United States District Court, S.D. Ohio, Western Division, Dayton
M. ROSE DISTRICT JUDGE
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
Upkins brings this Petition for Habeas Corpus pro se
pursuant to 28 U.S.C. § 2254 (ECF No. 1). He seeks
relief from his conviction in the Common Pleas Court of
Shelby County, Ohio, on drug trafficking charges. Upon
initial review, the Magistrate Judge ordered Respondent to
file the State Court Record (ECF No. 4), and a Return of Writ
(ECF No. 5), which has been done. Upkins has now filed his
Reply to the Return of Writ (ECF No. 10), making the case
ripe for decision.
October 1, 2015, a Shelby County, Ohio, grand jury indicted
Upkins on four fifth-degree felony Ohio Revised Code §
2925.03(A)(1) Trafficking in Drugs charges, seven
fourth-degree felony Ohio Revised Code § 2925.03(A)(1)
Trafficking in Drugs charges, and one third-degree felony
Ohio Revised Code § 2925.03(A)(1) Trafficking in Drugs
charge (State Court Record, ECF No. 4, Ex. 1, PageID 29-31).
In a plea agreement negotiated with the assistance of
counsel, Upkins agreed to plead guilty to two fifth-degree
felony Trafficking in Drugs charges, two fourth-degree felony
Trafficking in Drugs charges, and one third-degree felony
Trafficking in Drugs charge. The parties jointly recommended
an aggregate four-year prison sentence. Id. at Ex.
3, PageID 33-41. Instead, the trial court sentenced Upkins to
an aggregate 11 months in prison for the two fifth-degree
felony Trafficking in Drugs convictions, an aggregate 17
consecutive months in prison for the two fourth-degree
Trafficking in Drugs convictions, and 30 consecutive months
in prison for the third-degree felony Trafficking in Drugs
convictions, resulting in an aggregate 58 months in prison.
Id. at Ex. 6, PageID 60.
direct appeal, the Ohio Third District Court of Appeals found
no arguable issues and dismissed the appeal as frivolous
after counsel filed an Anders brief. State v.
Upkins, No. 17-16-04 (3rd Dist. Shelby Oct.
13, 2016) (unreported; copy at State Court Record ECF No. 4,
Ex. 17. PageID 186-89). Although it initially accepted
jurisdiction, State v. Upkins, 149 Ohio St.3d 1405,
2017-Ohio-2822, the Supreme Court of Ohio later dismissed the
appeal as having been improvidently granted, without ruling
on the merits. 154 Ohio St.3d 30, 2018-Ohio-1812.
ineffective assistance of appellate counsel, Upkins filed an
Application to Reopen the direct appeal under Ohio R. App. P.
26(B) (State Court Record, ECF No. 4, Ex. 26, PageID 330-90),
which the Third District ultimately denied on the merits.
State v. Upkins, No. 17-16-04 (3rd Dist.
Feb. 21, 2017) (unreported; copy at State Court Record, ECF
No. 4, Ex. 29, PageID 402-03). The Supreme Court of Ohio
declined to exercise further appellate jurisdiction.
State v. Upkins, 149 Ohio St.3d 1435,
Petition here, Upkins pleads the following grounds for
Ground One: Character of the plea agreement:
Specifically pursuant to Ohio R. Crim. P. 11(F) negates the
requisite voluntary and knowing character of the plea, thus
void [sic] the plea. Ohio R.Crim.P. 11(F) provides for
negotiating only to pleas of guilty or no congest to one or
more lesser offenses and does not contemplate punishment will
be subject to “Ple [sic] Bargaining.”
Prosecutor's inducement of a written plea agreement of
(4) years punishment contrary to Ohio R. Crim. P. 11(F) and
not withstand ding unsupported by the trial court for which
has sound discretion, the prosecutor's unfulfillable
promise, negates the knowing, volunt [sic].
Ground Two: Ohio R. Crim. P. 11(C)(2). Trial
court's compliance with Due Process in accepting the
Appellant's written plea agreement & whether
appellant was afforded and acknowledged the option to
withdraw his guilty plea.
Supporting Facts: The trial court excepted
[sic] the appellant's guilty plea as part of a jointly
recommended plea agreement of (4) years for trafficking in
(1.45g) one and forty-five one hundredths of a gram of drugs.
The court after accepting appellant's guilty plea
sentenced the appellant to 58 months for a non-violent drug
offense new affording the opportunity to withdraw plea. Ohio
R. Crim. P. 11(C)(2) provides it is the trial court's
responsibility to evaluate plea agreements, a decision
rejecting a plea bargain should be accompanied by the trial
court[‘]s reasons, absent facts and circumstances that
speak so eliquently [sic] that no statement by the judge is
Ground Three: Breach of the plea agreement
by the State; The State signed a written plea agreement to
jointly recommend a specific term in prison of (4) years, the
plea agreement being contract in nature, the state breached
the agreement with end-run comments at sentencing of danger
that gave rise to doubt in that the judge states: “As
everyone has echoed here today, ” clearly influenced
the judge's decision to enhance a greater sentence as the
comments were meant to do.
Ground Four: Whether the Appellant was
afforded Effective Assistance of Counsel.
Supporting Facts: In conflict trial counsel
acted as appellate counsel and immediately files an
Anders Brief stating defendant's appeal was
totally frivolous when the issue of ineffective assistance of
trial counsel wanted to be raised by the appellant. As well,
Appellate/Trial counsel deliberately misrepresented the facts
surrounding the use of materially false in formation at
sentencing to enhance a greater sentence upon the appelant
[sic] for which was objected to by the App.
Ground Five: Whether the trial court errored
[sic] in imposing fines.
Supporting Facts: The Ohio Supreme Court has
held that the issues concerning fines has to be raised at
sentencing, the appellant requested his fines be waived do
[sic] to the amount of time in prison and the appellant would
not be making more than twenty dollars per week, making the
appellant indigent by law. The court failed to conduct any
inquiry to determine whether the defendant had the ability to
pay any fines. If the court finds the defendant doesn't
have the ability to pay them, the court must suspend all or
substantially all of the fine. Court failed to do so.
(Petition, ECF No. 1, PageID 6-12.)
One: Invalidity of the Plea Agreement
First Ground for Relief, Petitioner argues the plea agreement
in this case is not permitted by Ohio R. Crim. P. 11(F) which
does not contemplate that punishment will be subject to plea
bargaining. He reasons that because the plea agreement is
invalid, his guilty plea is also. He also claims that the
prosecutor's promise to recommend a sentence of four
years was unfulfillable, thereby rendering the plea agreement
plea agreement in this case is memorialized in what appears
to be a form document of the Shelby County Court of Common
Pleas. ¶ 6 provides in typescript “I understand
that there is an underlying agreement upon this plea is based
and it is as follows:” On the spaces below this typed
language there appears in handwriting “plea to Count X;
Count I, Count II; Count III, Count IV; joint recommendation
at sentencing of four (4) years.” (State Court Record,
ECF No. 4, PageID 34). Other handwritten portions of the form
include a request that the court accept a plea of guilty to
Counts I, II, III, IV, and X and a recitation of the maximum
penalties for each of those counts. Id. at PageID
35. Petitioner also acknowledged that the maximum sentence
could be ninety-six months. Id. at PageID 35-36. In
printed language, the form declares that no one had made any
promise of a lighter sentence in exchange for the guilty plea
and “that the sentence that I will receive is a matter