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Upkins v. Robinson

United States District Court, S.D. Ohio, Western Division, Dayton

July 11, 2019

LAMONE UPKINS, Petitioner,
v.
NORMAN ROBINSON, Warden, London Correctional Institution Respondent.

          THOMAS M. ROSE DISTRICT JUDGE

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         Lamone 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.

         Litigation History

         On 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.

         On 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.

         Claiming 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, 2017-Ohio-4396.

         In his Petition here, Upkins pleads the following grounds for relief:

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 required.
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.)

         Analysis

         Ground One: Invalidity of the Plea Agreement

         In his First Ground for Relief[1], 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 a nullity.

         The 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 ‚Äúthat the sentence that I will receive is a matter ...


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