State v. Bradley

          Criminal Appeal from Common Pleas Court Trial Court Case Nos. 2016-CR-2391 and 2018-CR-2076/2.

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          MATTHEW J. BARBATO, Atty. Reg. No. 0076058, Attorney for Defendant-Appellant

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Walter Shane Bradley was convicted on his no contest pleas in the Montgomery County Court of Common Pleas of aggravated vehicular homicide, aggravated vehicular assault, and bribery. He appeals from the trial court's decision overruling his presentence motion to withdraw his no contest plea. For the reasons outlined below, the judgment of the trial court will be affirmed.

         I. Facts and Procedural Background

         {¶ 2} On August 22, 2015, Bradley was driving a Ford pickup truck while intoxicated.^[1] At the corner of East Third Street and St. Clair Street in Dayton, Bradley struck a vehicle driven by Carrie Cox. Bradley did not stop and continued to drive to the intersection of First Street and Keowee Street where he ran a red light and struck a taxi. Bradley again failed to stop and drove on toward the intersection of Monument Street and Taylor Street, where he failed to observe a stop sign. As Bradley drove through the intersection, he collided with a vehicle operated by Kristin Burton. Bradley exited his vehicle and attempted to run away. However, he was caught and detained by Joseph Cox, who had followed him from the collision with Carrie Cox.^[2] Kristin Burton died at the scene of the accident. Burton's son, who was in a car seat in the back seat of her vehicle, suffered major injuries, but survived.

         {¶ 3} On November 23, 2016, Bradley was indicted in Montgomery C.P. No. 2016-CR-2391 on two counts of failure to stop after an accident in violation of R.C. 4549.02(A); one count of aggravated vehicular homicide (OVI/driving under suspension) in violation of R.C. 2903.06(A)(1)(a); one count of aggravated vehicular homicide (OVI) in violation of R.C. 2903.06(A)(1)(a); one count of aggravated vehicular homicide (reckless/driving under suspension) in violation of R.C. 2903.06(A)(2)(a); one count of aggravated vehicular homicide (reckless) in violation of R.C. 2903.06(A)(2)(a); one count of aggravated vehicular assault (OVI/driving under suspension) in violation of R.C. 2903.08(A)(1)(a); one count of aggravated vehicular assault (OVI) in violation of R.C. 2903.08(A)(1)(a); one count of vehicular assault (reckless/driving under suspension) in violation of R.C. 2903.08(A)(2)(b); one count of vehicular assault (reckless/driving under suspension) in violation of R.C. 2903.08(A)(2)(b); one count of failure to stop after an accident or collision (death) in violation of R.C. 4549.02(A) and (B); and one count of failure to stop after an accident or collision (serious physical harm) in violation of R.C. 4549.02(A) and (B).

         {¶ 4} Bradley initially retained attorney Patrick Flanagan, who began conducting discovery and filing various motions. In January 2017, Bradley also retained attorney Daniel O'Brien to act as co-counsel. In March 2017, Flanagan withdrew as counsel. Thereafter, O'Brien filed a motion to suppress, which was overruled by the trial court.

         {¶ 5} On May 13, 2018, Bradley made a telephone call from jail which was recorded in accordance with standard jail procedure. During that call, Bradley told a friend, identified as Ricky Knox, to offer money to Joseph Cox in order to persuade him not to appear as a witness at trial. Bradley told Knox that he had a "discovery packet" which contained numerous witness statements. Of particular note, Bradley told Knox that Cox's witness statement indicated Cox had observed Bradley driving the truck that caused all three accidents.

         {¶ 6} As a result of that telephone call, on June 21, 2018, Bradley was indicted in Montgomery C.P. No. 2018-CR-2076 on one count of bribery (corrupt witness) in violation of R.C. 2921.02(C). The cases were joined for purposes of trial. O'Brien withdrew as counsel that same month, and Michael Brush was appointed to represent Bradley.

         {¶ 7} Trial was scheduled to begin on October 1, 2018. However, on September 26, 2018, Bradley entered a plea of no contest to one count of aggravated vehicular homicide, one count of aggravated vehicular assault, and one count of bribery. Pursuant to an agreement with the State, all other counts were dismissed and the parties agreed to a sentencing range of 12 to 18 years in prison. The parties also agreed that the sentencing range would include any possible sentence for the pending revocation of his community control sanctions for the 2012 felony conviction. A sentencing hearing was set for November 8, 2018.

         {¶ 8} In early October 2018, the trial court received a handwritten, pro se letter from Bradley requesting to withdraw his plea. In the letter Bradley claimed that he did not understand what had happened at the plea hearing and that his attorney had "guaranteed" that he would get a 12-year sentence with two years of jail time credit. The letter was forwarded to the prosecutor and defense counsel. The trial court permitted Brush to withdraw as counsel, and on October 30, 2018, new counsel was appointed to represent Bradley. In November 2018, Bradley filed a written motion to withdraw his plea in which he claimed that counsel had been ineffective and that Bradley had not understood that the plea agreement provided for a sentencing range of 12 to 18 years. On December 5, 2018, Bradley retained private counsel who entered a notice of substitution. Appointed counsel was permitted to withdraw.

         {¶ 9} A hearing on the motion to withdraw the plea was conducted on December 18, 2018. Bradley testified that Brush came to jail to discuss the plea agreement with him the day before the plea. He testified Brush told him that if he did not take the plea, he would get 30 years in prison. Bradley testified that Brush wrote the number "12" on a piece of paper, circled it, and stated "that's what I can get you right now." Tr. p. 15. Bradley testified that Brush told him the judge would state that the range would be "12 to 18 years," but that Bradley would only get a 12-year prison term. Tr. p. 19. Bradley testified that Brush did not review or discuss the plea forms with him. Bradley also testified that he did not discuss any possible defenses with Brush and that he never received a full discovery packet from any of his attorneys. Bradley testified that Brush had instructed him to answer "yes" to any questions by the trial court concerning the sentence. Bradley testified that he had not been informed of a possible sentencing range of 12 to 18 years until he appeared for the plea hearing. He testified that believed he would get a 12-year sentence, but that when he was taken back to jail after the plea, other inmates explained to him that the range meant he could get up to an 18-year sentence.

         {¶ 10} Brush testified that he visited Bradley in jail at least eight times during the course of his representation, and that his associate was present for some of the visits. Brush testified that he also met with Bradley at the courthouse in conjunction with at least four court appearances. Brush testified that he and Bradley discussed possible defenses, including Bradley's claim that he had not been driving at the time of the three accidents. Brush also testified that he gave Bradley a full paper copy of the file and that he had watched all the videos in the file with Bradley during the jail meetings.

         {¶ 11} Brush testified that, two days before the plea hearing, both he and his associate met with Bradley at the jail for a period of two hours. Brush testified that he discussed the possible sentencing range with Bradley. He testified that he wrote "12 -18" on a piece paper and that Bradley stated he could not do an 18-year sentence. Brush testified that he explained that 18 years was a possibility, but that he circled the "12," and informed Bradley that he was going to make an argument in support of a 12-year sentence. Brush testified that he does not just say, for example, "12 to 18" when discussing a possible sentencing range. Instead, he testified that when explaining a sentencing range with a client, he, again for example, will say, "you could get 12 years, 13 years, 14 years, and [that he will] go all the way to 18." He testified that he learned to do so from a judge, and that he routinely follows this practice. Consistent with this routine, Brush testified he told Bradley that he could receive a "12, 13, 14, 15, 16, 17 or 18" year sentence and that he then repeated the sentencing range. Tr. p. 131. Brush testified that Bradley stated he understood the terms of the agreement and that Bradley authorized him to make the plea offer to the prosecutor. Brush testified that the substance of the plea forms was discussed with Bradley at that meeting.

         {¶ 12} Brush testified that on the day of the plea hearing, he and his associate met Bradley in court. Brush testified that he told his associate to go over the plea forms with Bradley. Brush testified that he left the two together to go over the forms. Brush also testified that when he walked back into the courtroom, his associate informed him that Bradley did not want to enter the plea. Brush testified that he, Bradley and the associate sat in a closed room where Bradley stated that he thought he was pleading to a 12-year sentence. Brush testified that he responded by stating that Bradley knew the plea was for a sentencing range. Brush testified that he also informed Bradley that if he did not want to enter a plea that Brush would so inform the court. Brush testified that after further discussion, Bradley decided to go ahead with the plea. Brush testified that he then discussed and reviewed the plea forms with Bradley and that he again explained the sentencing range. Brush testified that he did not make any promises to Bradley to induce him to enter the plea.

         {¶ 13} Following the hearing, the trial court entered a decision overruling the motion to withdraw the plea. A sentencing hearing was conducted. The trial court sentenced Bradley to a prison term of 36 months on the conviction for bribery. The trial court also imposed an 11-year sentence for the aggravated vehicular homicide and a four-year sentence for the aggravated vehicular ...