STATE OF OHIO, Plaintiff-Appellee, - v - NATHANIEL K. CREW, Defendant-Appellant.
CASE NOS. 2021-P-0028 2021-P-0029 2021-P-0030
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
Decided: March 14, 2022
2022-Ohio-752
JOHN J. EKLUND, J.
Criminal Appeals from the Court of Common Pleas Trial Court Nos. 2020 CR 00667 2020 CR 00553 2020 CR 00570 Judgment: Affirmed
Edgar A. Ramos, 19152 Coffinberry Boulevard, Cleveland, OH 44126 (For Defendant-Appellant).
JOHN J. EKLUND, J.
O P I N I O N
{¶1} Appellant, Nathanial Crew, appeals following his convictions in the Portage County Court of Common Pleas in three cases: 2020 CR 553, 2020 CR 570, and 2020 CR 667. In 2020 CR 553, appellant was charged with one count of Kidnapping in violation of
{¶2} Appellant raises three assignments of error arguing that the material elements for his guilty plea for kidnapping were not established, that his trial counsel rendered ineffective assistance of counsel, and that the Reagan Tokes indefinite sentencing scheme is unconstitutional.
{¶3} After review of the record and the applicable caselaw, we find appellant’s assignments of error to be without merit. Appellant’s guilty plea precludes his assertion that the facts of his case did not support the charge of kidnapping. Next, his counsel’s performance was not deficient, and he was not prejudiced by trial counsel’s failure to file a motion to dismiss a criminal charge based on a sufficiency of the evidence claim or counsel’s failure to enter a plea of not guilty by reason of insanity. Finally, we hold that an appeal of the unconstitutionality of the Reagan Tokes indefinite sentencing scheme is not yet ripe for review. The judgment of the Portage County Court of Common Pleas is affirmed.
2020 CR 553
{¶4} On July 19, 2020, Warren Township police pursued a vehicle that appellant had reportedly stolen. The pursuit ended in Portage County when appellant crashed the vehicle and officers arrested him and placed him in handcuffs inside a police cruiser.
{¶5} During appellant’s booking in the Portage County Justice Center, appellant grabbed Officer Brown and put her in a choke hold while attempting to drag her into a nearby cell. Multiple officers responded to this and drew their tasers to subdue appellant. Appellant used Officer Brown as a shield, attempting to prevent officers from using their tasers. Despite this, officers did fire their tasers at appellant and were able to free Officer Brown from appellant’s choke hold and place him in handcuffs.
2020 CR 570
{¶6} On July 26, 2020, while appellant was in the Portage County Justice Center, appellant attacked officers distributing his medication. As officers opened the door to appellant’s cell, he lunged at the officer and kicked him in the leg as he tried to run out of the cell. Officers brought appellant to the ground and attempted to restrain him. Appellant continued to struggle and grabbed at the officer’s face and throat before he was subdued.
2020 CR 667
{¶7} On August 29, 2020, while appellant was in the Portage County Justice Center, officers entered appellant’s cell to retrieve his dinner tray and search for contraband. Appellant disregarded orders from officers to remain face down on his bunk while officers were present. Instead, he attempted to get up and then began to struggle when officers tried to restrain him. During the struggle, appellant struck an officer with an open palm before officers tasered him and secured him in handcuffs.
{¶8} Appellant initially pled not guilty to all counts and his trial counsel requested a competency evaluation be performed on appellant. The evaluator found that he was competent to stand trial. Trial counsel asked for a second evaluation, which also concluded that he was competent to stand trial. Both parties stipulated to the second report and the trial court found appellant competent to stand trial.
{¶9} Following this, appellant entered into a plea agreement with the State. Pursuant to the agreement, in 2020 CR 553, the first-degree felony Kidnapping charge was amended to a felony of the second degree and appellant pled as charged to the Grand Theft of a Motor Vehicle. The Attempted Felonious Assault charge was dismissed. In 2020 CR 570, the second-degree felony Escape count was amended to a felony of the third degree and appellant pled as charged to the Assault on a Peace Officer and Failure to Comply counts. The remaining charges in that case were dismissed. In 2020 CR 667, the fourth-degree Assault on a Peace Officer charge was amended to Assault of a Corrections Officer, a felony of the fifth degree.
{¶10} At the plea hearing, the court engaged in a colloquy with appellant and found that he had entered the plea knowingly, intelligently, and voluntarily. Thereafter, the trial court sentenced appellant to an indefinite prison term of seven to ten and a half years for Kidnapping, 12 months for Grand Theft of a Motor Vehicle and the two counts of Assault of a Corrections Officer. The trial court sentenced appellant to 36 months for Failure to Comply and 24 months for Escape. The court ordered that the sentences be served consecutively. At sentencing, trial counsel objected to the application of the Reagan Tokes indefinite sentencing.
{¶11} Following sentencing, appellant timely appealed asserting three assignments of error. This court sua sponte consolidated his cases on appeal.
{¶12} Appellant’s first assignment of error states:
{¶13} “[1.] The Trial Court erred in accepting Appellant’s guilty plea for the offense of Kidnapping
{¶14} In this assignment, appellant argues that there was no evidence in the record to support appellant’s conviction for Kidnapping. In making this argument, appellant raises concepts of merger and sufficiency of the evidence. For merger, he argues that he committed an assault against the officer in the jail by strangling her but that there was no separate animus or risk of harm apart from the underlying assault. He also argues that the facts of the case do not satisfy the elements of Kidnapping because appellant did not remove the officer from the place where she was found.
{¶15} Appellant’s arguments pertaining to merger rely upon State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979) and State v. Jones, 4th Dist. Hocking No. 20CA2, 2021-Ohio-2601. However, these citations to merger of offenses are inapposite in this case. Under Ohio’s merger statute, “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”
{¶16} Appellant also argues that there is no evidence in the record to support a Kidnapping conviction because nothing in the record demonstrates his attempt to remove the officer elsewhere. This argument is rooted in the sufficiency of the evidence. However, Appellant did not file a motion to withdraw his guilty plea and does not claim that the plea was not entered knowingly, intelligently, and voluntarily. Although appellant does not claim a
{¶17} “A guilty plea ‘is a complete admission of the defendant‘s guilt.’” State v. Bradley, 11th Dist. Ashtabula No. 2017-A-0070, 2018-Ohio-1671, ¶ 6, quoting
{¶18} By knowingly, intelligently, and voluntarily entering his guilty plea, appellant waived the right to require the State to prove each and every element of the offense of Kidnapping beyond a reasonable doubt. See
{¶19} Accordingly, appellant’s first assignment of error is without merit.
{¶20} Appellant’s second assignment of error states:
{¶21} “[2.] Appellant’s Trial Attorney Rendered Ineffective Counsel.”
{¶22} In his second assignment of error, appellant claims that counsel rendered ineffective assistance for failing to file a motion to dismiss appellant’s Kidnapping count and for failing to enter a plea of not guilty by reason of insanity on appellant’s behalf.
{¶23} In reviewing an ineffective assistance of counsel claim, the standard we apply is “‘whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must demonstrate (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability, were it not for counsel‘s errors, the result of the proceedings would have been different. Strickland at 669. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure to “satisfy one prong of the Strickland test negates a court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland at 697.
{¶24} An appellant “must be able to demonstrate that the attorney made errors so serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth Amendment, and that he was prejudiced by the deficient performance.” Story, supra,
{¶25} Appellant’s first claim is that trial counsel was ineffective for failing to file a motion to dismiss the Kidnapping claim. In this assignment, appellant again advances the argument that there was not a sufficient factual basis to support a Kidnapping count. In criminal matters, motions to dismiss are limited to matters that are “capable of determination without the trial of the general issue.”
{¶26} In State v. Lawson, 7th Dist. Mahoning No. 12 MA 194, 2014-Ohio-879, the Seventh District, relying on Kolat, noted that attempting to dismiss a criminal charge based on sufficiency arguments would be futile and would not constitute ineffective assistance. Id. at ¶ 26. (“Thus, her counsel‘s strategy to not pursue sufficiency of the evidence during the motion to dismiss was a valid strategy.”) Similarly, in the present case, it would have been futile for appellant’s trial counsel to seek a dismissal upon the sufficiency of the State’s evidence for that charge. It would have been premature and futile for appellant’s counsel to challenge, in advance of trial, whether the State could satisfy its burden of proof. See Kolat, at ¶ 16 and Lawson, at ¶ 26.
{¶27} Appellant’s second claim is that trial counsel was ineffective for not entering a plea of not guilty by reason of insanity on behalf of appellant. However, appellant points to nothing in the record that suggests that appellant, at the time of the commission of the offense, did not know, as a result of severe mental disease or defect, the wrongfulness of his acts. See
{¶28} “When a defendant enters a plea of guilty as a part of a plea bargain he waives all appealable errors which may have occurred at trial, unless such errors are
{¶29} Appellant received two competency evaluations in this case. The standard for competence and the standard for finding a defendant not guilty by reason of insanity are distinct. Under
{¶30} At appellant’s plea hearing, the trial court reviewed the procedural history of his case and noted, for the record, that
One of the things that really always stood out to me in the December 14, 2020 evaluation from Summit Psychological is the determination that Mr. Crew certainly does suffer from different mental health issues, but more specifically, that he attempts to use fake mental health issues to his advantage. They specifically found that he was malingering and was basically lying throughout the interview in order to have the examiner view him in a different light.
Based on this information from appellant’s competency report, it does not appear that trial counsel would have had a basis upon which to enter a plea of not guilty by reason of insanity. Appellant’s plea of guilty waived any argument he could make about an insanity
{¶31} Accordingly, appellant’s second assignment of error is without merit.
{¶32} Appellant’s third assignment of error states:
{¶33} “[3.] The indefinite sentencing scheme of “The Reagan Tokes Law” (SB201)
{¶34} In this assignment of error, appellant challenges the constitutionality of
{¶35} Following the precedent of this court, we conclude that appellant’s third assignment of error, which argues that the constitutional issues presented by the Reagan Tokes Act are ripe for review, is without merit.
{¶36} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.