State v. HurtState v. Hurt
{¶1} Appellant Kelvin Hurt Jr. appeals from the April 11, 2019 Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following statement of facts is adduced from appellee’s statement at the change-of-plea hearing on April 9, 2019.
{¶3} In August and September 2018, the CODE Task Force made two controlled buys of methamphetamine from appellant in Muskingum County, Ohio. The first controlled buy, on August 31, 2018, was captured on video.1 Appellant and a confidential informant agreed to a deal in which appellant sold one and a half ounces of methamphetamine for $600. Appellant had a bag of methamphetamine in his hands, which he opened and repackaged a smaller amount of methamphetamine into a smaller bag, which he wrapped and handed to the informant. This purchase yielded 38.89 grams of methamphetamine and took place within 1000 feet of a school.
{¶4} A month later, an informant purchased 25.57 grams of methamphetamine from appellant for around $400. The second sale took place on the sidewalk in front of appellant’s residence.
{¶5} Appellant was charged by indictment with one count of drug trafficking (methamphetamine) pursuant to
{¶6} On April 9, 2019, appellant changed his pleas to guilty to the following amended counts: Count I, drug trafficking pursuant to
{¶7} Appellant now appeals from the trial court’s Entry of May 15, 2019.
{¶8} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA WHICH WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.”
{¶10} “II. THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA WHICH WAS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
ANALYSIS
I., II.
{¶11} Appellant’s two assignments of error are related and will be considered together. Appellant argues his plea of guilty upon Count II was not voluntary, intelligent,
{¶12} Appellant’s arguments on appeal relate solely to Count II, illegal manufacture of methamphetamine with a school specification. We begin by noting that the record is almost nonexistent as to the facts underlying the charged offenses due to the procedural posture of the case as a guilty plea. Appellant entered a plea of guilty to one count of illegal manufacture pursuant to
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The Jurors of the Grand Jury of the State of Ohio * * * do find and present that on or about 8/31/2018 in the County of Muskingum, Ohio, [appellant] did knowingly manufacture or otherwise engage in any part of the production of a controlled substance, to wit: Methamphetamine, the said [appellant] committing said offense in the vicinity of a school; in violation of the Ohio Revised Code, Title 29, Section 2925.04(A), and against the peace and dignity of the State of Ohio.
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{¶14} Appellant now argues he “misunderstood the nature” of the illegal-manufacture charge in Count II when he entered his plea of guilty to that offense. We note that at no time throughout the proceedings did appellant express any confusion or misunderstanding about the offenses he was pleading to. Instead, he implicitly argues that the court should have sua sponte questioned whether he was guilty upon Count II. Appellant’s argument is premised upon the following statements during at the change-of-plea hearing:
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[PROSECUTOR]: Your Honor, on August 31st of 2018 the Code Task Force arranged for a controlled buy of two ounces of methamphetamine from the defendant, Mr. Hurt. The CI was met at a previous location, and indicated that—or the address where the transaction was, 1055 Moxahala Avenue here in Muskingum County, Ohio. It was going to be $600 for the two ounces.
The CI was searched, the vehicle was searched. They were provided with $600 of confidential funds. They were equipped with audio and video recording devices. They were tailed to 1055 Moxahala Avenue. Hurt was outside the residence engaged in conversation with the confidential informant. He was seen there by detectives. He began talking about drugs and the price of the drugs. He informed the confidential informant that two ounces was going to
be $700. They agreed that the CI would get one and a half ounces for $600. He’s seen on the video captured during the crime. His face is visible numerous times. He’s observed in the video with a plastic bag of meth in his hand. He opens up the bag, repackages a smaller amount from this baggie to another bag. He’s seen wrapping the baggie up, tying it off, handing it to the CI, and retrieving money from the CI. The CI was kept under surveillance throughout the buy, and the baggie was collected. It was 38.89 grams of methamphetamine. And that location was within 1,000 feet of the Zanesville Community School at 920 Moxahala.
On September 26 of 2018 the Code Task Force arranged for a controlled buy of one ounce of methamphetamine from Mr. Hurt. There was a series of text messages setting up the buy. He was now living behind the East End Café on Cemetery Street, also here in Muskingum County, Ohio. The vehicle and the CI were searched, provided with $400 in confidential funds, equipped with audio and video recording devices, tracking devices, tailed to that location, met with Hurt on the sidewalk in front of the residence where Mr. Hurt was, again, observed by detectives at that location.
He has a conversation with the confidential informant. The confidential informant talks about him never having baggies, they talk about the quality of the drugs, and the size of the shards, which is
slang for large chunks of methamphetamine. And the CI was then tailed back after the transaction. 25.57 grams of methamphetamine was recovered from that controlled buy. This all occurred here in Muskingum County, Ohio. THE COURT: Explain to me the illegal manufacture from that scenario.
[PROSECUTOR]: That’s the repackaging and packaging which is compounding.
THE COURT: And that’s what I presumed you were referring to, and that’s why I wanted to clarify. Thank you. [Defense counsel], anything that you would like to add?
[DEFENSE COUNSEL]: No. We would so stipulate to the facts for the purposes of the plea, Your Honor.
THE COURT: Thank you. The Court will accept the defendant’s pleas of guilty, order them to be filed. There will be a specific finding of guilty with regard to each of these three counts. The Court will order a presentence investigation to be conducted in the matter.
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T. I, 19-22 (emphasis added).
{¶15} Appellant argues the above indicates a mistake of law as to whether appellant’s conduct met the elements of illegal manufacture, i.e., the act of transferring the meth from one bag to another does not rise to the level of “illegal manufacture.”
{¶16} Appellant has not cited any authority for his underlying premise: that the conduct briefly described at the change-of-plea hearing does not fit the statutory elements. From that premise, however, appellant extrapolates a fatal flaw in the plea process that resulted in an involuntary plea. The issue presented by this case is whether the guilty plea was rendered involuntary on the basis of the conversation between the trial court and appellee, and we find it was not.
{¶17} “‘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. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, 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. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, 2014 WL 3359226, ¶ 13.
{¶19} Before accepting a guilty plea in a felony case a trial court must address the defendant personally and determine 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.”
{¶21} The instant case implicates
{¶22} In the instant case, appellant gave no indication he did not understand the offense he was pleading to. There was no reason for the trial court to glean, from the totality of the circumstances, that appellant did not understand the charge. The trial court was not required to recite or explain each definition and subpart in
{¶23} We have insufficient facts before us in the record to evaluate the merits of appellant’s underlying premise. Appellant did not move to withdraw his guilty plea under
{¶24} In determining whether a defendant is making a plea with an understanding of the nature of the charge, a trial court has no obligation to advise the defendant of the elements of the crime or to specifically ask whether he or she understands the charge, provided the totality of the circumstances support the trial court‘s determination that the defendant understands the charge. State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013–Ohio–3146, ¶ 14. In fact, “[w]here a defendant indicates that he understands the nature of the charge, in the absence of evidence to the contrary or anything in the record that indicates confusion, it is typically presumed that the defendant actually understood the nature of the charge against him.” State v. Wangul, 8th Dist. Cuyahoga No. 84698, 2005–Ohio–1175, ¶ 10. And where a defendant enters a guilty plea without asserting innocence, it is presumed that the defendant understands that he or she has admitted guilt. State v. Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 19.
{¶26} Thereafter, the trial court advised appellant of his constitutional rights, including the right to representation, a jury trial, the state proving its case beyond a reasonable doubt, confrontation, compulsory process, and the right to remain silent. Finally, the court advised appellant that a plea of guilty would constitute a complete admission of the truth of the charges and that by pleading guilty, he waived the rights as explained to him. Appellant answered that he understood the court‘s advisement. He entered guilty pleas to two amended counts (Counts I and III) and to Count II as charged, and the court found that appellant made a knowing, intelligent, and voluntary decision to plead. Appellant‘s counsel also provided that appellant understood the charges and the potential penalties and stated that she believed the trial court had fully complied with
{¶27} The record is devoid of any indication of confusion, hesitation, or protestations of innocence by appellant during the plea hearing regarding Count II. We note that at the inception of the change-of-plea hearing, appellant said he wanted a
{¶28} Based upon the above, we find that appellant did, in fact, knowingly, voluntarily, and intelligently enter a guilty plea to the charge of illegal manufacture in violation of
{¶29} When conducting a
{¶30} In the instant case, we conclude that the trial court fully complied with the requirements of
{¶31} Appellant was represented by counsel. At no point in his plea hearing or his sentencing did it appear that appellant was confused. The trial court asked appellee to provide a statement of the facts. Appellant was then asked if he agreed with the facts as presented still wanted to plead guilty. Appellant‘s attorney did not express any concern regarding appellant‘s understanding of the nature of the offense.
{¶33} Appellant also contends he was denied effective assistance of counsel because defense trial counsel failed to raise the argument above regarding Count II and permitted appellant to enter a guilty plea.
{¶34} To establish constitutionally-ineffective assistance of counsel, a defendant must show (1) that his counsel‘s performance was deficient, and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” (Citations omitted.) State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. Failure to establish either element is fatal to the claim. In re Garn, 5th Dist. Richland No. 2006-CA-0053, 2007-Ohio-6765, ¶ 77, citing Strickland, 466 U.S. at 687. Therefore, if one element is dispositive, a court need not analyze both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) [stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other.”]. We presume that a properly-licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶35} As noted supra, defense trial counsel secured the plea deal appellant sought: 10 years of non-mandatory time. Appellant did not pursue his request for new counsel. The record indicates counsel zealously defended appellant‘s interests in negotiating a plea to reduced charges. As we found supra, there is insufficient information in the record for us to evaluate the merits of appellant’s actions underlying Count II. Appellant has failed to meet his burden of proving that his plea was the result of ineffective assistance of counsel. See State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Appellant’s argument that counsel was ineffective is therefore not well-taken.
{¶36} Any speculation on our part as to alleged prejudice would not support appellant’s ineffective assistance claim. For the foregoing reasons, we find no merit to appellant’s claim that he received ineffective assistance of counsel.
{¶37} Appellant’s two assignments of error are overruled.
{¶38} Appellant’s two assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.
{¶39} I concur in the majority’s analysis and disposition of Appellant’s first assignment of error. I further concur in the majority’s disposition of Appellant’s second assignment of error, but offer the following analysis for doing so.
{¶40} The majority concludes “there is insufficient information in the record for us to evaluate the merits of appellant’s actions underlying Count II.” I respectfully disagree. It appears to me the factual basis for Count II was sufficiently established at the change-of-plea hearing. The issue is are those facts sufficient to support Appellant’s conviction thereon. Specifically, whether Appellant’s packaging or repackaging of the drugs during the controlled buy was incident to their production as opposed to being incident to their sale.
{¶41} I believe Appellant’s counsel was ineffective for failing to raise this issue via a pre-trial motion to dismiss or, at a minimum, preserving it for appellate review by having Appellant enter a no contest plea to the charge rather than a guilty plea. However, I agree with the majority because the plea agreement reached as to all three charges resulted in the aggregate sentence Appellant sought and Appellant pled guilty to all three charges, including a school specification, based upon two separate, controlled drug buys. Therefore, Appellant cannot satisfy the second, prejudice prong on the Strickland test.
HON. WILLIAM B. HOFFMAN