State v. Bond , 2022 Ohio 1628 ( 2022 )

[Cite as State v. Bond, 2022-Ohio-1628.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-08-103
: OPINION
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:
MALAKI BOND, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2021-03-0270
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
PIPER, J.
{¶1} Appellant, Malaki Bond, appeals his conviction and sentence in the Butler
County Court of Common Pleas following his guilty plea.
{¶2} On March 4, 2021, Bond was charged with three counts of aggravated
robbery, first-degree felonies, in violation of R.C. 2911.01(A)(1), with accompanying firearm
specifications pursuant to R.C. 2941.145. According to the indictment, Bond and his co-
defendants engaged in an ongoing and continuing course of criminal conduct throughout
Butler and Hamilton Counties in which they brandished deadly weapons in attempting or
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committing theft offenses. Bond initially pled not guilty.
{¶3} On June 9, 2021, Bond appeared with counsel for a change of plea hearing.
Pursuant to the terms of the plea agreement, Bond pled guilty to one count of aggravated
robbery with its attendant three-year firearm specification and the state dismissed the
remaining counts. The assistant prosecutor read the statement of facts, including that the
offense was a part of a continuing course of criminal conduct that occurred in both Butler
and Hamilton Counties. Bond acknowledged listening carefully to the facts and his counsel
had nothing to add pertaining to the assistant prosecutor's recitation of the facts. After
reemphasizing Bond's constitutional rights and his understanding of the consequences of
waiving his rights and pleading guilty, the court accepted Bond's guilty plea.
{¶4} At the sentencing hearing, the trial court sentenced Bond to an indefinite
prison term of a minimum of 11 years to a maximum of 16 and one-half years. In addition,
the trial court imposed the mandatory, consecutive three-year prison term for the firearm
specification. Bond now appeals his conviction and sentence, raising two assignments of
error for review.
{¶5} Assignment of Error No. 1:
{¶6} THE TRIAL COURT ERRED BY FAILING TO OBTAIN A WAIVER AT THE
PLEA COLLOQUY OF BOND'S CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY IN
THE COUNTY WHERE HIS OFFENSE WAS COMMITTED.
{¶7} Bond's first assignment of error asserts that prior to accepting Bond's plea of
guilty, the trial court erred in failing to obtain a waiver of Bond's constitutional right to a trial
with an impartial jury in the county where his offense was committed. We find Bond's
assignment of error is without merit.
{¶8} When a defendant enters a guilty plea in a criminal case, the plea must be
knowingly, intelligently, and voluntarily made. State v. Parker, 12th Dist. Butler No.
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CA2018-12-229, 2020-Ohio-414, ¶ 18. "Failure on any of those points renders enforcement
of the plea unconstitutional under both the United States Constitution and the Ohio
Constitution." State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, ¶
8. Crim.R. 11(C)(2) governs the process a trial court must follow to ensure that a guilty plea
to a felony charge is knowing, intelligent, and voluntary. State v. Luttrell, 12th Dist. Warren
No. CA2021-07-062, 2022-Ohio-1148, ¶ 16.
{¶9} According to Crim.R. 11(C)(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:
(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 or no
contest, 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.
{¶10} The supreme court has addressed a trial court's compliance with Crim.R.
11(C) and how an appellate court should review a trial court's plea colloquy. State v.
Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶ 11. In general, "a defendant is not entitled
to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial
court to comply with the provisions of Crim.R. 11(C)" i.e., that "the plea would not have
otherwise been made." Id. at ¶ 16. However, there are two exceptions to this rule: (1) when
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the trial court fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c) that a
defendant waives by pleading guilty or no contest, and (2) "a trial court's complete failure
to comply with a portion of Crim.R. 11(C)." Id. at ¶ 15. Under either exception, the
defendant is not required to show prejudice. Luttrell at ¶ 17.
{¶11} There is no dispute that Bond pled guilty to an offense that was among a string
of offenses that occurred in Butler and Hamilton Counties. As a result of a plea agreement,
Bond pled guilty to a single count with an attached specification while the state dismissed
the remaining counts and specifications contained in the indictment. Since Bond pled guilty
to aggravated robbery involving a gas station located in Hamilton County, Bond maintains
that the trial court should have advised him of a claimed right to a jury trial in the Hamilton
County Court of Common Pleas. However, when the offense is one involving a continuing
course of criminal conduct spanning several counties such an argument is not supported
by any legal authority.
{¶12} Interestingly, Bond does not claim that his plea was not knowingly,
intelligently, or voluntarily made. Instead, he advances an argument that omits the critical
fact that he pled guilty to participating in an ongoing and continuing course of criminal
conduct.1 Bond's argument entwines multiple legal concepts rendering it difficult to
untangle. Nevertheless, we can resolve this assignment of error based upon review of the
record established in this case.
Proceedings in Butler County were appropriate
{¶13} It is well established that when an offender commits offenses in different
1. For example, Bond discusses his right to a jury trial in a different county with almost no elaboration. Under
App.R. 16(A)(7), an argument in an appellate brief must present "the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support of the contentions, with citations
to the authorities, statutes, and parts of the record on which appellant relies." In this case, there is no
development of the claimed constitutional violation.
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jurisdictions as part of a continuing course of criminal conduct, he may be tried and
convicted for all the offenses in any one jurisdiction in which the offender committed one of
the offenses or any element of one of those offenses. R.C. 2901.12(H); State v. Davis, 12th
Dist. Clinton No. CA2015-12-022, 2017-Ohio-495, ¶ 22; State v. Workman, 12th Dist.
Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 58. State v.
Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575, ¶ 18. In other words, all
the offenses may be tried in any jurisdiction in which the continuing course of criminal
conduct occurred without offending the constitutional right to have his jury trial take place
where the offense occurred. State v. Moore, Slip Opinion No. 2022-Ohio-1460, ¶ 11.
{¶14} The purpose of "course of criminal conduct" venue under R.C. 2901.12(H) is
to "effectuate a sensible, efficient approach to justice" while recognizing the "modern
mobility of criminals allows them to perform unlawful deeds over vast geographical
boundaries." Id. at ¶ 20, citing State v. Draggo, 65 Ohio St.2d 88, 90 (1981). It promotes
judicial economy by allowing the state to "prosecute multiple offenses during one
proceeding in one county." Id.{¶15} The supreme court has held there is no constitutional or statutory provision
which prohibits a grand jury in one county from indicting a defendant for conduct which
occurred in another county as part of a continuing course of criminal conduct. State v.
Jackson, 141 Ohio St. 3d 171, 2014-Ohio-3707, ¶ 132. In his appellate brief, Bond suggests
that this is a "rare case in which the offense was completed in a different county." However,
such is not the case. It is not rare at all. In Workman, we affirmed the defendant's
convictions in Hamilton and Clermont Counties for sexual abuse committed as a continuing
course of criminal conduct. Id.at ¶ 10-11, 60. In Davis, we found the defendant's conviction
in Clinton County was appropriate because at least one element of the offense of engaging
in a pattern of corrupt activity took place in the county. Id. at ¶ 28. In Jordan, we found
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defendant's convictions in Warren County were proper even though some counts occurred
in Butler and Montgomery Counties. Id. at ¶ 18.
{¶16} On appeal, Bond cites no authority for the proposition that the trial court was
required to advise him of a right to a jury trial in a different county after he represented to
the court he wanted to change his plea to guilty for one of the offenses upon the state's
representation they would dismiss the other charges. Bond merely cites to the staff notes
to Crim. R. 11, which are not binding legal authority and only offer general guidance.
Significantly, Bond neglects to address R.C. 2901.12(H), which is clearly implicated in the
state's indictment containing the offense to which Bond pled guilty.2
{¶17} The supreme court has long held that R.C. 2901.12 is constitutional and does
not deprive an offender of his right to a jury trial under Article I, Section 10 of the Ohio
Constitution. State v. Draggo, 65 Ohio St.2d 88, 90 (1981); State v. DeBoe, 6th Dist. Huron
No. H-02-057, 2004-Ohio-403, ¶ 38. In DeBoe, the defendant argued that R.C. 2901.12
was unconstitutional and that the Huron County Court of Common Pleas erred by not
dismissing the counts that were allegedly committed in Lucas County. Id. at ¶ 36. As in
this case, the offense was committed as part of a continuing course of criminal conduct. Id.
at ¶ 56. The Sixth District rejected the appellant's argument finding that R.C. 2901.12 did
not deprive an offender of their right to a jury trial and the statute was not incompatible with
the Ohio Constitution. Id. at ¶ 38.
{¶18} In this case, the state alleged that Bond and his codefendants engaged in an
ongoing and continuing course of criminal conduct that occurred in both Butler and Hamilton
Counties. During the plea colloquy, the state read the statement of facts concerning the
2. In exchange for the plea on one count with a specification, the state would subsequently dismiss two other
counts and specifications. At the time of Bond's plea, the multiple charges established Butler and Hamilton
as the counties where the ongoing and continuing offenses occurred, clearly not in violation of Article I, Section
10 of the Ohio Constitution. See Moore, 2022-Ohio-1460 at ¶ 21-22.
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ongoing and continuing course of criminal conduct across both counties. Accordingly, the
record plainly establishes that Bond pled guilty to an offense in Hamilton County involving
an ongoing and continuing course of criminal conduct in both Butler and Hamilton Counties.
In other words, Bond's plea of guilty to the statement of facts read by the assistant
prosecutor acknowledged jurisdiction was proper in both Butler and Hamilton Counties.
R.C. 2901.12(H). See also, State v. Buoni, 10th Dist. Franklin Nos. 11AP-111, 11AP-148,
and 11AP-149, 2011-Ohio-6665, ¶ 12 (plea of guilty in Franklin County for crimes committed
in Delaware County was appropriate where the crimes committed in Delaware County were
part of a continuing course of criminal conduct ending in Franklin County); State v. Fort,
8th Dist. Cuyahoga No. 80604, 2002-Ohio-5068, ¶ 48 (appellant precluded from challenging
counts that occurred in Summit County because he pled guilty in Cuyahoga County to
engaging in a continuing course of criminal conduct in both counties). When an offense
results from a continuing course of criminal conduct involving multiple counties, no case law
suggests a defendant possesses the right to choose the jurisdiction where he will enter his
guilty plea or, if not waiving his right to trial, in which county his trial will be held. Any
suggestion that Bond had a right to be prosecuted, and have a jury trial, in Hamilton County
is incorrect and unsupported by the law. Jackson, 2014-Ohio-3707 at ¶ 132.
Plea Colloquy
{¶19} Furthermore, a thorough review of the record reveals that the trial court
advised Bond of all the constitutional requirements of Crim.R. 11(C)(2)(c), there was no
"complete failure" of any portion of Crim. R. 11(C), and his plea was knowing, voluntary,
and intelligent. Luttrell, 2022-Ohio-1148 at ¶ 17. Bond cannot dispute this, but instead
argues that the trial court erred by failing to obtain a waiver of his right to a jury trial
specifically in Hamilton County—a right that does not exist. On the other hand, the record
reflects that Bond was well-aware that he was waiving his right to a jury trial—a
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constitutional right that he did have. At the change of plea hearing, Bond appeared with
his attorney along with one of his codefendants. During the plea colloquy with Bond and a
codefendant, the trial court stated:
THE COURT: Now, it's my understanding that each of you
wishes to change your plea to guilty. That each of you today,
by pleading guilty, wish to waive or give up your right to a trial is
that right?
***
BOND: Yes, sir.
***
THE COURT: Now, do you gentlemen each understand that if
you plead guilty, for each of you, that's a complete admission of
your guilt?
***
BOND: Yes, sir.
***
THE COURT: Do you understand, gentlemen, that if you plead
guilty, you'll be forever giving up your right to a trial and all your
constitutionally guaranteed trial right; do you understand that
gentlemen?
***
BOND: Yes, sir.
The trial court confirmed that Bond was making his plea voluntarily and that he understood
the maximum penalty involved. The trial court made sure Bond understood the effect of his
guilty plea. The trial court also explained all of the rights Bond was waiving by pleading
guilty, including his right to a 12-person jury trial, to confront witnesses, to have compulsory
process, and the state's burden of proof. The trial court's plea colloquy was comprehensive
and exhaustive. Following continued discussion of the rights being waived, Bond entered
his guilty plea, which was then accepted by the trial court. Once Bond knowingly,
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voluntarily, and intelligently waived his right to a jury trial for ongoing and continuing criminal
conduct involving both Butler and Hamilton Counties, the robbery's location contributed to
no constitutional violation nor any prejudice. Accordingly, we find no constitutional infirmity
in Bond's guilty plea. Bond's first assignment of error is overruled.
{¶20} Assignment of Error No. 2:
{¶21} BOND'S REAGAN TOKES SENTENCE WAS UNLAWFUL.
{¶22} In his second assignment of error, Bond argues that his sentence was
unlawful. He also alleges the indefinite sentencing scheme set forth in the Reagan Tokes
Law is unconstitutional and that his attorney was ineffective by not challenging the
constitutionality of those provisions and failing to preserve the issue for appeal.
{¶23} Under the Reagan Tokes Law, qualifying first- and second-degree felonies
committed on or after March 22, 2019, are now subject to the imposition of indefinite
sentences. State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 9.
The indefinite terms consist of a minimum term selected by the sentencing judge from a
range of terms set forth in R.C. 2929.14(A) and a maximum term determined by a statutory
formula set forth in R.C. 2929.144. State v. Tutt, 12th Dist. Preble No. CA2020-02-002,
2021-Ohio-96, ¶ 10. The maximum term equals the minimum term imposed on the offender
plus 50 percent of that term. Hodgkin at ¶ 9.
{¶24} An offender sentenced under the Reagan Tokes Law has a rebuttable
presumption of release at the conclusion of the offender's minimum term. R.C. 2967.271(B).
"However, the Ohio Department of Rehabilitation and Correction ("ODRC") may rebut that
presumption of release if it finds, at a hearing, that any of the factors set forth in R.C.
2967.271(C)(1), (2), and (3) apply." State v. Rogers, 12th Dist. Butler No. CA2021-02-010,
2021-Ohio-3282, ¶ 9. If the ODRC rebuts the presumption, it may keep the offender in
prison for an additional "reasonable period," but the additional time "shall not exceed the
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offender's maximum prison term." R.C. 2967.271(C).
Imposition of the indefinite prison term
{¶25} In the case at bar, Bond pled guilty to one count of aggravated robbery with
an accompanying three-year firearm specification for an offense committed after March 22,
2019. The stated minimum term for that offense is "three, four, five, six, seven, eight, nine,
ten, or eleven years." R.C. 2929.14(A). The stated maximum is then determined by the
statutory formula, which is 50 percent of the minimum term imposed.
{¶26} The trial court sentenced Bond to an indefinite prison term of 11 years to 16
and one-half years. That is the 11-year minimum term imposed with the appropriate
calculation of the maximum term. The trial court also imposed a mandatory and consecutive
term of imprisonment of three years on the specification. Pursuant to R.C.
2929.14(C)(1)(a), the specification must be served prior to the sentence for the underlying
offense. Therefore, Bond will not begin serving the indefinite prison term until he has
completed the prison term on the specification.
{¶27} Following review, we find the trial court did not err in its sentencing decision.
The trial court appropriately calculated the indefinite sentence and imposed the
specification in accordance with Ohio sentencing law. The trial court did not err in this
regard and any argument to the contrary is without merit.
Constitutional arguments concerning Reagan Tokes Law
{¶28} Bond also argues that the Reagan Tokes Law is unconstitutional. However,
Bond did not raise a challenge to the constitutionality of the Reagan Tokes Law with the
trial court. As this court has repeatedly stated, "arguments challenging the constitutionality
of the Reagan Tokes Law are forfeited and will not be heard for the first time on appeal in
cases where the appellant did not first raise the issue with the trial court." State v. Blaylock,
12th Dist. Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, citing Hodgkin, 2021-Ohio-
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1353, ¶ 11; State v. Teasley, 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9;
State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8-9; State v.
Roberson, 12th Dist. Warren No. CA2021-01-003, 2021-Ohio-3705, ¶ 39-40.
{¶29} This court has consistently declined to hear arguments challenging the
constitutionality of the Reagan Tokes Law in cases where the party failed to first raise it in
the trial court. State v. Lee, 12th Dist. Warren No. CA2021-05-047, 2022-Ohio-248, ¶ 35.
Accordingly, consistent with this court's precedent, Bond's arguments are overruled.
{¶30} In addition, Bond claims that his trial counsel was ineffective for not
challenging the constitutionality of the Reagan Tokes Law. This court, however, has
considered identical arguments and held that "[t]rial counsel's failure to raise the
constitutionality of the Reagan Tokes Law, an argument which has proven unsuccessful in
this and other districts, does not constitute ineffective assistance." State v. Abner, 12th
Dist. Warren No. CA2021-05-048, 2021-Ohio-4549, ¶ 25; Hodgkin at ¶ 18. Therefore,
Bond's trial counsel did not provide ineffective assistance of counsel. Bond's second
assignment of error lacks merit and is overruled.
{¶31} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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