IN THE SUPREME COURT OF OAIO
Donnie Reed,
Appellee.
Case Number:
On Appeal from theMahoning County Courtof Appeals, SeventhAppellate District
Court of AppealsNo. 09-MA-53
MOTION FOR DELAYED APPEAL FORAPPELLANT DONNIE REED
APPELLANT IN PRO PERSONA
Domiie ReedInst. No. #554-036Belnlont Corr. Inst.Post Office Box 540St. Clairsville, Ohio 43950
COUNSEL FOR APPELLEE, STAI'E OF OHIO
Attorney Paul J. Gains, Mahoning County ProsecutorAttorney Ralpb M. Rivera, &Attorney Jatnes MacDonaldAssistant Prosecuting Attorneys21 West Boardman Street, 61h FloorYoungstown, Ohio. 44503
MOTION FOR DELAYED APPEAL
Now comes the Appellant, Donnie Reed, in pro persona, and pursuant to Supreme Court Rule
II, Section 2(A)(4), hereby requests leave to file a delayed appeal of the decision and judgment of the
Mahoning County Court Of Appeals, Eighth Appellate District, entered in Court Of Appeals case No.
93034 on January 28" of 2010.
In support of this Motion, the Appellant provides the following reasons which are also attested
to in the accompanying affidavit required by Rule II, 2(A)(4)(a) and wbiclt is incorporated herein by
reference:
1. The Appellant did not receive the decision and opinion of the Appellate Court from his Attorney
until (7) seven-days after the opinion was released.
2. That Appellant attempted to file an timely Appeal of this cause to this Court on April 22, of
2010 by following ODRC policies and giving the fully completed Notice of Appeal, and
Memorandum in Support of Jurisdiction to the House Sergeant for the completing of a cash slip
and for final mailing, a copy of the dated cash slip is attached as, "exhibit A", and fully
incorporated herein by reference.
3. '['he completed Notice of Appeal, and Memorandum in Support of Jurisdiction - which was
now out of my control after giving it to the House Sergeant - did not leave the State Institution
until April 261' of 2010 as per the post mark on the envelop stamped, received by the Clerk of
Court for 1'he Ohio State Supreme Court on April 29th of 2010. A copy of which is attached as,
"exhibit B" and fully incorporated herein by reference.
4. The Appellant filed a pro se Notice of Appeal and Memoranduin in Support of Jurisdiction,
which mailed by the Appellant with what was believed to be adequate time to comply with the
forty-five (45) day requirement contained within Rnle 11, Section 2(A)(1)(a), but the flling
2
failed to arrive at the Ohio Supreme Court for reasons not under the Appellants control.
5. The Appellant inadvertently calculated the mailing of the form with wliat he thought was
adequate time to negotiate the prison nrail system. Appellant intended no disrespect in not
providing the original transmittal with in enough tiine to allow for any mis calculation on his
part.
6. The Appellant, as a pro se litigani, and did his best to comply witli the requirements with the
limited resources that he has at his disposal as an indigent ininate. 'fhe law Library at Belmont
Correctional has limited access, ie. "odd inmate numbers can only aceess on odd numbered day
and vice versa with even numbered inmates and days." "I'his caused a hindrance in the Appellant
preparing his initial filing as well as the preparing of this Motion For Leave For Delayed Appeal
7. The Appellant has sought the assistance of an imnate law clerk to assist the inmate with the
filing of these documents so that his rights can be preserved.
8. Appellant believes he has suffered a critical 'nljustice in the form of a wrongful conviction and
improper sentencing and is desirous of availing hiniself to every potential remedy for justice.
9. The Appellant apologizes for his previous mistake by not timely submitting his Appeal, and
afGrmatively asserts that he will adhere to all applicable rules if the relief sought herein is
granted.
WHEREFORE, in the interests of fairness and justice, the Appellant respectfully requests that
the relief sought herein is granted. Respectfiilly,
May 12r" of 2010Donnie Reed, in
PPELLANT°o persona
3
Certificate of Service
I certify that a copy of this Motion for Delayed Appeal and the accompanying Affidavit of
Verity was sent by ordinary U.S. mail to:
Attorney Paul J. Gains, Mahoning County ProsecutorAttorney Ralph M. Rivera, &Attorney James MacDonaldAssistant Prosecuting Attorneys21 West Boardnian Street, 6"' FloorYoungstown, Ohio. 44503
this 12"' day of May, 2010_,
^
Donn-i-d Reed,'in prb pAPPELLANT
4
z
c 4
^ SupremeCourt
Front Streetimbus, Ohio
AFFIDAVIT OF VERITY
STATE OF OHIO )) ss.
COUNTY OF BELMONT )
Now conies the AfFiant, Domiie Reed, and after being duly sworn deposes and states the
following:
1. That all averments and statements contained in the foregoing tYfotion For Delayed Appeal are
true and correct.
2. That this Affidavit of Verity is submitted in compliance with Supreme Court Rule II, Section
2(A)(4)(a).
3. The Appellant did not receive the decision and opinion of the Appellate Court from his Attorney
until (7) seven-days after the opinion was released.
4. That Appellant attempted to file an timely Appeal of this cause to this Cottrt on April 22, of
2010 by following ODRC policies and giving the fiilly completed Notice of Appeal, and
Memorandum in Support of Jurisdiction to the House Sergeant for the completing of a cash slip
and for final mailing, a copy of the dated cash slip is attached as, "exhibit A", and fully
incorporated herein by reference.
5. The completed Notice of Appeal, and Memorandtun in Sttpport of Jurisdiction -- which was
now out of my control after giving it to the House Setgeant - did not leave the State Institution
until April 26t1' of 2010 as per the post mark on the envelop stamped, received by the Clerk of
Court for The Ohio State Supreine Court on April 291h of 2010. A copy of wliich is attached as,
"exhibit B" and fully incorporated herein by reference.
6. The Appellant filed a pro se Notice of Appeal and Memorandum in Support of Jurisdiction,
which mailed by the Appellant with what was believed to be adequate time to comply with the
forty-five (45) day requirement contained within Rule II, Section 2(A)(1)(a), but the filing
failed to arrive at the Ohio Supreme Court for reasons not under the Appellants control.
7. The Appellant inadvertently calculated the mailing of the form with what he thouglit was
adequate time to negotiate the prison mail system. Appellant intended no disrespect in not
providing the original transmittat with in enough time to allow for any mis calculation on his
part.
8. The Appellant, as a pro se litigant, and did his best to comply with the requirements with the
limited resources that he has at his disposal as an indigent iimiate. The law Library at Belmont
Con•ectional has limited access, ie. "odd inmate numbers can only access on odd numbered day
and vice versa with even numbered inmates and days." This caused a hindrance in the Appellant
preparing his initial filing as well as the preparing of this Motion For Leave For Delayed Appeal
9. The Appellant has sought the assistance of an inmate law clerk to assist the imnate with the
filing of these documents so that his rights can be preserved.
10. Appellant believes he has suffered a critical injustice in the form of a wrongful conviction and
itnproper sentencing and is desirous of availing himself to every potential remedy for justice.
11. The Appellant apologizes for his previous mistake by not timely submitting his Appeal, and
affirmatively asserts that he will adhere to all applicable rules if the relief sought herein is
granted.
AFFIANT FURTHER SAYETII NAUGHT.
Subscribed and sworn to before me this 10`h day of May, 2010, by Donnie Reed.
I,k"tYirvrl i.. Doty
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Mt' i,;{ll!°nllu,im FX(7Ii'i:s(i - I4 ^a 6 Y'
NOTARY I'UBLIC
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATEOF OHIO,
PLAINTIFF-APPELLEE,
-VS-
DONNIE-RAY REED,
DEFENDANT-APPELLANT.
CASE NO. 09 MA 53
OPINION
CHARACTER OF PROCEEDINGS:
JUDGMENT:
APPEARANCES:For Plaintiff-Appellee:
For Defendant-Appellant:
JUDGES:Hon. Mary DeGenaroHon. Joseph J. VukovichHon. Cheryl L. Waite
Criminal Appeal from Common PleasCourt, Case No. 08CR531:
Affirmed.
Attorney Paul GainsMahoning County ProsecutorAttorney Ralph M. RiveraAttorney James MacDonaldAssistant Prosecuting Attorney21 W. Boardman Street, 6th FloorYoungstown, OH 44503
Attorney John D. FalgianiP.O. Box 8533Warren, OH 44484
Dated:
r-, !i- :aD',rC,. CL.EMK
(?a2ch_ 71, 2010
-1-
DeGenaro, J.
{11} This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs, and their oral arguments before this court. Appellant.Donnie Ray Reed
appeals the October 1, 2008 decision of the Mahoning County Court of Common Pleas
that imposed a jointly recommended six year prison sentence subsequent to accepting
Reed's guilty plea on one count ofRecklessNomicide, a third degree felony violation of
R.C. 2903:041, with a firearm specification under R.C. 2941.145(A).
{T`} Reed argues that his plea was not knowing, voluntary and inteliigent
because the trial court failed to define the elements of reckless homicide, and because
the trial court imposed more than a minimum sentence: Reed also argues that counsel
caused Reed's guilty plea to be less than voluntary, knowing and intelligent,because
counsel failed to inform Reed of the elements of reckless homicide or of the minimum
possible sentence for the offense. Reed also argues that counsel was ineffective
because counsel stayed silent during the sentencing hearing and did not present any
argument for a shorter sentence. Upon review, Reed's assignments of error are
meritless.
(13) The trial court was not required to define each element of reckless
homicide, and the trial court's subsequent sentencing decision did not affect the knowing,
voluntary, or intelligent nature of Reed's plea. Moreover, because the trial court imposed
Reed's jointly recommended sentence, his argument regarding non-minimum sentencing
is waived. Finally, Reed has failed to demonstrate that counsel caused his plea to be less
than voluntary knowing and intelligent, or that counsel was ineffective during Reed's
sentencing hearing. Accordingly, the trial court's decision is affirmed.
Facts and Procedural Historv
{1[4} On April 4, 2008, Reed shot Randy Davis in the head, resulting in Davis's
death. There was conflicting information as to whether the shooting had been purposeful
or accidental. On June 19, 2008, a grand jury indicted Reed on one count of murder, in
violation of R:C. 2903.02(A)(D), a first degree felony, along with a firearm specification
pursuant to R.C. 2941.145(A). Reed entered a plea of not guilty and was appointed
counsel.
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{¶5} Reed entered into a Crim.R. 11 plea agreement with the State on
September 25, 2008. Pursuant to the plea agreement, the State moved the trial court to
dismiss the murder count, amend theindictment to include onecount of reckless
homicide, and retain the firearm specification. Reed agreed to change his plea to guilty.
Reed and the State agreed to jointly recommend a three-year sentence for the reckless
homicide charge, consecutive to the three year firearm specification, for a total of six
{16} The trial court held a pleahearing onSeptember 25, 2008, and accepted
Reed's plea subsequent to conducting a Crim.R. 11colloquy. Reed waived pre-sentence
investigation, the parties jointly recommended thesentence; and the trial court accepted
their recommendation. Upon realizing that the victim's representative had not been
notified of the sentencing hearing, the trial court vacated the September 25 sentencing
hearing and conductedthe hearing anew on September30, 2008. Afterhearing the
victim impact statement, Reed's personal statement, and counsel's argument that the trial
court should not impose any higher a sentence than already recommended, the trial court
again accepted the jointly recommended sentence. The trial court memorialized these
proceedings in its October 1, 2008 judgment entry. This Court accepted Reed's delayed
appeal.
Substantial Compliance with Crim.R. 11(C)(2)(a) - Elements of Offense
{17} In his first of two assignments of error, Reed asserts:
{18} "Under the totality of the circumstances, appellant's plea was not given
knowingly and intelligently where the trial court failed to fully inform appellant of the
elements of the amended charge of reckless homicide at the sentencing hearing and in
imposed [sic] a total sentence in excess of the statutory minimum for the offense."
{¶9} Reed contends that the trial court erred in accepting his guilty plea because
it was not knowing, voluntary and intelligent. Reed argues that a knowing, voluntary and
intelligent plea was prevented by the trial court's failure to provide definitions of all
elements of the offense, as well as the trial court's departure from the statutory minimum
sentence for the offense.
{710} In a criminal case, a plea must be made knowingly, voluntarily and
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intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at
¶7; State v. Engle, 74 Ohio St.3d 525, 527; 1996-Ohio-179, 660 N.E.2d 450. If a plea is
not knowing, voluntary andintelligent, it has been obtained in violation of due process and
is void: State v. Martinez, 7th Dist, No, 03MA196, 2004-Ohio-6806, at ¶11, citing Boykin
v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed,2d 274.
{111} In order for a trial court to ensure that a defendant's pleais knowing,
voluntary and intelligent, it must engage the defendant in a colloquy pursuant to Crim.R.
11(C),,State v: Clark, 119 Ohio St:3d 239, 2008-Ohio-3748, 893 N.E;2d 462, at ¶25-26.
During the colloquy, the trial court is to provide specific information to the defendant,
including constitutionalrightsbeing waived (such astrial byjury and confrontation of
witnesses) and non-constitutional information (such as nature of the charges and the
maximumpenalty involved) before the judge may accept the plea. Crim.R. 11 (C)(2);
State v. Francis, 104 Ohio St.3d 494, 2004-Ohio-6894, 820 N . E.2d 355.
{¶12} A trial court must strictly comply with Crim.R. 11 regardingconstitutional
rights, and must substantially comply regarding non-constitutional rights. State v. Nero
(1990), 56 Ohio St.3d 106, 108, 564 N.E,2d 474. "Substantial compliance [with Crim.R.
111 means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving." Id. See, also,
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶31.
{113} Reed argues that his plea was not knowing, voluntary and intelligent and
that he did not have an understanding of the charge against him as required by Crim.R.
11(C)(2)(a) because the trial court did not explain the elements of reckless homicide.
However, Crim.R. 11(C)(2)(a) does not require a trial court to provide a detailed
explanation of the elements of the charges against a defendant. State v. Fitzpatrick, 102
Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶57. A trial court generally does not
need to explain the elements of any charge, where the defendant or counsel indicates on
the record that the nature of the offense has been explained to the defendant. Id, at ¶57-
59.
{¶14} The written plea agreement that Reed signed stated that "counsel has
advised me and I fully understand the nature of the charge(s) against me and the i
-4-
elements contained therein:" Additionally, during#he trial court's colloquy with Reed, the
following exchange took place:
{¶15} "The Court: Do you understand the charge of reckless homicide and all the
elements contained within it and the firearm specification and all the elements contained
within it?
{¶16} "The Defendant: Yes, Your Honor."
{¶17) * *
{¶18} "The Court: I have gone through this written plea of guiltyform with you. Did
you go through this form with your lawyer before you signed it?
{¶19} "The Defendant: Yes, Your Honor.
{¶20} "The Court. Do youfeel that you understand everything in this form and in
these proceedings?"
{121} "The Defendant: Yes, YourNonor.
{122} Given Reed's statement that he received an explanation of the elements of
the charged offense, and his statement that heunderstood the nature of the charges
against him, the totality of the circumstances indicates that Reed subjectively understood
the implications of his plea and the rights he was waiving. Although Reed now argues on
appeal that he in fact did not understand the elements of the reckless homicide charge,
there is no information in the record to support his argument. The trial court therefore did
not err in accepting Reed's guilty plea, as it was knowing, voluntary and intelligent.
{¶23} As an additional argument, Reed asserts that his plea was not knowing,
voluntary and intelligent because the trial court erroneously departed from the statutory
minimum sentence for Reed's offense.
{124} A trial court's selection of a particular sentence within the statutory range
does not have an effect on the knowing, voluntary and intelligent nature of a guilty plea,
as a sentencing decision is made subsequent to the entry of a plea. See State v.
Johnson (1988), 40 Ohio St.3d 130, 133-134, 532 N.E.2d 1295 ("Crim.R. 11 applies only
to the entry and acceptance of the plea. It has no relevance to the exercise of the trial
court's sentencing discretion at that stage * * *."). At the pleading stage, a defendant
must knowthe possible ramifications of his plea, not the future sentencing decision of the
-5-
trial court. Reed was informed that the trial court had the discretion to select any
sentence within the statutory range for Reed's offense, and was further informed of the
statutory range applicable for his offense. Thus the imposition of a non-minimum
sentence didnot undermine the knowing, voluntary and intelligent nature of Reed's plea.
{¶25} Moreover, the trial court's sentence followed the sentencing
recommendation jointly made by the State and Reed. Pursuant to R.C. 2953.08, "[a]
sentence imposed upon a defendant is not subject to review under this section if the
-sentence is authorized by law, has been recommended jointly by thedefendant and the
prosecution in the case, and is imposed by a sentencing judge." R.C. 2953:08(D)(1);
State v. Porterfield, 106 Ohio St.3d 5,2005-Ohio-3095, 829 N:E.2d 690, at ¶25. "A
sentence is 'authorized by law' and is not appealable within the meaning of R.C.
2953.08(D)(1) only if it comports with all mandatory sentencing provisions." State v.
Underwood, --- Ohio St.3d ---, 2010-Ohio-1, --- N.E.2d ---, at paragraph two of the
syllabus. An appellant continues to be barred by R.C. 2953.08 from challenging the
court's discretion in selecting a sentence pursuant to statutory provisions such as R.C.
2929.11 and R.C. 2929.12. Id. at ¶22.
{¶26} Here, the three year sentence for reckless homicide was within#he statutory
range of one to five years, and the three year sentence for the firearm specification
complied with the statutory mandate of three years. R.C. 2929.14(A)(3); R.C.
2929.14(D)(1)(a)(ii). There is no indication that Reed's sentence contravened any of the
applicable mandatory sentencing provisions. The sentence was jointly recommended by
Reed and the State, and the recommended sentence was imposed by the trial court.
Therefore Reed's sentence is not subject to review on appeal. Given the foregoing,
Reed's first assignment of error is meritless.
Ineffective Assistance of Counsel
{¶27} In his second assignment of error, Reed asserts:
{128} "The judgment entry and sentence of conviction should be vacated and
overturned for the reason that defendant had ineffective assistance of counsel and was
denied his Constitutional rights under the Sixth Amendment and the Ohio Constitution."
{129} Reed argues that he was denied the effective assistance of counsel
-6-
because trial counsel did not inform Reed of the elements of reckless homicide, or of the
statutory sentencing range for the offense. Reed further argues that counsel was
ineffective for failing to advocate more strenuously at Reed's sentencing hearing.
{130} To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy the two-pronged test of Strickland v. Washington (1984), 466U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674. First, the appellant must establish that counsel's
performance fell below an objective standard of reasonable representation. id. Second,
the appellant must demonstrate that he was prejudice,d by counsel'sperformance. Id. at
690. To establish prejudice, an appellant must show there is a reasonableprobability
that, but for counsel's errors, the result of the proceeding would have been different. Id. at
694.
{131} The appellant bears theburden of proof in demonstrating ineffective
assistance of counseC Statev.Calhoun, 86 Ohio St.3d279, 289; 1999-Ohio-102, 714
N.E.2d 905; State v. Smith (1985), 17 Ohio St.3d 98, 17 OBR 219, 477 N.E.2d 1128,
When evaluating an ineffective assistance of counsel claim, "(j]udicial scrutiny of
counsel's performance must be highly deferential." Strickland at 689. "Because of the
difficulties inherent in making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. If an appellant cannot
show how counsel's errors undermined the reliability of the court's decision, there is no
basis for finding that appellant's right to counsel had been violated. State v. Hancock,
108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, at ¶109; Strickland, at 693.
{132} In the first part of his argument, Reed claims that his attorney failed to
inform him about the elements of the charge against him as well as the statutory range for
the charge. Reed's argument is undermined by his statements at his plea hearing, as
well as his written guilty plea, which indicate that he was aware of the elements of the
reckless homicide charge, and that he was aware that the statutory sentencing range for
the charge was one to five years. Thus, Reed has not demonstrated that his plea was
less than voluntary, knowing and intelligent. Counsel's performance was therefore not
deficient with respect to Reed's submission of a guilty plea.
-7-
{¶33} In the second part of his argument, Reed claims that his attorney was
ineffective for standing silent at Reed's sentencing hearing and failing#o raise the issue of
mens rea at sentencing, given that Reed maintained that the shooting was accidental.
However, because the trial court accepted the jointly proposed sentence, there was little
that counsel could validly raise at Reed's sentencing hearing. Counsel's failure to argue
against a sentence that he himself recommended would be well within the realm of
reasonable representation. Additionally, Reed's claim that counsel stood silently during
the sentencinghearings is incorrect. During Reed's second sentencing hearing, counsel
spoke at length about the accidental nature of Reed's offense, and asked that the trial
court maintain its acceptance of the jointly recommended sentence, even in light of the
compelling victim impact statement given earlier in the hearing.
{134} Moreover, given that the trial court imposed the sentence that Reed joined
in requesting, there was not a reasonable probability that, but for his counsel's failure to
object, the outcome of Reed's sentencing hearing would have been different. Thus, Reed
has not satisfied either prong of the Strickland test, and he was not denied the effective
assistance of counsel at the sentencing stage of his proceedings. Accordingly, Reed's
second assignment of error is meritless.
{135} In conclusion, Reed's guilty plea was voluntary, knowing and intelligent, and
counsel was not ineffective at Reed's sentencing hearing. Accordingly, the judgment of
the trial court is affirmed.
Vukovich, P.J. , concu2h.i
Waite, J. , concu2h.i
APPROVED: