[Cite as State v. Henderson, 2016-Ohio-3480.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26762
:
v. : T.C. NO. 14CR2931
:
DAVID P. HENDERSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___17th___ day of ____June____, 2016.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 N. Pioneer Blvd., Springboro,
Ohio 45066
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} David P. Henderson pled guilty in the Montgomery County Court of Common
Pleas to murder, an unclassified felony; felonious assault (deadly weapon), a felony of
the second degree; and discharge of a firearm on or near prohibited premises, a felony
of the first degree. The trial court merged the felonious assault into the murder for
-2-
sentencing and imposed an agreed sentence of a mandatory 15 years to life for the
murder and a mandatory term of 11 years for the discharge of a firearm offense; the
sentences were ordered to be served concurrently. Henderson was also ordered to pay
restitution of $500 and court costs.
{¶ 2} Henderson’s appellate counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he had discovered
no non-frivolous issues for appeal. By entry, we informed Henderson that his attorney
had filed an Anders brief on his behalf and granted him 60 days from that date to file a
pro se brief. No pro se brief has been filed.
{¶ 3} We have conducted our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with
appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial
court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 4} In September 2014, Henderson was indicted for (1) murder (proximate cause
of felonious assault – deadly weapon); (2) murder (proximate cause of felonious assault
– serious physical harm); (3) felonious assault (deadly weapon); (4) felonious assault
(serious physical harm); and (5) discharge of a firearm on or near prohibited premises
(public road or highway). Each offense included a firearm specification. All of the
offenses related to the shooting of DeAngelo Dewberry, Henderson’s cousin, during the
early morning hours of August 23, 2014. Responding officers found Dewberry lying in
the middle of the street with a gunshot wound. Dewberry later died at the hospital.
{¶ 5} Henderson’s trial counsel sought and received discovery from the State.
-3-
Henderson signed a waiver of his speedy trial rights on September 25, 2014.
{¶ 6} Henderson’s counsel filed several pretrial motions. In December 2014,
Henderson moved to suppress any eyewitness identifications; that motion was
subsequently withdrawn. Henderson also filed a motion in limine to exclude the use of
Dewberry’s statements, one of which identified Henderson as the shooter, as dying
declarations; the trial court overruled the motion. Henderson also sought an order for
the crime lab to test Dewberry’s clothing and shoes and Henderson’s vehicle for gun
powder residue and to test a substance that fell out of Dewberry’s shoe. The trial court
granted the motion for crime lab testing.
{¶ 7} On May 7, 2015, Henderson pled guilty to one count of murder (count one),
one count of felonious assault (count three), and discharge of a firearm on or near
prohibited premises (count five). In exchange for the plea, the State agreed to dismiss
all of the firearm specifications, and the additional counts of murder (count two) and
felonious assault (court four). The State indicated that it agreed that the felonious
assault and murder charges would merge for sentencing; the State would elect to have
Henderson sentenced for murder. The parties further agreed that the sentences for
murder and discharge of a firearm on or near prohibited premises would be served
concurrently and that Henderson would receive a mandatory term of 15 years to life for
the murder and a mandatory term of 11 years for discharge of a firearm on or near
prohibited premises.
{¶ 8} The court originally did not order a presentence investigation. However,
after the issue of restitution was raised, a limited presentence investigation was
conducted on that issue. At the beginning of the sentencing hearing, the parties agreed
-4-
that Henderson would pay $500 in restitution to Dewberry’s mother as part of his
sentence. The court ordered Henderson to pay that amount of restitution and court costs
and imposed, as agreed by the parties, concurrent sentences of 15 mandatory years to
life in prison for the murder and 11 mandatory years for the discharge of a firearm offense;
the 11-year sentence was mandatory due to a prior conviction in federal court.
{¶ 9} The trial court issued a judgment entry on May 15, 2015. Henderson did not
file a timely appeal. On July 14, 2015, Henderson moved for leave to file a delayed
appeal, and we granted his motion.
{¶ 10} In his Anders brief, Henderson’s appellate counsel raises three potential
assignments of error: (1) that the trial court failed to comply with Crim.R. 11 in accepting
Henderson’s plea, (2) that Henderson’s sentence was contrary to law or was an abuse of
discretion, and (3) that Henderson was denied the effective assistance of counsel.
II. Trial Court’s Compliance with Crim.R. 11
{¶ 11} Henderson’s first potential assignment of error states:
The Trial Court Failed to Comply with the Requirements of Criminal Rule 11
in Accepting the Appellant’s Guilty Plea.
{¶ 12} As an initial matter, we find that there are no non-frivolous issues related to
the trial court’s rulings prior to his plea. A plea of guilty is a complete admission of guilt.
E.g., State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State
v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1).
Consequently, a guilty plea waives all appealable errors that may have occurred in the
trial court, unless such errors precluded the defendant from knowingly, intelligently, and
voluntarily entering his guilty plea. See, e.g., State v. Kelley, 57 Ohio St.3d 127, 566
-5-
N.E.2d 658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. We find nothing in
the trial court’s pretrial rulings that would have precluded Henderson from making a
knowing, intelligent, and voluntary plea.
{¶ 13} Crim.R. 11(C)(2) requires the court to address the defendant personally and
(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 and that the court, upon acceptance of the plea, may proceed with judgment and
sentencing; and (c) inform the defendant and determine that he or she understands that,
by entering the plea, the defendant is waiving the rights to a jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining witnesses, and
to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she
cannot be compelled to testify against himself or herself. State v. Brown, 2d Dist.
Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 14} The Supreme Court of Ohio has urged trial courts to literally comply with
Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 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, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the implications
of his plea and the rights he is waiving.” Id. In contrast, the trial court must strictly
comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights.
-6-
Clark at ¶ 31.
{¶ 15} Furthermore, when non-constitutional rights are at issue, a defendant who
challenges his plea on the basis that it was not knowingly, intelligently, and voluntarily
made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea
would otherwise not have been entered. Id. at ¶ 15.
{¶ 16} Upon review of the transcript of the plea hearing, the trial court fully
complied with the requirements of Crim.R. 11. The charges were read to Henderson,
and Henderson indicated that he understood the nature of those charges. The trial court
informed Henderson of the potential penalties for each offense, including that the 15-year
portion of the murder sentence was mandatory (“you cannot get early release from the
Court during that 15-year period”) and that the discharge of a firearm offense had a
mandatory sentence due to Henderson’s prior conviction in federal court for possession
of a firearm during a drug trafficking crime. The court explained to Henderson that the
felonious assault offense would merge with murder, that he would not be sentenced on
the felonious assault, and that his other two sentences would run concurrently.
Henderson indicated that he understood all of this.
{¶ 17} The trial court further informed Henderson that he would be required to
serve five years of post-release control for the discharge of a firearm offense, but with
regard to the murder, he would be placed on parole if he were released. Henderson was
told that he could be on parole supervision for the rest of his life. The court explained
the different consequences if he violated post-release control or parole supervision.
Henderson indicated his understanding.
-7-
{¶ 18} The court told Henderson that “pleading guilty to these three charges means
you’re completely admitting you are guilty” and that the court would find him guilty of the
three charges. The court explained the constitutional rights that Henderson would be
waiving by his guilty plea. The trial court also told Henderson that, by pleading guilty, he
would be unable to appeal the trial court’s decision overruling his motion to exclude
Dewberry’s statements as dying declarations. Henderson stated that he understood the
rights he was giving up.
{¶ 19} Henderson told the trial court that he was entering his plea voluntarily. He
denied that anyone had pressured him or threatened him into entering the plea.
Henderson was 31 years old at the time of the plea, and he stated that he was not on any
medications. Henderson said that he had understood everything the trial court had said.
At the conclusion of the discussion, Henderson stated that he was pleading guilty to
Counts One (murder), Three (felonious assault), and Five (discharge of a firearm on or
near a prohibited premises). The court accepted the pleas and found Henderson guilty.
{¶ 20} We find no non-frivolous claim based on the trial court’s Crim.R. 11 plea
hearing.
III. Sentencing
{¶ 21} Henderson’s second potential assignment of error states:
The Sentence Imposed by the Trial Court was Contrary to Law or
Constituted an Abuse of Discretion
{¶ 22} Henderson’s appellate counsel raises, as a potential assignment of error,
that Henderson’s sentence was contrary to law or an abuse of discretion. Because the
trial court imposed an agreed sentence, we begin with whether Henderson is entitled to
-8-
appeal his sentence.
{¶ 23} R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a defendant
is not subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed
by a sentencing judge.” R.C. 2953.08(D)(1). “A sentence is ‘authorized by law’ and is
not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all
mandatory sentencing provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus.
{¶ 24} Henderson’s sentences for murder and discharge of a firearm on or near a
prohibited premises were within their respective sentencing ranges, and both sentences
were required to be mandatory pursuant to R.C. 2929.13(F). The sentences were jointly
recommended by the parties. Because Henderson’s sentence was authorized by law
and jointly recommended by the parties, R.C. 2953.08(D)(1) precludes us from reviewing
the length of his sentences.
{¶ 25} In addition, the trial court properly imposed post-release control for the
discharge of a firearm offense and informed Henderson that he was subject to parole for
the murder. The court informed Henderson of the consequences of violating post-
release control and parole supervision. The trial court ordered that Henderson pay $500
in restitution, an agreed-upon amount, and court costs at both the sentencing hearing and
in the judgment entry. Upon review of the sentencing hearing and the judgment entry,
we find no arguable errors by the trial court relating to the imposition of Henderson’s
sentence.
{¶ 26} Appellant counsel notes that the trial court did not notify Henderson that he
-9-
had a right to appeal. However, assuming this were error, Henderson sought to file a
delayed appeal, and his request was granted. We find no arguable claim that Henderson
was prejudiced by the trial court’s failure to address Henderson’s right to appeal his
conviction.
{¶ 27} We agree with appellate counsel that there are no non-frivolous issues
related to Henderson’s sentencing.
IV. Ineffective Assistance of Counsel
{¶ 28} Henderson’s third potential assignment of error states:
Appellant was Denied his Constitutionally Guaranteed Right to Effective
Assistance of Counsel.
{¶ 29} To establish ineffective assistance of counsel, Henderson must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of his case would have been different.
See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to
a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Hindsight is
not permitted to distort the assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial strategy cannot form
the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d
516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No. 24340,
2012-Ohio-4860, ¶ 58.
-10-
{¶ 30} Appellant counsel states that the record “contains little to any issue of
ineffective assistance of counsel.” The only matter counsel raises is Henderson’s
agreement not to appeal the court’s pretrial ruling regarding the admissibility of
statements by Dewberry. We find no ineffective assistance in this regard. The inability
of Henderson to appeal the court’s pretrial ruling stemmed from the fact that Henderson
entered a guilty, as opposed to no contest, plea. However, there is nothing in the record
to suggest that the State would have agreed to a no contest plea, and defense counsel
had successfully negotiated the dismissal of the firearm specifications and concurrent
sentences. Moreover, at Henderson’s plea hearing, the court made clear to Henderson
that he would not be permitted to appeal the pretrial ruling, and Henderson entered his
plea with this understanding.
{¶ 31} We agree with appellate counsel that the record does not support a claim
of ineffective assistance of counsel.
V. Conclusion
{¶ 32} Having conducted our independent review of the record, we agree with
appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial
court’s judgment will be affirmed.
.............
DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Andrew T. French
Marshall G. Lachman
David P. Henderson
Hon. Dennis J. Langer
State v. Henderson
Combined Opinion