[Cite as State v. Floyd , 2011-Ohio-558.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                              LAWRENCE COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 10CA14
                                :
     vs.                        : Released: January 27, 2011
                                :
MICHAEL C. FLOYD,               : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Michael A. Davenport, Ironton, Ohio, for Appellant.

J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Robert. C.
Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton, Ohio,
for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} This is an appeal from a plea entered, pursuant to a negotiated

plea agreement and agreed sentence, in the Lawrence County Court of

Common Pleas, by Appellant, Michael Floyd, to one count of assault on a

peace officer, a fourth degree felony, in violation of R.C. 2903.13(A)(C)(3).

On appeal, Appellant raises three purported assignments of error, although

only one is separately argued or briefed. Those assignments of error are as

follows: 1) the court erred in failing to sentence Appellant while he was

properly medicated and thus capable of knowingly and intelligently waiving
Lawrence App. No. 10CA14                                                          2


his rights and entering a plea; 2) the court erred in failing to ascertain that

Mr. Floyd’s medications had not been properly and consistently

administered during the period between his return to the Lawrence County

jail and his sentencing hearing; and 3) at the time of sentencing, Appellant

was not capable of understanding the proceedings due to failure of the

responsible authorities to provide his needed psychiatric medications and to

schedule his hearing in a timely manner.

      {¶2} Because Appellant did not separately argue or brief his first and

second purported assignments of error, we decline to address them. App.R.

12(A)(2). Further, because we conclude that Appellant did not move to

withdraw his plea at the trial court level, we are precluded from reviewing

the issue for the first time on appeal. As such, we overrule Appellant’s third

and final assignment of error. Accordingly, the judgment of the trial court is

affirmed.

                                    FACTS

      {¶3} Appellant was indicted on February 13, 2009, on charges of

assault on a peace officer, a fourth degree felony in violation of R.C.

2903.13(A)(C)(3), and resisting arrest, a first degree misdemeanor in

violation of R.C. 2921.33(B). Appellant entered joint pleas of not guilty and

not guilty by reason of insanity to the charges. On February 23, 2009, the
Lawrence App. No. 10CA14                                                       3


trial court issued an order directing the evaluation of Appellant’s mental

condition at the time of the commission of the offenses. Thereafter, an

evaluation was conducted and on May 27, 2009, the results of the evaluation

by Shawnee Forensic Center were filed with court, indicating that the

evaluator was unable to conclude whether or not Appellant met the criteria

for a not guilty by reason of insanity plea.

      {¶4} As a result, at a hearing conducted May 27, 2009, the parties

stipulated that Appellant was incompetent to stand trial, but that he was also

restorable to competency. Subsequently, by order dated June 8, 2009, the

trial court ordered that Appellant receive psychiatric stabilization and

restoration at Appalachian Behavioral Heathcare, a facility operated by the

Ohio Department of Mental Heath. On July 27, 2009, Appalachian

Behavioral Healthcare, drafted a letter to the trial court stating the Appellant

had been restored to competency. Thereafter, the trial court held a hearing

on July 31, 2009, wherein the parties stipulated to Appellant’s competency

based upon the report and the trial court permitted Appellant to withdraw his

previous plea of not guilty by reason of insanity.

      {¶5} On August 19, 2009, a change of plea and sentencing hearing

was held. At the hearing, Appellant waived his right to a trial by jury both

in writing and orally on the record. He entered a plea of “Guilty. No contest
Lawrence App. No. 10CA14                                                        4


guilty” pursuant to a negotiated plea agreement whereby the State agreed to

dismiss the misdemeanor charge and recommend four years of community

control and time served, in exchange for Appellant’s agreeing to plead to the

felony charge. The trial court accepted Appellant’s plea and sentenced him

accordingly, issuing its final, appealable order on August 21, 2009.

       {¶6} On March 25, 2010, Appellant filed a motion for leave to file

appeal out of time. In the motion, Appellant stated that he suffered from a

lifelong mental disability for which he takes prescription medications and

that at the time of his sentencing, he had not been receiving his medications

in proper dosages or at all. By entry dated May 12, 2010, we granted

Appellant’ motion. On appeal, Appellant sets forth the following

assignments of error.

                        ASSIGNMENTS OF ERROR

“I.    THE COURT ERRED IN FAILING TO SENTENCE MR. FLOYD
       WHILE HE WAS PROPERLY MEDICATED AND THUS
       CAPABLE OF KNOWINGLY AND INTELLIGENTLY WAIVING
       HIS RIGHTS AND ENTERING A PLEA.

II.    THE COURT ERRED IN FAILING TO ASCERTAIN THAT MR.
       FLOYD’S MEDICATIONS HAD NOT BEEN PROPERLY AND
       CONSISTENTLY ADMINISTERED DURING THE PERIOD
       BETWEEN HIS RETURN TO THE LAWRENCE COUNTY JAIL
       AND HIS SENTENCING HEARING.

III.   AT THE TIME OF SENTENCING, THE APPELLANT WAS NOT
       CAPABLE OF UNDERSTANDING THE PROCEEDINGS DUE TO
       FAILURE OF THE RESPONSIBLE AUTHORITIES TO PROVIDE
Lawrence App. No. 10CA14                                                       5


      HIS NEEDED PSYCHIATRIC MEDICATIONS AND TO
      SCHEDULE HIS HEARING IN A TIMELY MANNER.”

                                 ANALYSIS

      {¶7} As indicated above, Appellant did not argue his first and second

assignments separately in his brief, as required by App.R.16(A). Thus, in

accordance with App.R. 12(A)(2), we decline to address them.

      {¶8} In his third assignment of error, Appellant contends that at the

time of sentencing, he was not capable of understanding the proceedings due

to failure of the responsible authorities to provide his needed psychiatric

medications and to schedule his hearing in a timely manner. Specifically,

Appellant alleges that he was without his prescription medications for at

least five days prior to his plea and sentencing hearing. These prescription

medications were ones prescribed in connection with Appellant’s restoration

to competency, in order to stand trial. As a result, he contends he was in a

state of diminished capacity and thought he was pleading to the

misdemeanor charge that was dismissed, rather than the felony charge upon

which he was ultimately convicted. Thus, Appellant essentially argues that

he did not knowingly and intelligently waive his constitutional rights and

seeks withdrawal of his plea on that basis.

      {¶9} Initially, we question whether Appellant can pursue this appeal,

considering that that R.C. 2953.08(D) normally bars a defendant from
Lawrence App. No. 10CA14                                                           6


appealing a jointly recommended sentence that has been accepted by the trial

judge, as is the case sub judice. However, because Appellant is arguing that

his plea was invalid, R.C. 2953.08, which deals solely with sentencing, is

not controlling. State v. Gibson, Mahoning App. No. 07MA98, 2008-Ohio-

4518 at ¶ 7 (reasoning that the challenge of plea agreement is not governed

by R.C. 2953.08); See, also, State v. Royles, Hamilton App. No. C-060875-

76, 2007-Ohio-5348 at ¶10 (noting that while an appellate court cannot

review and agreed sentence, it can review the validity of the plea leading to

the agreed sentence).

       {¶10} Nonetheless, before reaching the merits of Appellant’s assigned

error, we also note that Appellant, having never moved for withdrawal of his

plea at the trial court level, is challenging the validity of his plea for the first

time on appeal. In State v. Sumes, the fifth district court of appeals was

confronted with a similar situation, wherein the appellant, having never filed

a motion to withdraw his plea at the trial court level, claimed for the first

time on appeal that his plea was involuntary. Stark App. No. 2001CA00196,

2002-Ohio-1582. In Sumes, the court stated as follows:

“We note that appellant makes this argument for the first time on appeal.
The record and transcript of the plea hearing indicate that appellant never
made any request in the trial court to withdraw his guilty plea prior to or
following sentencing as required by Crim.R. 32.1. Failure to assert an
alleged error in the trial court waives that error on appeal. State v. Awan
(1986), 22 Ohio St.3d 120, 122, 489 N.E.2d 277.”
Lawrence App. No. 10CA14                                                       7



As in Sumes, Appellant herein failed to seek a withdrawal of his plea either

before or after sentencing at the trial court level. Thus, we are precluded

from reviewing that issue for the first time on appeal.

      {¶11} We are mindful that in other cases, such as State v. Ketterer,

111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48 and State v. Ferguson,

108 Ohio St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, the Supreme Court

of Ohio addressed requests for withdrawal pleas on appeal, with no apparent

request having previously been made at the trial court level. However, we

note that in each of those cases, arguments were raised regarding ineffective

assistance of counsel, which inquiry involves a separate test that questions

whether the plea would have been made but for the ineffective assistance of

counsel. Because ineffective assistance of counsel has not been raised in the

present appeal, we find the aforementioned cases to be factually

distinguishable, and instead find Sumes to be more factually on point.

      {¶12} We also note, for the record, that the only actual evidence

Appellant offers in support of his argument that he was without his

medication for five days prior to sentencing, is in the form of an

Appalachian Behavioral Healthcare Discharge Summary, which appears in

the appendix of Appellant’s brief. However, we note that this document was

not made part of the record below and, had we reached the merits of the
Lawrence App. No. 10CA14                                                       8


appeal, we would not have been permitted to consider it, as it was not

properly before us.

      {¶13} In light of the foregoing, Appellant’s third assignment of error

is overruled. Accordingly, we affirm the decision of the trial court.

                                              JUDGMENT AFFIRMED.
Lawrence App. No. 10CA14                                                        9


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant 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 Lawrence 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 BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

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

Harsha, P.J. and Abele, J.: Concur in Judgment Only.

                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          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.
