State v. Elmer E. Ahart
| Decision Date | 28 September 2001 |
| Docket Number | 93 C.A. 211,01-LW-3746 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. ELMER E. AHART, JR., DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Case No. 92CR604
Hon Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
For Plaintiff-Appellee: Paul J. Gains, Prosecuting Attorney Janice T. O'Halloran, Assistant Prosecuting Attorney Mahoning County Courthouse, 120 Market Street, Youngstown, Ohio 44503
For Defendant-Appellant: David H. Bodiker, Ohio Public Defender, Stephen P. Hardwick, Assistant Public Defender, Ohio Public Defender's Office, 8 East Long Street % 11th Floor, Columbus, Ohio 43215-2998
Elmer E. Ahart, Jr., pro se #281-688, Trumbull Correctional Inst., 5701 Burnett Road, Leavittsburg, Ohio 44430
Defendant-appellant, Elmer Ahart Jr., appeals his conviction in Mahoning County Common Pleas Court, following guilty pleas, for three counts of aggravated murder and one count of attempted aggravated murder, with accompanying specifications.
On July 17, 1992, a Mahoning County Grand Jury returned an indictment against appellant setting forth four counts. Counts 1, 2, and 3 were for aggravated murder. Count 4 was for attempted aggravated murder. Each count carried a specification of the aggravating circumstance that the offense was part of a course of conduct involving the purposeful killing of two or more persons by appellant. R.C. 2929.04(A)(5). Each count also carried with it a firearm specification.
Appellant initially pleaded not guilty to all counts. However, on September 14, 1993, appellant retracted his not guilty plea and entered a guilty plea as to all of the counts listed in the indictment. In exchange for appellant's guilty plea, plaintiff-appellee, the State of Ohio, agreed not to pursue the death penalty and merged the four firearm specifications into one. Appellee did not amend the indictment to dismiss or delete the capital specifications. Pursuant to his plea agreement, appellant was sentenced by a single trial judge to serve twenty full years of imprisonment on each of the three counts of aggravated murder, three years of actual incarceration for the firearms specification, and ten to twenty-five years for the attempted aggravated murder charge. The sentences were to be served consecutively.
Appellant's counsel filed a notice of appeal on October 18, 1993. This court dismissed that appeal on November 17, 1993 as being untimely. In that decision, the court directed appellant's counsel to App.R. 5(A). Appellant also filed a motion for reconsideration that was denied by this court.
Approximately six years later, on October 26, 1999, appellant filed a pro se petition to reopen his appeal. This court granted that motion on May 3, 2000, and appointed him counsel. [1] On October 30, 2000, appellant's appointed appellate counsel filed a merit brief. Appellee filed a brief in opposition.
Pursuant to App.R. 26(B)(7), our inquiry is limited to whether appellant's prior appellate counsel was deficient and, if so, whether appellant was prejudiced by that deficiency.
Appellant alleges three assignments of error the first two of which share common issues of legal analysis; therefore, they will be addressed together.
Appellant's first assignment of error states:
Appellant's second assignment of error states:
."
Appellant argues that the trial court lacked jurisdiction to accept his guilty plea to aggravated murder because R.C. 2945.06 requires that a three-judge panel, not a single judge, accept a guilty plea when the defendant has been charged with a capital crime. Appellant notes that he was charged with a capital crime and contends that regardless of whether or not appellee chose to pursue the death penalty, since he was charged with an offense punishable by death, the plain language set forth in R.C. 2945.06 required that once he pled guilty, a single judge was either required to dismiss the death penalty specifications or empanel two additional judges to hear his plea.
In response to appellant's argument, appellee argues that since it agreed not to seek the death penalty pursuant to the plea agreement, the single trial judge did not err in accepting appellant's guilty plea. Appellee argues that these actions effectively removed the instant case from the three-judge panel requirement set forth in R.C. 2945.06.
R.C. 2945.06 provides:
At the time appellant entered his plea, case law interpreting the sentencing provisions of R.C. 2929.03 et seq. and R.C. 2945.06 held that once a capital defendant enters a guilty plea in exchange for the prosecution not pursuing the death penalty, it is no longer a capital case within the scope of 2945.06, and therefore a three-judge panel need not be empanelled to accept the defendant's plea. State v. Griffin (1992), 73 Ohio App.3d 546, 553.
Appellant cites to subsequent developments in the case law which he argues support his proposition that the indictment must be amended to delete the death penalty specifications to withdraw the case from the requirements of R.C. 2945.06 and that a plea agreement not to seek the death penalty is not enough.
Assuming arguendo that those cases indeed stand for that proposition, appellant's reliance on those cases is misplaced given the posture of appellant's case before this Court. Our review is limited to whether appellant's prior appellate counsel was deficient for not having raised these issues in appellant's direct appeal. At the time of appellant's plea and during the time period subsequent to his conviction when he could have pursued a direct appeal, Griffin, supra, was the only authority on this issue. [2] Therefore, at that time, there was no argument to be made concerning this issue. Appellate counsel's refusal to raise arguments that run counter to existing authority cannot serve as a basis for ineffective assistance of appellate counsel under App.R. 26(B). See State v. Allen (1996), 77 Ohio St.3d 172.
In addition, the Fifth District, which decided Griffin, has continued, to date, to adhere to its holding. See State v. Heddlesohn (Aug. 4, 1997), Stark App. No. CA-00113, unreported (since appellant pled pursuant to negotiated plea agreement wherein the State agreed not to seek death penalty, death penalty procedures need not be followed) and State v. Rash (Mar. 27, 1995), Stark App. No. 94-CA-223, unreported, 1995 WL 347945, (three-judge panel not necessary when defendant pleads in exchange for State not seeking death penalty).
The other requirement under App.R. 26(B)(7) is that even if appellant's prior appellate counsel was deficient, appellant had to have been prejudiced by that deficiency. By appellate counsel not making the argument regarding a three-judge panel, appellant was assured that the intended result of his plea agreement would be carried out. One judge as opposed to three could not sentence appellant to death. As a result, we fail to see the prejudice of any alleged ineffectiveness of appellate counsel.
Accordingly, appellant's first and second assignments of error are without merit.
Appellant's third assignment of error states:
."
Prior to accepting a guilty plea by a defendant, a trial court is required to follow the dictates of Crim.R. 11(C) which directs the trial judge to inform the defendant of certain matters. State v. Johnson (1988), 40 Ohio St.3d 130, 132-33. At the time of appellant's plea, Crim.R. 11(C)(2) provided:
To continue reading
Request your trial