State v. Wood

[Cite as State v. Wood, 2011-Ohio-6405.]

STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

) CASE NO. 11 CO 9

PLAINTIFF-APPELLEE, )

)

- VS - ) OPINION

)

BRIAN WOOD, JR., )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas

Court, Case No. 10CR44.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Attorney Robert Herron

Prosecuting Attorney

105 South Market Street

Lisbon, Ohio 44432

For Defendant-Appellant: Attorney Bryan Felmet

1100 Jackson Place

Steubenville, Ohio 43952

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Dated: December 7, 2011

VUKOVICH, J.

{¶ 1} Defendant-appellant Brian Wood, Jr. appeals from his conviction and

sentence entered in the Columbiana County Common Pleas Court for one count of

aggravated burglary, with a firearm specification, two counts of kidnapping, both with

firearm specifications, and one count of complicity to commit burglary. Appointed

appellate counsel filed a no merit brief and requested leave to withdraw. A review of

the case file reveals that there are no appealable issues. Thus, the judgment of the

trial court is hereby affirmed and counsel’s motion to withdraw is granted.

STATEMENT OF CASE

{¶ 2} In the early morning hours of September 21, 2009 three men entered Mr.

Haupt and his stepson’s, Mr. Jackson, home. The victims were bound and gagged

and approximately $30,000 was stolen from the residence. The house is located in

Columbiana County next to Mr. Haupt’s business, Summitville Recycling.

{¶ 3} In December 2009, while Wood was in the custody of Columbiana

County, Detective Sergeant Steve Walker interviewed Wood about the Brown case,

which is unrelated to this case. During the interview, the detective asked about the

Summitville Recycling burglary. At that point, Wood told the detective that he wanted

to talk about that case, but not at that time.

{¶ 4} Approximately a week later, Detective Walker obtained permission from

the attorney representing Wood in the Brown case to talk to Wood about any case not

related to the Brown case. 12/08/10 Tr. 11. Detective Walker then spoke to Wood.

Before discussing the Summitville Recycling burglary, Wood was read his Miranda

rights and waived those rights. During the conversation, Wood explained the details of

the crime and his involvement.

{¶ 5} Thereafter, for the events that transpired on September 21, 2009, Wood

was indicted for Aggravated Burglary, a first-degree felony in violation of R.C.

2911.11(A)(2) and two counts of Kidnapping, both first-degree felonies in violation of

R.C. 2905.01(A)(2). All three counts contained firearm specifications in violation of

R.C. 2941.145(A). The indictment also contained a fourth count for the burglary of

Josh Hackney and Jody Joy’s residence that occurred on October 29, 2009. This

count charged him with Complicity to Commit Burglary, a third-degree felony in

violation of R.C. 2911.12(A)(3) and R.C. 2923.03(A)(2). 02/25/10 Indictment.

{¶ 6} Wood pled not guilty to the charges, a competency evaluation was

ordered and after the evaluation he was found to be incompetent. He was then

ordered to treatment. Approximately a month later he was restored to competency.

07/26/10 Order. In August, Wood moved to suppress the statements he made to

Detective Walker. The motion to suppress was heard in December, 2010 and was

denied. Trial was set for February 22, 2011.

{¶ 7} On February 16, 2011, Wood moved for a continuance and for a change

of venue. Then, at the February 17, 2011 pretrial, he orally moved for appointment of

an investigator. The continuance and appointment of an investigator motions were

denied. The change of venue request was held in abeyance until voir dire.

{¶ 8} On the day of trial, without a plea bargain in place, Wood pled no contest

to all charges in the indictment. He requested that the trial court proceed directly to

sentencing, which it did. He received an aggregate sentence of twenty-six years. He

received ten years each on the first three counts, three years on the fourth count and

three years on the firearm specifications. The court ordered counts two and three to

be served concurrently to each other, but consecutively to counts one and four and

consecutive to the firearm specifications. The court also ordered that the aggregate

sentence was to be served concurrently to the term of incarceration for Jefferson

County case number 2010CR2.

{¶ 9} Wood now appeals and counsel has filed a no merit brief asking to

withdraw because there are allegedly no appealable issues.

ANALYSIS

{¶ 10} When appellate counsel seeks to withdraw and discloses that there are

no meritorious arguments for appeal, the filing is known as a no merit or Anders brief.

Anders v. California (1967), 386 U.S. 738. In this district, it has also been called a

Toney brief. State v. Toney (1970), 23 Ohio App.2d 203.

{¶ 11} In Toney, this court set forth the procedure to be used when counsel of

record determines that an indigent's appeal is frivolous:

{¶ 12} “3. Where court-appointed counsel, with long and extensive experience

in criminal practice, concludes that the indigent's appeal is frivolous and that there is

no assignment of error which could be arguably supported on appeal, he should so

advise the appointing court by brief and request that he be permitted to withdraw as

counsel of record.

{¶ 13} "4. Court-appointed counsel's conclusions and motion to withdraw as

counsel of record should be transmitted forthwith to the indigent, and the indigent

should be granted time to raise any points that he chooses, pro se.

{¶ 14} “5. It is the duty of the Court of Appeals to fully examine the proceedings

in the trial court, the brief of appointed counsel, the arguments pro se of the indigent,

and then determine whether or not the appeal is wholly frivolous.

{¶ 15} “* * *

{¶ 16} “7. Where the Court of Appeals determines that an indigent's appeal is

wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of

record should be allowed, and the judgment of the trial court should be affirmed.” Id.

at syllabus.

{¶ 17} The no merit brief was filed by counsel on June 6, 2011. Thereafter, we

informed Wood of appointed counsel's no merit brief and granted him 30 days to file

his own written brief. On June 27, 2011, Wood filed a document with this court in

which he asserts “claims of error” in the trial court proceedings. Despite the state’s

opposition to this court considering the pro se document because it does not comply

with the Appellate Rules for a brief, we indicated that we would construe it as a brief.

Consequently, in our independent review of the record, we will consider the arguments

presented by Wood in his pro se filing.

{¶ 18} In reviewing the pro se filing, there are two arguments that Wood is

asserting. First, he argues that the ruling on the suppression motion is incorrect.

Second, he argues that counsel (all of them) were ineffective. Our independent review

of the record also permits us to review whether the plea was entered into knowingly,

intelligently and voluntarily and if the sentence was in accordance with law.

Additionally, we can review the pretrial motion rulings, i.e. denial of the motion for

continuance and denial of the appointment of an investigator. As such, each issue will

be reviewed in turn.

Pre-Trial Rulings

{¶ 19} Starting with the suppression ruling, Wood’s argument is that the trial

court should have suppressed the statements he made to Detective Walker because

they agreed to speak under a “Proffer Agreement.” He claims that the support for this

position can be found in court transcripts for the “2009 CR 289 case.”

{¶ 20} At the outset it is noted that Wood pled no contest, therefore he

preserved his ability to appeal the decision of the suppression order and other pretrial

orders. Crim.R. 12(I).

{¶ 21} In reviewing the suppression transcript, it is clear that Detective Walker

acknowledges that Wood asked about making a “Proffer Statement.” The detective

was unfamiliar with such a statement and Wood explained that that type of statement

was made off of the record and could not be used to incriminate him. 12/08/10 Tr. 19.

The detective told Wood that he would have to clear that with the prosecutor’s office.

However, before he could make the call to the prosecutor’s office, Wood told him that

that would not be necessary as long as the detective told the prosecutor Wood was

cooperative. 12/08/10 Tr. 19. The detective admitted that what Wood wanted in

exchange for his cooperation was for any potential sentence for the Summitville

Recycling crime to run concurrent with the charges in another county. 12/08/10 Tr. 26-

27. Detective Walker told him he could not do anything about the other counties, but

that he would tell the prosecutor that Wood was cooperative. 12/08/10 Tr. 27.

{¶ 22} At the suppression hearing, questions were also asked about Wood’s

ability to waive his rights and incriminate himself. It was revealed that during the

commission of the crime Wood was high on heroin and that during his stay in the

Columbiana County Jail he was in withdrawal from that drug. Detective Walker

indicated during his testimony that it had been over a week since Wood’s arrest when

the detective took Wood’s statement about the Summitville Recycling burglary.

12/08/10 Tr. 9-13. Thus, the drug was no longer in his system. The detective also

indicated that Wood stated in one of his written requests to see the detective that he

was feeling better and that “his head was more straight.” 12/08/10 Tr. 17. Detective

Walker indicated that Wood appeared to know what he was doing and his answers

and statement were coherent. 12/08/10 Tr. 17-18.

{¶ 23} Considering that the detective got permission from Wood’s counsel of

record to talk to him regarding any case but the Brown case, that the detective read

Wood his Miranda rights, that there was no evidence that there was an agreement that

the statement could not be used against him, and that there was no indication from

Wood’s demeanor or statements that he did not understand what he was doing by

giving the statement, the decision was not incorrect.

{¶ 24} Admittedly, Wood now contends that there is evidence that there was an

agreement that the statement could not be used against him. According to him, that

evidence is found in a transcript in another case. However, that transcript is not part of

the record before this court. We are a court of record and can only review the record;

we cannot consider matters outside the record. State v. Oliver, 7th Dist. No.

07MA169, 2008-Ohio-6371, ¶90. Thus, we cannot determine whether that alleged

transcript provides evidence that there was an agreement that the statements made by

Wood to the officer would not be used against Wood. See State v. Williams, 10th Dist.

No. 08AP–719, 2009–Ohio–3237, ¶32 (because appellant's claim that counsel was

ineffective for failing to introduce police reports relies upon evidence outside the

record, “it is impossible to discern whether counsel was ineffective”); State v. Smith,

1st Dist. No. C–080607, 2009–Ohio–3258, ¶13 (because claim of ineffective

assistance of counsel for failing to obtain copy of police report was based on matters

outside record, the court could not consider claim on direct appeal). Consequently, his

argument regarding the suppression ruling fails.

{¶ 25} As for the other pretrial rulings, there was the denial of the motion to

continue and the denial of the motion to appoint an investigator. The decision to grant

or deny a continuance must consider all of the circumstances surrounding the request

and when considering those factors it is within the discretion of the trial court to grant

or deny such request. State v. Landrum (1990), 53 Ohio St.3d 107, 115. The factors

include “the length of the delay requested; whether other continuances have been

requested and received; the inconvenience to litigants, witnesses, opposing counsel

and the court; whether the requested delay is for legitimate reasons or whether it is

dilatory, purposeful, or contrived; whether the defendant contributed to the

circumstance which gives rise to the request for a continuance; and other relevant

factors, depending on the unique facts of each case.” State v. Unger (1981), 67 Ohio

St.2d 65, 67-68.

{¶ 26} Here, the record indicates that the case had been pending for over a

year, trial was scheduled to start within a week of the requests, Wood had been

restored to competency for approximately seven months, the current attorney had

been representing Wood for approximately six months, and continuances were

previously granted so that counsel could go through the evidence. The record also

shows that counsel for the state had provided discovery and continued to provide

discovery throughout the proceedings. Thus, given those circumstances, we cannot

find that the trial court abused its discretion in denying the motion.

{¶ 27} As to the motion for an investigator, similar to the denial of the motion to

continue, we review the trial court’s decision to deny the request for an investigator

under an abuse of discretion standard of review. State v. Pollock (Sept. 24, 1993), 6th

Dist. No. L-92-034. See State v. Trummer (Dec. 16, 1998), 7th Dist. No. 96CO97

(discussing the right to an investigator for help in filing a petition for post conviction

relief). While there is a claim that there is a lot of evidence in the case, as explained

above, defense counsel had six months to go through the evidence and had been

granted a previous continuance to go through the evidence. Furthermore, it is unclear

how a case with two victims and four defendants, some of which were already

sentenced, required an investigator to aid defense counsel in preparation for trial. See

State v. Wolf (Dec. 11, 1991), 11th Dist. No. 91-L-096. Thus, we do not find that the

trial court abused its discretion. Consequently, there are no appealable issues

regarding the pretrial motion rulings.

Plea

{¶ 28} Crim.R. 11(C) provides that a trial court must make certain advisements

prior to accepting a defendant's guilty plea to ensure that the plea is entered into

knowingly, intelligently and voluntarily. These advisements are typically divided into

constitutional rights and nonconstitutional rights. The constitutional rights are: 1) a jury

trial; 2) confrontation of witnesses against him; 3) the compulsory process for obtaining

witnesses in his favor; 4) that the state must prove the defendant's guilt beyond a

reasonable doubt at trial, and 5) that the defendant cannot be compelled to testify

against himself. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, ¶19-21. The trial court must strictly comply with these requirements; if it fails to

strictly comply, the defendant's plea is invalid. Veney, supra, at ¶31; State v. Ballard

(1981), 66 Ohio St.2d 473, 477.

{¶ 29} The nonconstitutional rights that the defendant must be informed of are:

1) the nature of the charges; 2) the maximum penalty involved, which includes, if

applicable, an advisement on postrelease control; 3) if applicable, that the defendant is

not eligible for probation or the imposition of community control sanctions, and 4) that

after entering a guilty plea or a no contest plea, the court may proceed directly to

judgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney, supra, at ¶10-13; State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶19-26, (indicating that postrelease

control is a nonconstitutional advisement). For the nonconstitutional rights, the trial

court must substantially comply with Crim.R. 11's mandates. State v. Nero (1990), 56

Ohio St.3d 106, 108. “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and

the rights he is waiving.” Veney, supra, at ¶15, quoting Nero, supra, at 108.

Furthermore, a defendant who challenges his guilty plea on the basis that the

advisement for the nonconstitutional rights did not substantially comply with Crim.R.

11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have

been otherwise entered. Veney, supra, citing Nero, supra.

{¶ 30} The trial court's advisement on the constitutional rights strictly complied

with Crim.R. 11(C)(2)(c). Wood was informed that by pleading no contest he was

waiving his right to a jury trial, to confront witnesses against him, to subpoena

witnesses in his favor and to have the state prove at trial each and every element of

the offenses by proof beyond a reasonable doubt. 02/22/11 Tr. 20, 31-33. Lastly, as

to the constitutional rights, he was informed that if he went to trial he could not be

compelled to testify against himself and that by pleading no contest he was giving up

that right. 02/22/11 Tr. 32-33. Wood indicated after the explanation of every right that

he understood the right and understood that by pleading no contest he was waiving

those rights. 02/22/11 Tr. 20, 31-33.

{¶ 31} As to the Crim.R. 11(C) advisement on the nonconstitutional rights,

Wood was advised of the charges against him, one count of first-degree felony

aggravated burglary, two counts of first-degree felony kidnapping, and one count of

third-degree felony complicity to commit burglary. 02/22/11 Tr.16-23. He was also

correctly advised of the maximum penalties for the indicted offenses. He was advised

that the maximum term for the first-degree felonies is ten years apiece and the

maximum term for the third-degree felony is five years. 02/22/11 Tr. 26-29. See, also,

R.C. 2929.14(A)(1) and (A)(3). Wood was informed that he was subject to a three

year term for each of the firearm specifications. 02/22/11 Tr. 26-29. See also R.C.

2941.145 (stating imposition of three year firearm specification). He was told that the

maximum fine for each first degree felony was $20,000 and the maximum fine for the

third degree felony was $10,000. 2/22/11 Tr. 26-19. See also, R.C. 2929.18(A)(3)(a)

and (A)(3)(c). Lastly, Wood was told that he was subject to a five year term of

postrelease control. 02/22/11 Tr. 30-31. See, also, R.C. 2967.28(B)(1).

{¶ 32} Although the trial court did not advise Wood that it could proceed directly

to sentencing that does not render the plea invalid. Wood specifically requested that

the court proceed directly to sentencing. 02/22/11 Tr. 42. Thus, there is no prejudicial

effect in failing to advise Wood that it could proceed directly to sentencing.

{¶ 33} The last nonconstitutional advisement is to be advised, if it is applicable,

of the ineligibility of community control or probation. If found guilty of all charges, the

firearm specifications, which merged, required a mandatory three year term. Thus, he

was ineligible for community control or probation. While the record shows an

indication of the mandatory firearm specification sentence, that is not a clear

advisement to Wood that he is ineligible for community control or probation. State v.

McQueen, 7th Dist. No. 08MA24, 2008-Ohio-6589, ¶49. However, by stating that

prison is mandatory, it is implicit that he is not eligible for community control or

probation. As such, we cannot find that the advisement did not substantially comply

with Crim.R. 11(C)(2)(a). Id. Thus, in total, the nonconstitutional advisements

substantially complied with Crim.R. 11(C).

{¶ 34} Considering all the above, we find that the plea colloquy complied with

Crim.R. 11(C) and, as such, the plea was intelligently, voluntarily, and knowingly

entered. There are no appealable issues concerning the plea.

Counsel’s Performance

{¶ 35} To prove an allegation of ineffective assistance of counsel, the two-prong

Strickland test must be met. Strickland v. Washington (1984), 466 U.S. 668. First,

one must establish that counsel's performance fell below an objective standard of

reasonable representation. Id. at 687; State v. Bradley (1989), 42 Ohio St.3d 136,

paragraph two of the syllabus. Second, one must show that he/she was prejudiced by

counsel's deficient performance. Strickland, supra, at 687. Or in other words, it must

be shown that but for counsel's errors the result of the trial would have been different.

Bradley, supra, at paragraph three of the syllabus. If this court finds that either prong

fails, there is no need to analyze the remaining prong because in order for ineffective

assistance of counsel to be shown, both prongs must be established by the appellant.

State v. Herring, 7th Dist. No. 06JE8, 2007-Ohio-3174, ¶43.

{¶ 36} Wood asserts that he had ineffective assistance of counsel. He is

correct that he had four different attorneys during his case. The first counsel retired

from the Public Defenders Officer. The next two attorneys (who were co-representing

him) had conflicts of interest that involved representing an informant on the case. The

fourth attorney was appointed six months prior to trial.

{¶ 37} Wood complains that his attorneys did not provide him with a bill of

particulars or discovery. The record before this court clearly indicates that the first

attorney requested discovery and a bill of particulars. 03/29/10 Motions. The bill of

particulars was filed on April 22, 2010. The state also answered discovery on that

date. The state then complied with its continuing obligation for discovery on

September 13, 2010, September 16, 2010, November 24, 2010 and February 14,

2011.

{¶ 38} The record contains no indication of whether Wood was advised of what

was in the discovery or that he was given any of that information. However, merely

based upon his allegation, we cannot find counsel ineffective.

{¶ 39} Moreover, counsels’ actions were not deficient. His first appointed

counsel requested a competency evaluation, which deemed Wood to be incompetent.

After he was deemed competent, the last attorney was appointed. That counsel

moved to have count four of the indictment tried separately from the first three counts,

which the transcript indicates was granted. Counsel also moved to suppress Wood’s

statement, moved for a continuance, moved for a change of venue and moved to have

an investigator appointed. Except for the change of venue motion, which was held in

abeyance, those motions were denied. Counsel also moved to enter a plea of not

guilty by reason of insanity, which was rejected because the court found Wood to be

competent.

{¶ 40} These actions by counsel do not show a deficient performance, but

rather show counsel adamantly defending Wood. Furthermore, we note that Wood

clearly indicated at the plea hearing that he was happy with counsel’s performance

stating that she did an “incredible” job. 02/22/11 Tr. 35.

{¶ 41} Wood also alleges that counsel that represented him in the Brown case

(09CRA1337) was ineffective because that counsel, Attorney Sherill Liebschner, gave

Detective Walker written permission to interview Wood about any case not related to

the Brown (09CRA1337) case.

{¶ 42} The transcript from the suppression motion shows that Detective Walker

obtained written permission to speak to Wood about any case not related to the Brown

case. 12/08/10 Tr. 11. The record also indicates that while being represented by

Attorney Liebschner, Wood contacted Detective Walker numerous times through

inmate correspondence asking to speak with the officer. 12/08/10 Tr. 8-13. When

Detective Walker spoke with Wood, Wood indicated he was willing to talk about the

Summitville Recycling case. 12/08/10 Tr. 13-14. The officer read Wood his rights and

Wood waived those rights. 12/08/10 Tr. 14-16.

{¶ 43} The record is clear that Wood wanted to speak with the detective about

the Summitville Recycling Burglary. Wood’s actions show that he clearly wished to

speak with the detective without the presence of counsel. He pursued the detective;

the detective did not initiate the conversation. Furthermore, Wood was read his rights

prior to making the statements and he waived those rights. The only thing the record

shows is that Wood wanted the prosecutor to know that he was cooperative and that

he wanted any prison time he received for this crime to run concurrent with a case out

of Jefferson County, Ohio. Both of those things occurred. Thus, while it may not have

been the most prudent thing for counsel in the Brown case to give permission for

Wood to speak to the detective about any case, it is clear that it was Wood’s intention

to pursue such action. Thus, we cannot say that counsel was ineffective. There are

no appealable issues regarding counsels’ performances.

Sentencing

{¶ 44} We review felony sentences using both the clearly and convincingly

contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist.

No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-

6591, ¶17. We first determine whether the sentencing court complied with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. Gratz, supra, at ¶8, citing State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶13-14. Then, if it is not clearly and

convincingly contrary to law, we must determine whether the sentencing court abused

its discretion in applying the factors in R.C. 2929.11, R.C. 2929.12 and any other

applicable statute. Gratz, supra, ¶8, citing Kalish, supra, at ¶17.

{¶ 45} Here, Wood pled no contest to first-degree felony aggravated burglary,

two counts of first-degree felony kidnapping and one count of third-degree felony

complicity to commit burglary. The first three counts each contained a firearm

specification. The trial court found him guilty of all counts. For purposes of

sentencing, the firearm specifications merged. The trial court sentenced Wood to an

aggregate sentence of 26 years. 02/24/11 Tr. 17; 03/02/11 J.E. He received 10 years

on each of the first degree felonies, which is within the applicable statutory range. R.C.

2929.14(A)(1) (stating that the sentence for a first degree felony is three, four, five, six,

seven, eight, nine or ten years). Counts two and three were ordered to be served

concurrent to each other but consecutive to the first count. The firearm specifications

merged and he received the mandatory three year sentence for that crime, which was

ordered to be served consecutive to all other counts. R.C. 2941.145. On the third-

degree felony, he received a three year sentence which is within the applicable

statutory range. R.C. 2929.14(A)(3) (stating that the sentence for a third-degree felony

is one, two, three, four, or five years). That sentence was also ordered to be served

consecutively to the other counts.

{¶ 46} Prior to issuing the above sentence, the trial court heard testimony from

the detective and a statement from Wood. There was also a discussion as to Wood’s

criminal history.

{¶ 47} In the judgment entry the trial court indicated:

{¶ 48} “Upon due consideration of the statements of counsel, the Indictment,

the testimony of Detective Walker and the statement of the Defendant himself, as well

as the purposes of and principles of sentencing, and all other relevant factors including

but not limited to all seriousness and recidivism factors, (R.C. 2929.11 and 12), it is the

decision of the Court that the Defendant shall be imprisoned in a State Correctional

Facility for a term of * * *.”

{¶ 49} Thus, we cannot find that the sentence was neither clearly and

convincingly contrary to law nor that it was an abuse of discretion. The sentence was

within the statutory limits and the trial court considered all relevant information prior to

issuing a sentence. There are no appealable sentencing issues.

CONCLUSION

{¶ 50} For the foregoing reasons, the judgment of the trial court is hereby

affirmed and counsel’s motion to withdraw is granted.

Donofrio, J., concurs.

Waite, P.J., concurs.