Opinion
No. 78569.
Decided November 29, 2001.
Criminal appeal from Common Pleas Court Case Nos. CR-385392 and CR-385393.
For plaintiff-appellee: William D. Mason, Esq., Cuyahoga County Prosecutor, BY: William R. Caine, Esq., Assistant County Prosecutor, The Justice Center 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113.
For defendant-appellant: Graig E. Kluge, Esq., The Islander Park Building One, 7550 Lucerne Drive, Suite 401, Middleburg Heights, Ohio 44130.
JOURNAL ENTRY and OPINION
Defendant-appellant herein, Carlos Wiggins, appeals from the trial court's denial of his motion to withdraw guilty plea, subsequent to his plea of guilty to charges of attempted felonious assault and possession of drugs in two separate lower court cases. Because we conclude that the trial court did not abuse its discretion in denying the motion, and as we also find no merit in the appellant's assignments of error arising out of his sentencing, we affirm the ruling of the trial court.
The appellant was indicted in a three count indictment in case number 385392 on January 5, 2000. Previously, on December 30, 1999, the appellant had been indicted on a two count indictment in case number 385393. In case number 385392, the appellant was charged with one count of possession of drugs in violation of R.C. 2925.11, one count of preparation for drugs for sale in violation of R.C. 2925.07 and one count of possessing criminal tools in violation of R.C. 2923.24. In case number 385393, the indictment contained two counts of felonious assault in violation of R.C. 2903.11, each count containing a firearm specification pursuant to R.C. 2941.145 and a police officer specification pursuant to R.C. 2903.11(B).
On May 4, 2000, the case was reassigned from the original trial judge to another judge of the same court after the initial trial judge recused herself. This recusal was occasioned by the appellant's trial counsel, who, immediately before trial was to commence and after a request for a continuance had been denied, made a request for recusal based on the alleged undue pressure exerted by the trial judge on the appellant to accept the terms of the plea bargain offered by the state.
Although there is no assignment in connection to the hearing on the request for recusal, the transcript of that hearing has been made part of the record of this appeal. We note that from our review of said transcript that the appellant's trial counsel's allegations of intimidation and unnecessary pressure seem substantially exaggerated. The trial judge's dialogue with the appellant appeared solely geared towards ensuring that the appellant understood the specifics of the plea bargain that had been offered to him prior to going to trial. This matter is relevant to the issue before this court because during the hearing on the motion to withdraw the guilty plea, the appellant's trial counsel repeatedly referred to the initial trial judges's totally inappropriate behavior as one of the factors which motivated the appellant to enter a guilty plea, even after the case had been transferred to another judge.
On June 20, 2000, the appellant entered a plea of guilty to one count of attempted felonious assault, with the specifications deleted, and one count of possession of drugs. The attempted felonious assault charge as amended was a third degree felony and the possession of drugs count was a fifth degree felony. The plea was entered before yet another trial judge as the judge to whom the case had been reassigned was not available to take the plea on the day that the appellant agreed to accept the plea bargain offered to him. At the time of the plea, the appellant's trial counsel represented to the court that he had discussed the plea with the appellant, including all possible penalties and the trial court's discretion as to whether or not to impose community control sanctions. Counsel stated that in his professional opinion the plea was knowing, intelligent and voluntary. At the close of the plea hearing, a sentencing hearing was set for August 16, 2000.
On August 10, 2000, the appellant filed a motion to withdraw his plea of guilty. The motion states that the appellant was motivated to attempt to change his plea by the slaying of a Cleveland police officer in the interim time period between the time of the plea and the date scheduled for sentencing:
In the case at bar, after the defendant plead, Wayne Leon, Cleveland Police Officer, was shot and killed. The original allegations herein are that the defendant pointed a gun at Cleveland Police Officers (sic). Even though there is no allegation that the defendant shot at anyone * * * the defendant fears that the current climate in Cleveland towards police will result in a prison sentence rather than community control. Since the defendant could not defend himself in prison with one arm, he desires to try the case.
This rationale for being permitted to withdraw his plea of guilty is completely inconsistent with the argument made by appellant's trial counsel at the hearing on the motion to withdraw the guilty plea wherein counsel argued that the appellant regretted his decision almost immediately, became nearly hysterical and called counsel on the evening of the plea hearing requesting that counsel file the necessary paperwork to permit the withdrawal of the plea.
The trial court converted the August 16, 2000 sentencing hearing to a hearing on the merits of the motion. At the hearing on the motion to withdraw the guilty plea, the appellant's trial counsel stated that the appellant felt residual pressure to enter into the plea from the proceedings which had occurred in the courtroom of the first judge who had been assigned the case and from trial counsel himself who repeatedly urged the appellant to come on, come on, make a decision. At no time during this hearing was the murder of Officer Leon mentioned as a reason that the appellant desired to withdraw his guilty plea.
At the completion of the hearing on the motion to withdraw the guilty plea, the motion was denied by the court. The trial court continued sentencing until the next day, August 17, 2000. At sentencing, the appellant received a sentence of one year on case number 385392 and two years on case number 385393. The two sentences were ordered to be served concurrently.
The appellant filed the within appeal from the ruling of the trial court on the motion to withdraw guilty plea and from the sentence imposed at sentencing on September 13, 2000.
The appellant presents three assignments of error for this court's review. The appellant's first assignment of error states:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT FAILED TO PROPERLY CONDUCT A HEARING UPON THE DEFENDANT-APPELLANT'S PRESENTENCE WRITTEN MOTION TO WITHDRAW HIS PLEA OF GUILTY.
Contrary to the assertion made by the appellant in this assignment of error, the trial court did properly conduct a hearing on the appellant's motion to withdraw his guilty plea. The motion was not filed until six days prior to the date scheduled for sentencing. A copy of the motion may or may not have been served upon the prosecutor's office. The trial court continued the sentencing hearing so that a full hearing could be had on the motion on August 16, 2000.
There is no indication in the record that the appellant's counsel was in any way limited by the trial court in his presentation of the motion. To the contrary, appellant's trial counsel was given all the time that he felt was needed to present and argue the motion. There was never any suggestion made prior to, during or subsequent to the hearing that the appellant's counsel was unable to properly prepare for the hearing, subpoena witnesses and discuss the case with the State as the appellant asserts in his brief filed with this court. Accordingly, any error in this regard was waived at the trial court level.
Crim.R. 32.1 provides:
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
In State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraphs one and two of the syllabus, the Supreme Court held:
1. A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.
2. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court.
Where a defendant (1) is represented by competent counsel, (2) is given a full hearing before entering the plea, and (3) is given a hearing on the motion to withdraw during which the court considers the defendant's arguments in support of the motion, the trial court does not abuse its discretion in denying the plea withdrawal. State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863, 865-866. See, also, State v. Lockett, (Mar. 6, 1996), Summit App. No. 17523, unreported.
The fact that the appellant presented totally different, and largely incompatible, bases for his desire to withdraw his guilty plea in the motion and during the hearing could have properly been considered by the trial court as reflecting on the credibility of both the appellant and his trial attorney. Nowhere in the motion and accompanying brief filed with the trial court is it stated that the appellant desired to withdraw his guilty plea because he was not guilty of the crimes to which he pled. Rather, the motion states, [d]efendant has decided that the plea was not voluntarily made since it was based on information which he perceives to be based on misrepresentations by the arresting agencies as they pertain to his involvement in the above captioned case. Such a statement is a far cry from a denial of guilt. The contention in the motion that the appellant desired to withdraw his plea because of a fear that the trial court would impose a longer sentence in the wake of the murder of Officer Leon is not only legally insufficient under State v. Xie, supra, but also strikes this court as crass opportunism.
The trial court in the case sub judice did not err in concluding that the appellant failed to articulate a reasonable and legitimate basis to withdraw his guilty plea. It was not a reasonable basis to withdraw the plea that the appellant felt that he stood a greater chance of getting jail time for his crimes after a totally unrelated murder of a Cleveland police officer. It was also not a legitimate basis for the withdrawal of a plea that the appellant believed that he may not be able to defend himself in prison because his arm was injured.
The only other coherent basis for the motion stated by appellant's trial counsel was that the appellant had been previously intimidated by the judge initially assigned to the case. As was stated earlier in this opinion, our review of the record is not consistent with the claims of undue intimidation and coercion on the part of the trial judge initially assigned to the case. Additionally, when the case was reassigned to another judge, this issue became entirely moot. It was disingenuous for the appellant to assert that his plea of guilty was occasioned by the continuing trauma of his exchange with the judge originally assigned to hear his case over whether he should accept the terms of a plea bargain that had been offered. The trial judge correctly observed that this stated basis for the motion was completely lacking in credibility.
The appellant's arguments in favor of withdrawing his plea viewed cumulatively amounted to little more than a mere change of heart, which is insufficient justification to withdraw a guilty plea. State v. Drake (1991), 73 Ohio App.3d 640; State v. East (Mar. 22, 2001), Cuyahoga App. No. 78877, unreported.
Thus, because we conclude that the trial court did not abuse its discretion in denying the motion to withdraw guilty plea, this assignment of error is overruled.
The appellant's second assignment of error states:
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT FAILED TO ALLOW DEFENSE COUNSEL AND DEFENDANT-APPELLANT TO REVIEW AND COMMENT ON THE PRESENTENCE INVESTIGATION REPORT AS MANDATED BY R.C. 2951.03 PRIOR TO SENTENCING DEFENDANT-APPELLANT.
The court, at a reasonable time before sentencing, shall permit the defendant or the defendant's counsel to read the presentence investigation report. R.C. 2951.03(B)(1); State v. Cook (1998), 83 Ohio St.3d 404.
This court finds no evidence in the record that the presentence report in question was ever requested by the appellant prior to sentencing.
The appellant maintains that [d]efense counsel stated that he was unable to view the pre-sentence investigation report, and cites as support of this proposition the transcript from the hearing on the motion to withdraw the guilty plea, not the transcript from the sentencing hearing. The portion of the transcript referred to by appellant reads as follows:
At all times he maintains his innocence. He maintained his innocence at the plea. I didn't see the PSI, but I assumed he maintained it there. (Emphasis added.)
The appellant is attempting to persuade this court that a statement of fact by the appellant's trial counsel that he had not seen the presentence investigation report amounts to a request to see the same and further asks that this court infer that the request was denied by the trial court. Clearly, no such request was ever made notwithstanding the appellant's strained interpretation of the record. There is no affirmative duty incumbent upon the trial court to inquire whether defense counsel is interested in viewing the contents of a presentence investigation report, especially in view of the indifference shown by defense counsel herein.
For the foregoing reasons, this assignment of error is overruled.
The appellant's third assignment of error states:
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT SENTENCED DEFENDANT-APPELLANT TO A DEFINITE SENTENCE OF TWO (2) YEARS IN CASE NUMBER 385393 AND ONE (1) YEAR IN CASE NUMBER 385392 AND FAILED TO REVIEW ALL OF THE STATUTORY FACTORS ANNOUNCED IN R.C. 2929.12.
R.C. 2929.12(A) requires only that a trial court consider the relevant sentencing factors relating to the seriousness of the crime(s) and the likelihood of recidivism. The record in this case demonstrates that the trial judge thoroughly considered all relevant factors prior to imposing sentence.
The trial court reviewed the appellant's lengthy criminal history, his failure to respond favorably to past sanctions, his continuing drug dependency and the lack of any remorse demonstrated for the commission of the crime for which he was convicted.
Under R.C. 2929.19(B)(2), the court is required to make a finding and give reasons for selecting the sentence imposed under five circumstances. None of those five listed circumstances are applicable to the appellant in this case. Therefore, the court was not required to state its reasons in this case for imposing the two year term of incarceration. State v. Hayes (Nov. 2, 2000), Cuyahoga App. No. 77491, unreported.
Accordingly, this assignment of error is overruled.
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 issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, 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.
JOSEPH J. NAHRA, J., CONCURS. TIMOTHY E. McMONAGLE, P.J., DISSENTS WITH SEPARATE DISSENTING OPINION.
SITTING BY ASSIGNMENT: Judge Joseph J. Nahra, Retired, of the Eighth District Court of Appeals.
I dissent. Although I concur with the majority's disposition of appellant's second assignment of error, I would sustain appellant's first and third assignments of error and find that the trial court erred both in denying appellant's motion to withdraw his guilty plea and in sentencing him.
I believe that it is necessary to fully set forth the factual and procedural background of this case, which the majority fails to do. This case arose out of the execution of a search warrant by City of Cleveland police officers on December 19, 1999. An informant had told the police that someone named "Tez" was dealing cocaine out of 1012 Prospect, Apartment 607, in the City of Cleveland. Tez actually lived in Apartment 707, however; appellant lived in Apartment 607. The informant described Tez as 6' tall, weighing 170 pounds; appellant is 5'4" and weighs 140 pounds. At the time of this incident, appellant was missing the tip of the index finger of his right hand.
To execute the warrant, the police officers obtained a key to Apartment 607 from the landlord and, without announcing themselves, attempted to open the door to Apartment 607. Appellant, hearing suspicious noises, stepped out in the hall. The officers, who subsequently alleged that appellant had a gun, shot at appellant, shattering his left arm and leaving it totally paralyzed. Upon entering appellant's apartment, the officers found no cocaine but did find various items of drug paraphernalia relating to marijuana use.
On December 30, 1999, appellant was charged in Case No. CR-385393 with two counts of felonious assault, in violation of R.C. 2903.11. Each count contained a firearm and peace officer specification, in violation of R.C. 2941.145 and R.C. 2903.11(B) respectively.
On January 5, 2000, appellant was also indicted in Case No. CR-385392 on one count of possession of drugs, in violation of R.C. 2925.11; one count of preparation of drugs for sale, in violation of R.C. 2925.07; and one count of possessing criminal tools, in violation of R.C. 2923.24.
On April 4, 2000, the State offered a plea agreement to appellant. The State's offer was substantial: in exchange for appellant's plea to an amended charge of attempted felonious assault in Case No. CR-385393, it would delete both specifications, making the charge a third degree felony. In Case No. CR-385392, the State offered to dismiss two counts of the indictment in exchange for appellant's plea to an amended charge of attempted preparation of drugs for sale, a fifth degree felony. Thus, on the felonious assault charges, the State offered to reduce appellant's prison time from a minimum of six to thirteen years in prison on each count, including mandatory prison terms of three years on each specification, to one to five years in prison, with no mandatory term.
During discussions with the trial judge during the hearing regarding the plea offer, appellant admitted the drug charges, but emphatically denied that he had shot at anyone on December 19, 1999, stating, "I shouldn't be punished for something I didn't do. I know whether (sic) they know and God know[s], I didn't attempt to hurt nobody that day. I face up to the marijuana. I be a man to that."
After the plea offer hearing, defense counsel filed a motion for recusal of the original trial judge, in light of his perception of her undue pressure on appellant at the plea offer hearing to accept the State's offer. On April 14, 2000, a hearing was held regarding counsel's motion. On May 4, 2000, the administrative judge of the Cuyahoga County Court of Common Pleas transferred both cases to another judge "for good cause shown."
Subsequently, appellant decided to accept the State's plea offer. Because the new judge to whom the cases had been reassigned was not available, on June 20, 2000, appellant entered his plea before yet another judge. Appellant was referred to the Probation Department for a pre-sentence investigation report and sentencing was set for August 16, 2000.
On August 10, 2000, appellant filed a motion to withdraw his guilty plea. In his motion, appellant asserted that his plea was "based on information which he perceives to be based on misrepresentations by the arresting agencies as they pertain to his involvement in the case." Appellant also asserted that due to the recent shooting and death of a Cleveland police officer, he was fearful that the "current climate in Cleveland towards police" would result in a prison sentence, rather than community control.
The trial judge to whom the cases had been reassigned held a hearing regarding appellant's motion on August 16, 2000. At the hearing, appellant's counsel informed the court that this was the first motion to withdraw a plea that he had filed in twenty-five years of practice. Counsel argued that appellant's plea was not truly voluntary because, although appellant had been extremely reluctant to take the plea, he (counsel) had pressured appellant to "make a decision, make a decision," thereby tainting the voluntariness of appellant's plea. Counsel also argued that appellant's plea was not truly voluntary because the undue pressure to accept the State's plea offer exerted on appellant by the original judge on the cases had left a residual effect on appellant that remained even after the cases had been reassigned to another judge. The trial judge refused to consider how the influence of the first judge may have affected the voluntariness of appellant's plea, however, informing counsel that he was to limit his argument to only what had transpired at the hearing where appellant entered his plea.
Defense counsel also informed the trial court that appellant had changed his mind within hours of taking the plea and had telephoned him the evening of June 20, 2000, "nearly hysterical" about what he had done, to ask counsel how to vacate his plea. Defense counsel stated that in the following weeks, he spent many hours with appellant discussing the lengthy prison term he faced if convicted at trial.
According to defense counsel, appellant maintained his innocence of the felonious assault charges throughout their discussions, as he had with the original trial judge. Counsel informed the court that when the police shot appellant and shattered his arm, "there was blood everywhere." Therefore, counsel argued, if appellant did, in fact, have a gun when he stepped in the hallway and was shot by the police, he would have dropped the gun in the hallway and there would have been blood on the gun. The gun was found in a bathroom in appellant's apartment, however, and there was no blood on the gun or within ten feet of where it was found. In short, counsel asserted that appellant wanted to go to trial because the police were lying about his involvement in the events of December 19, 1999.
The trial court denied appellant's motion, reviewed appellant's presentence investigation report with him and then abruptly announced, "Sentencing on this case will be continued pending further investigation."
The next day, on August 17, 2000, the trial court sentenced appellant to a two-year prison term on the attempted felonious assault charge and one year on the drug charges, the sentences to be served concurrently. At the hearing, defense counsel noted that he had observed pictures of the alleged crime scene on the trial judge's bench that morning. Defense counsel noted that the pictures had not been produced in the hearing held the day before and that although he had asked the prosecutor for them during the hearing, the prosecutor had indicated that he did not have them in his file. The trial judge then acknowledged that he had requested the pictures from the prosecutor after the hearing:
The Court requested them and they were provided by the Prosecutor's Office. They were requested by the Court to analyze the allegations that you made yesterday on the record.
Defense counsel objected to the ex parte solicitation of the photographs by the court and the production of the photographs by the State, noting that because the pictures were not produced in his or appellant's presence, he did not know what the prosecutor and judge had discussed regarding the photographs and, furthermore, he had not been given any opportunity, prior to sentencing, to explain the photographs. The trial judge ignored the objections and ordered appellant's sentence into execution. Despite the trial judge's assertion on the record that the pictures would be entered into evidence as the Court's Exhibit A, they are not part of the record.
In light of this factual and procedural background, it is apparent that the trial court abused its discretion in denying appellant's motion to withdraw his plea. The record clearly refutes the majority's contention that the trial court properly denied appellant's motion because he presented "totally different, largely incompatible" bases to withdraw his plea in his motion and at the hearing. Rather, the record demonstrates that appellant presented the same reason in both his motion and at the hearing for withdrawing his plea: he was innocent of the felonious assault charges and the police were lying about his involvement in the events of December 19, 1999. In his motion, appellant stated that his plea was not voluntary because it was based on "misrepresentations by the arresting agencies as they pertain to his involvement in the case." Similarly, at the hearing, defense counsel asserted that the police officers were not telling the truth about appellant's involvement in the incident because 1) appellant cannot hold a gun in his right hand because the tip of his index finger is missing; and 2) if he had been holding a gun in his left hand, he would have dropped it in the hallway when the officers shot at him and shattered his left arm. Instead, the gun was found in the bathroom and there was no blood on or around it.
Thus, contrary to the majority's assertion that appellant never asserted that he wanted to withdraw his plea because he was innocent, appellant clearly stated that he wanted to withdraw his plea because he was not guilty. A defendant's assertion that he wishes to withdraw his guilty plea prior to sentencing because he is innocent is not merely "crass opportunism," as the majority inexplicably contends, but a reasonable and legitimate basis to withdraw a guilty plea.
When a defendant claims he is innocent and wishes to withdraw his plea of guilty prior to sentencing, a comparison of the interests and potential prejudice to the respective parties weighs heavily in the interest of the accused. That is, in such a situation we have the inconvenience to the State of proving the guilt of a defendant at trial versus the possibility that a person has plead guilty to a crime they did not commit. Absent any showing of some other real prejudice to the state which occurred solely as a result of entering into a plea bargain, as here, the potential to the state in vacating the plea is slight, whereas the potential harm to the defendant in refusing to vacate the plea is great. Statev. Cuthbertson (Sept. 21, 2000), Mahoning Cty. App. No. 98 CA 133, unreported.
Here, there is no allegation that the State's case would be prejudiced whatsoever upon the withdrawal of appellant's plea. Indeed, the only "prejudice" would be that the State would be required to prove its case against appellant despite appellant's challenge to the veracity of the State's witnesses.
The trial court's abuse of discretion in denying appellant's motion is even more glaring in light of the procedural history of this case. The judge who denied appellant's motion to withdraw his plea was not the same judge who took the plea nor even the judge who presided over the hearing to put the State's offer on the record. Thus, the judge was not privy to what had transpired in the first hearing sufficient to cause the administrative judge to transfer the cases to another judge for good cause shown. Without any knowledge regarding what had actually occurred, the judge erred in totally disregarding the residual effect on appellant of the original judge's pressure to accept the State's plea offer. To assert, as the majority does here, that any negative influence on appellant's ability to make a truly voluntary plea became entirely moot when the cases were transferred to another judge completely ignores the realities of the human psyche.
The trial judge also erred in ignoring the representations of appellant's counsel that appellant's plea was not truly voluntary because he had tainted the voluntariness of appellant's plea by pressuring him to make a decision. This representation was very significant in light of counsel's statement that this was the first such motion he had filed in twenty-five years of practice.
Accordingly, in light of appellant's consistent assertions of innocence, the representations of appellant's counsel, the lack of prejudice to the State in granting the motion and because a motion for leave to withdraw a guilty plea prior to sentencing is to be freely granted, I would find that the trial court abused its discretion in denying appellant's motion.
I would also find that the trial judge committed plain error in sentencing appellant because he conducted a sua sponte investigation prior to sentencing by obtaining photographs from the prosecutor that were not in evidence and then did not give appellant an opportunity to explain or contest the accuracy of the photographs.
A trial judge must at all times avoid the appearance of impropriety and must not compromise the complete impartiality of the judicial function by giving the impression that he has assumed the investigative duties of the prosecution and law enforcement. Such conduct may lead to consideration of information or evidence not properly before the court. As a result, neither the defendant nor the prosecutor will be afforded the opportunity to contest the veracity of this improper information or evidence.
State v. DeGueurce (1998), 710 So.2d 296, 303.
Here, the record reflects that the trial judge concluded the August 16, 2000 hearing by announcing, Sentencing on this case will be continued pending further investigation, although neither the prosecutor nor defense counsel had requested any further investigation. The record also reflects that the judge admitted that he solicited photographs of the alleged crime scene from the prosecutor after the August 16, 2000 hearing and that the photographs were given to him outside defense counsel's presence prior to the trial court's sentencing of appellant on August 17, 2000. The record also reflects that appellant was not given an opportunity, prior to sentencing, to explain or rebut the photographs. Finally, the record reflects that the photographs were never admitted in evidence.
Fundamental due process requires that a defendant be given an opportunity to respond to information of a substantial nature to which the sentencing court is exposed when there is a reasonable probability that such information contributed to the harshness of the defendant's sentence. Here, it is apparent that the trial court considered the photographs in imposing appellant's sentence; indeed, the trial judge stated that he requested the photographs in order to analyze the statements made by defense counsel regarding the December 19, 1999 incident. It is also apparent that the trial judge sentenced appellant without allowing him an opportunity to address the photographs on the record. Accordingly, I would hold that the trial court committed plain error in sentencing appellant.