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.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN JUDGE.
Defendant-Appellant, Terrance Allen, appeals from his
convictions in the Summit County Court of Common Pleas. This
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.
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.
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
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.
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).
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.
OF ERROR NO. 2
TRIAL COURT ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS
BECAUSE THEY WERE NOT KNOWINGLY, VOLUNTARILY, AND
OF ERROR NO. 3
TRIAL COURT ERRED IN DENYING THE PRO SE MOTION TO WITHDRAW
THE GUILTY PLEAS
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.
"'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.
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.
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.
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]