State v. Starr

[Cite as State v. Starr, 2016-Ohio-1004.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 15-CA-36
MARK M. STARR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2014CR0240D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 11, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA ANGST CASSANDRA MAYER
Assistant Prosecuting Attorney 452 Park Ave. West
38 South Park Street Mansfield, OH 44906
Mansfield, OH 44902
Richland County, Case No. 15-CA-36 2
Gwin, J.
{¶1} Appellant Mark M. Starr [“Starr”] appeals his convictions and sentences on
one count of Trafficking in Heroin, near a juvenile, a felony of the first degree and one count of
Possession of Heroin, near a juvenile, a felony of the second degree.
Facts and Procedural History
{¶2} On June 6, 2014, Starr was indicted by the Richland County Grand Jury on
one count of trafficking heroin in the vicinity of a school zone and/or juvenile with two (2)
forfeiture specifications, in violation of R. C. 2925.03(A)(2) & (C)(6)(c), a felony of the first
degree and one count of possession of heroin in the vicinity of school zone and/or juvenile
with two (2) forfeiture specifications, in violation of R. C. 2925.11(A) &(C)(6)(d), a felony of
the second degree.
{¶3} A Motion to Suppress and/or Limit the Use of Evidence was filed on October
21, 2014 and an evidentiary hearing on the motion occurred on November 12, 2014. The
trial court denied Starr’s motion to suppress.
{¶4} On February 24, 2014, a change of plea hearing occurred two days prior to the
scheduled start of Starr’s jury trial.
{¶5} The trial judge provided Starr time to privately review the written explanation of
rights with his attorney. After the meeting, Starr’s attorney requested to approach the bench
and stated, "he would like to enter no contest pleas and submit to a finding of guilty by the
Court just in case he decides at some point to challenge his suppression hearing.” The judge
responded, "...he's going to be pleading, I am ordering a presentence investigation and so I
need guilty pleas, otherwise he can have his trial tomorrow if he wants.”
Richland County, Case No. 15-CA-36 3
{¶6} After another private conversation between Starr and his counsel, his attorney
informed the trial court that, "he's ok with that then.” After subsequent questions by the judge
about his understanding and if he had any questions of his counsel or of the trial court, Starr
responded, "I'm just ready to get this over with.” (TR 12: 14-15). Starr plead guilty and a
presentence investigation was ordered.
{¶7} Starr was sentenced on or about March 16, 2015, to a term of mandatory
incarceration of seven years.
Assignment of Error
{¶8} Starr raises one assignment of error,
{¶9} “I. THE TRIAL COURT ERRED AND USED ITS DISCRETION WHEN IT
REFUSED TO ACCEPT DEFENDANT'S NO CONTEST PLEA TO THE INDICTMENT.”
Law and Analysis
{¶10} In his sole assignment of error, Starr maintains that his plea was not knowingly,
voluntarily or intelligently entered as the trial court refused to accept his no contest plea to
allow him to appeal the denial of pre-trial motions.
In State v. Lovelace, this Court observed,
This Court has indeed recognized that a defendant, by entering a guilty
plea, waives the right to raise on appeal the propriety of a trial court’s
suppression ruling. See State v. Bennett, 5th Dist. Stark No.2013CA00097,
2013–Ohio–4453, ¶ 10, citing State v. Elliott, 86 Ohio App. 3d 792, 621 N.E.2d
1272 (12th Dist.1993). Also, in State v. Pepper, 5th Dist. Ashland No. 13 COA
019, 2014–Ohio–364, this Court emphasized: “In the review of an attempt to
withdraw * * * [a] negotiated plea after the fact, we must * * * bear in mind that
Richland County, Case No. 15-CA-36 4
the trial court is under a duty pursuant to Crim.R 11 to ensure that the plea
comports with constitutional standards.” Id. at ¶ 40, citing State v. Stowers, 8th
Dist. Cuyahoga No. 48572, 1985 WL 7495 (additional citations omitted).
{¶11} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. A trial court has the discretion to accept or reject a no contest plea. State v.
Jenkins, 15 Ohio St. 3d 164, 473 N.E.2d 264(1984). “The plea of no contest is not an
admission of defendant's guilt, but is an admission of the truth of the facts alleged in the
indictment, information, or complaint, and the plea or admission shall not be used against the
defendant in any subsequent civil or criminal proceeding.” Crim.R. 11(B)(2). A no contest
plea does not preclude defendant from asserting, on appeal, that the trial court erred in ruling
on a pretrial motion. Crim.R. 12(H).
{¶12} Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St. 2d at 475, 423 N.E.2d at 117,
citing State v. Stewart, 51 Ohio St. 2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103
Ohio St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the
following test for determining substantial compliance with Crim.R. 11:
Though failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly, failure to comply with non-constitutional
rights will not invalidate a plea unless the defendant thereby suffered
prejudice.[State v. Nero (1990), 56 Ohio St. 3d 106,] 108, 564 N.E.2d 474.
The test for prejudice is ‘whether the plea would have otherwise been
Richland County, Case No. 15-CA-36 5
made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine
whether he subjectively understood [the effect of his plea].” See, State v.
Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509 at ¶ 19-20.
{¶13} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark, 119 Ohio St. 3d 239, 893 N.E.2d 462, 2008-Ohio-
3748 at ¶ 32; State v. Aleshire, 5th Dist. Licking No. 2007-CA-1, 2008-Ohio-5688, ¶10.
The trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to
the waiver of constitutional rights. State v. Clark, 119 Ohio St. 3d at 244, 893 N.E.2d at
499, 2008-Ohio-3748, ¶ 31.
{¶14} Starr does not argue or allege that the trial court judge failed to satisfy his duties
under Crim. R. 11 in taking the plea; rather Starr asserts that under the totality of the
circumstances, the trial court’s summary denial of his no contest plea caused his guilty plea
to be involuntary.
{¶15} We are not faced with a situation in which the trial court has a blanket policy of
rejecting no contest pleas. See, State v. Fitzgerald, 188 Ohio App. 3d 701, 2010-Ohio-3721,
936 N.E.2d 585(8th Dist. 2010); State v. Carter, 124 Ohio App. 3d 423, 427-428, 706 N.E.2d
409(2nd Dist. 1997). We further note that Crim.R. 11(C)(2) does not require a trial court to
list its reasons for rejecting a no-contest plea. We also note that the record does not
demonstrate that the state agreed to a no-contest plea.
Richland County, Case No. 15-CA-36 6
{¶16} The record supports a finding that Starr was aware of the distinction between
a no contest plea and a guilty plea, was represented by competent counsel, and knowingly
and voluntarily chose to plead guilty.
{¶17} A trial court has discretion to accept or reject a no contest plea. State v.
Jenkins, 15 Ohio St. 3d 164, 222, 473 N.E.2d 264(1984). In fact, a defendant has no
constitutional right to have his guilty plea accepted. See North Carolina v. Alford, 400 U.S.
25, 91 S. Ct. 160, 27 L.Ed.2d 162(1970); Jenkins, 15 Ohio St. 3d at 222-223, 473 N.E.2d 264.
{¶18} In State v. Nezalova cited by Starr, the Court of appeals found the trial court
abused its discretion in failing to accept the defendant’s no contest plea. 10th Dist. Franklin
Nos. 00AP-1246, 01AP-1067, 00AP-1245, 01AP-1068, 2002-Ohio-3081. The Court of
Appeals observed,
We cannot say with absolute certainty that appellants' guilty pleas
and waiver of their right to appeal the denial of the pretrial motions, were
not clouded or tainted by the trial court's refusal to accept their no contest
pleas, and the trial court's perceived urgency to complete the proceedings
of the case to allow the court's staff to have an adequate lunch break before
the jurors returned.
Id. at ¶47. In the case at bar, the trial judge exercised his discretion to refuse to accept a no
contest plea. The trial judge did not express any concern for urgency and gave Starr the
opportunity to discuss the plea with his attorney. (T., Change of Plea Hearing, Feb 24, 2015
at 11-12]. After the discussion, Starr’s defense attorney advised the judge, “Your Honor, he’s
okay with that then.” Id.
Richland County, Case No. 15-CA-36 7
{¶19} In State v. Harper cited by Starr1 the Court found,
In the case sub judice, the court stated that on a plea of no contest, “all
deals are off as far as the minimum sentence is concerned, since he’s going
to appeal.” This statement and the other statements highlighted above not
only indicate the judge’s improper involvement in plea bargaining, but also that
the judge did not wish to accept a no-contest plea in order to prevent
defendant’s exercise of his right to appeal. We are constrained to conclude
that the trial court abused its discretion by basing its decision whether to accept
a no-contest plea upon such inappropriate considerations.
47 Ohio App. 3d 109, 112, 547 N.E.2d 395(1st Dist. 1988). In the case at bar, the trial judge
did not express any desire to prevent Starr from appealing the denial of his motion to
suppress as the reason for refusing a no contest plea. Nor does the record indicate that the
judge was involved in the plea bargaining process. As previously noted nothing in the record
before this court does not indicates that the state had agreed to a no contest plea.
{¶20} Starr was arraigned on June 24, 2014. A jury trial had been scheduled for
August 21, 2014. On August 18, 2014, Starr filed a motion to continue the trial date. The
trial court granted Starr’s request to continue the trial date by judgment entry filed August 20,
2014. A new trial date was scheduled for October 9, 2014. On October 6, 2014, Starr’s
attorney filed a motion to continue the October 9, 2014 trial date. The trial court granted the
request by Judgment Entry filed October 8, 2014. A new trial date was scheduled for
November 11, 2014.
1Starr mistakenly cites this case as State v. Harper, 47 Ohio St. 3d 109. See, Appellant’s Brief at
8. The proper citation is State v. Harper, 47 Ohio App. 3d 109, 547 N.E.2d 395(1st Dist. 1988).
Richland County, Case No. 15-CA-36 8
{¶21} On October 9, 2014, the trial court issued a bench warrant for Starr for failing
to abide by the terms of his pre-trial release.
{¶22} On October 21, 2014, Starr filed a motion to suppress. By Judgment Entry
filed November 7, 2014, the trial court continued the trial date in order to conduct a hearing
on Starr’s motion to suppress on November 12, 2014.
{¶23} On October 28, 2014, Starr’s bond was modified by the trial court.
{¶24} An oral hearing on Starr’s motion to suppress was held on November 12, 2014.
The trial court overruled the motion by judgment entry filed November 17, 2014.
{¶25} On December 4, 2014, Starr’s probation officer filed a motion to revoke Starr’s
bond on the ground that on December 4, 2014, Starr had been stopped in Ashland in a
possibly stolen vehicle and was in possession of marijuana and possibly heroin. A bench
warrant was issued for Starr on December 5, 2014.
{¶26} By judgement entry filed January 8, 2015, the trial court continued the trial date
to January 15, 2015. On January 12, 2015, Starr’s attorney filed a motion to continue the
trial date and a demand for additional discovery. By Judgment Entry filed January 16, 2015,
the trial judge granted the continuance and scheduled a new trial date for February 26, 2015.
Starr entered his plea in open court on February 24, 2015.
{¶27} Over eight months elapsed from Starr’s arraignment to his decision to enter
his plea. The decision came after numerous continuances and a mere two days before his
scheduled jury trial. The trial judge also had before him the fact that during this eight-month
period, two bench warrants had been issued for Starr due to his non-compliance with the
terms of his pre-trial release. Starr had also been in possession of controlled and possible
controlled substances during this time.
Richland County, Case No. 15-CA-36 9
{¶28} In State v. Kuhner, the Court found,
The trial judge did not give Kuhner an ultimatum of pleading guilty in
order to partake in the recommended sentence by the prosecutor, nor was his
reason for refusing to accept the no-contest plea to prevent Kuhner from
appealing his ruling on the motion to suppress. The trial judge based his
decision of not accepting the no-contest plea on the timing of the motion to
change the plea, as Kuhner sought to change his plea and accept the sentence
recommendation two days before his scheduled trial.
154 Ohio St. 3d 457, 2003-Ohio-4631, 797 N.E.2d 992(3rd Dist.), ¶11
{¶29} Simply put, there is no evidence before this Court, in any form, that the trial
court interjected itself into the plea negotiations. Based upon the colloquy that occurred on
the record, we can only conclude that in accepting Starr’s plea, the trial court met its burdens
as outlined in Crim.R. 11. The trial court clearly informed Starr of the impact that his guilty
plea would have upon his rights. There is no indication in the record that Starr did not
knowingly and voluntarily enter his guilty plea. Starr willfully chose to plead guilty while fully
aware that he was not required to do so, in an attempt to minimize the sentence to be
imposed on the charges. During the course of the plea hearing, Starr expressly
acknowledged his awareness of the fact that he was pleading guilty and thereby waiving his
right to appeal suppression issues.
{¶30} A trial judge is within the bounds of his discretion in refusing a no-contest plea
based on procedural considerations in the particular case before him. We find no abuse of
discretion on the part of the trial court with regard to the denial of the no-contest plea. Kuhner,
¶13.
Richland County, Case No. 15-CA-36 10
{¶31} Starr’s sole assignment of error is overruled.
{¶32} The judgment of the Richland County Court of Common Pleas is affirmed.
By Gwin, J.,
Farmer, P.J., and
Delaney, J., concur