[Cite as State v. Weakley, 2017-Ohio-8404.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105293




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  LAMONT WEAKLEY
                                                    DEFENDANT-APPELLANT




                                     JUDGMENT:
                                 REVERSED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-600835-A

        BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Chief Public Defender
BY: Cullen Sweeney
       Noelle A. Powell
Assistant Public Defenders
301 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: James D. May
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Lamont Weakley appeals his convictions after a jury

found him guilty of 20 counts arising out of a scheme to use personal information stolen

from patients of American Dental Centers to obtain fraudulent lines of credit and make

purchases at various retail stores (the “fraudulent credit scheme”).     Weakley contends

that his convictions should be vacated and a plea agreement enforced because he was

denied the effective assistance of counsel during plea negotiations and at trial. He also

contends that the trial court erred in denying his motions for a mistrial and a new trial

after a witness testified regarding his prior incarceration during her direct examination

and a document, which was not admitted into evidence, referencing his probation for a

federal offense was included with the exhibits given to the jury during their deliberations.

 Finally, Weakley contends that the jury’s verdict of forfeiture was not supported by

sufficient evidence.     For the reasons that follow, we reverse the trial court’s judgment,

vacate Weakley’s       convictions and remand for further proceedings.

       Factual and Procedural Background

       {¶2} On December 1, 2015, a Cuyahoga County Grand Jury indicted Weakley on

34 counts of a 45-count indictment for his role in the fraudulent credit scheme as follows:

       • one count of engaging in a pattern of corrupt activity (Count 1);

       • two counts of conspiracy (Counts 2 and 3);

       • 13 counts of identity fraud (Counts 4, 5, 13, 19, 21, 23, 25, 29, 31, 35, 39, 41
       and 43);

       • two counts of receiving stolen property (Counts 7 and 8);
      • one count of having a weapon while under disability (Count 9);

      • two counts of telecommunications fraud (Counts 10 and 11);

      • one count of aggravated theft (Count 12);

      • seven counts of grand theft (Count 14, 20, 24, 26, 32, 40 and 42);

      • two counts of theft (Count 22 and 36);

      • one count of petty theft (Count 30);

      • one count of money laundering (Count 44) and

      • one count of possessing criminal tools (Count 45).

A number of the counts included a forfeiture of weapon specification, a forfeiture of

property specification and a one-year firearm specification.     Two codefendants —

Melissa Coles and Dewayne McDaniel — were also indicted in connection with the

fraudulent credit scheme.

      {¶3} Patrece Wheatley, with whom Weakley had a long-term, “off and on”

relationship, was Weakley’s alleged source of the personal information used in the

fraudulent credit scheme.    Wheatley admitted stealing patient information she was

entrusted to handle as a financial advisor for American Dental Centers including names,

addresses, dates of birth and social security numbers and giving that information to

Weakley at his request. Weakley, along with his two codefendants, allegedly used that

information to create fake driver’s licenses and identification cards in the names of the

alleged victims, establish lines of credit in the names of the alleged victims and make
various purchases, including purchases of jewelry, clothing, gift cards and cell phones

using the credit that had been established.

       {¶4} In October 2015, police arrested Weakley for his role in the scheme. After

his arrest, Wheatley contacted the Richmond Heights police about picking up Weakley’s

personal belongings. When Wheatley arrived at the police station to collect Weakley’s

belongings, she was questioned by the police. During questioning, Wheatley disclosed

that she had previously retrieved two bags of Weakley’s belongings from a house on Coit

Road in Cleveland and that she had those bags in her garage. Police detectives drove

Wheatley home and she gave them the bags of Weakley’s belongings. Among the items

inside the bags were folders containing the patient information Wheatley had allegedly

given to Weakley, driver’s licenses and identification cards for several of the victims with

Weakley’s or Cole’s photographs, jewelry, receipts in other people’s names and a loaded

firearm. The fraudulent credit scheme allegedly involved 16 victims and $253,806 in

credit was allegedly obtained through the scheme.

       {¶5} After plea negotiations fell apart, the state dismissed counts 7, 10, 11 and

44, and the case proceeded to a jury trial on the remaining 30 counts. Defense counsel

did not request bifurcation of any of the counts prior to trial.

       {¶6}    At trial, the state presented testimony from ten witnesses including

Wheatley, codefendant Coles, two Richmond Heights police detectives who investigated

the fraudulent credit scheme, a forensic scientist from the Ohio Bureau of Criminal

Investigation who testified regarding the presence of Weakley’s DNA on the firearm
found in one of the bags Wheatley turned over to police and five of the alleged victims.

The state also presented numerous exhibits including fake driver’s licenses and

identification cards, credit account information, temporary retail credit cards and

shopping passes, receipts, photographs of the alleged perpetrators and various items

purchased using the fraudulently obtained credit, including gift cards, cell phones and

jewelry.

      Patrece Wheatley’s Testimony Regarding Weakley’s Incarceration

      {¶7}     Wheatley was the state’s first witness. A few minutes into her direct

examination, the state inquired whether Weakley had ever asked her for money. In

response, Wheatley testified as follows:

      Q. Okay. Did he ever ask you for money?

      A. Yes.

      Q. He did?

      A. Yes.

      Q. What kind of money?

      A. Just $100 here and there.

      Q.     $100 here and there?

      A. Mm–hmm.

      Q. Did it become a regular kind of thing?

      A. Only when he was incarcerated.
       {¶8} Because of the reference to Weakley’s prior incarceration, defense counsel

moved for a mistrial.        He argued that Wheatley’s testimony was prejudicial,

notwithstanding his prior stipulation that Weakley had been convicted of a felony,

because it suggested that there were multiple times in which Weakley was incarcerated.



       {¶9} The trial court rejected Weakley’s interpretation of Wheatley’s testimony and

denied the motion for a mistrial, concluding that the error was harmless because the jury

already knew Weakley had a prior felony conviction:

       THE COURT: Okay, go ahead and be seated. Okay, we came to side bar
       because the witness mentioned quote, “Only when he was incarcerated.”
       So my suspicion is when we came to side bar and [defense counsel] said he
       wanted to make a motion he wanted to have a motion for a mistrial right?

       [DEFENSE COUNSEL]: Yes, your honor.

       THE COURT: Okay, so the court is not going to give a mistrial motion
       [sic]. In opening statement it was explained that Mr. Weakley had been
       charged with this offense, and so it wouldn’t be beyond the stretch that he
       was at some time arrested for this case. And there has been evidence that
       at some unknown point in time he was convicted of a felony; and therefore
       those would be two plausible explanations for the gentleman being
       incarcerated. Okay? Now, so — so on that ground alone the court is not
       granting any mistrials.

       {¶10} As the trial progressed, the parties agreed to streamline the presentation of

the evidence and entered into the following stipulation:

       The parties stipulate and agree to each and every part of the criminal charge
       in Count 4. The same stipulation applies to Counts 5, 12, 13, 14, 19, 20,
       21, 22, 23, 24, 25, 26, 29, 30, 31, 32, 35, 36, 39, 40, 41, 42 and 43 except
       defendant Lamont Weakley’s involvement in the commission of the
       criminal offense. The state is still required to prove his involvement in this
       criminal offense and his involvement in the criminal offenses of these other
       counts. The defendant still denies his involvement in each of the criminal
       offenses.

A written copy of the stipulation and a chart of the offenses were provided to the jury.

       {¶11} After the state rested, Weakley moved for a judgment of acquittal on

Counts 1, 2, 3, 4, 8, 9 and 43. The trial court denied the motion. Weakley presented

testimony from one witness, the person responsible for managing the Coit Road property,

who testified that he had never seen Weakley at the property.       Weakley then renewed

his Crim.R. 29 motion. Once again, the trial court denied the motion and the case went

to the jury.

       The Jury’s Verdict

       {¶12} On November 2, 2016, the jury returned its verdicts, finding Weakley guilty

of 20 counts: one count of engaging in a pattern of corrupt activity (Count 1); two counts

of conspiracy (Counts 2 and 3); two counts of aggregate identity fraud charges (Counts 4

and 5); one count of having a weapon while under disability (Count 9); one count of

aggravated theft (Count 12); individual fraud and theft charges related to six victims

(Counts 13, 14, 23, 24, 29-32, 35, 36, 39 and 40), one count of possession of criminal

tools (Count 45), and the associated weapon forfeiture, property forfeiture and one-year

firearm specifications.   The jury found Weakley not guilty of the receiving stolen

property charge related to the firearm (Count 8) and the individual identity fraud and theft

charges related to several other alleged victims (Counts 19, 20, 21, 22, 25, 26, 41-43).

       Unadmitted Document Provided to Jury During Deliberations
      {¶13} After the jury returned its guilty verdicts, the prosecutor discovered a

document, which had not been admitted into evidence, at the bottom of the box of

exhibits that had been provided to the jury for its deliberations. The document, dated

November 10, 2015, was a fax cover sheet from“Det. Duffy” of the Richmond Heights

Police Department to the “US Probation Office” “re Lamont Weakley.” A box that

stated “[f]or [r]eview” was checked and “stolen gun recovered” was handwritten in the

“comments” section.

      {¶14} The prosecutor set up a conference with the trial court and defense counsel

and advised them of his finding. The prosecutor indicated that he had intentionally

removed the fax cover sheet from the back of a set of documents that included several

trial exhibits because it referenced the “US Probation Office.”    He stated that, after he

removed the page from the group of exhibits, he “twist-crumpled” it and instructed one of

the detectives to “[m]ake sure this does not get into the evidence,” “[m]ake sure I don’t

put this in evidence.”   The prosecutor stated that he had no idea how the “crumpled”

document got into the box of exhibits that went back with the jury.

      {¶15} Following the prosecutor’s disclosure, Weakley filed a motion for new trial.

 He contended that the fax cover sheet was prejudicial because it showed Weakley had a

prior federal conviction and argued that the jury would perceive a federal offense as being

“far more serious” than a state offense. He further argued that the cumulative prejudicial

effect of this document being provided to the jury along with Wheatley’s testimony

regarding Weakley’s prior incarceration warranted a new trial. The state argued that
Weakley could not show that he had been prejudiced by the submission of the unadmitted

fax cover sheet to the jury.

       {¶16} After holding an evidentiary hearing on the motion, the trial court denied

Weakley’s motion for a new trial. Even assuming the jury had seen the fax cover sheet,

the trial court found that it was not prejudicial because the jury already knew that

Weakley had a prior felony conviction and that “it would not have affected their decision

in light of the mountain of other evidence that they were given.”

       {¶17} At sentencing, the trial court merged the two conspiracy counts (Counts 2

and 3) into Count 1 (engaging in a pattern of corrupt activity). The trial court also

merged the two aggregate identity fraud counts (Counts 4 and 5) and all of the individual

identity fraud counts (Counts 13, 23, 29, 31, 35 and 39) into the aggregate identity fraud

count (Count 4) and merged all of the individual theft counts (Counts 14, 24, 30, 32, 36

and 40) into the aggregate theft count (Count 12).   The trial court sentenced Weakley to

an aggregate prison sentence of 15 years, 9 months on five counts as follows: 11 years on

Count 1, 8 years plus the one-year firearm specification on Count 4, nine months on

Count 9, three years on Count 12 and one year on Count 45. The trial court ordered that

the mandatory one-year sentence on the firearm specification in Count 4 be served prior

to and consecutive to the sentences on all of the other counts, that the 11-year sentence on

Count 1 be served consecutively to the nine-month sentence on Count 9 and the

three-year sentence on Count 12 and that the sentences on the base offense in Count 4 and
on Count 45 be served concurrently to each other and to sentences on Count 1, Count 9

and Count 12.

       {¶18} Weakley appealed his convictions, raising the following six assignments

of error for review:

       ASSIGNMENT OF ERROR NO. I:
       Lamont Weakley was denied his right to the effective assistance of counsel
       in violation of the Sixth and Fourteenth Amendments to the United States
       Constitution and Article 1, Section 10 of the Ohio Constitution during the
       pre-trial proceedings.

       ASSIGNMENT OF ERROR NO. II:
       Lamont Weakley was denied his right to the effective assistance of counsel
       in violation of the Sixth and Fourteenth Amendments to the United States
       Constitution and Article 1, Section 10 of the Ohio Constitution when his
       trial counsel failed to bifurcate his having a weapon while under disability
       charge.

       ASSIGNMENT OF ERROR NO. III:
       The trial court erred in denying Mr. Weakley’s motion for a mistrial after a
       witness improperly referenced Mr. Weakley’s prior incarcerations.

       ASSIGNMENT OF ERROR NO. IV:
       The trial court abused its discretion in denying Mr. Weakley’s motion for a
       new trial, which was based on inadmissible, prejudicial material being
       included with the exhibits given to the jury and the jury hearing a witness’
       prejudicial statement.

       ASSIGNMENT OF ERROR NO. V:
       Defendant was denied effective assistance of counsel in violation of the
       Sixth and Fourteenth Amendments to the United States Constitution and
       Article 1, Section 10 of the Ohio Constitution when his counsel failed to
       present necessary evidence in support of his motion for a mistrial and his
       motion for a new trial and failed to object to inadmissible evidence.

       ASSIGNMENT OF ERROR NO. VI:
       The jury’s verdict of forfeiture was not supported by legally sufficient
       evidence.
       Law and Analysis

       Ineffective Assistance of Counsel

       {¶19} In his first and second assignments of error, Weakley argues that his trial

counsel provided constitutionally ineffective assistance of counsel.

       {¶20} A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate:

(1) deficient performance by counsel, i.e., that counsel’s performance fell below an

objective standard of reasonable representation, and (2) that counsel’s errors prejudiced

the defendant, i.e., a reasonable probability that but for counsel’s errors, the result of the

trial would have been different. Strickland at 687-688; State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.”

Strickland at 694.

       Plea Negotiations

       {¶21} In his first assignment of error, Weakley contends that his counsel provided

ineffective assistance of counsel during the plea negotiations, “derailing” Weakley’s

attempt to accept a favorable plea offer. He contends that trial counsel was deficient in

failing to correct a misstatement of law by the prosecutor regarding Weakley’s eligibility

for judicial release leading to the rejection of a plea deal and the imposition of a much

longer sentence than Weakley would have received under the plea deal.
       {¶22} A defendant’s right to effective assistance of counsel “extends to the

plea-bargaining process.”    Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182

L.Ed.2d 398 (2012). Erroneous legal advice can constitute ineffective assistance of

counsel if it prejudicially impacts a plea. See, e.g., id. at 162-166; State v. Simpson, 10th

Dist. Franklin No. 07AP-929, 2008-Ohio-2460, ¶ 16 (“Erroneous legal advice as to

eligibility for judicial release that induces a plea of guilty may constitute ineffective

assistance of counsel.”); State v. Howard, 7th Dist. Mahoning No. 12 MA 41,

2013-Ohio-1437, ¶ 21 (“erroneous advice by counsel which induces a decision by a

defendant that results in prejudice to that defendant, is a ground for reversal”); see also

State v. Persons, 4th Dist. Meigs No. 02CA6, 2003-Ohio-4213, ¶ 11-16 (defendant’s

guilty pleas were void where trial counsel did not correctly advise defendant as to his

eligibility for judicial release, which was a material term of plea agreement, and trial

court and the state’s misunderstanding of defendant’s eligibility for judicial release

further compounded the error).

       {¶23} To establish ineffective assistance of counsel occurring during plea

negotiations, a defendant who did not accept a plea offer must show not only that counsel

rendered flawed and deficient representation, but also that there is a reasonable

probability that: (1) the defendant would have accepted the plea offer; (2) the offer would

not have been withdrawn and would have been accepted by the court and (3) the end

result would have been more favorable to the defendant. State v. Burton, 8th Dist.
Cuyahoga No. 100716, 2014-Ohio-4207, ¶ 3; Lafler at 164.             Following a thorough

review of the record, we conclude that Weakley has met his burden in this case.

       {¶24} The record reflects that on the morning of trial, the trial court directed the

parties to outline the history of their plea negotiations “on the record.” The prosecutor

explained that there had been two plea offers extended to Weakley, i.e., the “original”

plea offer under which Weakley would have pled guilty to four third-degree felonies —

conspiracy, identity fraud, having a weapon while under disability and aggravated theft1

— and a “modified” plea offer, pursuant to which the state would have substituted

another third-degree felony for the amended conspiracy count in the original plea offer.

According to the prosecutor, at that time, the state, defense counsel and the trial court all

believed that Weakley would not be eligible for judicial release if he pled guilty to

conspiracy. Therefore, with its modified plea offer, the state had offered to substitute

another third-degree felony for conspiracy so that Weakley could be eligible for judicial

release. According to defense counsel, the state had also agreed not to object if the trial

court decided to grant Weakley judicial release after six months of imprisonment.




       1
        Specifically, under the original plea offer, the state would have amended
Counts 3 (conspiracy) and 4 (identity fraud) to reduce those counts from
second-degree felonies carrying sentences of two to eight years to third-degree
felonies carrying sentences of 9 to 36 months and deleted the firearm specification
in Count 4. Weakley would have pled guilty to the amended counts and two other
third-degree felonies — Count 9 (having a weapon while under disability) and
Count 12 (aggravated theft) — as well as the associated weapon forfeiture and
property forfeiture specifications.     All remaining counts would have been
dismissed.
          {¶25} At the time he committed the offenses at issue, Weakley was on supervised

release for a prior federal offense. Based on his possession of the firearm that was found

in the bag retrieved from Wheatley’s garage, Weakley was sentenced to two years in

prison for violating the terms of his federal supervised release.

          {¶26} The prosecutor also recounted prior discussions the parties had had with the

trial judge regarding (1) the sentence she would likely impose if Weakley accepted a plea

offer and (2) the interplay between any sentence the trial court imposed in this case and

the two-year sentence the federal court had already imposed for his parole violation —

which was ordered to run consecutively to any sentence imposed by the trial court.

Although the parties acknowledge that the trial court “did not make a firm commitment”

regarding the sentence it would impose if Weakley accepted the plea offer, the prosecutor

stated:

          If I may, the Court discussed and basically presented that the sentence
          would be four years with judicial release upon 6 months so that Mr.
          Weakley could go from County Jail, or Lorain, and go right to do his
          Federal sentence. And the goal was to keep him under 3 years at the time *
          * *.

Defense counsel similarly indicated that “[t]here was at least a discussion that — possibly

that the Court would impose 4 years with the possibility of judicial release after 6

months.”

          {¶27} After Weakley rejected the modified plea offer several weeks before trial, it

was revoked and the state reinstated the original plea offer. The prosecutor indicated,

however, that the original plea offer would no longer be available “the moment a juror
steps foot into this room.” The prosecutor further indicated that, at that point, that state

would “still [be] open to certain negotiations, but they will start with at least one felony of

the second degree.”

       {¶28} After the plea offers had been placed on the record, the trial judge asked

Weakley whether he understood the plea offers he had previously rejected. Wheatley

responded, “[n]ot really.” He indicated that he was confused regarding the length of

time he would serve if he “pled out” to the charges in this case, given that he had already

been sentenced to two years by the federal court for the violation of his federal supervised

release. The trial judge, therefore, proceeded to “break this down a little bit,” and with

input from the state and defense counsel, further explained the logistics of sentencing.

The trial court stated that if Weakley accepted the plea offer and, “for instance,” received

a four-year prison sentence, he would be imprisoned for six months on his state court

sentence, but could then file a motion for judicial release. She further explained that, if

the motion for judicial release was granted, Weakley would go into the federal system to

serve his two-year federal sentence. Upon completion of his federal sentence, he would

be subject to a period of supervision by the state court. Following these clarifications,

Weakley said, “Okay, I’ll take the deal,” and the trial judge immediately proceeded with

the plea colloquy.

       {¶29} The trial judge began by inquiring as to preliminary matters, including

Weakley’s age, education, current medications and health issues.           She then advised

Weakley of the effect and consequences of his guilty pleas and the constitutional rights he
would be waiving by entering his guilty pleas. After confirming with Weakley that he

understood his rights and had no questions “so far,” the trial judge turned to the

prosecutor and asked him to identify one of the amended counts to which Weakley would

be pleading guilty under the original plea agreement:

      THE COURT: Okay. So how are you amending Count 3[?]

      [THE STATE]: I’m a little confused, your Honor, what we are exactly
      pleading to at this time.

      THE COURT: I thought you were saying that you are amending Count 3 to
      reduce it to a third degree felony; you were changing the language so that it
      wouldn’t be a second degree felony but it would be a third degree felony.

      [THE STATE]: Yes, I was, your Honor.

      THE COURT: Okay. So can you do that at this time, or does that require

      extra consideration?

      {¶30} The state requested a sidebar conference to discuss the issue. During the

sidebar conference, the prosecutor informed the court that if Weakley were to accept the

original plea offer — the only plea offer that was still available given Weakley’s prior

rejection of the modified plea offer — he would not be eligible for judicial release as

contemplated by the trial judge when she was explaining the terms of the plea offer to

Weakley. As the trial court explained:

      THE COURT: * * * We’re still in open court on the record, and the
      Prosecutor is now helping the Court understand that if the gentleman pleas
      to the plea bargain he was offered he would not be eligible for judicial
      release because the original plea bargain involved an amended Count 3
      conspiracy. And you could change the text to make it a third degree felony
      conspiracy, but conspiracy is not subject to judicial release. * * * So when
      you said a few minutes ago that the text could change so that he could get
       judicial release on the conspiracy count * * * you’re now telling me that
       you weren’t talking about the original plea bargain offer?

       [THE STATE]: No. I’m just saying we agreed to modify it; agreed. We
       don’t agree to modify it now. * * * We agreed to modify it then to make
       things work. * * * The original plea, which was presented, * * * was
       conspiracy, identity fraud, having weapons under disability and aggravated
       theft; all felonies of the third degree. * * * Then the Court and [defense
       counsel] started discussing whether or not the defendant could get judicial
       release. And we all understood that if he got more than 4 years he
       couldn’t. * * * The State said then we can make this happen if we change
       one of the counts to something else and we did. And then he still didn’t
       want to take the plea, regardless of what his level of understanding was
       about what he would get.

       THE COURT: * * * He didn’t even want 6 months. * * *

       [THE STATE]:       Right. * * * And you gave him a week to think about it.

       ***

       THE COURT: * * * [S]o the State has now reverted to its original plea
       bargain. It is not today willing to offer the gentleman a change to amended
       Count 3 that would permit judicial release. Do I have that right?

       [THE STATE]: That’s right. The State removed that at the same time the
       Court said the Court was not going to entertain any type of consideration in
       sentencing in advance.

       THE COURT: Okay.

       {¶31} The trial court asked the prosecutor to identify the specific statutory

provision that he contended precluded judicial release on the conspiracy charge. R.C.

2929.20(A)(1)(b)(v), the provision identified by the prosecutor, states:

       (b) “Eligible offender” does not include any person who, on or after April 7,
       2009, is serving a stated prison term for any of the following criminal
       offenses that was a felony and was committed while the person held a
       public office in this state: * * *
       (i) A violation of section 2921.02, 2921.03, 2921.05, 2921.31, 2921.32,
       2921.41, 2921.42, or 2923.32 of the Revised Code;

       ***

       (v) A conspiracy to commit, attempt to commit, or complicity in
       committing any offense listed in division (A)(1)(b)(i) or described in
       division (A)(1)(b)(iii) of this section[.]

The prosecutor further indicated that the statutory violation giving rise to the conspiracy

charge was a conspiracy to engage in a pattern of corrupt activity under R.C. 2929.32.

Defense counsel did not dispute the prosecutor’s assertion that Weakley would be

ineligible for judicial release if he accepted the state’s original plea offer.

       {¶32} Based on the prosecutor’s representations, the trial court terminated the plea

colloquy, summarizing the history the parties’ plea negotiations as follows:

       Now, ladies and gentlemen, we have a jury. We’ve gone on the record.
       We’ve stated a plea bargain which Mr. Weakley, we all admit, rejected back
       in August. He was given a modified agreement. The State of Ohio has
       taken that off the table. My apologies I didn’t understand that little step
       when I went through that, so the plea bargain available to Mr. Weakley is
       still there but the plea bargain would not permit any sentence involving
       judicial release, so we’re going to get out jury and get started here.

Defense counsel did not object and the trial court provided Weakley no further
opportunity to accept the original plea offer offered by the state.

       {¶33} On appeal, the states concedes R.C. 2929.20(A)(1)(b)(v) did not apply to

Weakley, i.e., Weakley did not hold public office in Ohio, and that Weakley could, in

fact, have been eligible for judicial release had he accepted the state’s original plea offer.

Based on the record before us, Weakley has established the deficient performance of his

trial counsel during the plea-bargaining process, satisfying the first prong of the
Strickland test.    See, e.g., State v. Reeves, 2d Dist. Greene No. 2015-CA-12,

2016-Ohio-5540, ¶ 31, 36 (defense counsel’s failure to object to the state’s incorrect

recitation of the sentence at the plea hearing and failure to attempt to secure his client’s

right to accept the corrected plea bargain constituted ineffective assistance of counsel).

       {¶34} Citing the United States Supreme Court’s decision in Lafler v. Cooper, 566

U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), Weakley contends that this court

“must remedy [the] constitutional violation” resulting from the ineffective assistance of

his trial counsel by vacating his convictions and requiring the state to reoffer the original

plea offer that had been extended to Weakley prior to trial.

       {¶35} In Lafler, a defendant who had been charged under Michigan law with

assault with intent to murder and several other offenses received a favorable plea offer.

Id. at 161. Under the plea offer, the state would dismiss certain of the charges and to

recommend a sentence of 51 to 85 months on the remaining charges in exchange for the

defendant’s guilty pleas. Id. In a communication with the trial court, the defendant

admitted his guilt and expressed a willingness to accept the plea offer. Id. However,

after trial counsel allegedly advised him that the state could not prove intent because the

victim had been shot below the waist (the defendant had allegedly pointed a gun toward

the victim’s head and fired, but missed, then shot her three additional times in the buttock,

hip and abdomen), the defendant ultimately rejected the plea offer. Id. at 160-161. The

case proceeded to trial. The defendant was convicted on all counts and received a
mandatory minimum sentence of 185 to 360 months in prison — more than three times

the sentence under the plea offer. Id. at 161.

       {¶36} In Lafler, the state conceded that defense counsel’s performance was

deficient when he advised the defendant to reject the plea offer on the ground he could

not be convicted at trial; the issue was how to determine whether the defendant was

prejudiced by the ineffective assistance of counsel. Id. at 163. The Court held that if

trial counsel’s deficient performance during plea negotiations caused the defendant to

reject a plea offer that the trial court would have accepted and would have resulted in the

defendant’s conviction of less serious charges or the imposition of a lower sentence, the

defendant may be prejudiced. Id. at 166, 174. The Court further held that where a

defendant is prejudiced, the remedy under such circumstances is to order the state to

reoffer the previously rejected plea offer. Id. at 174. As the Court explained:

       The correct remedy in these circumstances * * * is to order the State to
       reoffer the plea agreement. Presuming respondent accepts the offer, the
       state trial court can then exercise its discretion in determining whether to
       vacate the convictions and resentence respondent pursuant to the plea
       agreement, to vacate only some of the convictions and resentence
       respondent accordingly, or to leave the convictions and sentence from trial
       undisturbed.

Id.

       {¶37} The state disagrees. Although it concedes that the prosecutor “misstate[d]

the law regarding judicial release” when he set forth the history of the parties’ plea

negotiations on the record, the state claims that Weakley was not prejudiced by the error

— or any deficiency on the part of defense counsel in failing to point out the error —
because there was no plea offer on the table for Weakley to accept on the day of trial that

included “a promise of [eligibility for] judicial release.” It asserts that Weakley had

previously rejected the modified plea offer, i.e., “where the trial court finally got involved

and indicated that it would only sentence Appellant to four years so he could apply for

judicial release in 6 months,” and that the only plea offer that was still available to

Weakley that he could have taken on the day of trial was the original plea offer, i.e., a

guilty plea to four felonies of the third degree “without the trial court’s promise of

judicial release.”

       {¶38} In this case, there is nothing in the record that indicates that the original plea

offer, which Weakley sought to accept on the morning of trial, included any explicit

“promise” by the trial court that it would grant judicial release after six months or that it

would impose a sentence that would make Weakley eligible for judicial release in six

months. Weakley concedes this fact on appeal. Nevertheless, the fact that the original

plea offer did not include an agreed sentence or a “promise” of judicial release, would not

have precluded Weakley from choosing to “take the deal.”

       {¶39} Weakley has shown not only that his counsel rendered deficient

representation but a reasonable probability (1) that he would have accepted the plea offer,

(2) that his guilty pleas would have been accepted by the trial court and (3) that the end

result would have been more favorable to him. After the trial judge completed her

explanation of the original plea offer and how sentencing under the original plea offer

would work given Weakley’s sentence in the federal case, Weakley said he would “take
the deal.” The state indicated that the original plea offer would remain open until a “a

juror steps foot into [the courtroom].” Accordingly, the original plea offer was still

available when Weakley accepted it. The trial judge was very familiar with the case and

had been actively involved in the plea negotiations. Once Weakley said he would accept

the original plea offer, the trial judge immediately proceeded with the plea colloquy,

terminating the colloquy only when the state raised an issue regarding Weakley’s

eligibility for judicial release. Thus, the record supports the conclusion that the trial

court would have accepted Weakley’s guilty pleas.

       {¶40} Further, the record is clear that Weakley has been prejudiced by his trial

counsel’s failure to advise that Weakley would have, in fact, been eligible for judicial

release under the original plea offer, thus satisfying the second prong of the Strickland

test. Under the terms of the original plea offer, Weakley would have pled guilty to four

third-degree felonies without any firearm specifications, each carrying a maximum prison

sentence of three years. After trial, Weakley was convicted (after merger) of five counts

— one first-degree felony, one second-degree felony with a one-year firearm

specification, two third-degree felonies and a fifth-degree felony — for which he received

an aggregate prison sentence of 15 years, 9 months. Even if Weakley had received

maximum consecutive sentences on all four of the third-degree felonies that were the

subject of the original plea offer, he would have still received a lesser sentence than he

received after trial.

       {¶41}     Weakley’s first assignment of error is sustained.
       Weakley’s Prior Criminal Record

       {¶42} Weakley’s second, third and fourth assignments of error are interrelated and

will be addressed together. In these assignments of error, Weakley challenges actions by

his trial counsel and rulings by the trial court that he contends improperly and

prejudicially placed his prior criminal record before the jury, exposing him to “the biases

attendant to a jury learning that the accused had been previously convicted of a criminal

defense.”

       {¶43} As the Ohio Supreme Court recognized in State v. Allen, 29 Ohio St.3d 53,

506 N.E.2d 199 (1987):

       The existence of a prior offense is such an inflammatory fact that ordinarily

       it should not be revealed to the jury unless specifically permitted under

       statute or rule. The undeniable effect of such information is to incite the

       jury to convict based on past misconduct rather than restrict their attention

       to the offense at hand.

Id. at 55.

       Counsel’s Failure to Bifurcate Having a Weapon While under Disability

       Charge

       {¶44} In his second assignment of error, Weakley argues that he was denied the

effective assistance of trial counsel because trial counsel failed to request that the having

a weapon while under disability charge be bifurcated from the other charges and tried to

the bench, unnecessarily placing the fact of his prior conviction before the jury. He
contends that, as a result of his counsel’s deficient performance, the jury was “infected

with irrelevant and highly prejudicial evidence” and that there is a reasonable probability

the outcome would have been different had the having a weapon while under disability

charge been tried to the bench and the jury prevented from learning about his prior

conviction.

       {¶45} When considering whether a trial counsel’s representation is deficient, a

court “must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct.

2052, 80 L.Ed.2d 674. Thus, “the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.” Id.

Even debatable trial tactics and strategies do not generally constitute deficient

performance. State v. Phillips, 8th Dist. Cuyahoga No. 103895, 2016-Ohio-7049, ¶ 11,

citing State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).

       {¶46} Decisions by trial counsel not to file certain pretrial motions, including a

motion to sever charges for separate trials, are generally considered “‘debatable trial

tactics that * * * do not constitute a deprivation of effective counsel.’” State v. Wilson,

9th Dist. Summit No. 26683, 2014-Ohio-376, ¶ 56-58, quoting State v. Griffin, 9th Dist.

Lorain No. 11CA010128, 2013-Ohio-416, ¶ 44. Likewise, a defense counsel’s decision

to stipulate to facts is generally considered a tactical decision.       See, e.g., State v.

Hefflinger, 6th Dist. Erie No. E-16-054, 2017-Ohio-7100, ¶ 31 (“‘Generally, decisions to

stipulate to facts or evidence are tactical decisions that fall within the wide range of
reasonable professional assistance.’”), quoting State v. Mackey, 12th Dist. Warren No.

CA99-06-065, 2000 Ohio App. LEXIS 480, *14 (Feb. 14, 2000).

        {¶47}     In State v. Jenkins, 8th Dist. Cuyahoga No. 91100, 2009-Ohio-235,

however, this court held that a defense counsel’s failure to request bifurcation of the

having a weapon while under disability charge contributed to a finding of ineffective

assistance of counsel. 2 The court found that this failure alone would not “constitute

ineffective assistance of trial counsel,” but that it “add[s] to the cumulative nature of

counsel’s errors,” because it could not “conceivably be considered a trial tactic” under the

facts and circumstances of the case. Id. at ¶ 17; see also State v. Thompson, 8th Dist.

Cuyahoga No. 96929, 2012-Ohio-921, ¶ 39-40 (although “troubled by defense counsel’s

decision not to request that the weapons under disability charge be bifurcated from the

other charges,” court refused to reverse defendant’s conviction where the failure to

bifurcate the having weapons while under disability charge “did not taint the entirety of

the proceedings to the extent that a reasonable probability exists that the outcome of trial

would have been different had the charge been separated”); Griffin at ¶ 43-44 (defense

counsel’s failure to bifurcate having weapons while under disability charge “does not

constitute per se ineffective assistance of counsel”).

        {¶48} Following a thorough review of the record, we agree with Weakley that,

under the particular facts and circumstances here, trial counsel’s failure to seek


        2
          Jenkins involved three omissions by trial counsel: failure to file a motion to suppress; failure
to file a motion for discovery and failure to bifurcate the having weapons while under disability
charge. Jenkins, 2009-Ohio-235, at ¶ 1-18.
bifurcation of the having a weapon while under disability charge constituted deficient

performance under Strickland.

       {¶49} Because the having a weapon while under disability charge was not

bifurcated, the state had to prove to the jury that Weakley had a criminal record. To

prevent the state from presenting evidence of Weakley’s prior conviction at trial, defense

counsel stipulated to the fact that Weakley had a prior felony conviction that precluded

him from having a firearm. The jury was advised of the parties’ stipulation during the

trial court’s preliminary instructions before opening statements:

       THE COURT: * * * Here’s a charge, Count 9. There is an accusation that
       Mr. Weakley knowingly acquired, had, carried or used a firearm even
       though he was, under Ohio law, under a disability and could not acquire,
       have, carry or use a firearm. And this involves actually a fact that the
       parties have stipulated or agreed to. He’s disabled from anything to do
       with a firearm because he had previously been convicted of a felony; and
       the commission of that kind of felony disables you from being permitted to
       acquire, have, carry, use a firearm. So he stipulates that he was convicted
       of the right kind of felony for that but he does not agree that he is guilty of
       knowingly acquiring, having, carrying or using a firearm at the time and
       date where they say.

       Now, ladies and gentlemen, let[’]s just stop and pause. So it’s coming to
       you as a given fact that Mr. Weakley has this old felony conviction.
       Please understand that the law is just because there is evidence before you
       of having committed a prior felony, that’s not evidence tending to show the
       individual committed one or more of these felonies.

       Understood?

       THE JURORS: Yes.
       THE COURT: That felony only comes in as part of that accusation that he

       had a firearm when he shouldn’t have because of the disability.          Okay?

       Very critical fact.

       {¶50} In this case, because trial counsel did not seek bifurcation of the having a

weapon while under disability charge, the jury learned, even before any testimony was

heard, that Weakley allegedly had a gun when he was prohibited from doing so because

of a prior felony conviction. Weakley did not testify at trial. Thus, if the having a

weapon while under disability charge had been bifurcated and tried to the bench, there is

no way the jury could have properly learned of his prior conviction. Although, as the

court held in Jenkins, this failure alone would not constitute reversible error, in this case,

there was a prejudicial “snowball effect” from trial counsel’s failure to seek bifurcation of

the having a weapon while under disability charge and stipulation that Weakley had a

prior felony conviction.



       Cumulative Error

       {¶51} Under the doctrine of cumulative error, “a conviction will be reversed when

the cumulative effect of errors in a trial deprives a defendant of a fair trial even though

each of the numerous instances of trial-court error does not individually constitute cause

for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

223; see also State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph

two of the syllabus.
       {¶52} In this case, the effect of trial counsel’s initial error in failing to seek

bifurcation of the having a weapon while under disability charge was compounded as the

trial progressed. Aside from the ordinary prejudice Weakley arguably sustained as a

result of the jury being told that he had a prior criminal record, Weakley was also

prejudiced because the trial court then used that fact, i.e., that the jury already knew that

Weakley had a prior felony conviction, as justification for excusing other errors as

nonprejudicial.

       {¶53}      A few minutes into the trial, during the testimony of the state’s first

witness, the jury was reminded of Weakley’s criminal record when Wheatley testified that

she gave Weakley money while he was “incarcerated.” The state acknowledges that

Wheatley should not have testified regarding Weakley’s incarceration but contends that

this “testimonial mishap” was not prejudicial because “it certainly is not clear whether it

had any effect on the jury at all.”

       {¶54} That the jury attached a special significance to the evidence of Weakley’s

criminal past is evidenced by one of the questions the jury asked of Wheatley:

       THE COURT [asking a jury question]: Yes or No: “Did you
       know Mr. Weakley was a felon?

       THE WITNESS: Yes.

       Further, the trial court specifically acknowledged the potentially prejudicial effect

of Wheatley’s testimony when admonishing Wheatley against making further references

to Weakley’s incarceration during her examination:
       THE COURT: * * * But the way we want you to do business is certain

       things the state considers prejudicial. [Defense counsel], on behalf of Mr.

       Weakley[,] may consider them prejudicial, so I’m going along with their

       rules.   And they tell me that they’ve previously instructed you not to

       mention the gentleman being incarcerated.       We know that incarceration

       takes a couple of forms; you can be put in a police jail, a municipal jail, a

       county jail, a federal prison; whatever, but it’s all incarceration and it all

       speaks to prior bad acts and that’s what we’re trying to keep away from.

       {¶55} Nevertheless, the trial court denied Weakley’s motion for a mistrial on the

ground that the jury already knew, based on defense counsel’s stipulation, that Weakley

had a prior felony conviction. Although the trial court instructed the jury, with respect to

the effect of the stipulation on the having a weapon while under disability charge, that

“just because there is evidence before you of having committed a prior felony, that’s not

evidence tending to show the individual committed one or more of these felonies,” no

curative instruction was requested or given with respect to Wheatley’s testimony.

       {¶56} The trial court also excused the error associated with the submission of the

unadmitted fax cover sheet to the jury as nonprejudicial and denied Weakley’s motion for

new trial — which was based both on Wheatley’s testimony regarding Weakley’s

incarceration and the submission of the unadmitted fax cover sheet to the jury — on the

ground that the jury already knew that Weakley had a prior conviction. At the hearing on

the motion for a new trial, the prosecutor stated that he had intentionally removed the fax
cover sheet from the back of a set of trial exhibits because it referenced the “US

Probation Office.”    He also stated that he was concerned about it getting into evidence

even going so far as to ask one of the detectives to “make sure” the document did “not get

into the evidence.”

       {¶57} Nevertheless, the trial court held that even assuming the jury had seen and

reviewed the fax cover sheet, it was not prejudicial because it was “consistent with” what

the jurors had already been told, i.e., that Weakley had a prior felony conviction. The

trial court further held that any “new information” the document contained regarding

Weakley’s criminal past, e.g., that Weakley had been on probation for a federal offense or

that his prior conviction was recent, was not prejudicial given the other evidence against

him. As the trial court explained:

       THE COURT: * * * [T]he motion for new trial is denied. I’m willing to
       indulge the presumption the jury looked at the document, since otherwise
       why did we hold this hearing. But then we have to say if they looked at
       the document, was there prejudice, and the answer is no. * * * [I]f the jury
       looked at this, the only new information is “US probation office.”

       Now, again, it isn’t U, period, S, period, probation office. It is only “US
       probation office.” So I find that the defendant’s argument that the jury
       would have inferred a federal conviction is placing a lot more confidence in
       the knowledge of the ordinary person than I think is justified. That from
       that inference you could go to, oh, it’s a federal conviction; therefore, it is
       more serious. You know, that’s just building an inference on another
       inference.

       And then on top of that, the defendant would argue, oh, it’s got to be a
       recent conviction. Well, that would again attribute to the average juror
       member information that I don’t think they have. * * *

       And, of course, it would have been perfectly legitimate for the jury to make
       these inferences since that was consistent with what they were told. They
       were told that the gentleman had, at the time he was alleged to have
       committed the having weapons charge, that he had this felony conviction.
       They weren’t told it was federal, they weren’t told it was recent, they
       weren’t told it was serious, but only that it was a felony. So I don’t —
       the Court’s finding is that this is not prejudicial. To the extent the jury
       saw it, it would not have affected their decision in light of the mountain of
       other evidence that they were given. * * *

       {¶58}    “Inadmissible evidence about a prior crime is prejudicial, unless the

reviewing court finds beyond a reasonable doubt that it did not affect the outcome.”

State v. Greer, 8th Dist. Cuyahoga No. 92910, 2010-Ohio-1418, ¶ 13, citing State v.

Williams, 55 Ohio App.3d 212, 563 N.E.2d 346 (8th Dist.1988); see also State v. Tran,

8th Dist. Cuyahoga No. 100057, 2014-Ohio-1829, ¶ 29-30 (the admission of evidence

regarding prior convictions will be deemed harmless error if there is overwhelming

evidence of guilt); State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶

40 (error in the admission of evidence is harmless if there is no reasonable possibility that

exclusion of the evidence would have affected the result of the trial).

       {¶59} But for trial counsel’s deficient performance in failing to seek bifurcation of

the having a weapon while under disability charge, the trial court could not have relied on

the jury’s knowledge of Weakley’s prior felony conviction to deny his motions for a

mistrial or a new trial based on lack of prejudice.

       {¶60} Although any one of these errors — the failure to request bifurcation of the

having a weapon while under disability charge, the improper testimony by Wheatley

regarding Weakley’s prior incarceration or the improper submission of an unadmitted,

potentially prejudicial document to the jury — might not, in and of itself, rise to the level
of prejudicial, reversible error, in our view, the cumulative effect of these errors deprived

Weakley of his right to a fair trial.   See, e.g., State v. Dobson, 8th Dist. Cuyahoga No.

92669, 2010-Ohio-2339, ¶ 31-47 (finding defendant was deprived of his right to a fair

trial “because of the accumulated instances of his counsel’s ineffectiveness,” including

his failure to file a motion to bifurcate the having a weapon while under disability

charge).   Based upon the record before us, we cannot say conclusively that the

information provided to the jury regarding Weakley’s prior conviction did not affect the

outcome in this case.       We, therefore, sustain Weakley’s second, third and fourth

assignments of error under the cumulative error doctrine. Based on our resolution of

Weakley’s first four assignments of error, his remaining assignments of error are moot.

       {¶61} We reverse the trial court’s judgment, vacate Weakley’s convictions and

remand the case with instructions for the trial court to order the state to reoffer its original

plea offer to Weakley. If Weakley chooses not to accept the reoffered plea offer or if the

trial court refuses to accept his guilty pleas, then Weakley shall be entitled to a new trial

on the offenses of which he was previously convicted.

       {¶62}    Judgment reversed; case remanded.

       It is ordered that appellant recover from appellee 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.


________________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
