State v. Bhambra , 2017 Ohio 8485 ( 2017 )

[Cite as State v. Bhambra, 2017-Ohio-8485.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105283
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOBANJEET BHAMBRA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-601758-A
BEFORE: McCormack, P.J., S. Gallagher, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEY FOR APPELLANT
Michael J. Cheselka
75 Public Square, Ste. 920
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kristin M. Karkutt
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Jobanjeet Bhambra appeals from an order of the trial
court denying his motion to withdraw his guilty plea. For the reasons that follow, we
affirm the trial court.
{¶2} On December 30, 2015, Bhambra was indicted along with a codefendant on
a multiple-count indictment as follows: Count 1 — rape in violation of R.C.
2907.02(A)(2); Count 2 — rape in violation of R.C. 2907.02(A)(1)(c); Count 3 —
attempted rape in violation of R.C. 2907.02(A)(2); Count 4 — attempted rape in violation
of R.C. 2907.02(A)(1)(c); Count 5 — gross sexual imposition in violation of
R.C. 2907.05(A)(1); Count 6 — kidnapping in violation of R.C. 2905.01(A)(4); Count 7
— rape in violation of R.C. 2907.02(A)(2); Count 8 — rape in violation of R.C.
2907.02(A)(1)(c); and Count 9 — kidnapping in violation of R.C. 2905.01(A)(4). The
charges arise from the sexual assault of a 17-year-old victim.
{¶3} Thereafter, Bhambra agreed to accept a plea offer from the state that
included an amended charge. On August 3, 2016, the court held a plea hearing, during
which the state moved to amend Count 4, attempted rape, to the charge of attempted
felonious assault. Bhambra then pleaded guilty to amended Count 4 and Count 5, gross
sexual imposition, as indicted, and the state agreed to dismiss the remaining counts of the
indictment. On October 14, 2016, the court sentenced Bhambra to three years
imprisonment on Count 4 and 18 months on Count 5, to be served concurrently.
{¶4} Approximately two weeks later, Bhambra filed a motion to withdraw his
guilty plea, alleging he is innocent of the charges and his plea was not made knowingly,
intelligently, and voluntarily. On November 29, 2016, the trial court denied Bhambra’s
motion, finding no basis for withdrawal of his plea.
{¶5} On December 21, 2016, Bhambra appealed, attaching the trial court’s order
of November 2016. On appeal, however, Bhambra contends in his sole assignment of
error that the trial court abused its discretion by permitting the state to amend the
indictment from attempted rape to attempted felonious assault at the plea hearing. He
argues that the amendment resulted in a change in the identity of the offense charged in
the indictment and was therefore improper. Bhambra’s appeal does not relate to his
motion to withdraw his guilty plea or the trial court’s denial of his motion to withdraw.
{¶6} We note, initially, that a knowing and intelligent guilty plea to an amended
indictment waives any alleged error within that indictment on appeal. State v. Johnson,
8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 21, citing State v. Simmons, 8th Dist.
Cuyahoga No. 69238, 1997 Ohio App. LEXIS 696 (Feb. 27, 1997). Distinguishing
between cases where an indictment is amended pursuant to a plea agreement from cases
where an indictment is amended and the case proceeds to trial, this court has stated that
where the amendment was made pursuant to a plea bargain in open court with the
defendant’s voluntary agreement, after full disclosure, an indictment may be amended
without returning to the grand jury. Simmons at 6-7, citing State v. Childress, 91 Ohio
App.3d 258, 261, 632 N.E.2d 562 (3d Dist.1993). “Since a counseled guilty plea * * *
waives a defendant’s right to challenge his conviction on constitutional grounds, it must
also operate as a waiver of any claimed errors on grounds relating to the wording of the
indictments.” State v. Hill, 8th Dist. Cuyahoga Nos. 61685, 61686, 1993 Ohio App.
LEXIS 641, 14 (Feb. 4, 1993).
{¶7} Here, Bhambra does not argue on appeal that his plea was not entered
knowingly and voluntarily. And we find the record, in fact, demonstrates that Bhambra
knowingly and voluntarily agreed to the amended indictment to which he entered a guilty
plea pursuant to the plea agreement.
{¶8} Prior to the defendant’s plea, the state advised the court that Bhambra
agreed to plead to an amended Count 4, and at this time, the state moved to amend Count
4, attempted rape, to reflect a charge of attempted felonious assault. The state also
advised the court that in exchange for the defendant’s guilty plea to the amended Count 4
as well as Count 5, as indicted, the state would move to dismiss the remaining counts of
the indictment. Finally, the state provided that no threats or promises were made to
induce the plea.
{¶9} Thereafter, the following Crim.R. 11 colloquy occurred:
Court: Mr. Bhambra, do you understand that plea arrangement?
Defendant: Yes, I do.
Court: * * * So do you understand, Mr. Bhambra, that you have a
right to a grand jury indictment on any charge?
Defendant: Yes, I do.
Court: But if you like this new charge of attempted felonious assault
better than the one they charged you with originally, you’re
welcome to waive a grand jury indictment and let them
substitute this new crime. Understood?
Defendant: Yes.
Court: But it does mean that you would have to waive any complaint
about it. In other words, waive any defect in how you were
given notice and served with a new charge called attempted
felonious assault. Understood?
Defendant: Yes.
{¶10} The trial court further explained the charges, including the amended count,
and the possible sentences for the charges. The court also advised Bhambra of his
constitutional rights, to which Bhambra indicated that he understood. When asked if he
had any questions, Bhambra stated that he did not, and he pleaded guilty to Count 4, as
amended, and Count 5, as indicted. Bhambra further stated that he was not threatened or
promised anything in exchange for his plea other than the dismissal of the remaining
charges on the indictment. The court then accepted Bhambra’s guilty plea, finding the
plea was intelligent, voluntary, and knowing, and it found him guilty of the two charges.
{¶11} Based upon the above, we find Bhambra’s guilty plea was knowingly,
intelligently, and voluntarily entered, and Bhambra knowingly and voluntarily assented,
after full disclosure, to the amended indictment pursuant to his plea agreement.
Bhambra has therefore waived his right to question the validity of his indictment on
appeal.
{¶12} Notwithstanding Bhambra’s waiver, we find that Bhambra is attempting to
employ the procedure of “bootstrapping” through his appeal. “Bootstrapping” is “the
utilization of a subsequent order to indirectly and untimely appeal a prior order that was
never directly appealed.” State v. Williamson, 8th Dist. Cuyahoga No. 102320,
2015-Ohio-5135, ¶ 9. Such attempt is “procedurally anomalous and inconsistent with
the appellate rules that contemplate a direct relationship between the order from which
the appeal is taken and the error assigned as a result of that order” and is disfavored.
Williamson, citing State v. Church, 8th Dist. Cuyahoga No. 68590, 1995 Ohio App.
LEXIS 4838 (Nov. 2, 1995); Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882,
2017-Ohio-1164, ¶ 12 (noting this court’s consistent declination to consider bootstrapped
claims).
{¶13} Here, Bhambra argues in his sole assignment of error that the trial court
erred in permitting an amendment to his indictment. However, Bhambra only appealed
the trial court’s denial of his motion to withdraw his guilty plea, attaching the trial court’s
order of November 2016 denying his motion. The assignment of error is therefore
unrelated to the only order that was timely appealed. Because Bhambra is attempting to
bootstrap a claim that is now time-barred, we are without jurisdiction to consider it.
State v. Cottrell, 8th Dist. Cuyahoga No. 95053, 2010-Ohio-5254, ¶ 20; see App.R. 4.
{¶14} Bhambra’s sole assignment of error is overruled.
{¶15} 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. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
________________________________________
TIM McCORMACK, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR