State v. Taylor

[Cite as State v. Taylor, 2012-Ohio-5065.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97798
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ARTHUR TAYLOR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART
AND REMANDED FOR LIMITED RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-501141, CR-501835 and CR-539334
BEFORE: Jones, J., Blackmon, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: November 1, 2012
FOR APPELLANT
Arthur Taylor, Pro se
Inmate #602-351
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901-8107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Patrick J. Lavelle
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Arthur Taylor appeals his conviction and sentence. We
affirm in part, reverse in part, and remand for limited resentencing.
I. Procedural History and Facts
{¶2} In 2007, Taylor was charged with various drug-related crimes in two cases:
Case No. CR-501141 and Case No. CR-501835. In 2010, Taylor was charged again
with various drug-related crimes in Case No. CR-539334. After negotiations with the
state, in May 2011, Taylor pleaded guilty in Case No. CR-539334 to Count 1 of the
indictment, trafficking in crack cocaine in an amount equal to or exceeding 100 grams,
with a major drug offender specification, juvenile specification, one-year firearm
specification, and several forfeiture specifications; and Count 15 of the indictment,
trafficking in crack cocaine in an amount equal to or exceeding 100 grams, with a major
drug offender specification.
{¶3} In Case No. CR-501835, Taylor pleaded guilty to Count 1 of the indictment,
trafficking in crack cocaine in an amount equal to or exceeding one gram but less than
five grams, with two forfeiture specifications. And in Case No. CR-501141, Taylor
pleaded guilty to Count 1 of the indictment, trafficking in cocaine in an amount equal to
or exceeding 10 grams but less than 100 grams, with three forfeiture specifications.
{¶4} The trial court sentenced Taylor to an 11-year prison term, which consisted of
a mandatory 11 years and a mandatory 10 years on Counts 1 and 15, respectively, in Case
No. CR-539334; a one-year sentence in Case No. CR-501835; and a one-year sentence in
Case No. CR-501141. The sentences on all counts and cases were ordered to be served
concurrently. The trial court found Taylor indigent and waived the statutorily required
fines, fees, and costs.
{¶5} In January 2012, this court granted Taylor leave to file a delayed appeal and
appointed counsel. After filing a brief pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), however, counsel’s request to withdraw was
granted.1 Taylor, pro se, assigns two errors for our review:
I. The appellant was substantially prejudiced and denied his right to
effective assistance of counsel by trial counsel’s failure to properly
investigate and/or adequately prepare a defense and prepare for trial in
violation of the Fifth, Sixth, and Fourteenth Amendments.
II. The appellant asserts that the trial court erred to the prejudice of the
appellant by sentencing him in a lack of compliance with the dictates found
in Ohio Revised Code 2929.18 (b)(1) [sic] to [sic] which deprived the
appellant of both his rights under the Fourteenth Amendment to the United
States Constitution and to Article One Section Sixteen of the Ohio
Constitution in regards to his due course and Due Process guarantees.
II. Law and Analysis
{¶6} In his first assignment of error, Taylor contends that he was denied the
effective assistance of trial counsel because his attorney did not properly evaluate the
“evidence provided in discovery.” According to Taylor, if counsel had properly
1
In Anders, the United States Supreme Court set forth the procedure for court-appointed
attorneys to follow if they have determined that an appeal would be wholly frivolous.
evaluated the discovery,
he would have recognized the favorable evidence that was failed to be
disclosed by the State, namely the weight of the alleged drugs in their
altered form, was so close to 100 grams that it brings in to question whether
the evidence was legally sufficient to convict Appellant of Felony I when
the weight of the unaltered product had to have been materially less than
100 grams.
{¶7} According to Taylor, the “chain of custody was broken when the C.I. did not
deliver the drugs in question but altered them into another form, by cooking them with
additional inert ingredients * * * which added substantial weight to the alleged cocaine.”
{¶8} Taylor additionally claims that the “State failed to disclose that the
video/audio tape of the controlled buy from the confidential informant clearly shows that
allegedly Appellant sold powder cocaine.” Taylor states that the evidence was provided
to him after he “filed” with the Ohio Disciplinary Counsel to “get his paper and records.”
{¶9} Thus, Taylor seemingly contends that his counsel was ineffective because he
failed to: (1) properly evaluate, and inform him of, the evidence; (2) challenge a Brady
violation;2 and (3) challenge a chain of custody violation. We disagree.
{¶10} A guilty plea constitutes a complete admission of guilt. Crim.R. 11(B)(1).
“‘By entering a plea of guilty, the accused is not simply stating that he did the discrete
acts described in the indictment; he is admitting guilt of a substantive crime.’” State v.
Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991), quoting United
States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). A guilty plea
2
A Brady violation refers to the United States Supreme Court’s holding in Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the state has a duty in all criminal cases to
disclose all material exculpatory evidence, and the failure to disclose such evidence results in a due
process violation, thereby entitling the defendant to a new trial.
renders irrelevant those constitutional violations not logically inconsistent with the valid
establishment of factual guilt. Barnett at id., citing Menna v. New York, 423 U.S. 61, 96
S.Ct. 241, 46 L.Ed.2d 195 (1975).
{¶11} Thus, a guilty plea waives the right to allege ineffective assistance of
counsel, except to the extent the errors caused the plea to be less than knowing and
voluntary. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of
the syllabus. For example, a counsel’s failure to file a motion to suppress has been
determined to be waived by a guilty plea. State v. Kitzler, 3d Dist. No. 16-02-06,
2002-Ohio-5253, ¶ 13. Only 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. Hill v. Lockhart, 474 U.S. 52, 52-53, 106 S.Ct.
366, 88 L.Ed.2d 203 (1985); State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992).
An appellate court reviews the record to determine if the plea was knowing, intelligent,
and voluntary. State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, 774
N.E.2d 1228, ¶ 18 (12th Dist.).
{¶12} Upon review, we find that Crim.R. 11, which governs the taking of pleas to
ensure that they are made knowingly and voluntarily, was complied with. We are
therefore not persuaded by Taylor’s contention now on appeal that “[a]fter one year in
county jail, [he] felt pressured to take a plea, only believing he would get minimum
sentences totalling [sic] less than six years.” In compliance with Crim.R. 11, prior to the
trial court accepting Taylor’s plea, the maximum penalties were explained to him,
including the fact that the penalties for Counts 1 and 15 in Case No. CR-539334 were a
mandatory 11 years and 10 years, respectively.
{¶13} Although Taylor waived his arguments by his plea, we note that his
contention that he never saw the video and heard the audio recordings of the drug sales
until February 2012 is unpersuasive. Further, the record demonstrates that Taylor’s
attorney was in possession of them; therefore there was no Brady violation. If Taylor
truly did not have the opportunity to see and hear them, the plea hearing would have been
the time to voice that concern.
{¶14} Likewise, Taylor’s contention that his attorney did not properly evaluate the
evidence is belied by the record. Defense counsel stated at the plea hearing that he had
had “numerous meetings [with the assistant prosecuting attorney and detectives] going
over videos in this case.” Counsel also indicated that the case had been pretried a
“number” of times and he had had on and off the record discussions about Taylor with the
court.
{¶15} The record demonstrates that counsel zealously advocated for Taylor. In
total, 29 crimes, with numerous specifications, were charged against Taylor in these three
cases. As a result of his attorney’s negotiations with the state, Taylor pleaded guilty to
four of the 29 crimes. Further, his attorney advocated for, and Taylor received, the
minimum sentence of 11 years.
{¶16} In light of the above, Taylor’s first assignment of error is overruled.
{¶17} In his second assigned error, Taylor contends that his sentence is void and
the case must be remanded for resentencing because the proper procedure for waiving the
fines, fees, and costs was not followed.
{¶18} Under R.C. 2929.18(B)(1),
If an offender alleges in an affidavit filed with the court prior to sentencing
that the offender is indigent and unable to pay the mandatory fine and if the
court determines the offender is an indigent person and is unable to pay the
mandatory fine described in this division, the court shall not impose the
mandatory fine upon the offender.
{¶19} The Ohio Supreme Court has held that:
R.C. 2929.18(B)(1) clearly requires that a sentencing court shall impose a
mandatory fine upon an offender unless (1) the offender alleges in an
affidavit filed with the court prior to sentencing that the offender is indigent
and unable to pay the mandatory fine and (2) the court determines that the
offender is in fact an indigent person and is unable to pay the mandatory
fine.
State v. Gipson, 80 Ohio St.3d 626, 631, 1998-Ohio-659, 687 N.E.2d 750.
{¶20} Taylor relies on the First Appellate District’s decision in State v. Fields, 183
Ohio App.3d 647, 2009-Ohio-4187, 918 N.E.2d 204 (1st Dist.). In Fields, the defendant
pleaded guilty to cocaine possession and having a weapon under a disability and was
sentenced to a five-year prison term. The First District held that the sentence for cocaine
possession was void because the trial court did not include the statutorily required fine in
the sentence. In so finding, the appellate court noted that the defendant had not filed an
affidavit of indigency and the trial court had not made a finding concerning the
defendant’s indigency or ability to pay. The appellate court therefore vacated the
sentence and remanded the case to the trial court for a new sentencing hearing.
{¶21} The state agrees with Taylor that the trial court did not follow the proper
procedure in waiving the fines, fees, and costs, but contends that the appropriate remedy
is to remand the case solely for the purpose of imposing the fines, fees, and costs. In
support of its contention, the state cites this court’s decision in State v. Moore, 8th Dist.
Nos. 96111 and 96112, 2011-Ohio-4246.
{¶22} In Moore, the defendant was convicted and sentenced in two cases, each of
which contained crimes for which fines were mandatory. The sentencing entry for the
first case stated “‘affidavit of indigency being filed; fine and costs are waived including
mandatory fine.’” Id. at ¶ 2. The sentencing entry for the second case stated “‘based
on defendant’s affidavit of indigency being filed, fine and costs are waived including
mandatory fines.’” Id. at ¶ 3.
{¶23} The defendant filed a motion to “vacate and void sentence” in both cases.
He contended that his sentence in both cases was void because the trial court had not
imposed the mandatory fine and his attorney never filed an affidavit of indigency that
would have allowed waiver of the fine. The trial court denied his motions.
{¶24} On appeal, this court, following Fields, supra, found that because no
affidavit of indigency was ever filed in either case, the trial court was required to impose
the mandatory fines. This court departed from Fields, however, on vacating the entire
sentence and remanding for a new sentencing hearing. Instead, relying on the Ohio
Supreme Court’s pronouncement in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, that when an appellate court finds that a sentence imposed by a trial
court is void in part, only the portion that is void may be vacated or otherwise amended,
this court vacated the portions of the defendant’s sentences waiving the mandatory fees
and remanded for resentencing solely on that issue.
{¶25} Here, the trial court did make a finding that Taylor was indigent, but no
affidavit of indigency was ever filed prior to sentencing in any of the three cases. As
this court stated in Moore, “[i]n light of Gipson, it is clear that an affidavit of indigency
must be filed prior to the filing of the trial court’s journal entry of sentencing.” Moore at
¶ 15.
{¶26} Thus, in light of Gipson and Moore, Taylor’s second assignment of error is
sustained. In accordance with Moore and Fischer, the portion of Taylor’s sentence
waiving the mandatory fine is void, and the case is remanded for resentencing as to that
issue only.
{¶27} Judgment affirmed in part and reversed in part; case remanded for
resentencing as to fines, fees, and costs only.
It is ordered that appellant recover from appellee his 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, A.J., and
SEAN C. GALLAGHER, J., CONCUR