State v. Muir , 2024 Ohio 3223 ( 2024 )

[Cite as State v. Muir, 2024-Ohio-3223.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-23-1283
Appellee Trial Court No. CR0202302090
v.
Ashley Muir DECISION AND JUDGMENT
Appellant Decided: August 23, 2024
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Randy L. Meyer, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court on appeal from the Lucas County Court of
Common Pleas judgment of October 27, 2023, sentencing appellant, Ashley Muir, to an
indefinite prison term of 4 years to 6 years for robbery in violation of R.C. 2911.02(A)(2)
and (B), a felony of the first degree. For the reasons that follow, we affirm.
II. Facts and Procedural History
{¶ 2} On June 3, 2023, appellant and her co-defendant, Matthew Kanouff, were
stopped as they attempted to leave the parking lot of a store, after appellant was seen
leaving the store with unpaid merchandise. When approached by police, Kanouff exited
the car and attempted to flee, but was apprehended. Appellant did not exit the car, but
instead attempted to drive away, first reversing into an occupied vehicle driven by M.P.
and causing property damage to M.P.’s car, and then shifting into drive and striking the
police cruiser, causing property damage to the police cruiser. As appellant attempted to
drive away, a deputy sheriff was attempting to pull her from the vehicle, and because of
appellant’s attempts to drive away, the deputy suffered a left shoulder separation, left
rotator cuff strain, and bruising to his left arm and hand, requiring medical treatment and
loss of full use of his left arm for weeks following the incident.
{¶ 3} Once the officers took appellant and her co-defendant into custody, they
discovered two scales with apparent drug residue, $1,117.00 in U.S. currency, a glass
pipe, baking soda, a glass measuring cup, and two unopened bags containing small bags.
Additionally, the officers seized substances in glass containers from the car that
subsequent analysis identified as 31.88 grams of methamphetamine and 2.14 grams of
crack cocaine.
{¶ 4} On July 19, 2023, appellant was indicted on six counts as follows: Count 1:
robbery in violation of R.C. 2911.02(A)(2) and (B), a felony of the second degree; Count
2: aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(d), a
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felony of the second degree; Count 3: aggravated possession of drugs in violation of R.C.
2925.11(A) and (C)(1)(c), a felony of the second degree; Count 4: vehicular assault in
violation of R.C. 2903.08(A)(2)(b) and (C), a felony of the third degree; Count 5: driving
under suspension in violation of R.C. 4510.11(A),(D),(E),(F) and (G), a misdemeanor of
the first degree; and Count 6: resisting arrest in violation of R.C. 2921.33(B) and (D), a
misdemeanor of the first degree. On July 28, 2023, appellant appeared for arraignment
with counsel and entered a plea of not guilty to the indictment.
{¶ 5} On October 5, 2023, appellant withdrew her former plea of not guilty and
entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) to Count 1,
robbery in violation of R.C. 2911.02(A)(2) and (B), a felony of the second degree, and
agreed to pay restitution in the amount or $500 to M.P. In return for her plea, the state
agreed to dismiss the remaining counts in the indictment at sentencing. The trial court
conducted the required colloquy with appellant with no indication appellant’s plea was
not knowing, intelligent, and voluntary. Appellant also specifically indicated that she was
satisfied with her trial counsel’s representation.
{¶ 6} At the plea hearing, the prosecutor recited the facts that would have been
proved, had the matter proceeded to trial, as follows:
Had the matter proceeded to trial, the State of Ohio would have shown
beyond a reasonable doubt that on or about the 3rd day of June, 2023, in Lucas
County, Ohio, that the defendant in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense did knowingly inflict, attempt to
inflict, or threaten to inflict physical harm on another. Judge, on that date she and a
codefendant were at the Kohl’s store here in Lucas County…on Holland Sylvania
Road here in Lucas County. After having committed a theft offense in the store,
they were approached and engaged with law enforcement in the parking lot.
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During that interaction, Deputy Bretzloff attempted to remove the defendant from
her vehicle. During that attempt, she put the truck in reverse, backed up, striking
another vehicle, hence the restitution. …
Thereafter then the vehicle went into drive and then struck the marked
patrol vehicle which still had its lights going. During that altercation, Deputy
Bretzloff suffered a separated shoulder and required care immediately and then
some continuing care for recovery. He missed about three weeks of work
constituting the injury, and this occurred in Lucas County, Ohio. Thank you.
The trial court continued the matter for sentencing on October 25, 2023.
{¶ 7} At the sentencing hearing, appellant’s trial counsel advocated for treatment
instead of incarceration, despite appellant’s history with substance abuse, her criminal
record that included a pending criminal case in federal court, and the fact appellant was
on probation in other jurisdictions at the time of the incident in the present case. In
response, the state noted the danger that appellant placed others in by attempting to flee
and requested a prison sentence. Appellant also spoke and apologized for the harm she
caused, stating, “It was not intentional.” Appellant expressed a desire to “turn my life
around.”
{¶ 8} In imposing sentence, the trial court expressed a desire for rehabilitation
rather than sending drug-addicted offenders to prison. However, the trial court also noted
the injury to the deputy sheriff, and that there were “plenty of people that come in front of
me that are suffering from addictions that don’t violently hurt other people let alone law
enforcement, and there needs to be consequences for not complying with law
enforcement and harming law enforcement.” The trial court found appellant was not
amenable to community control and imposed a prison term of four to six years. The trial
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court also ordered restitution and entered a nolle prosequi as to Counts 2 through 6 of the
indictment, pursuant to the plea agreement.
{¶ 9} Appellant filed a timely appeal of this judgment.
III. Assignment of Error
{¶ 10} In challenging the judgment on appeal, appellant raises the following
assignments of error:
I. The court committed plain error by accepting the disputed facts of the
parties, as consistent with the offense of robbery, when both sides arguably
agreed that the physical harm suffered by the deputy was not intentional on
the part of appellant.
II. Appellant received ineffective assistance of counsel when counsel
recommended she plead guilty pursuant to North Carolina v. Alford to
robbery, a felony of the second degree, arguably absent any intent by
appellant to inflict physical harm during or immediately after the offense.
{¶ 11} Because appellant argues the lack of intent as to each assignment of error,
we address the assignments of error together.
IV. Analysis
{¶ 12} Appellant’s assignments of error rest on the premise that a robbery
conviction requires proof of intent to cause physical harm. In her first assignment of
error, appellant argues that the facts recited into the record failed to include an intent to
cause physical harm to the deputy, claiming this intent is a necessary element for the
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offense. In her second assignment of error, appellant argues her trial counsel provided
ineffective assistance by recommending the Alford plea absent facts to support the
element of intent to inflict physical harm. In support, appellant cites to no authority that
requires proof of an intent to inflict physical harm as an element of robbery.
{¶ 13} An Alford guilty plea, “absent an assertion of actual innocence, is an
admission of guilt.” State v. Griggs, 2004-Ohio-4415, ¶ 14. Thus, appellant’s plea was an
admission that she committed robbery as charged in the indictment, as appellant did not
also assert actual innocence but entered the plea “because the rest of my charges are
going to be dropped.” Appellant’s later claim, for purposes of sentencing, that she did not
intend to cause physical harm to the deputy was not a claim of actual innocence relative
to her guilty plea. See State v. Johnson, 2018-Ohio-1387, ¶ 23 (8th Dist.) (claim that harm
was not intended was not a claim of innocence, but expression of remorse).
{¶ 14} Appellant was convicted of robbery in violation of R.C. 2911.02(A)(2) and
(B), which provides:
(A) No person, in attempting or committing a theft offense or in fleeing
immediately after the attempt or offense, shall do any of the following:
…
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;
...
(B) Whoever violates this section is guilty of robbery. A violation of
division (A)(1) or (2) of this section is a felony of the second degree.
{¶ 15} Contrary to appellant’s argument, the culpable mental state for robbery is
provided by the underlying theft offense, with nothing in R.C. 2911.02 that includes an
intent requirement relative to infliction of physical harm. See State v. Tolliver, 2014-Ohio-
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3744, ¶ 18. “R.C. 2911.02(A) predicates every robbery on the elements of a completed or
an attempted ‘theft offense,’” which includes “the mental states of ‘purpose’ and
‘knowingly.’” Tolliver at ¶ 18, citing R.C. 2913.02(A). Thus, “the section defining
robbery makes clear which elements of the offense require proof of culpability,” and R.C.
2911.02(A)(2) contains no additional intent elements. Id.{¶ 16} Therefore, the offense of robbery does not require proof of an intent to
cause physical harm, and appellant’s first assignment of error is without merit.
Additionally, because robbery does not require proof of an intent to cause physical harm,
appellant’s trial counsel was not ineffective in failing to consider this issue in
recommending the plea.
{¶ 17} To demonstrate ineffective assistance of counsel, appellant must show that
her trial counsel’s performance was deficient, and that this deficient performance resulted
in prejudice. State v. Bradley, 42 Ohio St.3d 136 (1939), paragraph two of the syllabus,
citing Strickland v. Washington, 466 U.S. 668 (1984). Because appellant entered a guilty
plea, she has waived the right to assert an ineffective assistance of counsel claim unless
she asserts her trial counsel’s errors affected the knowing and voluntary nature of her
plea. State v. Rivera, 2021-Ohio-1343, ¶ 10 (6th Dist.), citing State v. Green, 2018-Ohio-
3536, ¶ 18-19 (11th Dist.).
{¶ 18} Appellant does not assert that her plea was not knowing and voluntary. At
most, appellant is critical of her trial counsel’s advice regarding the plea, based on the
incorrect premise that the offense of robbery requires proof of an intent to cause physical
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harm. As previously addressed, the offense of robbery does not require proof of an intent
to cause physical harm, and appellant’s trial counsel, therefore, was not deficient in
failing to consider this issue. Appellant’s second assignment of error, accordingly, is
without merit.
{¶ 19} Based on the forgoing, we find appellant’s first and second assignments of
error not well-taken.
V. Conclusion
{¶ 20} Finding substantial justice has been done, we affirm the judgment of the
Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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