State v. Riley

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[Cite as State v. Riley, 2017-Ohio-5819.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : Plaintiff-Appellee, : vs. : DENNIS RILEY, : Defendant-Appellant. Case No. 16CA29 DECISION AND JUDGMENT ENTRY : _________________________________________________________________ APPEARANCES: William L. Burton, Marietta, Ohio, and George J. Cosenza, Parkersburg, West Virginia, for appellant. Kevin A. Rings, Washington County Prosecuting Attorney, and Jeremy B. Wolfe, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee. CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 6-27-17 ABELE, J. {¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that denied a “motion to dismiss” filed by Dennis Riley, defendant below and appellant herein. Appellant assigns the following errors for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN APPROVING BEHAVIOR OF THE POLICE OFFICER IN THE CASE.” THE SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN FINDING THE WASHINGTON, 16CA29 2 RELATIONSHIP CREATED BY ELLENWOOD WITH THE MINOR VICTIM AND OTHER BEHAVIOR BY ELLENWOOD CREATED EVIDENCE THAT WAS ‘ . . . MARGINALLY, IF AT ALL, IMPEACHABLE.” THIRD ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED BY REFUSING TO FIND THAT THE BEHAVIOR OF THE OFFICER AND THE MINOR VICTIM WAS RELEVANT AND MATERIAL AND, THUS, DISCOVERABLE.” FOURTH ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN FAILING TO ISSUE A RULING SUPPRESSING/ADDRESSING DEFENDANT’S CONVERSATION WITH COUNSEL.” FIFTH ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED BY USING EVIDENCE IN ITS DECISION UNKNOWN TO THE DEFENSE AND, APPARENTLY, GARNERED FROM THE TRIAL COURT’S IN-CAMERA INSPECTION OF NON-DISCOVERABLE EVIDENCE.” SIXTH ASSIGNMENT OF ERROR:1 “THE TRIAL COURT ERRED BY A PERSONAL ATTACK ON COUNSELS’ POSITION, DESPITE THE FACT THAT THE POSITION WAS BASED UPON THE UNCONTROVERTED OPINION OF DOCTOR MICHAEL D. LYMAN.” SEVENTH ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED BY TAKING AN ABSURD, ILLEGAL, AND TRAGIC TACK THAT THE DEFENDANT’S ULTIMATE GUILTY PLEA CAN BE USED TO DETERMINE THE QUALITY OF THE INVASION OF HIS DUE PROCESS RIGHTS THAT OCCURRED BEFORE THE PLEA.” 1 Appellant designates his last two assignments of error as “6A” and “6B.” We have re-designated them the sixth and seventh assignments of error. WASHINGTON, 16CA29 3 {¶ 2} On January 29, 2016, a Washington County grand jury returned an indictment that charged appellant with three counts of sexual battery, in violation of R.C. 2907.03(A)(7). Appellant entered not guilty pleas. {¶ 3} On April 21, 2016, appellant filed a motion to suppress all recorded and unrecorded statements that the investigating officer, Robert Ellenwood, overheard between appellant and defense counsel while the officer was present in appellant’s home.2 Appellant alleged that the officer was not lawfully on appellant’s premises and that the officer did not have the right to eavesdrop on or record a conversation between appellant and defense counsel. {¶ 4} Appellant and the state subsequently reached a plea agreement, and appellant withdrew his motion to suppress Officer Ellenwood’s statements. In particular, appellant agreed to plead guilty to one count of sexual battery, and the state agreed to dismiss the remaining two counts. The plea agreement recommended that appellant receive an 18-month prison term and that he be designated a Tier II Sex Offender. {¶ 5} The trial court held a change of plea hearing 3 and determined that appellant voluntarily, knowingly, and intelligently entered his guilty plea. The court subsequently found appellant guilty of sexual battery. {¶ 6} On July 1, 2016, the court held a sentencing hearing.4 At the sentencing hearing, 2 The record does not reveal the content of the conversation that the officer overheard and recorded. The state’s discovery materials, however, indicate that the recording contains inculpatory statements. 3 4 The record does not include the plea hearing transcript. The record does not include the sentencing hearing transcript. We also note that the trial court did not file its judgment entry of sentence until August 18, 2016. 4 WASHINGTON, 16CA29 the court imposed the 18-month sentence recommended in the plea agreement. {¶ 7} After the sentencing hearing, and before the trial court filed its sentencing entry, appellant learned of a news article that reported that Officer Ellenwood had been charged with telephone harassment. The article also reported that Officer Ellenwood engaged in text messaging with the underage victim of a sex crime whose case he was investigating, but that the Marietta Police Department indicated that nothing criminal in nature existed about the texts. {¶ 8} Based upon this information, appellant filed a motion to stay execution of his sentence, a motion to dismiss, and a motion to issue subpoenas. In his motion to dismiss, appellant raised two basic arguments. First, appellant argued that the trial court should allow him to withdraw his guilty plea. Appellant asserted that the state failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, thus, he could not have knowingly and intelligently entered his guilty plea. Appellant claimed that the state failed to disclose the existence of text messages between Officer Ellenwood and the victim. Appellant argued that the text messages contain evidence of an inappropriate, intimate relationship between Officer Ellenwood and the victim. Appellant asserted that the officer’s conduct undermines his credibility as a witness, as well as the credibility of the information that he obtained from the victim. Appellant contended that the officer likely used the relationship “to dissuade [the victim] from recanting her accusations.” Appellant thus argued that the evidence concerning Officer Ellenwood’s conduct would have allowed him to impeach the officer at trial and that the evidence constituted material evidence under Brady. Appellant argued that the state’s failure to disclose the evidence concerning Officer Ellenwood entitled him to withdraw his guilty plea and have his sentence vacated. WASHINGTON, 16CA29 5 {¶ 9} Second, appellant contended that if the trial court permitted him to withdraw his guilty plea, the court then must dismiss the indictment. Appellant asserted that “the behavior of Officer Ellenwood was so insidious and poisonous, both he and the accuser in this case should be prohibited from testifying,” thus making “a new trial * * * impossible.” Appellant claimed that the officer’s conduct tainted and rendered unreliable all of the state’s evidence. Appellant therefore argued that the court must dismiss the indictment. {¶ 10} Among the documents appellant submitted to support his argument is a copy of a Marietta Police report regarding the alleged inappropriate relationship between Officer Ellenwood and the victim. The report indicates that Officer Ellenwood’s wife contacted the Marietta Police Department and “reported several hundred text messages being exchanged between [Ellenwood] and [the victim].” The Marietta Police Chief requested the Sheriff’s Office to investigate. Sheriff detectives then met with the victim and the victim’s mother, and they permitted the detectives to analyze the victim’s phone. The analysis of the victim’s phone did not reveal any text messages that would lead anyone to believe she and Officer Ellenwood were in a relationship. Also, children services case worker interviewed the victim, and the victim denied any type of inappropriate relationship with Ellenwood. Ellenwood also denied any type of inappropriate relationship. The sheriff’s office closed the case as “unfounded.” {¶ 11} Appellant also submitted the affidavit of Michael D. Lyman, a self-described “expert witness in the area of police procedures.” Lyman opined that “at least 95% of the 517 text messages exchanged between * * * Ellenwood and the alleged 16-year-old victim * * * were unnecessary, inappropriate, and served no legitimate law enforcement of investigative purpose.” He further opined that “because the investigation was ongoing during the time of the 517 text 6 WASHINGTON, 16CA29 messages * * * it is likely that the overly-personal and inappropriate nature of the 517 text messages created an atmosphere whereby [the victim] was more subject to suggestion than she would have been had Officer Ellenwood maintained a proper, objective, and professional relationship with her. Thus, the reliability of any testimony provided by her should be viewed as highly questionable as it may have been improperly influenced by the police.” {¶ 12} Subsequently, the trial court conducted an in camera inspection of the evidence regarding the investigation into the relationship between Officer Ellenwood and the victim to determine whether a Brady violation had occurred. After its review, the court overruled appellants’ motions. The trial court found that the information relating to the investigation into the relationship between Officer Ellenwood and the victim is not relevant or material evidence pertaining to the criminal charges against appellant. The court determined that “[a]ll of the behavior alleged by the defense to be inappropriate occurred after the investigation, arrest, indictment, and pre-trial offer” and that the communications between the officer and the victim were not criminal. The court found that the text messages reveal that “the officer counseled the victim toward recovery from [appellant]’s behavior, encouraging her to read books, watch movies, go to church, make good choices, seek counseling to help her address what she was experiencing.” The court did not find the material to contain any exculpatory evidence and that it contains “marginally, if at all, impeachable” evidence. The court thus determined that none of the information constitutes relevant, material, or discoverable evidence. The court concluded that the information failed to establish that a manifest injustice occurred so as to permit appellant to withdraw his guilty plea or so as to warrant a dismissal of the charges. This appeal followed. 7 WASHINGTON, 16CA29 I {¶ 13} Because appellant’s first three assignments of error raise related issues, for ease of discussion we consider them together. In his first, second, and third assignments of error, appellant in essence, asserts that the trial court abused its discretion by denying his request to withdraw his guilty plea.5 Appellant basically asserts that the trial court erred by determining that the state’s failure to disclose the investigation regarding Officer Ellenwood’s relationship with the victim did not violate Brady. Appellant disagrees with the trial court’s determinations that the officer did not engage in an improper relationship with the victim, and that the evidence concerning the relationship is not material impeachment evidence. {¶ 14} Initially, we note that a guilty plea constitutes “an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), fn.2; Crim.R. 11(B)(1); accord United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (explaining that a guilty plea and subsequent conviction “comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence”). Therefore, a guilty plea “‘renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the 5 Appellant framed his motion a “motion to dismiss.” Within the text of that motion, however, appellant cited Crim.R. 32.1, the standard applicable to guilty plea withdrawals. We thus construe appellant’s “motion to dismiss” as a combined “motion to dismiss” and a motion to withdraw his guilty plea. Also, appellant’s “motion to dismiss” cited Crim.R. 33, which governs new trial motions. Crim.R. 33 new trial motions, however, are inapplicable when a defendant pleads guilty. See State v. Cooper, 8th Dist. Cuyahoga No. 100537, 2014-Ohio-2404, ¶20 (stating that Crim.R. 33(B) has no application to cases in which the defendant entered a guilty plea”). We further recognize that neither party has claimed that appellant’s “motion to dismiss” should be construed as an R.C. 2953.21 postconviction relief petition. See State v. Redavide, — N.E.3d —, 2016-Ohio-7804 (2nd Dist.); but see State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522. We therefore have no need to address the issue and express no opinion on its merits. WASHINGTON, 16CA29 8 way of conviction if factual guilt is validly established.’” State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶78, quoting Menna, 423 U.S. at 62, fn.2; accord State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶19. Consequently, a defendant who voluntarily, knowingly, and intelligently admits “in open court that he is in fact guilty of the offense with which he is charged * * * may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); Fitzpatrick at ¶78. In other words, a voluntary, knowing, and intelligent guilty plea waives any alleged constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional defects in the proceedings. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶105; State v. Storms, 4th Dist. Athens No. 05CA30, 2006-Ohio-3547, 2006 WL 1882428, ¶9. Consequently, a guilty plea “‘effectively waives all appealable errors at trial unrelated to the entry of the plea.’” Ketterer at ¶105, quoting State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the syllabus. {¶ 15} After the trial court imposes sentence, however, Crim.R. 32.1 gives a trial court discretion to allow a defendant to withdraw a guilty plea upon a showing of manifest injustice.6 State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶26; State v. Caraballo, 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). In general, a “manifest injustice” means “a clear 6 In the case sub judice, appellant filed his motion after the trial court imposed sentence at the sentencing hearing, but before the trial court journalized its sentencing entry. Ohio courts generally treat motions to withdraw a guilty plea “made after the court’s pronouncement of sentence but before the court’s filing of the sentencing entry * * * as postsentence motions.” State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, 2014 WL 7251568, ¶26 (citations omitted). We therefore construe appellant’s motion as a postsentence motion to withdraw his guilty plea that requires a showing of manifest injustice. Id. at ¶32. WASHINGTON, 16CA29 9 and openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998) (citation omitted). “Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶5. Accordingly, “a postsentence withdrawal motion is allowable only in extraordinary cases.” State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977); e.g., State v. Cassell, — N.E.3d —, 2017-Ohio-769, 2017 WL 837074, ¶25; State v. Yost, 4th Dist. Meigs No. 03CA13, 2004-Ohio-4687, ¶7. {¶ 16} Trial courts possess discretion when reviewing postsentence motions to withdraw a guilty plea, “and the good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by th[e trial] court.” Smith at paragraph two of the syllabus; accord Caraballo, 17 Ohio St.3d at 67. Thus, appellate review of trial court decisions regarding postsentence Crim.R. 32.1 motions to withdraw a guilty plea is deferential. Consequently, a reviewing court should not disturb a trial court’s ruling concerning a postsentence motion to withdraw a guilty plea unless the court abused its discretion. Caraballo, 17 Ohio St.3d at 67. An “abuse of discretion” means that the court acted in an “‘unreasonable, arbitrary, or unconscionable’” manner or employed “‘a view or action that no conscientious judge could honestly have taken.’” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–1966, 15 N.E.3d 818, ¶67, quoting State v. Brady, 119 Ohio St.3d 375, 2008–Ohio–4493, 894 N.E.2d 671, ¶23. Moreover, a trial court generally abuses its discretion when it fails to engage in a “‘sound reasoning process.’” State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, ¶14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio 10 WASHINGTON, 16CA29 St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally, “[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013–Ohio–966, 986 N.E.2d 971, ¶34. {¶ 17} In the case at bar, appellant asserts that the trial court abused its discretion by failing to determine that withdrawal of his plea is necessary to correct a manifest injustice. Appellant claims that allowing his plea to stand when the state failed to disclose what he believes constitutes material impeachment evidence under Brady deprived him of the ability to enter a knowing and intelligent plea and demonstrates a manifest injustice. {¶ 18} Enforcing a plea that the defendant did not enter in a knowing, intelligent, and voluntary manner is “‘unconstitutional under both the United States Constitution and the Ohio Constitution.’” State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Therefore, a defendant ordinarily may establish a manifest injustice within the context of Crim.R. 32.1 by showing that he did not enter the guilty plea in a knowing, intelligent, or voluntary manner. State v. Fry, 7th Dist. Mahoning No. 12MA156, 2013-Ohio-5865, 2013 WL 6918639, ¶12 (“A guilty plea that was not entered knowingly, intelligently, or voluntarily, creates a manifest injustice that would entitle a defendant to withdraw a guilty plea.”); State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012–Ohio–199, ¶13 (“If a defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of due process and is void.”); State v. Hall, 4th Dist. Jackson No. 99CA847, *2 (Feb. 25, 2000) “(A trial court violates a defendant’s due process rights, and hence may produce a manifest injustice, if it accepts a guilty plea that the defendant did not enter knowingly, intelligently, and voluntarily.”); accord State v. Salter, 10th Dist. Franklin Nos. 11 WASHINGTON, 16CA29 15AP-968 and 15AP-970, 2016-Ohio-4772, 2016 WL 3574564, ¶14; State v. Martinez, 10th Dist. Franklin No. 13AP-704, 2014-Ohio-2425, 2014 WL 2565890, ¶20; State v. Bush, 3d Dist. Union No. 14–2000–44, 2002–Ohio–6146, ¶11; State v. Beck, 1st Dist. Hamilton Nos. C–020432, C–020449, C–030062, 2003–Ohio–5838, ¶8. {¶ 19} An appellate court that is evaluating whether a defendant voluntarily, knowingly, and intelligently entered a guilty plea ordinarily begins its inquiry by independently reviewing the record to ensure that the trial court complied with the constitutional and procedural safeguards contained within Crim.R. 11(C)(2).7 State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1995); State v. Kelley, 57 Ohio St.3d 127, 128, 566 N.E.2d 658 (1991) (“When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11 have been followed.”); see State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶13 (“Before accepting a guilty or no-contest plea, the court must make the determinations and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).”). Crim.R. 11(C)(2) states: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon 7 As an aside, we note that this plenary standard of review applicable to the entry of a guilty plea appears somewhat at odds with the discretionary standard of review that applies to Crim.R. 32.1 postsentence motions to withdraw a guilty plea. WASHINGTON, 16CA29 12 acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. {¶ 20} Additionally, the United States Supreme Court has established various other principles that guide a reviewing court’s inquiry into the voluntary, intelligent, and knowing nature of a guilty plea. For instance, “[t]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). Moreover, “[a] defendant is not entitled to withdraw his plea merely because he discovers * * * after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.” Id. Consequently, the Constitution does not require that a defendant “be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought * * *.” Id. Furthermore, “a counseled defendant may not make a collateral attack on a guilty plea on the allegation that he misjudged the admissibility of his confession.” Broce, 488 U.S. at 572. Instead, “‘[w]aiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.” McMann, 397 U.S. at 770. {¶ 21} In the case at bar, appellant does not argue that the trial court failed to comply 13 WASHINGTON, 16CA29 with any particular aspect of Crim.R. 11(C)(2). Instead, appellant asserts that he did not voluntarily, knowingly, and intelligently enter his guilty plea due to the state’s failure to disclose allegedly favorable and material impeachment evidence. Appellant claims that he could not have entered his plea in a voluntary, knowing, or intelligent manner without complete knowledge of the information pertaining to Officer Ellenwood’s relationship with the victim. Appellant argues that he could have used the information at trial to impeach both the officer and the victim. Appellant contends that because the material contained impeachment information, then under Brady v. Maryland, the state had a duty to disclose it to him before entering into plea negotiations. Appellant further claims that the state’s failure to disclose the information deprived him of his due process right to a fair trial (or plea proceeding). We therefore must determine whether the Brady rule applies when a defendant waives his right to a fair trial under Crim.R. 11(C)(2). {¶ 22} In Brady v. Maryland, the court held that the prosecution’s suppression of evidence that is favorable to an accused and that is material to either guilt or punishment violates a criminal defendant’s due process right to a fair trial. Accord Weary v. Cain, — U.St. —, 136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016); Smith v. Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012); United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); State v. Johnston, 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). To establish that the prosecution’s failure to disclose evidence violated a defendant’s due process right to a fair trial, the defendant must establish each of the following: (1) the evidence at issue is “favorable to the accused, either because it is exculpatory, or because it is impeaching”; (2) the [prosecution] suppressed the evidence, “either willfully or inadvertently” and (3) “prejudice * * * ensued.” WASHINGTON, 16CA29 14 Skinner v. Switzer, 562 U.S. 521, 536, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), quoting Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). {¶ 23} Evidence that is favorable to an accused means evidence that “if disclosed and used effectively, * * * may make the difference between conviction and acquittal.” Bagley, 473 U.S. at 676. Favorable evidence to an accused includes both exculpatory and impeachment evidence. Id. at 676, citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) (“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend”). Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 682; Weary, 136 S.Ct. at 1006. “The defendant has the burden to prove a Brady violation rising to the level of a due-process violations.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, 102. {¶ 24} The Brady rule exists principally to protect a criminal defendant’s right to a fair trial. Bagley, 473 U.S. at 675-676, quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“For unless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose”); United States v. Moussaoui, 591 F.3d 264, 285 (4th Cir. 2010) (“The Brady right, however, is a WASHINGTON, 16CA29 15 trial right * * * and exists to preserve the fairness of a trial verdict and to minimize the chance that an innocent person would be found guilty.”). The purpose of the Brady rule is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. Bagley, 473 U.S. at 675 (footnotes omitted). {¶ 25} When a defendant pleads guilty, however, concerns regarding a defendant’s right to a fair trial “are almost completely eliminated because” the defendant admitted guilt. Moussaoui, 591 F.3d at 285 (citations omitted). Accordingly, “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 628 and 633, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.2d 125, ¶29 (“Ruiz plainly holds that the state is not required to disclose impeachment evidence to a defendant before the defendant pleads guilty.”). {¶ 26} In Ruiz, the court considered whether a criminal defendant’s guilty plea waives the right, encompassed within the right to a fair trial, to disclosure of material impeachment information. Id. at 628. The Ninth Circuit Court of Appeals “held that a guilty plea is not ‘voluntary’ (and that the defendant could not, by pleading guilty, waive her right to a fair trial) unless the prosecution first made the same disclosure of material impeachment information that the prosecutors would have had to make had the defendant insisted upon a trial.” Id. at 629. The United States Supreme Court disagreed with the Ninth Circuit and concluded that the Constitution does not require “preguilty plea disclosure of impeachment information.” Id. The 16 WASHINGTON, 16CA29 court explained that the United States Constitution does not require “prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose ‘impeachment information relating to any informants or other witnesses.’” Id. at 625. {¶ 27} In reaching its decision, the court first examined whether a criminal defendant’s preguilty plea ignorance of impeachment information affects the voluntary nature of a guilty plea. The court recognized that a defendant who enters a guilty plea waives significant constitutional guarantees, such as the right to a fair trial, the privilege against self-incrimination, the right to confront one’s accusers, and the right to trial by jury. Id. at 628-629. The court thus stated: Given the seriousness of the matter, the Constitution insists, among other things, that the defendant enter a guilty plea that is “voluntary” and that the defendant must make related waivers “knowing[ly], intelligent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 629, quoting Brady v. United States, 397 U.S. at 748. {¶ 28} The court determined that “impeachment information is special * * * not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’),” but instead, “in relation to the fairness of a trial.” Id. (emphasis sic). The court agreed that “the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will be.” Id. The court found, however, that “the Constitution does not require the prosecutor to share all useful information with the defendant.” Id. (citation omitted). Instead, the court explained: [T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances–even if the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, WASHINGTON, 16CA29 17 who will likely serve on the jury, or the particular lawyer the State might otherwise provide. It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant’s own impeachment knowledge of the prosecution’s potential case–a matter that the Constitution does not require prosecutors to disclose. Id. at 629-630 (citation omitted) (emphasis sic). The court additionally observed that a plea does not become unknowing simply because a defendant does not have “complete knowledge of the relevant circumstances” or labors under “various forms of misapprehension.” Id. at 630 (citations omitted). {¶ 29} The court further concluded that “due process considerations * * * argue against the existence of” a right to preguilty plea disclosure of impeachment information. Id. at 631. The court found that “a constitutional obligation to provide impeachment information during plea bargaining, prior to entry of a guilty plea, could seriously interfere with the Government’s interest in securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice.” Id. The court thus held “that the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” Id. at 633. {¶ 30} We believe that Ruiz is dispositive of appellant’s first, second, and third assignments of error. Although we may not fully agree with this particular view, Ruiz holds that appellant had no constitutional right to preguilty plea disclosure of material impeachment information (we presume, for the sake of argument, that the information regarding Officer Ellenwood constitutes material impeachment information). Thus, the state’s failure to disclose 18 WASHINGTON, 16CA29 the information before appellant entered his guilty plea did not deprive appellant of a fair trial and did not render his guilty plea less than voluntary, knowing, and intelligent. Accordingly, the state’s failure to disclose the alleged impeachment evidence does not demonstrate a manifest injustice. See Ferra v. United States, 456 F.3d 278, 291 (1st Cir. 2006) (“Even though [appellant] obviously would be interested in knowing all the strengths and weaknesses of the government’s proof before deciding whether to plead guilty or risk a trial, the government’s refusal to render the whole of its case transparent before a defendant makes that election does not, in the ordinary course, constitute the kind of severe misconduct that is needed to render a plea involuntary.”). {¶ 31} We further observe that appellant did not allege that the evidence regarding Officer Ellenwood’s relationship with the victim is exculpatory.8 Rather, appellant asserts that the evidence would have allowed him to impeach, or discredit, Officer Ellenwood and the victim. We therefore have no need to determine whether the Ruiz rule applies to both impeachment and exculpatory evidence, or if it is limited to impeachment evidence. See Petegorsky, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea 8 In general, an “exculpatory statement or evidence,” means: A statement or other evidence which tends to justify, excuse or clear the defendant from alleged fault or guilt. State v. Cobb, 2 Ariz.App. 71, 406 P.2d 421, 423. Declarations against declarant’s interest which indicate that defendant is not responsible for crimes charged. U.S. v. Riley, C.A. Iowa, 657 F.2d 1377, 1385. Evidence which extrinsically tends to establish defendant’s innocence of crimes charged as differentiated from that which although favorably, is merely collateral or impeaching. Com. v. Jeter, 273 Pa.Super. 83, 416 A.2d 1100, 1102, for purposes of rule constraining State from disposing of potentially exculpatory evidence, is evidence which clears or tends to clear accused person from alleged guilt. Gibson v. State, 110 Idaho 631, 718 P.2d 283, 285. State v. Davis, 2nd Dist. Montgomery No. 18172, 2001 WL 10037, *2–3, quoting Black’s Law Dictionary, 6th Edition, 566. 19 WASHINGTON, 16CA29 Bargaining, 81 Fordham L. Rev. 3599, 3602 (2013) (noting conflicting opinions regarding this issue among United States Circuit Courts of Appeal). {¶ 32} Accordingly, based upon the foregoing reasons, we overrule appellant’s first, second, and third assignments of error. II {¶ 33} In his fourth assignment of error, appellant asserts that the trial court erred by failing to rule on his motion to suppress Officer Ellenwood’s statements. Appellant, however, agreed to withdraw the motion when he entered his guilty plea. Moreover, his guilty plea waived the right to argue that a violation of his constitutional rights occurred at a point in time before he entered his guilty plea. E.g., Tollett, 411 U.S. at 267; State v. Sharpe, 4th Dist. Hocking No. 14CA9, 2015-Ohio-2128, 2015 WL 3513337, ¶9; State v. Johnson, 4th Dist. Hocking No. 14CA16, 2015–Ohio–854, ¶¶5–6. {¶ 34} Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth assignment of error. III {¶ 35} In his fifth assignment of error, appellant asserts that the trial court erred by relying upon evidence that it reviewed in camera when ruling upon appellant’s motions. Appellant, however, cites no authority to support this proposition. {¶ 36} Under App.R. 16(A)(7), an appellant’s brief shall include “[a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.” Appellate courts do not have any duty “to WASHINGTON, 16CA29 20 root out” an argument in support of an assignment of error. Prokos v. Hines, 4th Dist. Athens Nos. 10CA51 and 10CA57, 2014-Ohio-1415, 2014 WL 1339676, ¶55; Thomas v. Harmon, 4th Dist. Lawrence No. 08CA17, 2009–Ohio–3299, ¶14; State v. Carman, 8th Dist. Cuyahoga No. 90512, 2008–Ohio–4368, ¶31. “It is not the function of this court to construct a foundation for [an appellant’s] claims; failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal.” Cantanzarite v. Boswell, 9th Dist. Summit No. 24184, 2009–Ohio–1211, ¶16, quoting Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (9th Dist. 1996). Appellate courts possess discretion to disregard any assignment of error that fails to include citations to the authorities in support. Robinette v. Bryant, 4th Dist. Lawrence No. 14CA28, 2015-Ohio-119, 2015 WL 223007, ¶33; State v. Adkins, 4th Dist. Lawrence No. 13CA17, 2014–Ohio–3389, ¶34, citing Frye v. Holzer Clinic, Inc., 4th Dist. Gallia No. 07CA4, 2008–Ohio–2194, ¶12; App.R. 12(A)(2). {¶ 37} In the case sub judice, appellant failed to cite authority to support his fifth assignment of error. Consequently, we will not address this “undeveloped argument[] or assume [appellant]’s duty and formulate an argument for him.”9 State v. Palmer, 9th Dist. Summit No. 28303, 2017-Ohio-2639, 2017 WL 1749087. {¶ 38} Accordingly, based upon the foregoing reasons, we overrule appellant’s fifth assignment of error. 9 We believe, however, that any error that the court may have arguably committed by conducting an in camera review of alleged Brady evidence constitutes harmless error. Assuming, arguendo, that the court erred by conducting an in camera review of alleged Brady material, appellant cannot show that the court’s alleged error would render Ruiz inapplicable and would allow him to withdraw his guilty plea. See Crim.R. 52(A) discussion, infra. 21 WASHINGTON, 16CA29 IV {¶ 39} In his sixth and seventh assignments of error,10 appellant challenges the following statement contained in the trial court’s decision: In the context of this case and the allegations of sexual activity which have been admitted by the Defendant, the repeated allegations of an “inappropriate relationship” between Officer Ellenwood and the victim is in itself grossly inappropriate. Appellant contends that his expert, and not the defense, characterized the relationship as “inappropriate.” He also asserts that his guilty “plea cannot be used as a measuring stick to examine the behavior of the officer prior to [the] plea to see if it is material.” {¶ 40} We, however, believe that our disposition of appellant’s first, second, and third assignments of error render his sixth and seventh assignments of error moot. We determined that pursuant to Ruiz, the state did not have any duty to disclose the alleged impeachment evidence before appellant entered his guilty plea. Thus, whether the trial court incorrectly determined that the evidence was not material impeachment information or contained evidence of an “inappropriate relationship” is no longer of consequence to our decision. Therefore, these arguments are moot and we need not address them. App.R. 12(A)(1)(c). {¶ 41} Moreover, assuming, arguendo, that the trial court improperly attributed the “inappropriate relationship” language to defense counsel, instead of appellant’s expert, appellant has not shown that this alleged error would constitute reversible error. An appellate court may not correct an error unless the error affected the defendant’s substantial rights, i.e., the error must 10 We again point out that we have re-designated appellant’s assignments of error “6A” and “6B” as the sixth and seventh assignments of error, respectively. 22 WASHINGTON, 16CA29 have affected the outcome of the trial. State v. Fisher, 99 Ohio St.3d 127, 2003–Ohio–2761, 789 N.E.2d 222, ¶7; Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”). Appellant cannot show that any error the court may have committed by attributing the “inappropriate relationship” language to the defense affected the outcome of the court’s decision to reject his request to withdraw his guilty plea. {¶ 42} Accordingly, based upon the foregoing reasons, we overrule appellant’s sixth and seventh assignments of error and affirm the trial court’s judgment.11 JUDGMENT AFFIRMED. 11 We observe that in the “conclusion” portion of appellant’s brief, appellant suggests that if we do not reverse the trial court’s decision rejecting his request to withdraw his guilty plea, we should at least remand for an evidentiary hearing. Appellant did not, however, frame this as an assignment of error. App.R. 12(A)(1)(b) states that an appellate court shall “[d]etermine the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16.” App.R. 12(A)(2) permits an appellate “court [to] disregard an assignment of error presented for review if the party raising it * * * fails to argue the assignment separately in the brief, as required under App.R. 16(A).” We also note that a trial court need not hold an evidentiary hearing regarding a postsentence withdrawal motion “if the facts alleged by the defendant, even if accepted as true, would not require the court to grant the motion to withdraw the guilty plea.” State v. Layne, 4th Dist. Highland No. 11CA17, 2012-Ohio-1627, ¶5. As we previously indicated, Ruiz forecloses appellant’s claim that the prosecution had a duty to disclose material impeachment evidence prior to entering plea negotiations. Thus, an evidentiary hearing would appear to be unnecessary. In his “conclusion,” appellant further posits that if we do not agree that he should be entitled to withdraw his guilty plea, or at least receive a hearing, then we “could” dismiss “the entire case.” Appellant has not formulated an assignment of error concerning this argument, and we therefore do not address it. App.R. 12(A)(1)(b) and (A)(2). We note, however, that the record presented on appeal does not contain any evidence to indicate that dismissal of the entire case is warranted. WASHINGTON, 16CA29 23 Hoover, J., concurring in judgment and opinion in part and concurring in judgment only in part with opinion. {¶ 43} I concur in the judgment and opinion of the lead opinion as to Assignments of Error Four, Five, Six, and Seven. However, I respectfully concur in the judgment only as to Assignments of Error One, Two, and Three of the lead opinion. I write separately to note my misgivings with the application of United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.E.2d 586 (2002) to this case. {¶ 44} The lead opinion relies upon Ruiz, supra at 628 and 633, for the proposition that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” {¶ 45} However, I have doubts as to the applicability of Ruiz to the facts of this case. I believe that the lead opinion’s application of Ruiz may be too broad because Ruiz is distinguishable from the case sub judice. In Ruiz, Immigration agents found thirty kilograms of marijuana in Angela Ruiz’s luggage, after which federal prosecutors offered her what is known in the Southern District of California as a “fast track” plea bargain. A “fast track” plea bargain asks a defendant to waive indictment, trial, and an appeal. In return, the government agrees to recommend to the sentencing judge a two-level departure downward from the otherwise applicable United States Sentencing Guidelines sentence. *** [Ruiz] did not make a written discovery demand for all “exculpatory” evidence. In WASHINGTON, 16CA29 24 fact, Ruiz did not make a discovery demand at all. Rather, the government’s proposed “fast track” plea agreement required Ruiz to acknowledge that the government had turned over “any [known] information establishing the factual innocence of the defendant” and provided the government’s acknowledgement that it has a continuing duty to provide such information. Ruiz refused to accept the “fast track” plea agreement because of its requirement that she also waive the right to receive “impeachment information relating to any informants or other witnesses.” In its analysis, the Court considered it relevant that Ruiz was protected both by the provision in the federal “fast track” plea agreement requiring the government to provide her “any information establishing the factual innocence of the defendant,” and by other guilty-plea safeguards contained in the federal rules. (Citations omitted.) State v. Harris, 266 Wis.2d 200, 667 N.W.2d 813, ¶¶ 16 and 27 (Wis.App.2003). {¶ 46} In Harris, a Wisconsin appellate court found Ruiz to be inapplicable to the state proceeding. Id. at ¶¶ 15, 27-30. The appellate court found that the state had violated Harris’s constitutional and statutory rights by failing to disclose potentially exculpatory evidence when Harris had demanded such evidence. Id. at ¶¶ 36, 46. Thus, the court found that a manifest injustice had occurred. Id. at ¶ 47. {¶ 47} Similar to the Harris case, Riley was prosecuted by a state court—Ohio—and not a federal court. Riley was likewise not protected by a specific provision such as that found in the federal “fast track” agreement offered to Ruiz. Furthermore, Riley was not protected by the WASHINGTON, 16CA29 25 guilty-plea safeguards contained in the Federal Rules of Criminal Procedure. {¶ 48} Moreover, in contrast to Ruiz, Riley made a motion for discovery which specifically requested “[a]ny exculpatory material known or by the exercise of due diligence may become known to the attorney for the State.” Riley thus invoked the State’s constitutional obligation, as well as the obligation under the Rules of Criminal Procedure, to comply. {¶ 49} As a result of the basic differences set forth above, I believe that Ruiz does not apply to this case. Nonetheless, I must note that the Ohio Supreme Court has relied upon the Ruiz holding on two occasions. See Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St.3d 415, 2010-Ohio-282, 923 N.E.2d 125, ¶ 29 (“Ruiz plainly holds that the state is not required to disclose impeachment evidence to a defendant before the defendant pleads guilty.”); State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 35 (“Ruiz supports the state’s argument as it pertains to the disclosure of impeachment evidence.”) (Emphasis sic.). {¶ 50} As the lead opinion states, although we may not fully agree with this particular view, we are bound to follow our highest court’s precedent. Therefore, despite my doubts concerning the application of Ruiz to the case at bar, I still concur with the judgment of the lead opinion with respect to Assignments of Error One, Two, and Three. I concur in the judgment and opinion with respect to Assignments of Error Four, Five, Six, and Seven. 26 WASHINGTON, 16CA29 JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Hoover, J.: Concurs in Judgment & Opinion as to Assignments of Error 4, 5, 6 & 7; Concurs in Judgment Only as to Assignments of Error 1, 2 & 3 with Concurring Opinion. Harsha, J.: Concurs in Judgment Only. For the Court BY: Peter B. Abele, Judge 27 WASHINGTON, 16CA29 NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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