IN THE SUPREME COURT OF OAIO

Donnie Reed,

Appellee.

Case Number:

On Appeal from theMahoning County Courtof Appeals, SeventhAppellate District

Court of AppealsNo. 09-MA-53

MOTION FOR DELAYED APPEAL FORAPPELLANT DONNIE REED

APPELLANT IN PRO PERSONA

Domiie ReedInst. No. #554-036Belnlont Corr. Inst.Post Office Box 540St. Clairsville, Ohio 43950

COUNSEL FOR APPELLEE, STAI'E OF OHIO

Attorney Paul J. Gains, Mahoning County ProsecutorAttorney Ralpb M. Rivera, &Attorney Jatnes MacDonaldAssistant Prosecuting Attorneys21 West Boardman Street, 61h FloorYoungstown, Ohio. 44503

MOTION FOR DELAYED APPEAL

Now comes the Appellant, Donnie Reed, in pro persona, and pursuant to Supreme Court Rule

II, Section 2(A)(4), hereby requests leave to file a delayed appeal of the decision and judgment of the

Mahoning County Court Of Appeals, Eighth Appellate District, entered in Court Of Appeals case No.

93034 on January 28" of 2010.

In support of this Motion, the Appellant provides the following reasons which are also attested

to in the accompanying affidavit required by Rule II, 2(A)(4)(a) and wbiclt is incorporated herein by

reference:

1. The Appellant did not receive the decision and opinion of the Appellate Court from his Attorney

until (7) seven-days after the opinion was released.

2. That Appellant attempted to file an timely Appeal of this cause to this Court on April 22, of

2010 by following ODRC policies and giving the fully completed Notice of Appeal, and

Memorandum in Support of Jurisdiction to the House Sergeant for the completing of a cash slip

and for final mailing, a copy of the dated cash slip is attached as, "exhibit A", and fully

incorporated herein by reference.

3. '['he completed Notice of Appeal, and Memorandum in Support of Jurisdiction - which was

now out of my control after giving it to the House Sergeant - did not leave the State Institution

until April 261' of 2010 as per the post mark on the envelop stamped, received by the Clerk of

Court for 1'he Ohio State Supreme Court on April 29th of 2010. A copy of which is attached as,

"exhibit B" and fully incorporated herein by reference.

4. The Appellant filed a pro se Notice of Appeal and Memoranduin in Support of Jurisdiction,

which mailed by the Appellant with what was believed to be adequate time to comply with the

forty-five (45) day requirement contained within Rnle 11, Section 2(A)(1)(a), but the flling

2

failed to arrive at the Ohio Supreme Court for reasons not under the Appellants control.

5. The Appellant inadvertently calculated the mailing of the form with wliat he thought was

adequate time to negotiate the prison nrail system. Appellant intended no disrespect in not

providing the original transmittal with in enough tiine to allow for any mis calculation on his

part.

6. The Appellant, as a pro se litigani, and did his best to comply witli the requirements with the

limited resources that he has at his disposal as an indigent ininate. 'fhe law Library at Belmont

Correctional has limited access, ie. "odd inmate numbers can only aceess on odd numbered day

and vice versa with even numbered inmates and days." "I'his caused a hindrance in the Appellant

preparing his initial filing as well as the preparing of this Motion For Leave For Delayed Appeal

7. The Appellant has sought the assistance of an imnate law clerk to assist the inmate with the

filing of these documents so that his rights can be preserved.

8. Appellant believes he has suffered a critical 'nljustice in the form of a wrongful conviction and

improper sentencing and is desirous of availing hiniself to every potential remedy for justice.

9. The Appellant apologizes for his previous mistake by not timely submitting his Appeal, and

afGrmatively asserts that he will adhere to all applicable rules if the relief sought herein is

granted.

WHEREFORE, in the interests of fairness and justice, the Appellant respectfully requests that

the relief sought herein is granted. Respectfiilly,

May 12r" of 2010Donnie Reed, in

PPELLANT°o persona

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Certificate of Service

I certify that a copy of this Motion for Delayed Appeal and the accompanying Affidavit of

Verity was sent by ordinary U.S. mail to:

Attorney Paul J. Gains, Mahoning County ProsecutorAttorney Ralph M. Rivera, &Attorney James MacDonaldAssistant Prosecuting Attorneys21 West Boardnian Street, 6"' FloorYoungstown, Ohio. 44503

this 12"' day of May, 2010_,

^

Donn-i-d Reed,'in prb pAPPELLANT

4

z

c 4

^ SupremeCourt

Front Streetimbus, Ohio

AFFIDAVIT OF VERITY

STATE OF OHIO )) ss.

COUNTY OF BELMONT )

Now conies the AfFiant, Domiie Reed, and after being duly sworn deposes and states the

following:

1. That all averments and statements contained in the foregoing tYfotion For Delayed Appeal are

true and correct.

2. That this Affidavit of Verity is submitted in compliance with Supreme Court Rule II, Section

2(A)(4)(a).

3. The Appellant did not receive the decision and opinion of the Appellate Court from his Attorney

until (7) seven-days after the opinion was released.

4. That Appellant attempted to file an timely Appeal of this cause to this Cottrt on April 22, of

2010 by following ODRC policies and giving the fiilly completed Notice of Appeal, and

Memorandum in Support of Jurisdiction to the House Sergeant for the completing of a cash slip

and for final mailing, a copy of the dated cash slip is attached as, "exhibit A", and fully

incorporated herein by reference.

5. The completed Notice of Appeal, and Memorandtun in Sttpport of Jurisdiction -- which was

now out of my control after giving it to the House Setgeant - did not leave the State Institution

until April 26t1' of 2010 as per the post mark on the envelop stamped, received by the Clerk of

Court for The Ohio State Supreine Court on April 291h of 2010. A copy of wliich is attached as,

"exhibit B" and fully incorporated herein by reference.

6. The Appellant filed a pro se Notice of Appeal and Memorandum in Support of Jurisdiction,

which mailed by the Appellant with what was believed to be adequate time to comply with the

forty-five (45) day requirement contained within Rule II, Section 2(A)(1)(a), but the filing

failed to arrive at the Ohio Supreme Court for reasons not under the Appellants control.

7. The Appellant inadvertently calculated the mailing of the form with what he thouglit was

adequate time to negotiate the prison mail system. Appellant intended no disrespect in not

providing the original transmittat with in enough time to allow for any mis calculation on his

part.

8. The Appellant, as a pro se litigant, and did his best to comply with the requirements with the

limited resources that he has at his disposal as an indigent iimiate. The law Library at Belmont

Con•ectional has limited access, ie. "odd inmate numbers can only access on odd numbered day

and vice versa with even numbered inmates and days." This caused a hindrance in the Appellant

preparing his initial filing as well as the preparing of this Motion For Leave For Delayed Appeal

9. The Appellant has sought the assistance of an inmate law clerk to assist the imnate with the

filing of these documents so that his rights can be preserved.

10. Appellant believes he has suffered a critical injustice in the form of a wrongful conviction and

itnproper sentencing and is desirous of availing himself to every potential remedy for justice.

11. The Appellant apologizes for his previous mistake by not timely submitting his Appeal, and

affirmatively asserts that he will adhere to all applicable rules if the relief sought herein is

granted.

AFFIANT FURTHER SAYETII NAUGHT.

Subscribed and sworn to before me this 10`h day of May, 2010, by Donnie Reed.

I,k"tYirvrl i.. Doty

i 3.lm9 iG°?f;'„ L)'t(g1io

Mt' i,;{ll!°nllu,im FX(7Ii'i:s(i - I4 ^a 6 Y'

NOTARY I'UBLIC

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATEOF OHIO,

PLAINTIFF-APPELLEE,

-VS-

DONNIE-RAY REED,

DEFENDANT-APPELLANT.

CASE NO. 09 MA 53

OPINION

CHARACTER OF PROCEEDINGS:

JUDGMENT:

APPEARANCES:For Plaintiff-Appellee:

For Defendant-Appellant:

JUDGES:Hon. Mary DeGenaroHon. Joseph J. VukovichHon. Cheryl L. Waite

Criminal Appeal from Common PleasCourt, Case No. 08CR531:

Affirmed.

Attorney Paul GainsMahoning County ProsecutorAttorney Ralph M. RiveraAttorney James MacDonaldAssistant Prosecuting Attorney21 W. Boardman Street, 6th FloorYoungstown, OH 44503

Attorney John D. FalgianiP.O. Box 8533Warren, OH 44484

Dated:

r-, !i- :aD',rC,. CL.EMK

(?a2ch_ 71, 2010

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DeGenaro, J.

{11} This timely appeal comes for consideration upon the record in the trial court,

the parties' briefs, and their oral arguments before this court. Appellant.Donnie Ray Reed

appeals the October 1, 2008 decision of the Mahoning County Court of Common Pleas

that imposed a jointly recommended six year prison sentence subsequent to accepting

Reed's guilty plea on one count ofRecklessNomicide, a third degree felony violation of

R.C. 2903:041, with a firearm specification under R.C. 2941.145(A).

{T`} Reed argues that his plea was not knowing, voluntary and inteliigent

because the trial court failed to define the elements of reckless homicide, and because

the trial court imposed more than a minimum sentence: Reed also argues that counsel

caused Reed's guilty plea to be less than voluntary, knowing and intelligent,because

counsel failed to inform Reed of the elements of reckless homicide or of the minimum

possible sentence for the offense. Reed also argues that counsel was ineffective

because counsel stayed silent during the sentencing hearing and did not present any

argument for a shorter sentence. Upon review, Reed's assignments of error are

meritless.

(13) The trial court was not required to define each element of reckless

homicide, and the trial court's subsequent sentencing decision did not affect the knowing,

voluntary, or intelligent nature of Reed's plea. Moreover, because the trial court imposed

Reed's jointly recommended sentence, his argument regarding non-minimum sentencing

is waived. Finally, Reed has failed to demonstrate that counsel caused his plea to be less

than voluntary knowing and intelligent, or that counsel was ineffective during Reed's

sentencing hearing. Accordingly, the trial court's decision is affirmed.

Facts and Procedural Historv

{1[4} On April 4, 2008, Reed shot Randy Davis in the head, resulting in Davis's

death. There was conflicting information as to whether the shooting had been purposeful

or accidental. On June 19, 2008, a grand jury indicted Reed on one count of murder, in

violation of R:C. 2903.02(A)(D), a first degree felony, along with a firearm specification

pursuant to R.C. 2941.145(A). Reed entered a plea of not guilty and was appointed

counsel.

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{¶5} Reed entered into a Crim.R. 11 plea agreement with the State on

September 25, 2008. Pursuant to the plea agreement, the State moved the trial court to

dismiss the murder count, amend theindictment to include onecount of reckless

homicide, and retain the firearm specification. Reed agreed to change his plea to guilty.

Reed and the State agreed to jointly recommend a three-year sentence for the reckless

homicide charge, consecutive to the three year firearm specification, for a total of six

{16} The trial court held a pleahearing onSeptember 25, 2008, and accepted

Reed's plea subsequent to conducting a Crim.R. 11colloquy. Reed waived pre-sentence

investigation, the parties jointly recommended thesentence; and the trial court accepted

their recommendation. Upon realizing that the victim's representative had not been

notified of the sentencing hearing, the trial court vacated the September 25 sentencing

hearing and conductedthe hearing anew on September30, 2008. Afterhearing the

victim impact statement, Reed's personal statement, and counsel's argument that the trial

court should not impose any higher a sentence than already recommended, the trial court

again accepted the jointly recommended sentence. The trial court memorialized these

proceedings in its October 1, 2008 judgment entry. This Court accepted Reed's delayed

appeal.

Substantial Compliance with Crim.R. 11(C)(2)(a) - Elements of Offense

{17} In his first of two assignments of error, Reed asserts:

{18} "Under the totality of the circumstances, appellant's plea was not given

knowingly and intelligently where the trial court failed to fully inform appellant of the

elements of the amended charge of reckless homicide at the sentencing hearing and in

imposed [sic] a total sentence in excess of the statutory minimum for the offense."

{¶9} Reed contends that the trial court erred in accepting his guilty plea because

it was not knowing, voluntary and intelligent. Reed argues that a knowing, voluntary and

intelligent plea was prevented by the trial court's failure to provide definitions of all

elements of the offense, as well as the trial court's departure from the statutory minimum

sentence for the offense.

{710} In a criminal case, a plea must be made knowingly, voluntarily and

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intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at

¶7; State v. Engle, 74 Ohio St.3d 525, 527; 1996-Ohio-179, 660 N.E.2d 450. If a plea is

not knowing, voluntary andintelligent, it has been obtained in violation of due process and

is void: State v. Martinez, 7th Dist, No, 03MA196, 2004-Ohio-6806, at ¶11, citing Boykin

v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed,2d 274.

{111} In order for a trial court to ensure that a defendant's pleais knowing,

voluntary and intelligent, it must engage the defendant in a colloquy pursuant to Crim.R.

11(C),,State v: Clark, 119 Ohio St:3d 239, 2008-Ohio-3748, 893 N.E;2d 462, at ¶25-26.

During the colloquy, the trial court is to provide specific information to the defendant,

including constitutionalrightsbeing waived (such astrial byjury and confrontation of

witnesses) and non-constitutional information (such as nature of the charges and the

maximumpenalty involved) before the judge may accept the plea. Crim.R. 11 (C)(2);

State v. Francis, 104 Ohio St.3d 494, 2004-Ohio-6894, 820 N . E.2d 355.

{¶12} A trial court must strictly comply with Crim.R. 11 regardingconstitutional

rights, and must substantially comply regarding non-constitutional rights. State v. Nero

(1990), 56 Ohio St.3d 106, 108, 564 N.E,2d 474. "Substantial compliance [with Crim.R.

111 means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving." Id. See, also,

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶31.

{113} Reed argues that his plea was not knowing, voluntary and intelligent and

that he did not have an understanding of the charge against him as required by Crim.R.

11(C)(2)(a) because the trial court did not explain the elements of reckless homicide.

However, Crim.R. 11(C)(2)(a) does not require a trial court to provide a detailed

explanation of the elements of the charges against a defendant. State v. Fitzpatrick, 102

Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶57. A trial court generally does not

need to explain the elements of any charge, where the defendant or counsel indicates on

the record that the nature of the offense has been explained to the defendant. Id, at ¶57-

59.

{¶14} The written plea agreement that Reed signed stated that "counsel has

advised me and I fully understand the nature of the charge(s) against me and the i

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elements contained therein:" Additionally, during#he trial court's colloquy with Reed, the

following exchange took place:

{¶15} "The Court: Do you understand the charge of reckless homicide and all the

elements contained within it and the firearm specification and all the elements contained

within it?

{¶16} "The Defendant: Yes, Your Honor."

{¶17) * *

{¶18} "The Court: I have gone through this written plea of guiltyform with you. Did

you go through this form with your lawyer before you signed it?

{¶19} "The Defendant: Yes, Your Honor.

{¶20} "The Court. Do youfeel that you understand everything in this form and in

these proceedings?"

{121} "The Defendant: Yes, YourNonor.

{122} Given Reed's statement that he received an explanation of the elements of

the charged offense, and his statement that heunderstood the nature of the charges

against him, the totality of the circumstances indicates that Reed subjectively understood

the implications of his plea and the rights he was waiving. Although Reed now argues on

appeal that he in fact did not understand the elements of the reckless homicide charge,

there is no information in the record to support his argument. The trial court therefore did

not err in accepting Reed's guilty plea, as it was knowing, voluntary and intelligent.

{¶23} As an additional argument, Reed asserts that his plea was not knowing,

voluntary and intelligent because the trial court erroneously departed from the statutory

minimum sentence for Reed's offense.

{124} A trial court's selection of a particular sentence within the statutory range

does not have an effect on the knowing, voluntary and intelligent nature of a guilty plea,

as a sentencing decision is made subsequent to the entry of a plea. See State v.

Johnson (1988), 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 ("Crim.R. 11 applies only

to the entry and acceptance of the plea. It has no relevance to the exercise of the trial

court's sentencing discretion at that stage * * *."). At the pleading stage, a defendant

must knowthe possible ramifications of his plea, not the future sentencing decision of the

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trial court. Reed was informed that the trial court had the discretion to select any

sentence within the statutory range for Reed's offense, and was further informed of the

statutory range applicable for his offense. Thus the imposition of a non-minimum

sentence didnot undermine the knowing, voluntary and intelligent nature of Reed's plea.

{¶25} Moreover, the trial court's sentence followed the sentencing

recommendation jointly made by the State and Reed. Pursuant to R.C. 2953.08, "[a]

sentence imposed upon a defendant is not subject to review under this section if the

-sentence is authorized by law, has been recommended jointly by thedefendant and the

prosecution in the case, and is imposed by a sentencing judge." R.C. 2953:08(D)(1);

State v. Porterfield, 106 Ohio St.3d 5,2005-Ohio-3095, 829 N:E.2d 690, at ¶25. "A

sentence is 'authorized by law' and is not appealable within the meaning of R.C.

2953.08(D)(1) only if it comports with all mandatory sentencing provisions." State v.

Underwood, --- Ohio St.3d ---, 2010-Ohio-1, --- N.E.2d ---, at paragraph two of the

syllabus. An appellant continues to be barred by R.C. 2953.08 from challenging the

court's discretion in selecting a sentence pursuant to statutory provisions such as R.C.

2929.11 and R.C. 2929.12. Id. at ¶22.

{¶26} Here, the three year sentence for reckless homicide was within#he statutory

range of one to five years, and the three year sentence for the firearm specification

complied with the statutory mandate of three years. R.C. 2929.14(A)(3); R.C.

2929.14(D)(1)(a)(ii). There is no indication that Reed's sentence contravened any of the

applicable mandatory sentencing provisions. The sentence was jointly recommended by

Reed and the State, and the recommended sentence was imposed by the trial court.

Therefore Reed's sentence is not subject to review on appeal. Given the foregoing,

Reed's first assignment of error is meritless.

Ineffective Assistance of Counsel

{¶27} In his second assignment of error, Reed asserts:

{128} "The judgment entry and sentence of conviction should be vacated and

overturned for the reason that defendant had ineffective assistance of counsel and was

denied his Constitutional rights under the Sixth Amendment and the Ohio Constitution."

{129} Reed argues that he was denied the effective assistance of counsel

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because trial counsel did not inform Reed of the elements of reckless homicide, or of the

statutory sentencing range for the offense. Reed further argues that counsel was

ineffective for failing to advocate more strenuously at Reed's sentencing hearing.

{130} To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy the two-pronged test of Strickland v. Washington (1984), 466U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674. First, the appellant must establish that counsel's

performance fell below an objective standard of reasonable representation. id. Second,

the appellant must demonstrate that he was prejudice,d by counsel'sperformance. Id. at

690. To establish prejudice, an appellant must show there is a reasonableprobability

that, but for counsel's errors, the result of the proceeding would have been different. Id. at

694.

{131} The appellant bears theburden of proof in demonstrating ineffective

assistance of counseC Statev.Calhoun, 86 Ohio St.3d279, 289; 1999-Ohio-102, 714

N.E.2d 905; State v. Smith (1985), 17 Ohio St.3d 98, 17 OBR 219, 477 N.E.2d 1128,

When evaluating an ineffective assistance of counsel claim, "(j]udicial scrutiny of

counsel's performance must be highly deferential." Strickland at 689. "Because of the

difficulties inherent in making the evaluation, a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance."

State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. If an appellant cannot

show how counsel's errors undermined the reliability of the court's decision, there is no

basis for finding that appellant's right to counsel had been violated. State v. Hancock,

108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, at ¶109; Strickland, at 693.

{132} In the first part of his argument, Reed claims that his attorney failed to

inform him about the elements of the charge against him as well as the statutory range for

the charge. Reed's argument is undermined by his statements at his plea hearing, as

well as his written guilty plea, which indicate that he was aware of the elements of the

reckless homicide charge, and that he was aware that the statutory sentencing range for

the charge was one to five years. Thus, Reed has not demonstrated that his plea was

less than voluntary, knowing and intelligent. Counsel's performance was therefore not

deficient with respect to Reed's submission of a guilty plea.

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{¶33} In the second part of his argument, Reed claims that his attorney was

ineffective for standing silent at Reed's sentencing hearing and failing#o raise the issue of

mens rea at sentencing, given that Reed maintained that the shooting was accidental.

However, because the trial court accepted the jointly proposed sentence, there was little

that counsel could validly raise at Reed's sentencing hearing. Counsel's failure to argue

against a sentence that he himself recommended would be well within the realm of

reasonable representation. Additionally, Reed's claim that counsel stood silently during

the sentencinghearings is incorrect. During Reed's second sentencing hearing, counsel

spoke at length about the accidental nature of Reed's offense, and asked that the trial

court maintain its acceptance of the jointly recommended sentence, even in light of the

compelling victim impact statement given earlier in the hearing.

{134} Moreover, given that the trial court imposed the sentence that Reed joined

in requesting, there was not a reasonable probability that, but for his counsel's failure to

object, the outcome of Reed's sentencing hearing would have been different. Thus, Reed

has not satisfied either prong of the Strickland test, and he was not denied the effective

assistance of counsel at the sentencing stage of his proceedings. Accordingly, Reed's

second assignment of error is meritless.

{135} In conclusion, Reed's guilty plea was voluntary, knowing and intelligent, and

counsel was not ineffective at Reed's sentencing hearing. Accordingly, the judgment of

the trial court is affirmed.

Vukovich, P.J. , concu2h.i

Waite, J. , concu2h.i

APPROVED: