State v. WoodliffState v. Woodliff
OPINION
{¶ 1} Appellant, John M. Woodliff, appeals from the January 7, 2004 judgment entry of the Portage County Court of Common Pleas, denying appellant‘s motion to withdraw his guilty plea.
{¶ 2} On July 9, 1999, appellant was secretly indicted in Case No. 99 CR 0224 by the Portage County Grand Jury on one count of felonious assault, a felony of the second degree, in violation of
{¶ 3} The trial court ordered a competency evaluation on July 15, 1999. A hearing was held on September 20, 1999. Pursuant to its September 23, 1999 judgment entry, the trial court determined that appellant was competent to stand trial.
{¶ 4} On November 10, 1999, appellee filed a bill of information pursuant to
{¶ 5} Pursuant to its November 15, 1999 judgment entry, the trial court noted that appellant entered into a negotiated plea and sentencing.4 The trial court accepted appellant‘s written pleas of guilty and adopted the jointly recommended sentence. According to the agreed sentence, the trial court sentenced appellant to three years for each firearm specification as charged in counts two and three of the indictment, and the bill of information, to be served consecutively; three years on count two of the indictment, and three years for the aggravated robbery charge in the bill of information, which were to be served concurrent to each other, but consecutive to the firearm specifications; three years on count three of the indictment, to be served concurrent to the foregoing charges but consecutive to the firearm specifications, for a total aggregate term of twelve years. The trial court additionally noted that appellant was to receive credit for one hundred twenty-nine days.
{¶ 6} Appellant filed motions for judicial release, pursuant to
{¶ 7} On January 5, 2004, appellant filed a pro se motion to withdraw his guilty plea, pursuant to
{¶ 8} “[1.] The trial court erred by accepting appellant‘s guilty pleas to charges of alleged actions occurring in another venue, in violation of
{¶ 9} “[2.] [Appellant] received ineffective assistance of counsel in violation of his rights pursuant to the
{¶ 10} “[3.] The trial court erred by accepting appellant‘s guilty plea without first finding that appellant was aware that the court could immediately proceed to judgment and sentencing upon acceptance of his plea, pursuant to
{¶ 11} In his first assignment of error, appellant argues that the trial court erred by accepting his guilty pleas to charges of actions occurring in another venue. Appellant stresses that the record reveals that the bill of information expresses the venue as one other than that of the trial court, there is no allegation that the alleged actions were part of a continuing course of conduct, and there is no allegation that any of the elements of the charges took place within the venue of the trial court.
{¶ 12} This court stated in State v. Taylor, 11th Dist. No. 2002-L-005, 2003-Ohio-6670, at ¶ 7-9, that:
{¶ 13} “[a]
{¶ 14} “Pursuant to
{¶ 15} “Before accepting a guilty plea, the trial court must inform the defendant that by pleading guilty, he is waiving the rights listed in
{¶ 16}
{¶ 17} “(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in a territory of which the offense or any element of the offense was committed.
{¶ 18} “* * *
{¶ 19} “(C) When the offense involved the unlawful taking or receiving of property or the unlawful taking or enticing of another, the offender may be tried in any jurisdiction from which or into which the property or victim was taken, received, or enticed.
{¶ 20} “* * *
{¶ 21} “(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. * * *”
{¶ 22} “Venue is neither a jurisdictional issue nor a material element of a criminal offense.” State v. McCartney (1988), 55 Ohio App.3d 170, citing State v. Loucks (1971), 28 Ohio App.2d 77. “Venue is a personal privilege. It is a fact which the state must prove beyond a reasonable doubt unless waived by the accused.” McCartney, supra, citing State v. Headley (1983), 6 Ohio St.3d 475, 477. A defendant‘s guilty plea precludes him from challenging the factual issue of venue. McCartney, supra; State v. Calhoun (Apr. 4, 1997), 11th Dist. No. 96-G-1971, 1997 Ohio App. LEXIS 1336, at 6.
{¶ 23} In the case at bar, appellant pleaded guilty pursuant to a negotiated plea and sentence. The record reflects that the negotiated plea and sentence were understood by appellant, recommended jointly by the parties, and approved by the trial court. See
{¶ 24} At the November 12, 1999 plea and sentencing hearing, the prosecutor stated the
{¶ 25} “[Appellant], Your Honor, is present with counsel and Your Honor, pursuant to [Crim.R.] 11(F) negotiations, I believe we‘ve come to a resolution of this matter.
{¶ 26} “[Appellee] has prepared a written plea of guilty to the indictment, and that written plea of guilty is to aggravated robbery, a felony of the first degree with a firearm specification, aggravated burglary, a felony of the first degree with a separate firearm specification.
{¶ 27} “In addition to that, Your Honor, a bill of information has been filed. The bill of information contains an aggravated robbery, a felony of the first degree with another firearms specification, and this occurred in Summit County. I believe this was, all occurred on one day. I‘ve talked to the Summit County authorities and with [appellant‘s] attorney, and I believe they‘re going to waive any jurisdiction or venue issue here.
{¶ 28} “[Appellee has] prepared a waiver of indictment, which I have a signature in here, right here, which I anticipate is [appellant‘s] signature.
{¶ 29} “Your Honor, further, pursuant to [Crim.R.] 11(F) negotiations, those three firearms specifications by law would run consecutive. [Appellee] further through [Crim.R.] 11(F) negotiations would recommend, and I believe the parties are in agreement, that a sentence of three years to the Ohio Department of Corrections on each charge, the two counts of aggravated robbery and the one count of aggravated burglary would be imposed, and those three years on each of those three charges would run concurrent, but they would run consecutive to the three firearms specifications. So, we‘re talking about 12 years in prison, Your Honor.
{¶ 30} “I have the written pleas of guilty that have been executed, and the waiver of indictment that‘s been executed on the bill of information, and with the Court‘s permission I would present that to the Court.”
{¶ 31} In response, appellant‘s counsel stated that:
{¶ 32} “Your Honor, we are in agreement with the statement of the prosecutor, Your Honor. I‘ve advised [appellant] of his Constitutional Rights, Your Honor, and I‘ve advised him of the maximum sentences, and he‘s chosen to plead today and waive those rights, Your Honor.”
{¶ 33} In addition, the trial judge asked appellant the following:
{¶ 34} “* * * Do you understand on this matter from Summit County that you are asked to waive indictment on that, do you understand you have a right to have that considered by a Grand Jury of that county, however you may waive indictment and waive jurisdiction and submit to this Court?”
{¶ 35} Appellant responded, “Yes.”
{¶ 36} The foregoing plea colloquy demonstrates that appellant was clearly aware of the venue issue regarding the Summit County charge, and that appellant waived the issue. Based on the record before us, it appears as though appellant understood what he was doing when he knowingly, intelligently, and voluntarily entered into the guilty pleas. We conclude that appellant has failed to satisfy his burden of proving the existence of a manifest injustice. Appellant has also not demonstrated that the trial court abused its discretion in denying his
{¶ 37} In addition, appellant‘s contention that Calhoun, supra, is inapplicable because there was a factual dispute regarding venue is not well-taken. In Calhoun, the appellant argued that the state failed to include in the indictment information concerning where the offense was committed. Id. at 3. However, in that case, the indictment revealed that the offense was committed in the Village of Chardon, Geauga County, Ohio. Id. at 3-4. Thus, this court indicated that there was no factual dispute regarding venue and the trial court had subject matter jurisdiction over the proceedings. Id. at 4.
{¶ 38} Here, the bill of information states that the offense occurred in Summit County. Again, the record establishes that appellant was aware of and waived the venue issue with respect to the Summit County charge. Further, because appellant committed offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses in any jurisdiction in which he committed one of the offenses or any element.
{¶ 39} In his second assignment of error, appellant alleges that he received ineffective assistance of counsel. Appellant stresses that his counsel was ineffective for failing to object or move for dismissal of charges and permitting appellant to enter a guilty plea where the record reveals that the bill of information expresses the venue as one other than that of the trial court, there is no allegation that the actions were part of a continuing course of conduct, and there is no allegation that any of the elements of the charges took place within the venue of the trial court.
{¶ 40} Strickland v. Washington (1984), 466 U.S. 668, 687 states:
{¶ 41} “[a] convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the
{¶ 42} “* * * When a convicted defendant complains of the ineffectiveness of counsel‘s assistance, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at paragraph two of the syllabus. State v. Bradley (1989), 42 Ohio St.3d 136, 142, quoting Strickland, supra, at 694, states: “[t]o warrant reversal, `(t)he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘”
{¶ 43} This court stated in State v. Rudge (Dec. 20, 1996), 11th Dist. No. 95-P-0055, 1996 Ohio App. LEXIS 5807, at 35-36, that: “`[s]trategic and tactical decisions will not form the basis of a claim of ineffective assistance of counsel, even if there had been a better strategy available to him. * * *’ `“Errors of judgment regarding tactical matters do not substantiate a claim of ineffective assistance of counsel.” * * *.’ State v. Lundgren (Apr. 22, 1994), [11th Dist. No. 90-L-15-125, 1994 Ohio App. LEXIS 1722], at 40-41.”
{¶ 44} In the case sub judice, the record shows that appellant‘s counsel successfully negotiated a favorable plea and concurrent sentence for three felonies, as well as dismissals on three charges. Based on Strickland, supra, appellant has failed to demonstrate that his counsel was deficient, or that such deficiency resulted in prejudice to appellant. Appellant has failed to allege that but for counsel‘s errors, he would not have entered guilty pleas. See Bradley and Strickland, supra. Again, appellant and his counsel waived the issue of venue regarding the Summit County offense, which is evident from the plea colloquy. As such, appellant‘s counsel was not deficient for failing to raise an objection to the venue issue. Appellant‘s second assignment of error is without merit.
{¶ 45} In his third assignment of error, appellant contends that the trial court erred by accepting his guilty pleas without first finding that he was aware that the court could immediately proceed to judgment and sentencing upon acceptance of his pleas pursuant to
{¶ 46}
{¶ 47} “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶ 48} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶ 49} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶ 50} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{¶ 51} “A trial court must strictly comply with the constitutional requirements of
{¶ 52} In the instant matter, based on the totality of the circumstances, the nonconstitutional requirements of
{¶ 53} In addition, appellant voluntarily entered his written pleas of guilty on two separate forms, which expressly provided that appellant was informed by his attorney and the trial judge of the effect and consequences of his guilty pleas, that appellant understood them, and that the trial court could immediately proceed with judgment and sentencing upon accepting his guilty pleas. There is no evidence in the record that appellant stated any concern or opposition to the trial court‘s imposition of the agreed sentence immediately following its acceptance of appellant‘s guilty pleas on November 15, 1999.
{¶ 54} We must note that appellant did not raise the instant issue with the trial court until January 5, 2004, when he filed a motion to withdraw his guilty pleas. The record does not support the conclusion that appellant‘s guilty pleas were not knowing, voluntary, and intelligent. The passage of more than four years before appellant filed his
{¶ 55} Also, the record rebuts any claim that there was not strict compliance with the constitutional requirements of
{¶ 56} For the foregoing reasons, appellant‘s assignments of error are not welltaken. The judgment of the Portage County Court of Common Pleas is affirmed.
Grendell, J., Rice, J., concur.