State v. Nelson , 2021 Ohio 2752 ( 2021 )

[Cite as State v. Nelson, 2021-Ohio-2752.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 20CA3733
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
JAMES NELSON, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for Appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, Pamela C. Wells,
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} James Nelson appeals the judgment entry of sentence filed
August 21, 2020 in the Ross County Court of Common Pleas. Nelson
entered a plea to aggravated trafficking in drugs, a felony of the third degree.
On appeal, Nelson raises a general challenge to the validity of his guilty
plea. However, having fully reviewed the entire record, particularly the plea
hearing transcript, we find no merit to Nelson’s arguments. Accordingly, we
overrule the sole assignment of error and affirm the judgment of the trial
court.
Ross App. No. 20CA3733 2
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} In November 2019, James Nelson, “Appellant,” was indicted by
the Ross County Grand Jury on one count of aggravated trafficking in drugs,
R.C. 2925.03, a felony of the third degree. Appellant subsequently entered a
not guilty plea and was appointed counsel. After engaging in discovery and
motion practice, on July 9, 2020, the State of Ohio and Appellant reached a
joint plea recommendation. In exchange for Appellant’s guilty plea as
charged in the indictment, the parties would jointly recommend an 18-month
sentence. Furthermore, there would be no indictment for a previous failure
to appear charge during the proceedings.
{¶3} Appellant was also granted a furlough between the plea date and
the sentencing date in order to get his affairs in order. Appellant was warned
by the trial court and his own attorney of the repercussions which would
follow if he failed to appear for sentencing on August 13, 2020, or if he
failed a drug test on that date.
{¶4} On the sentencing date, Appellant was 90 minutes late and failed
to provide a valid urine sample. Appellant also admitted that he had used
methamphetamine the day before and that he would have tested positive for
THC. The trial court thereafter imposed a prison sentence of 24 months.
Ross App. No. 20CA3733 3
{¶5} This matter comes before the court upon delayed appeal. We
will set forth the particulars of the trial court’s colloquy with Appellant at
the change of plea hearing below.
ASSIGNMENT OF ERROR
I. DEFENDANT-APPELLANT’S GUILTY PLEA WAS
OBTAINED IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONTSTITUTION AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION AND
CRIM.R. 11(C).
STANDARD OF REVIEW
{¶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.’ ” State v. Vore, 4th
Dist. Athens No. 19CA06, 2021-Ohio-185, at ¶ 9, (internal citations
omitted), quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450(1996). “ ‘ “An appellate court determining whether a guilty plea was
entered knowingly, intelligently, and voluntarily conducts a de novo review
of the record to ensure that the trial court complied with the constitutional
and procedural safeguards.” ’ ” State v. Keene, 2017-Ohio-7058, 95
N.E.23d 597, (4th Dist.), at ¶ 16, quoting State v. Leonhart, 4th Dist.
Ross App. No. 20CA3733 4
Washington No. 13CA38, 2014-Ohio-5601, at ¶ 36, quoting State v. Moore,
4th Dist. Adams No. 13CA965, 2014-Ohio-3024, at ¶ 13.
LEGAL ANALYSIS
{¶7} Appellant argues that his guilty plea was not knowingly,
intelligently, or voluntarily made because the trial court failed to comply
with Crim.R.11(C)(2), which provides as follows:
In felony cases the court may refuse to accept a plea of
guilty or a plea of no contest, and shall not accept a plea
of guilty or no contest without first addressing the
defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or
no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to
require the state to prove the defendant's guilt beyond a
reasonable doubt at a trial at which the defendant cannot
be compelled to testify against himself or herself.
Ross App. No. 20CA3733 5
However, as the State’s brief accurately notes, Appellant does not cite a
specific purported error but simply claims the colloquy was “insufficient,”
without making further argument.
{¶8} For each assignment of error presented for review, an appellant
must identify the specific parts of the record where the alleged error
occurred. See App.R. 16(A)(3); App.R. 16(A)(7) (requiring that an
appellant's brief include “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review * * *
with citations to the authorities, statutes, and parts of the record on which
appellant relies”); Jones v. Jones, 4th Dist. Highland No. 20CA3, 2021-
Ohio-1498, at ¶ 36. “This rule is designed ‘to aid the reviewing court in
determining whether any reversible error occurred in the lower court by
having the complaining party specify the exact location(s) where such a
determination can be made.’ ” Mayfair Village Condominium Owners Assn.
v. Grynko, 8th Dist. Cuyahoga No. 99264, 2013-Ohio-2100, at ¶ 6, quoting
Hildreth Mfg. v. Semco, Inc., 151 Ohio App.3d 693, 2003-Ohio-741, 785
N.E.2d 774, ¶ 32 (3d Dist.).
{¶9} In general, an appellate court may disregard an assignment of
error when the appellant fails to identify the relevant portions of the record
upon which an assignment of error is based. See App.R. 12(A)(2); see also
Ross App. No. 20CA3733 6
Mayfair Village Condominium Owners Assn. at ¶ 6, citing Nob Hill E.
Condominium Assn. v. Grundstein, 8th Dist. Cuyahoga No. 95919, 2011-
Ohio-2552, at ¶ 11 (stating that an appellate court is “not obliged to scour
the record in search of evidence to support an appellant's assignment of
error”). However, in the interest of justice, we will conduct the de novo
review in order to consider Appellant’s sole assignment of error.
{¶10} “ ‘ “Crim.R. 11(C) governs the process that a trial court must
use before accepting a felony plea of guilty or no contest.” ’ ” Vore, supra,
at ¶ 11, quoting Keene, supra, at ¶ 17, quoting State v. Veney, 120 Ohio St.
3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 8. In Veney, the Supreme
Court of Ohio held:
[A] trial court must strictly comply with Crim.R.
11(C)(2)(c) and orally advise a defendant before
accepting a felony plea that the plea waives (1) the right
to a jury trial, (2) the right to confront one's accusers, (3)
the right to compulsory process to obtain witnesses, (4)
the right to require the state to prove guilt beyond a
reasonable doubt, and (5) the privilege against
compulsory self-incrimination. When a trial court fails to
strictly comply with this duty, the defendant's plea is
invalid.
Id. at ¶ 31. See also, Vore, supra, at ¶ 12, citing State v. Smith, 4th Dist.
Ross No. 19CA3680, 2019-Ohio-4115, at ¶ 10.
{¶11} The July 9, 2020 plea hearing transcript, beginning at page 11,
demonstrates that the trial court strictly complied with notification of
Ross App. No. 20CA3733 7
Appellant’s constitutional rights which would be waived when Appellant
entered his plea. The transcript provides as follows:
The Court: Mr. Nelson, I need to make sure you understand you’re waiving
important constitutional rights in giving your plea today, so
first, do you understand that you have a right to a speedy,
public trial by a jury of 12 persons?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that at a trial, the State of Ohio has the
burden to prove your guilt beyond a reasonable doubt as to each
element of each offense for which you are charged?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that all 12 jurors must agree that the State of
Ohio has proven your guilt beyond a reasonable doubt before
you can be convicted of any offense?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that you have the right to effective
assistance of counsel throughout these proceedings?
Mr. Nelson: Yes, Sir.
Ross App. No. 20CA3733 8
The Court: Do you understand that you, through your attorney, have the
right to confront and cross-examine any witness who testifies
against you?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that you have a right to compulsory process
to compel the attendance of witnesses at trial by the issuance of
subpoenas?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that you have a right against self-
incrimination and cannot be forced to testify against yourself at
trial?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that if you elect not to testify at trial, your
silence cannot be used against you to prove your guilt?
Mr. Nelson: Yes, Sir.
The Court: Do you understand each of these rights?
Mr. Nelson: Yes, Sir.
The Court: Do you have any questions about your constitutional rights?
Mr. Nelson: No, Sir.
The Court: Is it your intent to voluntarily waive those rights?
Ross App. No. 20CA3733 9
Mr. Nelson: Yes, Sir.
{¶12} The record could not be clearer that the trial court strictly
complied with Crim.R. 11(C)(2)(c) with regard to notification of Appellant’s
constitutional rights. To argue otherwise is somewhat disingenuous.
Assuming this is the argument Appellant is making, we find it to be without
merit.
{¶13} The Supreme Court in Veney also noted that with respect to the
nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and 11
(C)(2)(b), substantial compliance is sufficient. Id. at ¶ 14, citing, State v.
Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). See also, Vore, supra,
at ¶ 12. Veney further explains that substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving. See Veney at ¶ 15;
citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); Vore,
supra. “ ‘ “A defendant who challenges [his or her] guilty plea on the basis
that it was not knowingly, intelligently, and voluntarily made must generally
prove prejudice, which in this context means that the plea would otherwise
have not been entered.” ’ ” Vore, supra, quoting, Keene, at ¶ 19 and Veney
at ¶ 15.
Ross App. No. 20CA3733 10
{¶14} In this case, the July 9, 2020 plea hearing transcript reflects that
the trial court not only substantially complied, but arguably, strictly
complied with notification of Appellant’s non-constitutional rights. The
transcript reveals that the hearing began with Appellant’s counsel reciting
into the record the terms of the plea agreement. The assistant prosecutor
verified the terms of the agreement. Thereafter, the trial court inquired
about Appellant’s background. Appellant informed the court he was 44
years old. He had obtained a GED and was able to speak, read, and write
English. Appellant also informed the court he was not under the influence
of medications, drugs, or alcohol, and that he did not suffer and had never
suffered from mental illness, disease, or incapacity.
{¶15} The trial court also inquired as to whether Appellant had been
threatened or coerced into entering the plea, which Appellant denied.
Appellant also confirmed that aside from the plea negotiations, no one had
promised him anything in exchange for his guilty plea. Appellant also
confirmed that what was read into the record was his understanding of the
plea agreement. He did not have further questions for the trial court.
{¶16} Next, the trial court reviewed the plea of guilty form Appellant
signed. Appellant confirmed his signature on the form. Appellant told the
trial court that he reviewed the form with his attorney, understood the form,
Ross App. No. 20CA3733 11
and voluntarily signed it. Appellant also confirmed his understanding that
by signing the form he was making a complete admission of guilt to the
count contained in the indictment. Finally, Appellant confirmed that he had
consulted with his lawyer and was satisfied with his lawyer’s representation.
{¶17} Beginning at page 8, the hearing transcript demonstrates as
follows:
The Court: Do you understand that upon acceptance of your plea of guilty,
the court could reject the plea agreement and proceed
immediately with sentencing?
Mr. Nelson: Yes, Sir.
The Court: Knowing that the court is not obligated to follow the plea
recommendation, do you still wish to proceed with your plea
today?
Mr. Nelson: Yes, Sir.
***
The Court: Mr. Nelson, the indictment charges you with one count of
aggravated trafficking in drugs, a third-degree felony. It reads
that ‘James Nelson, on or about the 17th day of June 2019, in
Ross County, did knowingly sell or offer to sell
methamphetamine, a schedule II controlled substance, in an
Ross App. No. 20CA3733 12
amount equal to or exceeding the bulk amount, but less than
five times the bulk amount, in violation of section 2925.03 of
the Ohio Revised Code.’ Do you believe you understand the
allegations contained in the indictment?
Mr. Nelson: Yes, Sir.
The Court: Mr. Nelson, you are charged, like I said, with a third degree
felony. This particular offense is punishable by a potential
prison term of between nine and 36 months in prison and up to
a $10,000 fine. Do you understand the potential penalties?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that if you are sentenced to prison, you may
have to serve a period of post release control as part of your
sentence after you’re released from prison?
Mr. Nelson: Yes, Sir.
The Court: And you understand that you would be subject to up to three
years of post release control at the discretion of the Department
of Corrections?
Mr. Nelson: Yes, Sir.
Ross App. No. 20CA3733 13
The Court: Do you understand that if you violate the conditions of post
release control, the parole board may impose upon you a new
prison term of up to nine months for each violation?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that this court can sentence you to up to a
maximum prison term for all violations of up to one half of the
prison term originally imposed by this court?
Mr. Nelson: Yes, Sir.
The Court: Do you understand that if you’re convicted of a new felony
while on post release control that in addition to being punished
for the new offense, the sentencing court could impose upon
you an additional prison term of either 12 months or the time
remaining on your post release control term, whichever is
greater?
Mr. Nelson: Yes, Sir.
{¶18} Assuming that Appellant’s argument is that the trial court failed
to substantially comply with the nonconstitutional notifications of Crim.R.
11(C)(2)(a) and (b), we find no merit to this argument.
{¶19} The Ohio Supreme Court has also noted that there is “no easy
or exact way to determine what someone subjectively understands,” but
Ross App. No. 20CA3733 14
where the defendant receives the proper information, “we can ordinarily
assume that he understands that information.” State v. Carter, 60 Ohio St.2d
34, 38, 396 N.E.2d 757 (1979); State v. Nelson, 8th Dist. Cuyahoga No.
107823, 2019-Ohio-3365, at ¶ 19; State v. Nevels, 8th Dist. Cuyahoga No.
108395, 2020-Ohio-915; Vore, supra. In deciding whether the defendant
had the required information, we look at the facts and circumstances
surrounding the case. Carter supra. Carter, Nelson, Nevels, and Vore each
addressed claims that defendants’ pleas were not knowingly, intelligently, or
voluntarily made.
{¶20} The record reflects that in this case, Appellant held all
necessary information, and there is every reason to assume he understood
the information he received. The trial court inquired into Appellant’s
background, education, and ability to understand the information. The trial
court inquired as to whether Appellant was making the plea voluntarily,
without coercion or duress. The record reflects that the trial court strictly
complied with not only giving Appellant the constitutional notifications
required by Crim.R. 11(C)(2)(c), but also by providing the nonconstitutional
notifications as required by Crim.R. 11(C)(2)(a) and (b).
{¶21} Based on our de novo review of the record, we find no basis to
support Appellant’s contention that the trial court did not fully comply with
Ross App. No. 20CA3733 15
Crim.R. 11(C)(2). We have no basis to conclude Appellant’s plea was not
knowingly, intelligently, and voluntarily made. For the foregoing reasons,
we find no merit to Appellant’s sole assignment of error. Accordingly, it is
hereby overruled and the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Ross App. No. 20CA3733 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Ross 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 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 the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J., Concur in Judgment and Opinion.
For the Court,
_________________________
Jason P. Smith
Presiding 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.