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State v. Lashley

Court of Appeals of Ohio, Seventh District, Mahoning

May 26, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ELIJAH J. LASHLEY, SR.DEFENDANT-APPELLANT

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 563

          For Plaintiff-Appellee Attorney Paul Gains Mahoning County Prosecutor Attorney Ralph Rivera Assistant Prosecutor

          For Defendant-Appellant Attorney John Ams

          Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite

          OPINION

          DeGENARO, J.

         {¶1} Defendant-Appellant, Elijah Lashley, Sr. appeals the judgment of the Mahoning County Court of Common Pleas convicting him on two counts of kidnapping and two counts of felonious assault, denying his pro se pre-sentence motions to withdraw his guilty plea, and sentencing him accordingly. Appointed appellate counsel for Lashley has filed a no-merit brief and a request to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (1970).

         {¶2} After conducting an independent review of this case, the appeal is not frivolous and there exists one meritorious issue; specifically regarding consecutive sentence findings. Although the trial court made sufficient findings during the hearing, it failed to make specific findings in the judgment entry, instead cutting and pasting the entirety of R.C. 2929.14(C)(4) into the entry. Accordingly, the judgment of the trial court is reversed and this matter is remanded for the trial court to issue a nunc pro tunc sentencing entry that includes the applicable specific consecutive sentence findings. See State v. Williams, 7th Dist. No. 16MA0041, 2017-Ohio-856.

         Facts and Procedural History

         {¶3} On June 11, 2015, Lashley was indicted on 10 counts: counts 1 through 5 for rape, R.C. 2907.02(A)(2)(B), first-degree felonies; counts 6 through 8 for kidnapping, R.C. 2905.01(A)(4)(C), R.C. 2905.01(A)(2)(C), R.C. 2905.01(A)(3)(C), respectively, first-degree felonies; and counts 9 and 10 for felonious assault, R.C. 2903.11(A)(1)(D), R.C. 2903.11(A)(2)(D), second-degree felonies. He was accused of raping, kidnapping and assaulting his wife, K.J.

         {¶4} Lashley was arraigned, pled not guilty and counsel was appointed. He later entered into a Crim.R. 11 plea agreement with the State. Therein, Lashley agreed to plead guilty to counts 7 through 10, two counts of kidnapping and two counts of felonious assault. In exchange, the State agreed to dismiss counts 1 through 6, all five counts of rape and one count of kidnapping and recommend a 10-year prison sentence.

         {¶5} During the plea hearing the trial court engaged in a colloquy with Lashley concerning the rights he would give up by pleading guilty, and ultimately accepted Lashley's plea as knowingly, voluntarily and intelligently made and continued sentencing so that a presentence investigation could be prepared.

         {¶6} Several weeks later, Lashley filed a series of pro se motions to withdraw his guilty plea. In these motions, Lashley claimed he had additional evidence to present in his defense and claimed his guilty plea was not actually an admittance of guilt but an acknowledgement that racism still existed; he claimed his attorney told him that a white suburban jury would not believe him as an African American male with a criminal history. Lashley also claimed counsel was ineffective for allegedly losing exculpatory evidence he gave to him.

         {¶7} During a hearing on March 15, 2016, the pro se plea withdrawal motions were addressed first. Defense counsel stated that he was just learning about the pro se motions for the first time that morning, despite the fact that he visited Lashley in jail the day before. Defense counsel accordingly deferred to his client to speak on those matters. Thereafter, arguments were made by Lashley, pro se, and by the prosecutor regarding the plea withdrawal motions, which were overruled by the trial court.

         {¶8} The State stood by its promise to recommend a 10-year prison sentence. Defense counsel made arguments in favor of a lesser sentence. The trial court asked Lashley if he had anything to say regarding his sentence and Lashley made a statement. The victim made a lengthy statement detailing the crimes and the serious impact it had on her life. The State presented as exhibits two photographs of the victim taken soon after the crimes.

         {¶9} At the close of the hearing, the trial court sentenced Lashley to ten years each for counts 7 and 8, the two kidnapping charges, to run concurrently to each other; and three years each on counts 9 and 10, the two felonious assault charges, to run concurrently to each other. Counts 7 and 9 were ordered to run consecutively to one another for an aggregate prison term of 13 years. The trial court also imposed a mandatory five-year term of post-release control, and explained the ramifications of violating post-release control. The trial court failed to make any consecutive sentence findings during this hearing.

         {¶10} However, before the sentencing entry was issued, the trial court reconvened the parties for a resentencing hearing to address the issue of consecutive sentences. First, however, counsel for both sides made brief sentencing arguments, and the trial court again asked Lashley if he had anything to say pertaining to sentencing and Lashley made a brief statement.

         {¶11} The trial court then made the required consecutive sentence findings. The trial court sentenced Lashley to ten years each for counts 7 and 8, the two kidnapping charges, to run concurrently to each other; and three years each on counts 9 and 10, the two felonious assault charges, to run concurrently to each other. Counts 7 and 9 were ordered to run consecutively to one another for an aggregate prison term of 13 years. The trial court also imposed a mandatory five-year term of post-release control and explained the ramifications of violating post-release control.

         {¶12} On May 9, 2016, the trial court issued its sentencing entry, in which it imposed the 13-year sentence along with 5 years of mandatory post-release control. However, instead of making specific consecutive sentence findings which were made during the hearing, the entirety of R.C. 2924.14(C)(4) was cut and pasted into the entry. On July 1, 2016, Lashley filed a pro se motion for leave to file a delayed appeal, which this court granted.

         Anders Review

          {¶13} An attorney appointed to represent an indigent criminal defendant may seek permission to withdraw if the attorney can show that there is no merit to the appeal. See generally Anders, 386 U.S. 738. To support such a request, appellate counsel is required to undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support an appeal. Toney, 23 Ohio App.2d at 207. Counsel's motion must then be transmitted to the defendant in order to assert any error pro se. Id. at syllabus. The reviewing court must then decide, after a full examination of the proceedings and counsel's and the defendant's filings, whether the case is wholly frivolous. Id. If deemed frivolous, counsel's motion to withdraw is granted, new counsel is denied, and the trial court's judgment is affirmed. Id.

         {¶14} Counsel filed a no-merit brief, which raised several potential issues but ultimately concluded there was no error. We granted Lashley 30 days to file a pro se brief, which he failed to file.

         Guilty Plea

         {¶15} In the typical Anders case involving a guilty plea, the only issues that can be reviewed relate to the plea or the sentence. See, e.g., State v. Verity, 7th Dist. No. 12 MA 139, 2013-Ohio-1158, ¶ 11.

         {¶16} A guilty plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy,117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶ 11, citing Boykin v. Alabama,395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness of a plea, this court must consider all of the relevant circumstances surrounding it. State v. Johnson, ...


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