Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
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
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.
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.
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
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
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.
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
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
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 ...