[Cite as State v. Foster, 2011-Ohio-3582.]


          Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 95586



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                   MICHAEL FOSTER
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                 Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CR-426781

               BEFORE:             Blackmon, P.J., Boyle, J., and Celebrezze, J.

               RELEASED AND JOURNALIZED:                      July 21, 2011
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                                       -i-

ATTORNEY FOR APPELLANT

Michael Foster, Pro Se
Inmate No. 423-695
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Matthew E. Meyer
Thorin O. Freeman
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Michael Foster, Pro Se, appeals his sentence and

assigns the following errors for our review:

      “I. The trial court erred in accepting appellant’s plea of guilty due
      to ineffective assistance of counsel.”

      “II. The trial court erred in refusing to rule on appellant’s pro se
      motions for appointment of new counsel, and then faulting the
      appellant for the court’s error in not ruling on the pro se motions.”

      “III. Prosecutor’s misconduct, more ineffective assistance of
      counsel”
                                       3
      “IV. The trial court erred in allowing multiplicity of indictments.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm Foster’s

conviction and sentence. The apposite facts follow.

      {¶ 3} Foster’s tortuous procedural history is sufficiently contained in

previous decisions from this court, the Northern District of Ohio, and the Ohio

Supreme Court.        State v. Foster, Cuyahoga App. No. 82207, 2003-Ohio-5636;

State v. Foster, Cuyahoga App. No. 82207, 2004-Ohio-2400; State v. Foster, 103

Ohio St.3d 1465, 2004-Ohio-5056, 815 N.E.2d 679; Foster v. Money (Nov. 8,

2007), N.D. Ohio No. 1:05 CV 1009; State, ex rel., Foster v. Cuyahoga Cty.

Court of Common Pleas, Cuyahoga App. No. 91965, 2008-Ohio-6645, and State

v. Foster, Cuyahoga App. No. 95209, 2011-Ohio-2781.           Consequently, our

discussion will be limited to his most recent claim.

      {¶ 4} On August 21, 2002, a Cuyahoga County Grand Jury indicted

Foster on 18 counts, including attempted murder, multiple aggravated

robberies and felonious assaults, stemming from five separate incidents. On

October 7, 2002, Foster pleaded not guilty at his arraignment and several

pretrials followed.

      {¶ 5} On November 13, 2002, pursuant to an agreement with the state,

Foster withdrew his not guilty pleas, pleaded guilty to 11 of the 18 charges,
                                       4
and the state nolled the remaining counts. The trial court accepted Foster’s

plea and sentenced him to a total of 84 years in prison.

      {¶ 6} On his direct appeal, Foster argued his pleas were not knowingly,

voluntarily, and intelligently made. Foster also argued the trial court erred

in imposing consecutive sentences on the firearm specifications. We affirmed

Foster’s guilty pleas to the offenses of attempted murder, aggravated robbery,

and felonious assault, but remanded for resentencing because the record failed

to support the consecutive sentences on the firearm specifications. State v.

Foster, Cuyahoga App. No. 82207, 2003-Ohio-5636.

      {¶ 7} On April 2, 2004, the trial court resentenced Foster, merged the

various   firearm   specifications,   and    imposed   a   58-year   prison   term.

Thereafter, Foster filed an application for reopening of our decision that

affirmed his guilty pleas. In his application, Foster argued he was denied the

effective assistance of counsel because appellate counsel failed to challenge

the voluntariness of his plea on the basis that he pled guilty solely to escape

the physically threatening conditions in the Cuyahoga County Jail.

      {¶ 8} We declined to reopen Foster’s appeal based on the doctrine of res

judicata. State v. Foster, Cuyahoga App. No. 82207, 2004-Ohio-2400. Foster

appealed to the Ohio Supreme Court, which declined review.            On April 20,
                                      5
2005, Foster filed a petition in the U.S. District Court for the Northern

District of Ohio for a Writ of Habeas Corpus by a Person in State Custody.

      {¶ 9} In the petition, Foster contended that the trial court erred when it

accepted his guilty pleas despite notice that he was suffering assaults as a

result of the state’s failure to protect him from the general population

inmates;1 that trial counsel was ineffective for failing to better relate to the

trial court his concerns, effectively forcing him to enter an involuntary plea to

escape the violence; and that appellate counsel was ineffective for failing to

challenge the voluntariness of his plea on the basis that it was entered solely

to escape harm from the general population inmates at the county jail.

      {¶ 10} On November 14, 2007, the United States District Court granted

Foster a conditional writ of habeas corpus requiring that the trial court permit

Foster to enter a new plea or to commence trial.       Foster v. Money (Nov. 8,

2007), N.D. Ohio No. 1:05 CV 1009.

      {¶ 11} On August 15, 2008, Foster filed a Motion for Discharge and for

Final Unconditional Writ of Habeas Corpus. In the motion, Foster asked the

U.S. District Court to change the conditional writ to an unconditional one and

discharge him from criminal liability for the indicted offenses because the


      1
       Foster was placed in protective custody based on his having saved several
prison guards during the infamous 1993 Lucasville prison riot.
                                     6
State of Ohio had missed the deadline for setting a trial by 20 days. The U.S.

District Court denied Foster’s request.

      {¶ 12} While Foster was filing the aforementioned appeals and petitions,

the victim of the attempted murder, Anwar Hamed, died as a result of the

injuries sustained. Subsequently, a grand jury indicted Foster for Hamed’s

murder, a jury trial was conducted, Foster was found guilty, and we affirmed

his conviction. State v. Foster, Cuyahoga App. No. 95209, 2011-Ohio-2781.

      {¶ 13} On May 3, 2010, a resentencing hearing was conducted as

mandated by the conditional writ of habeas corpus granted by the U.S.

District Court.   In exchange for an 18-year prison sentence, with credit for

time served, and to be served concurrently with the sentence for the murder

conviction, Foster pleaded guilty to aggravated robbery, attempted aggravated

murder, felonious assault, kidnapping, and possession of criminal tools. The

state dismissed the remaining charges.

      {¶ 14} On May 5, 2010, the trial court imposed the 18-year agreed upon

prison sentence, gave Foster nine years credit for time served, and ordered the

sentence to be served concurrently to the sentence for the murder conviction.

Foster now appeals.

                                 Guilty Plea
                                       7
       {¶ 15} In the first assigned error, Foster argues that his pleas were based

on ineffective assistance of counsel and, therefore, were not knowingly made.

We disagree.

       {¶ 16} Before deciding whether to plead guilty, a defendant is entitled to

“the effective assistance of competent counsel.” State v. Walz, 2d Dist. No.

23783, 2011-Ohio-1270, quoting McMann v. Richardson (1970), 397 U.S. 759,

751.   The facts of this case fail to show that Foster received ineffective

assistance of counsel pursuant to Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland requires a defendant to show,

first, that counsel’s representation fell below an objective standard of

reasonableness and, second, a reasonable probability that, but for counsel’s

perceived errors, the results of the proceeding would have been different. Id.

       {¶ 17} In the instant case, Foster argues defense counsel was ineffective

because he failed to communicate with him, failed to have him resentenced

within 120 days of the U.S. District Court’s order, and allowed Ohio’s speedy

trial to be violated. The record belies these assertions.

       {¶ 18} The following exchange took place at the plea hearing:

       “The Court: Has anyone, including the Court, your counsel, the
                       prosecutor, anyone made any promises or threats
                       besides what has been put on this record to force you
                       or induce you into entering into this plea?
                                      8
        “The Defendant:     Only promise that I’m aware of, and I want to
                      make sure that I got it right, that it’s a total of 18 year
                      sentence with nine years time served. I was arrested
                      September 13, 2001.         And I’m also under the
                      impression that there is no more gun specification
                      being attached to this.

      “The Court: Well, the sentence would be 18 years total. The three years
                        would be included in the 18 total. And you’ve already
                        served three.

      “The Defendant: Additional?

      “The Court: There is no additional gun specification on this case.

      “* * *

      “The Court: Now, let me ask you this, again, Mr. Foster, is this plea
                       voluntarily made of your own free will?

        “The Defendant:        Yes.

      “* * *
      “The Court: Mr. Foster, okay I’m satisfied, number one, that you clearly
                       understand the nature of the charges against you, that
                       you understand all your constitutional rights that you
                       have. I’ll accept your pleas of guilty here. * * *” Tr.
                       19-21.

      {¶ 19} Here, it is clear from the above excerpt, and elsewhere in the

record, that Foster fully understood the nature of his pleas.        Foster was

motivated by the agreed upon 18-year sentence, with nine years of time

served, to run concurrently with the prison sentence for the murder conviction

in the separate case. He also wanted to make sure that there would be no

additional firearm specification.
                                         9
         {¶ 20} In addition, Foster’s assertions that defense counsel caused Ohio’s

speedy trial statute to be violated is also unfounded.          Foster received the

following response when he filed a Motion for Discharge and for Final

Unconditional Writ of Habeas Corpus:

         “My order conditionally granting the writ of habeas corpus
         contemplated only a deadline by which the state court was to
         schedule a trial or Foster was to enter a new plea. The docket
         clearly shows, and I find, that it is not any action by the State that
         resulted in the trial not being scheduled by my deadline. Rather, it
         was Foster’s own requests for continuances of the February 7,
         2008 pretrial conference — and his request on March 6, 2008 for
         new counsel — that resulted in the trial being scheduled one week
         after my deadline. Furthermore, because Foster agreed to trials in
         June and September 2008, I conclude that he can show no
         prejudice.” Foster v. Money (Sept. 4, 2008), N.D. Ohio No. 1:05 CV
         1009.


         {¶ 21} Based on the foregoing and our thorough review of the transcripts

of the plea hearing, we find that Foster’s pleas were entered knowingly,

intelligently, and voluntarily. We also find no merit in Foster’s assertions

that he was denied the effective assistance of counsel. As such, the trial court

did not err by accepting his pleas. Accordingly, we overrule the first assigned

error.

                         Motion to Appoint New Counsel

         {¶ 22} In the second assigned error, Foster argues the trial court erred by

failing to rule on his motions for appointment of new counsel.
                                         10
      {¶ 23} Initially,   we   note,    in   order   to   justify   the   discharge   of

court-appointed counsel, an indigent defendant must show “good cause, such

as a conflict of interest, a complete breakdown in communication, or an

irreconcilable conflict that leads to an apparently unjust result.” State v.

Coleman, Cuyahoga App. No. 94866, 2011-Ohio-341, quoting State v. Pruitt

(1984), 18 Ohio App.3d 50, 480 N.E.2d 499.

      {¶ 24} Here, as discussed earlier, Foster knowingly pleaded guilty

pursuant to an agreement with the state, whereby he obtained an agreed upon

sentence of 18 years, with nine years credit for time served. The sentence

was ordered to be served concurrently with the sentence for the murder

conviction in a separate case.         Said plea agreement was brokered by the

defense counsel, whom Foster now complains was ineffective. As discussed

above, we found no evidence of deficiency in counsel’s performance on behalf of

Foster. Accordingly, we overrule the second assigned error.

                           Prosecutorial Misconduct

      {¶ 25} In the third assigned error, Foster argues that the prosecutor

withheld a written statement from Anwar Hamed, the victim in the murder

case, who indicated that another person shot him. Since Foster’s allegation

relates to the murder trial and not to the guilty pleas he entered in the instant
                                      11
appeal, we decline to address this issue. Accordingly, we overrule the third

assigned error.

                           Duplicate Indictments

      {¶ 26} In the fourth assigned error, Foster argues that the state was

guilty of misconduct and defense counsel was ineffective for failing to object to

duplicate indictments. Foster now contends that he pleaded guilty because of

the duplicate indictments. We find no merit to Foster’s assertions.

      {¶ 27} As   previously discussed, the record indicates that Foster

knowingly, intelligently, and voluntarily pleaded guilty in the instant case in

exchange for an agreed upon 18 year sentence, with nine years credit for time

served, to be served concurrently to the sentence for the murder conviction.

Further, the record indicates that the charges, which Foster claims were

duplicated, were dismissed by the state. Accordingly, we overrule the fourth

assigned error.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,
                                    12
any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
