State v. Leech , 2020 Ohio 1440 ( 2020 )

[Cite as State v. Leech, 2020-Ohio-1440.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-T-0042
- vs - :
BRANDON JONTAE LEECH :
(a.k.a. “BAMA”),
:
Defendant-Appellant.
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2018 CR 00377.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH
44481 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Brandon Jontae Leech (a.k.a. “Bama”), appeals from the
January 16, 2019 entry on sentence issued by the Trumbull County Court of Common
Pleas. The judgment is affirmed.
{¶2} On May 30, 2018, appellant was indicted on three counts, all with
accompanying firearm specifications: (1) Attempted Murder (F1), in violation of R.C.
2923.02(A)&(E)(1) and R.C. 2903.02(A)&(D); (2) Felonious Assault (F2), in violation of
R.C. 2903.11(A)(1)&(D)(1)(a); and (3) Felonious Assault (F2), in violation of R.C.
2903.11(A)(2)&(D)(1)(a).
{¶3} A suppression hearing was held on November 16, 2018. Appellant sought
to suppress the pretrial identification made by the victim when presented with a photo
array. The trial court found there was no violation of the minimum requirements for
photo lineup procedures, as set forth in R.C. 2933.83(B), and found no violation of
appellant’s constitutional rights. The court concluded appellant failed to establish that
the pretrial identification procedure was unnecessarily suggestive and, upon the court’s
independent review of the photo array, found it was not unduly suggestive as composed
or as presented to the victim. The trial court overruled appellant’s motion on January 2,
2019.
{¶4} On January 9, 2019, appellant entered a counseled and negotiated plea of
guilty to an amended indictment. Appellant pleaded guilty to one count of Aggravated
Assault (F4), in violation of R.C. 2903.12(A)(2)&(B). Pursuant to the plea agreement,
the state of Ohio agreed to nolle the remaining counts of the indictment. The parties
jointly recommended a six-month sentence for the underlying offense, to be served
subsequent and consecutive to the mandatory three-year sentence for the firearm
specification.
{¶5} The state offered the following factual basis at the plea hearing:
Had this case proceeded to trial the State would have proven
beyond a reasonable doubt each and every element of the offense
as charged in the amended indictment. Specifically the State would
have shown that on April 15th, 2018, at the Hideaway Lounge
located at 5840 ½ Youngstown Warren Road, Niles, Trumbull
County, Ohio, this defendant and the victim Lawrence William
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Saunders, got into an argument at that location. As a result this
defendant shot the victim in the mouth. The bullet was later spit out
two months later by the victim after the victim had previously been
told by doctors it was not able to be removed due to the risks that
were involved.
The State would have offered the testimony of the victim in this
case, investigating officers, an eye witness to the shooting, as well
as medical personnel. We also would have offered into evidence at
trial the victim’s medical records, crime scene photographs and the
recovered projectile as well as other evidence.
{¶6} The trial court accepted appellant’s guilty plea, proceeded directly to
sentencing, and imposed the jointly recommended sentence of three years and six
months.
{¶7} The trial court issued its entry on sentence on January 16, 2019, from
which appellant now appeals. He raises one assignment of error for our review:
THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT’S MOTION TO SUPPRESS THE PHOTO ARRAY
IDENTIFICATION BY THE VICTIM.
{¶8} Appellant argues the trial court erred when it denied his motion to
suppress the photo array identification by the victim. Appellee responds—and we
agree—that appellant waived appellate review of the denial of his motion to suppress by
pleading guilty to the offense.
{¶9} At the plea hearing, the trial court advised appellant of the appellate rights
he was waiving by entering a plea of guilty:
THE COURT: If you were convicted at that jury trial you also have
what’s called the automatic right to appeal and that means you or
your attorney could file a paper with our Court of Appeals stating
what errors or irregularities that you or your attorney think occurred
at the trial of your case. The Court of Appeals would have to hear
that appeal but they may not necessarily agree on what you or your
attorney think the errors or irregularities were.
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If you cannot afford a transcript of the proceedings, the Court will
provide that for you, and if you cannot afford an attorney to
represent you, the Court would provide that for you.
Do you understand what your Court of Appeals rights are?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand by entering a guilty plea here
today you would be giving up those rights?
THE DEFENDANT: Yes, sir.
{¶10} Appellant signed a written plea of guilty, which also provides the following:
The Court and my Attorney have advised me that by entering this
Plea of Guilty I am waiving (giving up) the following Constitutional
Rights: * * * My right to appeal upon conviction after a trial.
My attorney has advised me that I may only be able to appeal the
imposition of a maximum sentence or other procedural issues
regarding this plea. I also understand my other limited appellate
rights that have been explained to me by the Court * * *.
{¶11} “A valid guilty plea by a counseled defendant * * * generally waives the
right to appeal all prior nonjurisdictional defects, including the denial of a motion to
suppress.” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶15 (citations omitted).
“A guilty plea is a complete admission of guilt under Crim.R. 11(B)(1), and a ‘defendant
who * * * voluntarily, knowingly, and intelligently enters a plea of guilty with the
assistance of counsel “may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”’”
State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶55, quoting State v.
Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶78, quoting Tollett v. Henderson,
411 U.S. 258, 267 (1973). See also Class v. United States, ___ U.S. ___, 138 S.Ct.
798, 805 (2018) (“A valid guilty plea also renders irrelevant—and thereby prevents the
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defendant from appealing—the constitutionality of case-related government conduct
that takes place before the plea is entered.”).
{¶12} An exception does exist, in that a guilty plea does not bar a direct appeal
that challenges “the very power of the State” to prosecute the offender, such as the
constitutionality of a statute under which the offender is convicted. See Class, supra, at
syllabus, citing Blackledge v. Perry, 417 U.S. 21 (1974) and Menna v. New York, 423
U.S. 61 (1975). Appellant does not raise such an argument here. Nor does he argue
that his plea was entered unknowingly, involuntarily, or unintelligently. Rather, he
argues the trial court erred in concluding the photo array presented to the victim was not
unduly suggestive and that the denial of his motion to suppress affected his decision not
to proceed to trial. By pleading guilty, however, appellant waived his right to raise this
argument on appeal.
{¶13} Appellant’s sole assignment of error is not well taken.
{¶14} The judgment of the Trumbull County Court of Common Pleas is hereby
affirmed.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.
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