State v. Smith , 2018 Ohio 3410 ( 2018 )

[Cite as State v. Smith , 2018-Ohio-3410.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106482
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JUAN SMITH, A.K.A. JUAN SMITH, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-617314-A
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 23, 2018
ATTORNEY FOR APPELLANT
Michaele Tyner
Michaele Tyner, Attorney At Law
P.O. Box 530
Richfield, Ohio 44286
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Ryan J. Bokoch
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Juan Smith (a.k.a. Juan Smith, Jr.) (“Smith”), brings this
appeal challenging his guilty plea to participating in a criminal gang, having weapons while
under disability (“HWWUD”), and drug possession. For the reasons set forth below, we affirm.
{¶2} In June 2017, Smith was charged with one count of participating in a criminal
gang, one count of illegal possession of a firearm in a liquor permit premises, one count of drug
possession, two counts of HWWUD, and two counts of carrying a concealed weapon (“CCW”).
The HWWUD and CCW counts each carried a forfeiture specification, and the single count of
drug possession carried a one-year firearm specification.
{¶3} In September 2017, Smith pled guilty, pursuant to a plea agreement with the state, to
one count of participating in a criminal gang, two counts of HWWUD, and one count of drug
possession, as indicted. At both the plea and sentencing hearings, the parties recommended to
the trial court an agreed sentence of three to five years.
{¶4} At sentencing, the trial court imposed an eight-and-a-half year prison sentence.
Specifically, the trial court sentenced Smith to a five-year prison term on Count 1 (participating
in a criminal gang), a two-year term on each of Counts 3 and 5 (HWWUD), and a six-month
term on Count 7 (drug possession). The trial court ordered Smith to serve the mandatory
one-year term for the gun specification prior to the base charge on Count 7. The trial court
further ordered that Smith serve the prison terms for Counts 1, 3, and 7 consecutively to one
another, and concurrently with the prison term for Count 5.
{¶5} It is from this order that Smith appeals, raising the following two assignments of
error for our review:
Assignment of Error One
The trial court erred in accepting [Smith’s] plea to [HWWUD] in that such plea
was not knowingly, voluntarily, or intelligently made.
Assignment of Error Two
The trial court erred in accepting [Smith’s] plea to participating in criminal gang
activity and drug abuse in that such pleas were not knowingly, voluntarily, or
intelligently made.
Guilty Plea
{¶6} In the first and second assignments of error, Smith contends that the trial court
erred by accepting his guilty plea because he did not make his plea knowingly, voluntarily, or
intelligently.
{¶7} Crim.R. 11(C)(2) governs the trial court’s acceptance of guilty pleas in felony
cases. It provides, in relevant part:
(2) In felony cases the court may refuse to accept a plea of guilty * * * and shall
not accept a plea of guilty * * * without first addressing the defendant personally
and doing all of the following:
(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.
(b) Informing the defendant of and determining that the defendant understands
the effect of the plea of guilty * * * and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.
(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.
{¶8} The purpose of Crim.R. 11(C) is to convey to the defendant certain information so
that he or she can make a voluntary and intelligent decision whether to plead guilty. State v.
Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). In considering whether a criminal
defendant knowingly, intelligently, and voluntarily entered a guilty plea, we first review the
record to determine whether the trial court complied with Crim.R. 11(C). State v. Davner, 8th
Dist. Cuyahoga Nos. 104745 and 105144, 2017-Ohio-8862, ¶ 41.
{¶9} We review a trial court’s compliance with the requirements set forth in Crim.R.
11(C) under a de novo standard of review. State v. Darling, 8th Dist. Cuyahoga No. 104517,
2017-Ohio-7603, ¶ 17. We review the totality of the circumstances surrounding the defendant’s
plea to determine whether it was entered into knowingly, intelligently, and voluntarily. State v.
Alvelo, 2017-Ohio-742, 85 N.E.3d 1032, ¶ 21 (8th Dist.).
{¶10} A trial court must strictly comply with Crim.R. 11(C) where constitutional rights
are involved. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.
However, with respect to the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and
(b), substantial compliance is sufficient. Id. at  14.
{¶11} Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is waiving.
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Additionally, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily
made because the trial court failed to substantially comply with any of the nonconstitutional
notifications under Crim.R. 11 must show a prejudicial effect. Id., citing State v. Stewart, 51
Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977); Crim.R. 52(A). The relevant test is whether the
plea would have otherwise been made. Id.{¶12} Here, Smith acknowledges that the trial court advised him of his constitutional
rights, as well as the possible penalties involved for the offenses to which he pled guilty.
However, in the first assignment of error, Smith argues that his guilty plea to two counts of
HWWUD was not knowingly, intelligently, or voluntarily made because the trial court did not
advise him of the effect of these low-tier, third-degree felonies. Smith argues he has a
constitutional right to be advised of the tier classification of the HWWUD charges to which he
pled guilty. We find this argument unpersuasive.
{¶13} At the plea hearing, the trial court inquired of the state as to whether the two
HWWUD counts were high-tier or low-tier, third-degree felonies. It is clear that the trial court
asked this question in order to properly advise Smith of the maximum possible penalty for this
particular offense because Ohio law provides for two different possible sentencing ranges for
third-degree felonies, depending on the particular offense. See R.C. 2929.14(A)(3). Smith
acknowledges that before accepting his plea, the trial court advised him of the maximum
penalties for the charges to which he agreed to plead guilty as required under Crim.R.
11(C)(2)(a). We note that Crim.R. 11 does not require a trial court to advise a defendant of the
different sentencing ranges applicable for offenses other than the particular offense to which the
defendant is pleading guilty.
{¶14} In the second assignment of error, Smith argues that the trial court’s acceptance of
his guilty plea to participating in a criminal gang was unconstitutional because the record
demonstrates that Smith either did not fully understand what a gang was, or did not actually fully
participate in a criminal gang. Smith also argues the trial court’s discussion with him regarding
his understanding of the nature of the drug possession charge and the gun specification was
insufficient. We find these arguments unpersuasive.
{¶15} At the sentencing hearing, the trial court questioned Smith about his gang activity.
THE COURT: What gang do you belong to?
[SMITH]: J Park
THE COURT: Who is the leader?
[SMITH]: I have no idea.
THE COURT: I thought every gang had a leader. How does the gang work if
you don’t have a leader? Are you told what to do as a member of the gang?
[SMITH]: Nobody.
THE COURT: How do you know the rules? Don’t the gangs have rules?
[SMITH]: This gang doesn’t.
THE COURT: Do you have a rule against snitching on each other?
[SMITH]: Yes.
THE COURT: Who enforces the rule?
[SMITH]: The main  Daniel McQueen.
THE COURT: He enforces the rules?
[SMITH]: He got killed in 2012.
THE COURT: Who is enforcing them now, five years later? So
you can snitch on everybody and no one could
enforce any rule against you, right?
[SMITH]: No, Your Honor.
THE COURT: Who would enforce it?
[SMITH]: There is nobody else your, Your Honor.
THE COURT: So then you can tell and nobody can enforce the snitch rule, why
not tell on them and get yourself some favors?
[SMITH]: I have — I have never been a codefendant with nobody [sic] from my
gang.
THE COURT: You are the sole operator, you operate on your own?
[SMITH]: Yes, Your Honor.
THE COURT: So you operate on your own, the gang has no leader, no one can
enforce the no snitch rule, why be in a gang? What is the purpose of being in a
gang that has no leader, has no rule enforcement?
[SMITH]: I can’t really explain it to you.
THE COURT: Okay, sir. I would think that if I was going to be in a gang, it’s
because I would want somebody to enforce the rule so no one can snitch on you.
That would be the number one rule I would want enforced, but if they are not
enforcing that rule, what’s the benefit of being in a gang? I really don’t know.
I’m not being facetious. Tell me what the benefit is?
[SMITH]: I guess there really was no benefit.
THE COURT: So you going to prison on a [second-degree felony] for
participating in a criminal gang that has no benefit. How much sense does that
make? Does that make sense to you?
[SMITH]: Not really.
{¶16} Smith argues that this exchange at the sentencing hearing indicates that he “was
merely a nominal or passive member of the gang, which as a matter of law, negates any criminal
liability for gang actions.” He further argues that as a result of this exchange, the trial court
should have concluded that he did not knowingly, intelligently, or voluntarily plead guilty to
participating in a criminal gang. We find these arguments unpersuasive.
{¶17} In support of these arguments, Smith relies on State v. King, 8th Dist. Cuyahoga
No. 98234, 2013-Ohio-574. In King, this court held that “[n]ominal or passive association” with
a gang is not enough to prove active gang membership at trial. Id. at ¶ 15, quoting State v.
Hairston, 9th Dist. Nos. 23663 and 23680, 2008-Ohio-891, ¶ 18. Here, Smith pled guilty to
participating in a criminal gang, and specifically acknowledged before entering this plea that he
waived his right to have the state prove his guilt beyond a reasonable doubt. As a result, the
state no longer had the burden to prove that Smith participated in a criminal gang.
{¶18} Moreover, a defendant cannot rely on post-plea statements or claims of innocence
to establish that the trial court erred in accepting his plea. State v. Damron, 2d Dist. Champaign
No. 2014-CA-15, 2015-Ohio-2057, ¶ 10. This court has held that “when a defendant makes
claims of innocence after a guilty plea has been accepted, a trial court has no duty to inquire into
a defendant’s reasons for pleading guilty.” State v. Reeves, 8th Dist. Cuyahoga No. 100560,
2014-Ohio-3497, ¶ 13. The proper way to address post-plea claims of innocence is a motion to
withdraw a guilty plea. Damron at ¶ 10. The trial court has no duty to inform a defendant of
his or her ability to file a motion to withdraw a plea under Crim.R. 32.1. Reeves at ¶ 13.
{¶19} Here, the record demonstrates that the trial court fully complied with Crim.R. 11,
and that Smith made his plea knowingly, voluntarily, and intelligently. As discussed above,
Smith acknowledges that the trial court advised him of the constitutional rights he would waive
by pleading guilty, as well as the maximum penalties involved. Smith does not contend that he
did not understand the nature of the charges or the possible penalties involved. The record
reflects that the trial court advised Smith of the effect of his guilty plea. The record is devoid of
any indication of confusion, hesitation, or protestations of innocence by Smith during the plea
hearing. Based upon our de novo review of the record and the totality of the circumstances
surrounding Smith’s plea, we determine that Smith entered his guilty plea knowingly,
intelligently, and voluntarily.
{¶20} Based on the foregoing, we find that the trial court did not err in accepting Smith’s
guilty plea. Accordingly, the first and second assignments of error are overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR