Court of Appeals of Ohio, Fifth District, Muskingum
Appeal from the Court of Common Pleas, Case No. CR2016-0122
Plaintiff-Appellee D. MICHAEL HADDOX PROSECUTING ATTORNEY
GERALD V. ANDERSON II ASSISTANT PROSECUTOR
Defendant-Appellant D. MICHAEL HADDOX TONY A. CLYMER
JUDGES: Hon. John W. Wise, P. J. Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
Appellant Sirius E. Underwood appeals from his convictions in
the Court of Common Pleas, Muskingum County, on one count of
aggravated murder, two counts of aggravated robbery, and
other felony offenses. Appellee is the State of Ohio. The
relevant procedural facts leading to this appeal are as
On February 24, 2017, stemming from an indictment by the
Muskingum County Grand Jury issued on March 30, 2016,
appellant appeared with counsel and entered an
Alford plea to felony charges consisting of one
count for the aggravated murder of Brandy Daniels, with a
firearm specification (set forth as Count 9), two counts of
aggravated robbery, two counts of conspiracy to commit
aggravated robbery, two counts of theft, two counts of having
a weapon while under a disability, one count of aggravated
burglary, one count of engaging in a pattern of corrupt
activity, and one count of tampering with evidence. This plea
was entered following several months of negotiation between
trial counsel for appellant and the State of Ohio, through
the Muskingum County Prosecutor's Office.
During the aforementioned plea hearing, the assistant
prosecutor, Ron Welch, made inter alia the following
statements to the trial court: "In exchange for the
defendant's plea ***, the parties agree to the joint
recommendation that the defendant be sentenced to an
aggregate prison term of life in prison with eligibility for
parole after the defendant has served 25 years in prison,
plus a mandatory consecutive three-year term for the firearm
specification attached to Count 9. *** The parties stipulate
the facts sufficient for a finding of guilty to be made. And
the defendant agrees to make restitution in the amount of
$22, 265.24. I have here a signed four-page entry of guilty
plea form, if I may approach." Tr., Plea Hearing, at
At that point, the court asked defense counsel if he had
anything to add, to which he replied: "Not for the
purposes of the change of plea, Your Honor. Mr. Welch's
recitation of the change of plea was accurate."
Id. at 5.
The trial court thereupon engaged in a plea colloquy with
appellant, following which Mr. Welch extensively summarized
the facts of the case. The court then ordered a presentence
A sentencing hearing was held on March 20, 2017. Once again,
the State of Ohio, through the assistant prosecuting
attorney, Mr. Welch, outlined the plea agreement that had
been entered into between appellant and the State of Ohio.
Tr., Sentencing Hearing, at 4-5. The State of Ohio further
indicated that negotiations in the case "came about over
a course of time involving the State and defense, as well as
consultation with the family members that have been involved
in this matter." Id. Furthermore, trial counsel
for appellant reiterated the lengthy discussions that took
place regarding the plea agreement and requested that the
trial court follow the joint recommendation.
Following the hearing, the trial court sentenced appellant to
life in prison with eligibility for parole after twenty-eight
years (twenty-five plus a three-year firearm specification)
on the aggravated murder charge, consecutive to ten years in
prison on the other counts (to be served concurrently with
each other), for an aggregate prison term of life in prison
with the eligibility for parole after thirty-eight years.
Appellant was also ordered inter alia to pay
restitution in the amount of $22, 265.24.
A final sentencing entry was issued on March 21, 2017.
Appellant filed a notice of appeal on April 4, 2017. He
herein raises the following four Assignments of
"I. THE TRIAL COURT RENDERED APPELLANT'S PLEA
INVOLUNTARY AND VIOLATED APPELLANT'S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS BY IGNORING THE JOINT RECOMMENDATION OF
SENTENCE AND IMPOSING A SENTENCE THAT EXCEEDED THE
AGREED-UPON SENTENCING RECOMMENDATION.
"II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL
"III. THE TRIAL COURT ERRED BY NOT CONSIDERING THE
PRINCIPLES AND PURPOSES OF SENTENCING AS REQUIRED BY R.C.
2929.11 AND 2929.12 AND NOT PERMITTING THE APPELLANT THE
OPPORTUNITY TO WITHDRAW HIS GUILTY PLEA PRIOR TO IMPOSITION
OF SENTENCE RENDERING THE SENTENCE CONTRARY TO LAW.
"IV. THE TRIAL COURT PLAINLY ERRED IN ORDERING APPELLANT
TO PAY RESTITUTION AND COURT COSTS SINCE APPELLANT IS
INDIGENT AND THE COURT NEVER REFERENCED ...