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State v. Jones

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 27, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY JONES, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606728-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Oscar Albores and Tasha Forchione, Assistant Prosecuting Attorneys, for appellee.

          Porter Wright Morris & Arthur, L.L.P., Matthew J. Ambrose and J. Philip Calabrese, for appellant.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, JUDGE

         {¶ 1} Defendant-appellant Larry Jones ("Jones") appeals from the trial court's order accepting Jones's guilty plea to sexual battery. For the reasons that follow, we affirm the trial court's decision.

         Statement of the Facts

         {¶ 2} On June 1, 2016, plaintiff-appellee the state of Ohio ("state") filed an indictment against defendant-appellant Larry Jones ("Jones") on five counts relating to the rape, gross sexual imposition, and kidnapping of Jane Doe ("S.D.") that occurred on August 24, 2007. S.D. was a friend of Jones's daughter with whom S.D. was staying on August 24, 2007. The stories of S.D. and Jones vary as to what occurred on the date in question. According to S.D., Jones asked her to get coffee with him and they drove toward Peter Pan Coffee. However, Jones did not stop for coffee but drove to an empty parking lot where Jones stated, "this is what you get for leading me on" and proceeded to rape her at knife point. Jones then drove to Peter Pan Coffee where S.D. remained in the car. Jones drove S.D. home where she told her roommate and her roommate's brother what had occurred. Her roommate's brother, the son of Jones, took S.D. to the hospital where she underwent a rape-kit examination and obtained emergency treatment. The police did not follow up with S.D. The police picked up the rape kit on August 24, 2007, and entered it into evidence. The rape kit was not linked to an original report number that apparently led to no further police investigation. On April 18, 2014, the Cleveland Police Department submitted the rape kit to the Bureau of Criminal Investigation ("BCI"). On January 1, 2015, BCI mailed the DNA profile results to the Cleveland Police Department, noting vaginal swabs from the rape kit matched Jones's DNA. On March 25, 2015, an investigator with the Cuyahoga County Prosecutor's Office interviewed S.D. S.D. picked Jones out from a photo array and told her version of the events. Jones claims he had consensual sex with S.D.

         {¶3} Another alleged incident between Jones and N.B. occurred on October 26, 2011. N.B., a friend of Jones's daughter, was experiencing car trouble and knew Jones was a mechanic. N.B. went to Jones's apartment for assistance. While there, Jones allegedly forced N.B. to perform oral sex and engage in vaginal and anal sex. N.B. reported the incident immediately to the police and was examined at the hospital where a rape kit was obtained. No weapon was involved in this alleged incident. The state presented N.B.'s allegations to a grand jury, but they declined to return an indictment.

         {¶4} On June 2, 2017, the court issued a warrant for Jones's arrest exclusively for the alleged crimes against S.D.; the warrant and subsequent arrest and trial were not based upon the allegations presented by N.B. Jones voluntarily turned himself in and was arrested on August 7, 2017. On August 9, 2017, Jones was arraigned, pled not guilty, was assigned counsel, and was held in jail pending trial. Pretrial hearings were held, and Jones was granted numerous continuances due to Jones's ongoing discovery demands. Defense counsel required surgery during the pendency of this matter and filed a motion for continuance of trial due to an anticipated five-to-six-week absence. Despite having counsel, Jones filed a pro se writ of habeas corpus to dismiss on the basis of a speedy trial violation. The court did not rule on this motion. On November 3, 2017, the state filed a notice of intent to use other acts evidence pursuant to Evid.R. 404(B) and R.C. 2945.59. The other acts evidence referenced the events that supposedly took place between Jones and N.B. This motion was opposed by Jones, but the court noted, by journal entry, that it would permit the state to use the other acts evidence.

         {¶ 5} On April 30, 2018, Jones was scheduled for trial and appeared before court. Trial did not start on that date, but Jones indicated he would be willing to listen to a plea bargain. The parties returned to court on May 1, 2018, at which time a plea bargain was presented that Jones accepted and pled guilty to sexual battery. Jones was subsequently sentenced to 36 months, and it is from this prior plea and sentencing that Jones has filed this timely appeal.

         {¶ 6} Jones presents the following assignments of error:

Assignment of Error I: Defendant's plea was not knowing, intelligent, and voluntary because the trial court coerced him to plead guilty.
Assignment of Error II: The trial court abused its discretion by denying defendant's presentence motion to withdraw his plea where the facts and circumstances support liberally granting that motion.
Assignment of Error III: The record does not support classifying defendant as a sexual predator.
Assignment of Error IV: The trial court erred when it denied defendant a speedy trial.
Assignment of Error V: Defendant received ineffective assistance of counsel, requiring a remand for further proceedings at which he receives representation by the counsel guaranteed by the sixth amendment and Ohio law.

         Law and Analysis I. Plea Bargain

         {¶ 7} Jones claims his guilty plea was not provided knowingly, intelligently, or voluntarily because (1) the court's prior ruling admitting prior bad acts gave Jones no option but to plead guilty, and (2) the court's participation in the plea bargaining process undermined the voluntariness of the plea.

         {¶ 8} "'In considering whether a plea was entered knowingly, intelligently and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record.'" Cleveland v. Wynn, 8th Dist. Cuyahoga No. 103969, 2016-Ohio-5417, ¶ 4, quoting State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th Dist.).

         {¶ 9} Jones alleges the trial court's decision to permit the introduction of prior bad acts gave him no choice but to plead guilty. Specifically, Jones argues the introduction of the alleged incident with N.B., an unrelated and unproven prior bad act, would have led the trier of fact to conclude Jones was guilty and led to the possibility of a life sentence. To avoid that outcome, Jones was forced to enter a guilty plea involuntarily.

         {¶ 10} To follow Jones's line of reasoning, any time an evidentiary ruling is not advantageous to a criminal defendant, the accused can argue his guilty plea was rendered unknowingly, unintelligently, or involuntarily on that basis. This degrades the purpose of the knowing, intelligent, or voluntary standard. And, Jones's argument ignores the fact that Jones's guilty plea was rendered after the trial court modified its ruling excluding the introduction of the prior bad acts evidence in the state's case in chief.

         {¶ 11} On November 3, 2017, the trial court entered a judgment entry allowing the state to utilize the prior bad acts evidence under Evid.R. 404(B). On the day of trial, the judge stated on the record that he was changing his ruling on the prior bad acts evidence. The prior bad acts evidence would not be permitted in the state's case in chief but would be introduced only if Jones's defense opened the door allowing admissibility for rebuttal purposes:

I just want to memorialize a couple of rulings. I may have indicated this yesterday, but I would like to indicate it again, that the 404(B) evidence that was cited in the prosecutor's motion is provisionally not permitted. * * *
So that information will not be utilized during the State's case in chief, but it may become of issue pursuant to defense strategy. So, at this point, please don't mention that in your case in chief.
So, out of [an] abundance of caution, I am ruling it shall not be used at this point; however, if the defendant opens the door and interjects his character into issue or opens the door to this 404(B) evidence by other defense strategies, we may have to revisit it.
Additionally, if convicted, I believe the court will be able to take the allegations into consideration at the time of the sentencing, but I'm not going to do what they did in the Bill Cosby case. They let it in. You saw what happened to Cosby. This is a very similar situation, and I'm not going to permit it at this time, however, out of fairness to this defendant.

(Tr. 31-32.)

         {¶ 12} Moreover, the trial court's pretrial ruling on the admission of prior bad acts evidence in its original journal entry was a ruling electing the court's anticipatory treatment of an evidentiary issue. State v. Taylor, 8th Dist. Cuyahoga No. 83778, 2004-Ohio-3115, ¶ 6. The ruling was not a final appealable order. Id. at ¶ 7. The trial court had authority to modify the ruling. Id. at ¶ 6.

         {¶ 13} The trial judge modified his ruling and ordered the prior bad acts evidence would not be used during Jones's case in chief. Therefore, this evidence cannot reasonably be seen as affecting the voluntariness of Jones's plea.

         {¶ 14} In addition, Jones declined to accept the proposed plea after the trial court ordered that the Evid.R. 404(B) evidence would be excluded. It was not until the state played an incriminating recording of Jones's jailhouse telephone conversation that Jones decided to accept a plea bargain. Jones's acceptance of the plea appears to be unrelated to the potential Evid.R. 404(B) evidence but was because of the jailhouse telephone conversation.

         {¶ 15} The trial court excluded the prior bad acts evidence from the state's case in chief. Jones's claim that his plea was not entered ...


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