[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-Ohio4518 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.