State v. Murnahan

• Decision Date: 27 December 1996
• Docket Number: No. 96CA04,96CA04
• Citation: 117 Ohio App.3d 71,689 N.E.2d 1021
• Parties: The STATE of Ohio, Appellee, v. MURNAHAN, Appellant. * Second District, Clark County
• Court: Ohio Court of Appeals

Page 71

117 Ohio App.3d 71

689 N.E.2d 1021

The STATE of Ohio, Appellee, v. MURNAHAN, Appellant. ^*

No. 96CA04.

Court of Appeals of Ohio,

Second District, Clark County.

Decided Dec. 27, 1996.

Stephen A. Schumaker, Clark County Prosecuting Attorney, and Roger A. Ward, Assistant Prosecuting Attorney, Springfield, for appellee.

Roy E. Murnahan, pro se.

FREDERICK N. YOUNG, Judge.

On March 24, 1992, Roy E. Murnahan appeared in open court, represented by counsel, executed a waiver of indictment, and entered a plea of guilty to the charge of attempted rape (R.C. 2923.03 and 2907.02), an aggravated felony of the second degree, which had been set forth in a bill of information. The matter was set over for a presentence investigation. On April 21, 1992, a disposition hearing was held in the Common Pleas Court of Clark County, Ohio, and Murnahan was sentenced for a term of incarceration from eight to the maximum of fifteen years, and assessed court costs.

On February 1, 1996, Murnahan filed a motion pro se requesting leave to file a delayed appeal pursuant to App.R. 5(A) in this court, which we granted on March 1, 1996.

Although the Prosecutor's Office of Clark County did not contest Murnahan's motion for leave to file a delayed appeal, it did file a brief in this matter in response to Murnahan's pro se brief. Murnahan also filed a pro se reply brief.

Murnahan has presented us, pro se, with the following five assignments of error:

"ASSIGNMENT OF ERROR AND ARGUMENT I:

"The defendant-appellant, Roy E. Murnahan, in the case below in 92-CR-169, was denied the effective assistance of trial court counsel by James N. Griffin, Esq., who: (1) failed to place his objection on the record when the state of Ohio breached its plea bargain deal promise to remain silent during the sentencing phase, (2) failed in the first instance to investigate and order a competency hearing under R.C. 2945.37 when ipso facto evidence on the record revealed that the accused was a 'slow person' and 'slow to understand,' (3) failed to investigate and subpoena in teachers of the accused who could and wanted to testify, (4) failed to object when the court took judicial notice without more and/or interfered [sic] into the plea bargaining process all in violation of the federal Constitution and Article I, § 10 and § 16 of the Ohio Constitution.

"ASSIGNMENT OF ERROR AND ARGUMENT II:

"The trial court erred in failing to orally inform the defendant-appellant under Crim.R. 11(C) O.R.Crim.P. and advise him under R.C. 2951.02(F)(4), and R.C. 2929.01(2), that the charge was non-probationable especially when trial counsel asked the judge to have the 'probation department, could talk to Mr. Murnahan' which prejudiced his rights under Ohio law to 'voluntarily' and 'knowingly' enter a plea of guilty violative of the Fourteenth Amendment rights of the U.S. Constitution and Ohio Constitution.

"ASSIGNMENT OF ERROR AND ARGUMENT III:

"The trial court erred and abused its discretion by violating Canons, 1, 2(A), and 3(A)(1), Code of Judicial Conduct by failing to remain neutral, taking judicial notice and permitting the prosecution to breach the plea bargain deal to remain silent at sentencing phase violative of the Fourteenth Amendment of the federal and Ohio Constitutions.

"ASSIGNMENT OF ERROR AND ARGUMENT IV:

"Trial court erred by specifically stepping into the plea bargaining process during the oral dialogue and advising the accused the plea of guilty entered by his counsel was entered and implied its better than going to trial in violation of the Fourteenth Amendment [to the] United States Constitution.

"ASSIGNMENT OF ERROR AND ARGUMENT V:

"The trial court erred and abused its discretion by assigning attorney James N. Griffin to represent the defendant-appellant (3) three days after he had entered his plea of guilty, thereby at the entering of his plea of guilty the accused had no attorney, hence he is entitled to his release under Gideon v. Wainwright (1963), 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799], under the Sixth and Fourteenth Amendments to the federal Constitution."

In his brief, Murnahan has presented us with very articulate and vigorously argued assignments of error, but for purposes of our analysis, we prefer to rearrange the issues he has presented and deal with them under three separate headings, not in the order in which he has presented them in his brief. Accordingly, we shall first analyze the prosecutor's alleged misconduct. Under our second heading, we shall analyze the alleged errors of the trial court. Finally, we shall analyze Murnahan's arguments for the alleged ineffectiveness of his trial counsel.

I

Murnahan argues in his Assignments of Error I, II (reply brief only), and III that the prosecutor breached his plea bargain agreement to remain silent at the disposition hearing, and that his statements at the hearing led the court to impose the maximum sentence, which was higher, in Murnahan's belief, than he had expected.

At the plea hearing held on March 24, 1992, the following exchange occurred:

"[THE COURT]: You have a bill of information?

"MR. LIND [Prosecutor]: Yes, Your Honor.

"THE COURT: Is [sic] there any other conditions other than just the presentation of this case as an attempted rape?

"MR. LIND: No, Your Honor.

"MR. GRIFFIN [Defense counsel]: Just that the State would not oppose a presentence report and I believe would stand silent at the time of sentencing.

"MR. LIND: That's a correct statement, Your Honor.

"THE COURT: All right."

At the disposition hearing on April 21, 1992, the court first requested and heard a statement from defense counsel (more about that later) and then the court turned to the prosecuting attorney (the same one present at the plea hearing) and said:

"THE COURT: All right. Do you want to be heard?

"MR. LIND: Yes, Your Honor. Thank you. Based upon the plea agreement to a lesser offense and the fact that there was ongoing conduct and also a plea to a lesser number of offense I feel that a maximum sentence is appropriate in this situation. As the presentence investigation has shown the Defendant has shown no remorse for his actions. He might be slow in realizing what the Court procedures are but his educational level is high enough to appreciate the fact that what he was doing was wrong.

"What the Court really needs to take into effect is the fact that we have a 7-year-old child and I don't think that the lasting detrimental effects of the child can be weighed in any sense here today. The child has had to have been removed from the home. The child will be living with these scars for the rest of his life. I hope the Court will take this into consideration and, again, we recommend the maximum sentence. Thank you."

It is obvious that the prosecutor did, in fact, breach his agreement to remain silent at the disposition hearing and, therefore, exhibited a regrettable, perhaps even reprehensible, lack of good faith. On appeal, the state confesses that it "should have remained silent." Had the trial court then said, in words to this effect: "Well, I had not planned to impose the maximum sentence, but after hearing the points you made, Mr. Prosecutor, I have changed my mind and I will do it," we might well have had reversible error as to the sentence imposed, but the court did not say that. In fact, it is necessary for our analysis at this point and, indeed, for our understanding of the entire case here, that we set forth the exchange that occurred at the disposition hearing immediately following the prosecutor's remarks and including the judge's explanation of his sentence:

"THE COURT: Is there anything you'd like to say this morning, Mr. Murnahan?

"THE DEFENDANT: Yes, Your Honor. I know what I done was wrong and I'm very sorry for what I've done. I don't want the max.

"THE COURT: All right.

"MR. GRIFFIN: Your Honor, one thing I meant to say and I'd intended to and Roy and I had discussed this, Roy understands that what he has done has had a terrible impact on his brother but that if the Court would significantly incarcerate Roy for the maximum period of time that that also may have detrimental impact on Danny to understand that Danny's got a lot to work through but incarceration of Roy cuts both ways.

"THE COURT: All right. And it always does when it's a family member that's being subjected to this kind of circumstance. I recognize that, particularly a younger brother.

"Well, I've reviewed the presentence investigation as well as all of the psychological records that have been submitted to me by those who've had contact with you, Mr. Murnahan. And in reviewing the accounts that I have here of this activity, very frankly, it does appear to me that you've been given a substantial consideration or break, I guess is the choice of words that you'd understand most clearly, in allowing you to plead to this one count of attempted rape because it appears to me from what I see here that this was to some extent an ongoing sexual activity that you were involved in; and I recognize that you blame principally the other party and I suppose he blames you, but in any event, there is no question about the fact that there were probably a number of very--much more serious counts available that could have been filed.

"Actually, in reviewing this sentence, this presentence investigation I do think that the appropriate sentence is an 8 to 15 year penitentiary sentence, that's what I'm going to impose. The costs will be imposed. I recognize that your little brother's going to have some difficulty dealing with the fact that you're separated from him because of this situation. I think he's probably well-off and once he understands why you're separated that he'll be able to deal with that more easily than having to deal with you in his presence for awhile; and the costs will be imposed."

We do not know anything about the underlying facts of this case beyond what is contained in the foregoing excerpt from...