Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Allen

Court of Appeals of Ohio, Ninth District, Summit

May 17, 2017

STATE OF OHIO Appellee
v.
TERRANCE ALLEN Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2013 01 0276 (A)

          APPEARANCES: MARK H. LUDWIG, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN JUDGE.

         {¶1} Defendant-Appellant, Terrance Allen, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.

         I.

         {¶2} In 2013, Allen's four-year-old son tragically shot himself in the head while riding in the backseat of Allen's car. When the police initially spoke with Allen, he claimed that there was no gun in the car. The police later found the gun the victim had used under the passenger's seat of the car, tucked behind several items. The police learned that Allen was under disability, but, a year earlier, had convinced a woman with whom he was having a sexual relationship to purchase the gun and give it to him, such that it was registered in her name. It is undisputed that the victim was playing with the gun in Allen's house the week before he shot himself. Allen's wife, his son, and his step-son were temporarily living with him, despite the fact that his wife had obtained a protection order against him.

         {¶3} A grand jury indicted Allen on charges of involuntary manslaughter, with child endangering as its predicate offense; tampering with evidence; child endangering; having a weapon under disability; and violating a protection order. Following a period of discovery, Allen retracted his initial plea and signed a written guilty plea. The plea agreement provided that the State would dismiss the charges of tampering with evidence and child endangering in exchange for Allen pleading guilty to his three remaining charges. It also provided that the State would not make a sentencing recommendation, but that both sides would present arguments after reviewing the pre-sentence investigation report. The court ultimately accepted Allen's guilty plea and imposed an eight-year prison sentence.

         {¶4} Subsequently, Allen, acting pro se, attempted to file two delayed appeals from his judgment of conviction. Because his filings were procedurally defective, however, this Court denied his motions for delayed appeal. See State v. Allen, 9th Dist. Summit No. 27111 (Oct. 29, 2013); State v. Allen, 9th Dist. Summit No. 27254 (Mar. 19, 2014). Allen then filed a motion to withdraw his guilty plea, and the State opposed the motion. The trial court denied Allen's motion, but Allen did not initially appeal from the denial.

         {¶5} Following the denial of his motion to withdraw, Allen once again sought to appeal from his original judgment of conviction. This Court granted his motion for delayed appeal and appointed him appellate counsel, but his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and sought to withdraw from representation. Allen then responded with a pro se brief on the merits, and the State responded in opposition. Upon review, this Court determined that arguable issues for appeal existed. As such, this Court granted first appointed counsel's motion to withdraw and appointed Allen new counsel.

         {¶6} Allen's newly appointed counsel filed another motion for delayed appeal, seeking to challenge the trial court's denial of Allen's motion to withdraw his plea. This Court granted the motion for delayed appeal and ordered Allen's two appeals consolidated for purposes of briefing and decision. See State v. Allen, 9th Dist. Summit Nos. 27494 & 28213 (May 20, 2016).

         {¶7} Allen's appeals are now before this Court and raise six assignments of error for our review. For ease of analysis, this Court rearranges and consolidates several of the assignments of error.

         II.

         ASSIGNMENT OF ERROR NO. 2

         THE TRIAL COURT ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS BECAUSE THEY WERE NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED.

         ASSIGNMENT OF ERROR NO. 3

         THE TRIAL COURT ERRED IN DENYING THE PRO SE MOTION TO WITHDRAW THE GUILTY PLEAS[]

         {¶8} In his second and third assignments of error, Allen argues that the trial court erred by accepting his plea and denying his motion to withdraw it. He argues that he did not knowingly, voluntarily, and intelligently enter his plea because the trial court failed to properly explain the nature of his charges and his appellate rights. He further argues that the court abused its discretion when it summarily denied his pro se motion to withdraw, given that the court had repeatedly refused to appoint him counsel. Upon review, this Court concludes that Allen's second and third assignments of error are meritless.

         {¶9} "'When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.'" State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). "To determine whether a plea is being made knowingly, intelligently, and voluntarily, the court must conduct a colloquy with the defendant before accepting a guilty plea in a felony case." State v. Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, ¶ 5.

         {¶10} Under Crim.R. 11(C)(2)(a), a trial court must "[d]etermin[e] that [a] defendant is making [his] plea voluntarily, with understanding of the nature of the charges * * *." The subsection sets forth "nonconstitutional notifications, [so] substantial compliance by a trial court during a plea colloquy is sufficient." State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-4354, ¶ 5, citing Veney at ¶ 15. "'Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.'" State v. Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-2613, ¶ 6, quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990). "[A] defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. The test is whether the plea would have otherwise been made." (Internal citations omitted.) Nero at 108.

         {¶11} Allen argues that the trial court failed to substantially comply with Crim.R. 11(C)(2)(a) during his plea colloquy because it did not fairly inform him of the nature of his charges. He notes that the court told him his child endangering charge was being dismissed, but then nonetheless required him to admit that he caused his son's death "as a result of committing the offense of endangering a child." He alleges, absent further elaboration, the court's explanation of the charges was inadequate.

         {¶12} The record does not support Allen's contention that he was not adequately informed of the nature of his charges. Allen's written plea agreement specified that he agreed to plead guilty to three charges, including involuntary manslaughter, in exchange for the State dismissing two charges, including child endangering. The agreement provided that he had read the agreement, understood it, and understood "the nature of [his] charges and the possible defenses [he] might have." It further provided that, by pleading guilty to the three enumerated charges, he "admit[ted] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.