Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Johnson

Court of Appeals of Ohio, Eleventh District, Trumbull

June 25, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
KEVIN DESHAWN JOHNSON, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2016 CR 00204.

          Dennis Watkins, Trumbull County Prosecutor; LuWayne Annos, Michael A. Burnett, and Ashleigh Musick, Assistant Prosecutors, (For Plaintiff-Appellee).

          Michael A. Partlow, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} 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.

         {¶2} 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) & (2)(a).

         {¶3} 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."

         {¶4} 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.

         {¶5} 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 Count Three?
Prosecutor: Yes
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.

         The 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 care.

         The trial court entered its judgment on sentence on August 26, 2016.

         {¶6} 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.")

         {¶7} 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.

         {¶8} 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.

         {¶9} Appellant's first and second assignments of error pertain to the knowing, intelligent, and voluntary nature of his guilty plea:

[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 guilty plea.

         {¶10} 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 hearing.
(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.

         {¶11} 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." Crim.R. 11(F).

         {¶12} "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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.