STATE OF OHIO v. ERIC LAMONT McCREE
CASE NO. CA2016-06-049
IN THE COURT OF APPEALS, TWELFTH APPELLATE DISTRICT OF OHIO, WARREN COUNTY
3/6/2017
[Cite as State v. McCree, 2017-Ohio-791.]
M. POWELL, J.
Case No. 15CR31578
Dаvid P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Stephan D. Madden, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Eric McCree, appeals his conviction and sentence in the Warren County Court of Common Pleas for trafficking in cocaine.
{¶ 2} Appellant was indicted in January 2016 on one count each of possession of cocaine and trafficking in сocaine. The state alleged that on December 21, 2015, appellant and an accomplice brought 23.21 grams of cocaine to the parking lot of The Home Depot in
{¶ 3} Appellant now appeals, raising two assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT‘S PLEA THAT WAS NOT MADE KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY.
{¶ 6} Appellant argues the trial court erred in accepting his guilty plea because it was not knowingly, intelligently, and voluntarily made.
{¶ 7} To be valid, a plea must be knowingly, intelligently, and voluntarily made. State v. Verney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. “Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” Id. “Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest.” Id. at ¶ 8. A guilty plea is invalid if the trial court does not strictly comply with
{¶ 8} On appeal, appellant does not claim the trial court failed to comply with
{¶ 9}
In felony cases the court * * * shall not accept a plea of guilty or no contest without first addressing the defendant personally and [d]etermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved[.]
{¶ 10} The record shows that before appellant entered his guilty plea to possession and trafficking in cocaine, the state informed the trial court and appellant as follows:
[If] this case had proceeded to trial, the State would‘ve shown beyond a reasonable doubt that [on] December 21, 2015, while this defendant, Eric McCree was in the parking lot of Home Depot in Lebanon, Warren County, Ohio, he did, along with a co-defendant, bring 23.21 grams of cocaine to sell to an undercover officer, however, they were arrested prior to the sale, so therefore he did possess the cocaine, which is a Schedule 2, in an amount greater than 20 grams, but less than 27 grams and also did transport and/or deliver the same cocaine in the same amount.
Subsequently, in response to the trial court‘s inquiry, appellant indicated he had heard the facts as read by the prosecutor, and admitted those facts were true. Thus, contrary to appellant‘s assertions, the record shows that prior tо entering his guilty plea, appellant was aware of the state‘s allegations and the evidence it had against him, including the amount of cocaine appellant was alleged to have trafficked. See State v. Arrambide, 8th Dist. Cuyahoga No. 87423, 2007-Ohio-394.
{¶ 11} The record further shows thаt prior to entering his guilty plea, appellant was made aware of the consequences of entering a guilty plea when the trial court informed him as follows:
You‘re going to be entering a plea of guilty to one count of possession of cocaine, one count of trafficking in cocaine. Each of those are second degree felonies, punishable by up to eight years in prison and a $15,000 fine. There is mandatory and presumed prison term in this case, as well as a $7500 mandatory fine. We also have a mandatory license suspension of anywhere from six months to five years. In addition to the maximum penalty, you‘re also subject to a mandatory period of post-release control.
{¶ 12} “[A] defеndant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.” State v. Nero, 56 Ohio St. 106, 108 (1990);
{¶ 13} The basis of appellant‘s claim that his plea wаs not made knowingly, intelligently, and voluntarily is that he was not aware of the evidence against him because he did not receive discovery, including a lab report concerning the weight of the cocaine, and a bill of particulars. The rеcord does not disclose that appellant suffered prejudice or that his plea would have been otherwise had he been provided with a bill of particulars and discovery, including a lab report addressing the weight of the coсaine involved.
{¶ 14}
{¶ 15} As to discovery, including the lab report, appellant has not demonstrated that the lab report would have indicated that the cocaine involved was less than 20 grams, or that the discovery would not have supported the factual recitation provided by the prosecutor. It
{¶ 16} In light of the foregoing, we find that appellant‘s guilty plea was knowingly, intelligently, and voluntarily made. Appellant‘s first assignment of error is overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE TRIAL COURT ERRED BY IMPOSING A SENTENCE THAT IS NOT SUPPORTED BY THE FINDINGS IN THE RECORD.
{¶ 19} Appellant argues the trial court failed to consider the mitigating factors of
{¶ 20} This court reviews felony sentences pursuant to the standard of review set forth in
{¶ 21} The purposes of felony sentencing are to protect the public from future crime by the offender and to punish the offender.
{¶ 22} After a thorough review of the record, we find no error in the trial court‘s decision to sentence appellant to seven years in prison for trafficking in cocaine. As the record plainly reveals, appellant‘s sentence is not clearly and convincingly contrary to law because the trial court properly considered the princiрles and purposes of
{¶ 23} “The fact that the trial court did not expressly cite to
{¶ 24} The record further supports the trial court‘s sentencing decision. During the sentencing hearing, defense counsel informed the trial court that appellant (1) was remorseful, cooperative, and accepted responsibility, (2) was depressed, had a lifelong drug problem, and had health issues, including diabetes, (3) had “numerous children,” and (4) went through the tenth grade. Subsequently, the trial court asked appellant whether he had anything to say in mitigation. Appellant emphasized his lifelong drug problem, the fact he took full responsibility for the offenses, and the fact he had never really given himself or his family the chance to be the man he should have beеn. The trial court then sentenced appellant to seven years in prison.
{¶ 25} Given appellant‘s criminal history, which, upon reviewing the presentence investigation report, the trial court described as “terrible” and “even worse” than рreviously thought, and which shows appellant has been sentenced to prison three different times for selling drugs, the fact there was a pending case against appellant for selling drugs, and appellant‘s recidivism risks, the record supports the trial court‘s determination that the seven-year prison term is commensurate with the seriousness of appellant‘s conduct, necessary to punish appellant, and necessary to protect the public from future crime by appellant.
{¶ 26} Appellant‘s second assignment of error is overruled.
{¶ 27} Appellant‘s conviction and sentence is affirmed.
S. POWELL, P.J. and RINGLAND, J., concur.