STATE OF OHIO, PLAINTIFF-APPELLEE, v. JAMAREE ALLEN, DEFENDANT-APPELLANT.
CASE NO. 1-21-59
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
October 11, 2022
[Cite as State v. Allen, 2022-Ohio-3599.]
SHAW, J.
Aрpeal from Allen County Common Pleas Court Trial Court No. CR 2019 0261
Judgment Affirmed
Date of Decision: October 11, 2022
APPEARANCES:
William T. Cramer for Appellant
Jana E. Emerick for Appellee
{1} Defendant-appellant, Jamaree Allen (“Allen“), brings this appeal from the November 18, 2021 judgment of the Allen County Common Pleas Court sentencing him to an aggregate, indefinite prison term of 30-34 years after he pled guilty to an 8-count indictment and all the accompanying specifications. On appeal, Allen argues that his guilty pleas were not knowing, intelligent and voluntary, that he received ineffective assistance of counsel, and that the Reagan Tokes Law is unconstitutional.
Background
{2} On August 15, 2019, Allen was indicted for the following offenses: Count 1, participating in a criminal gang in violation of
{3} After a lengthy pretrial process, a jury trial commenced on November 1, 2021. While the State wаs still conducting voir dire, court recessed for a break. However, before jury selection resumed, the parties reached a negotiated plea agreement wherein Allen agreed to plead guilty to all counts in the indictment and the accompanying specifications and, in exchange, the State agreed not to recommend greater than an aggregate 30-year prison term at sentencing. Notably, Allen‘s co-defendant had already been convicted by a jury and was sentenced to over 60 years in prison. See State v. Wilson, 3d Dist. Allen No. 1-20-46, 2022-Ohio-504. Allen‘s plea agreement was reduced to writing and signed by the parties.
{4} After being notified of the plea agreement, the trial court conducted a Crim.R. 11 hearing with Allen and determined that he was entering knowing, intelligent, and voluntary guilty pleas. The trial court ordered a pre-sentence investigation and sentencing was set for a later date.
Assignment of Error No. 1
Appellant‘s rights under thе state and federal constitutions were violated by a guilty plea that was not knowing, intelligent, or voluntary.
Assignment of Error No. 2
Appellant was deprived of his state and federal constitutional rights to the effective assistance of counsel.
Assignment of Error No. 3
Indefinite prison terms imposed under the Reagan Tokes Law violate the jury trial guarantee, the doctrine of separation of powers, and due process principles under the federal and state constitutions.
First Assignment of Error
{6} In his first assignment of error, Allen argues that his guilty pleas were not knowing, intelligent, and voluntary.
Relevant Authority
{7} “All guilty pleas must be made knowingly, voluntarily, and intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “Failure on any
{8} Criminal Rule 11(C)(2), which governs guilty pleas for felony-level offenses, provides:
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 personаlly 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 сonfront 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.
{9} 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 the defendant‘s constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 31. When a trial court fails to strictly comply with this duty, the defendant‘s
{10} An appellate court reviews the substantial-compliance standard based upon the totality of the circumstances surrounding the defendant‘s plea and determines whether he subjectively understood the implications of his plea and the rights he waived. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 20. “Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made.” State v. Nero, 56 Ohio St.3d 106, 108 (1990).
Analysis
{11} In his appeal, Allen does not contend that the trial court failed to comply with Crim.R. 11‘s provisions.1 Rather, he contends that the trial court erred by accepting his guilty pleas without conducting an ”Alford plea-type inquiry” because, he claims, he maintained his innocence throughout the plea process. More specifically, Allen argues that since he “maintained his innocence” the trial court should have conducted a more thorough plea colloquy, and that absent such a colloquy, his pleas were not knowing, intelligent, and voluntary.
{13} The trial court engaged in a thorough Crim.R. 11 dialogue with Allen, making sure he understood each individual charge, the specifications attached to the individual charges, and the maximum penalties for the charges and the specifications.2 The trial court also ensured that Allen understood the constitutional and non-constitutional rights he was waving by entering his guilty pleas. When prompted, Allen repeatedly and affirmatively stated that he understood thе agreement he was making and the rights he was waving.3 In fact, Allen repeated he understood five times that by pleading guilty he was giving up the specified rights when asked. He never once mentioned innocence or that he did not commit the crimes in the indictment.
have to рlead guilty. Your potential jurors should be back by now. We can carry on with the trial. But once we get done talking about everything if you still are desirous of entering into this plea agreement that‘s a complete admission of your guilt as to these offenses and with that comes a number of constitutional rights that you‘re giving up.
(Emphasis added.) (Tr. at 152-53). Evеn with the trial court‘s statement, Allen proceeded with the plea hearing. This establishes that Allen did not maintain his innocence throughout the plea process, particularly when compounded with the written plea agreement, which said nothing about innocence.
{15} The only time that Allen stated anything at all that could be construеd as challenging the process was during the following exchange with the trial court, late in the Crim.R. 11 dialogue:
THE COURT: Has anybody threatened you, coerced you, done anything you feel like is forcing you to plead here today?
MR. ALLEN: No, Ma‘am. I just feel it won‘t be fair, so I just –
THE COURT: Okay. So you um are doing this of your own freewill?
MR. ALLEN: Yes, Ma‘am.
(Tr. at 157).
{16} Allen cites this lone incident from the plea colloquy of him stating that he felt “it” would not be “fair” in an attempt to establish that he maintained his innocence through the plea process. However, a plain reading of Allen‘s minimal
{17} However, Allen argues that his statement at the plea hearing questioning “fairness” was further explained in the pre-sentence investigation, wherein Allen stated that he was actually innocent but he felt he had to plead guilty because his attorney indicated he would not gеt a fair trial with an “all-white jury.” We find this statement specious for multiple reasons. First, Allen‘s jury had not even been selected when he entered his guilty pleas, thus his statement in the pre-sentence investigation was factually inaccurate.
{18} Second, we emphasize that after a defendant has entered a plea and the plea has been accepted, courts are not required to inquire into a defendant‘s reasoning for pleading guilty despite later assertions of innocence. State v. Wynn, 1st Dist. Hamilton No. C-150051, 2015-Ohio-4646, ¶ 12. Crim.R. 32.1 provides a defendant with the opportunity to make a motion to withdraw a plea of before a sentence is imposed. Allen could have made such a motion but elected not to do sо.
{19} Third, Allen‘s claims in his pre-sentence investigation conflict with his earlier, unequivocal statements at the plea hearing that he understood the possible penalties, the rights he was waving, and his statements that he understood that he was entering guilty pleas. We have previously held that statements made
{20} In sum, the record does not demonstrate that Allen‘s pleas were anything less than knowing, intelligent, and voluntary. Similarly, the record doеs not support Allen‘s claim on appeal that he was attempting to enter an Alford plea at the time he entered his guilty pleas.4 Based on our review of the record, Allen‘s first assignment of error is overruled.
Second Assignment of Error
{21} In his second assignment of error, Allen argues that he received ineffective assistance of counsel.
Standard of Review
{22} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or
Analysis
{23} Allen contends that his counsel was ineffective in this case because his counsel purportedly had a conflict of interest. More specifically, Allen claims that in early 2021, he retained the attorney that he рroceeded to trial with, Anthony VanNoy.5 According to Allen, at the time he retained VanNoy, other individuals in the VanNoy law firm were representing Allen‘s co-defendant on appeal. Allen‘s co-defendant had been convicted at trial in October of 2020. See State v. Wilson, 3d Dist. Allen No. 1-20-46, 2022-Ohio-504. Importantly, Allen does not contend that VanNoy‘s law firm represented the co-defendant at the trial level.
{24} In reviewing Allen‘s argument, we note that a “conflict of interest” refers to a “circumstance[ ] in which regard for one duty tends to lead to disregard of another duty * * *” State v. Hathaway, 2d Dist. Greene No. 2014-CA-13, 2015-Ohio-5488, ¶ 14. The Supreme Court of Ohio has held:
A possible conflict of interest exists where the ‘interests of the defendants may diverge at some point so as to place the attornеy under inconsistent duties.’ * * * State v. Dillon (1995), 74 Ohio St.3d 166, 168, 657 N.E.2d 273, 275-276, quoting Cuyler[ v.
Sullivan], 446 U.S. [335,] 356, 100 S.Ct. [1708,] 1722, 64 L.Ed.2d [333,] 351-352, fn. 3. It follows, then, that an actual conflict of interest exists if, ‘during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.’ * * * Id. at 169, 657 N.E.2d at 276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn. 3; see, also, Winkler[ v. Keane], 7 F.3d [304,] 307 [(C.A. 2 1993)]. Indeed, we have said that a lawyer represents conflicting interests ‘when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ [State v.] Manross, 40 Ohio St.3d [180,] 182, 532 N.E.2d [735,] 738 [(1988)].
(Emphasis sic.) State v. Gillard, 78 Ohio St.3d 548, 1997-Ohio-183, 679 N.E.2d 276 (1997).
{25} A defendant who claims he was denied the right to conflict-free counsel must demonstrate an actual conflict of interest that adversely affected his lawyer‘s performance. State v. Wilson, 3d Dist. Allen No. 1-20-46, 2022-Ohio-504, ¶ 137. A possible conflict is insufficient. State v. Getsy, 84 Ohio St.3d 180, 187 (1998).
{26} After reviewing the matter, we emphasize that the record before this Court contains no indication whatsoever that Allen‘s retained attorney, VanNoy, had anything to do with his co-defendant‘s case. In fact, VanNoy was not even retained by Allen until after Allen‘s codefendant was convicted.
{27} Allen claims that attorneys from VanNoy‘s firm worked on his codefendant‘s appeal, but we also have no indication of this in our record whatsoever. The only information our record contains is that Allen retainеd
Third Assignment of Error
{28} In his third assignment of error, Allen argues that the Reagan Tokes Law is unconstitutional for violating the jury trial guarantee, for violating the separation of powers, and for violating due process principles.
Analysis
{29} Allen did not challenge the constitutionality of the Reagan Tokes Law before the trial court. For this reason, we apply the plain-error standard of review in this case. State v. Ball, 3d Dist. Allen No. 1-21-16, 2022-Ohio-1549, ¶ 57. “An error qualifies as ‘plain error’ only if it is obvious and but for the error, the outcome of the proceeding clearly would have been otherwise.” State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State v. Yarbrough, 95 Ohio St.3d 227, 245, 2002-Ohio-2126, ¶ 32.
{30} As this Court noted in Ball, challenges to the Reagan Tokes Law do not present a matter of first impression in this Court.6 Ball at ¶ 59. “Since the
Conclusion
{31} For the foregoing reasons Allen‘s assignments of error are overruled and the judgment and sеntence of the Allen County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
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