Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2016 CR 00204.
Watkins, Trumbull County Prosecutor; LuWayne Annos, Michael
A. Burnett, and Ashleigh Musick, Assistant Prosecutors, (For
Michael A. Partlow, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, Kevin Deshawn Johnson, appeals from the August 26,
2016, entry on sentence of the Trumbull County Court of
Common Pleas. For the following reasons, the trial
court's judgment is affirmed.
On May 18, 2016, appellant was indicted by the Trumbull
County Grand Jury on the following charges: Count 1,
Possession of Cocaine, a first-degree felony in violation of
R.C. 2925.11(A) & (C)(4)(e); Count 2, Trafficking in
Cocaine, a first-degree felony in violation of R.C.
2925.03(A)(2) & (C)(4)(f); Count 3, Possession of Heroin,
a second-degree felony in violation of R.C. 2925.11(A) &
(C)(6)(d); Count 4, Trafficking in Heroin, a second-degree
felony in violation of R.C. 2925.03(A) & (C)(6)(e); Count
5 & Count 6, Having Weapons While Under Disability,
third-degree felonies in violation of R.C. 2923.13(A)(2)
& (B); and Count 7, Endangering Children, a first-degree
misdemeanor in violation of R.C. 2919.22(A) and (E)(1) &
Appellant initially entered a plea of not guilty to the
charges in the indictment. On June 23, 2016, appellant
entered into a written plea agreement with appellee, the
state of Ohio. Appellant agreed to enter a guilty plea on all
counts as listed in the indictment and to waive a Presentence
Investigation ("PSI"). The "State and
[appellant] [agreed] to a jointly recommended prison sentence
of 4 years on each count for Counts 1-4; 36 months on each
count for Cts. 5 & 6, and 6 months in the Trumbull County
Jail on Count 7, sentences to be served concurrently to each
other for a total prison sentence of 4 years."
Appellant appeared for a change of plea hearing on June 23,
2016. At the hearing, appellant indicated he was able to read
and write the English language and was not under the
influence of alcohol or drugs. The trial judge reviewed the
plea agreement with appellant. Appellant indicated that no
one had promised him anything if he entered into the
agreement, he had read the agreement and had no questions,
and he was satisfied with his attorney. The trial court
reviewed the elements of each count in the indictment,
explained that entering a guilty plea meant making a complete
admission to the allegations contained in the indictment, and
explained that the court could proceed to sentencing upon
acceptance of the plea. The court reviewed the jointly
recommended sentence with appellant. Further, the court
explained the recommended sentence was not binding on the
court and reviewed the possible penalties for all counts in
the indictment, including the maximum penalty and the
applicable term of post-release control for each count. The
trial court also reviewed the constitutional rights appellant
would waive by entering a guilty plea. Appellant indicated an
understanding of everything the trial court explained and
answered all questions affirmatively. Finally, appellant
stated he wanted to enter a plea of guilty to Counts 1
through 7 in the indictment. The prosecutor presented the
factual basis for the charges. The court accepted
appellant's guilty plea and ordered a PSI.
Appellant appeared for sentencing on August 18, 2016. The
following discussion took place:
Court: Does the state have anything to
present in the way of sentencing?
Prosecutor: Your honor, just that the state
would concede that under the circumstances the traffickings
and possessions on Count One [Possession of Cocaine] and
Count Two [Trafficking in Cocaine] and Count Three
[Possession of Heroin] and Count Four [Trafficking in Heroin]
would merge for purposes of sentencing. So Count Two would
merge with Count One, Count Four would merge with Count
Three. Essentially other than that, they're independent
and you can run concurrent or consec on all other charges.
Court: You wish to sentence on Count One and
Court: [Addressing defense counsel] Counsel,
is there anything you like to say on behalf of [appellant]?
First, would you agree with the state as to the merger of
Count Two into One and Count Four to Three?
Defense counsel: Yes.
Court: Anything you would like to say on
behalf of [appellant]?
Defense counsel: Nothing, Your Honor.
court then stated it reviewed the PSI and sentenced appellant
to a mandatory prison sentence of six years and a $10, 000.00
fine on Count 1; a mandatory prison sentence of four years
and a $7, 500.00 fine on Count 3, to be served consecutive to
Count 1; thirty-six months in prison on each of Count 5 and
Count 6, to be served concurrent to each other and
consecutive to Count 1 and Count 3; and six months in the
Trumbull County Jail on Count 7, to be served concurrent to
Count 1, Count 3, Count 5, and Count 6, for an aggregate
prison sentence of thirteen years. After appellant's
sentence was pronounced, the following discussion took place:
Defense counsel: What was the total time on
that Your Honor?
Court: 13 years.
Appellant: Your Honor, I signed a plea deal
for four years, Your Honor.
* * *
Defense counsel: That was the offer
presented by the State, Your Honor, was four years.
Court: Which is rejected by the Court. Take
trial court entered its judgment on sentence on August 26,
Appellant filed a motion to withdraw his guilty plea on
September 1, 2016. Appellee filed a brief in opposition on
September 21, 2016. No judgment was entered on the motion and
it is therefore deemed to have been denied. Vogias v.
Ohio Farmers Ins. Co., 11th Dist. Portage No.
2007-P-0099, 2008-Ohio-3605, ¶45 (citation omitted).
("It is well settled that when a motion is not ruled on
by a trial court, it is deemed to be denied.")
On September 26, 2016, appellant filed an appeal from the
trial court's August 26, 2016 judgment entry. Appellant
asserts four assignments of error on appeal.
With leave of this court, appellant's original appellate
counsel withdrew as counsel on March 8, 2017. Appellant was
appointed new counsel and was granted leave to file a
supplemental brief. Appellant asserts two additional
assignments of error in his supplemental brief.
Appellant's first and second assignments of error pertain
to the knowing, intelligent, and voluntary nature of his
[1.] The appellants' [sic] guilty plea was not entered
into knowingly, intelligently and voluntarily when the terms
of the agreement underlying the plea were breached subsequent
to entering the guilty plea.
[2.] The appellants' [sic] guilty plea was not entered
into knowingly, intelligently and voluntarily when the
underlying agreement was altered subsequent to entering his
Pursuant to Crim.R. 11 (C)(2), a trial court shall not accept
a plea of guilty in a felony case without first addressing
the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty * * *,
and that the court, upon acceptance of the plea, may proceed
with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining
witnesses in the defendant's favor, and to require the
state to prove the defendant's guilt beyond a reasonable
doubt at a trial at which the defendant cannot be compelled
to testify against himself or herself.
When the guilty plea is entered pursuant to a negotiated plea
agreement, "the underlying agreement upon which the plea
is based shall be stated on the record in open court."
"An inquiry into the voluntariness of a plea does not
end with the determination as to whether the trial judge
complied with Crim.R. 11 (C). '[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.'" State v.
Robinson, 8th Dist. ...