State v. Howard ( 2018 )

[Cite as State v. Howard, 2018-Ohio-5160.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27941
:
v. : Trial Court Case No. 2017-CRB-6159
:
JONATHAN HOWARD : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 21st day of December, 2018.
...........
TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JENNIFER E. MARIETTA, Atty. Reg. No. 0089642, 74 N. Orange Street, Suite 105, Xenia
Ohio 45385
Attorney for Defendant-Appellant
.............
-2-
FROELICH, J.
{¶ 1} Jonathan Howard pled guilty in Dayton Municipal Court to violating a
protection order, in violation of R.C. 2919.27(A)(1), a first-degree misdemeanor. Howard
appeals from his conviction, claiming that (1) his right to due process was violated when
the trial court denied him a jury trial, (2) his plea was not made knowingly, intelligently,
and voluntarily, and (3) he received ineffective assistance of counsel. For the following
reasons, the trial court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} On August 29, 2017, Howard’s wife obtained an ex parte protection order
against Howard from the Montgomery County Court of Common Pleas, Domestic
Relations Division. Howard was served with that order on September 7, 2017. Howard
subsequently left two voicemails on his wife’s work phone. On September 22, 2017,
Howard was charged with one count of violating the protection order. He pled not guilty
to the charge.
{¶ 3} The case was continued several times at Howard’s request, and Howard filed
various pretrial motions, including several motions for continuances, which were generally
granted, and a motion for a change of venue, which was denied. In October 2017,
Howard’s counsel sought leave to withdraw; the motion was granted on November 2,
2017, and new counsel was appointed the next day. Ultimately, the trial court set a trial
date of January 23, 2018. Howard’s counsel sought to continue the January 23 trial date
due to a scheduling conflict, but that motion was denied. Howard was out of custody
throughout the proceedings.
{¶ 4} At the hearing on January 23, 2018, defense counsel notified the court that
-3-
the State had offered, and Howard would be accepting, a plea offer to violating the
protection order in this case. In exchange for a guilty plea, the State would dismiss all
charges in another case (17-CRB-7891), which alleged five additional violations of the
protection order, and the State would recommended five years of non-reporting probation;
a term of that probation would be that Howard would have no contact with his wife.
{¶ 5} When the court addressed Howard about the change of his plea, Howard
initially expressed that he had asked for a jury trial and that he did not feel that he had a
“good * * * chance” with the judge. Howard stated that he was “here for calling her [his
wife] because she hacked my emails.” When asked again how he wished to plead,
Howard stated, “I ain’t go[t] no choice. And I would like to appeal it. * * * The way you all
around me and got me I guess I’m going to go with guilty. * * * I mean, not without
reasonable of doubt [sic].” The trial court informed Howard that a plea of guilty means
that Howard would be saying that he committed the offense. Howard responded, “That’s
what I’m saying. I didn’t do it * * *.” At this juncture, the trial court said, “Let’s have a
trial” and asked Howard to have a seat in the back of the courtroom while the court
addressed other matters.
{¶ 6} Sometime later that day, the trial court re-called Howard’s case. Defense
counsel told the court that she had spoken with her client and that he wanted to accept
the State’s plea offer. Howard confirmed that he wished to plead guilty to violating the
protection order. Defense counsel then made the following record:
THE DEFENSE: And your honor, can I please just make sure the record
is clear in regard to Mister Howard. I informed him that he did need to file
a motion ten days prior to the trial for a jury trial. I also explained to him
-4-
the deadline of receiving discovery in this case, Your Honor. All that he
started to, when did you start sending me the discovery? It was after the
deadline, Your Honor, so, I could not use the discovery in the case.
THE DEFENDANT: I sent it –
THE DEFENSE: In addition, in addition in terms of the, of the jury trial he
told me –
THE DEFENDANT: When I sent it to Mister King [prior counsel] --
THE DEFENSE: Saturday. Mister King is no longer your attorney.
THE DEFENDANT: But I’m saying, when I sent it to him he told me that’s
now how it goes.
THE DEFENSE: Okay. In addition, Friday we learned that, last Friday he
learned that his continuance had been denied. He did not explain to me or
inform me that he wanted a jury trial until Saturday. So, I told him I would
inform the court about his concern, his issue. I did and I informed him that
he had passed the deadline for the jury trial, the filing of the jury trial.
{¶ 7} The court then turned to the prosecutor. The prosecutor told the trial court
that he wanted to ensure that Howard understood that a plea was voluntary. The State
indicated that it was ready to proceed to trial that day and that Howard was under no
obligation to enter a plea. When asked if Howard understood that, Howard responded
that he was “ready to go home.”1 The court asked Howard again if he understood that
he was pleading voluntarily and was not being pressured to enter a plea; Howard
responded affirmatively. Howard held out his hand to sign a plea form; the court told
1 The record reflects that Howard resided in Akron, Ohio.
-5-
Howard that he had already signed it.
{¶ 8} The prosecutor read a statement of the facts underlying the offense.
Howard indicated that he understood the factual basis for the plea and stated that “I just
want to go home.” The court informed Howard of the maximum penalty for the offense
and of the constitutional rights he was waiving by entering a plea. Howard expressed
his understanding and acknowledged that he was giving up those rights by entering a
plea. Howard denied that any threats or promises had been made to induce his guilty
plea. The court accepted Howard’s plea after it found that Howard had entered his plea
knowingly, intelligently, and voluntarily.
{¶ 9} After hearing statements from Howard’s wife, defense counsel, the
prosecutor, and Howard, the trial court sentenced Howard to 180 days in jail, all of which
were suspended. The court placed Howard on up to five years of community control,
with conditions that he have no contact with his wife and comply with the protection order.
The court also imposed a $200 fine, which was suspended, and court costs. The trial
court reviewed the terms of the protection order to ensure Howard’s understanding of
those requirements.
{¶ 10} On March 5, 2018, more than 30 days after Howard’s conviction, Howard
filed a notice of appeal from his conviction. We have permitted Howard to pursue a
delayed appeal. Howard now raises three assignments of error.
II. Denial of Due Process
{¶ 11} Howard’s first assignment of error states: “Defendant was denied due
process of law when the Trial Court refused to allow him a Jury Trial when Defendant
requested one.” Howard asserts that he timely informed his trial counsel that he wanted
-6-
a jury trial.
{¶ 12} Howard has waived this claim by pleading guilty to the charged offense. A
plea of guilty is a complete admission of guilt. E.g., State v. Faulkner, 2d Dist.
Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler, 2d Dist.
Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1). Consequently, a guilty
plea generally waives all appealable errors that may have occurred in the trial court,
unless such errors precluded the defendant from knowingly, intelligently, and voluntarily
entering his or her guilty plea. See, e.g., State v. Kelley, 57 Ohio St. 3d 127, 566 N.E.2d
658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. By entering a guilty plea,
Howard waived his right to a trial, by jury or otherwise.
{¶ 13} Regardless, we find nothing in the record to support a claim that the trial
court denied Howard’s right to a jury trial. Under the Local Rules of the Dayton Municipal
Court, a defendant must file a written demand for a jury trial, pursuant to Crim.R. 23. See
Loc.R. 4.1(C) of the Dayton Municipal Court. Crim.R. 23 states:
* * * In petty offense cases, where there is a right of jury trial, the defendant
shall be tried by the court unless he demands a jury trial. Such demand
must be in writing and filed with the clerk of court not less than ten days
prior to the date set for trial, or on or before the third day following receipt
of notice of the date set for trial, whichever is later. Failure to demand a
jury trial as provided in this subdivision is a complete waiver of the right
thereto.
{¶ 14} At the plea hearing, Howard told the court that he wanted a jury trial, and
Howard’s attorney told the court that Howard had originally told her that he wanted a jury
-7-
trial, but changed his mind and decided on a bench trial. Counsel indicated that Howard
did not make her aware of his renewed desire for a jury trial until the Saturday before the
scheduled trial date (plea hearing date), which was after the deadline for requesting a jury
trial had passed. No written demand for a jury was filed. Accordingly, even if Howard
had not entered a guilty plea, Howard waived his right to a jury trial by failing to timely
request one in writing pursuant to Crim.R. 23. The trial court did not err in failing to
schedule a jury trial.
{¶ 15} Howard’s first assignment of error is overruled.
III. Plea Hearing
{¶ 16} In his second assignment of error, Howard claims that he did not knowingly,
intelligently, and voluntarily enter his guilty plea. Howard asserts that the trial court
should have rejected his proffered guilty plea and held a trial.
{¶ 17} Crim.R. 11 sets forth distinct procedures for the trial court to follow in
accepting a plea, with the procedures varying based on whether the offense involved is
a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a
felony. State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 11;
State v. Hall, 2d Dist. Greene No. 2011 CA 32, 2012-Ohio-2539, ¶ 18. A “serious
offense” means “any felony, and any misdemeanor for which the penalty prescribed by
law includes confinement for more than six months.” Crim.R. 2(C). A “petty offense” is
“a misdemeanor other than a serious offense.” Crim.R. 2(D).
{¶ 18} Howard pled guilty to violating a protection order, in violation of R.C.
2919.27(A)(1), a first-degree misdemeanor. The maximum penalty for a first-degree
misdemeanor is 180 days. Accordingly, Howard’s offense constituted a “petty offense”
-8-
under Crim.R. 11.
{¶ 19} For a “petty offense” misdemeanor, the trial court was required only to
inform Howard of the effect of his guilty plea. Jones at ¶ 14; Crim.R. 11(E). The
supreme court has held that, to satisfy the requirement of informing a defendant of “the
effect of the plea” before accepting a guilty plea to a petty misdemeanor, the court is
required to inform the defendant that the plea is a complete admission of guilt. Jones at
¶ 25. Unlike the provisions applicable to more serious offenses, Crim. R. 11(E) does not
require the trial court to personally address the defendant and determine that the
defendant understands the nature of the charge and is entering the plea voluntarily.
State v. Wright, 2d Dist. Montgomery 26471, 2015-Ohio-3919, ¶ 17, citing State v.
Hopkins, 2d Dist. Greene No. 2002-CA-108, 2003-Ohio-5963, ¶ 16.
{¶ 20} Furthermore, when non-constitutional rights are at issue, a defendant who
challenges his or her guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that
the plea would otherwise not have been entered. Id. at ¶ 15.
{¶ 21} At the beginning of the plea hearing, Howard’s counsel informed the court
that Howard was going to accept a plea offer from the State. In the court’s subsequent
questioning of Howard about how he wanted to plead, Howard stated that he was “going
to go with guilty,” but he expressed that he felt “railroad[ed],” that he could not get a fair
trial, that he had wanted a jury trial, that he had called his wife because she had hacked
his emails, and that he “didn’t do it.” In response to these statements, the trial court,
appropriately, indicated that the matter would proceed to trial.
-9-
{¶ 22} When the matter resumed sometime later, defense counsel had spoken
with Howard further about the case, and counsel again informed the court that Howard
wanted to accept the State’s plea offer. During the court’s subsequent exchange with
Howard, Howard confirmed that he wished to plead guilty to violating the protection order.
Howard further acknowledged his understanding of the maximum penalty that he faced
and the constitutional rights that he was waiving, and he indicated that he had not been
threatened or promised anything to induce his plea. Howard indicated his intent to the
sign the plea form, and the court informed him that it had already been signed by him.
{¶ 23} Howard notes on appeal that he repeatedly told the court during the plea
hearing that he was ready to go home and wanted to go home. While Howard’s desire
to return home may have been a motivating factor in his decision to enter a guilty plea in
this case, it does not require a conclusion that Howard’s plea was, consequently,
involuntary. After discussion with his counsel and the court, Howard was aware of the
possible maximum penalties he faced, of his rights, of the factual circumstances
underlying the charge, of the strength of his defense to the charge, and that his guilty plea
constituted a complete admission of guilt. Howard denied that his plea was the result of
threats or promises, and the State indicated its willingness to proceed to trial.
{¶ 24} The trial court complied with Crim.R. 11, and we find no basis to conclude
that Howard’s plea was not knowingly, intelligently, and voluntarily made. Howard’s
second assignment of error is overruled.
IV. Ineffective Assistance of Counsel
{¶ 25} In his third assignment of error, Howard claims that he received ineffective
assistance of counsel.
-10-
{¶ 26} A guilty plea waives the right to claim ineffective assistance of counsel,
except to the extent that the errors caused the plea to be less than knowing, intelligent,
and voluntary. E.g., State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 81 (2d Dist.). If
a defendant pleads guilty on the advice of counsel, he must demonstrate that the advice
was not “within the range of competence demanded of attorneys in criminal cases.” Id.,
quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973).
Furthermore, “[o]nly if there is a reasonable probability that, but for counsel’s errors, the
defendant would not have pleaded guilty but would have insisted on going to trial will the
judgment be reversed.” State v. Huddleson, 2d Dist. Montgomery No. 20653, 2005-
Ohio-4029, ¶ 9, citing Hill v. Lockhart, 474 U.S. 52, 52-53, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985). (Other citations omitted.)
{¶ 27} Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Strickland v. Washington, 466 U.S. 668,
688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant is entitled to “reasonable
competence” from his or her attorney, not “perfect advocacy.” See Maryland v. Kulbicki,
136 S. Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d
1 (2003) (per curiam). Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel’s perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel. State v. Cook, 65 Ohio St. 3d 516, 524-525, 605 N.E.2d 70 (1992); State v.
Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).
{¶ 28} “A claim of ineffective assistance of counsel cannot be asserted on direct
appeal if it relies on matters outside the record.” State v. Harris, 2d Dist. Montgomery
-11-
No. 27179, 2017-Ohio-9052, ¶ 19.
{¶ 29} Howard claims that his second attorney (i.e., his attorney at the time of the
plea) acted deficiently by failing to obtain discovery from prior counsel, by failing to timely
request a jury trial, and by presenting Howard in a negative light at the plea hearing.
Howard asserts that his attorney’s conduct precluded him from making a knowing,
intelligent and voluntary plea. We will assume, for sake of argument, that Howard’s guilty
plea did not result in a waiver of his ineffective assistance of counsel claim.
{¶ 30} First, we find no basis to conclude that counsel acted deficiently in
representing Howard at the January 23, 2018 hearing. Howard claims that counsel
presented him in a “negative light” by telling him to be quiet and by informing the trial court
that Howard did not timely informed his attorney that he wanted a jury trial and did not
timely provide discovery to his attorney. Upon review of the transcript, counsel’s
admonishments to Howard to be quiet were not inappropriate; counsel attempted to quiet
Howard when his interjections were not pertinent to the discussion that was occurring or
were unhelpful to Howard’s case. In addition, counsel’s statements to the court
regarding the untimeliness of Howard’s communication of his desire for a jury trial and of
his untimely provision of discovery materials were in response to Howard’s prior
statement at the hearing that he had wanted a jury trial. Counsel explained why a jury a
trial had not been requested and that certain evidentiary materials could not be used a
trial.
{¶ 31} Second, the record does not support Howard’s claim that his counsel was
ineffective for failing to request a jury trial. Counsel’s statements at the plea hearing
reflect that Howard “did ask for a jury trial, then he changed and said he wanted a trial in
-12-
front of [the court].” Counsel later stated that she was not told by Howard that he wanted
a jury trial until a few days before the plea hearing (i.e., the scheduled trial date), after the
deadline to request a jury trial had passed. Counsel further stated that she had
previously informed Howard of the deadline for requesting a jury trial. Because Howard
did not tell his attorney of his renewed interest in a jury trial prior to the deadline for
requesting one, counsel did not act deficiently in failing to request one in a timely manner.
Additionally, although Howard indicated at the plea hearing that he had wanted a jury trial,
the record does not indicate whether Howard would have rejected the State’s plea offer
had a jury trial been requested in a timely fashion.
{¶ 32} Finally, Howard claims that his attorney failed to obtain his discovery
materials from his prior attorney. During the first portion of the plea hearing, Howard’s
counsel stated that she informed Howard that the discovery deadline was January 2,
2018, and that Howard “started sending me discovery after that date and he is well aware
of this.” When the hearing resumed, counsel repeated that Howard had sent her
discovery after the deadline and that she “could not use the discovery in the case.”
Howard interjected that he had “sent it” (presumably discovery materials) to his original
trial attorney; Howard’s original counsel had withdrawn on November 2, 2017. It is not
clear when Howard provided those materials to his prior attorney or that Howard’s counsel
at the plea hearing knew that any materials had been sent to prior counsel.
{¶ 33} The record does not reflect what discovery materials Howard had or their
relevance to the charges against him in this case or in Case No. 17-CRB-7891, which
was dismissed as part of the plea. Moreover, the record does not indicate whether
Howard’s (second) counsel received discovery materials from Howard’s original counsel.
-13-
In short, based on the record, Howard has not demonstrated that his (second) attorney
acted deficiently with respect to discovery, or that the outcome of his case would have
been different.
{¶ 34} Howard’s third assignment of error is overruled.
V. Conclusion
{¶ 35} The trial court’s judgment will be affirmed.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Troy B. Daniels
Jennifer E. Marietta
Hon. Carl S. Henderson