State v. Nathaniel Dumas, Iii
| Decision Date | 26 November 2002 |
| Docket Number | 02-LW-4957,98 CA 167 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. NATHANIEL DUMAS, III, DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas of Mahoning County Ohio Case No. 97-CR-998
Hon Cheryl L. Waite, Hon. Gene Donofrio, Hon. Joseph J. Vukovich
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Janice T. O'Halloran, Assistant Prosecuting Attorney, Mahoning County Courthouse, 120 Market Street, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. David H. Bodiker, State Public Defender, Atty. Lisa Fields Thompson, Assistant State Public Defender, 8 East Long Street, 11th Floor, Columbus, Ohio 43215
OPINION
Appellant Nathaniel Dumas is appealing his guilty plea and conviction in the Mahoning County Court of Common Pleas on three counts of felonious assault. Appellant argues that he has been denied due process in the right to a speedy appeal because this appeal has been pending since August 27, 1998. Appellant also argues that his trial counsel was ineffective by failing to recommend that Appellant withdraw his guilty plea when he protested his innocence at sentencing. Our review of the record reveals that Appellant's plea was not offered knowingly. Thus, we must reverse his conviction as to his plea. However, due to delays caused by his original appointed appellate counsel in this case it is appropriate to reverse Appellant's conviction and dismiss the charges against him rather than remand the matter for a new plea to be entered. This being the case, Appellant's due process argument is moot.
On October 25, 1997, Gail Miller was driving her car in Youngstown when it was hit by a bullet coming from a passing car. Ms. Miller later identified Appellant as the shooter. On December 29, 1997, the Mahoning County Grand Jury indicted Appellant on three counts of felonious assault, in violation of R.C. 2903.11(A)(2), second degree felonies. Each count contained a gun specification.
On June 10, 1998, the trial court accepted Appellant's guilty plea to the three felonious assault charges and the gun specifications were dropped from the indictment. Appellant's written guilty plea stated that Appellant understood he could receive probation by pleading guilty. (6/3/98 Plea Agreement, p. 2.) At the plea hearing, the trial judge informed Appellant that he was not sure whether Appellant could receive shock probation or judicial release:
(6/10/97 Tr., p. 13.)
Appellant was sentenced on July 29, 1998. At the sentencing hearing, Appellant protested that he was not pleading guilty to committing a crime but only to being at the scene of the crime. (7/29/98 Tr., p. 18.) Appellant stated that he was not the shooter and that he merely gave police the shooter's identity. (7/29/98 Tr., pp. 21-22.) He stated he was only admitting that he was in the wrong place at the wrong time. (7/29/98 Tr., p. 7.) Appellant's counsel did not attempt to have Appellant withdraw his plea during the sentencing hearing.
The sentencing entry was filed on July 29, 1998. The trial judge sentenced Appellant to five years in prison on each of the three counts of felonious assault, to be served concurrently. Defendant was granted 175 days for time already served.
Appellant filed a notice of appeal on August 27, 1998. Appellant's trial counsel filed a motion to withdraw as counsel on August 27, 1998. Attorney Ronald Knickerbocker was appointed as appellate counsel on October 9, 1998.
Appellant's counsel filed motions for extension of time to file his appellate brief on October 28, 1998, December 7, 1998, and February 3, 1999. Counsel stated that the record on appeal had only been recently filed and that he needed more time for its review. Counsel was given final leave to file his brief until March 17, 1999. The Court did not know at that time that no transcripts were requested or filed as part of the record.
On March 11, 1999, Appellant's counsel requested an order that the transcript of the July 29, 1998, sentencing hearing be prepared at no cost to defendant. There was no explanation given as to why this had not been earlier requested. The motion to prepare the transcript at the state's expense was granted on May 4, 1999.
Neither Appellant nor the state took any further action in the appeal for over nine months.
On February 24, 2000, this Court filed a sua sponte Journal Entry stating that it was unclear whether a complete record on appeal had been filed, and ordering Appellant to further prosecute the appeal within thirty days or else the appeal would be dismissed.
On March 17, 2000, Attorney Knickerbocker filed a motion to withdraw as counsel pursuant to State v. Toney (1970), 23 Ohio App.2d 203, 262 N.E.2d 419. The motion stated that Attorney Knickerbocker, "thoroughly and extensively researched the record, pleadings, and the law, and has had discussions with the trial counsel, and has been unable to find any meritorious appealable issue."
On March 21, 2000, the Mahoning County Clerk of Courts filed a notice with this Court that the transcript of proceedings was filed on March 17, 2000, the same day as counsel's motion to withdraw. At this time no transcript of the June 10, 1998, plea hearing had yet been ordered by counsel.
On April 17, 2000, Attorney Knickerbocker filed a request for fees and expenses in the amount of $434.51, based on work done through April 11, 2000. The sum was allowed by this Court.
In reviewing Attorney Knickerbocker's request to withdraw as counsel, this Court became aware that no transcript of the plea hearing had been ordered. As this appeal involves a guilty plea, it was immediately obvious that the plea hearing transcript was necessary for an adequate review of any issues on appeal. It was also obvious that Attorney Knickerbocker could not have reviewed whether there were any appealable issues without obtaining the plea hearing transcript. On August 22, 2000, this Court filed a Journal Entry ordering a transcript of the June 10, 1998, plea hearing to be prepared.
On May 23, 2001, we filed another Journal Entry noting that the June 10, 1998, plea hearing transcript had not yet been prepared. This Court once again ordered that the transcript be prepared.
This Court denied Attorney Knickerbocker's request to withdraw as counsel, and ordered him to review the complete record before deciding whether the matter involved an appealable issue or issues. The transcript was finally filed on May 31, 2001. Again, counsel apparently did nothing with this matter for several months.
On October 30, 2001, without even requesting additional extensions of time within which to file a brief, Attorney Knickerbocker refiled his motion to withdraw as counsel claiming he failed again to find any appealable issues.
On January 25, 2002, this Court filed a Journal Entry giving Appellant thirty days to file a separate pro se brief listing any possible assignments of error, pursuant to State v. Toney, supra.
On April 11, 2002, Attorney Knickerbocker filed with this Court a supplemental request for fees and expenses, which was denied.
We undertook our own review of the matter pursuant to State v. Toney, supra. On April 26, 2002, this Court found that there were, arguably, issues for appeal. We removed Attorney Knickerbocker as counsel. Substitute counsel from the Ohio Public Defender's Office was appointed.
Attorney David H. Bodiker made a first appearance as new counsel on May 16, 2002. From this point on the appeal proceeded expeditiously. All briefs, including Appellant's reply, were filed by September 30, 2002.
Appellant presents two assignments of error, which will be treated in reverse order.
Appellant's second assignment of error asserts:
"NATHANIEL DUMAS WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO MOVE TO WITHDRAW HIS PLEA PRIOR TO SENTENCING, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
Appellant argues that his counsel should have determined whether Appellant wanted to withdraw his plea during the July 29, 1998, sentencing hearing. Appellant argues that, under the Sixth Amendment to the United States Constitution, he has a right to effective assistance of counsel. Appellant asserts that counsel is ineffective if his or her performance falls below an objective standard of reasonable representation and, in addition, if prejudice arose from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of syllabus, following Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Appellant maintains that a reasonably competent attorney would have intervened when Appellant vehemently protested his innocence during the sentencing hearing. Appellant also claims that he was prejudiced by counsel's inaction, because if he had made a motion to withdraw...
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