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State v. Heard

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 26, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CARLTON DEVON HEARD DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601703-A

          ATTORNEY FOR APPELLANT Kimberly K. Yoder Kimberly K. Yoder Co., L.P.A.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Amy Venesile Assistant Prosecuting Attorney

          BEFORE: Keough, A.J., E.T. Gallagher, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, A.J.

         {¶1} Defendant-appellant, Carlton Devon Heard ("Heard"), appeals from the trial court's judgment, rendered after his no contest plea, finding him guilty of attempted murder, felonious assault, and aggravated robbery, and sentencing him to 14 years in prison. We reverse and remand, with instructions that the administrative judge assign this case to a different judge.

         I. Background

         {¶2} In December 2015, Heard was indicted in Case No. CR-15-601703-A for attempted murder in violation of R.C. 2903.02(A), felonious assault in violation of R.C. 2903.11(A)(1), aggravated robbery in violation of R.C. 2911.01(A)(1), robbery in violation of R.C. 2911.02(A)(1), carrying concealed weapons in violation of R.C. 2923.12(A)(2), and having weapons while under disability in violation of R.C. 2923.13(A)(2). With the exception of the carrying concealed weapons charge, all of the counts carried firearm specifications. When he was charged, Heard was on probation in Case No. CR-14-587295 for carrying concealed weapons in violation of R.C. 2923.12(A)(2).

         {¶3} Discovery commenced and the trial court held numerous pretrials. The case was set for trial three times; the trial date was continued once at the state's request and twice at Heard's request.

         {¶4} On August 15, 2016, when the parties appeared for trial, defense counsel requested another continuance, informing the court that Heard had "denied responsibility and claimed his innocence to this since the time I met him, " and that only half an hour earlier, had told counsel he had been "covering up for the real shooter" and then given counsel the shooter's name. Counsel said he had given the name to the prosecutor, and was asking the court for a continuance to investigate this alternative theory of the case.

         {¶5} The state objected to defense counsel's request, arguing that the case had been set for trial three times, and a delay in trial might allow the state's witnesses to be intimidated. The judge noted that Heard had a prior intimidation conviction.

         {¶6} The judge then told Heard that it did not make sense that he would wait so long to offer the name of the real shooter, and that the new information appeared to be just a ploy to get another continuance. The judge told Heard that "if we don't plead the case, we're going to trial right now."

         {¶7} The judge stated that although Heard had not authorized his lawyer to request a plea bargain, he (the judge) had determined that even if the prosecutor sought authorization for a plea deal, the court would reject what the state would likely offer because "I think if you plead out to a case like this, you need to do somewhere between 13 and 15 years in the state penal institution."

         {¶8} The judge then told Heard that if he went to trial and was convicted, he would get "at least double, perhaps triple or more time, because you're going to be convicted of an additional seven counts, " and the judge would run the sentences consecutively.

         {¶9} The judge then offered ...


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