CLERK OF COURT SUPREME COURT 0F 0HI0 IN THE SUPREME COURT OF OHIO NO STATE OF OHIO

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO NO vs. Plaintiff-Appellee On Appeal from the Hamilton County Court of Appeals, First Appellate District SCOTT WHEAT Defendant-Appellant Court of Appeals Case Number C MEMORANDUM IN RESPONSE Joseph T. Deters ( P) Prosecuting Attorney Philip R. Cummings ( P) Assistant Prosecuting Attoniey Counsel of Record 230 East Ninth Street, Suite 4000 Cincinnati, Ohio (513) Fax No. (513) COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO Bernadette M. Longano ( ) Attorney at Law Lutz, Cornetet, Meyer, & Rush Co., LPA 123 Boggs Lane Cincinnati, Ohio ( ED COUNSEL FOR DEFENDANT-APPELLANT, SCOTT WHEAT SEP CLERK OF COURT SUPREME COURT 0F 0HI0

2 TABLE OF CONTENTS PAGE EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION STATEMENT OF THE CASE AND FACTS ARGUMENT FIRST PROPOSITION OF LAW: The trial court does not violate due process by participating in plea negotiations where the record reflects that 1) tbe trial court did not coercively negotiate a plea with Wheat, but rather, that it informed defendant it would accept the four year Department of Corrections plea, if defendant wished to enter it and 2) that defendant knowingly and intelligently later took the deal SECOND PROPOSITIONS OF LAW: 1. The record reflects neither that a motion to suppress would have been successful, nor that the trial judge was biased. Thus, no ineffective assistance of counsel is demonstrated. 2. Wheat waived his right to complain about constitutional violations not related to entry of his guilty plea - including a claim that defense counsel rendered ineffective assistance by failing to file a motion to suppress CONCLUSION CERTIFICATE OF SERVICE

3 IN THE SUPREME COURT OF OHIO STATE OF OHIO. NO Plaintiff-Appellee vs. SCOTT WHEAT MEMORANDUM IN RESPONSE Defendant-Appellant EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION The issues raised by defendant-appellant have already been resolved by this Court and other Ohio Courts. No issue of great public or general interest is presented, nor does any substantial constitutional question exist. Jurisdiction is properly denied. STATEMENT OF THE CASE AND FACTS On March 9, 2006, Scott Wheat was indicted as follows: CT1: CT2: Aggravated Robbery (A)(1)[Fl] Robbery (A)(3)[F3] Defendant pled not guilty and requested a clinic evaluation for a possible NGRI defense. (T.p. 3-5) Three days later, Wheat withdrew his request for an NGRI evaluation, and on May 24, 2006, Wheat pled guilty to Count One - Aggravated Robbery. Pursuant to a previously discussed plea agreement with the State and accepted by the court, the State dismissed Count Two of the indictment and the 1.

4 trial court sentenced Wheat to the Department of Corrections for four years. This was an agreed plea and sentence. The Court of Appeals affirmed. Facts: Anderson Township Life Squad members transported Scott Wheat to Anderson Mercy Hospital on March 2, Wheat was suffering a relapse from withdrawl from narcotics. Wheat told life squad members: "...lf 1 had known that detox was this bad, I would have just gone up and robbed the Walgreens up the street..." After treatment at the hospital, Wheat took a cab home. A few hours later on March 2, at 3:40 a.m., the Walgreens at 7135 Beechmont Avenue was robbed. A man armed with a black metal handgun demanded the pharmacist hand over hydromorphone narcotics. The suspect fled the store. Anderson Township Life Squad members heard the news and informed Sheriff's deputies about their life squad run with Wheat. The pharmacist identified Wheat from a photo array and a search warrant was prepared for Wheat's residence. Wheat was arrested at home - some narcotics and two BB pistols were recovered. Wheat confessed to the robbery on audio tape after being Mirandized. NGRI Request and Plea Negotiations On appeal, Wheat claims the trial court's involvement in plea negotiations rendered his guilty plea involuntary. Wheat premises this claim upon the trial judge's comments at a May 15, 2006 hearing at which Wheat requested an NGRI evaluation: "...MORNING SESSION - MAY 15, 2006 THE COURT: Did you want an NGRI? MR. BAKER: Yes. 2.

5 THE COURT: Assuming that comes back favorably, what happens at that point? MR. BAKER: Judge, depending on what it says, there may be a motion to suppress statements that will be relevant; otherwise, I will just set it for trial on that date. THE COURT: Do you understand that there doesn't seem to be a whole lot to talk about, but I offered - or suggested that I would sign off today and today only. MR. KADON: Are we on the record here, Judge? THE COURT: It doesn't matter. MR. BAKER: I will go up and talk to him one more time and make that clear to him before I get another date. If he chooses to go ahead and ask for the evaluation, he will at least do so with the understanding that what has been discussed with plea negotiations doesn't necessarily apply at a later date. THE COURT: Court offered package deal. MR. BAKER: Actually, could we bring him down and put that on the record. 3.

6 THE COURT: Sure: Do you want to bring Mr. Wheat down. (Off the record.) THE COURT: Next case is Scott Wheat. Mr. Wheat, there have been some discussions in this case trying to resolve this matter today. That you are currently charged with two counts, one robbery, one aggravated robbery. I suggested to your counsel that I would be willing to sign off on a total package of this, plus a community control violation for four years. With that proposal here today and today only, do you understand that? THE DEFENDANT: Yes, sir. THE COURT: Now you have a right to request a clinic evaluation to determine whether you will be successful or unsuccessful on NGRI. My understanding is that - it appears to be, the State has suggested in the presence of your attorney, one, that a confession, and two, a videotape showing you involved in the alleged conduct at W algreen's. So what do you want to do today? 4.

7 THE DEFENDANT: Take the evaluation..." (T.p. 3-5) It should be noted here that Wheat quickly and unhesitantly requested the evaluation AFTER the trial judge's comments. Three days later, Wheat withdrew his request for an NGRI evaluation. On May 24, 2006 Wheat retumed to court and pled guilty to Count One - the State dismissed Count Two - and Wheat received a four year Department of Corrections term, the same deal discussed with Wheat on May 15, (T.p. 18, 28) ARGUMENT FIRST PROPOSITION OF LAW: The trial court does not violate due process by participating in plea negotiations where the record reflects that 1) the trial court did not coercively negotiate a plea with Wheat, but rather, that it informed defendant it would accept the four year Department of Corrections plea, if defendant wished to enter it and 2) that defendant knowingly and intelligently later took the deal. Wheat first argues that the trial court's participation in the negotiation of his plea rendered it involuntary. A review of the record reveals, however, that the trial court's involvement was not coercive and that Wheat's ultimate plea was not involuntary. Crim. R. 11 of the Ohio Rules does not forbid the participation of trial judges in plea bargaining. However, a trial judge's participation in the plea bargaining process must be carefully scrutinized to determine if the judge's intervention affected the voluntariness of defendant's guilty plea. Although trial judges are cautioned against involvement in the plea-bargain process because 5.

8 of the potential for the accused's perception of coercion, judicial participation is not automatically reversible error.' Here, the record demonstrates that the trial court did not actively engage in plea negotiations with Wheat - it simply indicated it would sign-off on a four year Department of Corrections package that day only if Wheat plead. (T.p. 3-5) There never can be a plea bargain unless and until a trial court is willing to accept it. The trial court's involvement here was informative - not coercive.2 The court simply informed Wheat that the deal on the table was acceptable to the court. The court asked Wheat, given the ostensible evidence against him, what Wheat wished to do. Wheat unhesitantly responded that he wanted to pursue and NGRI evaluation - not the plea deal. And that is what occurred. In support of his claini that the trial court intimidated him into accepting the plea deal, Wheat cites State v. Ball, where the court found that the record demonstrated "that the trial judge went to great lengths to intimidate appellant into accepting a plea bargain."3 Nothing of the kind happened here. The trial coiu-t did not brow-beat Wheat. And Wheat stood his ground and requested an NGRI I State v. Byrd (1980), 63 Ohio St.2d 288, 17 0.O.3d 184, 407 N.E.2d In the following cases, the Court found that particular conduct engaged in by the trial court in the plea bargaining process was not so coercive as to justify the withdrawal of a defendant's guilty plea: Brown v. Peyton (1970, CA4 Va) 435 F2d 1352, cert den 406 US 931, 32 L Ed 2d 133, 92 S Ct 1785; People v. Darrah (1965) d 175, 210 NE2d 478, cert den US 919, 15 L Ed 2d 674, 86 S Ct 917, reh den 383 US 963, 16 L Ed 2d 306, 86 S Ct 1229; People v. Brock (1970) 45 Ill 2d 292, 259 NE2d 12; People v. Robinson (1974) App 3d 310, 308 NE2d 88; People v. Bannister (1974) 18 IIl App 3d 154, 309 NE2d 279; People v. Rudnicki (1975) 27 Ill App 3d 87, 327 NE 2d 303; People v. Fox (1975) 38 I11 App 3d 257, 345 NE2d 139; People v. Nickols (1976) 41 Il1 App 3d 974, 354 NE2d 474; People v. Goff (1970) 23 Mich App 117, 178 NW2d 123; State v. Tyler (1969, Mo) 440 SW2d 470; Bonner v. State (1976, Mo App) 535 SW2d 289; Dean v. State (1976, Mo App) 535SW2d 301; Toler v. State (1976, Mo App) 542 SW2d 80; Jones v. State (1979, Mo App) 581 SW 2d 386; Commonwealth v. Rothman (1972) 222 Pa Super 385, 294, A2d State v. Ball (1990), 66 Ohio App.3d 224, 226,583 N.E.2d 1094,

9 evaluation. Clearly, Wheat's behavior did not indicate a man terrified of the prospect of rejecting the plea bargain. Wheat's inaction after the hearing supports the conclusion that Wheat was a man contemplating his options - not a man coerced. Wheat did not withdraw his NGRI request for three days after the hearing. If, indeed, he felt so threatened by the "this day only" deal, Wheat could have contacted the court later the same day or the day after or the day after that... When Wheat ultimately plead guilty, the trial court properly questioned him to determine that his plea was voluntary and knowing. And the trial court indicated that it was going to sentence Wheat to the four years Department of Corrections term - the same term it discussed at the May 15, 2006 hearing. Wheat received the same deal. (T.p )" This record demonstrates that Wheat exercised a voluntary and intelligent choice with lcnowledge of the consequences of the guilty plea and the sentence. (And it also demonstrates the effectiveness of Wheat's counsel in securing the same deal for Wheat after Wheat's initial rejection of it) In short, the public's broad interest in the finality of guilty pleas outweighs Wheat's claim of coercion.s Wheat's first proposition of law is properly overruled. Compare State v. Mitchell (1997) 79 Ohio St.3d 1486, 683 N.E.2d 789. (Where the defendant was sentenced to a longer term than that offered in plea negotiation.) s State v. Ballard (1981) 66 Ohio St.2d 473, d 397 at 400, 423 N.E,2d 115,

10 SECOND PROPOSITIONS OF LAW: 1. The record reflects neither that a motion to suppress would have been successful, nor that the trial judge was biased. Thus, no ineffective assistance of counsel is demonstrated. 2. Wheat waived his right to complain about constitutional violations not related to entry of his guilty plea - including a claim that defense counsel rendered ineffective assistance by failing to file a motion to suppress. Lastly, Wheat contends he was denied his Sixth Amendment right to effective assistance of counsel due to his trial counsel's failure to file a motion to suppress and failure to request the trial judge's recusal. Defendant's claims fail. In Strickland v. Washington6, the United States Supreme Court enunciated the following twopronged standard for determining whether counsel's assistance was ineffective: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." It was held by the United States Supreme Court in Kimmelman v. Morrisone that "* ** the failure to file a suppression motion does not constitute per se ineffective assistance of counsel * * *." Rather, "[c]ounsel's competence * * * is presumed * * * and the defendant must rebut this ' (1984), 466 U.S Id. at (1986), 477 U.S. 365, at

11 presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. ***"9 Furthermore, it has been held that counsel is not required to do a futile act.10 Failure to File a Motion to Suppress There is nothing in the record to indicate that a motion to suppress Wheat's statements was warranted." Where the record contains no evidence which would justify the filing of a motion to suppress, an appellant has not met his burden ofproving that his attorney violated any essential. duty by failing to file the motion. " z Counsel is not required to do a futile act.13 The State further submits that Wheat waived this issue by pleading guilty.14 Failure to Request Recusal Not Ineffective Assistance of Counsel The record does not reflect that the trial judge below was biased against Wheat. Wheat cites to State v. Stafford15 to support his claim that the trial judge's eomments to Wheat about his plea were plain error. But Wheat's reliance on Stafford is misplaced. Tn Stafford, the trial judge was found to have imposed a harsher sentence (9 years) on Stafford because he had asserted his right to 9 Id., citing Strickland v. Washington (1984), 466 U.S. 668, See State v. Martin (1983), 20 Ohio App.3d 172, 174; State v. Moorman (1982),7 Ohio App.3d 251, 253; State v. Gibson (1980), 69 Ohio App.2d 91, Indeed, the police informed Wheat of his Miranda rights and Wheat volunteered his confession to Detective Joe Jones. 12 State v. Gibson (1980) 69 Ohio App. 2d State v. Martin (1983) 20 Ohio App. 3d 12. " See State v. Ketterer, 111 Ohio St.3d 70, 855 N.E.2d 48, Ohio Ohio App.3d 509, 817 N.E.2d 411, 2004-Ohio

12 a jury trial. Here, Wheat received the same plea deal on May 24, 2006 that he was offered on May 15, No bias or vindictiveness is demonstrated. Thus, the record does not support defendant's claim that his counsel failed him by failing to request the trial judge's recusal. Wheat's second proposition of law is properly overruled. Jurisdiction is properly denied. CONCLUSION Respectfully, Joseph T. Deters, P Prosecuting Attorney Philip R. Nmmings, P Assistant Prosecuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati, Ohio Phone: Attorneys for Plaintiff-Appellee CERTIFICATE OF SERVICE I hereby certify that I have sent a copy ofthe foregoing Memorandum in Response, by United States mail, addressed to Bernadette M. Longano ( ), Lutz, Cometet Meyer, & Rush Co., LPA, 123 Boggs Lane, Cincinnati, Ohio 45246, counsel of record, this ^ j day of September, Philip R. L ummings, P Assistant Prosecuting Attorney 10.