State v. Tolbert , 2022 Ohio 1159 ( 2022 )

[Cite as State v. Tolbert, 2022-Ohio-1159.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA2
v. :
D’LONTAE B. TOLBERT, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
___________________________________________________________________
APPEARANCES:
D’Lontae B. Tolbert, pro se.
Nicole Coil, Washington County Prosecuting Attorney, and David K.H.
Silwani, Assistant Prosecuting Attorney, Marietta, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:3-31-22
ABELE, J.
{¶1} This is an appeal from a Washington County Common Pleas
Court judgment of conviction and sentence. D’Lontae Tolbert,
defendant below and appellant herein, pleaded guilty to one count
of possession of drugs in violation of R.C. 2925.11(A)&(C)(11)(c),
a third-degree felony, with a forfeiture specification.
{¶2} Appellant assigns two errors for review:
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FIRST ASSIGNMENT OF ERROR:
“IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT
TO GRANT THE IMPERMISSIBLE AMENDMENT TO THE
INDICTMENT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT UNLAWFULLY ORDERED THE
FORFEITURE OF PROPERTY.”
{¶3} On September 18, 2019, a Washington County Grand Jury
returned an indictment that charged appellant with one count of
trafficking in drugs in violation of R.C. 2925.03(A)(2), a first-
degree felony, and one count of possession of drugs in violation of
R.C. 2925.11(A), a first-degree felony. The indictment also
included a forfeiture specification for $1,329 seized from
appellant’s person.
{¶4} At his September 20, 2019 arraignment, the trial court
referred to a re-indictment. Counsel stated that appellant
received the indictment on September 19, 2019 and was prepared to
proceed. The court indicated that the amount of the Schedule I
controlled substance for count one and count two “is more than 20
grams but less than 50 grams: to-wit, 26.25 grams.” The prosecutor
stated that the re-indictment occurred because the heroin contained
fentanyl. The state also (1) asked the court to maintain the
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$50,000 bond, and (2) indicated that appellant was on post-release
control from his recently served three-year prison term for a
first-degree felony aggravated trafficking in drugs. The court
advised appellant that, with a possible prison term for his post-
release control violation, he faced a total of 19 and one-half
years in prison. Appellant pleaded not guilty.
{¶5} At the October 17, 2019 change of plea hearing, the state
indicated that the sheriff’s office executed a search warrant and
encountered appellant in possession of what appeared to be heroin,
but later determined to be nine grams of a mix of heroin and
fentanyl. The state also moved to dismiss count one and to amend
count two “to amend the amount of the drugs and the language of the
indictment to say, ‘in an amount more than five grams and less than
ten grams: to-wit, nine grams.’” The trial court acknowledged that
the amendment changed the code section from R.C. 2925.11 (A) &
(C)(11)(e) to R.C. 2925.11(A) & (C)(11)(c). Appellants trial
counsel also stated that the appellant did not object to the
amendment.
{¶6} At that point the trial court reviewed appellant’s rights
and stated that appellant (1) faced a maximum prison term of 36
months on the amended count two, (2) faced an additional two years
and eight months for the postrelease control violation, and (3)
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could face an additional nonmandatory three-year postrelease
control term. Further, appellant acknowledged that he understood
that his guilty plea to the forfeiture specification would result
in the forfeiture of $1,329. Appellee then recommended a maximum
combined four-year prison term and stated its intention to dismiss
the original indictment (19CR320) and count one of the amended
indictment (19CR379).
{¶7} At the November 8, 2019 sentencing hearing, the trial
court (1) waived the $5,000 mandatory fine due to appellant’s
indigence, (2) found appellant’s crime to be serious “because it’s
part of an organized criminal activity,” and (3) noted that
appellant’s ORAS score indicated a high recidivism risk. Further,
based on appellant’s prior felony offense in Michigan, his 2014
Washington County first-degree drug trafficking conviction (for
which he was on post-release control when indicted in the present
case), and his current charge, the court stated that appellant had
not been rehabilitated to the court’s satisfaction. Thus, the
court sentenced appellant to (1) serve a 30-month prison term, (2)
serve 943 days for the postrelease control violation, to be served
consecutively for an aggregate sentence of six years with 94 days
local confinement credit, (3) forfeit $1,329, (4) submit to drug
testing, (5) undergo a discretionary postrelease control term of up
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to three years, and (6) pay court costs.
{¶8} On April 7, 2021, this court granted appellant’s motion
for leave to file a delayed appeal and this appeal followed.
I.
{¶9} In his first assignment of error, appellant asserts that
the trial court granted an impermissible amendment to the
indictment. Specifically, appellant argues that although the trial
court substantially complied with Crim.R. 11 at his plea hearing,
his counsel rendered ineffective assistance regarding the Crim.R.
7(D) protections. Appellant contends that the state “amended the
charge as to change the identity and counsel not only failed to
object to this forbidden procedure, but also stipulated to it as to
bestow jurisdiction.”
{¶10} Initially, we observe that because appellant did not
object to the indictment’s amendment, he has waived all but plain
error. See Crim.R. 12(C)(2). To reverse a decision based on plain
error, a reviewing court must determine that a plain (or obvious)
error occurred that affected the trial’s outcome. State v. Barnes,
94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R. 52(B).
Further, plain-error review must be undertaken “‘with the utmost
caution, under exceptional circumstances and only to prevent a
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manifest miscarriage of justice.’” Barnes, quoting State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶11} Additionally, the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution
provide that defendants in all criminal proceedings shall have the
assistance of counsel for their defense. The United States Supreme
Court has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance” of
counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S. 263, 272,
134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (explaining that the Sixth
Amendment right to counsel means “that defendants are entitled to
be represented by an attorney who meets at least a minimal standard
of competence”).
{¶12} To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel's performance
was deficient and (2) that the deficient performance prejudiced the
defense and deprived the defendant of a fair trial. Strickland,
466 U.S. at 687; State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-
1903, 114 N.E.3d 1138, ¶ 183; State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either
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element is fatal to the claim.” State v. Jones, 4th Dist. Scioto
No. 06CA3116, 2008-Ohio-968, ¶ 14; State v. Blackburn, 4th Dist.
Jackson No. 18CA3, 2020-Ohio-1084, ¶ 32. Accordingly, if one
element is dispositive, a court need not analyze both. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶13} As it relates to pleas, a defendant generally has the
ultimate authority to decide whether to plead guilty. State v.
Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 121,
citing Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160
L.Ed.2d 565 (2004). Thus, a defendant who claims ineffective
assistance related to the decision to plead guilty must show that a
reasonable probability exists that, but for counsel's errors, the
defendant would not have pleaded guilty and insisted on going to
trial. Id., citing State v. Ketterer, 111 Ohio St.3d 70, 2006-
Ohio-5283, 855 N.E.2d 48, ¶ 89, citing Hill v. Lockhart, 474 U.S.
52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶14} In the case sub judice, the state, pursuant to the
parties’ plea agreement, moved to amend the indictment from R.C.
2925.11(A)/(C)(11)(e) to R.C. 2925.11(A)/(C)(11)(c). R.C.
2925.11(A) provides: “No person shall knowingly obtain, possess, or
use a controlled substance or a controlled substance analog.” R.C.
2925.11(C)(11)(e) states:
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(C) Whoever violates division (A) of this section is
guilty of one of the following:
(11) If the drug involved in the violation is a fentanyl-
related compound and neither division (C)(9)(a) nor
division (C)(10)(a) of this section applies to the drug
involved, or is a compound, mixture, preparation, or
substance that contains a fentanyl-related compound or is
a combination of a fentanyl-related compound and any
other controlled substance and neither division (C)(9)(a)
nor division (C)(10)(a) of this section applies to the
drug involved, whoever violates division (A) of this
section is guilty of possession of a fentanyl-related
compound. The penalty for the offense shall be determined
as follows:
(e) If the amount of the drug involved equals or exceeds
two hundred unit doses but is less than five hundred unit
doses or equals or exceeds twenty grams but is less than
fifty grams, possession of a fentanyl-related compound is
a felony of the first degree, and the court shall impose
as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
The state amended the indictment from R.C. 2925.11(C)(11)(e) to
(C)(11)(c):
(c) If the amount of the drug involved equals or exceeds
fifty unit doses but is less than one hundred unit doses
or equals or exceeds five grams but is less than ten
grams, possession of a fentanyl-related compound is a
felony of the third degree, and there is a presumption
for a prison term for the offense.
{¶15} We recognize, as appellee argues, that appellant
explicitly agreed to the indictment’s amendment pursuant to a plea
agreement. Thus, the amendment is valid regardless of whether it
changed the name or identity of the crime charged. In State v.
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Freeman, 11th Dist. Trumbull No. 2004-T-0055, 2006-Ohio-492, the
Eleventh District determined that if a defendant agrees to an
indictment’s amendment pursuant to a plea agreement, the amendment
is valid regardless of whether it changed the name or identity of
the crime charged. Freeman at ¶ 41, citing State v. Bartelson,
11th Dist. Trumbull No. 95-T-5322, 1996 WL 586758. In Bartelson,
the indictment’s amendment added a physical harm specification and
the Eleventh District observed that because the Crim.R. 7(D)
provisions are primarily for the protection of defendants, the
requirement may be waived. See also State v. Cook, 35 Ohio App.3d
20, 519 N.E.2d 419, paragraph three of the syllabus (12th
Dist.1987)(Crim.R. 7(D) primarily for defendant’s protection and
prohibits amendments that change the nature or identity of the
charged crime so the accused can be aware of the charges and can
prepare his defense accordingly.)
{¶16} The Eighth District has also held that a defendant waives
any challenge to an indictment when he is in the courtroom, did not
object to the amendment prior to trial, and indicated to the court
that he understood the proceedings. State v. Baxter, 8th Dist.
Cuyahoga No. 106187, 2018-Ohio-2237, ¶ 10-13, citing State v.
Owens, 181 Ohio App.3d 725, 2009-Ohio-1508, 910 N.E.2d 1059, ¶ 69
(7th Dist.); State v. Pondexter, 8th Dist. Cuyahoga No. 108940,
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2020-Ohio-1290, ¶ 14; State v. Kibble, 8th Dist. Cuyahoga No.
103822, 2017-Ohio-12.
{¶17} The Tenth District has concluded that a defendant may
waive the right to indictment altogether, or by plea can acquiesce
to the amendment of the identity of the offense charged. State v.
Battin, 10th Dist. Franklin No. 19AP-485, 2019-Ohio-5001, ¶ 8-9,
citing State v. Bruce, 10th Dist. Franklin No. 16AP-31, 2016-Ohio-
7132; State v. Wooden, 10th Dist. Franklin No. 02AP-473, 2002-Ohio-
7363, ¶ 15. See also State v. Oliver, 2021-Ohio-2543, 176 N.E.3d
1054, ¶ 31 (12th Dist.) (pleading guilty waives many errors
including defect in indictment); State v. Spates, 64 Ohio St.3d
269, 271-272, 595 N.E.2d 351 (guilty plea represents break in the
chain of events and defendant may not raise claims that occurred
prior to entering the plea; defendant may only attack the voluntary
and intelligent character of the plea).
{¶18} In the case sub judice, appellant does not argue that his
plea was not knowing and voluntary. Moreover, our review of the
record reveals that appellant knowingly and voluntarily agreed to
the amended indictment when he pleaded guilty pursuant to the
parties’ plea agreement. Thus, because appellant entered a guilty
plea in open court, after he acknowledged that he had no objection
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to the amended charge and after being fully apprised of the rights,
we conclude that appellant acquiesced in the amendment.
Consequently, after our review we conclude that (1) no error, plain
or otherwise, occurred and (2) no reasonable probability that, but
for counsel’s alleged errors, appellant would have declined to
plead guilty.
{¶19} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶20} In his second assignment of error, appellant asserts that
the trial court improperly ordered the forfeiture of his property.
Appellant argues that, pursuant to R.C. 2941.1417 and 2981.04,
forfeiture is prohibited unless a forfeiture specification is
attached to a specific count of the indictment.
{¶21} Appellant cites State v. Brimacombe, 195 Ohio App.3d 524,
2011-Ohio-5032, 960 N.E.2d 1042, where the Sixth District noted
that (1) the indictment did not refer to the surrendered firearms
and (2) between the filing of the indictment and the sentencing
hearing, nothing in the record indicated that the prosecution
furnished prompt notice to counsel about the forfeiture of the
firearms. Id. at ¶ 66. In the case at bar, however, we recognize
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that appellant explicitly agreed to the forfeiture as part of his
plea agreement. Thus, appellant’s reliance on Brimacombe is
misplaced.
{¶22} Appellee, on the other hand, analogizes this case to
State v. Gloeckner, 4th Dist Meigs No. 520, 1994 WL 111337 (March
21, 1994). In Gloeckner, the defendant did not object to the
forfeiture of his vehicle and, therefore, voluntarily relinquished
the vehicle as a part of the plea agreement. We held that no
forfeiture statute applied to the relinquishment. Id. at * 5.
Similarly, in State v. Dickens, 4th Dist. Meigs No. 05CA14, 2006-
Ohio-4920, because the defendant agreed to the forfeiture, the
defendant “cannot now complain that the prosecution took the action
he allowed it to take.” Id. at ¶ 10.
{¶23} Other appellate districts have reached the same
conclusion regarding voluntary forfeiture. In State v. Wyley, 8th
Dist. Cuyahoga No. 66163, 1994 WL 581522 (Oct. 20, 1994), the
defendant agreed to forfeit money confiscated at the time of his
arrest, but argued that the state’s untimely forfeiture petition
and failure to hold a R.C. 2933.43(C) forfeiture hearing
constituted reversible error. The Eighth District concluded that
the defendant waived any error or due process rights associated
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with the forfeiture proceedings when he agreed to forfeit the
money. Id. at *2. See also State v. Compton, 2021-Ohio-3106, 178
N.E.3d 123, ¶ 19 (8th Dist.)(property forfeited through a plea
agreement not effectuated by operation of the statutory provisions
governing forfeiture, but rather by the parties’ agreement); State
v. Smith, 117 Ohio App.3d 656, 691 N.E.2d 324 (8th Dist.1997)(plea
agreement and voluntary relinquishing forfeited property waives
procedural or due process right regarding forfeiture); State v.
Fogel, 8th Dist. Cuyahoga No. 87035, 2006-Ohio-1613 (forfeiture as
part of negotiated plea agreement is valid); State v. Keith, 81
Ohio App.3d 192, 610 N.E.2d 1017 (9th Dist. 1991)(upholding plea
agreement forfeiture); State v. Hunter, 9th Dist. Summit No. 13929,
1989 WL 80515 (July 19, 1989)(plea agreement and voluntary
relinquishment of confiscated monies waived right to object on
appeal); State v. Gladden, 86 Ohio App.3d 287, 620 N.E. 2d 947 (1st
Dist.1993)(relinquishment of vehicle not effectuated by operation
of statutory provision, but by the parties’ agreement); State v.
Hensley, 9th Dist. Lorain No. 03CA008356, 2004-Ohio-2664, ¶
7(defendant agreed to forfeiture thus waived application of
statutory provisions governing forfeiture procedure).
{¶24} In the case sub judice, appellant’s guilty plea states,
in pertinent part: “The Defendant will plead to the amended count 2
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in this case and be sentenced on the PRC Violation. The Defendant
shall forfeit $1,329.00.” At the plea hearing, the trial court
asked appellant if he understood that his guilty plea to the
forfeiture specification would result in the forfeiture of $1,329.
Appellant indicated that he so understood. Here, we conclude that
appellant had notice of the forfeiture and agreed to the forfeiture
in his plea agreement.
{¶25} Accordingly, based upon the foregoing reasons, we
overrule appellant's second assignment of error and affirm the
trial court's judgment.
JUDGMENT AFFIRMED.
WASHINGTON, 21CA2
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee
recover of appellant the 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 Washington 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 60 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 the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-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 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:____________________________
Peter B. Abele, 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.