State v. BarnettState v. Barnett
- Reporters:
- ,
- Before:
- Abele, McFarland, Hoover
COUNSEL FOR APPELLANT: Thomas P. Liptock, 2121 Miamisburg-Centerville Road, Centerville, Ohio 454591
COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, 602 Seventh Street, Portsmouth, Ohio 45662
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment of conviction and sentence. Bobby L. Barnett, defendant below and appellant herein, pled no contest to trafficking in violation of
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF COUNT ONE OF THE INDICTMENT WHERE NO EVIDENCE WAS PRESENTED ESTABLISHING A JUVENILE WAS IN THE VICINITY OF THE DRUG TRAFFICKING.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF COUNT ONE OF THE INDICTMENT WHERE NO EVIDENCE WAS PRESENTED SHOWING THE TRAFFICKING TOOK PLACE IN SCIOTO COUNTY.”
THIRD ASSIGNMENT OF ERROR:
” THE TRIAL COURT ERRED BY VIOLATING CRIMINAL RULE 11(F) BY NOT STATING THE UNDERLYING AGREEMENT UPON WHICH THE PLEA IS BASED.”
{¶ 2} On January 17, 2012, the Scioto County Grand Jury returned a nine count indictment that charged appellant with, inter alia, trafficking drugs. Appellant initially pled not guilty and filed two motions to suppress evidence. After a hеaring, the trial court overruled the motion.2
{¶ 3} Apparently pursuant to the parties’ agreement, appellant pled “no contest” to the first count of the indictment (trafficking) and the appellee requested a dismissal оf the remaining charges. At the November 5, 2012 hearing, the trial court endeavored to ensure that appellant understood the various rights that he would be waiving and the consequences of his plea. So assured, the trial court accepted appellant‘s plea and found him guilty. At sentencing, the court,
I
{¶ 4} We jointly consider appellant‘s first and second assignments of error as they raise the same issue. Appellant argues that the trial court erred by accepting his plea, and finding him guilty, when no “evidence” was adduced to show (1) a juvenile in the vicinity of the locаtion where he trafficked drugs, or (2) that such trafficking took place in Scioto County.
{¶ 5} Initially, we point out that the word “evidence” means “any species of proof . . . presented at the trial of an issue[.]” Black‘s Law Dictionary 498 (5th Ed.1979). In the case sub judice, no trial occurred and, thus, no need arose to present “evidence.” Indeed, a trial court need not hear any testimony on a no contest plea.
{¶ 6} More important, a “no contest plea” is deemed “an admission of the truth of the facts alleged in the indictment.”
{¶ 8} First, we find nothing in the stipulation that negated the application of
{¶ 9} Second, if we were to accept, for purposes of argument, appellant‘s argument, we point out that cоunsel agreed to use of the hearing transcript as a statement of facts. The “invited error doctrine” prohibits a party from taking advantage of an error he, himself, induced the court to make. State v. Hicks, 4th Dist. No. 11CA933, 2012-Ohio-3831, at ¶ 11; State v. Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702, at ¶ 27. This doctrine applies tо errors arising from a negotiated plea agreement. See State v. Marcum, 4th Dist. Hocking Nos. 12CA22, 12CA26, 2013-Ohio-2189, at ¶10; State v. Robinson, 8th Dist. Cuyahoga No. 90411, 2008-Ohio-3972, at ¶7. Appellant, through counsel, agreed to use the suppression hearing transcript and cannot now complain of action to which he consented.
{¶ 10} Appellant also cites State v. Cohen, 60 Ohio App.2d 182, 396 N.E.2d 235 (1st Dist. 1978) for the proposition that
“It is one thing to rely on
Crim.R. 11(B)(2) to supply the fundament for the correction of an inadvertent omission in the statement of facts or even to furnish the dispositive weight where facts are in some dispute, but it is quite another to use it, as the state would havе it, to paper over an obvious, unarguable, and dispositive deficiency in the state‘s case against the defendant. We take it that no one would argue thatCrim.R. 11(B)(2) would sustain the trial court in accepting and proceeding to sentence under the indicted charge on a no contest plea to murder or manslaughter where the state‘s statement of facts conceded that the victim still lived. This would indeed be the elevation of shadow over substance; yet, in less dramatic form, it is the case at hand.” Id. at 184.
{¶ 11}We recognize that the State‘s factual recitation in Cohen actually negated the facts set out in the indictment. That scenario, however, did not happen here. We also point out that Cohen supports our ruling in the case sub judice. That Cohen court observed that it had held “on several occasions that, as a consequence of
{¶ 12}In the case at bar, appellant points to nothing in the record to negate the facts alleged in the indictment. To the extent that any deficiency in facts resulted from the suppression hearing, the admission of the facts alleged in the indictment, pursuant to
II
{¶ 14} In his third assignment of error, appellant asserts that the trial court violated
{¶ 15} Admittedly, a certain degree of confusion occurred at the change of plea hearing. The transcript reveals several instances that the trial court and thе prosecutor mistakenly referred to a guilty plea. This may explain the muddled statement of the agreement, but as the following colloquy reveals, we believe the trial court complied with the rule:
“[THE STATE] Yes, Your Honor. I think the agrеement is that the Defendant will plead guilty to count 1, as Your Honor has recited – I‘m sorry –
THE COURT: No contest.
[THE STATE]: He‘s going to plead to no contest to count 1 as – as Your Honor, read there, and that we discussed and agreed on the appeаl on the decision on the Motion to Suppress that was filed and heard in this Court.
THE COURT: Okay. Do you agree with that [defense counsel]?
[DEFENSE COUNSEL]: That‘s accurate your honor.”
{¶ 16} Although the terms of the agreement appears somewhat muddled, appellant could plead no contest to count one to preserve the right to challenge the denial of his suppression motion (an issue not raised on appeal). Furthermore, although there does not appear to have
{¶ 17} Generally, when the pleading issues involved are not in the nature of constitutional rights, we rеview a trial court‘s adherence to
{¶ 18} Finally, any deficiency on the part of the trial court in not fully explaining the terms of the plea agreement constitutes harmless error. See
{¶ 19} Accordingly, we find no merit in appellant‘s third assignment of error and it is hereby overruled. Having reviewed all errors that appellant assigned and argued, we hereby affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
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.
If a stay of execution of sentence and release upon bail has been previously granted, it is continuеd for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proсeedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty 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.
McFarland, P.J. & Hoover, 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.