State of Ohio v. Cecil Little
Court of Appeals No. L-17-1008
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
July 20, 2018
[Cite as State v. Little, 2018-Ohio-2864.]
Trial Court No. CR0201503145
Eric Allen Marks, for appellant.
OSOWIK, J.
Introduction
{¶ 1} Defendant-appellant, Cecil Little, entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1972) (an “Alford plea“) to trafficking in cocaine, a second-degree felony, and failure to comply with an order by the
Statement of Facts and Procedural History
{¶ 2} The facts are not in dispute. Little was arrested in the city of Toledo on October 31, 2015, for selling a controlled substance to an undercover police officer for $2,000. After the sale, when the police attempted to arrest him, Little fled the scene by car and eventually crashed. At the time of his arrest, the police confiscated two additional bags of white powder, multiple pills and marijuana.
{¶ 3} All three bags of white powder were tested and analyzed: the one that Little sold to the police and the two in his possession at the time of arrest. According to the laboratory report, the first bag contained 46.23 grams of “Benzocaine;” the second bag contained 14.90 grams of Benzocaine and Cocaine Hydrochloride; and the third bag contained 6.52 grams of Benzocaine. As to the second bag, the report did not specify what percentage of the substance tested was Benzocaine and what percentage was Cocaine Hydrochloride. Benzocaine is a local anesthetic; it is not a controlled substance under Ohio law. It is, however, one of many common “filler” drugs that are used to
{¶ 4} Little was indicted on ten counts by the Lucas County Grand Jury on December 18, 2015: trafficking in cocaine, in violation of
{¶ 5} A plea hearing was held on September 27, 2016 during which Little entered an Alford plea of guilt to an amended charge in Count 1, trafficking in cocaine, in violation of
{¶ 6} The trial court explained Little‘s constitutional rights, the consequences of entering a guilty plea, including a basic prison term of up to eight years as to Count 1, and postrelease control. The court specifically asked whether Little understood that, “by entering this plea you‘re giving up your right to have the State of Ohio prove your guilt beyond a reasonable doubt.” Little answered, “Yes, ma‘am.” At the court‘s request, the state then gave a factual basis for the plea. The prosecutor asserted, in relevant part,
Thank you, Your Honor. Had this matter proceeded to trial the State would have been able to prove beyond a reasonable doubt that as it pertains to count one Cecil Little, on or about the 31st day of October, 2015, in Lucas County, Ohio did knowingly sell or offer to sell a controlled substance, and the drug involved was cocaine or a compound, mixture, preparation or substance containing cocaine, and the amount of the drug involved equaled or exceeded 20 grams but was less than 27 grams of cocaine in violation of
R.C. 2925.03(A)(1) & (C)(4)(e) of the Ohio Revised Code, trafficking in cocaine, a felony of the second degree. * * *
Specifically, * * * Mr. Little knowingly offered to sell two ounces of cocaine to an undercover vice detective for the amount of $2000. * * * [T]he substance was later tested to be 46.23 grams of Benzocaine. However, during the transaction he brought two-and-a-half ounces * * *. He broke off a piece, which was witnessed by the undercover detective, and that piece that he broke off contained a mixture of Benzocaine and cocaine hydrochloride. After the direct buy from the vice detective * * * the officers attempted to initiate a traffic stop with Mr. Little who fled in his vehicle. * * * [He crashed his vehicle and was apprehended.] And then a search incident to arrest he had * * * $2000 that was on his person that was given to him by [the vice detective] after the direct buy. All of the drugs were tested except for the oxycodone and marijuana, and the results are as follows: There was a plastic bag containing white powder which amounted to 46.23 grams of Benzocaine * * * another bag containing * * * white powder was 14.9 grams of Benzocaine and cocaine hydrochloride. That was the initial portion offered to [the detective]. Item three is a plastic bag containing white powder which weighed 6.52 grams of Benzocaine. * * * Based on these facts the State asks the Court [to] find the Defendant guilty of trafficking in cocaine, a second degree felony, and failure to comply with an order or signal of a police officer, a felony of the third degree. (Emphasis added.)
{¶ 8} Prior to sentencing, Little filed a sentencing memorandum. Citing State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, he argued that there was no evidence establishing the actual weight of the cocaine in his possession at the time of his arrest and therefore he “should not be subject to the Penalty Enhancement” set forth in
First Assignment of Error: The trial court erred in refusing to apply the controlling definition of “cocaine” that was in place at the time of sentencing.
Second Assignment of Error: The trial court erred in finding appellant guilty of a felony of the second degree following his Alford plea of guilty.
Law and Analysis
{¶ 9} “An Alford plea is procedurally indistinguishable from a guilty plea and waives all alleged errors * * * committed at trial except those errors that may have affected the entry of a defendant‘s plea pursuant to Crim.R. 11.” State v. Nguyen, 6th Dist. Lucas No. L-05-1369, 2007-Ohio-2034, ¶ 18, quoting State v. Leasure, 6th Dist. No. L-05-1260, 2007-Ohio-100. Little does not claim a violation of Crim.R. 11. Indeed, during his plea hearing, Little‘s counsel asserted that the Alford plea was given “knowingly, intelligently, and voluntarily,” and Little does not argue otherwise on appeal, nor does he claim ineffective assistance of trial counsel. Instead, in his first assignment of error, he claims that his sentence was “contrary to law,” and in his second, he argues that the trial court abused its discretion in accepting his plea because “there was no factual basis presented by the State in its proffer to support” a second degree trafficking offense.
{¶ 10} Little‘s “failure to raise the validity of his plea in the trial court constitutes a waiver of the issue on appeal, absent plain error.” State v. G.C., 10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 13. See also State v. Ellis, 6th Dist. Lucas No. L-15-1296, 2016-Ohio-8086, ¶ 19 (Because “[a]ppellant did not object, challenge or seek to
Effect of Little‘s Plea
{¶ 11} In his first assignment of error, Little seeks to have his “three year sentence reversed” based upon this court‘s February 6, 2015 decision in State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, ¶ 47. Although Gonzales was ultimately reversed by the Ohio Supreme Court, it was controlling legal precedent within this district at the time of Little‘s plea and sentencing. See State v. Gonzales, 150 Ohio St.3d 276, 81 N.E.3d 419, 2017-Ohio-777 (“Gonzales II“). But, as set forth below, Gonzales does not apply to this case because it addressed the sufficiency of evidence required to sustain a conviction for cocaine possession—not trafficking in cocaine—and, regardless, Little waived his right to challenge the sufficiency of the evidence by pleading guilty to the trafficking charge.
{¶ 12} The defendant in Gonzales was indicted on one count of possession of cocaine, in violation of
{¶ 13} In this case, Little argues that our holding in Gonzales applies because he was sentenced before it was reversed and vacated. Pursuant to that decision, Little argues that the state “failed to proffer evidence” establishing the purity of the cocaine that was commiserate with a second-degree felony. Therefore, he argues that he should have only been sentenced “to the base level of trafficking in cocaine, which is a felony of the fourth degree.
{¶ 14} In his second assignment of error, Little argues, in the alternative that the trial court abused its discretion in accepting his Alford plea. As discussed, because Little did not seek to withdraw his plea, we review the trial court‘s acceptance of it for plain error, not an abuse of discretion.
{¶ 15} The state initially charged Little with violating
{¶ 16} On appeal, Little complains that the state “tried to bootstrap” the second item that contained a “detectible amount of cocaine,” with the first item that was counterfeit. He argues that, “[a]t best, the State presented evidence that [he] sold an undercover detective 46.23 grams of Benzocaine * * * and that he had possession of 14.9 grams of a substance containing Benzocaine and Cocaine Hydrococaine.” He concludes that “there was no factual basis” to support a second-degree felony conviction and that “the court should have made a finding that [he] was guilty of Trafficking in Cocaine, a third degree felony in violation of
[W]here the record affirmatively discloses that: (1) a guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) his advice was competent in light of the circumstances surrounding the plea; (4) the plea was made with the understanding of the nature of the charges; and, (5) the plea was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made. State v. Piacella, 27 Ohio St.2d 92, 96, 271 N.E.2d 852 (1971).
{¶ 18} In addition, “[b]efore accepting an Alford plea, the trial court must * * * require the state to show a basic factual framework for the charge and plea.” (Citation omitted.) State v. Woods, 6th Dist. Lucas No. L-13-1181, 2014-Ohio-3960, ¶ 6.
{¶ 19} Here, during the plea colloquy, the trial court addressed the maximum available sentence as to each count, including that the second-degree felony charge in Count 1 carried a basic prison term of two to eight years and carried a mandatory term of incarceration. Little acknowledged that the Alford plea was motivated by a desire to avoid the possibility of additional convictions (as to Counts 2-8 and 10) and the possibility of a longer prison sentence as to the original charge in Count 1. Little‘s attorney was present when the plea was tendered, and the record does not support the conclusion that the advice he received from counsel was anything other than competent.
{¶ 20} That Little now has second thoughts about the state‘s ability to prove its case does not warrant a finding that the trial court should have refused to accept his guilty plea. “A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State‘s case or the likely penalties attached to alternative courses of action.” (Citations omitted). Piacella, 27 Ohio St.2d at 94, 271 N.E.2d 852.
{¶ 21} Finally, as to Little‘s concession that he “should have” been found “guilty” of
{¶ 22} A plain error finding is limited to those cases where a defendant demonstrates that, but for the plain error, the outcome of his case would have been different. We see no manifest injustice to support a plain error finding in this case. That
{¶ 23} For the reasons set forth above, we affirm the December 5, 2016 judgment of the Lucas County Court of Common Pleas. Costs are assessed to Little pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, P.J. CONCUR.
JUDGE