendant would not have pled guilty” and
would have insisted on going to trial. Xie, 62 Ohio St.3d at 524, 584 N.E.2d
715; citing Hill v. Lockhart (1985), 474 U.S. 52, 58-59, 106 S.Ct. 366, 88
L.Ed.2d 203. See, also, State v. Schmidt, 3d Dist. No. 15-05-18, 2006-Ohio-
Case No. 21 BE 0012
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2948, ¶ 32; State v. Dudas, 11th Dist. Nos. 2007-L-140 and 2007-L-141,
2008-Ohio-3262, ¶ 89.
State v. McQueen, 7th Dist. Mahoning No. 08 MA 24, 2008-Ohio-6589, ¶ 15-16.
{¶14} “Tactical or strategic trial decisions do not generally constitute ineffective
assistance.” State v. Gawron, 7th Dist. Belmont No. 20 BE 0009, 2021-Ohio-3634, ¶ 94,
citing State v. Frazier, 61 Ohio St.3d 247, 255 (1991). “Rather, the errors complained of
must amount to a substantial violation of counsel’s essential duties to his client.” Gawron
at ¶ 94, citing State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
{¶15} In this case, Appellant was represented by his initially retained trial counsel
during the February 25, 2020 change of plea hearing. At that hearing, Appellant indicated
he had completed his GED, could read and write, was not under the influence of drugs or
alcohol, and was entering his guilty plea voluntarily and free from force or coercion.
(2/25/2020 Plea Hearing T.p., 5-6). Appellant further acknowledged on the record that
he was satisfied with the representation he received from his initial trial counsel with
respect to his guilty plea. The following exchange took place between Appellant and the
trial judge:
THE COURT: Has your attorney explained everything to you and answered
all of your questions?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with his advice and competence?
THE DEFENDANT: Yes, sir, Your Honor.
***
THE COURT: Have you reviewed the Plea Agreement * * * with your
attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you understand all of its terms?
Case No. 21 BE 0012
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THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you discussed those terms with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Are you satisfied with his advice regarding that Plea
Agreement?
THE DEFENDANT: Yes, Your Honor.
***
THE COURT: What plea do you enter, sir, to the three counts remaining;
the two counts, plus the one as amended?
THE DEFENDANT: Guilty, Your Honor.
(2/25/2020 Plea Hearing T.p., 6-9)
{¶16} As stated, Appellant was indicted on five counts, retained his initial trial
counsel, and pled not guilty. Appellant later withdrew his not guilty plea and pled guilty
to three counts: count two, tampering with evidence, a felony of the third degree, in
violation of R.C. 2921.12(A)(1)(B); an amended count four, possession of heroin, a felony
of the third degree, in violation of R.C. 2925.11(A)(C)(6)(c); and count five, possession of
cocaine, a felony of the fifth degree, in violation of R.C. 2925.11(A)(C)(4)(a). The trial
court accepted Appellant’s guilty plea after finding it was made in a knowing, intelligent,
and voluntary manner pursuant to Crim.R. 11 and dismissed counts one and three. Thus,
Appellant’s decision to enter a guilty plea to three of the five counts was a tactical decision
made by him with the advice of his initial trial counsel, which resulted in a sentencing
benefit to him as he faced more years in prison. See Gawron, supra, at ¶ 94.
{¶17} Notwithstanding the fact that the record clearly establishes that Appellant
was satisfied with the representation from his initial trial counsel, he claims that his
attorney failed to provide him with complete discovery before he entered his guilty plea
on February 26, 2020. Again, however, the record reveals that discovery had been
Case No. 21 BE 0012
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provided to Appellant and his initial trial counsel prior to the trial court’s January 2, 2020
judgment entry.
{¶18} Appellant further claims he and his family had trouble communicating with
his initial trial counsel. Appellant claims his second trial counsel also had trouble
communicating with his initial trial counsel. Appellant asserts that discovery materials,
that he was only made privy to later on, would have negated his decision to enter his
guilty plea. However, Appellant failed to identify what specific evidence, if any, would
have somehow changed his mind. Thus, Appellant’s claim is completely uncorroborated
as he offered no evidence to the trial court that in any way supported it. Yet, Appellant
requested that the trial court allow him to withdraw his guilty plea but now argues before
this court that the trial court’s decision was error based upon his claim of ineffective
assistance of counsel. Appellant also offers no evidence to this court to support this
claim.
{¶19} Prior to the current proceeding, Appellant had numerous misdemeanor and
felony offenses beginning in 2004. Again, the PSI includes all of Appellant’s offenses
which span three pages in length. To somehow suggest that Appellant was
unknowledgeable about the criminal and discovery process, as he now asserts, is
unconvincing. In addition, Appellant’s acknowledgement alone that he was satisfied with
his initial trial counsel’s representation contradicts his claims underlying his argument on
appeal that counsel rendered ineffective assistance.
{¶20} Accordingly, the record before us does not reveal that Appellant’s initial trial
counsel was ineffective. Pursuant to Strickland, supra, Appellant fails to show that his
initial trial counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Appellant’s motion to withdraw his guilty plea was properly
considered and the trial court did not abuse its discretion in denying it.
{¶21} Appellant’s first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
MR. BROWN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT
THE HEARING ON THE MOTION TO WITHDRAW GUILTY PLEA.
Case No. 21 BE 0012
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{¶22} Appellant contends his second trial counsel (counsel that filed and argued
his motion to withdraw guilty plea) also rendered ineffective assistance. Specifically,
Appellant asserts he suffered prejudice because his second trial counsel undermined his
motion, failed to subpoena his initial trial counsel, and referred to his initial trial counsel
as a “Super Lawyer.”4
{¶23} As addressed in his first assignment of error concerning ineffective
assistance of counsel, Appellant also fails under this assignment to prove either prong
under Strickland.
{¶24} Like his initial trial counsel, Appellant’s second trial counsel was also
retained by him. Appellant’s second trial counsel filed a notice of appearance on October
2, 2020. Appellant’s initial trial counsel was ordered by the trial court to provide a copy
of the case file to Appellant’s second trial counsel. (11/3/2020 Judgment Entry).
Appellant’s second trial counsel advised the trial court that he, in fact, received discovery
from Appellant’s initial trial counsel and from the State. (12/2/2020 Judgment Entry).
{¶25} Appellant’s motion to withdraw his guilty plea was filed on January 25, 2021.
The motion was filed and argued by Appellant’s second trial counsel. Before filing the
motion, Appellant’s second trial counsel and Appellant had been given full access to all
discovery materials. The motion was heard by the trial court and denied on January 28,
2021. There was no evidence presented at the hearing which, in any way, would have
supported Appellant’s speculative claim that but for his inability to review discovery
evidence earlier, he would not have entered a guilty plea on February 26, 2020.
{¶26} Upon consideration, the record before us does not establish that Appellant’s
second trial counsel was ineffective. Pursuant to Strickland, supra, Appellant fails to
show that his second trial counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Appellant’s motion to withdraw his guilty plea was
properly considered and the trial court did not abuse its discretion in denying it.
{¶27} Appellant’s second assignment of error is without merit.
4 Appellant’s second trial counsel’s reference was proper as Appellant’s initial trial counsel has been
licensed to practice law since 1994, is a top rated criminal defense attorney, and was in fact selected to
Super Lawyers in 2021. (State’s Exhibit A).
Case No. 21 BE 0012
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CONCLUSION
{¶28} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The judgment of the Belmont County Court of Common Pleas is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.
Case No. 21 BE 0012
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For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0012