State v. Scott , 2014 Ohio 456 ( 2014 )

[Cite as State v. Scott, 2014-Ohio-456.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 13-CA-45
ANTHONY A. SCOTT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 2012CR00244
and 2012CR00280
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 7, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT CHARLES TYLER, SR.
Licking County Prosecutor 1799 Akron Peninsula Rd.
Suite 125
By: JUSTIN T. RADIC Akron, Ohio 44313
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 13-CA-45 2
Hoffman, P.J.
{¶1} Defendant-appellant Anthony Scott appeals his convictions entered by the
Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On May 4, 2012, Appellant was indicted for possession of cocaine, in
violation of R.C. 2925.11(B), a felony of the first degree; attempted murder, in violation
of R.C. 2923.02(A) and 2903.02(A) and/or (B), a felony of the first degree; felonious
assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a felony of the first degree; one
count of trafficking in cocaine with a juvenile specification, in violation of R.C.
2925.03(A)(1)(C)(4)(b), a felony of the fourth degree; and one count of possession of
drug paraphernalia, in violation of R.C. 2925.14(C)(1), a first degree misdemeanor.
Additionally, Appellant was indicted on a seven year firearm specification attached to
Counts II and III, in violation of R.C. 2929.14(D) and 2941.142, a one year firearm
specification attached to Counts I and IV, in violation of R.C. 2929.14(D) and 2941.141,
and a forfeiture specification attached to Counts I-IV, in violation of R.C. 2941.1417 and
2981.02.
{¶3} On May 18, 2012, Appellant was indicted in a separate case number for
having weapons under disability, in violation of R.C. 2923.13(A)(3), a felony of the third
degree. The indictments were then consolidated.
{¶4} On April 23, 2013, Appellant filed a motion to dismiss for violation of his
right to a speedy trial. Additionally, on April 30, 2013, Appellant filed a motion to
suppress evidence.
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Licking County, Case No. 13-CA-45 3
{¶5} On April 30, 2013, Appellant appeared before the trial court for a change
of plea hearing. At the change of plea hearing, in exchange for Appellant’s plea, the
State agreed to dismiss the firearm specifications associated with Counts I through IV
and make a jointly recommended sentence of twelve years. Appellant agreed to
withdraw his previously entered not guilty pleas, to enter Alford pleas to the remaining
counts, and withdraw his pending motion to dismiss and to suppress. Tr. at p. 5-81.
{¶6} During the plea colloquy, the trial court asked Appellant if he had received
the two Alford guilty plea forms presented to the trial court, if he had read them,
discussed them with his counsel, if he understood them, and if he had, in fact, signed
them. Appellant indicated an answer of yes to each question. Appellant told the court
he did not have any questions, he acknowledged no one had threatened him or
promised him anything in exchange for his pleas. The trial court informed Appellant of
the maximum possible sentence it could impose, his ineligibility for judicial release, the
possibility of post-release control, and the possibility of reincarceration should he violate
the terms of post-release control.
{¶7} Following the colloquy, the trial court accepted Appellant’s Alford pleas,
finding them to have been freely, voluntarily and understandingly made. The trial court
proceeded to sentencing.
{¶8} The trial court sentenced Appellant to a four year prison term on Count I, a
five year prison term on Count II, a one year prison term on Count IV, and a thirty day
jail sentence on Count V. The court merged Counts II and III for sentencing. The trial
court ordered all counts to run consecutively. Appellant was granted 370 days of credit
towards his sentence. The court also imposed a fine, suspended Appellant’s driver’s
Licking County, Case No. 13-CA-45 4
license for three years, and imposed a mandatory five year period of post release
control.
{¶9} Appellant now appeals the sentencing entry entered by the trial court,
assigning as error:
{¶10} “I. WHETHER THE DEFENDANT’S SPEEDY TRIAL RIGHTS WERE
VIOLATED?
{¶11} “II. WHETHER THE DEFENDANT CONVICTIONS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE?
{¶12} “III. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED ON
EACH OF THE CHARGES?
I, II, & III
{¶13} We shall address all three of Appellant’s assignments of error together as
we find their resolution is controlled by the same legal principle.
{¶14} At the outset we must resolve what plea Appellant entered. Though not
specifically identified as such in his brief to this Court, Appellant maintained during oral
argument he entered Alford “no contest” pleas. While this Court is quite familiar with an
Alford guilty plea, in the 70 plus collective years of this panel’s experience on the bench,
we have never before heard of an Alford “no contest” plea.
{¶15} Appellant maintains the two plea forms he executed demonstrate he
entered an Alford no contest Plea. Upon our review of the original forms, we find it
plausible Appellant intended to do so, although any intent is difficult to determine based
upon the numerous interlineations of printed plea types; circlings of plea types; apparent
attempts to retract some circlings; handwritten arrow symbols; handwritten “Alford
Licking County, Case No. 13-CA-45 5
Guilty” and “Guilty”; and two additional separate sets of Appellant’s handwritten initials
near the area where all of the above changes were made to each of the two plea forms.
The motion is further clarified/muddled by the use of two different colors of ink. While
we believe the plea forms arguably support Appellant’s claim he intended to enter an
Alford no contest plea, we have no uncertainty as to what plea he actually entered
during the change of plea hearing.
{¶16} We have reviewed the transcript and find the prosecutor specifically states
the defendant will be entering an Alford guilty plea on three separate times (Tr. at p. 6).
Subsequently, while engaging Appellant in a colloquy regarding the rights he was
waiving, the trial court specifically identified the plea as an Alford guilty plea on three
separate occasions. (Tr. at p. 10, 12, and 19). At no time during the sentencing
hearing did Appellant or his counsel ever correct the prosecutor or trial court, or assert a
misunderstanding as to the type of plea being entered.
{¶17} And of even greater significance is the fact the trial court’s Judgment Entry
unequivocally states it accepted Appellant’s “Alford plea of Guilty.”
{¶18} Based on the foregoing, this court finds Appellant entered Alford guilty
pleas to the charges.
{¶19} “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” State v. Baker
(7th District), 2013-Ohio-862.2 This Court specifically held in State v. Tucker (5th
District), 2008-Ohio-4986, the entering of an Alford plea has “the effect of waiving [a
2
Appellant has not assigned as error any irregularity in the trial court’s acceptance of
his plea.
Licking County, Case No. 13-CA-45 6
defendant’s] right to appeal from the denial of his speedy trial motion.” Id., at ¶10.3
Because a guilty plea wives a defendant’s right to challenge the sufficiency or weight of
the evidence and an Alford plea has the same legal effect as a guilty plea, we find the
Appellant has also waived those claims herein. See, State v. McCann (4th District)
2011-Ohio-3339, at 21: Kline, J. concurring.
{¶20} Appellant’s three assignments of error are overruled.
{¶21} The judgment of the trial court is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
3
As noted earlier, it also appears Appellant agreed to withdraw the motion to dismiss as
part of the plea agreement. It is clear he failed to object or otherwise challenge the
prosecutor’s representation he had so agreed.
Licking County, Case No. 13-CA-45 7