State v. Hill , 2021 Ohio 1946 ( 2021 )

[Cite as State v. Hill, 2021-Ohio-1946.]
COURT OF APPEALS
STATE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2020 CA 00130
DAVIS ANTHONY HILL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2019 CR 01338
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 9, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE AARON KOVALCHIK
PROSECUTING ATTORNEY 116 Cleveland Avenue, NW
VICKI L. DeSANTIS 808 Courtyard Centre
ASSISTANT PROSECUTOR Canton, Ohio 44702
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
State County, Case No. 2020 CA 00130 2
Wise, John, J.
{¶1} Defendant-Appellant Davis Hill appeals the judgment entered by the Stark
County Court of Common Pleas convicting him of one count of Trafficking in Heroin with
a major drug offender specification in violation of R.C. 2925.03(A)(2)(C)(6)(g) and R.C.
2941.1410, one count of Possession of Heroin with a major drug offender specification in
violation of R.C. 2925.11(A)(C)(6)(f) and R.C. 2941.1410, one count of Trafficking in
Fentanyl-Related Compound with a major drug offender specification in violation of R.C.
2925.03(A)(2)(C)(9)(h) and R.C. 2941.1410, one count of Possession of Fentanyl-
Related Compound with a major drug offender specification in violation of R.C.
2925.11(A)(C)(11)(g) and R.C. 2941.1410, two counts of Having Weapons While Under
Disability in violation of R.C. 2923.13(A)(2), and one count of Aggravated Possession of
Drugs in violation of R.C. 2925.11(A)(C)(1)(a) entered on August 14, 2020. Appellee is
the State of Ohio. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 26, 2019, Appellant was indicted for one count of Trafficking in
Heroin with a major drug offender specification in violation of R.C. 292503(A)(2)(C)(6)(g)
and R.C. 2941.1410, one count of Possession of Heroin with a major drug offender
specification in violation of R.C. 2925.11(A)(C)(6)(f) and R.C. 2941.1410, one count of
Trafficking in Fentanyl-Related Compound with a major drug offender specification in
violation of R.C. 2925.03(A)(2)(C)(9)(h) and R.C. 2941.1410, one count of Possession of
Fentanyl-Related Compound with a major drug offender specification in violation of R.C.
2925.11(A)(C)(11)(g) and R.C. 2941.1410, two counts of Having Weapons While Under
Stark County, Case No. 2020 CA 00130 3
Disability in violation of R.C. 2923.13(A)(2), and one count of Aggravated Possession of
Drugs in violation of R.C. 2925.11(A)(C)(1)(a).
{¶3} On July 27, 2019, Appellant entered a plea of not guilty.
{¶4} On January 3, 2020, Appellant filed a Motion to Suppress.
{¶5} On February 6, 2020, the trial court held a hearing on Appellant’s Motion to
Suppress.
{¶6} On April 22, 2020, the trial court denied Appellant’s Motion to Suppress.
{¶7} On April 24, 2020, Appellant filed a Motion for Judicial Release.
{¶8} On April 29, 2020, the trial court denied Appellant’s Motion for Judicial
Release.
{¶9} On June 8, 2020, new counsel filed a notice of appearance on behalf of
Appellant.
{¶10} On July 21, 2020, Appellant filed a second Motion to Suppress.
{¶11} On July 27, 2020, the trial court held a hearing on Appellant’s second Motion
to Suppress. The trial court overruled Appellant’s second Motion to Suppress.
{¶12} After the Suppression Hearing the trial court asked the Appellee to put the
State’s recommendation on the record. The State’s recommendation was for a minimum
sentence of sixteen years. This includes a five-year sentence on the specification and
eleven to sixteen and a half years on the underlying offenses.
{¶13} On July 28, 2020, the trial court conducted a pretrial hearing for purposes
of discussing the Appellee’s plea offer. At the hearing, Appellant expressed interest in
entering a plea of no contest; however, Appellee objected to Appellant entering a plea of
no contest. The trial court indicated that this is not an option. The trial court stated that he
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rarely lets a defendant plead no contest. When this occurs it is usually because there is
a legitimate legal issue that was undecided in the State of Ohio.
{¶14} On August 5, 2020, Appellant entered a change of plea to guilty.
{¶15} The trial court sentenced Appellant to a total of sixteen to twenty-one and
one half years in prison.
ASSIGNMENTS OF ERROR
{¶16} On September 10, 2020, Appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT
ALLOW APPELLANT TO ENTER A PLEA OF NO CONTEST.
{¶18} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED A VINDICTIVE
SENTENCE UPON APPELLANT.”
I.
{¶19} In Appellant’s First Assignment of Error, Appellant argues the trial court
erred by refusing to allow Appellant to enter a plea of no contest. We disagree.
{¶20} Crim.R. 11(C)(2) provides in pertinent part: “In felony cases the court may
refuse to accept a plea of guilty or a plea of no contest[.]”
{¶21} “A trial court has discretion to accept or reject a no-contest plea. See
Crim.R. 11(A) (defendant may plead no contest with the consent of the court). *473 The
court’s decision will not be reversed absent an abuse of discretion. See State v. Jenkins,
15 Ohio St.3d 164, 223, 473 N.E.2d 264 (1984).” State v. Beasley, 152 Ohio St.3d 470,
2018-Ohio-16, 97 N.E.3d 474.
Stark County, Case No. 2020 CA 00130 5
{¶22} We review the decision of the trial court, therefore, for an abuse of
discretion. “The term ‘abuse of discretion’ connotes more than an error of law or judgment;
it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, 1142 (1983).
{¶23} A court rejecting any and all no-contest pleas as a matter of course without
any consideration to the facts or circumstances of each case constitutes a blanket policy
of not accepting no contest pleas. Beasley at ¶13. A court’s adherence to a blanket policy
of not accepting no contest pleas is arbitrary and constitutes an abuse of discretion. Id.{¶24} In Beasley, the defense attorney summarized the trial court’s policy as a
blanket policy of not accepting a no contest plea is preventing her client from entering a
plea of no contest. Id. at ¶3. The trial court judge acknowledged he understood the
defense attorney and accepted a plea of guilty from the defendant. Id. at ¶3-¶6. The
Supreme Court of Ohio reversed the guilty plea concluding, “the trial court erred in
adopting a blanket policy of refusing to accept no-contest pleas[.]” Id. at ¶17.
{¶25} In the case sub judice, the trial court prevented Appellant from entering a
no contest plea. The trial court made clear that it does permit no contest pleas in certain
circumstances, such as when a legitimate legal issue remains in flux. The trial court made
note that it looked at the facts and circumstances of the case at bar and determined it
would not accept a no contest plea.
{¶26} After a review of the record we find the trial court did not abuse its discretion
in preventing Appellant from entering a no contest plea.
{¶27} Appellant’s First Assignment of Error is overruled.
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II.
{¶28} In Appellant’s Second Assignment of Error, Appellant argues the trial court
imposed a vindictive sentence upon Appellant. We disagree.
{¶29} It is well-established “a sentence vindictively imposed on a defendant for
exercising his constitutional right to a jury trial is contrary to law.” State v. Rahab, 150
Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶8, citing State v. O’Dell, 45 Ohio St.3d
140, 147, 543 N.E.2d 1220 (1989). When reviewing a sentence for vindictiveness, we
begin by presuming the trial court considered the proper sentencing criteria. Id at ¶19.
We then review the record for evidence of actual vindictiveness on the part of the trial
court.” Id., citing R.C. 2953.08(G)(2) and State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶1. It is incumbent upon the defendant to prove actual
vindictiveness. Id. at ¶18, citing United States v. Wasman, 468 U.S. 559, 569, 104 S.Ct.
3217, 82 L.Ed.2d 424 (1984).
{¶30} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the
degree of proof required sustaining an issue must be clear and convincing, a reviewing
court will examine the record to determine whether the trier of facts had sufficient
evidence before it to satisfy the requisite degree of proof.” Cross at 477.
{¶31} In his statement of facts and Second Assignment of Error, Appellant
misstates the State’s recommended sentence. In Appellant’s Statement of Facts,
Appellant says, “the State of Ohio stated on the record that if Appellant wished to enter a
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guilty plea as indicted it would recommend a sentence of 11 to 16 and a half years.”
Appellant’s Brief, 4. In Appellant’s Second Assignment of error he states, “it [the State]
would recommend a sentence of 11 to 16 and a half years.” Appellant’s Brief, 8. These
Statements cite to the transcript of the hearing for Appellant’s Motion to Suppress held
on July 27, 2020. After the hearing the trial court asked the State to put their offer for a
guilty plea on the record.
{¶32} However, at the Suppression Hearing the State said they would
recommend, “sixteen years minimum at this point, which would be a five-year on the
specification and then the mandatory 11 to technically 16 and a half on the underlying
offense[.]” Supp. Hrng. Tr. at 50.
{¶33} On August 5, 2020, Appellant entered a plea of guilty to the indictment. At
the sentencing hearing, the trial court sentenced Appellant to eleven to sixteen and a half
years on the trafficking in fentanyl-related compound charge and an additional five years
for the major drug offender specification which must be served prior to and consecutive
to the trafficking charge. All other sentences were to run concurrent to the trafficking in
fentanyl-related compound charge.
{¶34} Upon review of the entire record, we are not convinced that the court’s
sentencing, which was in line with the State’s recommendation, was based on
vindictiveness rather than on the facts of the case.
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{¶35} Appellant’s Second Assignment of Error is overruled.
{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is hereby affirmed.
By: Wise, John, J.
Hoffman, P. J., and
Wise, Earle, J., concur.
JWW/br 0607
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