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State v. Hayden

December 4, 2008

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES HAYDEN DEFENDANT-APPELLANT



Criminal Appeal from the Cuyahoga County Court of Common Pleas. Case Nos. CR-490420, CR-491478, and CR-492545. JUDGMENT: AFFIRMED.

The opinion of the court was delivered by: Anthony O. Calabrese, Jr., J.

JOURNAL ENTRY AND OPINION

BEFORE: Calabrese, J., Sweeney, A.J., and McMonagle, J.

{¶1} Defendant James Hayden (appellant) appeals his conviction and sentence for robbery and the denial of his motion to withdraw guilty plea, and alleges ineffective assistance of counsel. After reviewing the facts of the case and pertinent law, we affirm.

I.

{¶2} In December 2006 and February 2007, appellant was indicted for receiving stolen property, robbery, and escape in three separate cases. On September 5, 2007, appellant pled guilty to two counts of receiving stolen property, one count of robbery, and one count of escape. Subsequently, appellant filed a motion to withdraw his guilty plea relating only to the escape charge. On September 14, 2007, the court held a hearing on appellant's motion, which the court denied the same day. The court then sentenced appellant to an aggregate of 20 months in prison.

II.

{¶3} In appellant's first assignment of error, he argues that "[t]he robbery conviction and sentence must be vacated due to the State's failure to include a mens rea element in the indictment and amended indictment in violation of State v. Colon, 2008 Ohio 1624 and the Ohio and federal Constitutions."

{¶4} In State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), the Ohio Supreme Court held that an indictment for robbery in violation of R.C. 2911.02(A)(2) was defective because it failed to charge recklessness as the mens rea, which is an essential element of the crime. Id. at ¶19.

{¶5} In the instant case, we are asked to apply the Colon I holding to a case in which the defendant pled guilty to robbery in violation of R.C. 2911.02(A)(3). We decline to extend Colon I to cases in which the defendant pled guilty to the indictment.

{¶6} On July 31, 2008, the Ohio Supreme Court issued State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749 (Colon II), a reconsideration of the court's holding in Colon I. In Colon II, the court limited the holding of Colon I to "rare cases, *** in which multiple errors at the trial follow the defective indictment." The instant case did not go to trial; therefore, it can be distinguished from Colon I. Furthermore, "[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he 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. Spates (1992), 64 Ohio St.3d 269, 272 (quoting Tollett v. Henderson (1973), 411 U.S. 258, 267). See, also, State v. Gant, Allen App. No. 1-08-22, 2008-Ohio-5406 (holding that "[t]his Court is not persuaded that the Court in Colon was also overruling the longstanding waiver rules with regard to guilty pleas. Accordingly, this Court finds that Gant admitted guilt of the substantive crime of burglary and has, therefore, waived any alleged indictment defects for purposes of appeal").

{¶7} Appellant's first assignment of error is overruled.

III.

{ΒΆ8} In his second assignment of error, appellant argues that "the trial court erred to the prejudice of the appellant in denying his motion to withdraw his guilty plea as to CR 492545 (Escape) in violation of ...


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