[Cite as State v. Sneed, 2011-Ohio-268.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
DEMETRIUS SNEED : Case No. 10-CA-00058
:
Defendant-Appellant :
OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 10 CR 044
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 21, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN WALTZ JUSTIN T. RADIC
Assistant Prosecutor 57 East Main Street
20 S. 2nd Street Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 10-CA-00058 2
Farmer, J.
{¶1} Appellant was indicted on two counts of Aggravated Robbery, felonies of
the first degree, in violation of R.C. 2911.01(A)(1), two counts of Robbery, felonies of
the second degree, in violation of R.C. 2911.02(A)(2), and a firearm specification in
violation of R.C. 2929.14(D) and 2941.145.
{¶2} Appellant was charged with committing offenses on two different days.
The first offense occurred on November 19, 2009 wherein Appellant and a co-defendant
requested a cab be dispatched to the area of Allen Street in Newark, Licking County,
Ohio. When the cab arrived, the driver was robbed at knifepoint.
{¶3} On January 11, 2010, Appellant and a co-defendant ordered a pizza from
Incredible Pizza. The pizza was scheduled to be delivered to an address on
Reddington Court in Newark, Licking County, Ohio. When the driver attempted to
deliver the pizza to the requested address, he could not locate the specific address.
While the driver was checking to see if he had the correct information, he was attacked,
his money was stolen, and his car was stolen. The pizza delivery car was located with
a gun in the car. The phone number used to call Incredible Pizza was traced to an
address where Appellant was found. Appellant admitted to police his involvement in
both offenses.
{¶4} Appellant entered no contest pleas to all of the charges contained in the
indictment. Each count of robbery was merged with a count of aggravated robbery.
Appellant received a four-year sentence for each offense in addition to a three-year gun
specification for a total sentence of eleven years in prison.
Licking County, Case No. 10-CA-00058 3
{¶5} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating that the within appeal was wholly frivolous and setting forth three proposed
Assignments of Error. Appellant did not file a pro se brief alleging any additional
Assignments of Error.
I.
{¶6} “THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE PRISON
SENTENCES UPON APPELLANT.”
II.
{¶7} “THE APPELLANT’S NO CONTEST PLEAS WERE NOT FREELY,
VOLUNTARILY AND UNDERSTANDIBLE ENTERED.”
III.
{¶8} ”APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶9} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
Licking County, Case No. 10-CA-00058 4
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
{¶10} Counsel in this matter has followed the procedure in Anders v. California
(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s
motion to withdraw. For the reasons which follow, we affirm Appellant’s conviction:
I.
{¶11} In his first assignment of error, Appellant argues the trial court erred in
imposing consecutive sentences.
{¶12} In State v. Foster, the Ohio Supreme Court held, trial courts “have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 100.
{¶13} The Ohio Supreme Court recently reaffirmed its hold in Foster, “We hold
that the decision of the United States Supreme Court in Oregon v. Ice does not revive
Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
2929.41(A), which were held unconstitutional in State v. Foster. Because the statutory
provisions are not revived, trial court judges are not obligated to engage in judicial fact-
finding prior to imposing consecutive sentences unless the General Assembly enacts
new legislation requiring that findings be made.” State v. Hodge, 2010 WL 5392914 .
Licking County, Case No. 10-CA-00058 5
{¶14} Because the sentences in this case are within the range provided by R.C.
2929.14, the trial court did not abuse its discretion in imposing consecutive sentences.
For this reason, Appellant’s first assignment of error is overruled.
II.
{¶15} In his second assignment of error, Appellant maintains his no contest
pleas were not freely, voluntarily, and intelligently made.
{¶16} Criminal Rule 11 governs the process of entering a plea. Criminal Rule
11(C) provides:
{¶17} “(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
{¶18} “(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved, and, if
applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.”
{¶19} In accepting a no contest plea, a trial court must substantially comply with
Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474. Substantial
compliance with Crim.R. 11(C) is determined upon a review of the totality of the
circumstances. State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757.
{¶20} We have reviewed the exchange between the trial court and Appellant
which was made under oath. Appellant testified he was a high school graduate who
had no difficulties in reading, writing, or understanding the English language. He further
testified he received and read his indictment, and he had discussed it with his attorney.
Licking County, Case No. 10-CA-00058 6
Appellant completed a form outlining all of his constitutional rights and was orally
advised of those rights by the trial court. During the colloquy, the trial court advised
Appellant of the maximum penalties involved including the imposition of post release
control. Appellant advised the Court his pleas were entered freely and voluntarily.
There is no evidence in the record to support Appellant’s contention that his pleas were
not entered knowingly, intelligently, and voluntarily. For this reason, Appellant’s second
assignment of error is overruled.
III.
{¶21} Appellant argues in his final assignment of error that he was denied
effective assistance of counsel based upon counsel’s failure to file a motion to suppress
as well as counsel’s failure to cause the discovery provided by the State to be made
part of the record available for appellate review.
{¶22} We have reviewed the record in this case which contains numerous letters
which purport to be from the Appellant wherein he repeatedly confesses to the crimes
with which he has been charged.
{¶23} The standard for reviewing claims for ineffective assistance of counsel
was set forth in Strickland v. Washington (1984), 466 U.S. 668. We must follow a two-
prong analysis in reviewing a claim for ineffective assistance of counsel. First, we must
determine whether counsel's assistance was ineffective. Whether counsel's
performance fell below an objective standard of reasonable representation and violative
of any of his essential duties to the client. In determining whether counsel's
representation fell below an objective standard of reasonableness, judicial scrutiny of
counsel's performance must be highly deferential. Id. at 142. Because of the difficulties
Licking County, Case No. 10-CA-00058 7
inherent in determining whether effective assistance of counsel was rendered in any
given case, a strong presumption exists counsel's conduct fell within the wide range of
reasonable, professional assistance. Id.
{¶24} The second prong requires a showing that there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the proceeding
would have been different. “Prejudice from defective representation sufficient to justify
reversal of a conviction exists only where the result of the trial was unreliable or the
proceeding fundamentally unfair because of the performance of trial counsel. State v.
Carter (1995), 72 Ohio St.3d 545, 558, citing Lockhart v. Fretwell (1993), 506 U.S. 364.
It is based on this standard that we review the two arguments appellant raises in
support of this assignment of error.
{¶25} Based upon the record before us, there is no evidence a motion to
suppress would have been successful even if it had been filed. Further, even had the
motion been successful, the record contains numerous letters of confession which
appear to have been written by Appellant which demonstrates Appellant would not have
been prejudiced by the failure to file a motion to suppress.
{¶26} Finally, Appellant suggests he was denied effective assistance of counsel
because the discovery provided by the State was not made part of the record in this
case for our review. This argument is completely speculative. There is no evidence
before this Court that our inability to review the discovery has prejudiced the Appellant
in any way. For these reasons, Appellant’s third assignment of error is overruled.
{¶27} For these reasons, after independently reviewing the record, we agree
with counsel's conclusion that no arguably meritorious claims exist upon which to base
Licking County, Case No. 10-CA-00058 8
an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant
counsel's request to withdraw, and affirm the judgment of the Licking County Court of
Common Pleas. Costs to Appellant.
_s/ Sheila G. Farmer_ _____________
_s/ William B. Hoffman________________
_s/ John W. Wise _________________
JUDGES
SGF/as 111
Licking County, Case No. 10-CA-00058 9
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DEMETRIUS SNEED :
:
Defendant-Appellant : CASE NO. 10-CA-00058
For the reasons stated in our accompanying Memorandum-Opinion, counsel’s
motion to withdraw is granted, and the judgment of the Court of Common Pleas of
Licking County, Ohio is affirmed. Costs to appellant.
_s/ Sheila G. Farmer_ _____________
_s/ William B. Hoffman________________
_s/ John W. Wise _________________
JUDGES
State v. Sneed
Combined Opinion