State v. Smith

[Cite as State v. Smith, 2014-Ohio-4019.]
COURT OF APPEALS
RICHLAND 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. 14 CA 15
WILLIAM E. SMITH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 09 CR 096H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 12, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. WILLIAM PAUL BRINGMAN
PROSECUTING ATTORNEY 13 East College Street
JOHN C. NIEFT Fredericktown, Ohio 43019-1192
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 14 CA 15 2
Wise, J.
{¶1} Appellant William E. Smith appeals from his conviction and sentence
entered in the Richland County Common Pleas Court following a guilty plea.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} In 1992, Appellant was convicted of felonious assault and sentenced to
serve five (5) to fifteen (15) years incarceration. Appellant was paroled May 1, 2008,
and was ordered to report to a halfway house at Crossroads. Appellant failed to report
to either his parole officer or the halfway house.
{¶4} On February 9, 2009, the Richland County Grand Jury indicted appellant,
William E. Smith, on one count of escape in violation of R.C. §2921.34(A)(1), a felony of
the second degree.
{¶5} On October 3, 2013, Appellant was arraigned and entered a plea of not
guilty.
{¶6} On February 3, 2014, Appellant changed his plea to no contest, which was
accepted by the trial court.
{¶7} The trial court found Appellant guilty and sentenced Appellant to two years
incarceration concurrent to the remainder of the sentence he was previously serving on
the underlying case.
{¶8} Appellant filed an appeal, and this matter is now before this Court for
consideration. The sole Assignment of Error is:
{¶9} "THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT
FOR APPELLEE'S FAILURE TO PROVIDE TERRITORIAL JURISDICTION
Richland County, Case No. 14 CA 15 3
INFORMATION TO ESTABLISH SUBJECT MATTER JURISDICTION IN THE TRIAL
COURT."
I.
{¶10} Appellant claims the trial court lacked subject matter jurisdiction and that
the indictment should be dismissed because it failed to allege the state in which the
events resulting in the criminal charges occurred, and further claims that the trial court
should not have accepted his no contest plea. We disagree.
Indictment
{¶11} Crim.R. 7(B) sets forth the nature and contents of an indictment and states
it shall "contain a statement that the defendant has committed a public offense specified
in the indictment. *** The statement may be made in ordinary and concise language
without technical averments or allegations not essential to be proved."
{¶12} R.C. §2901.11 governs criminal law jurisdiction. Subsection (A)(1) states:
{¶13} "A person is subject to criminal prosecution and punishment in this state if
any of the following occur: *** The person commits an offense under the laws of this
state, any element of which takes place in this state."
{¶14} Subsection (D) states the following:
{¶15} “When an offense is committed under the laws of this state, and it appears
beyond a reasonable doubt that the offense or any element of the offense took place
either in this state or in another jurisdiction or jurisdictions, but it cannot reasonably be
determined in which it took place, the offense or element is conclusively presumed to
have taken place in this state for purposes of this section.”
Richland County, Case No. 14 CA 15 4
{¶16} The single count contained in the indictment alleged the jurisdiction to be
"at the County of Richland" and was prefaced by the following:
INDICTMENT FOR: ESCAPE
THE STATE OF OHIO, RICHLAND COUNTY, SS.
COURT OF COMMON PLEAS.”
Of the term of January in the Year of our Lord two thousand nine.
The jurors of the grand jury of the State of Ohio, within and for the
body of the County aforesaid, on their oaths, in the name and by
the authority of the State of Ohio, do find and present that:
{¶17} We find this language is sufficient to establish the jurisdiction of the state
of Ohio, Richland County. State v. Hamilton, 5th Dist Richland No. 13CA93, 2014-Ohio-
3171. As explained by the Tenth District in State v. Williams, 53 Ohio App. 3d 1, *4
(10th Dist.1988):
{¶18} “However, R.C. 2901.11(D) provides that, when an offense is committed
under the laws of this state and it appears beyond a reasonable doubt that the offense
or any element took place either in Ohio or in another jurisdiction and it cannot
reasonably be determined in which it took place, such offense or element is conclusively
presumed to have taken place in this state for purposes of this section.
{¶19} “Appellees are accused of committing offenses under the laws of this
state, i.e., R.C. 2913.02(A)(3), which is theft by deception, and also R.C. 2913.31(A)(3),
which is uttering or possessing with purpose to utter any writing which he knows to have
been forged. Assuming, arguendo, that we do not know in which state these offenses
were performed under R.C. 2901.11(D), Ohio still claims subject matter jurisdiction over
the offenses.”
Richland County, Case No. 14 CA 15 5
{¶20} Upon review, we find the indictment was not defective.
No Contest Plea
{¶21} Appellant argues that at the change of plea hearing, the trial court erred in
addressing him as if he were entering a plea of “guilty” rather than a plea of “no
contest.”
{¶22} Pursuant to Crim.R. 11(C):
{¶23} “(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
{¶24} “ ***
{¶25} “(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court, upon
acceptance of the plea, may proceed with judgment and sentence.”
{¶26} Because the rights contained in Crim.R. 11(B) and 11(E) are
nonconstitutional, appellant must show that he suffered some prejudice from the court's
error. State v. Jones, 116 Ohio St. 3d 211, 877 N.E.2d 677, 2007 Ohio 6093. The test
for prejudice is “whether the plea would have otherwise been made.” State v. Griggs,
103 Ohio St. 3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, citing State v. Nero, 56 Ohio
St.3d 106, 107, 564 N.E.2d 474 (1990). A defendant who has entered a guilty or no
contest plea without asserting actual innocence is presumed to understand the effect of
the plea, and the court's failure to inform the defendant of the effect of the plea as
required by Crim.R. 11 is presumed not to be prejudicial. See Griggs at syllabus.
Richland County, Case No. 14 CA 15 6
{¶27} Upon review, while it does appear that during part of the plea colloquy, the
trial court did refer to the plea as a “Guilty” plea, at the end of the colloquy, the trial court
corrected itself and properly outlined the effects of a “No Contest” plea to Appellant.
{¶28} The trial court stated:
{¶29} “In any event, I am willing to accept a no contest plea. Bly pleading no
contest you are saying I don’t contest the allegations that are made against me, I
contest their legal value, but I don’t contest the allegations.
{¶30} ***
{¶31} “Because I believe those allegations constitute a crime of escape I’m
going to find you guilty on your no contest plea, do you understand?” (T. at 11).
{¶32} Additionally, Appellant executed a plea form which outlined the effect of a
“No Contest” plea.
{¶33} Here, Appellant has not argued that he was prejudiced by the trial court's
error. Moreover, there is no evidence of prejudice apparent on the record. Appellant,
who was represented by counsel, never asserted his innocence in this matter. At the
plea hearing, Appellant admitted that he wanted to change his plea to one of no
contest. Therefore, under the totality of the circumstances, we find no prejudice
resulting from the court's error.
Richland County, Case No. 14 CA 15 7
{¶34} Appellant’s sole Assignment of Error is denied.
{¶35} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
JWW/d 0908