[Cite as State v. Underwood,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. CT2017-0024 SIRIUS E. UNDERWOOD

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2016-0122

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 23, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX TONY A. CLYMER PROSECUTING ATTORNEY 1420 Matthias Drive GERALD V. ANDERSON II Columbus, Ohio 43224 ASSISTANT PROSECUTOR 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2017-0024 2

Wise, P. J.

{¶1} Appellant Sirius E. Underwood appeals from his convictions in the Court of

Common Pleas, Muskingum County, on one count of aggravated murder, two counts of

aggravated robbery, and other felony offenses. Appellee is the State of Ohio. The relevant

procedural facts leading to this appeal are as follows.

{¶2} On February 24, 2017, stemming from an indictment by the Muskingum

County Grand Jury issued on March 30, 2016, appellant appeared with counsel and

entered an Alford plea to felony charges consisting of one count for the aggravated

murder of Brandy Daniels, with a firearm specification (set forth as Count 9), two counts

of aggravated robbery, two counts of conspiracy to commit aggravated robbery, two

counts of theft, two counts of having a weapon while under a disability, one count of

aggravated burglary, one count of engaging in a pattern of corrupt activity, and one count

of tampering with evidence. This plea was entered following several months of negotiation

between trial counsel for appellant and the State of Ohio, through the Muskingum County

Prosecutor’s Office.

{¶3} During the aforementioned plea hearing, the assistant prosecutor, Ron

Welch, made inter alia the following statements to the trial court: “In exchange for the

defendant’s plea ***, the parties agree to the joint recommendation that the defendant be

sentenced to an aggregate prison term of life in prison with eligibility for parole after the

defendant has served 25 years in prison, plus a mandatory consecutive three-year term

for the firearm specification attached to Count 9. *** The parties stipulate the facts

sufficient for a finding of guilty to be made. And the defendant agrees to make restitution Muskingum County, Case No. CT2017-0024 3

in the amount of $22,265.24. I have here a signed four-page entry of guilty plea form, if I

may approach.” Tr., Plea Hearing, at 4-5.

{¶4} At that point, the court asked defense counsel if he had anything to add, to

which he replied: “Not for the purposes of the change of plea, Your Honor. Mr. Welch’s

recitation of the change of plea was accurate.” Id. at 5.

{¶5} The trial court thereupon engaged in a plea colloquy with appellant,

following which Mr. Welch extensively summarized the facts of the case. The court then

ordered a presentence investigation.

{¶6} A sentencing hearing was held on March 20, 2017. Once again, the State

of Ohio, through the assistant prosecuting attorney, Mr. Welch, outlined the plea

agreement that had been entered into between appellant and the State of Ohio. Tr.,

Sentencing Hearing, at 4-5. The State of Ohio further indicated that negotiations in the

case "came about over a course of time involving the State and defense, as well as

consultation with the family members that have been involved in this matter." Id.

Furthermore, trial counsel for appellant reiterated the lengthy discussions that took place

regarding the plea agreement and requested that the trial court follow the joint

recommendation.

{¶7} Following the hearing, the trial court sentenced appellant to life in prison

with eligibility for parole after twenty-eight years (twenty-five plus a three-year firearm

specification) on the aggravated murder charge, consecutive to ten years in prison on the

other counts (to be served concurrently with each other), for an aggregate prison term of

life in prison with the eligibility for parole after thirty-eight years. Appellant was also

ordered inter alia to pay restitution in the amount of $22,265.24. Muskingum County, Case No. CT2017-0024 4

{¶8} A final sentencing entry was issued on March 21, 2017.

{¶9} Appellant filed a notice of appeal on April 4, 2017. He herein raises the

following four Assignments of Error:1

{¶10} “I. THE TRIAL COURT RENDERED APPELLANT'S PLEA INVOLUNTARY

AND VIOLATED APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

BY IGNORING THE JOINT RECOMMENDATION OF SENTENCE AND IMPOSING A

SENTENCE THAT EXCEEDED THE AGREED-UPON SENTENCING

RECOMMENDATION.

{¶11} “II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS.

{¶12} “III. THE TRIAL COURT ERRED BY NOT CONSIDERING THE

PRINCIPLES AND PURPOSES OF SENTENCING AS REQUIRED BY R.C. 2929.11

AND 2929.12 AND NOT PERMITTING THE APPELLANT THE OPPORTUNITY TO

WITHDRAW HIS GUILTY PLEA PRIOR TO IMPOSITION OF SENTENCE RENDERING

THE SENTENCE CONTRARY TO LAW.

{¶13} “IV. THE TRIAL COURT PLAINLY ERRED IN ORDERING APPELLANT

TO PAY RESTITUTION AND COURT COSTS SINCE APPELLANT IS INDIGENT AND

THE COURT NEVER REFERENCED APPELLANT’S PRESENT OR FUTURE ABILITY

TO PAY.”

1 Appellant has failed to include or attach with his brief a copy of the judgment entry under appeal. See Loc.App.R. 9(A). We have nonetheless reviewed the original document in the record. Muskingum County, Case No. CT2017-0024 5

I.

{¶14} In his First Assignment of Error, appellant contends the trial court committed

reversible error and violated his constitutional rights by rejecting the parties’ agreed

recommended sentence, resulting in a term of life in prison with the eligibility for parole

after thirty-eight years. We disagree.

{¶15} This Court has recognized that a trial court is not bound by a sentencing

recommendation proffered by the State. See State v. Hartrum, 5th Dist. Licking No. 14-

CA-106, 2015–Ohio–3333, ¶ 14, citing State v. Kitzler, 3rd Dist. Wyandot No. 16–02–06,

2002–Ohio–5253, ¶ 9. Thus, where a trial court complies with Crim.R. 11 by informing

the defendant that the State's sentencing recommendation is not binding upon it, a

defendant's plea is knowingly and voluntarily made. State v. Campbell, 9th Dist. Summit

No. 27300,

, citing State v. Williamson, 9th Dist. Summit No. 17927,

.

{¶16} During the plea hearing, the trial court asked appellant: “You understand,

Mr. Underwood, the joint recommendation is not binding on this Court; and at sentencing,

I do not have to follow it?” Tr., Plea Hearing, at 13. Appellant answered in the affirmative.

As such, the record does not support appellant’s claim that his plea was not knowing

and voluntary in this respect.

{¶17} Appellant nonetheless cites Hartrum, supra, for the proposition that a trial

court is not bound by a plea agreement unless there has been “active participation by the

trial court in the agreement.” Id., citing State v. Hutchison, 5th Dist. Tuscarawas No.

2001AP030020,

. Put another way, appellant maintains the trial court

in the case sub judice was an active participant in the plea deal, and thus should be Muskingum County, Case No. CT2017-0024 6

required to follow it. He specifically submits: “[T]he fact that the trial court alluded to the

joint recommendation of sentence several times as well as specifically mentioning each

and every detail of the plea agreement and that appellant was entering the plea to avoid

the consequences of a greater sentence, it is obvious that this is ‘active participation’ in

the agreement.” Appellant’s Brief at 6-7.

{¶18} It is well-established that “[a] trial court assures that a plea is knowingly,

voluntarily and intelligently entered during the plea colloquy as required by Crim.R. 11.”

State v. Ford, 9th Dist. Summit No. 26260,

. Generally, where it

affirmatively appears to the trial court that an Alford plea will be asserted, a “more detailed

Crim.R. 11 colloquy” is required to inquire into the reasoning for such Alford plea. See

State v. McKinley, 5th Dist. Delaware No. 14 CAA 08 0045,

, ¶ 16, citing

State v. Hayes,

,

(3rd Dist. 1998). The record also

must contain “strong evidence” of guilt before an Alford plea may be accepted.

citing

State v. Scott, 3rd Dist. Seneca No. 13–2000–34, 2001–Ohio–2098. Upon review, we find

no merit in appellant’s claim that the trial court’s acts in this instance of ensuring its

compliance with Crim.R. 11 equates to “active participation” in the parties’ plea agreement

to the extent that the court was required to order the agreed sentence of life with twenty-

eight years before parole eligibility.

{¶19} Appellant further contends the trial court should have, in the alternative,

permitted him to withdraw his plea upon the court’s decision to reject the jointly

recommended sentence. However, the general rule in Ohio “requires motions to withdraw

guilty plea to be freely granted if they are made before sentencing.” State v. Rickman, 3rd

Dist. Seneca No. 13-13-15,

(emphasis added), citing State v. Xie, Muskingum County, Case No. CT2017-0024 7

,

(1992). In one of the cases appellant cites, State

v. Buell, 10th Dist. Franklin No. 15AP-789,

, the Tenth District Court of

Appeals indeed stated that “[i]In the vast majority of cases in Franklin County, Ohio, if the

parties agree as to the appropriate sentence, the trial court judge accepts that argument

and imposes the agreed-upon sentence.” Id. at ¶ 2. However, in Buell, the defendant had

asked at the sentencing hearing, before pronouncement of sentence, that he be permitted

to withdraw his guilty plea. Id. at ¶ 5. Appellant provides no direct authority for his claim

that a trial court, in the absence of a motion under Crim.R. 32.1, must sua sponte consider

a plea withdrawal where it declines to accept an agreed recommended sentence.

{¶20} Appellant's First Assignment of Error is therefore overruled.

II.

{¶21} In his Second Assignment of Error, appellant contends he was deprived of

the effective assistance of trial counsel during the plea proceedings. We disagree.

{¶22} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable Muskingum County, Case No. CT2017-0024 8

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different.

{¶23} Furthermore, trial counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v. Sallie

(1998),

,

.

Issue of Prosecutor’s Recitation

{¶24} Appellant first contends his defense counsel was ineffective for failing to

object to the assistant prosecutor’s lengthy recitation of facts, which runs approximately

twenty-nine pages in the transcript.

{¶25} We have recognized that a trial court record also must contain “strong

evidence of guilt” before an Alford plea may be accepted, and therefore, such a plea

should not be made without the presentation of some basic facts surrounding the offenses

charged. See State v. McKinley, 5th Dist. Delaware No. 14 CAA 08 0045, 2015-Ohio-

2436, ¶19, citing State v. Scott, 3rd Dist. Seneca No. 13–2000–34, 2001–Ohio–2098.

Given that appellant in this instance pled to all but one count and several specifications

of a thirteen-count indictment, the issuance of which followed an extensive three-year

investigation by federal, Ohio, and Alaska authorities (see Plea Tr. at 34), we find in

regard to the issue of the prosecutor’s recitation that appellant was not deprived of the

effective assistance of trial counsel in violation of his constitutional rights.

Lack of Objection by Defense Counsel

{¶26} Appellant secondly urges that his defense counsel ineffectively “stood

silent,” i.e., did not enter an objection, pursue some type of sentencing mitigation, or move Muskingum County, Case No. CT2017-0024 9

to withdraw the plea, when it became clear that the trial court was not going to accept the

joint sentencing recommendation. Appellant’s Brief at 12.

{¶27} The United States Supreme Court and the Ohio Supreme Court have held

that a reviewing court need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies. See

, quoting

. Furthermore, appellate courts will generally refrain from second-guessing the

strategic decisions of trial counsel. State v. Lyons, 7th Dist. Jefferson No. 16 JE 0008,

.

{¶28} In the case sub judice, given that appellant was facing charges of

aggravated murder and several other serious felonies, we find it would be unacceptably

speculative on our part to question defense counsel’s strategic decision to work out a plea

deal in lieu of a lengthy trial and simply accept the possibility of a rejection of the

recommended sentence.2 In addition, we are unable to determine with any confidence

that the trial court's sentence would have been different had counsel objected. Cf. State

v. Morrison, 5th Dist. Muskingum No. CT2014-0042,

, ¶ 13. As may occur

in any number of sentencing situations, “[c]ounsel's strategy may have been to say

nothing in order to avoid further detriment to his [or her] client.” State v. Noble, 2nd Dist.

Montgomery No. 13955,

.

{¶29} Accordingly, appellant's Second Assignment of Error is overruled.

2 As an indicator of the potential scope of a trial in this case, one of the trial court documents indicates that 280 people were on the State’s initial witness list, and that figure grew to over 300 after discovery. See Docket Item No. 81. Muskingum County, Case No. CT2017-0024 10

III.

{¶30} In his Third Assignment of Error, appellant contends his sentence was

contrary to law. We disagree.

{¶31} As an initial matter, reiterating that appellant was convicted inter alia of

aggravated murder, we note R.C. 2953.08(A) states that “[i]n addition to any other right

to appeal and except as provided in division (D) of this section, a defendant who is

convicted of or pleads guilty to a felony may appeal as a matter of right the sentence

imposed upon the defendant on [one of the grounds listed in subsections (A)(1) through

(A)(5)]”. (Emphasis added). In turn, R.C. 2953.08(D)(3) provides: “A sentence imposed

for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised

Code is not subject to review under this section.”

{¶32} In State v. Patterson, 5th Dist. Stark No. 2012CA00098,

,

, an appeal of an aggravated murder conviction, we reviewed the

aforesaid statute and succinctly held as follows: “Pursuant to R.C. 2953.08(D)(3) and

case law interpreting this statute, this Court is without statutory authority to review

appellant's sentence on an evidentiary basis.” Id. at ¶ 70. See, also, State v. Porterfield,

,

,

, ¶ 17. We will therefore not apply our

analysis in the present assigned error to Count 9.

{¶33} Appellant first maintains the trial court completely failed to consider the

sentencing factors of R.C. 2929.11 and 2929.12, i.e., the purposes of felony sentencing

and the factors of seriousness and recidivism. However, it is well-established that “* * * a

court is merely required to ‘consider’ the purposes of sentencing in R.C. 2929.11 and the

statutory * * * factors set forth in R.C. 2929.12.” See State v. Sutton, 8th Dist. Cuyahoga Muskingum County, Case No. CT2017-0024 11

No. 97132, 2012–Ohio–1054, ¶ 11, citing State v. Lloyd, 11th Dist. Lake No. 2006–L–

185, 2007–Ohio–3013, ¶ 44 (internal quotations omitted). The failure to indicate at the

sentencing hearing that the court has considered the factors in R.C. 2929.11 and 2929.12

does not automatically require reversal. State v. Reed, 10th Dist. Franklin No. 09AP–

1163, 2010–Ohio–5819,

, ¶ 8 (emphasis added). Any findings of the

trial court in regard to R.C. 2929.11 and 2929.12 need not be in the sentencing transcript

if the findings are contained in the journal entry. See State v. Boyd, 5th Dist. Richland No.

13 CA 62, 2014–Ohio–2019, ¶ 12, citing State v. O'Donnell, 9th Dist. Summit No. 23525,

2007–Ohio–1943, ¶ 7 (additional citations omitted). Upon review, we find the sentencing

entry in this case adequately sets forth that the trial court took into consideration the

principles and purposes of sentencing in R.C. 2929.11 and the seriousness and

recidivism factors in R.C. 2929.12.

{¶34} Appellant secondly contends the trial court improperly “placed an

unreasonable amount of weight” on a portion of a letter from a family member of the

aggravated murder victim, Brandy Daniels. Appellant’s Brief at 15. The trial court stated:

“I’ve been a judge for many years. This is one of the quotes in the letter that struck me. It

says: [‘] I beg you, do not go soft on the devil.[’] Would you blame the family to feel any

differently?” Sentencing Tr. at 8. However, at that point in the hearing, we observe the

trial court had already clearly articulated that it had reviewed the pre-sentence

investigation report, appellant’s criminal record (including his two previous incarcerations

and multiple robberies), and all the letters from Brandy’s family. See Sentencing Tr. at 6-

8. Muskingum County, Case No. CT2017-0024 12

{¶35} Appellate review of felony sentences is governed by R.C. 2953.08, which

provides that we may increase, reduce, modify a sentence, or vacate and remand for

resentencing if we clearly and convincingly find that the record does not support the

sentencing court's statutory findings, if applicable, or the sentence is contrary to law. State

v. Theodorou, 8th Dist. Cuyahoga No. 105630,

, ¶ 7, citing R.C.

2953.08(G)(2). Appellant does not presently contend that his sentences are outside the

statutory ranges of the Ohio Revised Code. Appellant further does not raise a specific

challenge to the consecutive portions of his overall sentence. Based on our review of the

record, we do not find by clear and convincing evidence that the record does not support

the sentence or that the sentence is contrary to law.

{¶36} Appellant lastly revisits his claim that the trial court should have sua sponte

permitted appellant to withdraw his plea upon its decision not to follow the jointly

recommended sentence. We find this claim is a challenge to the plea proceeding, not a

sentencing issue, and it has previously been addressed in this opinion.

{¶37} Appellant's Third Assignment of Error is therefore overruled.

IV.

{¶38} In his Fourth Assignment of Error, appellant contends the trial court erred in

ordering him to pay restitution and court costs. We disagree.

Restitution

{¶39} R.C. 2929.18(A) states in pertinent part that “[e]xcept as otherwise provided

in this division and in addition to imposing court costs pursuant to section 2947.23 of the

Revised Code, the court imposing a sentence upon an offender for a felony may sentence Muskingum County, Case No. CT2017-0024 13

the offender to any financial sanction or combination of financial sanctions authorized

under this section * * *.” R.C. 2929.18(A)(1) sets forth that restitution is one such sanction.

{¶40} In the case sub judice, while we recognize the trial court did not fully follow

the joint recommendation when it came to the prison sentence, the specific restitution

amount of $22,265.24 was part of the agreement of the parties. See Plea Tr. at 5. In

addition, appellant did not object to the trial court's restitution order or request a hearing

on the issue. See Sentencing Tr. at 10-11. As such, we find he has waived all but plain

error. See State v. Bauer, 5th Dist. Licking No. 11–CA–93, 2012–Ohio–2457, ¶ 7. The

plain error rule is to be applied with utmost caution and invoked only under exceptional

circumstances, in order to prevent a manifest miscarriage of justice. State v. Long (1978),

,

. We are not inclined to do so under the

aforementioned circumstances of the present case.

Court Costs

{¶41} In regard to court costs, we note R.C. 2947.23(A)(1)(a) states in pertinent

part: “In all criminal cases, including violations of ordinances, the judge or magistrate shall

include in the sentence the costs of prosecution, including any costs under section

2947.231 of the Revised Code, and render a judgment against the defendant for such

costs. * * * .” (Emphasis added). Accordingly, even if a defendant is indigent, a sentencing

court must include the costs of prosecution in the sentence and render a judgment against

the defendant for costs. State v. McHenry, 5th Dist. Stark No. 2017CA00119, 2017-Ohio-

7672, ¶ 12, citing State v. White,

, 2004–Ohio–5989,

,

¶ 8. But see R.C. 2949.092. Furthermore, appellant did not object to the imposition of

court costs, even though the trial court orally stated they were part of the sentence. Muskingum County, Case No. CT2017-0024 14

Sentencing Tr. at 10. Upon review, we find no reversible error in this instance in regard

to the imposition of court costs.

{¶42} Appellant's Fourth Assignment of Error is therefore overruled.

{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas,

Muskingum County, Ohio, is hereby affirmed.

By: Wise, P. J.

Hoffman, J., and

Baldwin, J., concur.

JWW/d 0202