STATE OF OHIO v. KENJI LEWIS
C.A. No. 30166
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 30, 2022
2022-Ohio-3468
SUTTON, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 21 CRB-04709
SUTTON, Judge.
{1} Defendant-Appellant, Kenji Lewis, appeals from the judgment of the Akron Municipal Court. For the following reasons, this Court affirms, in part, reverses, in part, and remands for further proceedings consistent with this decision.
I.
Relevant Background
{2} On June 24, 2021, Mr. Lewis was arrested and charged with one count of domestic violence pursuant to
{4} On September 24, 2021, Mr. Lewis appeared for a change of plea hearing, and executed a plea of guilty or no contest to charge(s) and waiver-of-rights form. The form indicated that, before entering a plea of no contest, Mr. Lewis understood he had a right to: (1) an attorney; (2) have the nature of the charges explained to him; (3) have the matter tried to a judge or jury; (4) confront witnesses; (5) present witnesses; and (6) testify on his own behalf, but only of his own volition. The form also indicated the State must prove all elements of the charge against Mr. Lewis beyond a reasonable doubt. Further, the form explained the legal meaning of a guilty plea and plea of no contest. As to a plea of no contest, the form stated:
[a] plea of no contest is an admission of the truth of the facts in the complaint(s) but not an admission of guilt, but permits the court to make a finding of guilty or not guilty. Such a plea cannot be used against me in any future civil proceedings.
If I enter a plea of guilty or no contest, I waive all of these rights and the court shall impose sentence without unnecessary delay.
Mr. Lewis also initialed boxes indicating: (1) he is a United States citizen; (2) he can read and has read the form and that his rights and points of law have been explained to him either by his attorney or the trial court; and (3) he had been advised that domestic violence is an enhanceable offense, and following a second offense of the same charge, he will be subjected to enhanced penalties. Mr. Lewis signed this form further indicating he understood his rights and the points of law therein, and “willingly” entered a plea of no contest to the charge of domestic violence.
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[TRIAL COURT]: All right. We‘re on the record with Case Number 21CRB04709, [Mr.] Lewis.
Submitted to the [c]ourt has been a waiver of trial rights.
And, Mr. Lewis, have you gone over your rights with your attorney?
MR. LEWIS: Yes, I have, Your Honor.
[TRIAL COURT]: She answer all of your questions?
MR. LEWIS: Yes, she did.
[TRIAL COURT]: Do you understand you have the right to have a trial before a judge or a jury?
MR. LEWIS: Yes, I do.
[TRIAL COURT]: And you understand you have the right to have the State prove all of the elements of the charges alleged?
MR. LEWIS: Yes, I do.
* * *
[TRIAL COURT]: Okay. Is your client pleading no contest, it looks like on the sheet here, to the charge of domestic violence?
[COUNSEL]: Yes, Your Honor.
[TRIAL COURT]: Is he waiving presentation of the facts and stipulating to the finding of guilt?
[COUNSEL]: Yes, Your Honor.
[TRIAL COURT]: All right. Do you have anything to say in light of sentencing, counsel?
[COUNSEL]: As far as sentencing goes, Your Honor, * * * I would just state for the record that Mr. Lewis has been on GPS monitoring for, at least, 90 days now. I
* * *
{6} The trial court sentenced Mr. Lewis to a $150 fine, plus court costs, 180 days in jail with 178 days suspended, and credit for two days served, contingent upon Mr. Lewis obeying all laws for one year, completing anger management and parenting classes, and reporting to probation until these classes are complete. Further, the trial court ordered Mr. Lewis to refrain from having any unlawful contact with the victim and gave him 90 days to pay the remainder of his fines and costs.
{7} Mr. Lewis now appeals, raising three assignments of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT OVERRULED [MR. LEWIS‘] MOTION TO DISMISS THE CASE ON SPEEDY TRIAL GROUNDS.
{8} In his first assignment of error, Mr. Lewis argues his right to a speedy trial has been violated. For the following reasons, we disagree.
{9} A trial court‘s determination of speedy trial issues presents a mixed question of law and fact. State v. Fields, 9th Dist. Wayne No. 12CA0045, 2013-Ohio-4970, ¶ 8. ““When reviewing an appellant‘s claim that he was denied his right to a speedy trial, this Court applies the de novo standard of review to questions of law and the clearly erroneous standard of review to questions of fact.“” Id., quoting State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, 36.
{10} “The right of an accused to a speedy trial is recognized by the Constitutions of both the United States and the State of Ohio.” State v. Pachay, 64 Ohio St.2d 218, 219 (1980). Ohio‘s
{11}
Subject to division (D) of this section, a person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial as follows:
(2) Within ninety days after the person‘s arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days.
For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section.
Moreover, “[t]ime begins to run the day after the date of arrest.” State v. Friedhof, 9th Dist. Medina No. 2505-M, 1996 WL 385612, *3 (July 10, 1996). See also State v. Coleman, 9th Dist. Summit No. 29360, 2020-Ohio-2807, ¶ 8 (“When calculating speedy trial time, the day of arrest is not to be counted.“)
{12} “Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by [
{13} Pursuant to
The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
(A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined, or any period during which the accused is physically incapable of standing trial;
(C) Any period of delay necessitated by the accused‘s lack of counsel, provided that such delay is not occasioned by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order;
(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion;
(I) Any period during which an appeal filed pursuant to section 2945.67 of the Revised Code is pending.
(Emphasis added.)
{14} Here, the record indicates Mr. Lewis was arrested on June 24, 2021, on one count of domestic violence, a first-degree misdemeanor, and was released on bond June 25, 2021.
{15} On August 13, 2021, the State filed a motion to continue the jury trial which had originally been set for August 19, 2021. In its motion, the State contended the victim was unavailable on August 19, 2021, due to “a previously scheduled” out-of-town trip. Further, the State indicated the victim “was the only person, other than [Mr. Lewis], present during the assault, and is therefore a necessary witness.” In granting the State‘s motion, the trial court reset the jury trial for October 21, 2021. Then, in a subsequent order, the trial court reset the jury trial for the earlier date of September 27, 2021. The trial court‘s orders were silent on its reasons for granting the State‘s continuance.
{16} “Ideally, when granting a continuance under the second half of
{17} Indeed, this Court has previously determined that “the availability of a key prosecution witness is a reasonable ground for granting a continuance pursuant to
{18} Thus, based upon this record, we cannot say Mr. Lewis’ speedy trial rights have been violated. In accordance with
{19} Accordingly, Mr. Lewis‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED [MR. LEWIS‘] RIGHTS TO DUE PROCESS BY FINDING [MR. LEWIS] GUILTY WITHOUT FULLY INFORMING HIM OF THE EFFECT OF A NO CONTEST PLEA; WITHOUT [MR. LEWIS] ACTUALLY ENTERING A VERBAL PLEA DURING THE PLEA HEARING; AND WITHOUT DOING SO IN OPEN COURT IN [MR. LEWIS‘] PRESENCE.
{20} In his second assignment of error, Mr. Lewis argues the trial court committed reversible error in violation of his due process rights by: (1) finding him guilty without informing him of the effect of a no contest plea; (2) finding him guilty without allowing Mr. Lewis to enter a verbal plea; and (3) failing to find Mr. Lewis guilty in open court.
{21} “A plea is invalid where it has not been entered in a knowing, intelligent, and voluntary manner.” State v. Farnsworth, 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 4. “A trial court‘s obligations in accepting a plea depend upon the level of offense to which the defendant is pleading.” State v. Smith, 9th Dist. Medina No. 14CA0122-M, 2016-Ohio-3496, ¶ 6. “If a misdemeanor case involves a serious offense, the court must address the defendant personally, inform [him] of the effect of [his] plea, determine that [he] is making the plea voluntarily, and, if [he] is unrepresented, address [his] right to counsel.” Twinsburg v. Milano, 9th Dist. Summit No. 28674, 2018-Ohio-1367, ¶ 8, citing
{22} “Because the right to be informed of the effect of a plea is a nonconstitutional one, it is ‘subject to review under a standard of substantial compliance.“” State v. Brown, 9th Dist. Lorain No. 19CA011588, 2021-Ohio-3443, ¶ 9, quoting Milano at ¶ 11, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. In order to substantially comply with
{23} Here, Mr. Lewis was charged with domestic violence, a misdemeanor of the first degree. Pursuant to
{24} Upon review, the record reveals the trial court advised Mr. Lewis, in writing, of the effect of his no contest plea. As previously indicated, the plea of guilty or no contest to charge(s) and waiver-of-rights form indicated:
[a] plea of no contest is an admission of the truth of the facts in the complaint(s) but not an admission of guilt, but permits the court to make a finding of guilty or not guilty. Such a plea cannot be used against me in any future civil proceedings.
If I enter a plea of guilty or no contest, I waive all of these rights and the court shall impose sentence without unnecessary delay.
Although not identical, the language in the form Mr. Lewis executed closely tracks that of
Oral Plea
{25} Mr. Lewis also argues this Court should vacate his plea because he did not orally enter a plea of no contest on the record. The State concedes the trial court did not literally comply with
{26}
A defendant may plead not guilty, * * * guilty or, with the consent of the court, no contest. A plea of not guilty by reason of insanity shall be made in writing by either the defendant or the defendant‘s attorney. All other pleas may be made orally either in-person or by remote contemporaneous video in conformity with Crim.R. 43(A).
(Emphasis added.)
{27} The record reveals that, while Mr. Lewis signed the form consenting to a plea of no contest for the charge of domestic violence, he did not orally give his plea to the trial court. Instead, the trial court enquired of Mr. Lewis and his attorney as follows:
[TRIAL COURT]: And, Mr. Lewis, have you gone over your rights with your attorney?
MR. LEWIS: Yes, I have, Your Honor.
[TRIAL COURT]: She answer all of your questions?
MR. LEWIS: Yes, she did.
[TRIAL COURT]: Do you understand you have the right to have a trial before a judge or a jury?
MR. LEWIS: Yes, I do.
[TRIAL COURT]: And you understand you have the right to have the State prove all of the elements of the charges alleged?
MR. LEWIS: Yes, I do.
* * *
[TRIAL COURT]: Okay. Is your client pleading no contest, it looks like on the sheet here, to the charge of domestic violence?
[COUNSEL]: Yes, Your Honor.
* * *
{28} Based upon this record, the trial court partially complied with
{29} Lastly, Mr. Lewis argues his plea should be vacated because the trial court, pursuant to
Crim.R. 43(A)(1) provides, in pertinent part, that “the defendant must be physically present at every stage of the criminal proceeding and trial, including impaneling of the jury, the return of the verdict, and the imposition of sentence, except as otherwise provided by these rules.” Absent a valid exception, such as waiver by the defendant, the trial court may not take a matter under advisement and issue a written decision in lieu of announcing the verdict and sentencing the defendant in his presence.
Grace at ¶ 6. Grace, however, is distinguishable from the present matter. Here, unlike Grace, Mr. Lewis pleaded no contest to the charge of domestic violence and stipulated, through his attorney, to the finding of guilt. The following discussion took place in the presence of Mr. Lewis:
* * *
[TRIAL COURT]: Is he waiving presentation of the facts and stipulating to the finding of guilt?
[COUNSEL]: Yes, Your Honor.
* * *
The trial court then sentenced Mr. Lewis, in open court, immediately following the colloquy. Due to the stipulation of guilt, made in open court and in the presence of Mr. Lewis, this does not rise to the level of reversible error. As such, based upon this record, Mr. Lewis’ argument is not well-taken.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN FAILING TO PROVIDE [MR. LEWIS] WITH HIS RIGHT TO ALLOCUTION PRIOR TO THE IMPOSITION OF HIS SENTENCE IN VIOLATION OF CRIM.R. 32(A)(1) .
{31} In his third assignment of error, Mr. Lewis contends the trial court erred in failing to provide him with his right to allocution prior to imposing sentence in violation of
{32} “When sentencing an offender, a trial court must ‘[a]fford counsel an opportunity to speak on behalf of the defendant and address the defendant personally and ask if he or she wishes to make a statement in his or her own behalf or present any information in mitigation of punishment.‘” State v. Ivey, 9th Dist. Summit No. 28162, 2017-Ohio-4162 ¶ 13, quoting
{33} “A trial court‘s failure to comply with
Although there are no bright-line rules for determining whether a violation of
Crim.R. 32(A)(1) is harmless, some Ohio courts-including this one-have found harmless error when counsel speaks, even if the defendant is not given the opportunity to do so, and the defendant receives a minimal sentence or a statutorily-mandated sentence. * * * Essentially, the less likely it is that the defendant‘s allocution would have affected the outcome of the case, the more likely the courts are to find that aCrim.R. 32(A)(1) violation was harmless.
{34} Here, prior to imposing sentence, the trial court did not ask Mr. Lewis if he wanted to make a statement. Pursuant to
{35} In accordance with
{36} Although arguably this is a fairly lenient sentence based upon the victim‘s injuries, this Court will not infer that the denial of Mr. Lewis’ right to allocution was harmless error. In suspending most of Mr. Lewis’ jail time, the trial court imposed several requirements that Mr. Lewis must follow to avoid serving the remainder of the time. It also ordered Mr. Lewis to pay a
{37} Accordingly, Mr. Lewis’ third assignment of error is sustained.
III.
{38} Mr. Lewis’ first and second assignments of error are overruled. Mr. Lewis’ third assignment of error is sustained. The judgment of the Akron Municipal Court is affirmed, in part, reversed, in part, and remanded for further proceedings consistent with this decision.
Judgment affirmed, in part, reversed, in part, and remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed equally to both parties.
BETTY SUTTON
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
EVE V. BELFANCE, Director of Law, and MICHAEL A. WALSH and KRISTEN L. SMITH, Assistant Directors of Law, for Appellee.