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State v. Peete

Court of Appeals of Ohio, Eleventh District, Trumbull

June 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DERRICK DEE PEETE (AKA "RIZZI"), Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CR 786.

          Dennis Watkins, Trumbull County Prosecutor; Gabriel M. Wildman, Assistant Prosecutor; and Ashleigh Musick, Assistant Prosecutor, Administration Building, (For Plaintiff-Appellee).

          Derrick Dee Peete, pro se, PID: A653-015, Allen Correctional Institution, (Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Derrick Dee Peete, appeals the denial of his post-sentencing motion to withdraw his guilty plea without a hearing. We affirm.

         {¶2} In November 2012, a six-count indictment was returned against appellant, charging him with aggravated murder, tampering with evidence, improperly discharging a firearm into a habitation, attempted aggravated murder, felonious assault, and having a weapon while under a disability based upon an incident in which two separate victims were shot during an exchange of gunfire. Four of the six counts had firearm specifications.

         {¶3} Beginning in December 2012, appellant's trial counsel moved for, and was granted, four continuances of pretrial hearings. In October 2013, his counsel moved to continue the jury trial, scheduled for November 12, 2013. Counsel requested that the trial be postponed until after final disposition of a pending federal case against appellant. The motion was overruled and appealed. The appeal was ultimately dismissed for lack of a final appealable order, but trial was postponed until March 2014.

         {¶4} Approximately four days before trial, consistent with plea negotiations, the state moved to amend the first count of the indictment from aggravated murder to murder, a first-degree felony under R.C. 2903.02(A), and dismissal of the four firearm specifications. The motion was granted and appellant pleaded guilty to the amended indictment.

         {¶5} The court accepted the guilty plea and found him guilty on all six charges, as amended. Appellant waived his right to a presentencing investigation. The trial court accepted the joint sentencing recommendation and ordered appellant to serve a prison term of fifteen years to life on the murder charge. The court then imposed separate terms for the remaining five charges to be served concurrently with each other and the life sentence on the murder charge.

         {¶6} Over four years later, in September 2018, appellant moved to withdraw his guilty plea under Crim.R. 32.1. First, appellant maintained that his open court plea was deficient because the entire plea agreement was not read into the record and the trial court did not inform him of the total maximum sentence he could have received on all six charges. Second, he argued that trial counsel did not provide effective assistance because she coerced him into accepting the plea, failed to inform him of the type of evidence the state would have to present to prove prior calculation and design under the attempted aggravated murder count, and did not inform him that two of the six charges could merge for purposes of sentencing. Appellant's motion is supported with an affidavit, transcripts of the plea and sentencing, and disposition of trial counsel's disciplinary proceedings from an unrelated case.

         {¶7} Within three days the trial court summarily overruled the motion.

         {¶8} Appellant assigns the following as error:

         {¶9} "[1.] The trial court abused its discretion by failing to hold a hearing on appellant's motion.

         {¶10} "[2.] The trial court abused its discretion by failing to explain its reasoning ...


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