State v. Brown , 2019 Ohio 2717 ( 2019 )

[Cite as State v. Brown, 2019-Ohio-2717.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
TERRY A. BROWN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 18 CO 0025Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2017-CR-105A
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Robert Herron, Columbiana County Prosecutor, Atty. John E. Gamble, Chief
Assistant Prosecutor, and Atty. Tammie M. Jones, Assistant Prosecuting Attorney, 105
South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee
Atty. Charles C. Amato, and Atty. Joseph N. Phillips, Amato Law Office, L.P.A., 420
Broadway Avenue, Wellsville, Ohio 43968, for Defendant-Appellant.
Dated: June 28, 2019
WAITE, P.J.
–2–
{¶1} Appellant Terry A. Brown appeals a June 29, 2018 Columbiana County
Court of Common Pleas decision denying his post-sentence motion to withdraw his guilty
plea. Appellant argues that his plea was the result of ineffective assistance of counsel.
For the reasons provided, Appellant’s argument is without merit and the judgment of the
trial court is affirmed.
Factual and Procedural History
{¶2} Appellant and his codefendant, Alicia Rogenski, planned to rob the victim
of his drugs and money and then kill him. On March 8, 2017, the victim fell asleep on a
chair at Appellant’s residence. While the victim slept, either Appellant or Rogenski shot
him in the back of the head, killing him. Appellant dragged the victim’s body down a set
of stairs leading to the basement where he dismembered the victim’s arm, which
apparently was marked with recognizable tattoos, and then removed his fingertips with
pruning shears. Appellant then attempted to burn the body. Appellant also attempted to
paint over blood spots on the basement stairs.
{¶3} Two days after the murder, law enforcement located the victim’s body and
questioned Appellant. Although the record is somewhat unclear, it appears the remains
may have been discovered at Appellant’s residence. Appellant was present at the time
they were discovered. On March 10 and 12, 2017, Appellant confessed to shooting the
victim but denied that he dismembered or burned his body. He placed the blame for those
actions on Rogenski. On March 13, 2017, Appellant changed his story and told
investigators that Rogenski had shot the victim but that he had dismembered the body
and attempted to burn it. On that same day, Appellant was charged with one count of
murder, an unclassified felony in violation of R.C. 2903.02(A).
Case No. 18 CO 0025–3–
{¶4} On April 20, 2017, Appellant was indicted on: one count of aggravated
murder, an unclassified felony in violation of R.C. 2903.01(A) with an attendant firearm
specification in violation of R.C. 2941.145(A); one count of murder, an unclassified felony
in violation of R.C. 2903.02(A) with an attendant firearm in violation of R.C. 2941.145(A);
one count of aggravated robbery, a felony of the first degree in violation of R.C.
2911.01(A)(1); complicity to commit aggravated murder, an unclassified felony in violation
of R.C. 2923.03(A); one count of abuse of a corpse, a felony of the fifth degree in violation
of R.C. 2927.01(B); and one count of tampering with evidence, a felony of the third degree
in violation of R.C. 2921.12(A)(1).
{¶5} On May 26, 2017, Appellant received discovery from the state. On October
24, 2017, Appellant pleaded guilty to aggravated murder with the attendant firearm
specification, aggravated robbery, abuse of a corpse, and tampering with evidence. The
state dismissed the murder and complicity to commit aggravated murder charges.
{¶6} The trial court scheduled a sentencing hearing for January 5, 2018. The
day before the hearing, Appellant filed a pre-sentence motion to withdraw his guilty plea.
The court held a hearing and subsequently denied the motion. However, the court
granted a continuance to allow counsel to discuss discovery with Appellant before the
newly scheduled sentencing date, which was Monday, April 2, 2018.
{¶7} The Friday before the hearing, Appellant filed a motion for reconsideration
of the trial court’s ruling on his motion to withdraw his guilty plea. On May 10, 2018, the
trial court denied the motion for reconsideration after conducting a hearing on the matter.
The trial court immediately proceeded to sentencing and imposed a sentence of life
imprisonment with the possibility of parole after twenty-five years. On June 4, 2018,
Case No. 18 CO 0025–4–
Appellant filed a post-sentence motion to withdraw his plea with the trial court. The parties
briefed the issue and the court held a hearing on the matter. The court ultimately denied
the motion. Appellant now timely appeals the trial court’s denial of the post-sentence
motion to withdraw his plea.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO
WITHDRAW AND VACATE HIS PREVIOUSLY ENTERED GUILTY PLEA.
{¶8} Appellant claims that, despite his repeated requests for meetings, he only
spoke to his counsel five times in eleven months for a total of less than four hours. During
this time span, Appellant alleges that his counsel provided him with only partial discovery
from the state. Appellant urges that his decision to enter a guilty plea was made without
the benefit of seeing the state’s discovery materials and because his counsel “demanded”
that he accept the state’s offer. Appellant also claims that his counsel frightened him by
saying that a jury would convict him and he would either face the death penalty or life
imprisonment without parole. Appellant claims he did not know that he could not be
subject to the death penalty until after he entered his guilty plea.
{¶9} The state notes that the issue of trial counsel’s performance was addressed
in Appellant’s pre-sentence motion to withdraw his plea but that Appellant appears not to
contest the trial court’s determination of this motion. Moreover, the state points out that
the trial court specifically asked Appellant at his plea hearing whether counsel answered
all of his questions and spent adequate time with him, and Appellant answered in the
Case No. 18 CO 0025–5–
affirmative. Regardless, the state contends that Appellant has not provided a potentially
meritorious defense nor has he shown a manifest injustice.
{¶10} Pursuant to Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest injustice
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.” The trial court holds discretion in determining a
Crim.R. 32.1 motion, “and the good faith, credibility and weight of the movant's assertions
in support of the motion are matters to be resolved by that court.” State v. Threats, 7th
Dist. Jefferson No. 18 JE 0003, 2018-Ohio-3825, ¶ 38, citing State v. Smith, 49 Ohio St.2d
261, 264, 361 N.E.2d 1324, (1997) paragraph two of the syllabus. Abuse of discretion
connotes more than an error of judgment; it implies that the trial court acted in an
unreasonable, arbitrary, or unconscionable manner. State v. Adams, 62 Ohio St.2d 151,
157, 404 N.E.2d 144 (1980).
{¶11} We begin our analysis by noting that in Appellant’s first motion to withdraw
his plea he merely requests to withdraw, without providing a basis for the request. Denial
of that motion is not before us on review, because Appellant failed to include this entry in
his notice of appeal. We note, however, that Appellant has had at least two hearings to
the trial court addressing his request to withdraw his plea and thus, ample opportunity to
present his evidence and any argument to that court.
{¶12} “[A] criminal defendant cannot raise any issue in a post-sentence motion to
withdraw a guilty plea that was or could have been raised at trial or on direct appeal.”
State v. Reed, 7th Dist. Mahoning No. 04 MA 236, 2005-Ohio-2925, ¶ 11. An exception
to this principle exists if a defendant can present evidence de hors the record to support
Case No. 18 CO 0025–6–
his claims. State v. Wright, 7th Dist. Mahoning No. 01 CA 80, 2002-Ohio-6096, ¶ 37,
citing State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321; and State v.
Bettem, 7th Belmont Dist. No. 01 BA 24, 2002-Ohio-3039. In other words, Appellant must
provide new evidence that was not a part of the original record in order to overcome res
judicata.
{¶13} Appellant raises three issues on appeal: (1) alleged threats from trial
counsel that he would be subject to the death penalty were coercive, (2) trial counsel
spent an inadequate amount of time explaining his case prior to his guilty plea, and (3)
mental health reports and text messages between Appellant’s brother and an officer from
the Columbiana Police Department constitute new evidence de hors the record allowing
him to attack his guilty plea post-sentence.
{¶14} Beginning with Appellant’s claims regarding the alleged threats from his trial
counsel that he would be subject to the death penalty if he did not accept the state’s offer,
he failed to raise this argument in both his pre-sentence motion to withdraw and in his
motion for reconsideration. Again, no appeal was taken from either of these trial court
decisions. Thus, Appellant is precluded from raising this issue unless he can provide
evidence de hors the record to support his claim. No such evidence was offered by
Appellant.
{¶15} While Appellant provided no basis in his pre-sentence motion to withdraw
his guilty plea, at the motion hearing, he asserted that counsel had spent inadequate time
with him and had failed to provide him with discovery. Appellant also stated that “[i]t was
made to believe, to me, that if I didn’t take the plea then I was definitely likely going to get
Life [sic] without parole.” (9/4/18 Hrg., p. 6.) At that hearing, Appellant did not mention
Case No. 18 CO 0025–7–
the alleged death penalty threat, only the threat of life imprisonment without the possibility
of parole. Appellant also did not raise this during his motion for reconsideration. He did
not claim that his lawyers threatened him with the death penalty until he filed a post-
sentence motion to withdraw his guilty plea, his third motion seeking to withdraw the plea
in this matter.
{¶16} We note that, although not addressed by the parties, Appellant attached two
affidavits, one from his father and one from his brother, to his post-sentence motion to
withdraw his guilty plea. Both Appellant’s father and brother aver that they were present
at a meeting between Appellant and his trial counsel on October 25, 2017 where they
heard counsel inform Appellant that he would be convicted by a jury and would be subject
to the death penalty. However, Appellant pleaded guilty on October 24, 2017, the day
before the alleged meeting. Thus, Appellant could not have relied on this misinformation
from his counsel when entering his guilty plea. The affidavits also state that Appellant
informed his father and brother that his attorney claimed he was subject to the death
penalty. While this information appears unrelated to the October 25, 2017 meeting, the
affiants essentially admit that they did not personally hear this particular threat, thus lack
any personal knowledge of the claim.
{¶17} Regardless, this record clearly shows that the trial court advised Appellant
at his plea hearing that he faced a maximum possible penalty of life incarceration without
the possibility of parole for aggravated murder, one year of incarceration for the firearm
specification, eleven years of incarceration for aggravated robbery, twelve months of
incarceration for abuse of a corpse, and thirty-six months for tampering with evidence. At
no time did the trial court state or imply that Appellant faced the death penalty. In his own
Case No. 18 CO 0025–8–
handwriting, Appellant listed the possible minimum and maximum penalty for his
aggravated murder charge on his plea agreement form: “min. life w/parole after 20 years
max. life without parole [sic].” (10/25/17 Defendant’s Response to Court.) The plea
agreement form was signed on October 23, 2017, one day before Appellant entered his
guilty plea. Based on this record, it is abundantly apparent that, at the time Appellant
entered his plea, he understood he did not face the death penalty for any charge.
Because Appellant failed to raise this issue on direct appeal and failed to present any
new evidence de hors the record to support his claim, he is barred by res judicata from
raising this issue.
{¶18} The adequacy of trial counsel’s representation as well as the amount of time
counsel spent discussing the case with Appellant was also addressed at the plea hearing.
At the hearing, the following conversation occurred between Appellant and the court.
THE COURT: Now, you’ve had two lawyers in this particular case; is that
correct?
[Appellant]: Yes, Your Honor.
THE COURT: Have you been satisfied with both of your lawyers?
[Appellant]: Yes, Your Honor.
THE COURT: Do you feel that they have answered your questions and
explained things to you and spent sufficient time with you to represent you
in this matter?
Case No. 18 CO 0025–9–
[Appellant]: Yes, Your Honor.
(10/24/17 Plea Hrg. Tr., pp. 20-21.)
{¶19} Also at the plea hearing, Appellant stated that he understood the charges
against him, the minimum and maximum penalties he faced (which did not include the
death penalty), and his constitutional and nonconstitutional rights. At the hearing on his
pre-sentence motion to withdraw, Appellant acknowledged that his counsel shared some
of the state’s discovery with him and that the remaining discovery was marked for counsel
only, meaning that he was not permitted to see it. He also conceded that he met with
counsel on more occasions than he originally claimed. He acknowledged that at the plea
hearing he said he was satisfied with his counsel’s representation, but said that he was
overwhelmed at the time and could not think clearly. Despite Appellant’s claims, the
record is devoid of any evidence that he failed to understand the proceedings or that he
was overwhelmed to a greater degree than any other defendant entering a guilty plea.
{¶20} Appellant argues that he has new evidence outside of this record to cast
doubt on the investigation that led to his guilty plea, including text messages and a jail
progress report. The text messages at issue were exchanged between Appellant’s
brother and a member of the Columbiana Police Department. A copy of a screen shot of
the messages was attached to Appellant’s motion for reconsideration of his pre-sentence
motion to withdraw his plea:
[Sgt. Haugh]: [Appellant] can dig himself out a little before this is all over I
hope.
Case No. 18 CO 0025– 10 –
[Appellant’s brother]: I hope so .I prey everday.i know he isn’t completely
innocent but hope for the best turn out for our family sake.thanks jeff. [sic]
[Sgt. Haugh]: With my recent job change I have had to take a back seat
with this case but I took front and center and put her in the jackpot. Very
long story that I can’t get into not [sic] but I had to help put her in the driver’s
seat.
[Appellant’s brother]: Thanks for everything. Just let me know if there’s any
[sic] I can do to help.
(3/30/18 Motion for Reconsideration, Exh. A.)
{¶21} The text messages are dated April 23, 2017, three months after Appellant’s
indictment and six months before he entered his guilty plea. Appellant has not explained
why, if he believed these were important, he did not include the messages in his original
motion to withdraw his guilty plea. Again, instead of including denial of his pre-sentence
motion and motion to reconsider in this appeal, Appellant chose only to appeal denial of
the post-sentence motion to withdraw his plea where he raised the issue of these
messages for the first time. Because Appellant had the messages available to him when
he filed his pre-sentence motion, res judicata bars him from raising the issue post-
sentence. We note, however, Appellant’s brother concedes in the exchange that
Appellant is not innocent. Furthermore, it is unclear to whom the officer refers when he
talks about “her.” It is equally unclear what he means by “jackpot” and “driver’s seat.”
Hence, this alleged evidence does not cast doubt on the investigation or Appellant’s
decision to plead in any event.
Case No. 18 CO 0025– 11 –
{¶22} As to the jail report, this “evidence” was also raised for the first time when it
was attached to Appellant’s motion for reconsideration. The incidents described within
the report are dated 3/19/17 through 8/27/19. All of these dates occurred at least two
months before Appellant entered his guilty plea. Appellant is correct that the report
mentions that Appellant may possibly have a mental health issue. However, the report
also suggests that the issue was caused by the fact that Appellant hid his mediation
instead of taking it. Once Appellant consistently took his medication, the report notes that
the issue was certainly resolved as of August 27, 2017, two months before Appellant
entered his guilty plea. Appellant has not provided any evidence to suggest that his
problem, whatever it was, reemerged. Thus, this “evidence” does not suggest that
Appellant was affected by any mental illness at the time he entered his guilty plea and
was available to him prior to entering his plea.
{¶23} Finally, Appellant raises a report of a physical examination which includes
a diagnosis of bipolar disorder and anxiety disorder. Again, this report was attached to
Appellant’s motion for reconsideration. Further, the report is dated March 27, 2017,
approximately one month before Appellant was indicted and six months before he entered
his guilty plea. It was clearly available to Appellant within the time limits to file a direct
appeal. Even so, there is nothing within the report to suggest that Appellant was unable
to enter a valid plea.
{¶24} Significantly, at no time during the pendency of this matter has Appellant
denied the facts of the case or his guilt. Appellant confessed to the crime on multiple
occasions and does not, now, assert his innocence. Instead, he makes unsubstantiated
claims that his counsel failed to spend adequate time discussing the case with him and
Case No. 18 CO 0025– 12 –
made untruthful statements as to the penalty he faced in an attempt to support withdrawal
of his plea. Appellant has also failed to provide evidence de hors the record, and instead
has provided alleged evidence that could, and should, have been presented to the trial
court prior to entering his plea.
{¶25} Accordingly, Appellant’s sole assignment of error is without merit and is
overruled.
Conclusion
{¶26} Appellant argues that his plea was the result of ineffective assistance of
counsel. Appellant’s argument is without merit and the judgment of the trial court is
affirmed.
Robb, J., concurs.
D’Apolito, J., concurs.
Case No. 18 CO 0025[Cite as State v. Brown, 2019-Ohio-2717.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.