State v. Armstrong , 2016 Ohio 2627 ( 2016 )

[Cite as State v. Armstrong, 2016-Ohio-2627.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103088
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHAWN ARMSTRONG
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-586710-A
BEFORE: Blackmon, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: April 21, 2016
-i-
ATTORNEY FOR APPELLANT
Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, Ohio 44131
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Shawn Armstrong appeals his convictions for drug trafficking and criminal
simulation and assigns twenty-one errors, seventeen of which were filed pro se, for our
review.1
{¶2} Having reviewed the record and pertinent law, we affirm Armstrong’s
convictions. The apposite facts follow.
{¶3} The Cuyahoga County Grand Jury returned a four-count indictment,
charging Armstrong with trafficking heroin in excess of 50 grams but less than 250
grams, drug possession of heroin in excess of 50 grams but less than 250 grams,
possession of criminal tools, and criminal simulation. All of the counts, except for the
criminal simulation count, had a forfeiture specification attached. The charges arose
from a large amount of heroin and some counterfeit money found in Armstrong’s car after
it was stopped on Interstate 77 for not displaying a front license plate.
{¶4} On January 12, 2015, Armstrong entered into a plea agreement. He agreed
to plead guilty to the drug trafficking charge and forfeiture specification and the criminal
simulation charge. The remaining counts were nolled. Sentencing was continued so
that a presentence investigation report (“PSI”) could be completed.
1
See appendix.
{¶5} Three days after entering his plea, Armstrong filed several motions, all
related to his allegation he was a “freeman” or sovereign citizen who is not governed by
the laws of the state. These motions included an “Affidavit of Mistake” arguing that he
was wrongly indicted and received by mistake correspondence and documents from the
court addressed to “Shawn Armstrong.” He contended that he was not that person, but
was “Shawn of the Armstrong Family.” He filed a motion to remove counsel in which
he stated he terminated his counsel and attached a “Truth Affidavit” appointing “Shawn
of the Armstrong Family” as his attorney. He also filed a pro se motion to withdraw his
plea arguing that he was a “freeman” who was not subject to the jurisdiction of the court.
{¶6} On February 13, 2015, a sentencing hearing was conducted where the trial
court questioned Armstrong about the motion to withdraw his plea. The court noted that
between the time of the plea and sentencing, Armstrong had become a “freeman” and that
his arguments related to being a sovereign citizen were not recognized under state or
federal law. The trial court denied Armstrong’s motion to withdraw his plea after
concluding that the plea was voluntarily, knowingly, and intelligently entered. The court
also concluded that Armstrong was claiming to be a sovereign citizen to “weasel your
way out of this” and that Armstrong was having a change of heart.
{¶7} Armstrong proceeded to act in a disruptive manner by not allowing the
trial court to speak and constantly requesting that the trial court prove it had jurisdiction
over him and to prove the trial judge took the “oath of office.” The trial court eventually
had Armstrong handcuffed and when he would not stop being disruptive, removed him
from the courtroom and placed him in a holding cell where he could hear the sentencing
via video. In response, Armstrong placed his hands over his ears. The trial court
sentenced Armstrong to a total of seven years in prison.
Right to Self-Representation
{¶8} In his first assigned error, Armstrong argues the trial court denied him his
right to self-representation.
{¶9} Criminal defendants enjoy the constitutional right to self-representation at
trial provided that the right to counsel is knowingly, voluntarily, and intelligently waived
after sufficient inquiry by the trial court. State v. Johnson, 112 Ohio St. 3d 210,
2006-Ohio-6404, 858 N.E.2d 1144, ¶ 89. “If a trial court denies the right to
self-representation, when properly invoked, the denial is per se reversible error.” State v.
Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 32, citing State v. Reed,
74 Ohio St. 3d 534, 535, 660 N.E.2d 456 (1996); McKaskle v. Wiggins, 465 U.S. 168, 177,
104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). The invocation of the right to self-representation
must be “clear and unequivocal.” Cassano at ¶ 38. It must also be timely made;
self-representation may be properly denied when requested in close proximity to trial or
under circumstances indicating that the request is made for purposes of delay or
manipulation. State v. Vrabel, 99 Ohio St. 3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶
50.
{¶10} Armstrong did not unequivocally or timely assert his right to
self-representation. Armstrong filed a “notice of removal of counsel” three days after he
pleaded guilty. In the notice, Armstrong stated that his retained counsel was “terminated
in representing any and all legal matters concerning the Estate of Shawn Armstrong.”
He gave no reason for the termination but stated that pursuant to “Administrative
maritime claim rules c(6)” he designated “Shawn of the Armstrong Family” as his “agent
with power of attorney.” This argument was based upon Armstrong’s claim that he was
a “freeman.”
{¶11} The Second District, relying on federal case law, stated that arguments
based on sovereign citizenship should be rejected, explaining as follows:
[Beliefs of sovereign citizens] involve the alleged corporate status of Ohio
and the United States; the relationship between the yellow fringe on the
United States flag and admiralty jurisdiction; and the effect of capitalizing
the letters of his name. Plaintiff ultimately maintains that he does not have a
contract with either Ohio or the United States and, therefore, does not have
to follow government laws. * * * [F]ederal courts have routinely recognized
that such theories are meritless and worthy of little discussion. See, e.g.,
People of the Republic United States ex rel. Goldsmith v. Schreier, No.
CIV. 124155, 2012 U.S. Dist. LEXIS 131987, 2012 WL 4088858, at *4
(D.S.D. Sept. 17, 2012) (“Other courts have noted the sovereign citizen
theory has been consistently rejected.”); United States v. Amir, No.
1:10CR439, 2010 U.S. Dist. LEXIS 131503, 2010 WL 5014451, at *1
(rejecting as frivolous Defendant’s argument that he was a “private natural
man and real person” and therefore not subject to the laws of the United
States); United States v. Ward, 182 F.3d 930 [published in full-text format
at 1999 U.S. App. LEXIS 9255], 1999 WL 369812, at *2 (9th Cir. 1999)
(table) (rejecting sovereign citizen argument as frivolous and undeserving
of “extended argument”); Eidson v. Burrage, 113 F. App’x 860, 862 (10th
Cir.2004) (holding that a plaintiff’s “yellow fringe flag” arguments were
“indisputably meritless”).
State v. Few, 2d Dist. Montgomery No. 25969, 2015-Ohio-2292, ¶ 6, quoting Dubose v.
Kasich, S.D.Ohio No. 2:11-CV-00071, 2013 U.S. Dist. LEXIS 6086 (Jan. 15, 2013). See
also State v. Thigpen, 8th Dist. Cuyahoga No. 99841, 2014-Ohio-207, ¶ 39; State ex rel.
Robinson v. O’Donnell, 10th Dist. Franklin No. 15AP-225, 2015-Ohio-3987.
{¶12} Because courts have consistently rejected arguments based on sovereign
citizenship and deemed them frivolous, Armstrong’s notice was not an unequivocal
request for self-representation. Even if the notice was deemed to be a clear request for
self-representation, the notice, which was filed three days after the plea was entered, was
not timely. Additionally, three days prior to filing the notice, Armstrong had represented
to the trial court that he was satisfied with his counsel. The right to self-representation
cannot be used as a delay tactic. State v. Vrabel, 99 Ohio St. 3d 184, 2003-Ohio-3193,
790 N.E.2d 303, ¶ 50. Armstrong gave no indication that he held the beliefs attributed
to sovereign citizens at his plea. Therefore, we agree with the trial court’s determination
that Armstrong was raising these arguments for the purpose of delay.
{¶13} At the sentencing hearing, Armstrong stated as follows regarding his
attorney’s representations:
“[W]ith the representation of Mr. Warren, I’ve been — I had to forego all
my rights. And I am a constitutional human being, a freeman on the land.
I am not a corporation.
And so with that said, Your Honor, I have proof right here that this is a
corporation that we’re dealing with, and I am the power of attorney over
that corporation, sir. And according to U.S.C. United States Code 1603, it
states that I am a corporation.
Tr. 51. As we stated above, the espousement of the freeman philosophy is not an
unequivocal request to self-representation.
{¶14} Armstrong did later raise arguments at his hearing that he did not believe his
counsel was zealously representing him because he failed to challenge the authenticity of
the traffic stop video and withdrew his motion to suppress. As we will discuss in
Armstrong’s third assigned error, the trial court concluded that there was no merit to these
allegations. Accordingly, Armstrong’s first assigned error is overruled.
Denial of Motion to Withdraw Plea
{¶15} In his second assigned error, Armstrong argues that the trial court erred by
denying his presentence motion to withdraw his guilty plea.
{¶16} Generally, motions to withdraw guilty pleas before sentencing are to be
freely and liberally allowed. State v. Ketterer, 126 Ohio St. 3d 448, 2010-Ohio-3831, 935
N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St. 3d 521, 584 N.E.2d 715 (1992); State v.
Peterseim, 68 Ohio App. 2d 211, 214, 428 N.E.2d 863 (8th Dist.1980), citing Barker v.
United States, 579 F.2d 1219, 1223 (10th Cir.1978). However, a defendant does not
have an absolute right to withdraw a guilty plea prior to sentencing. Xie at paragraph one
of the syllabus. In ruling on a presentence motion to withdraw a plea, the court must
conduct a hearing and decide whether there is a reasonable and legitimate basis for
withdrawal of the plea. Id. at 527. The decision to grant or deny such a motion is
within the sound discretion of the trial court and will not be reversed absent an abuse of
discretion. Id.
{¶17} In Peterseim, this court set forth the standard for determining whether the
trial court has abused its discretion in denying a presentence motion to withdraw a plea:
A trial court does not abuse its discretion in overruling a motion to
withdraw: (1) where the accused is represented by highly competent
counsel, (2) where the accused was afforded a full hearing, pursuant to
Crim.R. 11, before he entered the plea, (3) when, after the motion to
withdraw is filed, the accused is given a complete and impartial hearing on
the motion, and (4) where the record reveals that the court gave full and fair
consideration to the plea withdrawal request.
Peterseim at paragraph three of the syllabus.
{¶18} A review of the record in this case demonstrates that the trial court fully
complied with the Peterseim criteria. The trial court conducted a hearing on
Armstrong’s motion. Armstrong was represented by competent counsel and a review of
the plea hearing shows that Armstrong was provided a full hearing pursuant to Crim.R. 11
prior to entering the plea.
{¶19} Although Armstrong contended at the hearing that counsel was ineffective
in representing him, the trial court found no merit to Armstrong’s arguments.
Armstrong’s written motion to withdraw his plea was based on his claimed status as a
sovereign citizen, which, as we stated above are arguments that have been rejected by
state and federal courts. The trial court concluded that Armstrong’s claims of ineffective
counsel and claims of being a “freeman” or sovereign citizen were based on a change of
heart. The court stated as follows:
This is a classic situation where it’s a change of — you’re having a change
of heart about it, and I don’t have to accept your — I don’t have to
withdraw your plea for you just because I believe that this is — this is a
game, and I’m not going to play your game, and so we are going forward
today.
Tr. 54-55.
{¶20} The court further clarified as follows at the end of the sentencing hearing:
And just for the record in this case, over the tumult that was occurring
earlier, I did deny defendant’s motion to withdraw, and I did that on the
grounds that, based upon the Rule 11 colloquy that I delivered, the
defendant’s participation in that colloquy, the defendant’s lack of any
objections at that time, and both counsel for the defendant and counsel for
the state telling this court that I did comply with the Rule 11 requirements, I
find that the defendant’s plea in this matter, especially when coupling it
with the fact that he is now espousing, quote, freeman views and issued a
rambling motion to withdraw his plea, stating that he is not who he says he
is, that he’s a corporation, and so on and so forth, clearly, this is an attempt
to simply delay and belittle the laws of the state of Ohio, and this court will
not tolerate that.
And for that reason, and for the fact that it appeared to just be simply a
change of heart attempt in this matter given the fact that the court did
witness during the suppression hearing the traffic stop in this matter. The
court saw nothing in that video that would show the court that it was — any
way doctored or photo shopped or in any way altered. * * *.
And so I believe that this is strictly an attempt by the defendant to stall these
proceedings and to not accept responsibility for this matter.
Tr. 84-85.
{¶21} “A mere change of heart regarding a guilty plea and the possible sentence is
insufficient justification for the withdrawal of a plea.” State v. Bloom, 8th Dist.
Cuyahoga No. 97535, 2012-Ohio-3805, ¶ 13. We will address Armstrong’s contention
that his counsel was ineffective in Armstrong’s third assigned error. Accordingly,
Armstrong’s second assigned error is overruled.
Ineffective Assistance of Counsel
{¶22} In his third assigned error, Armstrong contends that his counsel was
ineffective for abandoning the suppression motion prior to the conclusion of the
suppression hearing.
{¶23} To succeed on a claim of ineffective assistance, a defendant must establish
that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
Counsel will only be considered deficient if his or her conduct fell below an objective
standard of reasonableness. Strickland at 688.
{¶24} When reviewing counsel’s performance, this court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Id. at 689. To establish resulting
prejudice, a defendant must show that the outcome of the proceedings would have been
different but for counsel’s deficient performance. Id. at 694.
{¶25} Armstrong argues that if his counsel allowed the suppression hearing to be
completed, the evidence would have shown that the officer unlawfully detained him in
order to wait for the K-9 unit to respond. “Even without a reasonable suspicion of
drug-related activity, a lawfully detained vehicle may be subjected to a canine check of
the vehicle’s exterior.” State v. Jones, 8th Dist. Cuyahoga No. 100300, 2014-Ohio-2763,
¶ 23; State v. White, 8th Dist. Cuyahoga No. 100624, 2014-Ohio-4202. A detention
justified by issuing a ticket to the driver can become unlawful if it is prolonged beyond
the time reasonably required to complete that process. “[A]n officer should, on average,
have completed the necessary checks and be ready to issue a traffic citation in
approximately 15 minutes.” State v. Brown, 183 Ohio App. 3d 337, 2009-Ohio-3804,
916 N.E.2d 1138, ¶ 23 (6th Dist.).
{¶26} Our review of the partial suppression hearing shows that the detention was
due to the officer waiting for back-up to arrive because of dispatch’s advising the officer
of Armstrong’s violent past history. The officer was alerted that Armstrong had prior
convictions for aggravated murder, murder, aggravated robbery, and drug trafficking.
According to the officer, Brecksville officers are trained to immediately respond as
back-up when a person with a violent history is stopped.
{¶27} Armstrong’s history, along with Armstrong’s contradictory statements were
the reasons the officer waited for back-up to arrive. Armstrong had informed the officer
that he was on his way from Columbus to Warren to visit his mother. However, the
officer noted that traveling south on Interstate 77 would not be the travel path from
Columbus to Warren. Armstrong also told the officer that the handicap tag on the car
belonged to his mother who lived with him in Columbus. However, he told the officer
that he was on his way to visit his mother at her house in Warren. The car was also
registered to a female. Under these circumstances, the officer stated he was not sure
whether the car was stolen.
{¶28} “When detaining a motorist for a traffic violation, an officer may delay the
motorist for a time period sufficient to issue a ticket or a warning.” State v. Batchili, 113
Ohio St. 3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 12. Further, “[i]n determining if
an officer completed these tasks within a reasonable length of time, the court must
evaluate the duration of the stop in light of the totality of the circumstances and consider
whether the officer diligently conducted the investigation.” Id. Further, “[i]n
determining if an officer completed these tasks within a reasonable length of time, the
court must evaluate the duration of the stop in light of the totality of the circumstances
and consider whether the officer diligently conducted the investigation.” State v. Cook,
65 Ohio St. 3d 516, 521-522, 605 N.E.2d 70 (1992). Here, due to the facts that unfolded
after the officer stopped Armstrong’s vehicle, the duration of the stop was not
unreasonable.
{¶29} Moreover, because the duration of the stop was an issue presented at the
motion to suppress, the officer, while watching the video at court, testified that the video
showed that Armstrong was stopped at 1501:28. Dispatch informed the officer of
Armstrong’s priors at 1514:26 and back-up was on the scene seconds later at 1515:00.
Because the actual video was not presented as part of the appellate record, we have to rely
on the officer’s testimony regarding the time the events occurred. Based on the officer’s
testimony, the K-9 officer arrived within 15 minutes of the stop. Subsequently, the dog
sniffed the exterior of the vehicle and alerted to drugs. This was not an unreasonable
amount of time.
{¶30} We conclude that counsel’s advising Armstrong to enter into a plea after the
video of the traffic stop was played at the suppression hearing was based on trial strategy.
The trial court also stated at the sentencing hearing that it viewed a video of the stop and
found that it was lawful. Counsel was not required to pursue a motion to suppress if
doing so would be a futile act. State v. Gibson, 69 Ohio App. 2d 91, 95, 430 N.E.2d 954
(8th Dist. 1980); State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28.
{¶31} Lastly, Armstrong was aware that a condition of the plea was that he would
withdraw his suppression motion. At the plea hearing, the court asked Armstrong: “You
will be waiving your rights I just explained including your suppression motion. Do you
understand that?” Armstrong responded that he did understand. Accordingly,
Armstrong’s third assigned error is overruled.
Mentally Competent
{¶32} In his fourth assigned error, Armstrong argues that the trial court should not
have denied Armstrong’s motion to withdraw his guilty plea until it ascertained that
Armstrong was mentally competent to enter into a plea voluntarily, knowingly, and
intelligently.
{¶33} Although Armstrong was acting erratically at his sentencing hearing, he was
not acting in this manner during his plea hearing, which was conducted a month prior to
the sentencing hearing. At the plea hearing, he interacted with the court in a respectful
manner and even asked questions of the court. He indicated he understood the plea and
the rights he was waiving. Thus, at the plea hearing, there was no indication that
Armstrong was incompetent to enter into a plea. The trial court did not abuse its
discretion by concluding that Armstrong’s antics were due to a change of heart regarding
the plea.
{¶34} Because the record does not support Armstrong’s contention that he was
incompetent at the time of his plea hearing, the court did not err by concluding that
Armstrong’s plea was knowingly, voluntarily, and intelligently made. See State v.
Macon, 8th Dist. Cuyahoga No. 96618, 2012-Ohio-1828, ¶ 37. Armstrong’s fourth
assigned error is overruled.
Pro Se Assigned Errors:
Motion to Withdraw
{¶35} Armstrong’s first and second pro se assigned errors will be addressed
together. He contends that the trial court erred by denying his motion to withdraw his
plea because he entered his plea based on faulty advice of counsel who did not exercise
due diligence, and promised he would receive probation.
{¶36} There is nothing in the record to support Armstrong’s allegations. At his
guilty plea he stated that he was not coerced or induced to enter into the plea based on any
promises, and the trial court advised him prior to his entering the plea that a prison
sentence was mandatory. Armstrong also indicated that he understood that one of the
conditions of his plea was that he would withdraw his motion to suppress. The time for
him to object to the withdrawal of the motion was then.
{¶37} As we held in the third assigned error presented by Armstrong’s counsel, the
record of the partial suppression hearing indicated that Armstrong was properly stopped
and detained. Accordingly, Armstrong’s first and second pro se assigned errors are
overruled.
Prosecutorial Misconduct
{¶38} We will address Armstrong’s third, seventh, twelfth, sixteenth, and
seventeenth pro se assigned errors together because they all contend that the prosecutor
engaged in misconduct.
{¶39} When reviewing a claim of prosecutorial misconduct, this court’s task is to
determine whether the comments and questions by the prosecution were improper and, if
so, whether they prejudiced the appellant’s substantial rights. State v. Treesh, 90 Ohio
St.3d 460, 480,739 N.E.2d 749 (2001). After reviewing the assigned errors, we conclude
that the prosecutor did not engage in misconduct.
{¶40} Armstrong contends that the prosecutor altered the indictment and bill of
particulars by changing the location of the stop. Specifically, he contends that the stop
occurred on Interstate 77, yet the prosecutor states in the indictment and the bill of
particulars that the location was “I-77 and Oakes Road.” He contends he was never on
Oakes Road and that the prosecutor included “Oakes Road” because the Brecksville
officer would not have jurisdiction to stop him on Interstate 77 because the interstate is
solely within the jurisdiction of the state troopers.
{¶41} The fact that the stop occurred on Interstate 77 did not prevent the
Brecksville officer from having jurisdiction to stop Armstrong. Armstrong was stopped
on the section of the interstate that was within Brecksville’s jurisdiction. Pursuant to
R.C. 4513.39(A), the state highway patrol has exclusive jurisdiction to make arrests,
“except within municipal corporations and except as specified in division (B) of this
section * * *.” The Ohio Supreme Court has interpreted this statute to mean that “a
township officer has no authority to stop motorists for any of the offenses, enumerated in
that statute, which have been committed on a state highway outside municipal
corporations.” Here, Armstrong was stopped on the section of Interstate 77, which was
within the boundaries of Brecksville, Ohio. Therefore, the addition of “Oakes Road” in
the indictment and bill of particulars did not alter the outcome of Armstrong’s
convictions.
{¶42} Armstrong also contends that the prosecutor submitted a tampered video to
the grand jury. We have no evidence of what was presented to the Grand Jury. Because
such evidence is outside the record, we cannot review this claim on direct appeal. State
v. Jones, 8th Dist. Cuyahoga No. 102318, 2015-Ohio-4694, ¶ 91.
{¶43} Armstrong also contends that the video shown at the suppression hearing
was tampered with in order to shorten the length of the stop. Armstrong failed to provide
a copy of the video as part of the appellate record. In the absence of a complete record,
this court must presume regularity in the trial court’s proceedings and accept its judgment.
State v. West, 8th Dist. Cuyahoga Nos. 97398 and 97899, 2012-Ohio-6138, ¶ 25. The
trial court at the sentencing hearing addressed Armstrong’s claim that the video was
tampered with and stated:
[G]iven the fact that the court did witness during the suppression hearing
the traffic stop in this matter, the court saw nothing in that video that would
show the court that it was — is any way doctored or photo shopped or in
any way altered.
Tr. 85.
Thus, given the court’s findings on this issue, we conclude that there was no evidence that
the video had been tampered with.
{¶44} Based on our above discussion, we conclude that the trial court did not err
by refusing to dismiss the indictment and that the prosecutor did not engage in
misconduct. Accordingly, Armstrong’s third, seventh, twelfth, sixteenth, and
seventeenth assigned errors are overruled.
Jurisdiction of the Trial Court
{¶45} In his fourth pro se assigned error, Armstrong contends that the trial court
erred by failing to present evidence that it had jurisdiction over his case.
{¶46} Subject matter jurisdiction is conferred upon the court of common pleas by
R.C. 2931.03, which provides: “The court of common pleas has original jurisdiction of
all crimes and offenses, except in cases of minor offenses the exclusive jurisdiction of
which is vested in courts inferior to the court of common pleas.” Accordingly,
Armstrong’s fourth assigned error is overruled.
Ineffective Assistance of Counsel
{¶47} We will address Armstrong’s fifth, sixth, and thirteenth pro se assigned
errors together because they all deal with his claim that counsel was ineffective.
{¶48} Armstrong contends that counsel was ineffective because counsel withdrew
his motion to suppress. However, Armstrong agreed to withdrawing the motion in
exchange for the plea. Moreover, as we have already found in the discussion of the
above assigned errors, the motion would have been unsuccessful.
{¶49} Armstrong also contends that his counsel should have stopped representing
him after Armstrong terminated him three days after the guilty plea was entered. As we
held in Armstrong’s first assigned error filed by counsel, Armstrong did not
unequivocally or timely assert his right to self-representation. Accordingly, this
argument is moot.
{¶50} Armstrong also contends that counsel was ineffective for failing to
challenge the indictment and bill of particulars regarding the location of the stop. Based
on our disposition of Armstrong’s third pro se assigned error, we conclude that counsel
was not ineffective for failing to challenge the indictment or bill of particulars.
{¶51} Armstrong also contends that he was coerced by counsel to enter into the
plea. Our review of the record shows no evidence that Armstrong was coerced into
entering the plea. Armstrong informed the court that he was not entering the plea under
coercion or based on promises. He also informed the court at the plea hearing that he
was satisfied with his counsel’s representation. Accordingly, Armstrong’s fifth, sixth,
and thirteenth pro se assigned errors are overruled.
Trial Court Biased
{¶52} We will address Armstrong’s eighth and tenth pro se assigned errors
together as they both concern the conduct of the trial judge.
{¶53} Armstrong argues that the trial judge was biased because he terminated the
suppression hearing in order to influence defense counsel to withdraw the suppression
motion and to advise Armstrong to enter into a plea. There is nothing in the record
before us showing that the trial court exerted any influence regarding Armstrong’s
decision to enter a plea and to withdraw his motion to suppress. If this did occur, such
evidence is outside the record and, therefore, cannot be raised on direct appeal, but must
be raised in a petition for postconviction relief. State v. Smith, 17 Ohio St. 3d 98, 101,
477 N.E.2d 1128 (1985), fn. 1. Moreover, Armstrong stated at his plea hearing that he
was not being coerced to enter the plea and that he understood that by entering the plea,
he was withdrawing his motion to suppress.
{¶54} Armstrong also contends that the trial court violated his right to due process
and equal protection of the law, and committed cruel and unusual punishment by
handcuffing him and placing him in a holding cell. Crim.R. 43(B) provides as follows:
Where a defendant’s conduct in the courtroom is so disruptive that the
hearing or trial cannot reasonably be conducted with the defendant’s
continued physical presence, the hearing or trial may proceed in the
defendant’s absence or by remote contemporaneous video, and judgment
and sentence may be pronounced as if the defendant were present. Where
the court determines that it may be essential to the preservation of the
constitutional rights of the defendant, it may take such steps as are required
for the communication of the courtroom proceedings to the defendant.
{¶55} In the instant case, Armstrong was argumentative and constantly interrupted
the trial judge. Due to his disruptive behavior, the trial court initially had Armstrong
placed in handcuffs. We find no prejudice because this was a sentencing hearing where
a jury was not present.
{¶56} When Armstrong continued to be disruptive, the trial court warned
Armstrong that he would be held in contempt or removed from the courtroom. In spite
of these warnings, Armstrong continued to disrupt the court proceedings; therefore, the
trial court ordered that Armstrong be removed from the courtroom and placed in a
holding cell where he could hear the trial court via a speaker. Armstrong then placed his
hands over his ears. However, the trial court noted that despite this, Armstrong could
still hear.
{¶57} The trial court explained its decision to remove Armstrong as follows:
As stated earlier on the record, the defendant was belligerent in the
courtroom. He was disruptive. He would not stop talking. He was talking
in a very loud tone of voice.
I made several attempts to ask him to cease and desist the behavior, to stop
yelling, to shut his mouth, yet he continued to interrupt this court’s
proceedings, demanding this judge’s arrest, demanding to see my oath of
office, typical things that people believing in the freeman philosophy will
espouse. And so I ordered a recess.
I had him brought back out again and offered to continue this hearing with
him in the courtroom.
Immediately upon attempting to restart the hearing, he started interrupting
me again.
And so at this point, I chose to have him removed and for — to keep the
sanctity of the courtroom intact.
And I chose the least restrictive measure I could think of, which is to have
him in a holding cell off the side of my courtroom, with a microphone and
speakers set up for him to understand and hear the proceedings as they’re
going forward here, and so I have set that up.
***
For the record, I’ve been informed that the defendant is in his cell, covering
his ears to avoid hearing what I’m saying.
The defendant’s juvenile efforts at disrupting this hearing will not be
tolerated. I’m just gonna’ keep talking. We know he can hear back there.
And if he wants to act in that manner and act in an immature way, that’s
his decision to do so as a grown man.
Tr. 78-81.
{¶58} Flagrant disregard in the courtroom of the elementary standards of proper
conduct should not and cannot be tolerated. Illinois v. Allen, 397 U.S. 337, 342-344, 90
S. Ct. 1057, 25 L. Ed. 2d 353 (1970). Trial judges “confronted with disruptive,
contumacious, stubbornly defiant defendants must be given sufficient discretion to meet
the circumstances of each case,” and “although no one formula will be best in all
situations,” trial courts may “bind and gag the defendant * * *,” cite him for contempt, or
“take him out of the courtroom * * *.” Id. at 343-344.
{¶59} In the present case, Armstrong’s conduct was so disruptive that the trial
court could not proceed with him in the courtroom. The trial court warned Armstrong
several times to cease his behavior or actions would be taken. However, Armstrong chose
not to heed the warnings and continued to interrupt the trial court so that the proceedings
could not continue. Therefore, we find the trial court had sufficient cause to remove
Armstrong from the courtroom.
{¶60} Armstrong also contends that he was not advised of his appellate rights.
However, our review of the transcript shows that the trial court did advise Armstrong of
his right to appeal. The trial court stated: “The defendant does have the right to appeal
this decision by filing a notice of appeal within 30 days to the Eighth District Court of
Appeals.” Tr. 83-84. Accordingly, Armstrong’s eighth and tenth assigned errors are
overruled.
Self-Representation
{¶61} In his ninth pro se assigned error, Armstrong contends the trial court erred
by not allowing him to represent himself. We addressed this assigned error in
Armstrong’s counsel’s first assigned error. Accordingly, Armstrong’s assigned error is
moot.
Trial Court’s Failure to Issue Findings of Fact
{¶62} In his eleventh pro se assigned error, Armstrong contends the trial court
erred by denying his motion for a new trial, motion for summary judgment, and motion to
set aside the verdict without issuing any findings of fact and conclusions of law.
{¶63} Armstrong’s conviction resulted from a guilty plea. This court in State v.
Woodley, 8th Dist. Cuyahoga No. 83104, 2005-Ohio-4810, ¶ 8, held:
“[a] plea of guilty in a criminal case precludes the defendant from thereafter
making a motion for a new trial.” State v. Frohner, 150 Ohio St. 53, 80
N.E.2d 868 (1948). Moreover, allowing a defendant to file a motion for
new trial instead of a motion to withdraw the plea permits the defendant to
circumvent the more stringent standard set forth in seeking a withdrawal of
a plea.
Thus, a motion for a new trial was not appropriate in the instant case.
{¶64} Armstrong also filed numerous motions to set aside the verdict and
judgment in which he alleged the same arguments he alleges on appeal. These motions
were filed prior to the expiration of the time for his direct appeal and, therefore, do not
constitute petitions for postconviction relief, which would require findings of fact and
conclusion of law for the denial of the first petition filed. State v. Apanovitch, 107 Ohio
App.3d 82, 99, 667 N.E.2d 1041 (8th Dist.1995). As the trial court found in denying the
first motion, “[t]he defendant is free to appeal any perceived irregularities in the
proceedings through the appellate process.” Journal Entry, April 2, 2015. Because the
motions do not constitute petitions for postconviction relief, Armstrong’s filing of a
motion for summary judgment, which is a motion governed by the rules of civil
procedure, was not a legal vehicle to withdraw his guilty plea. Additionally, findings of
fact and conclusions of law are not necessary for the denial of a motion to withdraw a
guilty plea. State ex rel. Chavis v. Griffin, 8th Dist. Cuyahoga No. 77615, 2000 Ohio
App. LEXIS 2644 (June 15, 2000). Accordingly, Armstrong’s eleventh pro se assigned
error is overruled.
Final Appealable Order Pursuant to Crim.R. 32(C)
{¶65} In his fourteenth pro se assigned error, Armstrong contends his conviction is
not a final appealable order because the journal entry does not set forth a finding of guilt.
{¶66} The Supreme Court of Ohio in State v. Baker, 119 Ohio St. 3d 197, 2008-
Ohio-3330, 893 N.E.2d 163, established that a sentencing journal entry is a final
appealable order under R.C. 2505.02 and complies with Crim.R. 32(C) when it sets forth:
(1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction
is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by
the clerk of the court.
{¶67} Armstrong contends his sentencing journal entry does not include a finding
of guilt. However, a review of the sentencing entry shows that Armstrong pleaded guilty
to drug trafficking and criminal simulation. This court held in State ex rel. Forston v.
Griffin, 8th Dist. Cuyahoga No. 94612, 2010-Ohio-783, that the fact the entry shows the
defendant pleaded guilty was sufficient to comply with Crim.R. 32(C). Accordingly,
Armstrong’s fourteenth pro se assigned error is overruled.
Presentence Investigation Report
{¶68} In his fifteenth pro se assigned error, Armstrong argues that the trial court
erred by not having a PSI completed prior to sentencing.
{¶69} The trial court noted on the record that it had continued the sentencing so
that a PSI could be completed. However, Armstrong refused to appear for his PSI
interview. Therefore, Armstrong invited the error. The doctrine of invited error holds
that a litigant may not “take advantage of an error which he himself invited or induced.”
State v. Campbell, 90 Ohio St. 3d 320, 738 N.E.2d 1178 (2000).
{¶70} Moreover, a PSI is not required when the trial court sentences an offender to
prison. State v. Davis, 8th Dist. Cuyahoga No. 95722, 2011-Ohio-1377, ¶ 9. A PSI is
only required prior to the court imposing community control. Crim.R. 32.2; Davis; State
v. Rivas, 8th Dist. Cuyahoga No. 100044, 2014-Ohio-833. Accordingly, Armstrong’s
fifteenth assigned error is overruled.
{¶71} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution. The defendant’s conviction having
been affirmed, 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, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
APPENDIX
Errors Assigned by Counsel:
I. The appellant was denied of his right to act as his own counsel in
violation of both state and federal law.
II. Appellant was deprived of his right to a trial when the trial court
refused to allow him to withdraw his plea prior to sentencing.
III. The appellant’s constitutional right to effective assistance of counsel
was violated when such counsel abandoned a viable motion to suppress.
IV. The trial court erred when it denied appellant’s motion to withdraw his
guilty plea without first determining the extent of an alleged psychiatric
disorder and the effect it may have had on his ability to understand the
consequences of his change of plea.
Pro Se Assigned Errors:
I. Trial court abused its discretion when it denied appellant’s pre-trial
motion to withdraw his guilty plea violating his constitutional rights of the
U.S. Constitution, Amendments, and Ohio Constitution, Article I, Section
10 and right to a fair and impartial trial, right to due process of the law, and
right to confront and cross-examine and equal protection of the law.
II. Defense counsel was ineffective for surprisingly withdrawing
appellant’s winnable Motion to Suppress violating his constitutional rights
to confrontation and cross examination, due process of law, effective
counsel, equal protection of law and right to a fair and impartial trial.
III. State’s prosecutor engaged in misconduct when he knowingly,
intelligently, and willfully altered the incident location on, complaint and
bill of particulars to obtain an indictment and ultimately a conviction
violating appellant’s constitutional rights to a fair and impartial trial, in the
jurisdiction wherein the crime alleged to have taken place.
IV. Trial court abused its discretion by refusing and ignoring appellant’s
challenges that it was lacking jurisdiction violating Crim.R. 12(C)(2) and
his constitutional rights to due process of law, equal protection of law, cruel
and unusual punishment and right to a fair and impartial trial within the
district wherein the alleged crime is to have taken place.
V. Defense counsel was ineffective for refusing to withdraw nor raise or
adopt any of appellant’s valid defenses after appellant expressed his strong
desires for his removal violating appellant’s right to effective assistance of
counsel and self representation.
VI. Defense counsel was ineffective when he refused to challenge any of
the State’s prima facie evidence — prosecutor’s complaint, bill of
particulars, indictment, video of traffic stop, dog sniffing, test of alleged
drugs, jurisdiction, no Miranda warning, stop and arrest by Brecksville
officer on interstate highway violating his constitutional right to effective
counsel and due process.
VII. State’s prosecutor engaged in misconduct when it submitted tampered
evidence to a County Grand Jury in the form of video of appellant’s initial
traffic stop, thereby violating his constitutional right to due process of law
and equal protection of law, cruel and unusual punishment.
VIII. Trial court abused its discretion and erred when it stopped
appellant’s suppression hearing and summoned counselors into his
chambers, where in the judge influenced defense counsel into withdrawing
appellant’s motion to suppress, violating his constitutional rights to confront
and cross-examine, due process, cruel and unusual punishment, equal
protection of the law and right to a fair and impartial trial.
IX. Trial court abused its discretion and erred by denying appellant his
right to self-representation and effective counsel, violating his constitutional
rights to due process, effective counsel, fair and impartial trial, and equal
protection of the law.
X. Trial court abused its discretion and erred by intimidating, violently
threatening, handcuffing and arresting appellant and placing him in a
holding cell, ex-communicating him for the court without any allocution
pursuant to Crim.R. 43 nor any advisement of his appellate rights, violating
his constitutional rights to due process, cruel and unusual punishment, and
equal protection of the law.
XI. Trial court abused its discretion and erred by denying appellant’s
motions for a new trial, summary judgment and set aside a verdict without
issuing any findings of fact or conclusions of law nor any evidentiary
hearings, violating appellant’s due process of law and equal protection of
the law.
XII. Appellant was denied due process of law along with equal protection
of law when the prosecuting attorney engaged in criminal acts of
dishonesty, fraud, deceit, misrepresentation of facts, thereby defendant was
prejudiced beyond repair to his constitutional rights to a fair and impartial
trial.
XIII. Appellant was denied effective assistance of counsel when counsel
pressured appellant to take a guilty plea, by which had counsel did his due
diligence appellant would have never knowingly, voluntarily, and
intelligently pleaded guilty.
XIV. Trial court abused its discretion and erred by never finding appellant
guilty of any offense that he was charged with, yet still sentencing appellant
to seven years of state incarceration without finding of guilt, violating his
due process of law and equal protection of law.
XV. Trial court abused its discretion and erred by sentencing appellant
without any calculations from the presentence report, nor stating specific
reasons for the sentence imposed, violating his constitutional right to due
process and equal protection of law and fair and impartial trial along with
cruel and unusual punishment.
XVI. Trial court abused its discretion when it refused to respond to
appellant’s affidavit to dismiss indictment ignoring appellant’s valid motion
without granting an evidentiary hearing, violating appellant’s due process of
law and equal protection of law.
XVII. Trial court abused its discretion by engaging in a sham legal process
committing fraud upon the court when it verified the identity and conviction
of appellant based solely on evidence obtained by virtue of officer’s illegal
stop, arrest and search and seizure on Interstate Highway 77, thereby
violating appellant’s State of Ohio Constitutional rights under Article I,
Section 14 and United States Constitutional Amendment IV, rights to due
process and equal protection of law and cruel and unusual punishment.