Court of Appeals of Ohio, Fourth District, Scioto
L. Meade, Parks and Meade, L.L.C., Columbus, Ohio, for
E. Kuhn. Scioto County Prosecuting Attorney, and Jay Willis,
Scioto County Assistant Prosecuting Attorney, Portsmouth,
Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
WILLIAM H. HARSHA, JUDGE
After Christopher McIntosh entered a guilty plea to various
criminal charges, the trial court sentenced him to prison.
McIntosh claims that his guilty plea is invalid for two
Initially, he claims that his plea is invalid because the
trial court failed to substantially comply with Crim.R. 11 by
not explicitly advising him that the mandatory four-year term
of his prison sentence rendered him ineligible for community
control. However, he concedes the trial court partially
complied with Crim.R. 11(C)(2)(a) by advising him during his
change-of-plea hearing that he would receive a four-year
mandatory prison term for his second-degree felony conviction
for aggravated possession of drugs. Furthermore, at the end
of the sentencing hearing McIntosh confirmed with the court
that the initial four years of his sentence would be
mandatory prison time. And McIntosh cites no evidence that if
the trial court had taken greater care in advising him about
his mandatory prison term and consequent ineligibility for
community control, he would not have entered his guilty plea
to the charges. We reject his first claim.
Next McIntosh asserts that his plea is invalid because it was
not voluntary, i.e. the trial court and the state improperly
induced him to make the plea in order to allow his girlfriend
to avoid a harsher sentence. Although this form of plea
bargaining presents the accused with unpleasant alternatives,
it is not unconstitutionally coercive as long as the state
acts in good faith. Therefore, courts have consistently
upheld pleas against claims of involuntariness due to
coercion where the state offered lenient treatment to a
person other than the defendant. McIntosh did not establish
that his plea was involuntary.
Therefore, we overrule McIntosh's assignments of error
and affirm his convictions and sentence.
In Scioto C.P. Case No. 16CR411, the Scioto County Grand Jury
returned an indictment charging Christopher McIntosh with two
counts of aggravated trafficking in drugs, one count of
trafficking in drugs, two counts of aggravated possession of
drugs, one count of possession of drugs, one count of having
weapons while under disability, and one count of receiving
stolen property, with firearm and forfeiture specifications
for the drug charges and a forfeiture specification for the
having weapons while under disability charge.
In Scioto C.P. Case No. 16CR617(A) and (B), the Scioto County
Grand Jury returned an indictment charging McIntosh and his
girlfriend, Tammy Criteser, with two counts of aggravated
trafficking in drugs, with accompanying forfeiture
specifications, and one count of possession of drugs.
After initially pleading not guilty, McIntosh executed
written waivers of his rights to a jury trial and pleaded
guilty to one count of aggravated possession of drugs, a
second-degree felony, with a forfeiture specification, one
count of having weapons while under disability, and one count
of receiving stolen property in Case No. 16CA411; he also
pled guilty to one count of aggravated possession of drugs
with a forfeiture specification in Case No. 16CA617(A). In a
written form entitled "MAXIMUM PENALTY," McIntosh
and his trial counsel certified that he understood that the
maximum penalty for his second-degree felony of aggravated
possession of drugs in Case No. 16CA411 included a maximum
prison term of eight years, and that this prison term was
both "mandatory" and "presumed
necessary." The form also stated that "[i]f this
court is not required by law to impose a prison sanction, it
may impose a community control sanction or non-prison
sanction upon you." The form advised that "[c]ourt
costs, restitution and other financial sanctions including
probation fees may be imposed," with the term
"probation fees" typed into a blank on the waiver
The trial court then held a hearing on McIntosh's request
to change his plea in Case Nos. 16CA411 and 16CR617(A). At
the outset of the hearing the state noted that McIntosh was
facing a potential prison term of 26 ½ years on the
indictments, but that it had made a plea offer for him to
receive a prison term of eight years, with four of those
years being mandatory, that he would thereafter be eligible
for early release, and if he pleaded guilty, the state would
recommend community control for his girlfriend, Criteser, in
Case No. 16CR617(B).
McIntosh's trial counsel informed the trial court that he
had conveyed the state's offer and that McIntosh said he
would be willing to accept it if he were allowed out on bail
for 20 days. However, the court indicated it was not willing
to release him on bail. At that point the following exchange
MR. MEARAN: So sir, is it your desire then not to accept the
offer made knowing that you're not going to get out and
knowing that you're facing 26 - possibility of 26 years?
DEFENDANT MCINSTOSH: It's not my desire to -- I accept
the offer but I would like to speak to my family members and
let them know the offer presented to me this day.
MR. MEARAN: Sir, I gave you that offer two days ago, tried to
even call your family two days ago, so I don't think that
there's any more time left. We either accept it now or we
go to trial.
DEFENDANT MCINSTOSH: May I -- may I request 24 hours, please.
MR. KUHN: We've already got people scheduled in on this,
Your Honor. I've got prep to do. To be honest, it'd
be less work on me just to go ahead and try the case. If he
wants to accept it today, I made the offer and I'll leave
it open to both of them, but otherwise, I've waited long
enough. We should have done this last week.
DEFENDANT MCINTOSH: * * * I did not get in touch with my
love[d] ones at this time. I will definitely do so tonight. I
can contact Mr. Mearan first thing in the morning. Mr. Kuhn,
Judge Marshall, please, I ask you to give me that one day, 24
MR. KUHN: We're ready to go ahead and withdraw the offer,
Your Honor. I've waited long enough.
THE COURT: So * * * you take it now or you've lost it
forever, and if you don't take the offer and she's
found guilty, her offer is off the table too and she
doesn't get Star. Ms. Criteser, do you understand the
DEFENDANT CRITESER: Yes, I do.
THE COURT: Okay. You understand it's being withdrawn
based on Mr. McIntosh's decision?
DEFENDANT CRITESER: I understand, but I -- I don't like
THE COURT: I -- I wouldn't like it either, but I'd
DEFENDANT MCINTOSH: I don't have a choice.
MR. MEARAN: You want to take the offer?
DEFENDANT MCINSTOSH: I have no choice.
MR. MEARAN: You don't. Do we have the ...