The opinion
[Cite as State v. Neu, 2013-Ohio-616.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No: 12CA942
:
v. :
: DECISION AND
JIMMY NEU, : JUDGMENT ENTRY
:
Defendant-Appellant. : RELEASED 02/08/13
APPEARANCES:
Mark W. Evans, Cincinnati, Ohio, for Appellant.
Jimmy Neu, St. Clairsville, Ohio pro se Appellant.
C. David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County
Assistant Prosecutor, West Union, Ohio, for Appellee.
Kline, J.:
{¶1} Jimmy Neu (hereinafter “Neu”) appeals the judgment of the Adams County
Court of Common Pleas, which convicted him of two counts of sexual battery. Neu’s
appellate counsel has advised this court that, after reviewing the record, he cannot find
a meritorious claim for appeal. As a result, Neu’s appellate counsel has moved to
withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967). After independently reviewing the record, we agree that Neu’s appeal is wholly
frivolous. Accordingly, we (1) grant counsel’s request to withdraw and (2) affirm the
judgment of the trial court.
I.
Adams App. No. 12CA942 2
{¶2} Neu was indicted for two counts of rape in violation of R.C.
2907.02(A)(1)(b). Specifically, Neu was accused of (1) “penetrating [his five-year-old
daughter] with his penis” and (2) “having [his five-year-old daughter] perform oral sex on
him.” September 3, 2009 Bill of Particulars. Both counts included specifications for life
sentences.
{¶3} Neu agreed to take a polygraph examination, and the trial court approved
a polygraph stipulation between Neu and the state. The stipulation provides that, “[i]f
Defendant denies * * * that he engaged in sexual conduct with the alleged victim and he
is being truthful, charges will be dismissed by the State of Ohio.” The stipulation also
contains provisions related to the polygraph administrator, the procedures for the
examination, and the admissibility of the polygraph evidence. Finally, the stipulation
provides that “[a]dmissions or other culpatory statements made by the defendant
before, during and after ‘testing’ shall be admissible and may be testified to during the
trial of this case.”
{¶4} During the polygraph examination, Neu responded to the following
questions:
Question: Did you ever insert your penis inside [your
daughter’s] vagina?
Answer: No.
Question: Did you ever put your penis inside [your
daughter’s] mouth?
Answer: No.
Adams App. No. 12CA942 3
Question: Did you ever intentionally commit a sex act with
[your daughter]?
Answer: No.
According to the polygraph administrator, “Numerical analysis of the polygraph tests
resulted in a conclusion of: ‘Deception Indicated’ when Jimmy Neu was answering the
above listed questions.” (Emphasis sic.) Polygraph Examination Report. As a result,
the polygraph administrator believed “that Jimmy Neu was not being completely truthful
during testing.” Id.
{¶5} During the post-test phase of the examination, the polygraph administrator
informed Neu of the results of the test. This prompted Neu to say that “the only thing he
has done sexually with [his daughter] was rub her vagina with his finger.” Id.
{¶6} Shortly after the polygraph examination, Neu requested that his trial
counsel withdraw from the case. As a result, the trial court appointed different counsel
for Neu.
{¶7} Neu’s second trial counsel filed several evidentiary motions, including a
motion to suppress the results of the polygraph examination.
{¶8} After plea negotiations, Neu withdrew his evidentiary motions and pled
guilty to two counts of sexual battery. The trial court then sentenced Neu to a total
combined term of 11 years in prison.
II.
{¶9} Although Neu has appealed his conviction, Neu’s appellate counsel has
filed both a motion to withdraw and an Anders brief.
Adams App. No. 12CA942 4
In Anders, the United States Supreme Court held that if
counsel determines after a conscientious examination of the
record that the case is wholly frivolous, counsel should so
advise the court and request permission to withdraw.
[Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493].
Counsel must accompany the request with a brief identifying
anything in the record that could arguably support the
appeal. Id. Counsel also must furnish the client with a copy
of the brief and request to withdraw and allow the client
sufficient time to raise any matters that the client chooses.
Id. Once these requirements have been satisfied, the
appellate court must then fully examine the proceedings
below to determine if meritorious issues exist. Id. If the
appellate court determines that the appeal is frivolous, it may
grant counsel’s request to withdraw and dismiss the appeal
without violating constitutional requirements or may proceed
to a decision on the merits if state law so requires. Id.
Alternatively, if the appellate court concludes that any of the
legal points are arguable on their merits, it must afford the
appellant the assistance of counsel to argue the appeal. Id.
State v. Wise, 4th Dist. No. 08CA40, 2009-Ohio-5264, ¶ 11. See also State v. Taylor,
2d Dist. No. 23833, 2010-Ohio-4276, ¶ 2 (stating that an appellant must be afforded
“time to file a pro se brief”).
Adams App. No. 12CA942 5
{¶10} Upon receiving an Anders brief, we must “conduct ‘a full examination of all
the proceeding[s] to decide whether the case is wholly frivolous.’” (Alteration sic.)
Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), quoting
Anders at 744. If we find only frivolous issues on appeal, we may then proceed to
address the case on its merits without affording appellant the assistance of counsel.
Penson at 80. However, if we conclude that there are nonfrivolous issues for appeal,
we must afford appellant the assistance of counsel to address those issues. Anders at
744; Penson at 80; accord State v. Keller, 4th Dist. No. 10CA39, 2012-Ohio-237, ¶ 5.
{¶11} Here, Neu’s counsel has satisfied the requirements of Anders.
Nevertheless, Neu’s counsel raises the following potential assignments of error: I. “MR.
NEU ENTERED A LESS THAN KNOWING AND VOLUNTARY PLEA BECAUSE OF
THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHO RECOMMENDED MR.
NEU AGREE TO A CONSTITUTIONALLY DEFECTIVE POLYGRAPH STIPULATION,
WHICH RESULTED IN THE ADMISSION OF INCULPATORY EVIDENCE.” And II.
“MR. NEU ENTERED A LESS THAN [] KNOWING AND VOLUNTARY PLEA
BECAUSE OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, WHO
RECOMMENDED THAT MR. NEU ABANDON FACIALLY MERITORIOUS
SUPPRESSION AND LIMINAL MOTIONS AND INSTEAD ENTER GUILTY PLEAS AS
PART OF A NEGOTIATED PLEA BARGAIN.”
{¶12} Additionally, Neu has filed a pro se brief, in which he raises the following
assignment of error: “Trial counsel provided ineffective assistance of counsel for the
reasons listed in the issue[s] presented which violated the Appellant[’]s rights as
Adams App. No. 12CA942 6
guaranteed by the Sixth Amendment of the United States Constitution which led to a
plea that was less than knowingly, intelligently and voluntarily made.”
III.
{¶13} Neu pled guilty to both counts of sexual battery, and, significantly, “a guilty
plea waives all appealable errors except for a challenge as to whether the defendant
made a knowing, intelligent and voluntary acceptance of the plea.” State v. Patterson,
5th Dist. No. CT2012-0029, 2012-Ohio-5600, ¶ 30, citing State v. Spates, 64 Ohio St.3d
269, 272-273, 595 N.E.2d 351 (1992). Therefore, our review of the record is
necessarily limited by Neu’s guilty pleas.
{¶14} Both Neu and his appellate counsel raise potential arguments based on
ineffective assistance of trial counsel.
{¶15} “In Ohio, a properly licensed attorney is presumed competent. * * * The
appellant bears the burden of proving that his trial counsel was ineffective.” State v.
Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); accord State v. Norman,
4th Dist. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, ¶ 65. To secure reversal for
the ineffective assistance of counsel, one must show two things: (1) “that counsel’s
performance was deficient * * *[,]” which “requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment[;]” and (2) “that the deficient performance prejudiced the defense
* * *[,]” which “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Norman at ¶ 65. “Failure
to satisfy either prong is fatal as the accused’s burden requires proof of both elements.”
Adams App. No. 12CA942 7
State v. Hall, 4th Dist. No. 07CA837, 2007-Ohio-6091, ¶ 11, citing State v. Drummond,
111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205.
{¶16} When a defendant has entered a guilty plea,
the defendant must show that there is a reasonable
probability that, but for counsel’s errors, the defendant would
not have pleaded guilty and would have insisted on going to
trial. The mere fact that, if not for the alleged ineffective
assistance of counsel, the defendant would not have entered
a guilty plea is not sufficient to establish the necessary
connection between ineffective assistance and the plea.
Ineffective assistance will only be found to have affected the
validity of plea when it precluded defendant from entering
the plea knowingly and voluntarily. The relevant inquiry is
not whether defendant ultimately would have prevailed at
trial, but whether defendant would have pled guilty if properly
advised by counsel. (Citations omitted.) 25 Ohio
Jurisprudence 3d, Criminal Law: Procedure, Section 78.
A.
{¶17} Initially, Neu’s appellate counsel argues the following: “Neu entered a less
than voluntary plea, which was the result of the ineffective assistance of his trial
counsel, who counseled him to submit to a constitutionally defective polygraph
agreement. That defective polygraph resulted in damaging inculpatory evidence.”
Adams App. No. 12CA942 8
Anders Brief of Appellate at 12. But here, we find no arguable issues of ineffective
assistance of counsel in relation to the polygraph.
{¶18} The Supreme Court of Ohio discussed the admissibility of polygraph
examinations in State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978). As the
court held,
The results of a polygraphic examination are admissible in
evidence in a criminal trial for purposes of corroboration or
impeachment, provided that the following conditions are
observed:
(1) The prosecuting attorney, defendant and his counsel
must sign a written stipulation providing for defendant’s
submission to the test and for the subsequent admission at
trial of the graphs and the examiner’s opinion thereon on
behalf of either defendant or the state.
(2) Notwithstanding the stipulation, the admissibility of the
test results is subject to the discretion of the trial judge, and
if the trial judge is not convinced that the examiner is
qualified or that the test was conducted under proper
conditions he may refuse to accept such evidence.
(3) If the graphs and examiner’s opinion are offered in
evidence the opposing party shall have the right to cross-
examine the examiner respecting:
(a) the examiner’s qualifications and training;
Adams App. No. 12CA942 9
(b) the conditions under which the test was administered;
(c) the limitations of and possibilities for error in the
technique of polygraphic interrogation; and,
(d) at the discretion of the trial judge, any other matter
deemed pertinent to the inquiry.
(4) If such evidence is admitted the trial judge should instruct
the jury to the effect that the examiner’s testimony does not
tend to prove or disprove any element of the crime with
which a defendant is charged, and that it is for the jurors to
determine what weight and effect such testimony should be
given. Id. at syllabus.
{¶19} In the present case, Neu’s appellate counsel particularly objects to the
following language in the polygraph stipulation:
[The polygraph administrator] designated by Counsel for the
State of Ohio shall be permitted, if called as a witness by the
State of Ohio or the defendant, to testify at trial of this case
as an “expert” regarding all aspects of the testing
administered, and such testimony shall be offered and
received as evidence at the trial of this case or any
subsequent case that may arise out of the polygraph
examination without objections of any kind by any party
to this agreement. (Emphasis sic.)
Adams App. No. 12CA942 10
According to Neu’s appellate counsel, the stipulation “clearly provided that no one, even
the court could challenge the polygraph examiner’s credentials, or object to his
testimony concerning the manner in which he conducted the exam.” Anders Brief of
Appellant at 14.
{¶20} We disagree with appellate counsel’s interpretation of the polygraph
stipulation. The stipulation simply states that, if the results of the test are conclusive,
neither party may object to the introduction of the polygraph evidence. There is nothing
in the stipulation that (1) limits the discretion of the trial court in relation to that evidence
or (2) prevents either party from cross-examining the polygraph administrator on any
topic. Had Neu gone to trial, the polygraph stipulation would not have prevented him
from vigorously challenging the weight of the polygraph evidence. As a result, we find
(1) that the polygraph stipulation conforms to Souel and (2) that trial counsel’s
performance was not deficient in relation to the polygraph stipulation. Accordingly, any
ineffective-assistance-of-counsel argument based on the polygraph stipulation would be
frivolous.
B.
{¶21} Neu’s appellate counsel also argues that “Neu entered a less than
voluntary plea because his trial counsel rendered ineffective assistance of counsel in
failing to pursue facially meritorious motions to suppress evidence and instead urging
Mr. Neu to enter into a plea bargain.” Anders Brief of Appellant at 17. But we find no
merit in this potential argument.
{¶22} By pleading guilty, Neu waived any ineffective-assistance-of-counsel
arguments that are based on the failure to pursue suppression motions. See State v.
Adams App. No. 12CA942 11
Taylor, 8th Dist. No. 97798, 2012-Ohio-5065, ¶ 11, citing State v. Kitzler, 3d Dist. No.
16-02-06, 2002-Ohio-5253, ¶ 13; State v. Huddleson, 2d Dist. No. 20653, 2005-Ohio-
4029, ¶ 9. Accordingly, we find that any ineffective-assistance-of-counsel arguments
based on the motions to suppress would be frivolous.
C.
{¶23} We also reject all of the arguments under Neu’s pro se assignment of
error. Many of Neu’s pro se arguments rely upon evidence outside the record, which
we may not consider in a direct appeal. See State v. Spires, 4th Dist. No. 10CA10,
2011-Ohio-3661, ¶ 30. Furthermore, we cannot find ineffective assistance of counsel in
relation to trial counsel’s investigation of the state’s evidence. Here, Neu cannot
demonstrate that his plea was less than knowingly, voluntarily, and intelligently entered.
See State v. Cooper, 8th Dist. No. 93308, 2010-Ohio-1983, ¶ 40. This is especially true
considering (1) that Neu failed the polygraph examination, (2) that Neu made several
incriminating statements throughout the proceedings below, and (3) that Neu’s guilty
pleas resulted in an 11-year sentence instead of a possible life sentence. Furthermore,
a review of the colloquy at Neu’s change-of-plea hearing demonstrates that Neu
entered his pleas knowingly, voluntarily, and intelligently.
{¶24} Accordingly, we find that all of Neu’s pro se arguments are frivolous.
D.
{¶25} In conclusion, we find no merit in either (1) appellate counsel’s potential
assignments of error or (2) Neu’s pro se arguments. Furthermore, after fully examining
the proceedings below, we have found no other potential issues for appeal. Because
Adams App. No. 12CA942 12
we agree that Neu’s appeal is wholly frivolous, we (1) grant appellate counsel’s motion
to withdraw and (2) affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Adams App. No. 12CA942 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the 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
Adams County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. & Abele, J.: Concur in Judgment & Opinion.
For the Court
BY: ____________________________
Roger L. Kline, 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.