State v. GreenState v. Green
APPEARANCES:
Bruce K. Hust, Cincinnati, Ohio, for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, Dameon Green, appeals the judgment of the Scioto County Court of Common Pleas convicting him of one first-degree felony count of trafficking in a fentanyl-related compound in violation of
{¶2} We initially note that Green has failed to provide hearing transcripts to this Court. Although his appellate brief cites to a July 10, 2023 hearing transcript, no transcripts were made part of the appellate record. Further, because this matter ultimately resulted in the entry of a guilty plea in which Green’s trial counsel waived a statement of the facts and stipulated to the elements of the offense, the facts forming the basis of the charges herein are minimal.
{¶3} After reviewing the record that was transmitted to this Court, it appears that Appellant was initially indicted on eight felony drug-related charges, including trafficking in a fentanyl-related compound in violation of
{¶5} Appellant did not immediately appeal from that judgment; however, he filed a pro se motion for leave to file a delayed appeal on October 30, 2023. That filing was accompanied by a pro se motion for appointment of counsel and a motion for preparation of a complete transcript of proceedings at the State’s expense. The State opposed the motions. The trial court denied the motion for appointment of counsel and motion for preparation of the transcriрts on November 22, 2023. This Court then denied Appellant’s motion for leave to file a delayed appeal on November 27, 2023.
{¶6} Thereafter, another motion for leave to file a delayed appeal was filed on January 18, 2024, this time by retained counsel. At the same time, counsel filed a statement, prаecipe, and notice to the court reporter requesting transcripts for hearings held between November 22, 2022 and July 12, 2023. This Court granted
ASSIGNMENT OF ERROR
I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ACCEPTED A GUILTY PLEA THAT WAS NOT MADE KNOWINGLY AND INTELLIGENTLY.1
LEGAL ANALYSIS
{¶7} In his sole assignment of error, Appellant contends that the trial court erred to his substantial prejudice when it accepted a guilty plea that was not made knowingly and intelligently. More specifically, he argues that the trial court did
Standard of Review
{¶8}
(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 defendаnt cannot be compelled to testify against himself or herself.
See State v. Littler, 2023-Ohio-4759, ¶ 10.
{¶9} “ ‘Thus, prior to accepting a guilty plea, a “court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses.” ’ ” Littler at ¶ 11, quoting State v. Tolle, 2022-Ohio-2839, ¶ 9 (4th. Dist.), in turn quoting State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph one of the syllabus. See also
{¶10} “When reviewing a defendant‘s constitutional rights (right to a jury trial, right to call witnesses, etc.), a trial court must strictly comply with
{¶11} The Supreme Court of Ohio held as follows in Veney regarding a trial court’s acceptance of guilty pleas:
“When a defendant enters a plea in a criminal case, the plea must be mаde 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.”
Veney, supra, at ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996); State v. Montgomery, supra, at ¶ 40; State v. Barker, 2011-Ohio-4130, ¶ 9. See also Tolle, supra, at ¶ 12.
{¶12} Thus, “ ‘[i]t is the trial court‘s duty * * * to ensure that a defendant “has a full understanding of what the plea connotes and of its consequence.” ’ ” Tolle at ¶ 13, quoting Montgomery at ¶ 40, in turn quoting Boykin v. Alabama, 395 U.S. 238, 244 (1969); State v. Conley, 2019-Ohio-4172, ¶ 34 (4th Dist.). When appellate courts evaluate whether a defendant knowingly, intelligently, and voluntarily entered a guilty plea, a court must independently review the record to ensure that the trial court complied with the
Legal Analysis
{¶13} As set forth above, Green argues that the trial court failed to ensure that he understood the effect оf a guilty plea, primarily that it was a complete admission of guilt, barring a subsequent challenge to racial profiling, in particular. Because the effect of a guilty plea falls within the notification of nonconstitutional rights, the trial court was required to substantially comply with
{¶14} Here, as set forth above, Green was originally indicted for first-degree felony trafficking in a fentanyl-related compound, in violation of
{¶15} The record before us reveals that the trial court accepted Green’s guilty plea аnd imposed the sentence agreed upon by both Green and the State, which was a minimum, mandatory prison term of 11 years, up to a maximum prison term of 16.5 years. It appears from the dates of the entries filed below that Green’s change-of-plea and sentencing hearings were held on the same day. Thе record further indicates that in conjunction with entering his guilty plea, Green signed a form entitled “Waiver of Rights,” which contained his written plea of guilt along with a waiver of his constitutional rights. The form, which was signed by the judge, prosecuting attorney, and defense counsel, stated as follows:
The Court finds that the defendant was advisеd of all applicable Constitutional rights herein, and further finds that the defendant understands the nature of the charges and the consequences of a guilty plea, and that the guilty plea to each count of the indictment herein was knowingly, voluntarily, and intelligently made.
Thus, there is evidence in the record that Appellant was fully advised of the rights he was waiving by entering a guilty plea, and specifically that he understood the consequences of a guilty plea.
{¶16} Appellant’s argument on appeal primarily hinges on a claim that he was not informed of the effect of entering a guilty plea, that entering a guilty plea was a complete admission of guilt, or that in pleading guilty he was waiving the
{¶17} We encountered a similar situation in State v. Goff, 2023-Ohio-4823 (4th Dist.). In Goff, we observed that:
“[w]hen portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the Court has no choice but to рresume the validity of the lower court‘s proceedings, and affirm.”
Goff at ¶ 15, quoting Knapp v. Edwards Lab., 61 Ohio St.2d 197, 199 (1980).
In Goff, we reasoned that “[b]ased upon the authority of Knapp alone, we are authorized to simply presume the regularity of the record and the trial court‘s decision.” Goff at ¶ 16. Even so, we endeavored to review the assignments of error to the extent possible from the information that was properly before us. Id.
{¶18} Here, although our review is hampered by the lack of transcripts in the record, after reviewing the information that is present in the record we conclude that, under the totality of the circumstances, the defendant subjectively
I took my plea. I respect it the deal that you offered for me. I appreciate it and would it hаve turned out worse, who knows. I don’t even wanna see I just want to come home and see my – see my kids and get my life together and I’m going to right. I want to get rehabilitated. I appreciate the deal what you did and it will take me a long way . . . It will take me a long way in life. I accept everything that coming to me.
Despite Appellant’s argument that the trial court did not explain the effect of a guilty plea, we must presume the regularity of the record below in the absence of the transcript and further, the portion of the record that is actually before us for review does not support Appellant’s arguments. We therefore find that the trial court substantially complied with the notification requirements related to the waiver of Appellant’s nonconstitutional rights when it accepted Appellants’ guilty plea.
{¶19} In light of the foregoing, we find no merit to Appellant’s sole assignment of error and we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and 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 Scioto 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 earliеr 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
Abele, J. and Hess, 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.