State v. McIntoshState v. McIntosh
Darren L. Meade, Parks and Meade, L.L.C., Columbus, Ohio, for appellant.
Mark E. Kuhn. Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Harsha, J.
{¶1} After Christopher McIntosh entered a guilty plea to various criminal charges, the trial court sentenced him to prison. McIntosh claims that his guilty plea is invalid for two separate reasons.
{¶2} Initially, he claims that his plea is invalid because the trial court failed to substantially comply with
{¶3} Next McIntosh asserts that his plea is invalid because it was not voluntary, i.e. the trial court and the state improperly induced him to make the plea in order to allow his girlfriend to avoid a harsher sentence. Although this form of plea bargaining presents the accused with unpleasant alternatives, it is not unconstitutionally coercive as long as the state acts in good faith. Therefore, courts have consistently upheld pleas against claims of involuntariness due to coercion where the state offered lenient treatment to a person other than the defendant. McIntosh did not establish that his plea was involuntary.
{¶4} Therefore, we overrule McIntosh‘s assignments of error and affirm his convictions and sentence.
I. FACTS
{¶5} In Scioto C.P. Case No. 16CR411, the Scioto County Grand Jury returned an indictment charging Christopher McIntosh with two counts of aggravated trafficking in drugs, one count of trafficking in drugs, two counts of aggravated possession of drugs, one count of possession of drugs, one count of having weapons while under disability, and one count of receiving stolen property, with firearm and forfeiture specifications for the drug charges and a forfeiture specification for the having weapons while under disability charge.
{¶6} In Scioto C.P. Case No. 16CR617(A) and (B), the Scioto County Grand Jury returned an indictment charging McIntosh and his girlfriend, Tammy Criteser, with
{¶7} After initially pleading not guilty, McIntosh executed written waivers of his rights to a jury trial and pleaded guilty to one count of aggravated possession of drugs, a second-degree felony, with a forfeiture specification, one count of having weapons while under disability, and one count of receiving stolen property in Case No. 16CA411; he also pled guilty to one count of aggravated possession of drugs with a forfeiture specification in Case No. 16CA617(A). In a written form entitled “MAXIMUM PENALTY,” McIntosh and his trial counsel certified that he understood that the maximum penalty for his second-degree felony of aggravated possession of drugs in Case No. 16CA411 included a maximum prison term of eight years, and that this prison term was both “mandatory” and “presumed necessary.” The form also stated that “[i]f this court is not required by law to impose a prison sanction, it may impose a community control sanction or non-prison sanction upon you.” The form advised that “[c]ourt costs, restitution and other financial sanctions including probation fees may be imposed,” with the term “probation fees” typed into a blank on the waiver form.
{¶8} The trial court then held a hearing on McIntosh‘s request to change his plea in Case Nos. 16CA411 and 16CR617(A). At the outset of the hearing the state noted that McIntosh was facing a potential prison term of 26 ½ years on the indictments, but that it had made a plea offer for him to receive a prison term of eight years, with four of those years being mandatory, that he would thereafter be eligible for early release, and if he pleaded guilty, the state would recommend community control for his girlfriend, Criteser, in Case No. 16CR617(B).
MR. MEARAN: So sir, is it your desire then not to accept the offer made knowing that you‘re not going to get out and knowing that you‘re facing 26 -- possibility of 26 years?
DEFENDANT MCINSTOSH: It‘s not my desire to -- I accept the offer but I would like to speak to my family members and let them know the offer presented to me this day.
MR. MEARAN: Sir, I gave you that offer two days ago, tried to even call your family two days ago, so I don‘t think that there‘s any more time left. We either accept it now or we go to trial.
DEFENDANT MCINSTOSH: May I -- may I request 24 hours, please.
MR. KUHN: We‘ve already got people scheduled in on this, Your Honor. I‘ve got prep to do. To be honest, it‘d be less work on me just to go ahead and try the case. If he wants to accept it today, I made the offer and I‘ll leave it open to both of them, but otherwise, I‘ve waited long enough. We should have done this last week.
* * *
DEFENDANT MCINTOSH: * * * I did not get in touch with my love[d] ones at this time. I will definitely do so tonight. I can contact Mr. Mearan first thing in the morning. Mr. Kuhn, Judge Marshall, please, I ask you to give me that one day, 24 hours.
MR. KUHN: We‘re ready to go ahead and withdraw the offer, Your Honor. I‘ve waited long enough.
* * *
THE COURT: So * * * you take it now or you‘ve lost it forever, and if you don‘t take the offer and she‘s found guilty, her offer is off the table too and she doesn‘t get Star. Ms. Criteser, do you understand the offer?
DEFENDANT CRITESER: Yes, I do.
THE COURT: Okay. You understand it‘s being withdrawn based on Mr. McIntosh‘s decision?
DEFENDANT CRITESER: I understand, but I -- I don‘t like it.
THE COURT: I -- I wouldn‘t like it either, but I‘d man-up.
DEFENDANT MCINTOSH: I don‘t have a choice.
MR. MEARAN: You want to take the offer?
DEFENDANT MCINSTOSH: I have no choice.
MR. MEARAN: You don‘t. Do we have the waivers?
THE COURT: You‘re accepting the offer, sir?
DEFENDANT: I have no choice, Your Honor. I --
THE COURT: You either say I‘m accepting it or I‘m not accepting it.
DEFENDANT: I have -- yes, I have to accept it.
{¶10} The trial court then proceeded to summarize the parties’ plea agreement and ultimately received an affirmative response from McIntosh that the court‘s summary was his understanding of the plea agreement:
THE COURT: * * * The record will reflect we‘re here on 16CR411 and 16CR617(A), both captioned State of Ohio versus Christopher McIntosh.
It‘s the Court‘s understanding on case number * * * 16CR411 he‘s changing his plea on Count 4 to guilty for the charge of Aggravated Possession of Drugs, on Count 7 is -- the same case number, pleading guilty to Count 7 Weapon Under Disability, and Count 8 Receiving Stolen Property. On case number 16CR617 he‘s changing his plea to guilty on the case of Aggravated Possession of Drugs.
Now the record should further reflect it‘s a negotiated plea, pursuant to
section 2953.08(D) andCriminal Rule 11(F) , on case number 16CR411 on Count 4 Aggravated Possession of Drugs, he‘ll receive a four year mandatory prison term, with a forfeiture of $6,578.00. On Count 7 Weapon Under Disability, he‘ll receive a 36 month prison term, with the contraband to be destroyed, Count 8 Receiving Stolen Property, a 12 month prison term. Okay. Count 4 will be a -- as I said, four year
mandatory, and Count 7, 36 month non-mandatory, all running consecutively with each other, for an eight year prison term, aggregate. On case number 16CR617, Possession -- Aggravated Possession, he‘ll receive a 36 month non-mandatory prison term, which will run concurrently with the other three cases.
Is that your understanding, Mr. Mearan?
*** (discussion about forfeiture of property)
MR. MEARAN: Yes.
MR. KUHN: Okay.
* * *
THE COURT: Okay. Mr. McIntosh, is this your understanding, sir?
DEFENDANT: Yes, sir.
(Emphasis added.)
{¶11} The trial court then engaged in an extended colloquy with McIntosh asking if he understood the constitutional rights he was waiving by pleading guilty. The trial court then again attempted to explain the maximum prison terms he faced:
THE COURT: Sir, the felonies of the third degree carry maximum prison terms of thirty-six months, maximum fines of $10,000.00. The felony of the second degree carries maximum prison term of eight years, maximum term -- prison term -- maximum fine of $15,000.00. The felony of the fourth degree, maximum prison term of 18 months, maximum fine of $5,000.00, and you will be a[ss]essed the court cost. You understand that?
DEFENDANT: Yes, Your Honor.
{¶12} Shortly thereafter the trial court accepted a plea of guilty to the charges. When asked by the court if he would like to say anything, McIntosh stated that he
DEFENDANT: Your honor, may I ask --
THE COURT: Sure.
DEFENDANT: You said four years mandatory.
THE COURT: Right.
DEFENDANT: After the four years --
THE COURT: It‘s non-mandatory.
DEFENDANT: -- it‘s non-mandatory.
THE COURT: That means you‘re eligible for judicial release, I believe at four and one half years. Is that right, Mr. Kuhn?
MR. KUHN: I believe so, Your Honor.
THE COURT: Yeah. You‘re eligible. I‘m not saying I‘m going to grant it, but you‘re eligible at -- for judicial release after serving four and one half years. Okay?
DEFENDANT: Yes, sir.
THE COURT: All right.
{¶13} The trial court sentenced McIntosh to an aggregate prison term of eight years, with four years being mandatory, and dismissed the remaining charges. McIntosh appealed in both criminal cases, and we consolidated those cases for purposes of briefing and decision.
II. ASSIGNMENTS OF ERROR
{¶14} McIntosh assigns the following errors for our review:
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION WHEN IT FAILED TO PROPERLY ADVISE APPELLANT OF THE MANDATORY PRISON TIME REQUIRED FOR THE F2 DRUG POSSESSION COUNT AND THAT HE WAS INELIGIBLE FOR COMMUNITY CONTROL, WHERE THE PLEA FORMS STATED PRISON WAS BOTH MANDATORY AND PRESUMED NECESSARY AND INDICATED COMMUNITY CONTROL WAS POSSIBLE FOR APPELLANT, AND THE COURT FURTHER FAILED TO EXPLICITLY STATE THE MANDATORY NATURE OF THE SENTENCE WHEN ORALLY ADVISING OF THE MAXIMUM POTENTIAL SENTENCE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BECAUSE APPELLANT‘S PLEA WAS NOT MADE VOLUNTARILY WHEN BOTH THE PROSECUTION AND THE COURT IMPROPERLY INDUCED APPELLANT TO TAKE A PLEA DEAL TO ALLOW A THIRD PARTY TO AVOID A HARSHER SENTENCE.
III. STANDARD OF REVIEW
{¶15} ” ‘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). When we determine whether a guilty plea was entered knowingly, intelligently, and voluntarily, we conduct a de novo review of the record to ensure that the trial court complied with the requisite constitutional and procedural safeguards. See State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 36, quoting State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 13.
IV. LAW AND ANALYSIS
A. Maximum Sentence and Ineligibility for Community Control
{¶17} ”
{¶18} This case involves the trial court‘s notification of nonconstitutional rights under
{¶19} A defendant who challenges his guilty plea on the basis that it was involuntary must generally prove prejudice, which in this context means he must show that he would not have entered the plea had he been properly informed. See Veney at
{¶20} It is true that during the trial court‘s colloquy, it failed to explicitly inform McIntosh that he would be ineligible for community control because of the mandatory nature of his prison time for the second-degree felony count of aggravated possession of drugs. Nevertheless, as McIntosh acknowledges on appeal, the trial court did not completely fail to comply with
{¶21} Because of the court‘s partial compliance, McIntosh must establish prejudice in order to vacate his guilty plea, i.e., that he would not have pleaded guilty had he known that his sentence included four years of mandatory prison time, which rendered him ineligible for community control.
{¶23} He also cites State v. Silvers, 181 Ohio App.3d 26 (2d Dist.), 2009-Ohio-687, in support of his claim that his guilty plea was invalid. In Silvers, the court invalidated the defendant‘s guilty plea because the trial court failed to inform him at the plea hearing that the written form he signed was incorrect insofar as it explicitly stated that none of his prison sentence was mandatory and that he would be eligible for community control upon the granting of judicial release. Conversely, the form here expressly notified McIntosh that his prison term for the second-degree felony of aggravated possession of drugs was mandatory; there was no representation in the written form that the defendant was eligible for community control. We thus find both Hendrix and Silvers to be distinguishable.
{¶25} Granted the trial court never advised McIntosh at the plea hearing that he would be ineligible for community control because of his mandatory prison term. However, a trial court substantially complies with the
{¶26} McIntosh cites his comments about the four-year mandatory portion of his prison sentence at the conclusion of the sentencing hearing as additional evidence that his plea was not valid. But it appears that McIntosh was seeking confirmation of the mandatory period and the timing of his eligibility for judicial release. And after receiving that confirmation, he did not express any indication that he wished to withdraw his plea.
{¶27} After considering the totality of the circumstances, McIntosh has not established the requisite prejudice to invalidate his guilty plea. McIntosh cites no evidence to establish that if the trial court had taken greater care in advising him during his plea hearing about his mandatory-prison term and consequent ineligibility for community control, he would not have entered his guilty plea to the charges. Rather, the record reflects that he subjectively understood the nature of his sentence and the fact that he would be required to serve a mandatory prison term before any form of relief from incarceration was available. We overrule his first assignment of error.
B. Leniency to Third Party
{¶28} In his second assignment of error McIntosh asserts that his plea is invalid because he did not make it voluntarily—the trial court and the state improperly induced him to make the plea to allow his girlfriend to avoid a harsher sentence.
{¶29} A plea is not per se invalid if entered under a plea agreement that includes leniency for a third party or in response to a prosecutor‘s justifiable threat to prosecute a third party if the plea is not entered. See generally U.S. v. Marquez, 909 F.2d 738, 741-742 (2d Cir.1990). “The inclusion of a third-party benefit in a plea bargain is simply one factor for a [trial] court to weigh in making the overall determination whether the plea is voluntarily entered.” Id. at 742; see also U.S. v. Usher, 703 F.2d 956, 958 (6th Cir.1983) (“A number of federal courts * * * have upheld pleas against assertions of involuntariness due to coercion where the prosecution offered lenient treatment to a person other than the defendant“). “Plea bargaining involving a third person may still present an accused with unpleasant alternatives, but the resulting guilty plea is not constitutionally involuntary if the state acts in good faith.” State v. Gibbs, 4th Dist. Washington No. 96CA44, 1997 WL 341908, *4 (June 16, 1997).
{¶30} There is nothing in the record here evidencing any bad faith on the part of the state. And although McIntosh repeatedly said that he had “no choice,” he also said that he accepted the offer. His reluctance was not to the substance of the offer, but he simply wanted more time to contact his family and loved ones before he had to go to prison.
{¶31} To be sure, the trial court‘s interjection that he would “man up” if he were McIntosh is unseemly, but there is nothing to indicate that it impacted McIntosh‘s decision to accept the plea offer, where he otherwise faced a maximum of 26 ½ years in prison on the charges. “Although strongly discouraged by the Ohio Supreme Court, a trial judge‘s participation in plea negotiations does not render a defendant‘s plea invalid per se under the Ohio and United States Constitutions.” State v. Davis, 4th Dist. Scioto Nos. 13CA3589 and 13CA3593, 2014-Ohio-5371, ¶ 33, quoting State v. Jabbaar, 2013-Ohio-1655, 991 N.E.2d 290 (8th Dist.), ¶ 26, citing State v. Byrd, 63 Ohio St.2d 288, 293-294, 407 N.E.2d 1384 (1980). Instead, “a trial judge‘s participation in the plea
{¶32} Although the trial court‘s statement was ill-advised, it did not lead McIntosh to reasonably believe that he could not receive a fair trial because of futility or bias. See Davis at ¶ 34.
{¶33} McIntosh affirmatively stated that he was satisfied with the efforts of his attorney and that nobody had made any additional promises, threats, or inducements to get him to change his plea to guilty. The trial court and the state informed him of his eight-year aggregate prison sentence, including his four years of mandatory prison time. The plea agreement, which saved him from facing trial on many other criminal charges and a maximum potential prison time more than three times the aggregate period imposed under the agreement, “indicates that the plea was the product of a shrewd, intelligent and calculated bargain” rather than an involuntary action by McIntosh coerced by the trial court and the state. See Usher, 703 F.2d at 958.
{¶34} Therefore, McIntosh has not established that his guilty plea was invalid because of the plea agreement provision that his girlfriend, Criteser, receive community control instead of a prison term. We overrule his second assignment of error.
V. CONCLUSION
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to
A certified copy of this entry shall constitute the mandate pursuant to
Hoover, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to