State v. Foster , 2011 Ohio 3582 ( 2011 )

[Cite as State v. Foster, 2011-Ohio-3582.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95586
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL FOSTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-426781
BEFORE: Blackmon, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 21, 2011
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ATTORNEY FOR APPELLANT
Michael Foster, Pro Se
Inmate No. 423-695
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Matthew E. Meyer
Thorin O. Freeman
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Michael Foster, Pro Se, appeals his sentence and
assigns the following errors for our review:
“I. The trial court erred in accepting appellant’s plea of guilty due
to ineffective assistance of counsel.”
“II. The trial court erred in refusing to rule on appellant’s pro se
motions for appointment of new counsel, and then faulting the
appellant for the court’s error in not ruling on the pro se motions.”
“III. Prosecutor’s misconduct, more ineffective assistance of
counsel”
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“IV. The trial court erred in allowing multiplicity of indictments.”
{¶ 2} Having reviewed the record and pertinent law, we affirm Foster’s
conviction and sentence. The apposite facts follow.
{¶ 3} Foster’s tortuous procedural history is sufficiently contained in
previous decisions from this court, the Northern District of Ohio, and the Ohio
Supreme Court. State v. Foster, Cuyahoga App. No. 82207, 2003-Ohio-5636;
State v. Foster, Cuyahoga App. No. 82207, 2004-Ohio-2400; State v. Foster, 103
Ohio St.3d 1465, 2004-Ohio-5056, 815 N.E.2d 679; Foster v. Money (Nov. 8,
2007), N.D. Ohio No. 1:05 CV 1009; State, ex rel., Foster v. Cuyahoga Cty.
Court of Common Pleas, Cuyahoga App. No. 91965, 2008-Ohio-6645, and State
v. Foster, Cuyahoga App. No. 95209, 2011-Ohio-2781. Consequently, our
discussion will be limited to his most recent claim.
{¶ 4} On August 21, 2002, a Cuyahoga County Grand Jury indicted
Foster on 18 counts, including attempted murder, multiple aggravated
robberies and felonious assaults, stemming from five separate incidents. On
October 7, 2002, Foster pleaded not guilty at his arraignment and several
pretrials followed.
{¶ 5} On November 13, 2002, pursuant to an agreement with the state,
Foster withdrew his not guilty pleas, pleaded guilty to 11 of the 18 charges,
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and the state nolled the remaining counts. The trial court accepted Foster’s
plea and sentenced him to a total of 84 years in prison.
{¶ 6} On his direct appeal, Foster argued his pleas were not knowingly,
voluntarily, and intelligently made. Foster also argued the trial court erred
in imposing consecutive sentences on the firearm specifications. We affirmed
Foster’s guilty pleas to the offenses of attempted murder, aggravated robbery,
and felonious assault, but remanded for resentencing because the record failed
to support the consecutive sentences on the firearm specifications. State v.
Foster, Cuyahoga App. No. 82207, 2003-Ohio-5636.
{¶ 7} On April 2, 2004, the trial court resentenced Foster, merged the
various firearm specifications, and imposed a 58-year prison term.
Thereafter, Foster filed an application for reopening of our decision that
affirmed his guilty pleas. In his application, Foster argued he was denied the
effective assistance of counsel because appellate counsel failed to challenge
the voluntariness of his plea on the basis that he pled guilty solely to escape
the physically threatening conditions in the Cuyahoga County Jail.
{¶ 8} We declined to reopen Foster’s appeal based on the doctrine of res
judicata. State v. Foster, Cuyahoga App. No. 82207, 2004-Ohio-2400. Foster
appealed to the Ohio Supreme Court, which declined review. On April 20,
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2005, Foster filed a petition in the U.S. District Court for the Northern
District of Ohio for a Writ of Habeas Corpus by a Person in State Custody.
{¶ 9} In the petition, Foster contended that the trial court erred when it
accepted his guilty pleas despite notice that he was suffering assaults as a
result of the state’s failure to protect him from the general population
inmates;1 that trial counsel was ineffective for failing to better relate to the
trial court his concerns, effectively forcing him to enter an involuntary plea to
escape the violence; and that appellate counsel was ineffective for failing to
challenge the voluntariness of his plea on the basis that it was entered solely
to escape harm from the general population inmates at the county jail.
{¶ 10} On November 14, 2007, the United States District Court granted
Foster a conditional writ of habeas corpus requiring that the trial court permit
Foster to enter a new plea or to commence trial. Foster v. Money (Nov. 8,
2007), N.D. Ohio No. 1:05 CV 1009.
{¶ 11} On August 15, 2008, Foster filed a Motion for Discharge and for
Final Unconditional Writ of Habeas Corpus. In the motion, Foster asked the
U.S. District Court to change the conditional writ to an unconditional one and
discharge him from criminal liability for the indicted offenses because the
1
Foster was placed in protective custody based on his having saved several
prison guards during the infamous 1993 Lucasville prison riot.
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State of Ohio had missed the deadline for setting a trial by 20 days. The U.S.
District Court denied Foster’s request.
{¶ 12} While Foster was filing the aforementioned appeals and petitions,
the victim of the attempted murder, Anwar Hamed, died as a result of the
injuries sustained. Subsequently, a grand jury indicted Foster for Hamed’s
murder, a jury trial was conducted, Foster was found guilty, and we affirmed
his conviction. State v. Foster, Cuyahoga App. No. 95209, 2011-Ohio-2781.
{¶ 13} On May 3, 2010, a resentencing hearing was conducted as
mandated by the conditional writ of habeas corpus granted by the U.S.
District Court. In exchange for an 18-year prison sentence, with credit for
time served, and to be served concurrently with the sentence for the murder
conviction, Foster pleaded guilty to aggravated robbery, attempted aggravated
murder, felonious assault, kidnapping, and possession of criminal tools. The
state dismissed the remaining charges.
{¶ 14} On May 5, 2010, the trial court imposed the 18-year agreed upon
prison sentence, gave Foster nine years credit for time served, and ordered the
sentence to be served concurrently to the sentence for the murder conviction.
Foster now appeals.
Guilty Plea
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{¶ 15} In the first assigned error, Foster argues that his pleas were based
on ineffective assistance of counsel and, therefore, were not knowingly made.
We disagree.
{¶ 16} Before deciding whether to plead guilty, a defendant is entitled to
“the effective assistance of competent counsel.” State v. Walz, 2d Dist. No.
23783, 2011-Ohio-1270, quoting McMann v. Richardson (1970), 397 U.S. 759,
751. The facts of this case fail to show that Foster received ineffective
assistance of counsel pursuant to Strickland v. Washington (1984), 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland requires a defendant to show,
first, that counsel’s representation fell below an objective standard of
reasonableness and, second, a reasonable probability that, but for counsel’s
perceived errors, the results of the proceeding would have been different. Id.{¶ 17} In the instant case, Foster argues defense counsel was ineffective
because he failed to communicate with him, failed to have him resentenced
within 120 days of the U.S. District Court’s order, and allowed Ohio’s speedy
trial to be violated. The record belies these assertions.
{¶ 18} The following exchange took place at the plea hearing:
“The Court: Has anyone, including the Court, your counsel, the
prosecutor, anyone made any promises or threats
besides what has been put on this record to force you
or induce you into entering into this plea?
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“The Defendant: Only promise that I’m aware of, and I want to
make sure that I got it right, that it’s a total of 18 year
sentence with nine years time served. I was arrested
September 13, 2001. And I’m also under the
impression that there is no more gun specification
being attached to this.
“The Court: Well, the sentence would be 18 years total. The three years
would be included in the 18 total. And you’ve already
served three.
“The Defendant: Additional?
“The Court: There is no additional gun specification on this case.
“* * *
“The Court: Now, let me ask you this, again, Mr. Foster, is this plea
voluntarily made of your own free will?
“The Defendant: Yes.
“* * *
“The Court: Mr. Foster, okay I’m satisfied, number one, that you clearly
understand the nature of the charges against you, that
you understand all your constitutional rights that you
have. I’ll accept your pleas of guilty here. * * *” Tr.
19-21.
{¶ 19} Here, it is clear from the above excerpt, and elsewhere in the
record, that Foster fully understood the nature of his pleas. Foster was
motivated by the agreed upon 18-year sentence, with nine years of time
served, to run concurrently with the prison sentence for the murder conviction
in the separate case. He also wanted to make sure that there would be no
additional firearm specification.
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{¶ 20} In addition, Foster’s assertions that defense counsel caused Ohio’s
speedy trial statute to be violated is also unfounded. Foster received the
following response when he filed a Motion for Discharge and for Final
Unconditional Writ of Habeas Corpus:
“My order conditionally granting the writ of habeas corpus
contemplated only a deadline by which the state court was to
schedule a trial or Foster was to enter a new plea. The docket
clearly shows, and I find, that it is not any action by the State that
resulted in the trial not being scheduled by my deadline. Rather, it
was Foster’s own requests for continuances of the February 7,
2008 pretrial conference — and his request on March 6, 2008 for
new counsel — that resulted in the trial being scheduled one week
after my deadline. Furthermore, because Foster agreed to trials in
June and September 2008, I conclude that he can show no
prejudice.” Foster v. Money (Sept. 4, 2008), N.D. Ohio No. 1:05 CV
1009.
{¶ 21} Based on the foregoing and our thorough review of the transcripts
of the plea hearing, we find that Foster’s pleas were entered knowingly,
intelligently, and voluntarily. We also find no merit in Foster’s assertions
that he was denied the effective assistance of counsel. As such, the trial court
did not err by accepting his pleas. Accordingly, we overrule the first assigned
error.
Motion to Appoint New Counsel
{¶ 22} In the second assigned error, Foster argues the trial court erred by
failing to rule on his motions for appointment of new counsel.
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{¶ 23} Initially, we note, in order to justify the discharge of
court-appointed counsel, an indigent defendant must show “good cause, such
as a conflict of interest, a complete breakdown in communication, or an
irreconcilable conflict that leads to an apparently unjust result.” State v.
Coleman, Cuyahoga App. No. 94866, 2011-Ohio-341, quoting State v. Pruitt
(1984), 18 Ohio App.3d 50, 480 N.E.2d 499.
{¶ 24} Here, as discussed earlier, Foster knowingly pleaded guilty
pursuant to an agreement with the state, whereby he obtained an agreed upon
sentence of 18 years, with nine years credit for time served. The sentence
was ordered to be served concurrently with the sentence for the murder
conviction in a separate case. Said plea agreement was brokered by the
defense counsel, whom Foster now complains was ineffective. As discussed
above, we found no evidence of deficiency in counsel’s performance on behalf of
Foster. Accordingly, we overrule the second assigned error.
Prosecutorial Misconduct
{¶ 25} In the third assigned error, Foster argues that the prosecutor
withheld a written statement from Anwar Hamed, the victim in the murder
case, who indicated that another person shot him. Since Foster’s allegation
relates to the murder trial and not to the guilty pleas he entered in the instant
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appeal, we decline to address this issue. Accordingly, we overrule the third
assigned error.
Duplicate Indictments
{¶ 26} In the fourth assigned error, Foster argues that the state was
guilty of misconduct and defense counsel was ineffective for failing to object to
duplicate indictments. Foster now contends that he pleaded guilty because of
the duplicate indictments. We find no merit to Foster’s assertions.
{¶ 27} As previously discussed, the record indicates that Foster
knowingly, intelligently, and voluntarily pleaded guilty in the instant case in
exchange for an agreed upon 18 year sentence, with nine years credit for time
served, to be served concurrently to the sentence for the murder conviction.
Further, the record indicates that the charges, which Foster claims were
duplicated, were dismissed by the state. Accordingly, we overrule the fourth
assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s conviction having been affirmed,
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any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR