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State v. Weathersbee

Court of Appeals of Ohio, Eleventh District, Trumbull

December 23, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BERNARD WEATHERSBEE, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2016 CR 00251.

          Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, (For Plaintiff-Appellee).

          Bernard Weathersbee, pro se, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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).

         {¶4} 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.

         {¶5} 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 to trial.

         {¶6} 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."

         {¶7} 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.

         {¶8} 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.

         {¶9} 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 inquired:

The Court: Do you understand the seriousness of the offenses and what the Court could sentence you to?
The Defendant: Yes, sir.

         {¶10} 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 County, Ohio.
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.

         {¶11} 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 force ...

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