[Cite as State v. Shepherd, 2010-Ohio-482.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-09-14

        v.

TERRY DALE SHEPHERD,
                                                          OPINION
        DEFENDANT-APPELLANT.




                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. 20082218-CRI

                                      Judgment Affirmed

                          Date of Decision:   February 16, 2010




APPEARANCES:

        Scott B. Johnson for Appellant

        Maria Santo for Appellee
Case No. 6-09-14


ROGERS, J.

       {¶1} Defendant-Appellant, Terry Dale Shepherd, appeals the judgment of

the Court of Common Pleas of Hardin County resentencing him to two life

sentences without the possibility of parole, to be served consecutively to each

other and consecutively to the remainder of a prison term imposed in Hancock

County and a life sentence imposed in Wyandot County. On appeal, Shepherd

argues that the trial court erred in imposing a harsher sentence upon his

resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, in

violation of North Carolina v. Pearce (1969), 395 U.S. 711, by ordering his life

sentence in Wyandot County to be served consecutively to the life sentences

imposed in this case; that the State breached its plea agreement; and, that the trial

court erred in denying his motion for a new attorney at resentencing. Based on the

following, we affirm the judgment of the trial court.

       {¶2} In November 2008, in Hardin County case number CRI 20082218,

the Hardin County Grand Jury indicted Shepherd on two counts of aggravated

murder in violation of R.C. 2903.01(D), an unclassified felony. The indictment

arose from Shepherd’s brutal murders of Debra England and Judy Kearley, where

he burned their bodies in an abandoned farm house after kidnapping and killing




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them. At the time of the murders, Shepherd was on parole1 from a twelve to fifty-

year prison term imposed from a 1986 conviction in Hancock County on one

count of theft, two counts of aggravated robbery, and one count of rape.

Subsequently, Shepherd entered a not guilty plea to both counts in the indictment.

        {¶3} On December 12, 2008, Shepherd withdrew his not guilty pleas and

entered a guilty plea to both counts in the indictment, and the trial court sentenced

him to consecutive life prison terms, to be served consecutively to the remainder

of his prison term in Hancock County. The trial court filed its judgment entry of

sentencing on December 15, 2008. Subsequently, Shepherd appealed the trial

court’s sentence.

        {¶4} Furthermore, on December 11, 2008, in Wyandot County case

number 08-CR-0065, Shepherd entered a guilty plea to one count of aggravated

murder in violation of R.C. 2903.01(B), an unclassified felony, for the slaying of

Claradel Keller. Subsequently, in February 2009, the Wyandot County court

sentenced Shepherd to a life prison term, to be served consecutively to the life

sentences imposed in Hardin County.

        {¶5} In July 2009, in State v. Shepherd, 3d Dist. No. 6-08-16, 2009-Ohio-

3315, this Court remanded for resentencing in Hardin County case number CRI



1
 We note that, even though the concept of parole was replaced by postrelease control in 1996, at the time
of Shepherd’s conviction and sentence in Hancock County, parole was still utilized. See State v. Martello,
97 Ohio St.3d 398, 2002-Ohio-6661, ¶¶10-11.


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Case No. 6-09-14


20082218, finding that the trial court erred in sentencing Shepherd pursuant to

R.C. 2929.14(E), where that section was rendered unconstitutional in Foster, 109

Ohio St.3d 1.

       {¶6} In July 2009, the trial court held a resentencing hearing, at which

Shepherd requested new trial counsel. The following colloquy then took place

between Shepherd, his trial counsel, and the trial court:

       Trial Counsel: Mr. Shepherd has advised me today that he no
       longer wishes me as his court-appointed lawyer. * * * The
       reason for that, as expressed to me, is that he no longer values or
       trusts my opinion or advice on matters that are pending before
       this Court * * *. He believes that our relationship is strained to
       the point that he can no longer confide in me.

       Trial Court: Mr. Shepherd?

       ***

       Shepherd: Just basically what he just said. I’ve been going
       through my papers and stuff, the documents concerning my
       case, and I’ve seen stuff like in my discovery that I don’t have
       that he signed for and I never had.

       ***

       Trial Court: We’re here for a very limited purpose today, Mr.
       Shepherd, and that’s to sentence.

       ***

       Shepherd: Right.

       Trial Court: So do you have some new evidence that’s going to
       be brought before the Court that you believe is going to change
       the sentence of the Court?


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Case No. 6-09-14



      Shepherd: I don’t understand. I don’t. I don’t want this man
      representing me legally, sign any papers, or speaking to
      anybody. I don’t understand what you’re talking about.

      ***

      Trial Court: Mr. Shepherd, you and I both understand each
      other, and the fact is -

      Shepherd: No we don’t.

      Trial Court: Yeah, the fact is that you know a lot more than
      you’re ever going to admit to, and you understand what’s going
      on, and the Court understands what’s going on.

      Shepherd: What I am saying is this, okay, as far as what’s going
      on now, it’s their saying something about some technical reason
      why I was brought back into court. Some technical reason or
      something like that.

      Trial Court: And I’m going to address that.

      Shepherd: But what I’m saying is this, being at the court, there
      was also a mistake made and it’s opened back up for my, for me
      also. I would like -

      Trial Court: No, only as to sentencing Mr. Shepherd, you’re not
      -

      Shepherd: Right. I understand.

      Trial Court: listening to me. It has nothing to do with your
      convictions. Your plea of guilty.

      Shepherd: But if I want to reconsider my plea because -

      Trial Court: No, no. That’s not possible. Not in this court, not
      today, not with anybody representing you. That is not an option
      Mr. Shepherd.


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      Shepherd: * * * I do not want this man on record representing
      me in this trial, in this case.

      Trial Court: Okay.

      Shepherd: in any aspect.

      ***

      Trial Court: An indigent defendant has a right to competent
      counsel, not a right to counsel of his own choosing. * * * There
      is no constitutional right to a meaningful attorney-client
      relationship. * * * Rather, an indigent defendant is entitled to
      the appointment of substitute counsel only upon a showing of
      good cause, such as conflict of interest, a complete breakdown in
      communication, or an irreconcilable conflict which leads to an
      apparently unjust result; therein being the crux of the whole
      thing. To discharge a court-appointed attorney, the defendant
      must demonstrate to the Court justifiable cause for both the
      discharge of the appointed counsel and the request for
      appointment of a new counsel. The existence of hostility,
      intention, or personal differences which do not rise to the level of
      interfering with the preparation of a defense, and we’re way past
      that, are not sufficient to justify discharging a court-appointed
      counsel. The Court is, in fact, denying your motion to discharge
      Mr. Grzybowski. He is going to continue to be there and
      represent you as best he can, considering the limited purpose
      that we’re here today.

(Resentencing Hearing tr., pp. 2-7). Subsequently, the trial court resentenced

Shepherd to consecutive life prison terms, to be served consecutively to the

remainder of his sentenced imposed in Hancock County, and the life sentence

imposed in Wyandot County.




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      {¶7} It is from this sentence that Shepherd appeals, presenting the

following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT ERRED BY SENTENCING THE
      DEFENDANT TO MAXIMUM, CONSECUTIVE SENTENCES
      EACH CONSECUTIVE TO A LIFE SENTENCE IMPOSED IN
      A THIRD CASE FROM ANOTHER COUNTY AND
      IMPOSING AN ADDITIONAL 26 YEARS FOR A PAROLE
      VIOLATION.

                           Assignment of Error No. II

      THE TRIAL COURT’S RESENTENCING OF THE
      DEFENDANT UPON REMAND PURSUANT TO FOSTER
      CONFLICTED WITH THE PRINCIPLES OF NORTH
      CAROLINA V. PEARCE IN THAT THE DEFENDANT
      RECEIVED A HARSHER SENTENCE.

                          Assignment of Error No. III

      THE PROSECUTOR BREACHED THE NEGOTIATED PLEA
      AGREEMENT BY MAKING A RECOMMENDATION
      CONTRARY TO THE ORIGINAL PLEA AGREEMENT AND
      BY NOT FOLLOWING THROUGH WITH OTHER
      PROMISES MADE IN ORDER TO SECURE A PLEA
      AGREEMENT.

                          Assignment of Error No. IV

      THE TRIAL COURT ERRED IN DENYING THE
      DEFENDANT     A     NEW   ATTORNEY   AT    THE
      RESENTENCING HEARING IN VIOLATION OF HIS RIGHT
      SUFFICIENT TO [SIC] COUNSEL.




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Case No. 6-09-14


       {¶8} Due to the nature of Shepherd’s argument and the fact that he

addressed his first two assignments of error with only one argument, we elect to

address his first and second assignments of error together.



                        Assignments of Error Nos. I and II

       {¶9} In his first assignment of error, Shepherd argues that the trial court

erred in sentencing him to maximum, consecutive life sentences, imposed

consecutively to his life sentence in Wyandot County and consecutively to the

remainder of his sentence in Hancock County. In his second assignment of error,

Shepherd argues that the trial court erred in imposing a harsher sentence upon his

Foster resentencing in violation of Pearce, 395 U.S. 711. Specifically, Shepherd

contends in these two assignments of error that, because his conviction in

Wyandot County was known at the time of his initial sentencing, and because the

trial court did not impose his sentence consecutively to his Wyandot County

sentence at the original sentencing, the trial court imposed a harsher sentence upon

resentencing by ordering his consecutive life sentences to be served consecutively

to his Wyandot County life sentence and failed to make the required findings for

imposing the harsher sentence, thus requiring his sentence to be vacated and this

matter remanded for resentencing. We disagree.




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        {¶10} An appellate court must conduct a meaningful review of the trial

court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-

Ohio-5774, ¶8, citing State v. Carter, 11th Dist. No.2003-P-0007, 2004-Ohio-

1181. A meaningful review means “that an appellate court hearing an appeal of a

felony sentence may modify or vacate the sentence and remand the matter to the

trial court for re-sentencing if the court clearly and convincingly finds that the

record does not support the sentence or that the sentence is otherwise contrary to

law.”2 Daughenbaugh, 2007-Ohio-5774, at ¶8, citing Carter, 2004-Ohio-1181, at

¶44; R.C. 2953.08(G).

        {¶11} Pursuant to the United States Supreme Court’s decision in Pearce,

395 U.S. 711, a trial court violates the Due Process Clause of the Fourteenth

Amendment to the United States Constitution when it imposes a harsher sentence

based upon vindictiveness when resentencing a defendant. See, also, Alabama v.

Smith, (1989) 490 U.S. 794 (finding that, however, no presumption of

vindictiveness arises when a sentence imposed after trial is greater than that

previously imposed after a guilty plea); State v. Troglin, 3d Dist. No. 14-06-57,

2007-Ohio-4368, ¶19. There is a presumption of vindictiveness when the same




2
  We note that the Supreme Court of Ohio’s plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, established a two-part test utilizing an abuse of discretion standard for appellate review of
felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court’s precedential clear and
convincing review standard adopted by three dissenting Justices in Kalish, we note that our decision in this
case would be identical under the Kalish plurality’s two-part test.


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Case No. 6-09-14


judge imposes a harsher sentence following a successful appeal. Id. at ¶19, citing

Pearce, 395 U.S. at 724. An enhanced sentence upon remand is not per se

prohibited, Wasman v. U.S. (1984), 468 U.S. 559, 568, but “the reasons for the

harsher sentence must appear on the record and must be ‘based upon objective

information concerning identifiable conduct on the part of the defendant occurring

after the time of the original sentencing proceeding.”’ State v. Wagner, 3d Dist.

No. 14-06-30, 2006-Ohio-6855, ¶8, quoting Pearce, 395 U.S. at 726.

      {¶12} However, this Court has previously found that the traditional review

of vindictiveness for harsher sentences imposed upon resentencing is not

specifically applicable to a resentencing pursuant to Foster, where the original

sentence has not been found to be in error, but to be void. See Wagner, 2006-

Ohio-6855, at ¶10. In Wagner, we stated that:

      [W]e are reluctant to endorse the imposition of additional
      required findings upon the trial courts of the district in re-
      sentencings under Foster-particularly where it is either apparent
      or can be readily presumed that the original sentence was the
      result of constraint imposed by a sentencing factor which the
      Supreme Court of Ohio subsequently determined to be void; or
      where the trial court appears to have re-evaluated the record or
      considered additional factors at the re-sentencing.

Id at ¶11. Furthermore, any presumption of vindictiveness is rebutted when the

trial court imposes a harsher sentence upon the consideration of a defendant’s

conviction received between the time of the original sentencing and the

resentencing, even where the trial court was aware of the charges at the time of the


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original sentencing, but a final conviction and sentence had yet to be entered.

Wasman, 468 U.S. at 569-570.

       {¶13} In the case at bar, Shepherd entered a guilty plea to one count of

aggravated murder in Wyandot County on December 11, 2008.                   He was

subsequently sentenced in Hardin County on December 12, 2008, with the

judgment entry of sentencing being filed on December 15, 2008.            However,

Shepherd was not sentenced in Wyandot County until February 2009, after his

original sentence was imposed in Hardin County, but prior to his resentencing.

Accordingly, although his entry of a guilty plea may have been filed in December

2008, just prior to his original sentencing in Hardin County, there was no final

conviction until sentencing was imposed, State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, ¶18 (“a judgment of conviction is a final appealable order under

R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding

of the court upon which the conviction is based; (2) the sentence; (3) the signature

of the judge; and (4) entry on the journal by the clerk of court”) (emphasis added),

meaning that there was no final conviction in Wyandot County at the time of his

original sentencing in Hardin County. Accordingly, because a traditional review

for vindictiveness is not applicable under a Foster resentencing, and because the

trial court’s imposition of a harsher sentence was based upon a conviction received

between the time of the original sentence and the resentencing, thereby rebutting



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any presumption of vindictiveness, we find there to be no error in ordering

Shepherd’s life sentences to be served consecutively to his conviction in Wyandot

County.     The trial court resentenced Shepherd anew, and it was simply his

misfortune that an additional conviction was present on the record to which the

trial court could order its sentence consecutive. Furthermore, because Wyandot

County imposed its life sentence consecutively to the life sentence imposed in this

case, any potential error in this case would not be prejudicial.

       {¶14} Accordingly, we overrule Shepherd’s first and second assignments

of error.

                            Assignment of Error No. III

       {¶15} In his third assignment of error, Shepherd argues that the State

breached the plea agreement. Specifically, he contends that the State failed to

pursue charges against his wife, Brandy Shepherd, in regards to her involvement

in the murders, and that it argued at resentencing that his life sentences be served

consecutively to his Wyandot County sentence, both in violation of the plea

agreement.

       {¶16} Initially, we note that Shepherd raised this same issue in his first

appeal that the State breached the plea agreement by failing to pursue charges

against Brandy. Consequently, because Shepherd has already raised the issue and

we have already decided there was no breach of the plea agreement, this argument



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is barred by res judicata. State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337,

syllabus (finding that “[u]nder the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding, except an appeal from that judgment, any

defense or any claimed lack of due process that was raised or could have been

raised by the defendant at the trial, which resulted in that judgment of conviction,

or on an appeal from that judgment.”) See, generally, State v. Driskill, 3d Dist.

Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶23.

      {¶17} A plea agreement is a contract between the prosecution and the

defendant and is governed by principles of contract law. State v. Smith, 3d Dist.

No. 11-09-02, 2009-Ohio-3154, ¶7, citing State v. Milligan, 3d Dist. No. 16-08-04,

2008-Ohio-4509,     ¶16.     When     reviewing    questions   involving   contract

interpretation, appellate courts use a de novo standard of review, Graham v.

Drydock Coal Co., 76 Ohio St.3d 311, 313, 1996-Ohio-393, and any ambiguous

terms in the plea agreement are construed against the State. Smith, 2009-Ohio-

3154, at ¶9, citing State v. Blaine, 4th Dist. No. 03CA9, 2004-Ohio-1241, ¶12;

United States v. Harvey (C.A.4, 1986), 791 F.2d 294, 300. Moreover, when a

guilty plea “rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Santobello v. New York (1971), 404 U.S. 257,



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Case No. 6-09-14


262. Accordingly, where the State fails to abide by the terms of a plea agreement,

the defendant may be entitled to withdraw his guilty plea or to the specific

performance of the agreement. State v. Crump, 3d Dist. No. 8-04-24, 2005-Ohio-

4451, ¶10.

       {¶18} Here, the plea agreement between the State and Shepherd provided

that the State would not seek the death penalty, but that it would seek the

imposition of life sentences for both counts, to be served consecutively. No

agreement was made as to whether the State would seek to have the sentences in

this case imposed consecutively to a sentence in Wyandot County. Moreover, at

the time of the original sentencing, a sentence had yet to even be imposed in

Wyandot County. Therefore, because there was no agreement on the matter, the

State was free at resentencing to request that Shepherd’s life sentences be served

consecutively to his sentence in Wyandot County.

       {¶19} Accordingly, we overrule Shepherd’s third assignment of error.

                            Assignment of Error No. IV

       {¶20} In his fourth assignment of error, Shepherd argues that the trial court

erred in denying his motion for a new attorney at resentencing. Specifically,

Shepherd asserts that the trial court failed to conduct a reasonable inquiry into his

claim of dissatisfaction with his trial counsel. We disagree.




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       {¶21} The substitution of counsel is within the discretion of the trial court,

and will not be overturned by the appellate court absent an abuse of that

discretion. State v. Kirk, 3d Dist. No. 14-06-28, 2007-Ohio-1228, ¶56, citing

Wheat v. U.S. (1988), 486 U.S. 153. An abuse of discretion connotes more than an

error of law or judgment and implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Nagle (2000), 11th Dist. No. 99-L-089,

2000 WL 777835, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

When applying an abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.

       {¶22} ‘“[W]hile the right to select and be represented by one’s preferred

attorney is comprehended by the Sixth Amendment, the essential aim of the

Amendment is to guarantee an effective advocate * * * rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he prefers.”’ State

v. Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-57, quoting Wheat, 486 U.S. at 159.

Accordingly, while a defendant has a Sixth Amendment right to competent

counsel, he has no right to counsel of his own choosing. Kirk, 2007-Ohio-1228, at

¶57, citing Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93. Furthermore, a

defendant’s right to competent trial counsel does not also include the right to a

“meaningful relationship” with his attorney. State v. Blankenship (1995), 102

Ohio App.3d 534, 558, quoting Morris v. Slappy (1983), 461 U.S. 1, 13.



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      {¶23} An indigent defendant is entitled to the discharge of his attorney

only upon a showing of good cause, ‘“such as a conflict of interest, a complete

break-down in the attorney-client relationship or an irreconcilable conflict which

leads to an apparently unjust result.”’ State v. McDowell, 3d Dist. No. 2-07-26,

2008-Ohio-1339, ¶10, quoting Blankenship, 102 Ohio App.3d at 558. See, also,

State v. White, 3d Dist. No. 9-98-52, 1999-Ohio-847. Additionally, a trial court is

under a duty to inquire into any claims of dissatisfaction with appointed counsel

made by a defendant. State v. Johnson, 179 Ohio App.3d 151, 2008-Ohio-5769,

¶48, citing State v. Deal, (1969), 17 Ohio St.2d 17, syllabus. This “inquiry may be

brief and minimal but it must be made.” State v. King (1995), 104 Ohio App.3d

434, 437, citing State v. Prater (1990), 71 Ohio App.3d 78; Deal, 17 Ohio St.3d

17.

      {¶24} In the case sub judice, Shepherd’s trial counsel informed the trial

court during the resentencing hearing that Shepherd no longer wished to retain him

as counsel. The trial court inquired of Shepherd as to his reason for wanting new

counsel, to which he replied that he failed to receive discovery documents from

counsel. Additionally, it appears from the record that Shepherd misunderstood the

reason for the proceedings, as he expressed a desire to withdraw his plea, and the

trial court promptly informed him that the proceedings were only for the very

limited scope of resentencing. Following the trial court’s multiple explanations to



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Shepherd that the purpose of the hearing was for resentencing only, the trial court

then discussed the applicable law for appointing substitute counsel and then

denied the motion.

       {¶25} Upon review of the record, we find that the trial court conducted a

sufficient inquiry into the reasons for Shepherd’s dissatisfaction with his trial

counsel. Although the trial court merely let him explain the reasons for his desire

to obtain substitute counsel, the trial court’s duty of inquiry is not expansive, and

we find that Shepherd’s explanation provided the trial court with sufficient

information to properly rule on the motion.

       {¶26} Moreover, we also find that the trial court did not abuse its discretion

in denying the motion.      Shepherd’s reason for wanting to discharge his trial

counsel, because he allegedly failed to provide him certain discovery materials, is

not sufficient to create ‘“a complete break-down in the attorney-client relationship

or an irreconcilable conflict.’”     McDowell, 2008-Ohio-1339, at ¶10, quoting

Blankenship, 102 Ohio App.3d at 558. Furthermore, Shepherd’s entry of a guilty

plea, instead of going to trial, lessens the significance of an alleged failure of trial

counsel to provide him specific discovery materials, and Shepherd presented no

evidence that could have led to a conclusion that his trial counsel would not have

been an effective advocate at the resentencing hearing. Instead, the complaint

made by Shepherd pertained more to the level of trust he had in his attorney,



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thereby relating to his desire for a “meaningful relationship” with his attorney, a

right not guaranteed by the Sixth Amendment. Blankenship, supra.

       {¶27} Accordingly, we overrule Shepherd’s fourth assignment of error.

       {¶28} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON, J., concurs.
/jlr


WILLAMOWSKI, P.J. Concurring Separately.

       {¶29} I concur fully with the majority opinion, however write separately to

emphasize that the appropriate standard of review was applied. In his first and

second assignments of error, Shepherd alleges that the trial court abused its

discretion in imposing a harsher sentence upon remand by ordering it to be served

consecutive to a sentence in another court.      Shepherd’s appeal of his felony

sentence was not pursuant to R.C. 2929.12, which, in my opinion would require an

abuse of discretion standard. Thus, the standard used to review this case, as set

forth in R.C. 2953.08(G) is the proper standard of review herein.




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