IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Plaintiff-Appellee

V.

ALAN FRANCIS

Defendant-Appellant

On Appeal fromTrumbull County Court of Appeals11th Appellate District

C.A. CASE NO. 2009-T-0015

MEMORANDUMIN SUPPORT OF JURISDICTION

Alan Francis #562-142Mansfield Correctional InstitutionPost Office Box 788Mansfield, Ohio 44901

APPELLANT PRO SE

LuWayne AnnosTrumbull County Assistant Prosecutor160 High StreetWarren, Ohio 44481

APPELLEE: STATE OF OHIO

^ EID

JAi^ ^^ ^011 ;

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

I. STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . .. . . . . . I

II. SUBSTANTIAL CONSTITUTIONAL QUESTIONS . . . . . . . . . . . . . . . . . . 3

1) Due Process Violations . . . . . . . . . . . . . . . . . . . . . . . 3

2) Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . 4

III. AN ISSUE OF PUBLIC AND GREAT GENERAL INTEREST . . . . . . . . . . . . . 5

IV. LEGAL ARGUMENT . . . . . . . . . . . .. . . . . . . .. . . . . . . . . . 7

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1

I. STATEMENT OF THE CASE AND FACTS

Following his no contest plea in Trumbull County Common Pleas case no.

2009-T-0015, captioned State of Ohio v. Alan Francis, Appellant timely filed

an appealto the Eleventh District Court of Appeals. His plea was entered pur-

suant to a plea agreement to the original nine-count indictment which included

aggravated murder charges with death penalty specifications in return for

removal of the death penalty specifications.

Appellant's appeal was based on two main constitutional issues: 1)

Due Process violations which were premised upon, but not limited to: the trial

court's failure to suppress Appellant's statements to the police, violation of

Appellant's Miranda rights by the investigating police officers, failure by

the trial court to recognize Appellant's non-competency to stand trial and/or

waive his Miranda rights, and trial court's Nunc Pro Tunc entry which incor-

rectly and substantially altered exculpatory evidence on the record; and 2)

Ineffective Assistance of g31.,of:hi.s several attQrneys. . Trial counsels'

ineffectiveness is based on, but not limited to, their failure to thoroghly

investigate discovery materials, to properly advise Appellant regarding the

substance of his appeal, to aggressively support the suppression of Appellant's

statements to police, and to allow Appellant to accept a grossly inappropriate

plea deal.

On June 11, 2010, the Eleventh District Court of appeals denied Appel-

lant's appeal and affirmed his conviction. On September 10, 2010, Appellant

filed an Application to Reopen his appeal based on seven proposed assignments

of error alleging seven instances of ineffective assistance of appellate coun-

sel. It is from this Judgment Entry of the Eleventh District Appellate Court

filed on Nov. 23, 2010 that Appellant now brings this appeal to this honorable

2

court. Thus, Appellant is seeking jurisdiction by the Ohio Supreme Court to

correct the mistakes of law and incorrect applications of the precedents

established through the decisions of the Ohio Supreme Court and the United

States Supreme Court which are binding upon the Eleventh District Appellate

court's decisions.

3

II. SUBSTANTIAL CONSTITUTIONAL QUESTIONS

This case at bar raises two substantial constitutional issues which

are the basis for the assurance that under the protection of the U.S. Consti-

tution and the Ohio Constitution every criminal defendant, including the Appel-

lant herein, will receive a fair trial. Those issues are: 1) Due Process as

guaranteed by the fifth and fourteenth amendments to the U.S. Constitution and

Article I, Section 10 of the Ohio Constitution; 2) Ineffective Assistance of

Counsel, predicated upon the sixth amendment to the U.S. Constitution and also

interpreted by the United States Supreme Court in the case of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (U.S.1984).

1) Due Process Violations

The violation of Appellant's due process rights began when he was ini-

tially interrogated by the police. Although Appellant had already been arres-

ted and although the investigating officers were well aware of Appellant's

history of mental problems which included bi-polar disorder, depression, anti-

social personality disorder, and poor impluse control, and although the police

knew of his recent five-day food and sleep deprivation, his non-compliance with

his psychiatric medications, and his recent, heavy use of crack cocaine, Oxy-

contin, Vicodin, marijuana, and alcohol, they disregarded all of these rele--

vant factors and proceeded with their investigatory interrogation in spite of

the fact that Appellant was able to invoke his right to an attorney. The trial

court compounded and ratified this due process violation by denying his motion

to suppress the contents of the interrogation.

Further due process violations occured in May or June of 2007 when

Appellant's pro se motion to dismiss his attornies was denied by the court.

Furthermore, the State deprived Appellant of his right to discovery until

4

thirty-three months after his arrest and formal charges had been filed. This

was done in spite of the fact that Appellant was incarcerated during that en-

tire period of time. The total record to this case is filled with similar

instances of due process violations.

2) Ineffective Assistance of Counsel

The entire record of this case at bar reveals a total lack of reason-

able assistance of counsel by the various attornies appointed to represent

Appellant during the trial phase of his case. They did not thoroughly investi-

gate the background and mental condition of their client nor the process and

content of the police interrogations. The very fact that the trial court had

to assign several different attornies to represent Appellant in itself shows

the lack of faith by the Appellant and the trial court itself in these appoin-

ted counsels.

After being denied by the Appellate Court in his direct appeal,

Appellant had to file a pro se App.R. 26(B) Application to reopen his appeal.

That 26(B) Application contained numerous bases to support his allegations of

due process violations and ineffective assistance of trial counsel which were

not raised, or argued ineffectually by his appointed appellate counsel.

By far the most serious constitutional ground for this court to accept

jurisdiction of this appeal combines both due process and ineffective assis-

tance of counsel issues. That is the failure to allow a three-judge panel to

carry out the mandates of Crim.R. 11(C)(3) which states in pertinent part:

If the indictment contains one or more specifications which arenot dismissed upon acceptance of "guilty" or no contest" pleato the charge . ., a court composed of three judges shall:(a) determine whether the offense was aggravated murder, or alesser offense . . ." (emphasis added)

This was not done in the case at bar.

5

III. AN ISSUE OF PUBLIC AND GREAT GENERAL INTEREST

The constitutional issues in this case are closely linked to, and most

likely have arisen from, the fact that this is a case of public and great

general interest. The crimes Appellant was charged with, and subsequently

pled to, are not only serious and horrific felonies, including aggravated

murder, but they were perperated upon an elderly man who had been a veteran in

the service of his country. As such the case was given extensive media cov-

erage in both the local TV and radio news reports and the local newspapers.

Understandably, the public was extremely interested in any and all

developments in the prosecution of the case.

The above-mentioned factors in themselves make it very difficult for

an accused to obtain a fair trial. In a case such as this, the perception of

the general public is that this person is not "presumed innocent" but is in

fact guilty. This pernicious perception can, and does, influence even the

investigating police officers, resulting in Miranda violations and even per-

jured testimony by police officers. This is understandable when there is an

inordinate amount of pressure on the police to insure that the accused is

brought to trial at all costs.

Sadly, even appointed defense counsel can be caught up in the pressure

brought to bear by the public outrage at the crime. This can, and does,

influence their handling of the client's case and tends to influence counsel

to bring pressure upon the client to resolve this unpleasant situation by

accepting any deal from the state. After all, in this case the state could

not get a more sympathetic victim and the defendant could not face a more

insurmountable burden then that brought to bear upon his counsel,the state,

6

and even the trial court itself. In this kind of case the temptation on all

the parties is to satisfy the public demand "for justice to be done" by

pressuring the defendant to accept a plea agreement, even if it is not in his

best interest or even if it has not been thoroughly reviewed and, if necessary,

amended by defense counsel. There is no evidence that this was done for this

defendant, Appellant herein.

By law the Ohio Supreme Court is the only court in Ohio which can

ensure that in cases such as this involving both "substantial constitutional

issues" and "issues of great general and public interest" a defendant is given

a fair trial and allowed the protections guaranteed by the Ohio and United

States constitutions. And only this Supreme Court can rectify the basic

unfairness in the courts below.

7

IV. LEGAL ARGUMENT

In the leading case regarding ineffective assistance of counsel, the

U.S. Supreme Court stated: " The sixth amendment right to counsel is the right

to effective assistance of counsel, and the benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so undermined the proper

function of the adversarial process that the trial cannot be relied on as

having produced a just result." Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 2063 (U.S. 1984). As shown in the preceding sections, from the

very moment when Appellant was arrested and charged, he was at a distinct risk

not faced by other defendants in that he was charged with several crimes of

an especially vicious nature which naturally garnered a great deal of pre-

trial publicity. That in turn caused an unusually strong incentive for the

police, the state, and the court to wrap up this case as quickly and expedi-

tiosly as possible, resulting in the violation of Appellant's constitutional

rights as mentioned above.

The fact that this case was one of "public or great general interest"

was higlighted by the trial court on the first page of its Judgment Entry

deny;:ing Appellant's 26(B) Application from which this appeal arises, a copy

of which is attached hereto. The court for some reason saw fit to note that:

". .. appellant beat, stabbed, and shot to death John Paul Crocker, an elder-

ly, disabled male in his home in Weathersfield Township." (J.E. filed Nov.

23, 2010, p. 1) (emphasis added) Thus, in the second paragraph of its judgment

the court shows the extent to which the horrific nature of the crimes sub

judicehas not only grabbed the attention of the general public, but has also

even had an effect on the court itself.

8

In Strickland the Supreme Court went on hold that; "A convicted defen-

dant's claim that counsel's assistance was so defective as to require a re-

versal of a conviction . . . requires that the defendant show, first that

counsel's performance was deficient and, second, that the deficient perfor-

manceprejudiced the defense so as to deprive the defendant of a fair trial."

Id. at 2064. If an appellate court were to take any one of the issues raised

in Appellant's direct appeal and/or in his pro se App.R. 26(B) Motion and if

that court were able to examine that issue without being biased in any manner

by the horrific nature of the crimes charged nor the sympathetic status of the

victim, that particular issue would meet the two-pronged Strickland standard

cited above. This simply was not done by the appellate court below.

To take just omissue assigned by Appellant as error, the most basic

and threshold issue raised for review is the competence of Appellant to both

have the mens rea to be found guilty of the charges and to freely, intelli-

gently, and voluntarily waive his fifth amendment right under Miranda against

self-incrimination. This one issue demonstrates the marriage of both "a

substantial constitutional question" and "an issue of public or great general

interest" pursuant to S.Ct. Prac.R. 3.1(B)(2). As such, this appeal is ripe

for review by this honorable court.

in its Judgment Entry filed November 23, 2010 from which this appeal

is taken, the Eleventh District Court of Appeals pointed out that in his 26(B)

Motion "Appellant asserts seven proposed assignments of error, alleging seven

instances of ineffective assistance of appellate counsel." (see J.E., p.3)

Five of those alleged "instances of ineffective assistance of appellate counsel"

have to do with the alleged waiver of Appellant's Miranda rights and his comp-

etency to do so. The appellate court's reasoning in overruling those five

instances of ineffective appellate counsel does not afford those instances

9

the proper attention they deserve precisely because they involve substantial

constitutional issues that have already received great general and public

interest. These issues at least deserved an evidentiary hearing by the appel-

late court as it is empowered to do by App.R. 26(B)(8). Because the appellate

court failed to grant Appellant's arguments this kind of proper consideration,

this court should grant Appellant jurisdiction so that as the highest court in

Ohio, Appellant's constitutional rights can be preserved and a fair trial

guaranteed for that is the fundamental function of this court in criminal cases.

In State v. Reed (1996), 74 Ohio St.3d 534, 660 N.E.2d 456, this court

stated: "We hold that the two-pronged analysis found in Strickland is the

appropriate level of review to determine whether appellant has raised a

"genuine issue" in an application for reopening an appeal under App.R. 26(B)

(5)." Id. at 458. As the Appellant pointed out in his direct appeal and in

his 26(B) Application, both prongs of the Strickland standard have been met in

his appeals. Yet, because the appellate court disagreed, the matter is now

ripe for further appellate review by this honorable court.

10

V. CONCLUSION

A careful and thorough examination of the record in this case at bar

does not present the picture of a criminal defendant being found guilty based

on the due process of law, nor does it reveal a defendant who entered into a

reasonable and fair plea agreement aided by reasonably effective counsel.

Rather, the record showsa broken-down legal process where a defendant's most

important constitutional rights were simply ignored. Further, the record

reveals that this defendant was represented by legal counsel which was not

even minimally effective in ensuring that defendant would receive a fair trial

but which merely aided the state and the trial court in disposing of his case

in the most expeditious manner to satisfy the public's revulsion to the crimes

charged at the expense of the defendant's rights.

The relevant arguments presented by Appellant are an attempt to

rectify the balance between justice for the victim and the constitutional

rights of the defendant. This is the only way that justice can be achieved in

any criminal case. And only if this court accepts jurisdiction of this matter

can justice be achieved in this case.

Respectfully submitted,

Alan Francis, Appellant Pro Se

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has sent a copy of the foregoing to

LuWayne_Annos at 160 S. High St., Warren, Ohio 44481 by regular U.S. mail on

this q day of January, 2014.

STATE OF OHIO ))SS.

IN THE COURT OF APPEALS

COUNTY OF TRUMBULL

STATE OF OHIO,

) ELEVENTH DISTRICT

FILCOU1iTOF

NOV 2 3

TRUMBULLCKAREN INFANTE

Plaintiff-Appellee,

- vs -

ALAN M. FRANCIS,

p®LS Defendant-Appellant.

JUDGMENT ENTRY

CASE NO. 2009-T-0015

2010

JNTY, OHLEN, CLERK On September 10, 2010, appellant, Alan M. Francis, filed an application

for reopening of his direct appeal pursuant to App.R. 26(B). Appellant is

attempting to reopen the appellate judgment rendered by this court in State v.

Francis, 11th Dist. No. 2009-T-0015, 2010-Ohio-2686 ("Francis P'), affirming his

conviction in the Trumbull County Court of Common Pleas. Appellant was

convicted, following his no contest plea, of two counts of aggravated murder with

firearm specifications; one count of aggravated burglary, a felony of the first

degree, with a firearm specification; four counts of aggravated robbery, felonies

of the first degree, with firearm specifications; one count of robbery, a felony of

the second degree; and one count of having a weapon while under disability, a

felony of the third degree. For the reasons that follow, we decline to reopen

appellant's appeal.

On or about November 21, 2005, appellant beat, stabbed, and shot to

death John Paul Crocker, an elderly, disabled male, in his home in Weathersfield

Township. Also, between November 17, 2005 and November 23, 2005,

appellant committed three separate armed robberies of businesses and

individuals in nearby Niles, Ohio.

App.R..26(B) permits a criminal defendant to apply for reopening of his

direct appeal on the basis of a claim of ineffective assistance of appellate

counsel. To succeed on an application to reopen, the applicant must

demonstrate the existence of a genuine issue as to whether he was deprived of

the effective assistance of appellate counsel. App.R. 26(B)(5). He must also

show that the performance of his appellate counsel was deficient, and that he

was prejudiced by that deficiency. App.R. 26(B)(9).

The Supreme Court of Ohio has held that in order to justify reopening of

an appeal, the appellant has the burden of establishing the existence of a

genuine issue as to whether he has a colorable claim of ineffective assistance of

counsel. State v. Hooks, 92 Ohio St.3d 83, 84, 2001-Ohio-150. The test set

forth in Strickland v. Washington (1984), 466 U.S. 668, is the proper standard to

apply to assess whether a defendant has raised a genuine issue as to the

ineffectiveness of appellate counsel under App.R. 26(B). State v. Davie, 96 Ohio

St.3d 133, 134, 2002-Ohio-3753. Appellant must prove that his appellate

counsel was "deficient for failing to raise the issues he now presents and that

there was a reasonable probability of success had [he] presented those claims

on appeal." Id. A heavy measure of deference to an attorney's judgment is

applied in assessing ineffective assistance of counsel, and there is a strong

presumption that the attorney's conduct falls within a wide range of reasonably

professional assistance. Id.

App.R. 26(B) provides in pertinent part:

"(2) An application for reopening shall contain all of the following:

"(c) One or more assignments of error or arguments in support of

assignments of error that previously were not considered on the merits in the

case by any appellate court ***;

"(d) A sworn statement of the basis for the claim that appellate counsel's

representation was deficient with respect to the assignments of error or

arguments raised pursuant to division (B)(2)(c) of this rule and the manner in

which the deficiency prejudicially affected the outcome of the appeal, which may

include citations to applicable authorities and references to the record

In his amended application, appellant asserts seven proposed

assignments of error, alleging seven instances of ineffective assistance of

appellate counsel. However, in his sworn statement filed in support of his

application, as required by App.R. 26(B)(2)(d), appellant fails to state the basis of

his claim that his appellate counsel was ineffective with respect to any of these

issues or the manner in which he was prejudiced by this representation. For this

reason alone, his application is not well taken. State v. Dial, 8th Dist. No. 83847,

2007-Ohio-2781, at ¶8.

However, even if appellant's application was properly supported, his

proposed assignments of error would still lack merit. First, he argues his

appellate counsel was ineffective because he failed to assert on appeal that his

statements to Chief Consiglio and Chief Simeone on November 23, 2005, the

3

day of his arrest, were involuntary and should have been suppressed because he

had ingested crack cocaine earlier that day. Appellant refers to this as

"diminished capacity;" however, the pertinent issue raised by his argument is

whether his Miranda waiver was voluntary. State v. Klapka, 11th Dist. No. 2003-

L-044, 2004-Ohio-2921, at ¶20. Contrary to appellant's argument, his appellate

counsel raised this precise issue in appellant's third assignment of error, which

alleged: "The trial court erred as a matter of law by overruling defendant-

appellant's motion to suppress the fruits of the November 23, 2005 interview

based on the fact that appellant lacked voluntary capacity in violation of the Fifth

Amendment." In fact, appellant concedes in his application that his appellate

counsel argued in his appellate brief that testimony was presented in the trial

court that appellant "was undoubtedly high on crack on November 23, 2005, just

prior to being arrested." We therefore do not agree with appellant's argument

that his appellate counsel failed to argue on appeal that his statements should

have been suppressed as involuntary.

We further note that in Francis l, we fully addressed this issue. Id. at ¶76-

84. This court held:

"*** [T]he testimony is undisputed that, during his interview with Chief

Consiglio and Chief Simeone, appellant did not exhibit any outward signs of

being under the influence of drugs. Moreover, when Chief Consiglio asked him if

he was under the influence of drugs or alcohol, appellant said he was not. ***

"Based on our review of the record, the trial court did not err in finding that

appellant voluntarily waived his Miranda rights prior to his interview on November

23, 2005." Id, at ¶83-84.

Thus, even if appellate counsel had failed to raise this issue on appeal,

appellant would not have been prejudiced because this court addressed it.

Second, appellant argues his appellate counsel was ineffective in not

arguing on appeal that he was induced to plead no contest because Chief

Consiglio and Chief Simeone committed perjury in testifying they Mirandized him

twice before interrogating him. However, the trial court record does not support

appellant's allegation of perjury. Nor does the record suggest how the chiefs'

testimony induced appellant to plead no contest. An application for reopening

seeks to reopen a criminal defendant's direct appeal. App.R. 26(B)(1). Thus, the

applicant's proposed assignments of error must be based on evidence in the trial

court record. See State v. Lawson, 8th Dist. No. 90589, 2009-Ohio-219, at ¶8.

Because the record does not support appellant's argument, his appellate counsel

had no duty to assert it in this court. We note that the April 28, 2009 letter that

appellant sent to his appellate counsel while his direct appeal was pending,

which is attached to his application, accusing the police chiefs of perjury, is not

part of the record and is therefore irrelevant to his application.

Third, appellant argues his appellate counsel was deficient in not arguing

on appeal that his statements to Chief Consiglio and Chief Simeone were

intended to be "off the record." However, the record below does not support this

argument. There is no evidence in the record that either of the police chiefs ever

5

told appellant that his statements would be "off the record" or that appellant

understood his statements to the chiefs were off the record. Moreover,

appellant's argument is contradicted by the fact that he signed a Miranda waiver

form prior to his interrogation and also by appellant's refusal to allow this

interrogation to be videotaped. Appellant's August 4, 2010 affidavit offered in

support of this issue was executed after this court issued its opinion in Francis I;

is not part of the trial court record; and so is irrelevant to his application. Since

the record does not support this argument, appellate counsel had no duty to raise

it on appeal.

Fourth, appellant argues that his appellate counsel was ineffective in not

obtaining a security camera video of his interaction with Chief Consiglio and

Chief Simeone at the Niles Police Department on November 23, 2005. He

argues that if such a video had been available to his trial counsel, the outcome of

his suppression hearing would have been different and he would not have pled

no contest. However, the record below does not demonstrate that any security

camera or video exists. In fact, when Chief Consiglio asked appellant if he could

videotape the interrogation, appellant refused to allow him to do so. Because the

record below does not demonstrate that any security camera video exists,

appellate counsel had no duty to search for it. We note that, even if such video

exists, because it is not in the record, appellant could not rely on it on direct

appeal or in support of his application for reopening.

Fifth, appellant argues that because the trial court suppressed the photo

array used to solve the three armed robberies with which he was charged, his

6

trial counsel was ineffective in advising him to plead no contest to them because,

he claims, there was no other evidence that he had committed them. He argues

that his trial counsel thus induced him to plead, and that his appellate counsel

was ineffective in not raising this alleged deficiency on appeal.

A claim that a guilty or no contest plea was induced by ineffective

assistance of counsel must be supported by evidence showing the defendant's

plea was involuntary. State v. Gotel, 11th Dist. No. 2006-L-015, 2007-Ohio-888,

at ¶11; see, also, State v. Kapper (1983), 5 Ohio St.3d 36. in Kapper, the

Supreme Court held:

"'*** [A]n allegation of a coerced *** plea involves actions over which the

State has no control. Therefore, the defendant must bear the initial burden of

submitting affidavits or other supporting materials to indicate that he is entitled to

relief. Defendant's own self-serving declarations or affdavits alleging a coerced

*** plea are insufficient to rebut the record on review which shows that his plea

was voluntary. '**"' (Emphasis added.) Id. at 38.

In the instant case, there is no evidence in the record below that

appellant's trial counsel induced him to plead no contest. Therefore, appellate

counsel could not assert this argument on direct appeal. Moreover, since this

court held in Francis I that the trial court did not err in finding that appellant

voluntarily waived his Miranda rights, Id. at ¶84, appellant is also barred by res

judicata from now arguing his plea was involuntary.

Further, the fact that the court suppressed the array does not mean the

state did not have other evidence to prove appellant's involvement in the

7

robberies. In fact, at the change-of-plea hearing, the prosecutor told the court

that if the case had gone to trial, the state would have proven appellant's guilt via

the eyewitness testimony of the victims appellant robbed. These victims testified

at the suppression hearings, and appellant was therefore aware they would have

testified against him at trial. It is well-settled that, even if an identification

procedure is unnecessarily suggestive, the identification need not be suppressed

if it is reliable under the totality of the circumstances. State v. Waddy (1992), 63

Ohio St.3d 424, 438, citing Neil v. Biggers (1972), 409 U.S. 188. In the trial

court's April 9, 2008 judgment entry, the trial court found that the eyewitness

testimony of Susan Davidson, one of appellant's robbery victims who identified

him in a showup, was reliable. The court also found that, while the photo array

could not be used, the state could present other identification evidence against

appellant. In addition, the prosecutor said the state would have presented at trial

the firearm that appellant stole from Mr. Crocker and then sold to a drug dealer.

The prosecutor said the drug dealer would have testified at trial that he accepted

the firearm from appellant in exchange for drugs. Thus, even though the court

suppressed the photo array, the state had additional evidence of appellant's guilt,

which presumably played a part in his decision to plead no contest.

Sixth, appellant argues that his appellate counsel was ineffective in not

filing the transcripts of the suppression hearings. However, contrary to

appellant's argument, the transcripts were filed as part of the record. In any

event, we note that appellant fails to identify the transcripts at issue or to prove

they were not filed.

8

Seventh, appellant alleges his trial counsel was ineffective because he

refused to represent him in filing an affidavit of bias in an effort to disqualify the

trial judge. He alleges his appellate counsel was deficient in not raising this issue

on appeal. However, in his amended application, appellant fails to support this

proposed assigned error with any argument or authority. Moreover, there is no

evidence in the record of bias on the part of the judge that would warrant such a

filing. Appellant has therefore failed to demonstrate his appellate counsel had a

duty to raise this issue on appeal.

In summary, appellant's motion is not well-taken because he failed to raise

a genuine issue as to whether he was deprived of the effective assistance of

appellate counsel, and he made no showing of the manner in which his counsel's

alleged deficient performance caused him to be prejudiced. His application to

reopen is therefore denied and the original appellate judgment is confirmed.

Any pending motions are hereby overruled as moot.

^ 1DGE CYNTHIA WESTCOTT RICE

MARY JANE TRAPP, P.J.,

COLLEEN MARY O'TOOLE, J.,

concur.

FILE DCfli7RTOFs4PPEAlS

Nov 2 3 2810

TR t3.C^ W.Ot!KAMMAMALLMC

9

ICite as State v. Francis, 2010-Qhio-2686.1

STATE OF OHIO,

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

OPINION

Plaintiff-Appellee,

- vs -

ALAN M. FRANCIS,

Defend ant-Appella nt.

CASE NO. 2009-T-0015

Criminal Appeal from the Court of Common Pleas, Case No. 2005 CR 867.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH44481-1092 (For Plaintiff-Appellee).

Brian L. Summers, 7327 Center Street, Mentor, OH 44060 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Alan M. Francis, appeals the judgment of the Trumbull County

Court of Common Pleas denying his motion to suppress evidence. Appellant was

convicted, following his no contest plea, of aggravated murder and multiple counts of

aggravated robbery. At issue is whether statements obtained by the police from

appellant violated his Miranda rights and whether such statements were obtained in

violation of his Sixth Amendment right to counsel. For the reasons that follow, we

affirm.

{¶2} On December 6, 2005, appellant was indicted for two counts of

aggravated murder, in violation of R.C. 2903.01, with death penalty specifications,

pursuant to R.C. 2929.04, and three-year firearm specifications, pursuant to R.C.

2941.145; one count of aggravated burglary, a felony of the first degree, in violation of

R.C. 2911.11, with a firearm specification; one count of aggravated robbery, a felony of

the first degree, in violation of R.C. 2911.01, with a firearm specification; one count of

robbery, a felony of the second degree, in violation of R.C. 2911.02; three counts of

aggravated robbery, felonies of the first degree, each with a firearm specification; and

one count of having a weapon while under disability, a felony of the third degree, in

violation of R.C. 2923.13.

{13} Thereafter, appellant pled not guilty and, on January 4, 2006, filed a

motion to suppress evidence. On December 5, 2006, appellant filed a supplemental

brief in support of his motion. Pursuant to these filings, appellant sought to exclude oral

statements made by him to police on November 23, 2005 and November 28, 2005. The

court held four hearings on the motion between March 22, 2007 and June 29, 2007.

{¶4} On April 10, 2008, the trial court denied the motion to suppress, finding

that, prior to making statements to police on November 23, 2005 and on November 28,

2005, appellant was advised of his Miranda rights and that he voluntarily waived them.

{¶5} On September 19, 2008, appell ^i:.;rlt filed a motion to reconsider the trial

court's ruling regarding his November 23, 2005 statement, challenging his capacity to

waive his Miranda rights based on his alleged ingestion of crack cocaine on the day of

his arrest. Following hearings conducted on December 16, 2008 and December 19,

2008, the trial court issued a second judgment entry, dated December 29, 2008,

2

denying appellant's motion to suppress. The court again found that on November 23,

2005, appellant voluntarily waived his Miranda rights.

{¶6} Following the trial court's ruling, appellant entered a plea bargain with the

state, pursuant to which he agreed to plead no contest to the 9-count indictment,

including the firearm specifications, in exchange for the dismissal of the death

specifications.

{¶7} Subsequently, the trial court found appellant guilty of the charges, and

sentenced him to 30 years to life for the aggravated murder convictions. This sentence

was to be served concurrently with appellant's sentence to 37 years in prison for three

unrelated robberies and the disability charge, and a separate three-year term of

imprisonment for the merged firearm specifications. The effective sentence imposed on

appellant was 40 years to life, and was imposed pursuant to the parties' plea bargain.

{¶8} While this case was pending on appeal, at appellant's request, this court

remanded the matter to the trial court to include in the record certain documents from

the Niles Municipal Court. This court also granted appellee's request to remand the

matter for the trial court to correct a typographical error in its December 29, 2008

judgment entry denying appellant's motion to suppress. The trial court corrected this

entry and re-filed the record.

{¶9} On November 23, 2005, at about 5:30 a.m., Krystal Melius was working

behind the counter at the Niles Fuel Mart when appellant entered the store. He went

behind the counter, put a gun to KrystalsFside',, and said, "This is a stick up. Give me

the money." Although she initially refused, Ms. Melius eventually opened the cash

3

drawer. Appellant reached in and grabbed cash. He said if she moved, he would

"shoot to kill," and he walked out the door.

{¶10} Later that same day, at around 3:00 p.m., while Ms. Melius was at the

cash register, she saw appellant in the line of customers. She quickly left the register

and told the manager that the man who had robbed her that morning was in line. The

manager called the police. Shortly thereafter,'appellant and a second male left the

store, entered a car, and left the area. Upon arrival of the police, Ms. Melius gave them

appellant's description. He was arrested at a residence in nearby Weathersfield

Township at about 3:30 p.m. Ms. Melius identified appellant from a photo array.

{¶11} Niles Police Chief Bruce Simeone, who was familiar with appellant from

prior dealings with him, was present at his arrest. Chief Simeone testified that, at that

time, appellant did not appear to be under the influence of drugs or alcohol. He testified

appellant appeared to understand what was happening, and was able to follow the

directions of police on the scene "perfectly."

{¶12} While appellant was being booked for the Fuel Mart robbery, Niles

Detective Ron Wright found an emergency identifcation card for John Paul Crocker on

appellant. Detective Wright was aware that Mr. Crocker had been murdered in

Weathersfield two days earlier, and advised Chief Simeone that this card was found on

appellant. Chief Simeone advised Weathersfield Police Chief Joseph Consiglio of this

discovery.

{¶13} At about 5:00 p.m., Chief Consiglio met Chief Simeone at the Niles Police

Department in order to interview appellant. They met with him in an interview room.

Chief Consiglio told appellant he was investigating a homicide and wanted to question

him about his possession of the victim's identification.

{¶14} At about 5:15 p.m., Chief Consiglio advised appellant of his Miranda

rights, using a form that outlines these rights. He read the Miranda rights form aloud to

appellant, while appellant read along from a copy Chief Consiglio provided to him.

{¶15} The waiver form consists of two sections. The first section, entitled "Your

Constitutional Rights," advises the defendant of each of the Miranda rights. Next to

each of these rights is a line for the defendant to initial after he indicates he understands

each right. The second section of the form, entitled "Waiver of Rights," is comprised of

a paragraph in which the defendant confirms that he has read and understands his

rights, and that he waives his rights and wishes to speak to police without counsel. At

the end of this section, there is a line for the defendant to initial. At the bottom of the

form there is a place for witnesses and the defendant to sign.

{¶16} Following the form, Chief Consiglio advised appellant of each of his rights,

and, after advising him of each right, appellant initialed each right, indicating he

understood it. While the chief was reading the waiver-of-rights section, appellant said, "I

would like to have an attorney." Chief Consiglio said, "Fine. This interview is

terminated. I can't ask you any more questions. We are done here." Appellant

continued reading the form, and, after about one rrminute, he started to initial the waiver

section. Chief Consigio said, "Wait a minute. You have invoked your rights to an

attorney. You don't have to initial your Wavier of Rights." Appellant then said, "Well, I'll

talk to you guys." Chief Consiglio said: "[Y]ou are initiating on your own accord, I have

not asked you to do this. I have made no promises or threats. Was [there] coercion

5

used here to get you to talk to me?" Appellant said, "No, I'll talk to you guys. I want to

talk to you guys."

{¶17} After appellant initialed the waiver section, Chief Consiglio read that

section to him. Appellant then signed the bottom of the form. Chief Simeone also

testified that Chief Consiglio read the waiver section to appellant.

{¶18} At the hearing held following appellant's motion for reconsideration, Chief

Consiglio testified that he orally re-Mirandized appellant. He identified the notes taken

by Captain Michael Naples, who was present during the interview, which confirm that at

1804, i.e., at 6:04 p.m., about 45 minutes after the interview began, Chief Consiglio re-

Mirandized appellant.

{¶19} Chief Consiglio asked appellant if he could record the interview. Appellant

said he would "rather not be video-taped or do an audio based on [sic] his friends have

told him how we would use that in a court of law." Chief Simeone testified, "He said if

we recorded it, he would not talk to us." Chief Consiglio questioned appellant for about

two hours regarding the Crocker homicide, during which appellant made incriminating

statements concerning his involvement. Mr. Crocker, an elderly, disabled Weathersfield

resident, had been beaten, stabbed, and shot to death in his own home with his own

gun. Thereafter, appellant stole his gun and identification.

{¶20} Both Chief Consiglio and Chief Simeone testified that appellant appeared

to understand all of their questions. They both testified that appellant was "coherent"

and did not appear to be under the influence of alcohol or narcotics. Chief Consiglio

testified that he asked appellant if he was under the influence of drugs or alcohol, and

he said he was not. Chief Simeone testified that he has arrested appellant in the past,

6

and had previously given him the Miranda warnings. Chief Consiglio testified that

nothing was promised to appellant in exchange for his statement, and that no coercion

was used against him. Both chiefs testified that appellant ate about five sandwiches

and drank a soda during the questioning. CNef Simeone said that appellant did not

appear to be tired and his speech was not slurred. Both chiefs testified that once

appellant signed the waiver, he never asked for an attorney and never refused to

answer any questions. Both chiefs testified that appellant's statement was made

voluntarily.

{¶21} On Wednesday, November 23, 2005, appellant was charged with the

Niles robberies and remained in jail during the Thanksgiving weekend. Then, on

Monday morning, November 28, 2005, appellant was arraigned at the Niles Municipal

court. The charges were read to him, bond was set, but appellant did not enter a plea.

The case was set for preliminary hearing, but that hearing did not proceed as appellant

was subsequently indicted.

{¶22} On November 28, 2005, shortly before his arraignment, Niles Police

Detectives James Robbins and Daniel Adkins interviewed appellant at the Niles Police

Department. Both detectives testified that appellant did not appear to be under the

influence of drugs or alcohol. Detective Robbins testified that, prior to meeting with the

detectives, appellant had breakfast and coffee.

{¶23} Detective Robbins told appellant they were investigating the robberies that

had occurred in Niles the previous week. He asked appellant if they could record the

interview and appellant had no objection to it. Consequently, Detective Robbins

recorded the interview. Detective Robbins advised appellant of his Miranda rights,

7

using the same form described above. Appellant initialed each right and the waiver

section, and also signed the form. Both detectives testified that, during the interview,

appellant never objected to answering any questions. Appellant denied any

involvement in the Niles robberies. After admitting some involvement in the homicide

case, appellant asked for a lawyer. At that point Detective Robbins terminated the

interview.

{¶24} Appellant appeals the trial court's judgment entries denying his motion to

suppress. For his first assignment of error, appellant asserts:

{¶25} "The trial court erred as a matter of law by overruling defendant-

appellant's motion to suppress the fruits of the unconstitutional interview of appellant on

November 28, 2005, in violation of the Sixth Amendment."

{¶26} Appellant argues the trial court erred in denying his motion to suppress his

statements made on November 28, 2005 to Detective Robbins and Detective Adkins, in

violation of his right to counsel, because he had already been charged with the Niles

robberies.

{¶27} Appellate review of a trial court's ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Lett, 11th Dist. No. 2008-T-01 16,

2009-Ohio-2796, at ¶13, citing State v. Burnside; 100 Ohio St.3d 152, 154, 2003 Ohio:

5372. "During a hearing on a motion to suppress evidence, the trial judge acts as the

trier of fact and, as such, is in the best position to resolve factual questions and assess

the credibility of witnesses." Lett, supra; State v. Mills (1992), 62 Ohio St.3d 357, 366.

An appellate court reviewing a motion to suppress is bound to accept the trial court's

findings of fact where they are supported by competent, credible evidence. State v.

8

Guysinger (1993), 86 Ohio App.3d 592, 594. Accepting these facts as true, the

appellate court independently reviews the trial court's legal determinations de novo.

State v. Djisheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, at¶19.

{¶28} Appellant does not argue his rights under Miranda were violated at the

November 28, 2005 interview. Instead, he maintains that, because he was arrested and

charged in the Niles robberies on November 23, 2005, five days before his interview, he

was entitled to counsel during the November 28, 2005 interview and not subject to

further interrogation. He argues the trial court violated his Sixth Amendment right to

counsel by denying his motion to suppress.

{¶29} As a preliminary matter, we note that appellant did not raise the violation

of his right to counsel as a separate argument in the trial court. However, because this

issue is interrelated with appellant's waiver of his Miranda rights, and this issue was

raised below, we address it. We note the state does not dispute appellant's right to

assert this issue on appeal.

{¶30} In support of his argument, appellant relies on Massiah v. United States

(1964), 377 U.S. 201. In that case, the Court held "that the petitioner was denied the

basic protections of [the Sixth Amendment] when there was used against him at his trial

evidence of his own incriminating words, which federal agents had deliberately [and

secretly] elicited from him after he had been indicted and in the absence of his counsel."

Id. at 206.

{¶31} Appellant does not, however, address two subsequent decisions of the

United States Supreme Court, which have a direct impact on his argument. In

Patterson v. Illinois (1988), 487 U.S. 285, the United States Supreme Court addressed

9

the ability of a defendant to waive his right to counsel after the defendant has been

indicted. The Court held:

{¶32} "Petitioner's first claim is that because his Sixth Amendment right to

counsel arose with his indictment, the police vVere thereafter barred from initiating a

meeting with him. ***

{133} "*** The fact that petitioner's Sixth Amendment right came into existence

with his indictment, i. e., that he had such a right at the time of his questioning, does not

distinguish him from the preindictment interrogatee whose right to counsel is in

existence and available for his exercise while he is questioned. Had petitioner indicated

he wanted the assistance of counsel, the authorities' interview with him would have

stopped, and further questioning would have been forbidden (unless petitioner called for

such a meeting). ***

{¶34} "***

{¶35} "As a general matter ***, an accused who is admonished with the

warnings prescribed by this Court in Miranda;`384 U.S., at 479, has been sufficiently

apprised of the nature of his Sixth Amendment rights, and of the consequences of

abandoning those rights, so that his waiver on this basis will be considered a knowing

and intelligent one." Patterson, supra, at 290-296.

{¶36} Thus, in Patterson, the Court held that even after a defendant has been

indicted, he can assert his right to counsel or waive it, as long as the waiver has been

knowingly, intelligently, and voluntarily made. Id.

'10

{¶37} Thereafter, in Michigan v. Harvey (1990), 494 U.S. 344, the United States

Supreme Court addressed the ability of a defendant, who had been indicted, to waive

his right to counsel after he had obtained counsel. The Court held:

{¶38} "*** For the fruits of postindictment interrogations to be admissible in a

prosecution's case in chief, the State must prove a voluntary, knowing, and intelligent

relinquishment of the Sixth Amendment right to counsel. Patterson[, supra,] at 292, and

n. 4 ***; Brewer [v. Williams (1977), 430 U.S. 387,] at 404. ***

{¶39} "***

{¶40} [N]othing in the Sixth Amendnient prevents a suspect charged with a

crime and represented by counsel from votuntarily choosing, on his own, to speak with

police in the absence of an attorney. ***

{¶41} "*** [W]e have explicitly declined to hold that a defendant who has

obtained counsel cannot himself waive his right to counsel. *** A defendant's right to

rely on counsel as a 'medium' between the defendant and the State attaches upon the

initiation of formal charges, *** and respondent's contention that a defendant cannot

execute a valid waiver of the right to counsel without first speaking to an attorney is

foreclosed by our decision in Patterson. ***

{¶42} "Although a defendant may sometimes later regret his decision to speak

with police, the Sixth Amendment does not disable a criminal defendant from exercising

his free will. To hold that a defendant is inherently incapable of relinquishing his right to

counsel once it is invoked would be 'to imprison a man in his privileges and call it the

Constitution."' (Internal citations omitted and emphasis added.) Harvey, supra, at 348-

353.

11

lY

{¶43} The Court in Harvey thus held that, even where a defendant has been

indicted and obtained counsel, he can still validly waive his right to counsel without first

speaking to an attorney. The holding in Harvey applies with greater force here

because, at the time of his November 28, 2005 interview, appellant had not obtained

counsel.

{¶44} Appellant concedes that Detectives Robbins and Adkins obtained a

Miranda waiver from him before interrogating him. He does not argue that the waiver

was invalid in any way. Instead, he argues the waiver is " irrelevant" because appellant

had already been charged and therefore had a right to counsel, which, according to

appellant, could not be validly waived. The holdings of the Supreme Court in Patterson

and Harvey foreclose this argument. °

{¶45} As a result, based on the foregoing authority, appellant was free to waive

his right to counsel and to speak to the detectives as long as his waiver was voluntary.

{¶46} In the trial court's April 10, 2008 judgment entry, the court found that, prior

to taking appellant's statement on November 28, 2005, appellant was properly advised

of his Miranda rights. The court also found that, based on the testimony and audio

recording, he understood those rights, and voluntarily waived them prior to giving a

statement. The record supports these findings.

{¶47} First, it is well-established that "[a]n express written or oral statement of

waiver of the right to remain silent or the right to counsel is usually strong proof of the

validity of that waiver ***." North Carolina v. Butter ( 1979), 441 U.S. 369, 373. The

Ohio Supreme Court adopted this holding in State v. Scott ( 1980), 61 Ohio St.2d 155, at

paragraph one of the syllabus. It is undisputed that, after being advised of his rights,

12

appellant indicated on the waiver form and on the recording his understanding and

waiver of his rights.

{¶48} Second, Detectives Robbins and Adkins testified that appellant did not

appear to be under the influence of drugs orFalcohol. Both said his demeanor was

"fine." Detective Robbins testified that appellant had recently had coffee and breakfast.

Detective Adkins testified that appellant was coherent and understood what was

happening. During the interview, appellant never said he did not want to talk to the

detectives. Further, he never said he did not understand any of Detective Robbins'

questions. There is no evidence of promises, threats, or coercion. There is no

evidence of physical deprivation or mistreatment. The audio recording of the November

28, 2005 interview reveals that appellant was coherent, articulate, and responsive. We

note that on that recording, appellant told Detective Robbins that two days earlier, i.e.,

on November 26, 2005, he told the jailer to call Detective Robbins or Chief Simeone

because he wanted to talk to them. Appellant was frustrated because he did not

receive a call back from either officer. The record, therefore, supports the trial court's

finding that appellant voluntarily waived his Miranda rights before talking to the

detectives on November 28, 2005.

{¶49} We therefore hold that the trial court did not err in denying appellant's

motion to suppress with respect to his statements made to police on November 28,

2005, in violation of his Sixth Amendment right to counsel.

{¶50} Appellant's first assignment of error is not well taken.

{¶51} For his second assigned error, appellant states:

13

{¶52} "The trial court erred as a matter of law by overruling defendant-

appellant's motion to suppress the fruits of the unconstitutional interview of appellant on

November 23, 2005, in violation of the Fifth Amendment and Miranda v. Arizona (1966),

384 U.S. 436."

{¶53} Appellant argues the trial court erred in denying his motion to suppress his

statements made to Chief Consiglio and Chief Sirneone on November 23, 2005.

{¶54} Appellant does not dispute that on November 23, 2005, Chief Consiglio

read him each of the Miranda rights, and that he initialed each of the rights, indicating

he understood each right. As the chief was reading the waiver section, appellant said

he "would like to have an attorney." Further, appellant does not dispute the chief said,

"This interview is terminated. I can't ask you any more questions. We are done here."

When appellant began to initial the waiver, Chief Consiglio told him he did not have to

initial it because he had asked for an attorney. Appellant then initialed the waiver, and

said he wanted to talk to them.

{¶55} Appellant argues the police then proceeded to take a statement without

advising him again of his rights. While appellant correctly states that in the court's April

10, 2008 judgment entry, the court found "a statement was *'* taken without a re-

reading of the form," the court in that entry found that appellant voluntarily waived his

Miranda rights. Further, in the trial court's judgment entry, dated December 29, 2008,

the court found that, based on the evidence presented at the reopened hearing,

appellant was Mirandized a second time and therefore waived his Miranda Warnings

twice on November 23, 2005. This finding is supported by Chief Consiglio's testimony

14

and the contemporaneous notes of Captain Michael Naples, who was present taking

notes during the interview.

{¶56} Appellant argues that once he asked for an attorney, he was not subject to

further interrogation, without the chiefs actually leaving him alone and attempting to

secure an attorney for him. In support of this argument, appellant relies on Edwards v.

Arizona (1981), 451 U.S. 477, in which the United States Supreme Court held:

{¶57} "*** [W]hen an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right cannot be established by

showing only that he responded to further police-initiated custodial interrogation even if

he has been advised of his rights. We further hold that an accused, *** having

expressed his desire to deal with the police only through counsel, is not subject to

further interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or

conversations with the police." (Emphasis added,) Id. at 484-485.

{¶58} In Edwards, the Court thus held that once a defendant invokes his right to

counsel, police cannot further interrogate him without counsel being made available to

him, unless the defendant himself initiates further conversation with the police.

{¶59} The issue presented for our review is whether, after invoking his right to

counsel, appellant initiated subsequent conversation with the police.

{¶60} The trial court in its April 10, 2008 judgment entry found: "Defendant ***

signed the waiver and clearly indicated he wished to talk further and it was proper for

the interview to continue as Defendant by his actions and words reinitiated the interview

15

and there is no violation of his Fourth, Fifth or Fourteenth [Amendment] rights therefore

presented."

{¶61} Appellant argues the trial court erred in making this finding for three

reasons. First, he argues the chiefs were required to exercise "some level of

disengagement." He argues the officers should have given appellant "at least a few

moments for calm, deliberative thought about the situation "" ." However, appellant has

failed to cite any authority in support of this argument.

{¶62} Second, appellant argues that after appellant invoked his right to counsel,

Chief Consiglio, rather than appellant, spoke first, and, therefore, appellant's

subsequent statements must be suppressed. However, the record reveals that, about

one minute after the chief said the interview was terminated, appellant began to initial

the waiver section of the form. Chief Consiglio told him that because he had invoked

his right to an attorney, he did not have to initial the waiver of rights. Appellant then said

he would talk to them, that he wanted to talk to them.

{¶63} Appellant argues that, because Chief Consiglio was the first person to

actually speak after appellant invoked his right to counsel by telling appellant he did not

have to initial the waiver, the chief re-initiated his conversation with appellant. To the

contrary, Chief Consiglio attempted to stop any further conversation with appellant by

telling him he did not have to initial the form.

{¶64} Third, appellant argues, "the evidence suggested" that Chief Consiglio did

not finish reading the waiver section of the rights form to him, and, therefore, his

statement must be suppressed. However, we note that appellant initialed the waiver of

rights section and signed the form. Further, Chief Consiglio testified on direct-

16

examination that after appellant initialed the waiver section, he read that section to him,

although his testimony on cross-examination was more tentative. Chief Consiglio also

testified that appellant signed the form as "the last thing he did." In addition, Chief

Simeone testified that Chief Consliglio read the waiver section to appellant.

{¶65} Further, as noted above, in the trial court's December 29, 2008 entry, the

court found that appellant was Mirandized and "waived his Miranda rights in writing and

later again orally." The court found that appellant voluntarily waived his rights. The

court also found:

{q66} "Looking at the totality of the circumstances, [there was] no evidence to

establish that Defendant was not alert or that he was under the influence of any

substance. To the contrary, he appeared alert and responded to the questions and

interview in a rational, lucid manner. Whether the entire context and effect of the waiver

form was or was not read in its entirety, Defendant quite clearly indicated he understood

the effect of continuing to sign the waiver after being told by both interviewers that the

interview could not proceed if Defendant wanted counsel.

{¶67} "•-

{¶68} "The police *`" acted in an appropriate manner to insure Defendant knew,:

what his rights were. He said he understood his rights as he initialed each part of the

form, and he was specifically informed he should not sign the waiver of his rights if he

wanted a lawyer. He chose to sign the waiver and after again being asked that he

agreed there was no coercion or pressure was causing him to wish to proceed, he

voluntarily, knowingly and intelligently chose to proceed."

17

{¶69} Based on our review of the record, there was competent, credible

evidence to support the trial court's finding that Defendant by his actions and words

reinitiated the interview. We therefore hold the trial court did not err in denying

appellant's motion to suppress his November 23, 2005 statement.

{¶70} Appellant's second assignment of error is not well taken.

{¶71} For his third assignment of error, appellant contends:

{¶72} "The trial court erred as a matter of law by overruling defendant-

appellant's motion to suppress the fruits of the November 23, 2005 interview based on

the fact that appellant lacked voluntary capacity in violation of the Fifth Amendment."

{¶73} Appellant argues the trial court erred in denying his motion to suppress his

November 23, 2005 statement because, he claims, he lacked the capacity to voluntarily

waive his rights. We do not agree.

{¶74} "*** [I]t is well-settled that the taking of an involuntary confession violates

the Due Process Clause of the Fourteenth Amendment. See, e.g., Spano v. New York

(1959), 360 U.S. 315 ***. A coerced confession may also be found to violate the Fifth

Amendment privilege against self-incrimination." State v. Comstock (Apr. 15, 1997),

11th Dist. No. 96-A-0058, 1997 Ohio App. LEXIS 3670, *7. "The question of

voluntariness is a question of law, and as such, an appellate court must independently

review the facts to arrive at its own conclusion.as to whether a given confession was

voluntary." (Citations omitted.) Id. at *6-*7. The state bears the burden of establishing

the voluntariness of a confession by a preponderance of the evidence. Colorado v.

Connelly (1986), 479 U.S. 157, 168-169.

18

{¶75} "In deciding whether a defendant's confession is involuntarily induced, the

court should consider the totality of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length, intensity, and frequency of

interrogation; the existence of physical deprivation or mistreatment; and the existence of

threat or inducement." State v. Edwards (1976), 49 Ohio St.2d 31, paragraph two of the

syllabus. A statement is voluntary "absent evidence that [the suspect's] will was

overborne and his capacity for self-determination was critically impaired because of

coercive police conduct." State v. Daitey (1990), 53 Ohio St.3d 88, paragraph two of the

syllabus.

{¶76} Based on our review of the record, both Chief Consiglio and Chief

Simeone testified that appellant appeared to understand all of their questions. They

both testified he was coherent and did not appear to be under the influence of alcohol or

narcotics. Chief Simeone testified he had seen appellant under the influence of drugs in

the past, but that he did not appear to be under the influence when he was with him on

November 23, 2005. Chief Simeone also testified that he had arrested appellant in the

past, and that he had previously Mirandized him. Chief Consiglio testified that he asked

appellant if he was under the influence of drugs or alcohol, and appellant said he was

not.

{¶77} At the reopened hearing, appellant presented three of his fellow crack

users to testify on his behalf. Michelle Hacker testified that early in the morning on

November 23, 2005, she shared crack with appellant. She said that she left him at

about 8:30 a.m., and that at that time he was under the influence of crack. John.:.,a

Bonanno testified that he saw appellant smokecrack that morning, and that he was

19

under the influence. John Holbrook testified he also saw appellant that morning. He

said appellant wanted to get high, but he had no idea if appellant was under the

influence.

{¶78} Appellant was arrested for the Fuel Mart robbery at about 3:30 p.m. at a

residence in Weathersfield Township. Niles Detective Ron Wright was present at the

arrest, and testified appellant had no trouble walking out of the house. We note that no

testimony was presented concerning whether appellant consumed any crack cocaine

between the morning of November 23, 2005 and 5:15 p.m. that day, when appellant

was interviewed.

{¶79} The trial court found in its December 28, 2008 judgment: "The evidence

presented by Defendant through his three witnesses presents no "" credible evidence

concerning Defendant's condition at 5:30 p.m. on the day of November 23, 2005. The

State, however, has presented three credible witnesses whose testimony is that

Defendant was lucid and sober."

{q80} Appellant argues the latter finding is inconsistent with the court's finding in

the same entry that the "Defendant was under the influence of crack cocaine at

approximately 5:15 p.m. on November 23, 2005, when the Defendant was first

Mirandized." This argument, however, is rendered moot by the trial court's correction of

a typographical error in the judgment entry on remand to include the word "not." When

the record was re-filed, the entry read: "The Defendant was not under the influence of

crack cocaine at approximately 5:15 p.m. on November 23, 2005, when the Defendant

was first Mirandized." (Emphasis added.) The correction of this typographical error

rendered this sentence consistent with the remainder of the judgment entry.

20

{¶81} Finally, we note that this court addressed virtually the same argument

appellant advances here in State v. Klapka, 11th Dist. No.2003-L-044, 2004-Ohio-2921.

In that case the defendant argued that she was under the influence of heroin at the time

of her interview with police and was, therefore, not able to give a voluntary statement,

This court held:

{¶82} "Even if Klapka had ingested heroin prior to the interview, this, alone,

would not render her statement involuntary. Since she exhibited no outward signs of

intoxication and since she admits that she did not tell either Det. Sherwood or Lt.

Walters that she had ingested the heroin, her purported ingestion of the heroin would

not render her statement involuntary. See State v. Smith, 80 Ohio St.3d 89, 112, 1997-

Ohio-355 ('Intoxication affecting one's state of mind, absent coercive police activity,

would be an insufficient reason to exclude [a] voluntary confession.')." Klapka, supra, at

¶20.

{¶83} In the instant case, the testimony is undisputed that, during his interview

with Chief Consiglio and Chief Simeone, appellant did not exhibit any outward signs of

being under the influence of drugs. Moreover, when Chief Consiglio asked him if he

was under the influence of drugs or alcohol, appellant said he was not. Finally, there is

no evidence that the police engaged in any coercive police activity.

{¶84} Based on our review of the record, the trial court did not err in finding that

appellant voluntarily waived his Miranda rights prior to his interview on November 23,

2005.

{¶85} Appellant's third assignment of error is not well taken.

{¶86} For his fourth assignment of error, appellant alleges:

21

{¶87} "Defendant-Appellant was denied the effective assistance of counsel as

guaranteed by the Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution."

{¶88} Appellant argues his trial counsel was ineffective with respect to his

motion to suppress his November 28, 2005 statements to Detectives Robbins and

Adkins and with respect to his no contest plea.

{¶89} The standard of review for ineffective assistance of counsel is whether the

representation of trial counsel fell below an objective standard of reasonableness and

whether the defendant was prejudiced as a result of the deficient performance. The

defendant must show that counsel's performance was deficient and that the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v.

Washington (1984), 466 U.S. 668, 686.

{¶90} The Supreme Court in Strickland held: "In any case presenting an

ineffectiveness claim, the performance inquiry must be whether counsel's performance

was reasonable considering all the circumstances. *** Judicial scrutiny of counsel's

performance must be highly deferential. A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time." Strickland, supra, at 688-689. There is

a strong presumption that the attorney's performance was reasonable. Id. In the

context of a guilty plea, the defendant must demonstrate that there is a reasonable

probability that, but for his counsel's error, he would not have pleaded guilty and would

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have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 58-59; see, also,

State v. Curd, 11th Dist. No. 2003-L-030, 2004-Ohio-7222, at¶110.

{¶91} This holding is equally applicable in the context of a no contest plea

because in such case, as with a guilty plea, the defendant waives his right to trial.

Crim.R. 11(B). Thus, in the context of a no contest plea, in asserting a claim of

ineffective assistance of counsel, the defendant must demonstrate that, but for his

attorney's error, he would not have entered his no contest plea and instead would have

insisted on going to trial. State v. Barnett, 11th Dist. No. 2006-P-0117, 2007-Ohio-4954,

at ¶52.

{q92} "A plea of guilty or no contest waives any prejudice a defendant suffers

arising out of his counsel's alleged ineffective assistance, except with respect to a claim

that the particular failure alleged[ly] impaired the defendant's knowing and intelligent

waiver of his right to a trial." State v. Winterbotham, 2d Dist. No. 05CA100, 2006-Ohio-

3989, at ¶40.

{¶93} A claim that a guilty or no contest plea was induced by ineffective

assistance of counsel must be supported by evidence showing his plea was involuntary.

State v. Gotel, 11th Dist. No. 2006-L-015, 2007-Ohio-888, at ¶11; see, also, State v.

Kapper(1983), 5 Ohio St.3d 36. In Kapper, the Supreme Court held:

{¶94} "'*** [A]n allegation of a coerced guilty plea involves actions over which the

State has no control. Therefore, the defendant must bear the initial burden of

submitting affidavits or other supporting materials to indicate that he is entitled to relief.

Defendant's own self-serving declarations or affidavits alleging a coerced guilty plea are

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insufficient to rebut the record on review which shows that his plea was voluntary.

Id. at 38.

{¶95} Appellant does not make any showing or even argue that his no contest

plea was not voluntarily entered or that, but for his counsel's alleged ineffectiveness, he

would not have entered his no contest plea. He has therefore failed to properly support

his claim.

{¶96} However, even if appellant had supported his claim, it would lack merit.

Under appellant's first issue, he argues his tria'I counsel was deficient in failing to

specifically argue his right to counsel was violated. He argues his counsel should have

emphasized in his motion to suppress that the right to counsel is distinct from his

Miranda rights.

{¶97} In any event, since we hold that appellant waived his Miranda rights,

including his right to counsel, there was no Sixth Amendment violation. His trial counsel

was, therefore, not deficient in failing to make this argument. Further, since we

addressed and ruled on the issue, appellant has not been prejudiced by any failure of

his trial counsel to sufficiently raise it.

{¶98} Appellant further argues that if his trial counsel had made this distinction,

there is a reasonable probability that the outcorne of the proceedings would have been

different. However, in the context of a no contest plea, appeliant was required to show

that, but for counsel's error, he would not have pled no contest and instead would have

insisted on going to trial. There is no such showing or argument here.

{199} Under his second issue, appellant argues that, because the state had

previously offered a plea bargain, pursuant to which appellant would have received 30

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years to life, his successor counsel was ineffec'trye in allowing appellant to agree to a

plea bargain wherein appellant obtained 40 years to life.

{¶100} The record does not reflect whether appellant rejected the initial offer or

the circumstances under which the terms of the plea bargain changed. However,

appellant cites no authority for the proposition that the state was obligated to keep its

original offer open indefinitely. We note that the 30-year plea bargain was available as

of April 18, 2008, and appellant did not plead no contest until January 22, 2009.

{1101} In any event, during the change-of-plea hearing, appellant stated he

understood his sentence would be 40 years to life, and he accepted the plea bargain.

He also told the court he had reviewed the written plea agreement, and that he was

satisfied with the representation provided by his` counsel. In light of his acceptance of

the plea bargain and his satisfaction with counsel, there is no showing that counsel was

ineffective.

{¶102} Moreover, appellant does not show or even argue that, but for counsel's

alleged error, he would not have pled no contest and instead would have insisted on

going to trial. In fact, the record demonstrates that, despite his understanding of the

increased sentence, appellant still decided to plead no contest.

{¶103} Appellant's fourth assignment of error is not well taken.

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{¶104} For the reasons stated in the Opinion of this court, appellant's

assignments of error are without merit. It is the judgment and order of this court that the

judgment of the Trumbull County Court of Common Pleas is affirmed.

MARY JANE TRAPP, P.J.,

COLLEEN MARY O'TOOLE, J.,

concur.

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