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State v. Underwood

Court of Appeals of Ohio, Fifth District, Muskingum

February 23, 2018

STATE OF OHIO Plaintiff-Appellee
v.
SIRIUS E. UNDERWOOD Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. CR2016-0122

          For Plaintiff-Appellee D. MICHAEL HADDOX PROSECUTING ATTORNEY GERALD V. ANDERSON II ASSISTANT PROSECUTOR

          For 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.

          OPINION

          WISE, P. J.

         {¶1} 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 follows.

         {¶2} 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.

         {¶3} 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 4-5.

         {¶4} 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.

         {¶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 investigation.

         {¶6} 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.

         {¶7} 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.

         {¶8} A final sentencing entry was issued on March 21, 2017.

         {¶9} Appellant filed a notice of appeal on April 4, 2017. He herein raises the following four Assignments of Error:[1]

         {¶10} "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.

         {¶11} "II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS.

         {¶12} "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.

         {¶13} "IV. THE TRIAL COURT PLAINLY ERRED IN ORDERING APPELLANT TO PAY RESTITUTION AND COURT COSTS SINCE APPELLANT IS INDIGENT AND THE COURT NEVER REFERENCED ...


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