State v. Howard , 2011 Ohio 4754 ( 2011 )

[Cite as State v. Howard, 2011-Ohio-4754.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
VS. ) CASE NO. 10-MA-154
)
JEFFREY HOWARD, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 09CR697
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney Carlo A. Ciccone
P.O. Box 871
Warren, Ohio 44482-0871
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: September 12, 2011
[Cite as State v. Howard, 2011-Ohio-4754.]
DONOFRIO, J.
{¶1} Defendant-appellant, Jeffrey Howard, appeals from a Mahoning County
Common Pleas Court judgment convicting him of carrying concealed weapons
following his guilty plea.
{¶2} On July 16, 2009, a Mahoning County Grand Jury indicted appellant on
one count of carrying concealed weapons, a fourth-degree felony in violation of R.C.
2923.12(A)(2)(F)(1). The indictment arose from a May 10, 2009 traffic stop.
{¶3} Appellant filed a motion to dismiss arguing that he had a valid carrying
concealed weapons license on May 10, 2009. Appellant asserted that on September
16, 2008, the Trumbull County Sherriff’s Department, from whom he had obtained his
concealed carry license, forwarded a suspension notice to him suspending his permit
based on a charge of discharging a firearm while intoxicated filed against him in
Youngstown Municipal Court. He further stated that on January 22, 2009, the charge
was amended to one count of disorderly conduct and one count of carrying a
concealed weapon, both minor misdemeanors. To his motion, appellant attached
copies of the judgment entries from municipal court reflecting that he pleaded no
contest to these minor misdemeanors. The judgment entries further reflected that the
court fined appellant on both counts and noted, “weapon to be returned to the
defendant.”
{¶4} The state opposed the motion arguing that appellant was asking the
court to decide the factual issue of whether appellant had or should have had a valid
concealed carry license when he was stopped by police in May 2009.
{¶5} The trial court overruled appellant’s motion to dismiss. Appellant also
filed two other motions to dismiss the indictment, both of which the court overruled.
{¶6} On August 16, 2010, appellant entered an Alford plea of guilty to the
charge as indicted. In exchange for appellant’s plea, the state agreed to stand silent
at sentencing. The court found appellant guilty as charged. It subsequently
sentenced him to one year of community control.
{¶7} Appellant filed a timely notice of appeal on September 29, 2010. He
now raises one assignment of error, which states:
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{¶8} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S AMENDED
MOTION TO DISMISS BASED ON AN INDICTMENT PREDICATED UPON AN
INCORRECTLY-CHARGED OFFENSE.”
{¶9} Appellant argues that he should have never been indicted in this case
because, at the time of the May 2009 traffic stop, his carrying concealed license
should have been reinstated by Trumbull County. He asserts that he demonstrated
by the documents he attached to his motion, that he pleaded no contest to disorderly
conduct on January 22, 2009, and as of that date his concealed carry permit should
have been reinstated.
{¶10} In support, appellant cites to R.C. 2923.128(A)(1)(b), which provides in
relevant part:
{¶11} “The suspension shall end on the date on which the charges are
dismissed or the licensee is found not guilty of the offense described in division
(A)(1)(a) of this section * * *. If the suspension so ends, the sheriff shall return the
license * * * to the licensee.”
{¶12} Thus, reinstatement of a suspended license is to occur on the date the
charges are dismissed or the licensee is found not guilty.
{¶13} Consequently, appellant argues that the trial court erred in denying his
motions to dismiss based on an indictment that was predicated upon an incorrectly-
charged offense.
{¶14} Appellant raises a valid argument for trial. Based on the documents he
attached to his motion to dismiss, he could have fought the charge against him and
possibly convinced a jury that he was not guilty. However, this court is not in a
position to make factual determinations as to appellant’s guilt or innocence.
{¶15} More importantly, appellant overlooks a crucial consideration. He
pleaded guilty in this case. His guilty plea was in the form of an Alford plea.
{¶16} An Alford plea is a guilty plea made in accordance with North Carolina
v. Alford (1970), 400 U.S. 25, whereby the defendant pleads guilty but maintains that
he did not commit the crime that he is pleading to. An Alford plea is “merely a
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species of guilty plea” and is “procedurally indistinguishable” from a guilty plea. State
v. Carter (1997), 124 Ohio App. 3d 423, 429; State v. Nguyen, 6th Dist. No. L-05-
1369, 2007-Ohio-2034, at ¶18. “The defendant's purpose for entering an Alford plea
is to avoid the risk of a longer sentence by agreeing to plead guilty to a lesser offense
or for fear of the consequences of a jury trial, or both.” State v. Bailey, 1st Dist. No.
C-030916, 2004-Ohio-6427, at ¶7.
{¶17} By entering an Alford plea the defendant waives review of all alleged
errors, except those errors that may have affected the entry of the plea pursuant to
Crim.R. 11. Nguyen, 2007-Ohio-2034, at ¶18; State v. Lewis (July 30, 1999), 7th Dist.
No. 97-CA-161. Appellant was well aware of this waiver.
{¶18} Here, when appellant entered his plea, the court informed him that by
entering an Alford plea he would give up important rights, including his right to an
appeal if the case went to trial and the jury returned a verdict of guilty. (Plea Tr. 7).
When the court asked appellant if he understood that he was giving up these rights,
appellant answered, “Yes, sir.” (Plea Tr. 7).
{¶19} Therefore, appellant has waived review in this case as to whether the
trial court erred in denying his motion to dismiss his indictment. As such, appellant’s
assignment of error is waived for purposes of this appeal.
{¶20} For the reasons stated above, the trial court's judgment is hereby
affirmed.
VUKOVICH, J., concurring:
{¶21} I write separately because appellant’s position is untenable due to the
fallacy of his argument, and not just because he entered an “Alford” guilty plea. In
my view, the result would be the same even if he had entered a “no contest” plea.
{¶22} Here, appellant argues that the trial court should have sustained his
motion to dismiss because he had a valid concealed carry permit at the time of his
alleged offense. In essence, he is raising a defense or stating that the state cannot
meet its burden of production which constitutes a sufficiency argument. The trial
court cannot grant this type of motion prior to trial. The Eighth Appellate District has
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succinctly explained this as follows:
{¶23} “As a result, ‘[a] pretrial motion must not involve a determination of the
sufficiency of the evidence to support the indictment. If the indictment is valid on its
face, a motion to dismiss should not be granted.’ Preztak, citing State v. Eppinger,
162 Ohio App. 3d 795, 835 N.E.2d 746, 2005-Ohio-4155, citing State v. Varner
(1991), 81 Ohio App. 3d 85, 86, 610 N.E.2d 476 (stating ‘[t]he Ohio Rules of Criminal
Procedure * * * do not allow for “summary judgment” on an indictment prior to trial’);
Columbus v. Storey, 10th Dist. No. 03AP-743, 2004-Ohio-3377, ¶7; State v. Tipton
(1999), 135 Ohio App. 3d 227, 228, 733 N.E.2d 634 (noting that ‘[w]hen a defendant
in a criminal action files a motion to dismiss that goes beyond the face of the
indictment, he is, essentially, moving for summary judgment’).
{¶24} “The Supreme Court of Ohio carved out an exception to the general
rule, noting that a court may consider material outside the face of the indictment if the
‘motion did not embrace what would be the general issue at trial.’ State v. Brady, 119
Ohio St. 3d 375, 894 N.E.2d 671, 2008-Ohio-4493, ¶ 18. Crim.R. 12(C), however,
does not permit a court to determine a pretrial motion to dismiss if it requires the trial
court also to determine the general issue for trial. Id.” State v. Palmer, 10th Dist.
Nos. 09AP-956 and 09AP-957, 2010-Ohio-2421, ¶12-13.
Vukovich, J., concurs with attached concurring opinion.
Waite, P.J., concurs.