State v. Barnett

[Cite as State v. Barnett, 2020-Ohio-5364.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-19-1172
L-19-1173
Appellee
Trial Court Nos. CR0201802934
v. CR0201901330
Aerial S. Barnett DECISION AND JUDGMENT
Appellant Decided: November 20, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
William H. Dailey V, Assistant Prosecuting Attorney, for appellee.
Sarah R. Anjum, for appellant.
*****
OSOWIK, J.
{¶ 1} This is a consolidated appeal from a July 17, 2019 judgment of the Lucas
County Court of Common Pleas, finding appellant guilty pursuant to a negotiated plea
agreement of one count of domestic violence, in violation of R.C. 2919.25(A), a felony of
the fourth degree, and one count of felonious assault, in violation of R.C. 2903.11(A), a
felony of the second degree.
{¶ 2} In exchange, an additional domestic violence offense, a rape offense, and a
sexual registration requirement accompanying the rape offense, were all dismissed. For
the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 3} Appellant, Aerial Barnett, sets forth the following two assignments of error:
I. The Bill of Information was invalid because it was filed before
the Waiver of Prosecution by Indictment.
II. Appellant’s plea was not knowingly, voluntarily, and
intelligently entered because he didn’t waive the 24 hour waiting period on
the Bill of Information.
{¶ 4} The following undisputed facts are relevant to this appeal. This appeal
stems from physical attacks committed separately against two different women with
whom appellant had personal relationships.
{¶ 5} On October 2, 2018, appellant was staying at the Toledo residence of a
woman with whom he shares a minor child. Appellant was removed from the residence
by the Toledo Police Department after they learned that appellant had been assaulting her
on an ongoing basis.
{¶ 6} On October 3, 2018, appellant was released from custody and returned to the
victim’s residence. Appellant kicked the victim in the back of her head multiple times,
struck her arms and back, choked her, pistol whipped her, and threatened to kill her if she
reported him the police.
2.
{¶ 7} On October 16, 2018, despite appellant’s threats and the above-detailed
injuries inflicted against her, the victim reported the attack to the police.
{¶ 8} On October 24, 2018, appellant was indicted on one count of domestic
violence, in violation of R.C. 2919.25(A), as enhanced to a felony of the fourth degree
based upon appellant’s prior domestic violence convictions.
{¶ 9} On February 14, 2019, after appellant had relocated to the Toledo residence
of a different girlfriend, he became enraged after viewing something on her mobile
phone. Although she had attempted to prevent appellant from accessing her mobile
phone, appellant forcibly took it from her and viewed it.
{¶ 10} Appellant jumped upon the victim and strangled her to a near loss of
consciousness. Appellant’s attack upon the restrained victim quickly escalated.
{¶ 11} Appellant ordered the victim to perform oral sex upon him. When the
victim refused, appellant struck the victim in her face, grabbed the victim by her hair with
such force that appellant’s nails dug into the victim’s neck, shoved the victim’s head
down to his groin, and forced the victim to perform oral sex upon him.
{¶ 12} When the victim later broke free from appellant, she fled outdoors and ran
down the street in search of assistance. The victim was clothed in a sports bra, as
appellant had torn the victim’s shirt off during her escape.
{¶ 13} Witnesses observed the partially attired, injured victim frantically running
down the street and contacted emergency assistance.
3.
{¶ 14} On February 22, 2019, appellant was indicted on one count of domestic
violence, in violation of R.C. 2919.25(A), as enhanced to a felony of the fourth degree
based upon appellant’s prior domestic violence convictions, and one count of rape, in
violation of R.C. 2907.02(A), a felony of the first degree.
{¶ 15} The record reflects that appellant subsequently engaged in threats and
intimidation against the victims in an effort to dissuade them from cooperating with law
enforcement. Accordingly, appellee obtained material witness warrants for both victims.
{¶ 16} On May 30, 2019, following lengthy negotiations covering all offenses,
appellant was presented with a package plea proposal. Appellant was granted an
extension of time to consider the proposed plea agreement.
{¶ 17} On June 4, 2019, appellant accepted the plea agreement. Pursuant to the
plea agreement, appellant entered a plea to one count of domestic violence, in violation of
R.C. 2919.25(A), a felony of the fourth degree, for the 2018 offense, and one count of
felonious assault, in violation of R.C. 2903.11(A), a felony of the second degree, for the
2019 offense.
{¶ 18} In exchange, the other domestic violence offense, the rape offense, and the
sexual offender registration requirement accompanying the rape offense were all
dismissed.
{¶ 19} During the change of plea proceedings, the trial court conveyed to
appellant, “[D]o you understand that the prosecution, as part of this plea agreement, is
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charging you with new charges not by way of grand jury, [but] by what is called a bill of
information?” (Emphasis added). Appellant affirmatively replied, “Yes, Your Honor.”
{¶ 20} Upon affirming appellant’s understanding, the trial court proceeded to
inquire, “[D]o you understand that you have the right to indictment by grand jury, but if
you wish to waive your right to prosecution by indictment and consent to being charged
by information, you can do that today?” (Emphasis added). Appellant again
affirmatively replied, “Yes, Your Honor.”
{¶ 21} Counsel for appellant conveyed to the trial court that counsel had discussed
all of the rights being waived with appellant, answered appellant’s questions, reviewed
the written waiver forms with appellant, and appellant then executed the documents
memorializing the plea agreement.
{¶ 22} The trial court then confirmed from appellant that his signature had been
affixed upon the waiver of prosecution by indictment, the bill of information, and the
judgment entry paperwork.
{¶ 23} As the change of plea proceedings continued, the trial court stated,
“[Appellant] is present with counsel, acknowledged receipt of the bill of information,
waived any defects as to time, place, and manner of service. Defendant waived reading
of the bill of information in open court and so is entering a plea on the bill of
information.” At this juncture appellant stated, “No contest, Your Honor.”
{¶ 24} Following appellant’s entry of the negotiated plea, the record reflects that
the trial court carefully conducted the change of plea colloquy with appellant. The record
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reflects appellant’s understanding of, and consent to, the terms of the plea agreement and
associated legal implications.
{¶ 25} At the conclusion of the change of plea proceedings, the trial court ordered
a presentence investigation. The case was continued for sentencing.
{¶ 26} On July 12, 2019, appellant was sentenced to a five-year term of
incarceration, along with a five-year term of community control. This appeal ensued.
{¶ 27} In the first assignment of error, appellant alleges that the bill of information
accompanying appellant’s plea agreement was nullified on a procedural basis as it was
file stamped several hours before the waiver of prosecution by indictment was file
stamped. We do not concur.
{¶ 28} The record reflects that on June 4, 2019, the bill of information was file
stamped at 9:36 a.m., while the waiver of prosecution by indictment was file stamped at
2:28 p.m.
{¶ 29} Appellant maintains that this discrepancy in the file stamp times of
documents which had previously been presented to, explained to, and consented to, by
appellant, acted to prejudice appellant. We are not persuaded.
{¶ 30} Crim.R. 7(A) establishes, in pertinent part, “[F]elonies shall be prosecuted
by indictment, except * * * the defendant may waive that right in writing and in open
court. Where an indictment is waived, the offense may be prosecuted by information.”
(Emphasis added).
6.
{¶ 31} R.C. 2941.03 establishes that the sufficiency of a bill of information is
satisfied where the information contained therein reflects that it is in a court with the
authority to receive it, was presented to the court by the prosecuting attorney, names the
defendant, shows that the offense was committed within the jurisdiction of the court, and
shows that the offense was committed prior to the filing of the bill of information. The
record of evidence reflects R.C. 2941.03 compliance in this case.
{¶ 32} In support of the first assignment, appellant argues that the filing of the
waiver of prosecution of indictment and the associated bill of information at separate
times on the same day constituted a violation of Crim.R. 7(A). We are not convinced.
{¶ 33} Appellant provides no objective evidence in support of this conclusion and
acknowledges that in the similar case of State v. Hines, 5th Dist. Knox No. 90-CA-22,
1990 WL 166469 (Oct. 25, 1990), the court held that the discrepancy in filing times of
the waiver of prosecution of indictment and the bill of information constituted harmless
clerical error and was, therefore, not prejudicial. We find that conclusion likewise
applies to the instant case.
{¶ 34} The record is devoid of any evidence that the time stamp discrepancy
constituted a violation of Crim.R. 7(A) or R.C. 2941.03, such that the change of plea was
arguably compromised. Further, the record is devoid of any other evidence that the time
stamp discrepancy prejudiced appellant.
{¶ 35} Wherefore, we find appellant’s first assignment of error not well-taken.
7.
{¶ 36} In appellant’s second assignment of error, appellant similarly maintains
that the plea was not knowingly, voluntarily, and intelligently entered. We do not concur.
{¶ 37} In support of the second assignment of error, appellant argues, without
legal support, that although he voluntarily executed a written waiver of service for the
R.C. 2941.49 one-day period in which a defendant cannot be mandated to reply to a
felony, the trial court also needed to orally secure a second R.C. 2941.49 waiver from
appellant during the change of plea colloquy. We do not concur.
{¶ 38} R.C. 2941.49 establishes in pertinent part, “A defendant, without his assent,
shall not be arraigned or called on to answer an indictment until one day has elapsed after
receiving or having an opportunity to receive in person or by counsel, a copy of such
indictment.” (Emphasis added.)
{¶ 39} The record reflects, and appellant concedes, that appellant executed a
written waiver of the R.C. 2941.49 service requirement. The record is devoid of evidence
that such a waiver is invalidated in the absence of a separate, oral R.C. 2941.49 waiver
during the change of plea colloquy.
{¶ 40} Wherefore, we find appellant’s second assignment of error not well-taken.
{¶ 41} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
8.
State v. Barnett
C.A. Nos. L-19-1172
L-19-1173
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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/.
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