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State v. Bhambra

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOBANJEET BHAMBRA DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601758-A

          ATTORNEY FOR APPELLANT Michael J. Cheselka

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Kristin M. Karkutt Assistant County

          BEFORE: McCormack, P.J., S. Gallagher, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          TIM McCORMACK, PRESIDING JUDGE

         {¶1} Defendant-appellant Jobanjeet Bhambra appeals from an order of the trial court denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm the trial court.

         {¶2} On December 30, 2015, Bhambra was indicted along with a codefendant on a multiple-count indictment as follows: Count 1 - rape in violation of R.C. 2907.02(A)(2); Count 2 - rape in violation of R.C. 2907.02(A)(1)(c); Count 3 -attempted rape in violation of R.C. 2907.02(A)(2); Count 4 - attempted rape in violation of R.C. 2907.02(A)(1)(c); Count 5 - gross sexual imposition in violation of R.C. 2907.05(A)(1); Count 6 - kidnapping in violation of R.C. 2905.01(A)(4); Count 7 - rape in violation of R.C. 2907.02(A)(2); Count 8 - rape in violation of R.C. 2907.02(A)(1)(c); and Count 9 - kidnapping in violation of R.C. 2905.01(A)(4). The charges arise from the sexual assault of a 17-year-old victim.

         {¶3} Thereafter, Bhambra agreed to accept a plea offer from the state that included an amended charge. On August 3, 2016, the court held a plea hearing, during which the state moved to amend Count 4, attempted rape, to the charge of attempted felonious assault. Bhambra then pleaded guilty to amended Count 4 and Count 5, gross sexual imposition, as indicted, and the state agreed to dismiss the remaining counts of the indictment. On October 14, 2016, the court sentenced Bhambra to three years imprisonment on Count 4 and 18 months on Count 5, to be served concurrently.

         {¶4} Approximately two weeks later, Bhambra filed a motion to withdraw his guilty plea, alleging he is innocent of the charges and his plea was not made knowingly, intelligently, and voluntarily. On November 29, 2016, the trial court denied Bhambra's motion, finding no basis for withdrawal of his plea.

         {¶5} On December 21, 2016, Bhambra appealed, attaching the trial court's order of November 2016. On appeal, however, Bhambra contends in his sole assignment of error that the trial court abused its discretion by permitting the state to amend the indictment from attempted rape to attempted felonious assault at the plea hearing. He argues that the amendment resulted in a change in the identity of the offense charged in the indictment and was therefore improper. Bhambra's appeal does not relate to his motion to withdraw his guilty plea or the trial court's denial of his motion to withdraw.

         {¶6} We note, initially, that a knowing and intelligent guilty plea to an amended indictment waives any alleged error within that indictment on appeal. State v. Johnson, 8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 21, citing State v. Simmons, 8th Dist. Cuyahoga No. 69238, 1997 Ohio App. LEXIS 696 (Feb. 27, 1997). Distinguishing between cases where an indictment is amended pursuant to a plea agreement from cases where an indictment is amended and the case proceeds to trial, this court has stated that where the amendment was made pursuant to a plea bargain in open court with the defendant's voluntary agreement, after full disclosure, an indictment may be amended without returning to the grand jury. Simmons at 6-7, citing State v. Childress, 91 Ohio App.3d 258, 261, 632 N.E.2d 562 (3d Dist.1993). "Since a counseled guilty plea * * * waives a defendant's right to challenge his conviction on constitutional grounds, it must also operate as a waiver of any claimed errors on grounds relating to the wording of the indictments." State v. Hill, 8th Dist. Cuyahoga Nos. 61685, 61686, 1993 Ohio App. LEXIS 641, 14 (Feb. 4, 1993).

         {¶7} Here, Bhambra does not argue on appeal that his plea was not entered knowingly and voluntarily. And we find the record, in fact, demonstrates that Bhambra knowingly and voluntarily agreed to the amended indictment to which he entered a guilty plea pursuant to the plea agreement.

         {¶8} Prior to the defendant's plea, the state advised the court that Bhambra agreed to plead to an amended Count 4, and at this time, the state moved to amend Count 4, attempted rape, to reflect a charge of attempted felonious assault. The state also advised the court that in exchange for the defendant's guilty plea to the amended Count 4 as well as Count 5, as indicted, the state would move to dismiss the remaining counts of the indictment. Finally, the state provided that no threats or promises were made to induce the plea.

         {¶9} Thereafter, the following ...


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