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State v. Carter

Court of Appeals of Ohio, Eleventh District, Lake

August 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
SWAVE F. CARTER, Defendant-Appellant.

          Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR 001046.

         Judgment: Affirmed.

          Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, For Plaintiff-Appellee.

          Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, For Defendant-Appellant.

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Swave Finesse Carter ("Mr. Carter"), appeals the Lake County Court of Common Pleas judgment, which sentenced him to 18 months imprisonment followed by three years of mandatory post-release control and suspended his driver's license for five years after Mr. Carter pleaded guilty to one count of failing to comply with an order or signal of a police officer, a felony of the third degree, in violation of R.C. 2921.331(B). That count further alleged that he "caused a substantial risk of serious physical harm to persons or property" pursuant to R.C. 2921.331(C)(5)(a)(ii). A contraband forfeiture specification as set forth in R.C. 2941.1417 and 2981.04 for marijuana possession was also included. Pursuant to Mr. Carter's written plea, the trial court determined the offense was an offense of violence as defined in R.C. 2901.01(A)(9)(c) and R.C. 2967.28(B)(3), which required post-release control to be mandatory in this case.

         {¶2} Mr. Carter raises two assignments of error, contending the trial court erred in imposing mandatory post-release control because a mandatory term is (1) contrary to law and (2) the court engaged in impermissible judicial fact-finding, specifically as to his mental state of mind at the time of the offense, in violation of his state and federal constitutional rights to due process, proper notice, and trial by jury.

         {¶3} After a thorough review of the record and relevant case law, Mr. Carter's arguments are unavailing, and both fail for the same reason. Mr. Carter admitted to facts in his written plea that he caused a "substantial risk of serious physical harm to persons or property" by driving at excessive speeds in a residential area around children and with a pregnant passenger. He pleaded guilty to willfully eluding or fleeing a police officer's signal with the additional allegation that he caused "a substantial risk of serious physical harm to persons or property." We affirm the judgment of the Lake County Court of Common Pleas since Mr. Carter specifically agreed to go forward with his plea with the knowledge that he was pleading guilty to an offense that alleged a substantial risk of physical harm and that post-release control was mandatory for three years.

         Substantive and Procedural History

         {¶4} A complaint was filed in the Willoughby Municipal Court alleging that on October 6, 2018, Mr. Carter willfully failed to comply with a police officer's order to stop his vehicle in Willowick, Ohio.

         {¶5} The Willowick Police Department report documented the incident. An officer started following Mr. Carter after observing him driving a vehicle without a front plate and with extremely dark-tinted windows. After running Mr. Carter's license plate, the officer turned on his overhead lights, signaling Mr. Carter to stop his vehicle and pull over. Mr. Carter stopped near a busy children's park, and when the police officer approached his vehicle, Mr. Carter shifted into drive and fled. He then drove down residential streets at excessive speeds (greater than 50 m.p.h. in 25 m.p.h. zones) and ran several stop signs, almost hitting another officer. Mr. Carter turned down a dead end street, and upon realizing his mistake, decided to flee on foot while the vehicle was still moving. The car came to a rest against a fire hydrant.

         {¶6} One of the officers secured the vehicle, and another pursued Mr. Carter on foot. Inside the car was a pregnant passenger, Ms. Angela Green, who was taken into custody. An inventory search of the vehicle revealed a small bag of marijuana. Numerous patrol units started searching for Mr. Carter, and several residents called to report Mr. Carter had run through their backyards. Mr. Carter was eventually taken into custody. At the time he was apprehended, Mr. Carter had armed and dangerous warnings with misdemeanor warrants for failure to appear in Ashtabula and Cleveland Heights and felony warrants from Cuyahoga County for violating probation, escape, aggravated robbery, and abduction.

         {¶7} Mr. Carter was bound over to the Lake County Court of Common Pleas, and by way of information, he was charged with one count of willfully eluding or fleeing a police officer in violation of R.C. 2921.33(B) with an additional allegation that he "caused a substantial risk of serious physical harm to persons or property," as well as a forfeiture specification pursuant to R.C. 2941.1417 and R.C.2981.04 for the unlawful possession of marijuana.

         {¶8} Mr. Carter entered a written plea of guilty, signed by Mr. Carter and his counsel, which acknowledged he was pleading guilty to a third degree felony with a mandatory three years of post-release control. Following the typed statement that read "After prison release, I will have a mandatory three (3) years of post-release control" [bold sic] was a handwritten interlineation adding "if the court determines that Count I in the information is an offense of violence because I committed this offense purposely or knowingly, and involved physical harm to persons or a risk of serious physical harm to persons." At the information hearing, the court informed Mr. Carter that if the conduct involved in this case was an offense of violence, then post-release control would be mandatory. The court explained an offense of violence depends on whether conduct was committed knowingly or purposely (or in this case "willfully") and if it involved physical harm to persons or a risk of serious physical harm to persons.

         {¶9} To understand whether Mr. Carter's willful conduct caused physical harm to persons or a risk of serious physical harm, the prosecutor reviewed what he believed the evidence would show if a trial were held. Mr. Carter corrected the prosecutor as to a portion of the officer's version that reported he had turned into a park when the officer initially signaled him to pull over. Instead, Mr. Carter claimed he pulled into a dead-end street and stopped against a guardrail. He then told the court the prosecutor's account, aside from that discrepancy, was accurate. The court again asked Mr. Carter if he wanted to plead guilty to R.C. 2921.331(B), a third-degree felony due to the additional substantial risk of serious physical harm to persons or property allegation of R.C. 2921.331(C)(5)(a)(ii), and accepted Mr. Carter's guilty plea after he gave his assent.

         {¶10} At the sentencing hearing, the court spoke with Mr. Carter about his substance abuse problem, lack of employment, lengthy criminal history, and other charges that were pending in other counties. The court also reviewed the presentence investigation report, drug and alcohol evaluation, and the state's recommendation.

         {¶11} After reviewing the factors of R.C. 2929.12 and R.C. 2929.11, the trial court sentenced Mr. Carter to a term of 18 months in prison, with credit for 101 days already served, and suspended his driver's license for five years.

         {¶12} The court found post-release control was mandatory in this case because Mr. Carter's conduct was an offense of violence under R.C. 2901.01(A)(9)(c) and R.C. 2967.28(B)(3) due to the admitted facts of Mr. Carter's guilty plea to R.C. 2921.331(B), as a third-degree felony due to the additional substantial risk of serious physical harm to persons or property allegation of R.C. 2921.331(C)(5)(a)(ii).

         {¶13} The court, in relevant part, stated: "So in this case it's necessary to determine whether this offense involved physical harm to persons or a risk of serious physical harm to a person and the very element of this offense that the Defendant pled guilty to was that his conduct caused substantial risk of serious physical harm to persons and that he did engage in this activity willfully by fleeing a police officer Aside from the potential risk to the people in the neighborhood and again this was in a neighborhood area, driving twice the speed limit in that area; his passenger in the car, who was pregnant at the time, certainly that presents a substantial risk of serious physical ...


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