State v. West

[Cite as State v. West, 2009-Ohio-6160.]
IN THE COURT OF APPEALS
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-08-34
v.
DONNIE LEE WEST, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 08 CR 0016
Judgment Affirmed
Date of Decision: November 23, 2009
APPEARANCES:
Alison Boggs for Appellant
Melissa A. Chase for Appellee
Case No. 14-08-34
PRESTON, P.J.
{¶1} Defendant-appellant, Donnie Lee West (“West”), appeals the
judgment of the Court of Common Pleas of Union County finding him guilty of
one count of theft and one count of engaging in a pattern of corrupt activity. For
the reasons set forth below, the judgment is affirmed.
{¶2} On February 14, 2008, West was indicted on one count of theft in
violation of R.C. 2913.02(A)(3), (B)(2), a fifth degree felony, and one count of
engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), (B)(1),
a second degree felony. (Doc. No. 1). West entered pleas of not guilty to both
charges and the matter proceeded to trial on July 17, 2008. (Doc. Nos. 13, 64).
The morning of trial, West changed his plea and entered guilty pleas to both
counts. (Doc. No. 97). The trial court then sentenced West to eleven (11) months
in prison for the theft and four (4) years in prison for the corrupt activity
conviction. (Doc. No. 98). The sentences were ordered to be served
consecutively. (Id.). West appeals from this conviction and raises the following
assignments of error.1
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT ACCEPTED
[WEST’S] GUILTY PLEA ON COUNT TWO OF THE
INDICTMENT, AS THE INDICTMENT FAILED TO
ALLEGE AN ELEMENT OF THE OFFENSE, THEREBY
1
Counsel for West filed a brief raising the first assignment of error. West then filed a supplemental brief
raising the remaining assignments of error.
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Case No. 14-08-34
MAKING THE INDICTMENT UNCONSTITUTIONAL
BECAUSE IT FAILED TO CHARGE AN OFFENSE.
ASSIGNMENT OF ERROR NO. II
TRIAL COURT DID NOT HAVE ORIGINAL
JURISDICTION PURSUANT TO ARTICLE IV, SECTION
4(B) TO ENTER JUDGMENT ON COUNT II OF [WEST’S]
INDICTMENT.
ASSIGNMENT OF ERROR NO. III
[WEST’S] CONDUCT, PRIOR THEFT CONVICTIONS, IS
NOT SUFFICIENT EVIDENCE OR PROOF OF FACT, THAT
A VIOLATION OF OHIO’S RICO ACT LEGISLATION,
CODIFIED AS R.C. 2923.32 HAD OCCURRED.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED WHEN IT ACCEPTED
[WEST’S] GUILTY PLEA ON COUNT II OF THE
INDICTMENT AS: A) THE INDICTMENT OMITTED THE
ELEMENTS TO CHARGE THE CRIME ALLEGED; AND B)
WHEN THE FACTS OF [WEST’S] CONDUCT, EVEN WHEN
PROVEN TRUE, DO NOT CONSTITUTE A VIOLATION OF
THE ALLEGED OFFENSE.
{¶3} Since all of the assignments of error allege that the indictment did
not sufficiently allege an offense, we will address them together.
{¶4} West’s indictment stated as follows concerning Count II2:
Count II: From on or about October 4, 2007 through on or
about November 21, 2007, in a continuing course of criminal
activity between Delaware County, Ohio; Union County, Ohio;
and Pickaway County, Ohio, and [West] while employed by or
associated with, any enterprise as defined in [R.C. 2923.31(C)],
2
No error has been raised as to Count I.
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did conduct or participate in, directly or indirectly, the affairs of
the corrupt activity; to wit: theft offenses which were violations
of [R.C. 2913.02(A)] Theft, felonies of the fifth degree, and
Receiving Stolen Property [R.C. 2913.51(A)] as set forth above
in this Indictment, and Delaware County, Ohio Case No. 07CR-
I-11-0659 and Pickaway County, Ohio Case Nos. 2007-CR-245
and 2007-CR-246 (Kathleen Marie West), and all in a total
amount exceeding Five Hundred Dollars ($500.00). This
constitutes the offense of Engaging in a Pattern of Corrupt
Activity in violation of [R.C. 2923.32(A)(1),(B)(1)], a felony of
the second degree.
(Doc. No. 1). R.C. 2923.32(A)(1),(B)(1) states as follows.
(A)(1) No person employed by, or associated with any enterprise
shall conduct or participate in, directly or indirectly, the affairs
of the enterprise through a pattern of corrupt activity or the
collection of an unlawful debt.
**
(B)(1) Whoever violates this section is guilty of engaging in a
pattern of corrupt activity.
As this Court has recognized before:
Felony defendants are guaranteed the right to an indictment
setting forth the “nature and cause of the accusation” under
Section 10, Article I of the Ohio Constitution. The Ohio
Supreme Court has noted that “[t]he purpose of an indictment
is twofold.” State v. Sellards (1985), 17 Ohio St.3d 169, 170.
First, the indictment affords the accused with adequate notice
and an opportunity to defend against the allegations contained
in the indictment. Id. Second, by identifying and defining the
offense, the indictment enables an accused to defend against any
future prosecutions for the same offense. Id. R.C. 2941.05
provides:
In an indictment or information charging an offense, each count
shall contain, and is sufficient if it contains in substance a
statement that the accused has committed some public offense
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Case No. 14-08-34
therein specified. Such statement may be made in ordinary and
concise language without any technical averments or any
allegations not essential to be proved. It may be in the words of
the section of the Revised Code describing the offense or
declaring the matter charged to be a public offense, or in any
words sufficient to give the accused notice of the offense of which
he is charged.
State v. Harrold, 3d Dist. No. 13-2000-20, 2000-Ohio-1782, at *2 (emphasis
added). R.C. 2941.05 provides that the indictment “may be in the words of the
section of the Revised Code describing the offense or declaring the matter charged
to be a public offense, or in any words sufficient to give the accused notice of the
offense of which he is charged.” (Emphasis added).
{¶5} Count two of West’s indictment mirrored, in large part, the language
of the statute codifying the offense of engaging in a pattern of corrupt activity,
R.C. 2923.32(A)(1). The only word that appears to be missing in the indictment’s
initial language is “pattern”; however, the indictment does allege “a continuing
course of criminal activity” and “corrupt activity.” (Doc. No. 1). Furthermore, the
indictment provides that the aforementioned indicted charge “constitutes the
offense of Engaging in a Pattern of Corrupt Activity in violation of Ohio Revised
Code Section 2923.32(A)(1), (B)(1), a felony of the second degree.” (Id.). The
indictment, although not exactly written as provided by statute, is, at minimum,
written in “any words sufficient to give the accused notice of the offense of which
he is charged.” R.C. 2941.05. Furthermore, the indictment sub judice satisfies the
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two main purposes of indictments—adequate notice and opportunity to defend;
and protection from subsequent prosecution for the same offense. Harrold, 3d
Dist. No. 13-2000-1782, at *3. Furthermore, the record herein demonstrates that
West was aware that he was charged with engaging in a pattern of corrupt activity.
Before West pled guilty, the trial court asked him:
THE COURT: Mr. West, do you understand then you would be
withdrawing your former plea of not guilty and entering a plea
of guilty to * * * count two the offense of engaging in a pattern
of corrupt activity in violation of Ohio Revised Code Section
2923.32 A 1 B 1, a felony of the second degree.
DEFENDANT: Yes, your Honor.
(Jul. 17, 2008 Tr. at 6-7). Since the indictment language sufficiently provided
West with adequate notice of the offense of which he was charged and protection
from subsequent prosecution for the same offense, his argument lacks merit.
{¶6} Additionally, regardless of whether the indictment was defective,
West’s guilty plea waives any defects in the indictment. “The plea of guilty is a
complete admission of the defendant’s guilt.” Crim.R. 11(B)(1). Accordingly,
“[b]y 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. Kitzler, 3d Dist. No. 16-02-06, 2002-Ohio-5253, ¶12, citing State
v. Barnett (1991), 73 Ohio App.3d 244, 248, 596 N.E.2d 1101, quoting United
State v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927. See
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also, McCarthy v. U.S. (1969), 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418.
Therefore “[a] criminal defendant who pleads guilty is limited on appeal; he may
only attack the voluntary, knowing, and intelligent nature of the plea and ‘may not
thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.’” State v. Woods, 3d Dist.
No. 1-05-82, 2006-Ohio-2368, ¶14, quoting State v. Spates (1992), 64 Ohio St.3d
269, 272, 595 N.E.2d 351, citing Tollett v. Henderson (1973), 411 U.S. 258, 267,
93 S.Ct. 1602, 36 L.Ed.2d 235. See, also, State v. Barton, 108 Ohio St.3d 402,
2006-Ohio-1324, 844 N.E.2d 307, ¶73; State v. Fitzpatrick, 102 Ohio St.3d 321,
2004-Ohio-3167, 810 N.E.2d 927, ¶78; Ross v. Auglaize Cty. Common Pleas
Court (1972), 30 Ohio St.2d 323, 285 N.E.2d 25; State v. Gant, 3d Dist. No. 1-08-
22, 2008-Ohio-5406, ¶13 (Colon defect waived by guilty plea); State v. McGinnis,
3d Dist. No. 15-08-07, 2008-Ohio-5825, ¶26 (same); State v. Morgan, 181 Ohio
App.3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶28 (same); State v. Easter, 2nd
Dist. No. 22487, 2008-Ohio-6038, ¶¶26-28 (same); State v. Haney, 180 Ohio
App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, ¶18 (same); State v. Smith, 6th Dist.
No. L-07-1346, 2009-Ohio-48, ¶10 (same); State v. Cain, 7th Dist. No. 08 MA 23,
2009-Ohio-1015, ¶¶11-13 (same); State v. Hayden, 8th Dist. No. 90474, 2008-
Ohio-6279, ¶6 (same).
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{¶7} Accordingly, West has waived any alleged defect in his indictment
by pleading guilty to the substantive offense of engaging in a pattern of corrupt
activity.
{¶8} For all these reasons, West’s assignments of error are overruled.
Judgment Affirmed
ROGERS, J., concur.
/jlr
WILLAMOWSKI, J., Concurring Separately.
activity.
{¶9} I concur with the majority that the indictment is sufficient to provide
notice of the offense charged. I also agree that under the line of cases cited by the
majority, the doctrine of waiver due to a guilty plea may apply. However, I
concur separately to note that there is another line of cases by the Ohio Supreme
Court and this court holding that the subject matter jurisdiction may not be
waived. See State v. Wozniak (1961), 172 Ohio St. 517, 178 N.E.2d 800; State v.
Wilson (1995), 73 Ohio St.3d 40, 652 N.E.2d 196; Pratts v. Hurley, 102 Ohio
St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992; State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, 873 N.E.2d 306; State v. Reinhardt, 3d Dist. No. 15-06-07,
2007-Ohio-2284; and State v. Maish, 173 Ohio App.3d 724, 2007-Ohio-6230, 880
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N.E.2d 153. This is an inconsistency in the law that should be addressed by the
Ohio Supreme Court.
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