State v. Nevels

[Cite as State v. Nevels, 2020-Ohio-915.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108395
v. :
JAMIE E. NEVELS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-627351-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kerry A. Sowul, Assistant Prosecuting
Attorney, for appellee.
Law Office of Jaye M. Schlachet, Jaye M. Schlachet, and
Eric M. Levy, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Jamie E. Nevels appeals his conviction following
a guilty plea. Because we find Nevels’s plea was not knowingly, intelligently, and
voluntarily made, we reverse.
Procedural History and Substantive Facts
On March 30, 2018, the Cuyahoga County Grand Jury charged Nevels
in an 11-count indictment as follows: Counts 1-3, rape in violation of
R.C. 2907.02(A)(2), with one- and three-year firearm specifications and a sexually
violent predator specification; Count 4, complicity in violation of
R.C. 2923.03(A)(2), with one- and three-year firearm specifications and a sexually
violent predator specification; Count 9, kidnapping in violation of
R.C. 2905.01(A)(4), with one- and three-year firearm specifications, a sexual
motivation specification, and a sexually violent predator specification; Count 10,
aggravated robbery in violation of R.C. 2911.01(A)(1), with one- and three-year
firearm specifications; and Count 11, kidnapping in violation of R.C. 2905.01(A)(2),
with one- and three-year firearm specifications.1 The indictment stems from an
incident that occurred on or about June 13, 2001. At the time Nevels was charged
in this case, he was serving a 20-year sentence for several charges, including rape,
in Cuyahoga C.P. No. CR-03-437396.
The court appointed a public defender to represent Nevels in this case.
The record shows that the public defender initially requested discovery from the
state on May 3, 2018, and filed a supplemental request for discovery on June 27,
2018. The public defender then filed a motion to dismiss for preindictment delay,
which the state opposed. On July 12, 2018, Nevels retained an attorney. On
1 Counts 5 through 8 pertained only to Nevels’s codefendant.
December 19, 2018, the state filed a notice of intent to use Evid.R. 404(B) evidence
of other acts, which Nevels’s newly retained counsel opposed. Nevels’s new counsel
also filed a motion to dismiss.
On March 13, 2019, the court called the case for trial. Prior to the start
of trial, however, the court addressed the defense’s motion to dismiss and
questioned Nevels’s new attorney’s basis for the motion:
Court: I am perplexed, [counsel], as to the basis for your motion.
I understand that the reason for the motion [to dismiss]
is because you believe that it was a consensual act and
therefore you’ve moved this court to dismiss these
charges of rape based upon the fact that consent was
given, is that correct?
Counsel: That is correct, your Honor.
Court: Okay. Now, what is the legal basis for such a motion?
Counsel: The affirmative defense of the fact that my client had
consensual — it is upon information and belief that the
victim will testify and there’s reports that part of the acts
was consensual, and that’s why I was requesting for
Count 1 and the second count — that part of these acts
were consensual, so consent would be the defense and
the basis for the dismissal. There’s also upon
information and belief that the co-defendant is going to
testify in regards to there being a consent as well * * *.
Court: What case law do you have to support such a motion?
Counsel: As far as consent? There [are] several —
Court: Tell me one time in any court in the [s]tate of Ohio where
someone has alleged consent on a rape case and by
motion you ask the judge to dismiss the charges.
Counsel: There isn’t, [y]our Honor. I just — I filed it, and I
understand it’s probably a [Crim.R.] 29 request * * *.
However, for my client I did want to at least file it in good
faith that —
Court: What’s the purpose of filing such a motion? This is a very
serious case.
The court then continued to inquire as to defense counsel’s overall
experience in handling felony cases, and both the court and the prosecutor noted for
the record that “this is a life case.” When the court asked defense counsel to explain
his experience in representing individuals on first-degree felony cases, he replied, “I
have a bar card and [I am] qualified as an attorney,” yet he conceded that he has “not
necessarily” represented anyone on a “felony one” case.
At this point, the court reminded counsel of his obligations under the
Rules of Professional Responsibility and the court read from the section concerning
an attorney’s competence, legal knowledge, and skill. After reading from the rules,
the court asked defense counsel, “[W]here do you think you stand?” Nevels’s
counsel continued to defend his experience, stating that although he is young, he has
had “the highest profile cases in Ohio” for his age and he is “the best lawyer in Ohio.”
Counsel further asserted that he filed the motion to dismiss in order to “build a
record” in the case, he has the experience necessary to represent Nevels, he has
consulted with other attorneys regarding his client’s case, and his client is not
disadvantaged by his representation. The court then stated that if Nevels is satisfied
with defense counsel’s representation, it would not compel him to take another
attorney, and as an added precaution, the court instructed a public defender to sit
second chair, in an advisory role.
Thereafter, Nevels addressed the court, thanking the court for
considering his attorney’s inexperience, and inquired about hiring a new attorney.
Nevels stated that “I just want what’s best for me because I know who I am and * * *
I know my innocence in this case, and I just would like to have the best person
representing me that I can have.” The court then asked Nevels if he wanted a
continuance in order to hire new counsel. Defense counsel asked to confer with his
client, and the court recessed.
After the court’s recess, the state advised the court that the parties had
reached an agreement. There was no further discussion regarding Nevels’s desire to
retain a different attorney. Nevels agreed to plead guilty to the rape in Count 1, as
amended, to be classified as a sexual predator, and to have no contact with the
victim. In exchange for the guilty plea, the state agreed to amend Count 1 to delete
the one-year firearm specification and the sexually violent predator specification.
The state also agreed to request the remaining charges be nolled. Finally, the state
advised the court that the parties agreed to a recommended ten-year sentence,
which included seven years on the base charge and three years on the three-year
firearm specification, to run consecutive to Nevels’s case in CR-03-437396. The
state noted for the record that the public defender was present for the hearing. The
public defender confirmed the plea agreement, advised the court that she was
initially involved in the case so she was familiar with the discovery and the facts of
the case, she had met with Nevels previously on several occasions, and the plea is
being made knowingly, voluntarily, and intelligently.
The court then asked Nevels if he wished to take the plea agreement,
to which Nevels responded, “No, I don’t but — no, I don’t, but I have to.” The court
explained to Nevels that he does not have to take the plea agreement if he does not
wish to, and Nevels replied, “Yes, I do, because if I don’t, I go to trial and lose, I’m
going to do life. I don’t want to do my life. I want to see my son, my wife, so I’m
going to take this * * * Yes.” At that point, the court engaged in a Crim.R. 11 colloquy,
asking Nevels if he can read and write and if he understands the proceeding, to
which Nevels replied, “Yes.” Nevels advised the court that he was not under the
influence of any drugs or alcohol and that he was satisfied with the representation
he received from his attorneys.
The court proceeded to advise Nevels of the constitutional rights he
was waiving by pleading guilty, as well as the nature of the charge and its possible
maximum sentence of 10 years in prison and a maximum fine of $20,000. The court
also advised Nevels that the firearm specification must be served consecutive to any
sentence he received. Nevels indicated that he understood the court’s advisements.
The court asked Nevels if he understood that there was a recommended agreed
sentence of ten years, which included seven years for the rape and three years for
the firearm specification, and the sentence would be served consecutive to his prior
case, CR-03-437396. Nevels said, “Yes, I do,” but he then requested the sentence be
run concurrently, stating, “I don’t mean to be disrespectful, but is there any way I
can get it [run] concurrent * * *.” The transcript of the hearing noted that “defense
counsel and their client conferred.” Nevels then apologized, the court explained the
agreed sentence to Nevels, and he stated that he understood. Thereafter, the court
discussed Nevels’s postrelease control and his agreed sexual predator classification
and Nevels stated that he understood.
The hearing continued as follows:
Court: How do you plea[d], sir, guilty or not guilty?
Defendant: Guilty. Guilty.
Court: And are you, in fact, guilty, sir?
Defendant: No, I’m not.
Court: Oh, then we’ll go to trial.
Defendant: Huh?
Court: If you’re not guilty—
Defendant: Yes.
Court: — we’ll go to trial.
Defendant: Yes. Yes.
Court: If you’re not guilty, we can go to trial and the jury will find
you not guilty. But if you’re guilty and we go to trial,
they’ll find you guilty. And nobody can tell you what to
do. You have to make up your own mind. You
understand?
Defendant: Yes.
Court: So let’s try it again. How do you plea[d], guilty or not
guilty?
Defendant: Guilty.
Court: And are you, in fact, guilty?
Defendant: Yes.
At this point, the court found that Nevels entered his plea knowingly,
voluntarily, and “with a full understanding of his constitutional and trial rights.”
And the prosecutor, the public defender, who was serving in an advisory capacity,
and Nevels’s retained attorney agreed that the court complied with Crim.R. 11. The
court then accepted Nevels’s guilty plea.
The following morning, the court held a sentencing hearing. The state
advised the court that the victim could not be present but she was satisfied with the
plea and the recommended agreed sentence. The court asked Nevels if he wished to
address the court. Although Nevels conceded that he pleaded guilty the previous
day, he now attempted to explain to the court that he believed he “had no choice”
but to take the plea. The following exchange occurred:
Defendant: I just want to apologize to my son and my wife, my family
for putting myself in the position. I apologize to the court
for putting myself in the position. I just — I don’t want
to be that guy, but I took the plea because I had no choice.
Court: No. You took the plea, and you said you did it.
Defendant: Okay. I did, but — that’s all. That’s all.
Court: No one’s forced you to plea.
Defendant: Okay.
Court: In this courtroom, if you’re not guilty, you say you’re not
guilty. If the jury believes that you’re not guilty, they’ll
find you not guilty. If they believe you’re guilty, they’ll
find you guilty.
Thereafter, the court heard from Nevels’s retained attorney, and the
public defender declined to add any additional comments. The court then imposed
a prison sentence consistent with the parties’ agreement: seven years on the base
charge of rape, plus three years on the firearm specification, to be served consecutive
to the base charge. The court also ordered the sentence in this case to be served
consecutive to Nevels’s case in CR-03-437396, and it made consecutive sentence
findings. Finally, the court found Nevels to be a sexual predator, advised him of his
reporting requirements, and advised Nevels of his postrelease control.
Nevels now appeals from his conviction, assigning two errors for our
review.
Assignments of Error
I. Appellant’s guilty plea is unconstitutional and must be vacated
as it was not entered knowingly, intelligently, and voluntarily,
where the appellant maintained his innocence when entering
his plea and the trial court failed to comply with the Alford
mandates by conducting the required inquiry and properly
advising Appellant prior to accepting the plea.
II. Appellant’s guilty plea must be vacated as he was denied his
Sixth Amendment right to competent trial counsel, which
negatively prevented him from defending the charges against
him, and the cumulative errors of counsel resulted in him
erroneously entering a guilty plea, which was not made
knowingly, intelligently, and voluntarily due to the serious
deficiency in the representation without such Appellant would
not have entered a guilty plea.
Guilty Plea
In his first assignment of error, Nevels contends that his guilty plea
was not knowingly, intelligently, and voluntarily made where he maintained his
innocence when entering his plea and the court failed to comply with the mandates
of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and
where he did not understand the nature of the charges and the possible penalties.
Where a defendant enters a guilty plea in a criminal matter, “the plea
must be made knowingly, intelligently, and voluntarily[, and f]ailure on any of those
points renders enforcement of the plea unconstitutional under both the United
States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525,
527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. In determining whether a criminal
defendant knowingly, intelligently, and voluntarily entered a guilty plea, we must
first review the record to determine whether the trial court complied with
Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128-129, 566 N.E.2d 658 (1991);
State v. Brown, 8th Dist. Cuyahoga No. 107933, 2019-Ohio-3516, ¶ 17.
Crim.R. 11(C) delineates certain constitutional and procedural
requirements with which a trial court must comply prior to accepting a guilty plea.
Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony case
without personally addressing the defendant and doing all of the following:
(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 * * *, 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.
The purpose of Crim.R. 11(C)(2) is “to convey to the defendant certain
information so that he [or she] can make a voluntary and intelligent decision
whether to plead guilty.” State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d
115 (1981); State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 5.
When a trial court complies with Crim.R. 11(C)(2) in accepting a plea, there is a
presumption that the defendant’s plea was knowingly, intelligently, and voluntarily
made. State v. Nelson, 8th Dist. Cuyahoga No. 107823, 2019-Ohio-3365, ¶ 16. In
considering whether a plea was made knowingly, intelligently, and voluntarily, we
examine the totality of the circumstances through a de novo review. State v.
Albright, 8th Dist. Cuyahoga No. 107632, 2019-Ohio-1998, ¶ 16.
Crim.R. 11(C)(2)(c) sets forth the five constitutional rights a trial court
must advise a defendant he is waiving before the court can accept a guilty plea. State
v. Rembert, 8th Dist. Cuyahoga No. 99707, 2014-Ohio-300, ¶ 8, citing Boykin v.
Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial
court must strictly comply with advisements concerning a defendant’s constitutional
rights delineated in Crim.R. 11(C)(2)(c). Rembert. Where the trial court fails to
explain these constitutional rights, it is presumed the plea was entered involuntarily
and was unknowingly made and therefore invalid. State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.
Crim.R. 11(C)(2)(a) and (b) delineate a defendant’s nonconstitutional
rights, such as the nature of the charges, the maximum possible penalty, and the
effect of the guilty plea. The substantial-compliance standard of review applies to
these rights. State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). Under
this standard, a slight deviation from the text of the rule is permissible, so long as
the totality of the circumstances indicates that the defendant subjectively
understands the implications of his plea and the rights he is waiving. Id. And a
defendant who challenges his plea must show prejudice — whether the plea would
not have otherwise been made. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d
474 (1990); State v. Wilkerson, 8th Dist. Cuyahoga No. 100865, 2014-Ohio-3919,
¶ 11.
The Ohio Supreme Court has noted that there is “no easy or exact way
to determine what someone subjectively understands,” but where the defendant
receives the proper information, “we can ordinarily assume that he understands that
information.” State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979); Nelson,
8th Dist. Cuyahoga No. 107823, 2019-Ohio-3365, at ¶ 19. In deciding whether the
defendant had the required information, we look at the facts and circumstances
surrounding the case. Carter.
Here, Nevels contends, notwithstanding the Crim.R. 11 plea colloquy,
that he made claims of innocence that amounted to an Alford plea such that the trial
court was required to additionally inquire into the factual circumstances
surrounding his charges. And because the court failed to so inquire, according to
Nevels, his plea must be vacated.
A guilty plea that is made contemporaneously with claims of
innocence is known as an Alford plea. North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162 (1970); Albright, 8th Dist. Cuyahoga No. 107632,
2019-Ohio-1998 at ¶ 23; Wilkerson, 8th Dist. Cuyahoga No. 100865, 2014-Ohio-
3919, at ¶ 17 (“An Alford plea results when a defendant pleads guilty yet maintains
actual innocence of the crime charged.”). And where a defendant enters an Alford
plea, the trial court must inquire into the factual basis surrounding the charges to
determine whether the defendant is making an intelligent and voluntary guilty plea.
Albright at ¶ 23, citing State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-
4478, ¶ 6. The trial court may then accept the guilty plea only if a factual basis for
the guilty plea exists in the record. Id. “[A] guilty plea may be accepted despite
protestations of innocence where the validity of the plea cannot seriously be
questioned in view of a strong factual basis for the plea demonstrated by the record.”
State v. Casale, 34 Ohio App.3d 339, 340, 518 N.E.2d 579 (8th Dist.1986), citing
Alford.
Although neither Nevels nor his trial counsel specifically represented
to the trial court that Nevels was making an Alford plea, a valid Alford plea exists
where the defendant enters a guilty plea while proclaiming his innocence on the
record. State v. Johnson, 8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 27.
Here, Nevels arguably claimed his innocence on three occasions, one of which was
made contemporaneously with his guilty plea.
The record demonstrates that prior to the plea colloquy, the trial court
questioned defense counsel’s experience with felony cases. When Nevels addressed
the court’s concern in this regard, he contemplated retaining a new attorney, stating
that he would like to have “the best person representing me” because “I know my
innocence in this case.” After a brief recess, during which defense counsel conferred
with Nevels, the prosecutor advised the court that a plea agreement had been
reached and she outlined the terms of the agreement on the record. At this point,
the following exchange occurred:
Court: Mr. Nevels, do you wish to take the plea agreement?
Defendant: No, I don’t but — no, I don’t, but I have to.
Court: If you don’t want to take it, you don’t have to.
Defendant: Yes, I do, because if I don’t, I go to trial and lose, I’m
going to do life. I don’t want to do my life. I want to see
my son, my wife, so I’m going to take this —
Court: So do you want to take this plea agreement?
Defendant: Yes.
Despite Nevels’s apparent concerns, he proceeded with the plea
colloquy. After the court advised him of his constitutional and procedural rights and
explained his sentence, the court asked Nevels how he wished to plead, and he
replied, “Guilty.” When the court next asked him if he was in fact guilty, Nevels said,
“No, I am not.” Rather than inquiring into Nevels’s assertion, the court stated, “If
you’re not guilty, we can go to trial and the jury will find you not guilty. But if you’re
guilty and we go to trial, they’ll find you guilty. And nobody can tell you what to do.
You have to make up your own mind. You understand? * * * So let’s try it again.
How do you plea[d], guilty or not guilty?” Nevels then pleaded guilty and stated that
he was in fact guilty.
The proper taking of a guilty plea requires “a meaningful dialogue
between the court and the defendant.” Garfield Hts. v. Brewer, 17 Ohio App.3d 216,
218, 479 N.E.2d 309 (8th Dist.1980). And where a defendant protests innocence
but nevertheless is willing to plead guilty, the trial court must determine that the
defendant “has made a rational calculation” to plead guilty notwithstanding his
belief that he is innocent. State v. Padgett, 67 Ohio App.3d 332, 338-339, 586
N.E.2d 1194 (2d Dist.1990). The defendant’s protestations require the court’s
inquiry, “at a minimum,” into the defendant’s reasons for deciding to plead guilty
notwithstanding his purported innocence and the defendant’s protestations may
require “inquiry concerning the state’s evidence in order to determine that the
likelihood of the defendant being convicted of offenses of equal or greater magnitude
than the offenses to which he is pleading guilty is great enough to warrant an
intelligent decision to plead guilty.” Id.Here, the totality of the record shows that the trial court failed to
engage Nevels in any meaningful dialogue concerning the sincerity of his statement
that he was not guilty. Although Nevels indicated at some point in the hearing that
he was taking the plea to avoid facing a life prison term, the trial court did not at any
time inquire into the factual basis surrounding the charges to determine that
Nevels’s fear of receiving a life sentence was knowing and intelligent “in the sense
that it was a rational response” to the state’s evidence. Padgett at 339. In fact, the
record is devoid of any discussion of the facts or evidence concerning the alleged
offense from 2001 “against which the trial court could weigh [Nevels’s] claims of
innocence against [his] willingness to waive trial.” Casale, 34 Ohio App.3d at 340,
518 N.E.2d 579. The court’s advisement that Nevels “can go to trial” if he believes
he is innocent is insufficient for purposes of satisfying the mandates of an Alford
plea.
Under the unique circumstances presented here, where the court
initially expressed concerns regarding defense counsel’s experience in handling
first-degree felony cases and Nevels expressed a desire to obtain “the best” counsel
in light of his innocence, we find that the trial court erred in accepting Nevels’s guilty
plea. The guilty plea was not made knowingly, intelligently, or voluntarily in light of
the fact that the trial court accepted Nevels’s plea without inquiring into a factual
basis of the charges after Nevels offered statements of innocence. State v. Jones,
8th Dist. Cuyahoga No. 97674, 2012-Ohio-2512, ¶ 8.
Nevels’s first assignment of error is sustained.
Based on our resolution of Nevels’s first assignment of error, his
second assignment of error alleging ineffective assistance of counsel is moot.
Judgment reversed, and case remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
ANITA LASTER MAYS, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR