State v. Stitt , 2024 Ohio 3401 ( 2024 )

[Cite as State v. Stitt, 2024-Ohio-3401.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113286
v. :
BRADLEY W. STITT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 5, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-673504-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Frank Romeo Zeleznikar and Ayoub Dakdouk,
Assistant Prosecuting Attorneys, for appellee.
Susan J. Moran, for appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Bradley W. Stitt (“Stitt”) appeals the judgment of the trial court
following a plea agreement wherein Stitt pleaded guilty to felonious assault and
having weapons while under disability. After a thorough review of the record and
law, we affirm.
I. Factual and Procedural History
This case was bound over from the Parma Municipal Court. Stitt was
charged in a three-count indictment with felonious assault in violation of R.C.
2903.11(A)(2), including one- and three-year firearm specifications and forfeiture
of the weapon, a Sig Sauer P238; tampering with evidence in violation of
R.C. 2921.12(A)(1) with forfeiture of the same weapon; and, having weapons while
under disability in violation of R.C. 2923.13(A)(2) with forfeiture of the same
weapon.
Stitt agreed to accept a plea deal, pleading guilty to felonious assault
with the forfeiture specification and having weapons while under disability with the
forfeiture specification. At this point, no facts pertaining to the case were made part
of the record.1 After going through the Crim.R. 11 colloquy, the trial court asked Stitt
if he would like to make any comments before proceeding to sentencing. Stitt made
the following statement:
Just content — the content of what was — you know, I was accused of,
it’s not — I just — I don’t have — I don’t know. I came home from
Florida and my tent was stole[n]. I lost so much. It cost my son. I
couldn’t watch him for school and my job and my house in North
Royalton. And I went ahead of myself. And due to the influx of
immigration I lost everything out there from people hiring them, cheap
labor and undercutting costs.
I came back home and I felt like I was having a hard time. I went to the
hospital and I went to the place to — you know, after the hospital to
1 Stitt’s brief contains a complete statement of the facts giving rise to this appeal.
We were unable to locate these facts within the record, nor were proper citations to the
record given as required by App.R. 16. As such, we must disregard the statement of the
facts offered by Stitt in his brief.
kind of relax and go back to my mom’s. That’s where I was staying at.
And then this transpired.
I just went to relax. I went to the restroom and the man came in there
that I didn’t —
(Tr. 14-15.)
The trial court interrupted Stitt and asked his trial counsel if there was
anything he would like to say. Stitt’s trial counsel responded:
I think what he’s trying to say, he went to Florida to start over, it didn’t
work out so well, he came back home, and lost custody of his child, the
son he had full custody of at one point in time. He had gone to the
hospital that evening, left the hospital, went to the bar.
He was sitting at the bar and had to go to the restroom. He was
followed to the restroom by the victim in this case. And that’s when the
altercation transpired.
He then, as I indicated to court previously, took his gun and put it
outside knowing that the police were on their way. That was the
tampering count. He shouldn’t have had a gun.
Actually he thought his previous lawyer told him he could have a gun
because they had filed in Judge Corrigan’s room for sealing of his
record or expungement. But it was never pursued and Judge Corrigan
dismissed it.
So he had ended up with the weapons under disability, as well. Doesn’t
excuse his conduct, judge, but hopefully gives the court some context.
I can tell you that I’ve represented him in the past on one prior case
where it was felony fleeing and eluding with the City of North Royalton
that resulted in a misdemeanor. Other than that, I’m aware of one
other F3 burglary.
Judge, he’s never been down to prison before. If you decide to send
him to prison, I hope that you consider the minimum.
But I should indicate, Your Honor, in the back of the courtroom are
both his mom and dad and the significant others.
(Tr. 15-16.)
The court did not respond to counsel’s comments and immediately
proceeded to sentencing. It imposed a four-year prison term on the felonious assault
charge and an 18-month prison term on the having weapons while under disability
charge, to run concurrent for a total sentence of four years. Stitt was also fined $250
on each offense and sentenced to 18-months to three years of postrelease control.
Stitt filed his notice of appeal in October 2023. In January 2024, Stitt
filed a motion for judicial release asking the court to consider his release while
maintaining his innocence as to the offenses to which he pleaded guilty. The trial
court denied the motion, finding that Stitt was “ineligible for re-entry court and
judicial release due to minimum time not being served.”
In January 2024, Stitt filed his appellate brief. His brief, however,
included a motion to supplement the appellate record and included copies of
medical records pertinent to Stitt’s competency that were never presented to the
trial court. As a result, this court denied the motion and struck the medical records
from the public docket.
Stitt assigns three errors for our review:
1. Mr. Stitt did not knowingly, voluntarily, or intelligently enter his plea
because the evidence failed to support the essential elements of
felonious assault, depriving him of due process as provided by the
United States and Ohio Constitution.
2. Trial counsel deprived Mr. Stitt effective assistance of counsel when
counsel failed to advise him that the facts of the case did not support a
conviction for felonious assault.
3. Mr. Stitt did not knowing[ly], voluntary[il]y, and intelligently enter
a plea of guilt, as he was not medically competent at the time of the
plea.
II. Law and Analysis
In the first assignment of error, Stitt argues that his plea to felonious
assault was not made knowingly, voluntarily, or intelligently because the facts giving
rise to the conviction do not meet the essential elements required to effectuate a
felonious assault charge pursuant to R.C. 2903.11(A)(2).
Stitt was charged with felonious assault pursuant to R.C.
2903.11(A)(2), which provides that no person shall “knowingly . . . [c]ause or
attempt to cause physical harm to another . . . by means of a deadly weapon or
dangerous ordnance.”
Stitt accepted a plea deal and pleaded guilty to felonious assault that
the court duly accepted.
“When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily. Failure on any of those points
renders enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527
(1996).
When a guilty plea is made on an offense that is not specified in
Crim.R. 11(C)(1)-(3), the court “need not take testimony,” as is the case in the instant
matter. Crim.R. 11(C)(4). Crim.R. 11(B)(1) provides that “[t]he plea of guilty is a
complete admission of the defendant’s guilt.” Courts are forbidden from accepting
a guilty plea without first addressing the defendant and following all the
requirements and advisements of Crim.R. 11(C)(2)(a)-(c). Stitt concedes that the
trial court followed all of these requirements.
Instead, Stitt attempts to dispute facts of the case that were not
introduced into the record. The entire assignment of error disputes the victim’s
statements to the police and information contained in the police report, none of
which were introduced into the trial court’s record prior to the filing of the instant
appeal. Stitt provides case law going to the factual circumstances and evidence
required for a felonious-assault charge. In other words, Stitt maintains his
innocence as it pertains to the felonious-assault conviction.
A claim of innocence is not properly before this court on appeal, since
“a counseled plea of guilty is an admission of factual guilt which removes issues of
factual guilt from the case. . . .” State v. Wilson, 58 Ohio St.2d 52 (1979), paragraph
one of the syllabus.
Moreover, Stitt has not raised these issues in a postconviction or
postsentence motion that permits the defendant to attach evidence that was not in
the initial record for the trial court’s consideration. See, e.g., State v. Stumpf, 32
Ohio St.3d 95, 104 (1987) (To withdraw a guilty plea after sentencing, “a defendant
must show that such withdrawal is necessary to correct manifest injustice” under
Crim.R. 32, and a motion made pursuant to Crim.R. 32 “is addressed to the sound
discretion of the trial court.”); State v. McMichael, 2012-Ohio-3166, ¶ 22 (10th Dist.)
(In a postsentence motion to withdraw plea, defendant bears “the burden of
establishing his case based on specific facts either contained in the record or
supplied through affidavits attached to the motion.”). This also gives the trial court
an opportunity to review and consider arguments and evidence before we endeavor
to review them. See, e.g., Sizemore v. Smith, 6 Ohio St.3d 330, 333, fn. 2 (1983)
(“[J]ustice is far better served when it has the benefit of briefing, arguing, and lower
court consideration before making a final determination.”).
We are constrained to the record before us, and the record before us
does not raise any dispute of fact that would lead us to conclude that Stitt’s plea was
not made knowingly, voluntarily, and intelligently. We therefore overrule Stitt’s first
assignment of error.
In his second assignment of error, Stitt contends that he received
ineffective assistance of counsel from his trial counsel in derogation of his Sixth
Amendment right to effective assistance of counsel. Stitt premises this argument on
the same argument presented above: his trial counsel failed to inform him that the
facts of his case did not factually support a finding of felonious assault.
When a defendant argues ineffective assistance of counsel after
entering a guilty plea, the defendant must show that counsel’s performance was
deficient and that there is a reasonable probability that but for counsel’s errors he
would not have pleaded guilty and instead would have taken his case to trial.
Strickland v. Washington, 466 U.S. 668 (1984); State v. Xie, 62 Ohio St.3d 521, 524
(1992); Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In assessing whether it would have been rational for a defendant to go
to trial instead of pleading guilty, the court is instructed to consider the totality of
the circumstances. Lee v. United States, 582 U.S. 357, 360 (2017). We also note
that
“[s]urmounting Strickland’s high bar is never an easy task,” Padilla v.
Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010),
and the strong societal interest in finality has “special force with respect
to convictions based on guilty pleas,” United States v. Timmreck, 441
U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Courts should not
upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies.
Judges should instead look to contemporaneous evidence to
substantiate a defendant’s expressed preferences.
(Emphasis in original.) Lee at 368-369.
Stitt claims that “counsel failed to properly advise him that the facts
which were provided by the State [in discovery] did not sufficiently amount to” a
felonious assault violation. As we did in the first assigned error, we find that this
contention is too speculative absent a record affirmatively demonstrating the facts
of the case. There are almost no facts going to the offense in the actual record of this
case, except for those improperly argued in Stitt’s appellate brief that we must
disregard pursuant to App.R. 16 and because they were not properly before the trial
court.
We are constrained to overrule Stitt’s second assignment of error
based on the record before us.
In his third and final assignment of error, Stitt argues once again that
his plea was not entered knowingly, voluntarily, and intelligently based on his
competence at the time of the plea hearing.
Stitt argues that his statement made following the Crim.R. 11 colloquy
before sentencing should have tipped off the court that he was incompetent to enter
his plea because it was unintelligible. Stitt also refers us to his medical records,
which we are unable to consider and have been stricken from the record because the
trial court has not yet had a chance to consider them. We again refer to our
explanation in paragraph 16, above, to explain why we refuse to consider the medical
records prior to the trial court being afforded an opportunity to review these records.
Nonetheless, we recognize that a defendant is presumed competent
and has the burden of demonstrating his incompetency by a preponderance of the
evidence. State v. Williams, 23 Ohio St.3d 16, 28 (1986). Incompetence is
demonstrated when a defendant is “incapable of understanding the nature and
objective of the proceedings against [him] or of assisting in [his] defense.” R.C.
2945.37(G).
We again must find that based on the record alone, there is nothing in
the record to suggest that Stitt was incompetent to enter a plea. His statement made
prior to his sentencing, while not the most succinct and cohesive, is indicative of an
understanding of the nature and objective of the proceedings against him and
indicates that he was attempting to speak in his defense or provide an explanation
for the events that occurred that evening. We cannot, based on the statement alone,
find that Stitt was incompetent. Moreover, as already explained, we do not have his
medical records properly before us because the trial court has not yet considered
them.
Stitt’s final assignment of error is therefore overruled.
III. Conclusion
We overrule all of Stitt’s assignments of error. We cannot find the
record, as it was before the trial court, supports that Stitt’s plea was anything except
for knowingly, voluntarily, and intelligently made. Moreover, the record before the
trial court and thus the record before us does not support a finding of ineffective
assistance of counsel.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court 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.
FRANK DANIEL CELEBREZZE, III, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
EMANUELLA D. GROVES, J., CONCUR