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State v. Christian

Court of Appeals of Ohio, Seventh District, Mahoning

December 22, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TERRIAN CHRISTIAN DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 1118A

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Edward A. Czopur DeGenova & Yarwood, Ltd.

          JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb

          OPINION

          WAITE, J.

         {¶1} Appellant Terrian Christian appeals an August 30, 2016 decision of the Mahoning County Common Pleas Court finding him guilty of felonious assault, having a weapon while under disability, and a firearm specification. Appellant argues that the trial court did not strictly comply with the advisement of his right to compulsory process, thus his plea was not made knowingly, intelligently, and voluntarily. Appellant also argues that the court abused its discretion when it denied his presentence motion to withdraw the plea. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} On December 3, 2015, Appellant was indicted on one count of felonious assault, a felony of the second degree in violation R.C. 2903.11 (A)(2), (D), one count of having a weapon while under a disability, a felony of the third degree in violation of R.C. 2923.13(A)(2), (B), a firearm specification in violation of R.C. 2941.145(A), and a repeat violent offender specification in violation of R.C. 2941.149(A) and R.C. 2929.01(CC). The charges stem from a dispute that resulted in a shooting. Also charged were Appellant's two codefendants.

         {¶3} On July 11, 2016, the state made a "global offer" to all three defendants. The offer was conditioned on acceptance by all three. The state agreed to dismiss the violent offender specification and recommend an aggregate sentence of seven years of incarceration. Appellant and his codefendants each accepted the offer. In accordance with Crim.R. 11, the trial court entered into a colloquy with each defendant before accepting their guilty pleas.

         {¶4} On August 25, 2016, the trial court held a sentencing hearing. On the morning of the sentencing hearing, Appellant and one of his codefendants orally moved to withdraw their pleas. Immediately after these motions were made, the trial court held a hearing. Appellant, for the first time, asserted his innocence and requested to withdraw his plea. After the hearing, the court denied both defendants' motions and immediately proceeded to sentencing. The trial court acknowledged that Appellant was less culpable than a codefendant and sentenced him to a lesser sentence. In the aggregate, Appellant received the minimum sentence: six years of incarceration. The trial court credited him with 305 days of jail time served, which the court applied to the mandatory firearm specification. This timely appeal followed.

         ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT DID NOT COMPLY WITH CRIM. R. 11 (C)(2)(C) IN THAT IT DID NOT INFORM APPELLANT OF HIS RIGHT TO COMPULSORY PROCESS, THEREFORE, THE PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY REQUIRING REVERSAL.

         {¶5} Appellant argues that his plea was not entered into knowingly, voluntarily, and intelligently because the trial court failed to strictly comply with the notification of his right to compulsory process. Appellant argues that the court's advisement that "if you wish, [you can] bring witnesses into court if you believe that helps your case" did not strictly comply with Crim.R. 11. (7/11/16 Plea Hrg. Tr., pp. 25-26.)

         {¶6} In response, the state cites to several cases where similar language has been found to comply with Crim.R. 11, including this Court's Opinion in State v. Jenkins, 7th Dist. No. 15 MA 0202, 2016-Ohio-8563. The state also argues that the written plea agreement can be used to resolve any ambiguity about whether a defendant was notified of his rights.

         {¶7} Before a trial court may accept a defendant's guilty plea, the court must inform the defendant of his constitutional and nonconstitutional rights. State v. Rowbotham, 173 Ohio App.3d 642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 7 (7th Dist.), citing State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus. A defendant's constitutional rights include a privilege against compulsory self-incrimination, right to a jury trial, right to confront his accusers, and right to compulsory process. Id. A trial court must strictly comply with the advisement of a defendant's constitutional rights, however, the court need not recite the exact language of Crim.R. 11. State v. Wheeler, 7th Dist. No. 08 MA 53, 2009-Ohio-2647, ¶ 23, citing Ballard, supra, at paragraph two of the syllabus.

         {¶8} A defendant's nonconstitutional rights include: (1) the nature of the charges, (2) the maximum penalty involved, (3) whether the defendant is eligible for probation, and (4) that the court may immediately proceed to sentencing after accepting the plea. Rowbotham, supra, at ¶ 18. The court's advisement of a defendant's nonconstitutional rights is reviewed for substantial compliance. Id.

         {¶9} Appellant solely contests whether the trial court strictly complied with the requirement to notify him of his right to compulsory process. At the plea hearing, the trial court stated: "You have a right also, if you wish, to bring witnesses into court if you believe that helps your case, " which Appellant argues did not strictly comply with Crim.R. 11. (7/11/16 Plea Hrg. Tr., pp. 25-26.) In Jenkins, we held that the following advisement was fully compliant with Crim.R. 11: "[a]nd if you wanted to, you can bring witnesses in on your own behalf; although, you have no obligation to do or say anything." Id. at ¶ 10. The advisement given to Appellant in the instant case is virtually identical to that given in Jenkins.

         {¶10} Further, according to the Ohio Supreme Court, other portions of the record, such as the written plea agreement, can be reviewed when resolving any ambiguity. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25. Here, Appellant's written plea agreement stated: "I WAIVE CERTAIN FUNDAMENTAL CONSTITUTIONAL AND STATUTORY RIGHTS, NAMELY * * * TO HAVE COMPULSORY SUBPOENA PROCESS FOR OBTAINING WITNESSES IN MY FAVOR." (7/12/16 Plea Agreement, p. 4.) Pursuant to Barker, this language can be used to show that Appellant was adequately informed of his right to compulsory process.

         {¶11} In accordance with Jenkins and Barker, the trial court strictly complied with the advisement of Appellant's right to compulsory process. As such, Appellant's ...


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