State v. McCraney , 2012 Ohio 3146 ( 2012 )

[Cite as State v. McCraney, 2012-Ohio-3146.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26161
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GARLAND MCCRANEY COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 05 1371
DECISION AND JOURNAL ENTRY
Dated: July 11, 2012
BELFANCE, Judge.
{¶1} Garland McCraney appeals his conviction for burglary. For the reasons set forth
below, we affirm.
I.
{¶2} Mr. McCraney was indicted for second-degree felony burglary, disrupting public
services, vandalism, and possessing criminal tools. During the final pretrial which occurred five
days before Mr. McCraney’s trial was scheduled to begin, Mr. McCraney’s attorney sought to
withdraw as counsel, citing a “breakdown in communication[.]” The trial court engaged in a
lengthy discussion with Mr. McCraney on the matter, and Mr. McCraney told the trial court that
he did not believe that his counsel had his best interests at heart.
{¶3} The trial court told Mr. McCraney that he could proceed to trial with his current
counsel or he could represent himself. It also cautioned him that, before making a decision, he
should speak to his counsel and, “[i]nstead of just arguing, listen to what [his] attorney is
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saying.” After a short break in the proceedings, plea negotiations resumed. Mr. McCraney
pleaded guilty to a reduced charge of burglary, a felony of the third degree, the State agreed not
to oppose judicial release if Mr. McCraney sought substance abuse treatment in prison, and the
remaining charges were dismissed. Six weeks after entering his plea, Mr. McCraney was
sentenced to three years in prison.
{¶4} Mr. McCraney has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
APPELLANT’S GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY
AND VOLUNTARILY ENTERED IN COMPLIANCE WITH CRIMINAL
RULE 11(C)(2)(A), 11(C)(2)(B), AND 11(C)(2)(C).
{¶5} Mr. McCraney, in his stated assignment of error, mounts a challenge to the trial
court’s compliance with Crim.R. 11(C) and the knowing and voluntary nature of his plea.
However, in his merit brief, he states that “[t]his appeal raises the issue of a defendant’s Sixth
Amendment right to counsel.” However, the record indicates that he had counsel, and he does
not argue that his counsel was ineffective. Instead, he argues that, because the trial court refused
to appoint substitute counsel five days before trial, his plea was not voluntary because his other
options were to go to trial without representation or with an attorney whom he did not trust.
{¶6} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of
the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”
(Internal quotations and citations omitted.) State v. Barker, 129 Ohio St.3d 472, 2011–Ohio–
4130, ¶ 9. “Crim.R. 11 was adopted in 1973 to give detailed instructions to trial courts on the
procedures to follow before accepting pleas of guilty or no contest.” Id.3
{¶7} Although his assignment of error is framed in terms of the trial court’s
noncompliance with Crim.R. 11, in his merit brief, Mr. McCraney does not argue that the trial
court failed to comply with any specific portion of Crim.R. 11, and he has not pointed to
anything in the record that suggests that the trial court did not comply with Crim.R. 11. Nor is
there anything in the record that he points to that would suggest that his plea was not voluntary
because the trial court did not permit his counsel to withdraw. Instead, he suggests that, had the
trial court asked him whether he was satisfied with counsel, “a clear demarcation * * * would
have been made part of the record.” In essence, Mr. McCraney concedes that he cannot point to
anything in the record that suggests that his plea was not knowingly, intelligently and voluntarily
made. In particular, there is nothing in the record suggesting that he entered his plea because he
was faced with the prospect of going to trial with his current counsel. Based upon the colloquy
with the court, it also appears that the judge believed that any breakdown in communication was
the fault of Mr. McCraney and that Mr. McCraney’s counsel was making the best of a difficult
situation and attempting to communicate under circumstances where Mr. McCraney was not
willing to consider what his lawyer had to say.
{¶8} The record reflects that, after the trial court suggested that Mr. McCraney should
take some time to listen to what his counsel had to say, additional plea negotiations took place.
Ultimately, Mr. McCraney agreed to a plea bargain which reduced the second-degree burglary
felony to a third-degree felony. In addition, the State agreed to potential judicial release from
prison, and the remaining felony charges were dismissed. Mr. McCraney has not separately
assigned as error that his attorney was ineffective in his representation, and any argument he
might raise in that regard would be founded upon matters outside of the record and are not
appropriately raised in a direct appeal. See State v. Brown, 9th Dist. No. 25287, 2011-Ohio-
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1041, ¶ 18 (declining to address underdeveloped argument not separately assigned as error);
State v. Sheppard, 9th Dist. No. 10CA0041-M, 2011-Ohio-3516, ¶ 8 (Postconviction relief is the
more appropriate avenue to raise ineffective assistance claims based on evidence outside the
appellate record.).
{¶9} Furthermore, to the extent that Mr. McCraney suggests that the trial court was
required to ask him whether he was satisfied with his counsel’s representation, he has failed to
provide any supporting authority. See App.R. 16(A)(7). While trial courts may make that
inquiry of defendants, it is not required by Crim.R. 11, and the absence of such an inquiry does
not render the plea invalid. See State v. Cannon, 8th Dist. No. 67952, 1995 WL 643717, *2
(Nov. 2, 1995).
{¶10} Accordingly, his assignment of error is overruled.
III.
{¶11} Mr. McCraney’s assignment of error is overruled, and the judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
CHRISTOPHER M. VANDEVERE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.