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State v. Billiter

Court of Appeals of Ohio, Fourth District, Scioto

February 27, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JAROD E. BILLITER, Defendant-Appellant.

          Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

          Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.

          DECISION AND JUDGMENT ENTRY

          Marie Hoover, Presiding Judge.

          {¶ 1} Defendant-appellant, Jarod Billiter ("Billiter"), appeals the judgment of the Scioto County Court of Common Pleas convicting him of multiple trafficking offenses and sentencing him to 54 months in prison. On appeal, Billiter contends that the trial court erred in (1) accepting pleas that were unknowingly, unintelligently, and involuntarily made, and (2) failing to make the necessary consecutive-sentence findings.

         {¶ 2} For the following reasons, we affirm the judgment of the trial court.

         I. Facts and Procedural History

         {¶ 3} On February 19, 2015, Billiter was indicted on two counts of trafficking in heroin in an amount less than 1 gram in violation of R.C. 2925.03(A)(1), 2925.03(C)(6)(a), and 2925.03(C)(6)(b), felonies of the fourth degree; one count of aggravated trafficking in fentanyl in an amount less than the bulk amount in violation of R.C. 2925.03(A)(1) and 2925.03(C)(1)(a), a felony of the fourth degree; one count of aggravated trafficking in fentanyl in an amount less than the bulk amount in the vicinity of a juvenile, in violation of R.C. 2925.03(A)(1), 2925.03(C)(1)(a), a felony of the third degree; one count of possession of heroin in an amount less than one gram, in violation of R.C. 2925.11(A) and 2925.11(C)(6)(a), a felony of the fifth degree; two counts of aggravated possession of fentanyl in an amount less than the bulk amount, in violation of R.C. 2925.11(A) and 2925.11(C)(1)(a), felonies of the fifth degree; one count of possession of heroin in an amount less than five grams in violation of R.C. 2925.11(A) and 2925.11(C)(6)(b), a felony of the fourth degree; and one count of endangering children in violation of R.C. 2919.22(A) and 2929.22(E)(2)(a), a misdemeanor of the first degree. He pleaded not guilty.

         {¶ 4} On September 17, 2015, a change-of-plea hearing was held. The trial court indicated that a negotiated plea agreement had been reached and summarized that agreement as follows:

It's the Court's understanding he's going to change his plea to Counts 1 and 3 Trafficking in Heroin, both felonies of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(6)(A), Count 2 Aggravated Trafficking, a felony of the fourth degree, in violation of 2925.03(A)(1) and 2925.03(C)(1)(A), and Count 4 Aggravated Trafficking, a felony of the third degree, in violation of 2925.03(A)(1), 2925.03(C)(1)(A) and 2925.03(C)(1)(B).
The record should further reflect its a negotiated plea, pursuant to Section 2953.08(D), and Criminal Rule 11F, that as long as he abides by his conditions of bond he will receive an aggregate three year prison term with eligibility for judicial release at two years as long as he has no disciplinary conduct marks while he's in prison and participates in every single program they offer him. I'll grant him a conditional release for thirty days beginning - - as soon as he gets hooked up with his * * * bracelet for electronically monitored house arrest, leaving the sentencing for October 16th, 2015 at 11:30.
If he messes this up in any way I'm going to max him on every case, which means you get three, four and a half, five, six, seven and a half years. I'm doing this so he can be there to witness the birth of his baby.

(Emphasis added.)

         {¶ 5} Billiter subsequently entered a plea of guilty to two counts of trafficking in heroin in violation of R.C. 2925.03(A)(1) and 2925.03(C)(6)(a), felonies of the fourth degree, one count of aggravated trafficking in violation of R.C. 2925.03(A)(1), 2925.03(C)(1)(a), and 2925.03(C)(1)(b), a felony of the third degree, and one count of aggravated trafficking in violation of R.C. 2925.03(A)(1) and 2925.03(C)(1)(a), a felony of the fourth degree.

         {¶ 6} On October 16, 2015, Billiter appeared for his sentencing hearing, and tested positive for heroin and suboxone. At the beginning of the hearing, the trial court explained that Billiter had already entered into a negotiated plea in which he would "get three years and be judicially released at two years." However, the trial court continued with the following:

* * * I let him out and he's tested positive for heroin and suboxone today.
Now we'll renegotiate the plea, Mr. Edwards, that the total plea will be four years and six months, with eligibility for judicial release to [start] at three years as long as he has no disciplinary conduct marks against him while he's in prison and participates in every single program they offer him. If he has disciplinary conduct marks and fails-or fails to participate in any one program then he will serve the entire prison term.

         {¶ 7} The trial court inquired of Billiter's trial counsel, the prosecutor, and Billiter as to whether this was their understanding of the renegotiated agreement. All answered affirmatively.

         {¶ 8} The trial court then sentenced Billiter to a total of 54 months in prison. His convictions and sentence were journalized by way of entry dated October 20, 2015. All remaining counts of the indictment were dismissed. The sentencing entry refers to Billiter's sentence as an "agreed sentence."

         {¶ 9} Billiter appealed, but his counsel advised us that he had reviewed the record and could discern no meritorious claim for appeal. Counsel moved for leave to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In January 2017, we granted the motion to withdraw but having found one potentially arguable issue for appeal, we assigned present counsel to brief the potentially arguable issue as well as any other issues found in the record.[1]

         {¶ 10} Billiter's brief is now before the Court.

         II. Assignments of Error

         {¶ 11} Billiter assigns the following errors for our review:

Assignment of Error No. I:
BILLITER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN ...

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