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State v. Cleary

Court of Appeals of Ohio, Seventh District, Mahoning

June 2, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
ROY J. CLEARY, DEFENDANT-APPELLANT.

         Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 14 CR 803

          For Plaintiff-Appellee No brief filed

          For Defendant-Appellant Attorney Donna Jewell McCollum, Roy J. Cleary

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

          OPINION

          DONOFRIO, J.

         {¶1} Defendant-appellant, Roy Cleary, appeals from a Mahoning County Common Pleas Court judgment convicting him of murder and aggravated robbery following his guilty plea.

         {¶2} On August 21, 2014, a Mahoning County Grand Jury indicted appellant on one count of aggravated murder, one count of murder, one count of tampering with evidence, and one count of aggravated robbery. These charges stemmed from the robbery and murder of Mark Westfall.

         {¶3} Appellant originally pleaded not guilty. He filed motions to suppress his confession to the police and to suppress evidence seized from his mother's home. The trial court overruled the suppression motions.

         {¶4} Appellant subsequently reached a plea agreement with plaintiff-appellee, the State of Ohio. Per the terms of the plea agreement, appellant agreed to plead guilty to murder and aggravated robbery. In exchange, the state agreed to dismiss the aggravated murder and tampering with evidence charges. Additionally, appellant and the state agreed to jointly recommend a sentence of 15 years to life in prison on the murder charge and five years on the aggravated robbery charge, to be served consecutively to the murder sentence, for a total jointly recommended sentence of 20 years to life.

         {¶5} The trial court held a change of plea hearing where appellant pleaded guilty to murder, a special felony in violation of R.C. 2903.02(A)(D) and aggravated robbery, a first-degree felony in violation of R.C. 2911.01(A)(1)(C). The trial court accepted appellant's plea and set the matter for a sentencing hearing.

         {¶6} At the sentencing hearing on June 5, 2015, the trial court sentenced appellant to the jointly recommended sentence of 15 years to life for murder and five years for aggravated robbery, to be served consecutively, for a total sentence of 20 years to life.

         {¶7} This court granted appellant's motion to file a delayed appeal on August 4, 2016.

         {¶8} Appellant's appointed counsel filed a no merit brief and request to withdraw pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist. 1970).

         {¶9} On September 28, 2016, we issued a judgment entry notifying the parties that appellant's counsel had filed a Toney brief and advising appellant he had 30 days to file a pro se brief. Appellant did not file a pro se brief. ...


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