State v. Smith

[Cite as State v. Smith, 2022-Ohio-3170.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-063
Appellee Trial Court No. 2020CR0107
v.
Samuel L. Smith DECISION AND JUDGMENT
Appellant Decided: September 9, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Robert P. Soto, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Samuel Smith, appeals the judgment of the Wood County Court
of Common Pleas, convicting him following a guilty plea to one count of trafficking in
marijuana. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On August 20, 2020, the Wood County Grand Jury entered a two-count
indictment against appellant, charging him with one count of trafficking in marijuana in
violation of R.C. 2925.03(A)(2) and (C)(3)(d), a felony of the third degree, and one count
of possession of marijuana in violation of R.C. 2925.11(A) and (C)(3)(d), a felony of the
third degree. The charges arose from a traffic stop where it was discovered that appellant
was transporting approximately 2.8 pounds of marijuana.
{¶ 3} Appellant entered an initial plea of not guilty, and the matter proceeded
through a number of pretrial hearings. A pretrial hearing was held on October 2, 2020,
and a second pretrial hearing was held on November 20, 2020. At the November pretrial
hearing, a final pretrial hearing was set for January 19, 2021, and the jury trial was set to
begin on February 4, 2021. On January 19, 2021, appellant rejected a plea offer on the
record, and the trial was rescheduled to February 24, 2021. One week before the new
trial date, on February 17, 2021, appellant filed a motion to continue the trial date,
indicating that he may want to retain new or additional counsel. Based upon that motion,
the court vacated the trial date and scheduled a pretrial hearing for March 2, 2021. On
March 2, 2021, appellant’s appearance was waived, and another pretrial hearing was set
for March 30, 2021. At the March 30, 2021 hearing, appellant was excused because of
Covid-19, but a final pretrial hearing was scheduled for May 18, 2021, with the jury trial
to begin on June 16, 2021. On May 18, 2021, the jury trial was confirmed for June 16,
2.
2021. Another pretrial hearing was held on June 2, 2021, and the jury trial date was
again confirmed. A plea cut-off date was set for June 9, 2021. On June 11, 2021,
appellant filed a motion seeking to vacate the trial date because he was willing to enter
into a plea agreement. The trial court vacated the June 16, 2021 trial date, and scheduled
a hearing on June 15, 2021, for purposes of accepting appellant’s guilty plea.
{¶ 4} At the June 15, 2021 hearing, the state explained that it had originally
presented a plea offer to appellant in February 2021. Appellant’s trial counsel then
connected the prosecutor with appellant’s counsel from a separate pending case
originating in Columbus, Franklin County, Ohio. The prosecutor stated that he spoke
with defense counsel from the Columbus case and explained why he thought that an offer
of a recommended sentence of nine months in prison was a proper resolution of the
matter. Columbus defense counsel indicated that he would advise appellant to take the
plea deal. The prosecutor then drafted the paperwork and sent it to appellant’s trial
counsel in the present case. Appellant’s trial counsel was surprised by what he
understood to be a change in the terms of the plea agreement from what it was prior to the
state speaking with appellant’s Columbus defense counsel. Appellant’s trial counsel did
not get the impression from the Columbus attorney that any changes were made, and that
the Columbus attorney was simply going to advise appellant whether or not to accept the
deal. In any event, appellant now expressed his desire not to enter into a plea agreement:
3.
I was aware of the conversation a few months prior to this. They
was telling my lawyer I had in Columbus, Ohio, that they was going to see
if I can get both of my cases resolved together with probation. That’s what
he first had told me. That’s what my attorney told me. Now he’s coming
back saying all this other stuff. I never agreed to take on nine months, none
of that. I never agreed to none of that.
The trial court, having determined that a plea agreement was not going to be reached, and
being unwilling to get involved in the parties’ plea negotiations, set the matter for a jury
trial on July 21, 2021.
{¶ 5} On July 20, 2021, appellant withdrew his plea of not guilty, and entered a
plea of guilty to the count of trafficking in marijuana. In exchange, the state agreed to
dismiss the count of possession of marijuana, and to recommend community control
sanctions in lieu of prison. The trial court then engaged appellant in a detailed and
thorough plea colloquy in which the trial court informed appellant of the nature of the
charges he was facing and the potential penalties involved, informed him of the effect of
his guilty plea, and informed him of the constitutional rights that he was waiving. At all
times, appellant indicated that he understood the information being presented and the
rights that he was waiving, and maintained that he wished to enter his plea of guilty.
Appellant then acknowledged as true that he was driving the car at the time that it was
pulled over, that officers found 2.8 pounds of marijuana inside a black plastic bag on the
4.
floor behind the front passenger seat, and that officers found a wad of cash wrapped with
a black rubber band between the passenger seat and the center console. Following this,
the trial court accepted appellant’s plea and found him guilty of the offense of trafficking
in marijuana.
{¶ 6} A presentence investigation was conducted and a report was prepared. In
the report, appellant stated that on the day of the offense he had dropped off his cousin in
Toledo, Ohio. Appellant claimed that his cousin left his bag in the vehicle, and that
appellant was unaware of the bag or its contents. Appellant denied that the marijuana
belonged to him. Furthermore, appellant stated that he was prepared to withdraw his
guilty plea if he did not receive community control.
{¶ 7} At the sentencing hearing, appellant asserted that he accepted responsibility
for his actions, but disclaimed that he had any knowledge that the drugs were in the car.
Appellant stated that the prosecutor did not believe him, so he agreed to take whatever he
could get out of the plea deal. The prosecutor responded that he had reviewed the
videotape of the traffic stop, and the video revealed that when the officers informed
appellant that they smelled marijuana in his car and were going to search it, appellant
admitted that there was marijuana in the car, that it was in the back seat, and that there
was approximately two pounds.
{¶ 8} In light of appellant’s declaration of his innocence, and his statement that he
would want to withdraw his guilty plea if he was not sentenced to community control, the
5.
trial court allowed appellant to consult with his attorney to determine if he wanted to
withdraw his guilty plea before being sentenced. After speaking with his attorney,
appellant decided to maintain his guilty plea. The trial court then proceeded to impose a
sentence upon consideration of the recommendations of the state and a review of the
presentence investigation report. The court ordered appellant to be placed on community
control for three years, with a number of conditions, including participation in substance
abuse services, employment requirements, and community service. The court further
ordered that before all of the other community control conditions began, appellant must
enter into and successfully complete the SEARCH program at a community-based
corrections facility. Finally, the court ordered appellant to pay the agreed-upon
maximum fine of $10,000.
{¶ 9} In the August 25, 2021 judgment entry memorializing appellant’s sentence,
the trial court stated that it considered the record, all oral statements, the presentence
investigation report, and the purposes and principles of sentencing and the seriousness
and recidivism factors as set forth in R.C. 2929.11 and 2929.12. As it pertains to the
SEARCH program, the trial court ordered that appellant was to report on September 15,
2021.
{¶ 10} Shortly after the sentencing entry was journalized, appellant moved to
modify his sentence, and to suspend the sentence pending appeal. Appellant requested
that he be sentenced to outpatient treatment as opposed to the in-patient SEARCH
6.
program. The trial court denied appellant’s motion on August 26, 2021. The next day,
appellant filed a second motion to modify his sentence, seeking to be released from
custody in the Wood County Jail until a bed opened up in the SEARCH program.
Several days later, on August 31, 2021, appellant filed a third motion to modify his
sentence, again seeking to be permitted to complete an outpatient program and be
sentenced to home confinement with GPS monitoring. On August 31, 2021, the trial
court entered a nunc pro tunc sentencing entry ordering appellant to begin the SEARCH
program as soon as a bed becomes available. That same day, appellant entered the
SEARCH program. The trial court thereafter denied appellant’s second and third
motions to modify as moot.
II. Assignments of Error
{¶ 11} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
1. The trial court abused its discretion and committed reversible
error in accepting the defendant’s plea despite clear evidence that it was not
accepted voluntarily, knowingly, and intelligently.
2. The trial court imposed a sentence contrary to law and abused its
discretion in imposing a sentence.
7.
III. Analysis
A. Knowing, Intelligent, and Voluntary Plea
{¶ 12} In his first assignment of error, appellant argues that his plea was not
knowingly, intelligently, and voluntarily made.
{¶ 13} A guilty plea must be knowingly, intelligently, and voluntarily made to be
valid under both the United States and Ohio Constitutions. State v. Whitman, 2021-Ohio-
4510, 182 N.E.3d 506, ¶ 14 (6th Dist.), citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450(1996). “To ensure that a defendant enters a plea knowingly, intelligently, and
voluntarily, the trial court is required to engage a defendant in a plea colloquy pursuant to
Crim.R. 11.” Id., quoting State v. Petronzio, 8th Dist. Cuyahoga No. 109823, 2021-
Ohio-2041, ¶ 5; State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶
25-26.
{¶ 14} Crim.R. 11(C)(2) provides:
(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 either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) and
doing all of the following:
8.
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(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.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶ 15} In support of his assignment of error, appellant does not take issue with the
content of the Crim.R. 11 colloquy, but rather argues that the trial court failed to address
the circumstances surrounding the plea. In particular, appellant argues that throughout
the proceedings he expressed indecisiveness, having engaged in a number of plea
negotiations that fell through before he ultimately entered into a plea agreement on
9.
July 20, 2021. Furthermore, appellant argues that his indecisiveness continued, and
manifested itself at the sentencing hearing where appellant continued to maintain his
innocence.
{¶ 16} Upon review, we find that the record in this case very clearly demonstrates
that appellant was fully informed of the details of his case and the consequences of his
plea, and that he voluntarily chose to enter into a plea agreement once he received the
state’s recommendation that he be placed on community control. During the plea
colloquy, appellant engaged with the court whenever he had questions, such as the
amount of the fine that he would be required to pay, and indicated his agreement after
additional explanation. At the end of the colloquy, the trial court summarized:
THE COURT: * * * Now, the Court has reviewed all of the
potential penalties, all of the constitutional rights you’re waiving and all of
the other implications of your plea. Is it still your desire to proceed forward
with this plea?
THE DEFENDANT: Yes, sir.
THE COURT: Is that your personal decision?
THE DEFENDANT: Yes, sir.
THE COURT: Has anyone threatened you to enter this plea?
THE DEFENDANT: No, sir.
10.
THE COURT: Has anyone promised you anything special to enter
this plea?
THE DEFENDANT: No, sir.
THE COURT: Okay. Are you under the influence of any alcohol or
drugs today?
THE DEFENDANT: No, sir.
THE COURT: Are you satisfied with the advice and counsel of
your attorney, Mr. Soto?
THE DEFENDANT: Yes, sir.
THE COURT: Is everything I’ve told you consistent with what Mr.
Soto has told you?
THE DEFENDANT: Yes, sir.
The fact that appellant had previously expressed uncertainty over whether to accept a
plea agreement with different terms in the months prior does not invalidate the clear and
sober decision that appellant made to accept the plea agreement presented at the plea
hearing on July 20, 2021.
{¶ 17} Furthermore, we do not find persuasive appellant’s intimation that his plea
was not knowing, intelligent, and voluntary because he consistently maintained his
innocence throughout the proceedings. While being sensitive to appellant’s initial plea of
not guilty, we note that appellant did not outwardly claim innocence during the eleven
11.
months of pretrial hearings, and only did so for the first time during the presentence
investigation, which he then repeated at his sentencing hearing. In light of this new
claim, the trial court paused the sentencing proceedings, and gave appellant time to
consult with his attorney regarding whether he wished to withdraw his guilty plea prior to
being sentenced. Ultimately, appellant elected not to do so. We find that throughout the
proceedings appellant was afforded every opportunity to decide whether to accept a plea
deal or proceed to trial. Appellant chose the former, and stayed with that decision even
when given an opportunity to change his mind before being sentenced. Therefore, we
hold that the trial court did not err when it accepted appellant’s guilty plea as being
knowingly, intelligently, and voluntarily made.
{¶ 18} Accordingly, appellant’s first assignment of error is not well-taken.
B. Sentencing
{¶ 19} In his second assignment of error, appellant challenges the imposition of
his sentence. We review the imposition of a felony sentence in accordance with R.C.
2953.08. State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 16.
R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, or otherwise
modify a sentence if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
12.
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 20} In this case, the statutory findings under R.C. 2953.08(G)(2)(a) are not at
issue. Instead, appellant argues that his sentence is contrary to law under R.C.
2953.08(G)(2)(b) because the trial court failed to expressly state at the sentencing hearing
that it considered the principles and purposes of sentencing in R.C. 2929.11, and the
seriousness and recidivism factors in R.C. 2929.12.
{¶ 21} When sentencing a defendant, “the court must carefully consider the
statutes that apply to every felony case,” including “R.C. 2929.11, which specifies the
purposes of sentencing, and R.C. 2929.12, which provides guidance in considering
factors relating to the seriousness of the offense and recidivism of the offender.” State v.
Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38. Notably, “the issue
before us is whether the record demonstrates that the trial court considered R.C. 2929.11
and 2929.12 in imposing its sentence, not whether the trial court expressly indicated that
it did so.” State v. Shell, 6th Dist. Sandusky No. S-19-015, 2020-Ohio-295, ¶ 19, quoting
State v. Sims, 6th Dist. Sandusky No. S-13-037, 2014-Ohio-3515, ¶ 10. To that end, “[i]t
is well-recognized * * * that where the record is silent, there is a presumption that the
trial court gave proper consideration to these statutes.” Id., citing State v. Adams, 37
Ohio St.3d 295, 297, 525 N.E.2d 1361 (1988).
13.
{¶ 22} Here, appellant argues that the trial court expressly stated that it considered
the presentence report and the state’s recommendation prior to imposing a sentence, but
did not expressly state that it considered R.C. 2929.11 and 2929.12, which suggests that
the court did not consider those statutes. We disagree, and find that the simple fact that
the court expressly listed some of its considerations, but failed to include R.C. 2929.11
and 2929.12 in that list, does not overcome the presumption that the trial court considered
those statutes.
{¶ 23} Furthermore, the record demonstrates that the trial court considered both
statutes. As noted by appellant, defense counsel addressed many of the factors in R.C.
2929.11 and 2929.12 at the sentencing hearing. The trial court considered those
statements, as well as the information in the presentence investigation report, at the
sentencing hearing. In addition, the trial court expressly stated in its sentencing entry that
it considered the R.C. 2929.11 and 2929.12 factors. Therefore, we cannot clearly and
convincingly find that the trial court did not consider R.C. 2929.11 and 2929.12 such that
appellant’s sentence is contrary to law. See State v. Nienberg, 3d Dist. Putnam Nos. 12-
16-15, 12-16-16, 2017-Ohio-2920, ¶ 13 (sentence upheld where trial court did not
reference R.C. 2929.11 and 2929.12 at the sentencing hearing, but referenced the
presentence investigation report, victim impact statements, and the defendant’s
statements, and where the trial court expressly stated in the sentencing entry that it
considered R.C. 2929.11 and 2929.12); State v. Lancaster, 12th Dist. Butler No.
14.
CA2007-03-075, 2008-Ohio-1665, ¶ 4 (sentence upheld where trial court did not
reference R.C. 2929.11 and 2929.12 at the sentencing hearing, but included them in the
sentencing entry).
{¶ 24} Appellant separately argues that the trial court erred when it made an
additional order in the sentencing entry regarding the start date of the SEARCH program
that was not articulated at the sentencing hearing. Appellant also argues that the court
erred when it entered a nunc pro tunc entry changing that start date.
{¶ 25} As to the first part of appellant’s argument, we note that a court speaks
through its journal. State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d
924, ¶ 12. We also note that Crim.R. 43 requires that a defendant must be physically
present at every stage of the criminal proceeding, including the imposition of sentence.
In this case, appellant was present at sentencing when the trial court ordered him to
complete the SEARCH program as the first part of his sentence. The identification of a
specific start date in the subsequent sentencing entry was merely the inclusion of a
mechanical part of the judgment. Therefore, we hold that the sentencing entry—which
included a start date of September 15, 2021 for the SEARCH program—was not contrary
to law.
{¶ 26} As to the second part of his argument, “nunc pro tunc entries are limited in
proper use to reflecting what the court actually decided, not what the court might or
should have decided or what the court intended to decide.” State ex rel. Fogle v. Steiner,
15.
74 Ohio St.3d 158, 164, 656 N.E.2d 1288 (1995); State v. Merer, 6th Dist. Wood No.
WD-20-015, 2021-Ohio-1553, ¶ 14. In this case, the trial court used a nunc pro tunc
entry to change the start date of the SEARCH program from September 15, 2021, to “as
soon as a bed becomes available.” It appears that the trial court was not simply changing
the entry to reflect what it had actually decided. Nevertheless, appellant does not argue
that he suffered any prejudice from this change, and we likewise find no prejudice, as it
allowed appellant to begin the SEARCH program immediately on August 31, 2021,
instead of waiting another two weeks. As such, any error by the trial court was harmless.
See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.”); State v. Morris, 141 Ohio St.3d 399, 2014-
Ohio-5052, 24 N.E.3d 1153, ¶ 24 (“Crim.R. 52(A), the harmless-error rule, was created
in essence to forgive technical mistakes.”).
{¶ 27} Accordingly, having held that appellant’s sentence is not contrary to law
and appellant has not suffered any prejudicial error, we find appellant’s second
assignment of error not well-taken.
IV. Conclusion
{¶ 28} For the foregoing reasons, we find that substantial justice has been done the
party complaining, and the judgment of the Wood County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
16.
State of Ohio
v. Samuel L. Smith
WD-21-063
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
17.