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State v. Montgomery

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 21, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JUVIS MONTGOMERY, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-623070-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Carson M. Strang, Assistant Prosecuting Attorney, for appellee.

          Paul A Mancino, Jr., for appellant.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, PRESIDING JUDGE.

         {¶ 1} Appellant Juvis Montgomery appeals his conviction and sentence. Upon review, we affirm.

         {¶ 2} On November 27, 2017, appellant was charged in a nine-count indictment. Appellant was declared indigent and appointed counsel in the trial court proceedings. During the course of proceedings, appellant was referred for a competency evaluation and found competent to stand trial. On August 29, 2018, appellant entered a plea of guilty to an amended Count 3, felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, with a one-year firearm specification, a notice of prior conviction, and a repeat violent offender specification. He also entered a plea of guilty to Count 9 as charged, having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree. The remaining counts were nolled. The trial court imposed an aggregate term of imprisonment of five years with three years of mandatory postrelease control, awarded jail-time credit, and imposed costs against appellant. The journal entry was entered on August 30, 2018.

         {¶ 3} On October 25, 2018, appellant filed a motion to withdraw his guilty plea. The trial court denied that motion on November 6, 2018. On November 26, 2018, appellant filed a motion "to vacate, suspend or modify or set up a payment plan" with regard to court costs. The trial court denied that motion on December 28, 2018.

         {¶ 4} Appellant was granted leave to file a delayed appeal. He presents six assignments of error claiming his due process rights were violated.

         {¶ 5} Under his first assignment of error, appellant claims the trial court failed to conduct a meaningful hearing concerning his dissatisfaction with trial counsel. Although appellant argues that the trial court had a duty to inquire into his claim of dissatisfaction with his court-appointed counsel, he fails to acknowledge that the Supreme Court of Ohio has held that the duty to make such inquiry is a "limited judicial duty" that "'arises only if the allegations are sufficiently specific; vague or general objections do not trigger the duty to investigate further.'" State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68, quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). Therefore, a trial court is not required to conduct further inquiry into a defendant's complaints about his counsel when the defendant expresses only a generalized dissatisfaction with counsel's performance but does not allege any specific facts. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 165.

         {¶ 6} The record reflects that prior to accepting appellant's plea, the trial court asked appellant if he was satisfied with his counsel's representation, to which he responded, "No." The court then stated, "Well you may not like him personally, but he's done a good job for you" and asked appellant "do you understand that?" Appellant responded, "Yes." Appellant then confirmed that he was willing to go forward with his plea. At no point did appellant point to any specific facts that would indicate that his trial counsel's performance was deficient. Further, he never requested that his existing counsel be replaced with other counsel. Accordingly, we find the trial court was not required to conduct a hearing and we overrule the first assignment of error.

         {¶ 7} Under his second assignment of error, appellant claims the trial court erred when it accepted his guilty plea.

         {¶ 8} Due process requires that a defendant's plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant's plea is invalid. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Appellant raises a number of issues pertaining to his plea.

         {¶ 9} First, appellant claims that he had informed the trial court that he was not satisfied with counsel. The record reflects that appellant conceded that counsel had "done a good job" and he expressed his willingness to move forward with his plea. Appellant also argues that his plea of guilty was in the nature of an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The record reveals that appellant never made a protestation of his innocence in open court.

         {¶ 10} Next, appellant claims that he did not make an informed plea because the trial court "did not explain the offense which required a mandatory sentence containing a notice of prior conviction and a repeat violent offender specification" and "[n]one of these offenses was explained to defendant other than a rote recitation of constitutional rights." The record reflects that the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) by informing appellant of the nature of each of the charges, the maximum penalties involved, and that he was ineligible for probation. In discussing Count 3, as amended, the trial court informed appellant that the "[n]otice of prior conviction makes this nonprobationable and not eligible for judicial release" and that the "[n]otice of prior conviction is mandatory prison time as well as the 1 year firearm specification." The trial court also informed appellant as to the repeat violent offender specification. Further, the trial court informed appellant that the court would be imposing a sentence of "5 years * * ...


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