The Akron Legal News

Death sentence upheld for man who bludgeoned ex-girlfriend to death

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 16, 2014

A convicted killer recently lost his appeal when the 5th District Court of Appeals rejected his allegation that his trial counsel talked him out of a plea deal that could have saved his life.

The Licking County Court of Common Pleas found Phillip Elmore guilty of aggravated murder for the June 2002 slaying of his ex-girlfriend.

The facts of the case state that while 47-year-old Pamela Annarino was attending her son’s wedding, Elmore broke into her Newark home and waited for her.

Upon her return, Elmore killed Annarino by strangling her and striking her in the head with a pipe.

The trial court sentenced him to death for his crimes and the Ohio Supreme Court affirmed his conviction and sentence.

Elmore lost several subsequent appeals and motions for postconviction relief.

Then, in August 2011, Elmore filed a motion for leave to a file a motion for new trial based on newly discovered evidence.

That motion was based on Elmore’s allegation that his trial attorney convinced him to reject a plea offer that would have saved his life because the attorney needed to participate in two capital jury trials to further his own career.

The trial court granted Elmore leave to file a motion for a new trial and held an evidentiary hearing in February 2013.

At that hearing, Elmore explained that J. Michael King was appointed as lead counsel on his case and Andrew Sanderson was appointed as co-counsel.

At that time, Sanderson was certified as capital trial co-counsel, but not as lead counsel under Rule 20 of the Ohio Rules of Superintendence.

Under those rules, Sanderson had to participate in two capital jury trials to be granted first-chair status.

The trial court determined that Elmore did not have a strong case prior to trial, evidence was overwhelming and the victim died “a gruesome death.”

Eventually, the prosecution offered a plea deal in which Elmore could plead guilty and the state would recommend life without parole and would not pursue the death penalty.

King met with Elmore alone to discuss the offer and Elmore signed off, expressing his wish to accept the offer.

On the day that Elmore was scheduled to formally accept the offer and enter his guilty pleas, Sanderson met with him.

Shortly thereafter, Sanderson told King that Elmore no longer wished to accept the plea offer.

Based on Elmore’s refusal to enter a plea deal, King withdrew from the case and Brian Rigg took over as lead counsel.

Over the next several months, Rigg and Sanderson discussed negotiating a plea deal several times with Elmore.

However, Elmore elected to proceed to trial and even told the jury during mitigation, “I’m truly sorry for what I have done. But I feel that I deserve the worst punishment that there is. That’s one thing I agree with the prosecutor.”

In arguing that he had newly discovered evidence, Elmore provided an affidavit from Shanda Behrens, a former associate of Sanderson’s who worked with him on Elmore’s case.

Behrens testified that Sanderson expressed a keen interest in going to trial in the case so that he could complete his Rule 20 requirements and be promoted to first-chair.

She said Sanderson was clearly disappointed when Elmore agreed to a plea deal because he needed the case to go to trial and became preoccupied with his desire.

However, Behrens acknowledged that she never heard Sanderson talk Elmore out of the plea offer or advise Elmore that he should proceed to trial.

She also admitted that Elmore may have indicated “he did not have anything to lose by going to trial” because he would die in prison anyway and “if they want to kill me, I might as well have a trial.”

Sanderson also testified and denied talking Elmore out of the plea deal.

King and Rigg gave similar testimony and Rigg added that Sanderson discussed plea deals with Elmore even leading up to the eve of trial.

Ultimately, the Licking County court found there was insufficient evidence to establish an actual conflict of interest on Sanderson’s part.

“Elmore presented no testimony at the hearing on his motion to suggest that Sanderson’s advice to him somehow caused him to reject the plea offer that he apparently had accepted before. Elmore himself is completely silent on the matter, and in light of the other evidence presented at the hearing, Elmore’s silence was deafening,” the trial court stated in overruling Elmore’s motion for a new trial.

Elmore appealed the lower court’s decision to the 5th District and again argued that Sanderson’s conflict of interest deprived him of his right to assistance of counsel.

“The gravamen of Elmore’s claim is that his trial attorney Andrew Sanderson convinced Elmore to reject a plea offer that he had previously agreed to and would have saved his life, solely because Sanderson needed to participate in two capital jury trials to qualify for first-chair status under Rule 20 of the Ohio Rules of Superintendence,” Presiding Judge Scott Gwin wrote for the appellate court.

The three-judge appellate panel first noted that Elmore raised numerous claims of ineffective assistance of counsel in his previous appeal.

However, it found that none of those appeals included claims that he was “pressured, cajoled, coerced or mislead” into rejecting the plea agreement.

Instead, that argument only arose after he learned Sanderson wanted to advance his career with the case.

“An asserted desire to obtain lead counsel certification in death penalty cases would, in and of itself, be insufficient to demonstrate an actual conflict of interest. Otherwise, every attorney who is second chair qualified and who desires to obtain first chair certification would be laboring under a conflict of interest in each death penalty case in which he or she participated,” Judge Gwin stated.

The judges further determined that the only evidence Elmore presented to show an actual conflict was Behrens testimony and the fact that Elmore ultimately changed his plea after meeting with Sanderson.

They held that the record did not contain any evidence that Sanderson motivated that decision.

They also noted that Elmore placed his emphasis solely on Sanderson’s representation even though he had the benefit of a second attorney at all times.

Finding that Sanderson clearly and unequivocally testified that he “did not make Phillip Elmore reject the state’s proposed resolution,” and matching testimony from both lead attorneys on the case, the judges ruled that the evidence supported the conclusion that no actual conflict existed.

“Accordingly, the Aug. 30, 2013 judgment entry of the Licking County Court of Common Pleas denying Elmore’s motion for a new trial claiming newly discovered evidence is affirmed,” Judge Gwin concluded.

Judges Sheila Farmer and Craig Baldwin concurred.

The case is cited State v. Elmore, 2014-Ohio-3674.

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