State of Ohio v. Kenneth A. White
Court of Appeals No. WD-20-040
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
March 26, 2021
2021-Ohio-987
MAYLE, J.
Trial Court No. 2019CR0256
DECISION AND JUDGMENT
Decided: March 26, 2021
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
W. Alex Smith, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Kenneth White, appeals the April 23, 2020 judgment of the Wood County Court of Common Pleas, sentencing him to a term of imprisonment of 36 months following his conviction of endangering children. For the following reasons, we affirm the trial court judgment.
{¶ 2} On June 6, 2019, Kenneth White was indicted on one count of gross sexual imposition in connection with the assault of nine-year-old, P.W. On March 6, 2020, White entered a plea of guilty to one count of the amended charge of child endangering, a violation of
{¶ 3} On April 21, 2020, the trial court rejected the state‘s sentencing recommendation and sentenced White to 36 months in prison and three years’ mandatory postrelease control. The conviction and sentence were memorialized in a judgment entry journalized on April 23, 2020.
{¶ 4} White appealed. He assigns the following two errors for our review:
Assignment of Error No. 1: Whether the court erred by imposing a maximum sentence.
Assignment of Error No. 2: Whether the appellant entered a voluntary plea.
II. Law and Analysis
{¶ 5} In his first assignment of error, White challenges the trial court‘s imposition of the maximum prison sentence of 36 months. In his second assignment of error, he
A. Maximum Sentence
{¶ 6} In his first assignment of error, White argues that the trial court erred when it sentenced him to 36 months in prison—the maximum sentence permissible for a third-degree felony child endangering offense. White maintains that despite the state‘s agreement to recommend community-control sanctions—an agreement it upheld—the state at sentencing offered a detailed and “damning” recitation of the facts that was designed to (1) make clear to the trial court that it should view the case as a gross sexual imposition case instead of a child endangering case, and (2) undermine its own recommendation so that the trial court would impose a prison term. He insists that the trial court failed to follow the guidelines of
{¶ 7} The state responds that the sentence is within the permissible range, the trial court considered the principles and purposes of sentencing under
{¶ 8} We review a challenge to a felony sentence under
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 9} White does not complain that his sentence violated
{¶ 10} Importantly, however, the Ohio Supreme Court has made clear that “neither
{¶ 11} Here, the judgment entry and the transcript of the sentencing hearing make clear that the court considered the purposes and principles of sentencing listed in
{¶ 12} As to the fact that the court imposed the maximum sentence, as we recognized in State v. Johnston, 6th Dist. Wood No. WD-18-069, 2019-Ohio-3127, ¶ 13,
{¶ 13} Notwithstanding this fact, the court articulated its reasons for not imposing a lesser sentence here. The court expressed its belief that White had committed the most serious form of the offense of child endangering and his risk level for recidivism is high.
{¶ 14} While we understand White‘s position that the state‘s remarks at sentencing undermined its agreement to recommend community control sanctions, the court made clear that it had carefully reviewed the PSI in this case. The majority of the remarks made by the prosecutor were set forth in the six-page, single-spaced summary of the offense, contained in the PSI. The very few remarks the prosecutor made that were not contained in the PSI likely did not impact the sentence the court imposed. And in any event, the state did not agree to remain silent at sentencing and the court was not obligated to accept the prosecutor‘s sentencing recommendation.
{¶ 15} There is no basis to reduce, modify, or vacate White‘s sentence because it was not clearly and convincingly contrary to law. Accordingly, we find White‘s first assignment of error not well-taken.
{¶ 16} In his second assignment of error, White argues that his plea was not voluntary and argues that the trial court should not have accepted it. He points to the following exchange that took place after the state summarized the facts it would have proven had the case gone to trial:
The court: [Defense counsel], based upon your discovery in this case and in talking to your client, does he contest those facts?
[Defense counsel]: No, he does not.
The court: Would they be sufficient in your position to support a conviction for the amended charge?
[Defense counsel]: Yes, they are.
The court: Mr. White, is that what happened?
* * *
The defendant: No, sir. I was pleading to the Endangering Children because, as a father, I can look back on the parenting and, yes, I have endangered my son.
The court: [Defense counsel], do you want to speak to Mr. White about —
[Defense counsel]: May I have one minute, your Honor?
{¶ 17} Following an off-the-record discussion between White and his attorney, White told the court:
The defendant: Your Honor, I will not contest.
The court: Those facts?
The defendant: Yes, Your Honor. I will not contest those facts.
{¶ 18} White does not argue that the trial court failed to make the proper advisements under
{¶ 19} The state responds that (1) White failed to cite legal authority in support of his position; (2) using words associated with one plea (i.e., no contest) to effectuate another plea (i.e., guilty) is not a basis to overturn the plea; (3) White did not argue that he was prejudiced by the nomenclature or that he would not have otherwise entered the plea; and (4) White never asserted actual innocence.
{¶ 20} “A guilty plea must be made voluntarily.” State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 16 (1st Dist.). “A plea is voluntary if it “‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.‘” Id. at ¶ 17, citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Where a defendant challenges his plea as involuntary, he must show that he would not otherwise have entered the plea. Gordon at ¶ 18.
{¶ 21} At the plea hearing, the trial court recognized the benefits to White of entering a plea of guilty to the amended charge of endangering children: the potential sentence to which White was exposed was reduced from 12 to 60 months to nine to 36 months, and he avoided sex-offender registry requirements. The court correctly advised White that a plea of guilty is a complete admission to the amended charge, and White responded that he understood this and admitted guilt to the offense of child endangering. The transcript reflects that while White was reluctant to admit the specific facts alleged by the state—preferring to admit only that he committed the offense itself—he ultimately stated that he did not contest the facts.
{¶ 22} Given that White clearly admitted guilt after the court made the required
{¶ 23} Accordingly, we find White‘s second assignment of error not well-taken.
{¶ 24} White‘s 36-month sentence for child endangering was not clearly and convincingly contrary to law. The trial court expressly stated that it considered the purposes and principles of sentencing in
{¶ 25} White‘s plea of guilty to the amended charge of child endangering was not rendered involuntary even though he stated only that he did not contest the facts recited by the state instead of stating that he admitted those facts. The trial court acknowledged the advantages to White of entering a plea and made the proper
{¶ 26} We affirm the April 23, 2020 judgment of the Wood County Court of Common Pleas. White is ordered to pay the costs of this appeal under
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Myron C. Duhart, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.