State v. Beaty

[Cite as State v. Beaty, 2011-Ohio-5014.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24048

v. : T.C. NO. 09CR4075

JOSHUA L. BEATY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :

:

..........

OPINION

Rendered on the 30th day of September ,
2011.

..........

LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney,
th
301 W. Third Street, 5 Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

RICHARD A. NYSTROM, Atty. Reg. No. 0040615, 1502 Liberty Tower, 120 West
Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant

JOSHUA L. BEATY, #627871, 5900 B.I.S. Road, Lancaster, Ohio 43130
Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Joshua L. Beaty pled no contest to two counts of felonious assault,

with gun specifications, and having weapons while under disability. The charges
 2

stemmed from the shooting of Markus Singleton, allegedly because Beaty believed

that Singleton had thrown away Beaty’s cocaine. Two weeks before the shooting,

Beaty had been convicted of possession of cocaine and placed on community

control; this conviction resulted in a prohibition against possessing firearms. See

State v. Beaty, Montgomery C.P. No. 2009 CR 2404.

{¶ 2} The trial court found Beaty guilty of the charges, merged the two

felonious assault counts and specifications, and sentenced Beaty to five years in

prison for felonious assault and to three years in prison for having weapons while

under disability. The sentences were to be served concurrently with each other,

but subsequent to three years of incarceration for the firearm specification. The

sentences were also made concurrent to the 12-month sentence imposed in Case

No. 2009 CR 2404 for Beaty’s violation of community control. Beaty was ordered

to pay restitution to Singleton and costs.

{¶ 3} Beaty appealed from his convictions. Beaty’s appointed appellate

counsel subsequently filed a brief pursuant to Anders v. California (1967), 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493, wherein counsel represented that, after a

thorough examination of the record, he was unable to discover any errors by the

trial court that were prejudicial to Beaty. Counsel proposed one assignment of

error with six potential issues for appeal, but argued that the assignment of error

was frivolous.

{¶ 4} By magistrate’s order of March 11, 2011, we informed Beaty that his

counsel had filed an Anders brief and of the significance of such a brief. We

invited Beaty to file a pro se brief assigning errors for review. Beaty responded
 3

with a letter, which we construe as a pro se brief.

{¶ 5} The case is now before us for our independent review of the record.

Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.

I

{¶ 6} Beaty’s appellate counsel raises one potential assignment of error,

which states:

{¶ 7} “WHETHER THE COURT ERRED IN FINDING NO FLAWS IN

EFFECTIVENESS OF COUNSEL, POLICE QUESTIONING, DEFENDANT’S

PLEAS, AND THE REASONABLENESS OF DEFENDANT’S SENTENCE

SUFFICIENT TO COMPROMISE DEFENDANT’S CONSTITUTIONAL RIGHT TO

DUE PROCESS UNDER THE FIFTH, EIGHTH, AND FOURTEENTH

AMENDMENT[S] [TO] THE UNITED STATES CONSTITUTION AND ARTICLE I

SECTION 10 OF THE OHIO STATE CONSTITUTION.” (Emphasis in original.)

{¶ 8} We will address the individual issues within that assignment of error

separately.

{¶ 9} First, appellate counsel raises the issue that Beaty’s trial counsel

failed to thoroughly investigate and properly prepare Beaty’s case, such that Beaty

was forced to enter a plea.

{¶ 10} We review alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in

State v. Bradley (1989), 42 Ohio St.3d 136. Pursuant to those cases, trial counsel

is entitled to a strong presumption that his or her conduct falls within the wide range
 4

of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction

based on ineffective assistance of counsel, it must be demonstrated that trial

counsel’s conduct fell below an objective standard of reasonableness and that his

errors were serious enough to create a reasonable probability that, but for the

errors, the result of the trial would have been different. Id.

{¶ 11} There is no indication in either appellate counsel’s or Beaty’s pro se

brief as to what Beaty’s trial counsel should have done, but did not. And, based on

the record, it is unclear how a more thorough investigation by Beaty’s trial counsel

would have affected the outcome of Beaty’s case. Beaty admitted to police

officers and to the media that he had shot Singleton. There is no suggestion in the

record that Beaty acted in self-defense, that the shooting was an accident, or that

he had any other defense to the charges. If evidence of self-defense or some

other defense exists, Beaty does not allege it in his pro se brief; regardless, it is

outside the record and cannot be considered on direct appeal.

{¶ 12} Moreover, we find no basis to conclude that Beaty’s trial counsel

failed to properly prepare the case. Counsel moved to suppress Beaty’s
1
incriminating statements to the police. The record reflects that there were

extensive plea negotiations. In light of Beaty’s confession to the police and public

admission to the media that he had shot Singleton, counsel did not have a lot to

work with. Accordingly, given the record before us, we agree that there is no

1
The suppression motion was inadvertently filed in Montgomery Case. No. 2009CR2404, Beaty’s prior case for
possession of cocaine. Beaty’s trial counsel orally renewed the motion to suppress in this case. A hearing was held, and the
motion was denied.
 5

potentially meritorious claim of ineffective assistance of counsel based on counsel’s

alleged failure to investigate Beaty’s case more thoroughly and to properly prepare

his case.

{¶ 13} Second, appellate counsel raises whether the trial court erred in

concluding that Beaty knowingly, intelligently, and voluntarily waived his Miranda

rights during police questioning and thus denying his motion to suppress.

{¶ 14} In addressing a motion to suppress, the trial court assumes the role of

the trier of fact. State v. Morgan, Montgomery App. No. 18985, 2002-Ohio-268,

citing State v. Curry (1994), 95 Ohio App.3d 93, 96. The court must determine the

credibility of the witnesses and weigh the evidence presented at the hearing. Id.

In reviewing the trial court's ruling, an appellate court must accept the findings of

fact made by the trial court if they are supported by competent, credible evidence.

Id. However, “the reviewing court must independently determine, as a matter of

law, whether the facts meet the appropriate legal standard.” Id.

{¶ 15} In Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694, the United States Supreme Court held that the State may not use statements

stemming from a defendant’s custodial interrogation unless it demonstrates the use

of procedural safeguards to secure the defendant’s privilege against

self-incrimination. Id. at 444. In order for a defendant’s statements made during a

custodial interrogation to be admissible, the State must establish that the accused

knowingly, voluntarily, and intelligently waived his or her rights. Miranda, supra;

State v. Edwards (1976), 49 Ohio St.2d 31, 38, overruled on other grounds, (1978),

438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155.
 6

{¶ 16} Even when an individual is not in custody and Miranda warnings are

not required, a defendant’s statement may be involuntary and subject to exclusion.

State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627, ¶14, citing Dickerson v.

United States (2000), 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405. “In deciding

whether a defendant’s confession is involuntarily induced, the court should consider

the totality of the circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity, and frequency of interrogation; the

existence of physical deprivation or mistreatment; and the existence of threat or

inducement.” Edwards, 49 Ohio St.3d 31, paragraph two of the syllabus. A

defendant’s statement to police is voluntary absent evidence that his will was

overborne and his capacity for self-determination was critically impaired due to

coercive police conduct. Colorado v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct.

851, 93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 562, 1996-Ohio-108.

{¶ 17} Detective Michael DeBorde was the sole witness at the hearing on

Beaty’s motion to suppress his statements to the police. His testimony, which the

trial court credited, established the following facts.

{¶ 18} At approximately 10:40 a.m. on December 4, 2009, Detective

DeBorde and Detective Darryl Smith interviewed Beaty in a police interview room

regarding a shooting that had happened the night before. The room was

approximately five feet square with a tile floor and no windows; there was a small

table with three chairs. DeBorde did not recall if Beaty was initially handcuffed, but

he stated that he would have asked for any handcuffs to be removed or he would

have removed them himself.
 7

{¶ 19} The detectives entered the room, introduced themselves, and told

Beaty that they were there to interview him regarding a felonious assault. Beaty

asked what felonious assault meant, and DeBorde explained that to him. The

detectives asked Beaty if he were injured and obtained certain personal

information, such as Beaty’s name, address, birthday, phone number, and Social

Security number. Beaty was nineteen years old and had ten years of schooling.

DeBorde also knew from a computer search prior to the interview that Beaty had

prior contacts with the police.

{¶ 20} The detectives presented Beaty with a Pre-Interview form. DeBorde

wrote Beaty’s identifying information, as well as the date, interview location, and

offense, on the form. DeBorde asked Beaty if he could read; Beaty indicated that

he could. DeBorde asked Beaty to read the first line of the form out loud. Beaty

complied. DeBorde read each right to Beaty. Beaty indicated that he understood

each right, and he agreed to talk with the detectives without an attorney. Beaty

signed the Pre-Interview form. DeBorde testified that he did not promise Beaty

anything or threaten Beaty.

{¶ 21} The detectives spoke with Beaty for twenty to thirty minutes.

DeBorde described Beaty as “very open” with the officers. Beaty informed them

that he had been at Gilcy Market and that he had brought cocaine into the store.

Beaty left the store to answer a cell phone call and, when he returned, his found

that his cocaine was missing. Beaty blamed Singleton, who was supposedly

sweeping the store. Beaty related that he retrieved a handgun that he had placed

in a newsstand inside the market and threatened Singleton with it. Beaty then
 8

looked through trash cans for the cocaine. Beaty left the market and waited for

Singleton to leave. Beaty admitted that he shot Singleton when Singleton came

out of the store. The detectives asked Beaty if he wished to make a written or

video statement; Beaty declined.

{¶ 22} The record supports the trial court’s conclusions that Beaty knowingly,

intelligently, and voluntarily waived his Miranda rights and that his statements were

made voluntarily. Beaty could read the Pre-Interview form, he was read his rights,

he agreed to speak to the officers without an attorney, and he signed the

Pre-Interview form. There is no evidence that Beaty was under the influence of

drugs or alcohol or was otherwise impaired. Beaty was not handcuffed, and there

is no evidence of threats or coercion by the detectives. The interview lasted no

more than 30 minutes. In short, we find no arguably meritorious argument that the

trial court erred in denying Beaty’s motion to suppress.

{¶ 23} Third, appellate counsel raises whether the State presented sufficient

facts at the plea hearing to support Beaty’s no contest plea. Because Beaty did

not raise this argument at the plea hearing, we review this issue for plain error.

State v. Peoples, Miami App. No. 2005 CA 20, 2006-Ohio-4162, ¶11. “To be

‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in

the trial proceedings.” State v. Landgraf, Montgomery App. No. 21141,

2006-Ohio-838, ¶24, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.

{¶ 24} The requirements for a no contest plea in felony cases differ from

those for a no contest plea in misdemeanor cases. Pursuant to R.C. 2937.07, the

trial court in a misdemeanor case is required to hear an explanation of the
 9

circumstances surrounding the offense and then determine whether the facts are

sufficient to convict on the misdemeanor offense. See State v. Adams,

Montgomery App. No. 22493, 2009-Ohio-2056, ¶14. The Supreme Court of Ohio

has held that “the provision in R.C. 2937.07 requiring an explanation of

circumstances following a plea of no contest [in a misdemeanor case] has not been

superseded by the enactment of Crim.R. 11 because the statutory provision confers

a substantive right.” Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, 151.

{¶ 25} R.C. 2937.06(A)(1) does not authorize a no contest plea in felony

cases. See Landgraf at ¶20, n.1 (commenting that there appears to be no

statutory provision in Ohio for no contest pleas in felony cases). However, Crim.R.

11 “permits a plea of no contest to a criminal charge, and does not require an

explanation of the circumstances. Instead, the rule permits the court to enter

judgment only based upon the facts as alleged in the indictment.” Adams at ¶14.

“Where an indictment, information, or complaint contains sufficient allegations to

state a felony offense and the defendant pleads no contest, the court must find the

defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d 582,

1998-Ohio-606.

{¶ 26} At the plea hearing, the prosecutor read the charges and

specifications against Beaty, using the language of the indictment. Because the

charges against Beaty were felonies, the trial court was permitted to find Beaty

guilty based on the facts as alleged in the indictment; the trial court was not

required to hear an explanation of the circumstances surrounding the offense.

Beaty’s potential claim based on the State’s alleged failure to present sufficient
 10

facts at the plea hearing is frivolous.

{¶ 27} Fourth, appellate counsel raises a potential claim that Beaty’s plea

was not knowingly, intelligently, and voluntarily made. Counsel notes that the plea

hearing occurred while the jury waited outside the courtroom.

{¶ 28} “Crim.R. 11(C)(2) requires the court to (a) determine that the

defendant is making the plea voluntarily, with an understanding of the nature of the

charges and the maximum penalty, and, if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the

plea of guilty [or no contest] and that the court, upon acceptance of the plea, may

proceed with judgment and sentencing; and (c) inform the defendant and determine

that he understands that, by entering the plea, the defendant is waiving the rights to

a jury trial, to confront witnesses against him, to have compulsory process for

obtaining witnesses, and to require the state to prove his guilt beyond a reasonable

doubt at a trial at which he cannot be compelled to testify against himself.” State v.

Brown, Montgomery App. No. 21896, 2007-Ohio-6675, ¶3. See, also, State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶27.

{¶ 29} The Supreme Court of Ohio has urged trial courts to literally comply

with Crim.R. 11. Clark at ¶29. However, because Crim.R.11(C)(2)(a) and (b)

involve non-constitutional rights, the trial court need only substantially comply with

those requirements. E.g., State v. Nero (1990), 56 Ohio St.3d 106, 108; Greene at

¶9. The trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to

the waiver of federal constitutional rights. Clark at ¶31.
 11

{¶ 30} We have reviewed the transcript of the plea hearing and find nothing

to support a contention that Beaty’s pleas were not made knowingly, intelligently,

and voluntarily. The trial court ascertained that Beaty had ten years of education,

could read and understand the plea forms, and that there was nothing that would

interfere with his understanding the forms and the proceedings. The trial court

determined that Beaty understood the nature of the charges and the potential

penalties. The court informed Beaty that he was eligible for community control for

having weapons while under disability, but not felonious assault; the court told

Beaty that he would not receive community control. The court further informed him

that the plea would constitute a violation of his community control and that

community control would be revoked. The court explained each of Beaty’s

constitutional rights and determined that Beaty understood that he was waiving

those rights by entering his no contest plea. Beaty indicated that he wanted to

plead no contest to the charges. The court found that Beaty’s plea was knowing,

intelligent and voluntary. The record demonstrates that the trial court’s plea

hearing complied with the requirements of Crim.R. 11.

{¶ 31} As noted by appellate counsel, the one issue that arose at the plea

hearing concerned whether Beaty was satisfied with his attorney. A few weeks

before the plea hearing, Beaty had filed a pro se motion for a new attorney based

on ineffective assistance of counsel. Beaty wrote that he didn’t “feel Mr. Goraleski

is thinking about my best interest and [I] don’t trust him. I feel he aint got time for

my case and he is just trying to get it over with as fast as he can.” We see no

indication that the trial court ruled on this motion.
 12

{¶ 32} At the plea hearing, Beaty had the following exchange with the trial

court:

{¶ 33} “THE COURT: Are you satisfied with Mr. Goraleski’s representation?

{¶ 34} “THE DEFENDANT: No.

{¶ 35} “THE COURT: Why not?

{¶ 36} “THE DEFENDANT: I just – I just – just not.

{¶ 37} “THE COURT: Well, what did you want him to do?

{¶ 38} “THE DEFENDANT: It’s over with now.

{¶ 39} “THE COURT: Huh?

{¶ 40} “THE DEFENDANT: I said it’s over with now.

{¶ 41} “THE COURT: No. *** Because if you feel that you’re doing

something here today that you feel is not appropriate, then we’re not going to do

this.

{¶ 42} “THE DEFENDANT: I didn’t – I ain’t saying what I was doing right now

–

{¶ 43} “THE COURT: Well, what is it --

{¶ 44} “THE DEFENDANT: – ain’t appropriate.

{¶ 45} “THE COURT: – about his representation that you’re not satisfied

with? It’s my understanding, sir, and I’m going to be real blunt with you; okay? I

mean, I saw what you said on TV. You know, in front of two television cameras,

you admitted that you shot the guy. Okay? You talked with the detective. You

made a statement, admitted it. What is it that you expected him to do?

{¶ 46} “THE DEFENDANT: It was nothing.
 13

{¶ 47} “THE COURT: There was nothing?

{¶ 48} “THE DEFENDANT: No, ma’am.

{¶ 49} “THE COURT: Then why is it that you’re not satisfied with his

representation?

{¶ 50} “THE DEFENDANT: It’s fine.

{¶ 51} “THE COURT: All right. Sir, are you entering your pleas today

voluntarily? That means is this what you want to do?

{¶ 52} “THE DEFENDANT: Yes, ma’am.”

{¶ 53} We do not find that this exchange creates an arguable issue that

Beaty’s plea was involuntarily. Although Beaty apparently believed that his

counsel should have done more on his case, he did not articulate for the court how

his counsel was allegedly ineffective. With respect to the plea, Beaty did not

express that he disagreed with the decision to enter a no contest plea. To the

contrary, he told the trial court that he was not saying that the plea was

inappropriate and that he wanted to enter his plea. We find no potentially

meritorious claim that Beaty’s plea was not knowing, intelligent, and voluntary.

{¶ 54} Although not explicitly raised by Beaty in his pro se brief or by

appellate counsel as part of his “issue” that the plea was not knowingly made, we

further note that the trial court told Beaty that he was ineligible for community

control for the felonious assault, even though the law permitted such a sentence.

See State v. Swimer, Clark App. No. 08 CA 38, 2009-Ohio-903, ¶48. Presumably,

the trial court was focusing on the firearm specification attached to those counts,

which had a mandatory prison sentence. Beaty was properly informed by the trial
 14

court that he was eligible for community control for having weapons while under

disability.

{¶ 55} Beaty elected to plead no contest despite being informed that he was

ineligible for community control for felonious assault. Because community control

is a less severe punishment than prison, Beaty could not have detrimentally relied

on the trial court’s misstatement in deciding whether to enter a plea. Moreover, the

trial court made clear that Beaty would not receive community control in this case.

We find no potentially meritorious argument that the trial court’s misstatement

regarding Beaty’s eligibility for community control for felonious assault affected the

voluntariness of Beaty’s plea. See State v. Kennedy, Champaign App. No. 2011

CA 3, 2011-Ohio-4291, ¶61 (finding that trial court’s misstatement that defendant

would receive a mandatory jail term was not prejudicial where the actual sentence

would be less severe than what the trial court outlined).

{¶ 56} Fifth, appellate counsel raises that Beaty sent a letter to the court

prior to sentencing, seeking to withdraw his plea due to ineffective assistance of

counsel. Beaty claimed that his counsel did not prepare for trial, failed to

investigate the facts of the case, provided false information to him, and coerced him

to enter a plea. Beaty further stated that he was not permitted to participate in the

selection of the jury.

{¶ 57} A defendant’s motion to withdraw a plea, made before sentencing,

should be freely and liberally granted, provided the movant demonstrates a

reasonable and legitimate basis for the withdrawal. State v. Xie (1992), 62 Ohio

St.3d 521, 526. However, a defendant does not have an absolute right to withdraw
 15

his plea prior to sentencing. Id. A trial court must hold a hearing on the motion to

determine if a reasonable and legitimate basis exists for the withdrawal. Id.; State

v. Bennett, 192 Ohio App.3d 608, 2011-Ohio-961, ¶9. A trial court may satisfy the

requirement for a full and fair hearing on a motion to withdraw a plea by allowing

the defendant and his attorney to speak at a sentencing hearing and to explain the

basis for the motion. Bennett at ¶10; State v. Burnett, Montgomery App. No.

20496, 2005-Ohio-1036, ¶20-21. The decision whether to grant or deny a

presentence request to withdraw a guilty plea is a matter resting within the trial

court’s sound discretion. Xie, 62 Ohio St.3d at 526. Such decisions will not be

disturbed on appeal absent a showing that the trial court abused its discretion by

acting in an unreasonable, arbitrary, or unconscionable manner. Id.

{¶ 58} “No abuse of discretion in denying a presentence motion to withdraw

a plea is demonstrated where: (1) the accused is represented by highly competent

counsel, (2) the accused was afforded a full hearing, pursuant to Crim.R. 11, before

entering the plea, (3) after the motion to withdraw is filed the accused is given a

complete and impartial hearing on the motion, and (4) the record reveals that the

trial court gave full and fair consideration to the plea withdrawal request.” State v.

Chavez, Montgomery App. No. 22892, 2009-Ohio-3758, ¶61, citing State v.

Peterseim (1980), 68 Ohio App.2d 211.

{¶ 59} At the sentencing hearing, the trial court began by addressing Beaty’s

pro se motion to withdraw his plea. The court told Beaty that he would go to trial

immediately if he were permitted to withdraw his plea, and that the court was willing

to schedule a hearing on the motion. The court stated repeatedly that having a
 16

hearing on the motion did not mean that the motion would be granted. Beaty and

his trial counsel conferred twice. When Beaty expressed confusion to the trial

court, the court stated:

{¶ 60} “THE COURT: It means I haven’t made up my mind. You filed a

motion – anybody’s free to file a motion at any time if they want to.

{¶ 61} “THE DEFENDANT: Right.

{¶ 62} “THE COURT: Okay? Just because you have a hearing on it doesn’t

mean your motion’s going to be granted. Just because you asked to withdraw your

plea doesn’t mean that it’s going to happen.

{¶ 63} “THE DEFENDANT: All right.

{¶ 64} “THE COURT: All right? If you want to have a hearing on it, I’ll set it

for hearing next week. I’ll make a decision on it then.

{¶ 65} “THE DEFENDANT: I mean, we can just – we can just forward with

sentence.

{¶ 66} “THE COURT: Is that what – so you’re saying on the record you want

to go forward with sentencing? You’re asking to withdraw your motion to withdraw

your plea; is that right?

{¶ 67} “THE DEFENDANT: Yes.

{¶ 68} “THE COURT: Is that what you want to do?

{¶ 69} “THE DEFENDANT: Yes.”

{¶ 70} We find no arguably meritorious issues related to Beaty’s motion to

withdraw his plea. At the beginning of the sentencing hearing, the trial court noted

that a motion to withdraw Beaty’s plea had been filed, and the court repeatedly
 17

offered Beaty the opportunity for an evidentiary hearing on that motion. The record

reflects that Beaty voluntarily withdrew his motion after conferring with counsel and

discussing the motion with the trial court. The trial court did not pressure Beaty

into withdrawing the motion; it merely emphasized that scheduling a hearing on the

motion did not guarantee that the motion would be granted. And because Beaty’s

motion was withdrawn, the record does not include any evidence demonstrating

that Beaty had a reasonable and legitimate basis for his motion.

{¶ 71} Finally, appellate counsel raises whether Beaty’s sentence was an

abuse of discretion. We review a felony sentence using a two-step procedure.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. “The first step is to

‘examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law.’” State v. Stevens, 179 Ohio App.3d 97,

2008-Ohio-5775, ¶4, quoting Kalish at ¶4. “If this step is satisfied, the second step

requires that the trial court’s decision be ‘reviewed under an abuse-of-discretion

standard.’” Id.

{¶ 72} Beaty pled no contest to felonious assault, a second degree felony

with a maximum sentence of eight years, and having weapons while under

disability, a third degree felony with a maximum sentence of five years. Beaty

received five years for felonious assault and three years for having weapons while

under disability, to run concurrently. Each of these sentences is within the

sentencing range. And, as required by law, Beaty received three years for the

firearm specification, to be served prior to and consecutive to the sentences for the
 18

offenses. Beaty’s sentence was not contrary to law.

{¶ 73} The record reflects that Beaty shot the victim because he believed the

victim had stolen his drugs. At the time of the shooting, Beaty had been on

community control in another case for less than a month. Considering the

circumstances of the crime and the mid-range, concurrent sentences that Beaty

received, Beaty has no potentially meritorious challenge to the length of his

sentences.

{¶ 74} In his pro se brief, Beaty raises several of the issues that were

included in appellate counsel’s brief. We have already addressed those issues

and will not repeat our analysis. He also raises several additional arguments, which

we will address separately.

{¶ 75} Beaty asserts that he filed a motion to suppress the news footage and

that his motion was denied. The record does not contain such a motion. And we

cannot conclude, based on the record before us, that such a motion would have

been successful even if it had been filed.

{¶ 76} Beaty next claims that the trial court found him guilty because the

judge had seen the news footage. It is unclear what Beaty means by this claim.

Perhaps Beaty is arguing that the trial court’s reference at the plea hearing to

Beaty’s admission to the media meant that the court was predetermined to find him

guilty, regardless of whether he entered a plea or went to trial. Or perhaps Beaty

means that the court would not allow him to withdraw his plea “[n]o matter what was

said” at a hearing on that motion.

{¶ 77} “A judge is presumed to follow the law and not to be biased, and the
 19

appearance of bias or prejudice must be compelling to overcome these

presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241,

2003-Ohio-5489, ¶5; Rejas Invests. v. Natl. City Bank, Montgomery App. No.

21243, 2006-Ohio-5586, ¶98. Intermediate appellate courts, such as this one,

have no jurisdiction to disqualify a judge based on claims of bias; such claims must

be brought to the Chief Justice of the Ohio Supreme Court. See Beer v. Griffith

(1978), 54 Ohio St.2d 440, 441-442. If there were a concern about judicial bias,

Beaty should have raised the issue at that time and not waited for the appeal.

Janis v. Janis, Montgomery App. No. 23898, 2011-Ohio-3731, ¶95.

{¶ 78} Regardless, it is apparent that the trial court commented on the news

footage during the plea hearing in order to emphasize that the State had a strong

case against him based on his own confessions and to question Beaty on how he

believed his counsel should have proceeded. Prior to this exchange, the trial court

had informed Beaty that, “based upon the facts in the indictment and the plea itself,

the Court will proceed to a judgment of guilty on all three counts and set your case

for sentencing on April 21st.” We find no reasonable argument that Beaty’s

conviction was based on judicial bias.

{¶ 79} Beaty also claims that he was not permitted to participate in jury

selection and that the jury was tainted because they were in the same hallway as

Beaty, his mother, and his trial counsel when Beaty’s counsel advised him to enter

a plea. The trial court began the plea hearing by stating: “The record should reflect

that the jury is present and we’re prepared to get started with the trial ***.”

However, it is unclear from the record whether the trial court was referring to
 20

potential jurors who had responded to the court’s summons or whether a jury had

already been selected. Even assuming that a jury had been selected, Beaty has

not provided a transcript of the jury selection portion of his trial. Consequently, the

record does not portray the error that Beaty alleges. Moreover, there is no

evidence, and it is extremely doubtful, that any jurors (potential or selected) were

present during the plea discussion. And considering that Beaty’s case did not go

to trial, Beaty has not demonstrated how he was prejudiced by these alleged errors.

{¶ 80} Finally, Beaty claims that he was sentenced two days after the

scheduled trial date, without having entered a plea, in front of the news media.

Beaty entered a no contest plea on April 5, 2010, after a proper Crim.R. 11 plea

hearing. The plea forms were signed by Beaty and his trial counsel. Beaty was

brought before the court for sentencing on April 28, 2010. He returned to the court

on July 21, 2010, after the trial court was informed that the original judgment entry

was not a final appealable order because it failed to specify the amount of

restitution. Beaty’s assertion that he was found guilty without a plea and was

sentenced two days later is frivolous.

{¶ 81} In addition to reviewing the issues raised by Beaty’s appellate counsel

and by Beaty in his pro se brief, we have conducted an independent review of the

trial court’s proceedings and have found no potential assignments of error having

arguable merit. The trial court’s judgment will be affirmed.

..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:
 21

Laura M. Woodruff
Richard A. Nystrom
Joshua L. Beaty
Hon. Mary Katherine Huffman