STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES S. KENNEDY, Defendant-Appellant.
CASE NO. 2013-A-0002
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
September 30, 2013
2013-Ohio-4553
[Cite as State v. Kennedy, 2013-Ohio-4553.] Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011 CR 243. Judgment: Affirmed.
Michael J. Goldberg and Scott M. Kuboff, The Goldberg Law Firm, LLC, 323 Lakeside Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, James S. Kennedy, appeals from the judgment of the Ashtabula County Court of Common Pleas, convicting him of attempted aggravated murder and a firearm specification, after accepting his plea of guilty by way of Carolina v. Alford, 400 U.S. 25 (1970). At issue is whether the trial court followed the proper procedure in accepting the plea. For the reasons that follow, we affirm.
{¶3} On the day of trial, appellant withdrew his not-guilty plea and entered a plea of guilty pursuant to Alford, supra, to the charges in thе indictment. In consideration of the plea, the state recommended a three-year prison term for the attempted aggravated murder charge and a three-year mandatory term for the firearm specification for an aggregate term of six years. As such, the state recommended any other non-merged term to be served concurrеntly.
{¶4} At the plea hearing, the state set forth the factual basis which, it alleged, was sufficient to prove, beyond a reasonable doubt, appellant would be convicted by a jury on all counts. After engaging in a full
{¶5} After a hearing, the trial court sentenced appellant to a five-year term of imprisonment for aggravated attempted murder and a three-year term for the firearm specification. Appellant was sentenced to three years for each count of felonious
{¶6} Appellant‘s first assignment of error provides:
{¶7} “The trial court failed to comply with
{¶8} Under his first assignment of error, appellant contends the trial court failed to comply with
{¶9} A plea entered pursuant to Alford is a plea that permits a defendant to plead legal guilt, yet maintain his or her factual innocence. State v. Anderson, 11th Dist. Lake No. 2005-L-178, 2006-Ohio-5167, ¶8. Before accepting an Alford plea, “[t]he trial judge must ascertain that notwithstanding the defendant‘s protestations of innocence, he has made a rational calculation that it is in his best interest to accept the plea bаrgain offered by the prosecutor.” State v. Padgett, 67 Ohio App.3d 332, 338 (2d Dist.1990) citing Alford, supra, at 38, fn. 10; see also Anderson, supra, at ¶8.
{¶10} In the context of an Alford plea, the Ohio Supreme Court has held:
{¶11} Where the record affirmatively discloses that: (1) defendant‘s guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel‘s advice
{¶12} In this case, appellant stated on record that his decision to enter the plea was not the result of any threats or fоrce. He further indicated he was aware of the nature of the plea and understood the implications of entering an Alford plea. Also counsel was present at the time of the plea. And, given the significant charges appellant was facing, the negotiated plea that was recommended to appellant indicates counsel‘s advice was certainly competent under the circumstances. Furthermore, the court explained, in great detail, the charges appellant was facing, including what the state was specifically required to prove if the case went to trial. And appellant stated on record he understood each of the charges as well as the рotential penalties associated with them if he were convicted.
{¶13} Finally, contrary to appellant‘s assertions, the record contains evidence of appellant‘s motivation for entering his Alford plea. In particular, the discussion the court had with appellant on record indicates he was motivated by both a desire to seek a lеsser penalty and the fear of the consequences of a jury trial. First of all, appellant‘s counsel stated on record that the six-year sentence recommended by the state was a
{¶14} [I]f you‘re fоund guilty of every one of these charges, as you should know – and I will talk about this in a few minutes – there are some very serious penalties and, of course, much greater than what the State is willing to even recommend for a sentence in this case.
{¶15} There‘s some other considerations that your lawyer had mentioned in chambers that you perhaps could be eligible for, such as judicial release, that might be more difficult for you to obtain if you were convicted after trial, so I can see there are reasons that you might be willing to enter this Alford plea. I guess the other thing that I might as well mention – I don‘t think that‘s come up yet – but your attorney has also mentioned the possibility of perhaps civil liability. That is a concern in this cаse and I can understand that it might be * * *.
{¶16} Although the court did not directly ask appellant to articulate why he wished to plea by way of Alford, the record demonstrates defense counsel disclosed appellant‘s motivations for entering the plea personally to the judge. See State v. Byrd, 4th Dist. Athens No. 07CA29, 2008-Ohio-3909, ¶19 (where a trial court did not specifically ask a defendant why he was entеring the plea, the appellate court still concluded there was sufficient evidence to show a defendant was motivated to enter Alford plea because defense attorney conveyed the defendant‘s reasons and the rationale was sufficient to demonstrate appellant had a basis to fear the result of a jury
{¶17} Given the foregoing, we hold the trial court sufficiently inquired into whether appellant rationally calculated his decision to plead guilty pursuant to Alford. Furthermore, the record demonstrates appellant was motivated to enter the plеa to seek a lesser penalty as well as to avoid potential civil liability that could eventuate from either going to trial or entering a general plea of guilty. Finally, statements of counsel on record, coupled with the trial court‘s lengthy and thorough colloquy with appellant, established an adequate factual basis showing the Alford plea appellant entered was a rational response to the state‘s evidence. See e.g. State v. Al-Jumailee, 11th Dist. Portage No. 2006-P-0037, 2007-Ohio-2061, ¶27-28.
{¶18} Appellant‘s first assignment of error lacks merit.
{¶19} Appellant‘s second assignment of error provides:
{¶20} “Appellant did not enter any plea prescribed by
{¶21} Appellant asserts the trial court erred in imposing sentence because appellant did not enter his plea orally on record. We do not agree.
{¶22}
{¶23} In this case, appellant entered a writtеn plea of guilty pursuant to Alford before the plea hearing. Appellant represented on record that he knowingly and voluntarily signed his plea of guilty and understood his actions in doing so. And there is no confusion that the hearing took place for the court to engage appellant in a
{¶24} In the interest of a comprehensive analysis, however, we also underscore that the record also discloses sufficient evidence that appellant entered a functional oral plea of guilty via Alford during the hearing. At the hearing, the trial court inquired
{¶25} In State v. Thompson, 10th Dist. Franklin No. 96APA12-1679, 1997 Ohio App. LEXIS 4354, the Tenth District concluded that a defendant‘s legal acknowlеdgement that he knowingly and voluntarily signed a written plea agreement on record is tantamount to orally entering a plea. Id. at *3-*4.1 Following Thompson, appellant‘s affirmation stands as the equivalent of an oral plea of guilty.
{¶26} Moreover, During the plea colloquy, the following exchange occurred between the court and appellant:
{¶27} THE COURT: Okay. Now, the plea in this case is being made pursuant to a United States Supreme Court case called North Carolina versus Alford. What that means is that you‘re not admitting that you committed the offense; however, it‘s a guilty plea and if I accept this plea, then I could impose all the same penalties as if you did admit you committed the offenses. Do you understand that?
{¶28} [Appellant]: Yes, sir.
{¶29} Later, the court clarified thаt appellant desired to enter the guilty plea pursuant to Alford. To wit:
{¶31} [Appellant]: The Alford plea.
{¶32} THE COURT: All right. And you understand that I treat that as a guilty plea and that I can impose all the penalties that I have talked about?
{¶33} [Appellant]: Yes sir.
{¶34} These points, in addition to appellant‘s acknowledgement, before the judge, that he had voluntarily signed the plea of guilty with full understanding of its implications are sufficient to demonstrate appellant entered an oral plea of guilty by way of Alford at the hearing. We therefore hold the trial court did not err in sentencing appellant as the record reflects appellant entered both a written and an oral plea of guilty pursuant tо Alford.
{¶35} Appellant‘s second assignment of error is without merit.
{¶36} For the reasons discussed in this opinion, the judgment of the Ashtabula County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, - vs - JAMES S. KENNEDY, Defendant-Appellant.
CASE NO. 2013-A-0002
ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
{¶37} I respectfully dissent.
{¶38} In affirming the judgment of the trial court, the majority contends that the court sufficiently inquired into whether appellant rationally calculated his decision to plead guilty pursuant to Alford, and thus, did not err in sentencing him accordingly. I disagree.
{¶39} Preliminarily, this writer notes that the trial judge, in light of the ever more complicated colloquy requirements under
{¶40} “‘An Alford plea is a plea “whereby the defendant pleads guilty yet maintains actual innocence of the charges.“‘” [State v. Anderson, 11th Dist. Lake No. 2005-L-178, 2006-Ohio-5167,] ¶8, citing [State v.]Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶13, * * *. ‘Although an Alford plea allows the defendant to maintain his factual innocence, the plea has the same legal effect as a plea of “guilty,” and upon aсceptance by the trial court, the defendant stands convicted as though he had been found guilty by a trier of fact.’ Id. (citations omitted). ‘Before accepting an Alford plea, “(t)he trial judge must ascertain that notwithstanding the defendant‘s protestations of innocence, he has made a rational calculation that it is in his best interest to accept the plea bargain offered by the prosecutor.“’ Id. (Citations omitted). State v. Johnson, 11th Dist. Lake No. 2005-I-211, 2007-Ohio-781, ¶16, quoting Anderson, supra.
{¶42} “All guilty pleas, including Alford pleas, must meet the general requirement that the defendant knowingly, voluntarily, and intelligently waives his right to trial. [State v. Padgett, 67 Ohio App.3d 332, 338 (2d Dist.1990)]. Because guilty pleas accompanied by a protestation of innocence gives rise to an inherent suspicion that a knowing, voluntary, and intelligent waiver has not occurred, Alford pleas place a heightened duty upon the trial court to ensure that the defendant‘s rights are protected and that entering the plea was a rational decision on the part of the defendant. When a defendant protests his innocence, the rational calculation differs significantly than that made by a defendant who admits he is guilty; accordingly, thе trial court‘s obligation with regard to taking an Alford plea is correspondingly different. Padgett, supra. The Padgett court explained the trial court‘s duty in taking an Alford plea, as follows: (* * *) The trial judge must ascertain that notwithstanding the defendant‘s protestations of
{¶43} “(* * *)
{¶44} “(* * *) This requires more than a routine litany. Where the defendant intеrjects protestations of innocence into the plea proceedings, and fails to recant those protestations of innocence, the trial court must determine that the defendant has made a rational calculation to plead guilty notwithstanding his belief that he is innocent. This requires, at a minimum, inquiry of the defendant concerning his reasons fоr deciding to plead guilty notwithstanding his protestations of innocence (* * *)(.)
{¶45} “(* * *) (I)f a guilty plea is to be accepted, the trial court must determine, in a meaningful way, that the defendant‘s decision to tender the plea is knowing and intelligent. If it becomes impossible for the trial court to satisfy itself that the defendant‘s decision is knowing and intelligent, the trial court has the alternative of declining to accept the plea. (* * *) Id. at 338-339.” State v. Kirigiti, 10th Dist. Franklin No. 06AP-612, 2007-Ohio-6852, ¶34 (Whiteside, J., dissenting).
{¶46} Based on the facts presented in this case, I do not believe that appellant‘s plea was sufficient under Alford. The trial judge did not inquire as to why appellant wanted to plead guilty while asserting his innocence. Appellant has an amazing record, including military service and a bronze star. Appеllant signed a plea form on October 22, 2012, and indicated on the record, “By entering a GUILTY plea by way of Alford, I do not contest the facts as stated in the Indictment.” This admission is more than sufficient for a no contest plea. However, “I do not contest the facts” is not the same as “I am pleading because I am innocent and here is why.”