State v. Monford

[Cite as State v. Monford, 131 Ohio St.3d 40, 2011-Ohio-6398.]

THE STATE OF OHIO, APPELLEE, v. MONFORD, APPELLANT.

[Cite as State v. Monford, 131 Ohio St.3d 40, 2011-Ohio-6398.]

Appeal dismissed as improvidently accepted.

(No. 2010-1949—Submitted October 5, 2011—Decided December 15, 2011.)

APPEAL from the Court of Appeals for Franklin County, No. 09AP-274,

2010-Ohio-4732.

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{¶ 1} The cause is dismissed, sua sponte, as having been improvidently

accepted.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, and CUPP, JJ., concur.

LUNDBERG STRATTON, LANZINGER, and MCGEE BROWN, JJ., dissent.

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LANZINGER, J., dissenting.

{¶ 2} I respectfully dissent from the court’s decision to dismiss this

appeal as having been improvidently accepted. Although a conflict was not

certified in this case, it is clear from the parties’ briefs that two distinct

perspectives exist on the issue of whether the failure of a trial court to address a

plea of not guilty by reason of insanity (“NGRI”) entered and not withdrawn by a

defendant constitutes structural error. Appellant, LaRue Monford, advances the

opinion of the Third District Court of Appeals in State v. Cihonski, 178 Ohio

App.3d 713, 2008-Ohio-5191, 900 N.E.2d 212, ¶ 23, in which the court held that

a trial court’s failure to notify the jury of the defendant’s NGRI plea constituted

structural error and warranted reversal. Appellee, the state of Ohio, asserts that

the Tenth District correctly decided that Cihonski is inapplicable to this case and

that no structural error occurred.

SUPREME COURT OF OHIO

{¶ 3} While I agree with the Tenth District that failure to withdraw an

NGRI plea is not a structural error, the opposing viewpoints in this case highlight

a need for guidance from this court on this issue of law. Appellant’s brief

contains examples of other defendants who have similarly failed to withdraw this

type of plea, and it is likely that this situation will arise in the future. In the

interest of judicial economy, I would address the issue now that it has been fully

presented to us, and I would affirm the judgment of the court of appeals and hold

that while a plea of NGRI should be withdrawn if it is not intended to be relied

upon by the defense, the mere failure to state the withdrawal of the plea on the

record is not a structural error that automatically leads to a reversal of the

conviction.

I. Case Background

{¶ 4} Monford was indicted in 2009 on charges of murder in violation of

R.C. 2903.02, attempted murder in violation of R.C. 2923.02 and 2903.02,

felonious assault in violation of R.C. 2903.11, and carrying a concealed weapon

in violation of R.C. 2923.12, all stemming from a 2008 shooting incident that

resulted in the death of Eugene Brown and injuries to Alisa Brown. Monford

initially pled not guilty to the charges, but the trial judge later permitted him to

additionally enter an NGRI plea. The court appointed a doctor to interview and

evaluate Monford based on his NGRI plea, but no report was ever entered into the

record. Before trial began, attorney Myron Shwartz, who had represented

Monford when the NGRI plea was entered, became unavailable. As a result,

during trial, Monford was represented solely by attorney Tracy A. Younkin,

previously appointed as Monford’s co-counsel.

{¶ 5} Both Monford and the state agree that the NGRI plea was not

mentioned at all during the trial, and the court did not give the jury any

instructions regarding that plea.

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January Term, 2011

{¶ 6} The jury found Monford guilty on each charge, and the trial court

sentenced Monford to a total prison sentence of 28 years to life. The Tenth

District affirmed the conviction. 190 Ohio App.3d 35, 2010-Ohio-4732, 940

N.E.2d 634. We accepted jurisdiction over Monford’s first and second

propositions of law. 127 Ohio St.3d 1531, 2011-Ohio-376, 940 N.E.2d 985.

Monford’s first proposition of law asserts, “When a plea of not guilty by reason of

insanity has been duly entered, the complete failure to address such plea at trial

constitutes structural error.” His second proposition of law asserts, “When a plea

of not guilty by reason of insanity has been duly entered by prior counsel, appears

in the court file, and has not been withdrawn, new counsel renders ineffective

assistance of counsel by totally neglecting to address such plea.”

II. Analysis

A. The mere failure to withdraw a plea of not guilty

by reason of insanity does not constitute structural error

{¶ 7} Monford argues that the failure of his counsel and the trial court to

address his NGRI plea during trial constituted structural error. “A structural error

is a ‘defect affecting the framework within which the trial proceeds, rather than

simply an error in the trial process itself.’ Arizona v. Fulminante (1991), 499 U.S.

279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302.” State v. Drummond, 111 Ohio St.3d

14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 50. Structural errors “permeate ‘[t]he

entire conduct of the trial from beginning to end’ so that the trial cannot

‘ “reliably serve its function as a vehicle for determination of guilt or

innocence.” ’ Fulminante, 499 U.S. at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d

302, quoting Rose v. Clark (1986), 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92

L.Ed.2d 460.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d

643, ¶ 17. We have recognized that structural error can be found only in a “ ‘very

limited class of cases.’ ” Id. at ¶ 18, quoting Johnson v. United States (1997), 520

U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718.

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{¶ 8} Monford asks us to adopt the Third District’s analysis on a similar

case as the correct approach. See State v. Cihonski, 178 Ohio App.3d 713, 2008-

Ohio-5191, 900 N.E.2d 212. In Cihonski, the defendant entered, and the trial court

accepted, a plea of NGRI. The defendant at trial testified that he had left a

psychiatric hospital several days prior to the incident for which he had been

arrested and that, during his hospital stay, he was treated for anxiety and panic

attacks. Id. at ¶ 7. Neither the state nor defendant’s counsel mentioned the

defendant’s NGRI plea, however. Like Monford’s trial counsel, the attorney had

begun representing the defendant after entry of the plea. Id. at ¶ 14, 30. The trial

court did not instruct the jury on insanity or inform the jury that the defendant had

entered the NGRI plea. Id. at ¶ 8.

{¶ 9} On appeal, the Third District concluded that the trial court’s failure

to instruct the jury on the defendant’s defense of insanity violated his

constitutional right to trial by jury and that the complete lack of mention of the

defendant’s NGRI plea permeated the entire trial. Id. at ¶ 22-23. The court of

appeals reversed the conviction, holding that the trial court’s actions constituted

structural error. Id. at ¶ 23. The court also held that the defendant’s counsel was

ineffective due to counsel’s failure to make the jury aware of the defendant’s plea.

Id. at ¶ 30.

{¶ 10} Monford argues that Cihonski corresponds to the facts here. He

asserts that in each case, the issue of sanity was neither raised during trial nor

reflected in the jury instructions and that trial counsel appeared unaware of the

NGRI plea entered by another counsel on the defendant’s behalf. The state

counters that the Tenth District properly distinguished the two cases because

Cihonski had admitted the conduct with which he was charged but had also

testified that his actions were involuntary and that he had received previous

psychiatric treatment, thus raising the issue of his mental state when the event

occurred. The Tenth District concluded that the Third District in Cihonski had

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determined that the defendant advanced a defense of legal insanity but that

Monford, in contrast, had failed to present any evidence of insanity and never

indicated that he wished to present an insanity defense. 190 Ohio App.3d 35,

2010-Ohio-4732, 940 N.E.2d 634, ¶ 73-74. The Tenth District also noted that

throughout the entire trial, Monford relied upon a misidentification defense—that

he was not the shooter and that witnesses who identified him as the shooter were

mistaken. Id. at ¶ 74. Because Monford’s defense was wholly inconsistent with a

defense of not guilty by reason of insanity, the Tenth District held that no

structural error had occurred. Id. at ¶ 76.

{¶ 11} I agree with the conclusion of the Tenth District. To be certain, the

best practice in cases in which an NGRI plea is entered but evidence is not

presented on the issue during trial is for the trial court to determine whether the

defendant wishes to formally withdraw the plea and enter the withdrawal on the

record. However, in cases such as Monford’s in which an NGRI plea is not

pursued in any way by the defendant during trial, the failure to state the

withdrawal of the plea on the record is not a structural error.

{¶ 12} While the defendant in Cihonski arguably presented evidence that

he was pursuing his plea of NGRI when he testified that he had received

psychiatric treatment shortly before the events in question, Monford abandoned

any reliance on a theory of NGRI. He did not submit a medical report or

otherwise present any evidence concerning his mental state. As the Tenth District

correctly observed, Monford based his defense upon a theory that the witnesses

misidentified him as the shooter. The evidence presented and the theory of the

defense were therefore antithetical to a potential NGRI defense. Insanity is an

affirmative defense, which by definition requires a showing that the defendant

would not be liable for the crime charged even if he had committed the criminal

act. See State v. Poole (1973), 33 Ohio St.2d 18, 19, 62 O.O.2d 340, 294 N.E.2d

888, quoting Anderson, 1 Wharton’s Criminal Evidence (12th Ed.), Section 19

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(affirmative defenses “represent not a mere denial or contradiction of evidence

which the prosecution has offered as proof of an essential element of the crime

charged, but, rather, they represent a substantive or independent matter ‘which the

defendant claims exempts him from liability even if it is conceded that the facts

claimed by the prosecution are true’ ”). Here, Monford offered no NGRI

evidence, choosing instead to contradict the testimony of the prosecution’s

witnesses who identified him as the shooter.

{¶ 13} The failure to address withdrawal of Monford’s NGRI plea does

not fall into the limited class of cases that qualify as structural error. Monford

clearly abandoned the insanity defense, and the tactical decision to pursue a

defense based upon misidentification was not an error that permeated the entire

trial from beginning to end in a manner that prevented the trial from being a fair

process by which to determine Monford’s guilt or innocence. For these reasons, I

would hold that the mere failure to state the withdrawal of the plea on the record

is not a structural error that automatically leads to a reversal of the conviction.

B. The failure to address a plea of not guilty by reason of insanity

does not necessarily constitute ineffective assistance of counsel

{¶ 14} Monford also argues that attorney Younkin provided ineffective

assistance of counsel by failing to address the NGRI plea. To prevail on a claim

of ineffective assistance of counsel, a defendant must show (1) deficient

performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but

for counsel’s errors, the proceeding’s result would have been different. Strickland

v. Washington (1984), 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two

of the syllabus. In an attempt to show deficient performance, Monford argues that

Younkin failed to become familiar with the history of the case upon appointment

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January Term, 2011

and that if Younkin was ever aware of the NGRI plea, he either forgot or

neglected to mention it during the trial.

{¶ 15} “Judicial scrutiny of counsel’s performance must be highly

deferential.” Strickland at 689. “Because of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’ ” Id., quoting

Michel v. Louisiana (1955), 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83.

{¶ 16} I would hold that Younkin’s representation of Monford was not

deficient under the circumstances of this case. While it may have been more

prudent to officially withdraw Monford’s NGRI plea before trial, the failure to

withdraw the plea did not rise to the level of ineffectiveness. Younkin made a

tactical decision to defend on mistaken identity, a theory that is at odds with the

affirmative defense of insanity. Given the highly deferential standard established

in Strickland, Monford’s argument does not overcome the presumption that

Younkin’s tactical decision represented sound trial strategy.

{¶ 17} Furthermore, Monford’s argument that Younkin either forgot or

neglected to mention the plea during trial is mere speculation. “Such speculation

is insufficient to establish ineffective assistance.” State v. Perez, 124 Ohio St.3d

122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217, citing State v. Were, 118 Ohio

St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 219, and State v. Elmore, 111

Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 121.

III. Conclusion

{¶ 18} This court is able to set forth a clear and definitive ruling on

whether the failure to withdraw an NGRI plea constitutes structural error when

there appears to be some confusion regarding whether the defendant wishes to

pursue that defense. I respectfully dissent from the majority’s decision to dismiss

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SUPREME COURT OF OHIO

this appeal as having been improvidently accepted. While a plea of NGRI should

be withdrawn if it will not be relied upon by the defense, the mere failure by the

trial court to state the formal withdrawal of the plea on the record is not a

structural error that automatically leads to a reversal of the conviction.

{¶ 19} I would affirm the judgment of the court of appeals.

LUNDBERG STRATTON and MCGEE BROWN, JJ., concur in the foregoing

opinion.

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Ronald J. O’Brien, Franklin County Prosecuting Attorney, and Seth L.

Gilbert, Assistant Prosecuting Attorney, for appellee.

Yeura R. Venters, Franklin County Public Defender, and Allen V. Adair,

Assistant Public Defender, for appellant.

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