Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2016 CR 00251.
Watkins, Trumbull County Prosecutor, and Ashleigh Musick,
Assistant Prosecutor, (For Plaintiff-Appellee).
Bernard Weathersbee, pro se, (Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Bernard Weathersbee, appeals a judgment in the
Trumbull County Court of Common Pleas sentencing him to a
term of 29 years in prison for various felony acts of sexual
criminal conduct. Weathersbee entered a voluntary plea of
guilty on October 22, 2018, and was sentenced the same day.
We affirm the trial court's judgment.
Weathersbee lived with his girlfriend, Amanda Fitzgerald
("Amanda"), and her minor daughter, H.F., in
Mineral Springs, Ohio. On March 25, 2016, Amanda and H.F.
appeared at the Niles Police Department to report that
Weathersbee had been sexually assaulting H.F. for
approximately ten years. The sexual conduct alleged included
both sexual acts and solicitation of sexually explicit
photographs, videos, and messages on Weathersbee's cell
phone. Weathersbee was subsequently arrested.
On May 18, 2016, Weathersbee was indicted on twenty-nine
counts, including seventeen counts of Rape (F-1), seven
counts of Illegal Use of a Minor in Nudity-Oriented Material
or Performance (F-2), one count of Unlawful Sexual Conduct
with a Minor (F-3), three counts of Illegal Use of a Minor in
Nudity-Oriented Material or Performance (F-4), and one count
of Tampering with Evidence (F-3).
On May 19, 2016, Weathersbee entered a plea of not guilty at
his arraignment on the indictment, and bond was set at $250,
000.00. Counsel for Weathersbee requested funds to retain an
expert for trial, which the trial court granted. Thereafter,
on December 29, 2017, counsel filed a motion in limine
challenging the process used to extract photographs, videos,
messages, and other content from Weathersbee's cell
phones. The motion was denied on June 7, 2018, after a
hearing, and the matter was set for trial.
Throughout the proceedings, Weathersbee sent several letters
to the trial court, which were filed to the record by the
clerk of courts, expressing his dissatisfaction with his
appointed counsel. His original appointed counsel resigned
from representation due to a personal conflict. Weathersbee
refused multiple plea offers from the state and, according to
the prosecution and defense counsel, was insistent on going
On the morning of trial, October 22, 2018, Weathersbee
appeared with counsel and requested to voice his concerns on
the record. He was permitted to address the court, where he
expressed his continuing frustration with his appointed
defense counsel. In addition to refusing to utilize the
expert witness that was hired, Weathersbee asserted that his
defense counsel (1) had predetermined that he was guilty and
(2) was incapable of proceeding to trial. In support of the
latter, Weathersbee disclosed that his counsel had stated
that he "does not know how to represent him" and
that he would only be able to "hold his hand through a
three day slaughter."
Defense counsel rebutted Weathersbee's claims on the
record by asserting that using an expert witness is an
exercise of legal strategy, that neither the expert that had
been retained nor any other expert would be helpful to
Weathersbee's case, and that he was not optimistic for
the results of proceeding to trial in light of the
overwhelming evidence Weathersbee faced. Defense counsel
acknowledged that he had previously made comments similar to
those Weathersbee claimed regarding a "slaughter,"
but he stated they were with regard to his outlook on trying
the matter to a jury. Defense counsel was clear in his
rebuttal that he was ready, willing, and capable of
proceeding to trial.
Following a recess, Weathersbee entered a plea of guilty to
seventeen counts of Rape (F-1), six counts of Illegal Use of
a Minor in Nudity-Oriented Material or Performance (F-2), and
one count of Unlawful Sexual Conduct with a Minor (F-3).
Pursuant to the terms of the plea agreement, Weathersbee
agreed to a jointly recommended prison sentence of 29 years
total. The trial court engaged in a plea colloquy with
Weathersbee before accepting the oral and written plea of
guilty, which began as follows:
The Court: Are you currently under any drugs or alcohol to
cause your judgment to be impaired?
The Defendant: No, sir.
The Court: Can you read and write the English language?
The Defendant: Yes, sir.
The trial court then stated the maximum penalties for each
charge, informed Weathersbee that a prison term was
mandatory, and informed him of his sex offender status and
post-release control sanctions. Following that, the court
The Court: Do you understand the seriousness of the offenses
and what the Court could sentence you to?
The Defendant: Yes, sir.
The trial court also informed Weathersbee of the following
regarding the elements of the charges he faced:
The Court: If you wanted to in this case you could have a
jury trial. That means the Court would impanel 12 people. In
order to find you guilty they would have to find to their
unanimous satisfaction, that means all 12 would have to agree
that the State of Ohio proved its case against you by a
burden of proof called beyond a reasonable doubt.
In this particular matter, they would have to prove with
respect to Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 13, 14, 16,
17, 21, 22 and 23 that you did engage in sexual conduct with
another when you purposely compelled the other person to
submit by force or threat of force in Trumbull County, Ohio.
Regarding Counts 10, 12, 15, 18, 19 and 20 the State would
have to prove that you did photograph any minor who is not
your child or ward in a state of nudity or create, direct,
produce or transfer any material or performance that shows
the minor in states of nudity in Trumbull County, Ohio.
Regarding Count 24 the State would have to prove that you,
who are 18 years of age or older, did engage in sexual
conduct with another, not your spouse, when you knew the
other person was 13 years of age or older but less than 16
years of age, or you were reckless in that regard, and the
offender is 10 or more years older than - or you were 10
years more older [sic] than the other person in Trumbull
Do you understand what your rights to a jury trial would be
and what the State would have to prove?
The Defendant: Yes.
The Court: Do you understand by entering a guilty plea here
today you would be giving up those rights?
The Defendant: Yes, sir.
The trial court then continued with the colloquy, discussing
Weathersbee's waiver of rights and his plea as follows:
The Court: Also at that jury trial you have the right to
cross examine or confront witnesses and that means you or
your attorney could ask questions of any witnesses called
upon to testify against you. You also have the right to
compulsory process and that means you or your attorney could
subpoena witnesses to testify on your own behalf. You also
have a Fifth amendment right and that means the State cannot