State v. David Jackson

• Decision Date: 25 March 1993
• Docket Number: 62242,93-LW-1317
• Parties: STATE OF OHIO, Plaintiff-appellee v. DAVID JACKSON, Defendant-appellant
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-appellee v. DAVID JACKSON, Defendant-appellant

No. 62242.

93-LW-1317 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

March 25, 1993

Criminal appeal from Court of Common Pleas Case No. CR-261,794.

For plaintiff-appellee: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, BRIAN McGRAW, Assistant, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: JACQUELINE JOHNSON, Attorney at Law 1422 Euclid Avenue, Cleveland, Ohio 44115.

OPINION

DONALD C. NUGENT, J.

Defendant-appellant, David Jackson ("Jackson") appeals from his conviction of one count of drug abuse in violation of R.C. 2925.11. For the reasons set forth below we affirm.

On December 19, 1990, Jackson was charged with one count of drug abuse in violation of R.C. 2925.11 (Case No. CR-259,046). The indictment included a violence specification, to wit: that Jackson had previously been convicted of rape, an offense of violence under R.C. 2901.01(I). A plea of not guilty was entered. On February 27, 1991, Jackson was again charged by indictment with one count of drug abuse (Case No. CR-261,794). The February 27, 1991 indictment included the above-noted violence specification.

As a result of plea negotiations, Jackson pled guilty as charged to the February 27, 1991 indictment. In exchange for this guilty plea, the state agreed to dismiss the December 19, 1990 drug abuse charge. It also appears from the record that the trial judge represented to defense counsel that, should Jackson enter a plea, the bond in Case No. CR-259,046 would apply to Case No. CR261,794 and Jackson would be released until his sentencing.

During the plea-taking hearing, the trial judge personally addressed Jackson, setting forth his constitutional and statutory rights which he was waiving by entering a guilty plea. Jackson, who had completed eleven years of schooling and obtained a GED while in the military, expressed an understanding of the charges made against him, the rights he was waiving by entering a guilty plea, and the maximum penalty which could be imposed by the court.

The judge accepted Jackson's guilty plea and referred the matter to the probation department for a presentencing report. Jackson's sentencing was scheduled for April 19, 1991.

For reasons not evident in the record, Jackson did not appear for sentencing on April 19, 1991. On April 22, 1991, a bond forfeiture notice was mailed to Jackson and on April 24, 1991, a capias was issued for his arrest. On May 16, 1991, Jackson voluntarily surrendered himself to the sheriff's department, at which time he was taken into custody, where he remained until his sentencing on June 6, 1991. Jackson was sentenced to an indefinite term of one and one-half to five years imprisonment.

Jackson now brings this delayed appeal, assigning two errors:

I. THE COURT ERRED IN ACCEPTING APPELLANT'S INVOLUNTARY AND UNINTELLIGENT PLEA OF GUILTY TO DRUG ABUSE IN VIEW OF APPELLANT'S DISCLAIMER.

II. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY PERMITTED HIM TO ENTER A GUILTY PLEA JUST EIGHT (8) DAYS AFTER BEING ARRAIGNED AND ONLY TWO (2) DAYS AFTER FILING DISCOVERY MOTIONS.

I.

In his first assignment of error, Jackson contends that the trial court erred in accepting his guilty plea without ascertaining whether such plea was voluntarily entered. Specifically, Jackson argues in his brief that he agreed to enter a plea of guilty upon assurances from his attorney that he would be released on bond on March 15, 1991, the day he entered the guilty plea. Jackson contends that despite this representation by his attorney, he was not released until March 18, 1991.^[1] Jackson further argues that during the plea-taking hearing, the trial court failed to properly question him regarding his understanding of this promise which induced his guilty plea. For the reasons that follow, we find Jackson's arguments to be without merit.

When a defendant in a criminal proceeding enters a plea of guilty, he waives his privilege against compulsory self-incrimination, his right to a trial by jury, and his right to confront his accusers. Malloy v. Hogan (1964), 378 U.S. 1; Duncan v. Louisiana (1968), 391 U.S. 145.; McCarthy v. United States (1969), 394 U.S. 459. In order for such a waiver to be valid under the Due Process Clause of the United States Constitution, the record must demonstrate that the defendant knowingly and voluntarily waived these rights. Boykin v. Alabama (1969), 395 U.S. 238; North Carolina v. Alford (1970), 400 U.S. 25.

Ohio Crim. R. 11(C) was enacted to facilitate a more accurate determination that a defendant entering a plea of guilty does so voluntarily and with the understanding that he is waiving his constitutional rights. State v. Nero (1990), 56 Ohio St.3d 106; State v. Stewart (1977), 51 Ohio St.2d 86; State v. Younger (1975), 46 Ohio App.2d 269. This rule provides that the court shall not accept a guilty plea in a felony case without first personally addressing the defendant and:

(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.

(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.

(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.

A judgment of conviction will not be disturbed by a reviewing court where it is shown that the trial court substantially complied with the mandate of Crim. R. 11. State v. Nero (1990), 56 Ohio St.3d 106; State v. Stewart (1977), 51 Ohio St.2d 86.

In determining whether a defendant's plea was voluntary, our inquiry is not limited solely to the information provided to the defendant by the trial court, but rather we examine the totality of circumstances surrounding the plea. "A defendant may learn of information not relayed to him by the trial court from other sources, such as his attorney." Riggins v. McMackin (6th Cir. 1991), 945 F.2d 790 (citations omitted) (construing Ohio R. Crim. P. 11); see, also, Alford, 400 U.S. 25 at 29, n. 3.

A review of the transcript of the plea hearing reveals that the trial court fully complied with Crim. R. 11 during its dialogue with Jackson. The dialogue at the time of the plea hearing reveals the following:

MR. McGRAW: Your Honor, in these cases it is my understanding at this time that Mr. Jackson is going to withdraw his previously entered plea of not guilty and plead guilty to the one count in 261794. If he does, the state recommends that case 259046 be nolled.

* * *

THE COURT: Mr. Morgan.

MR. MORGAN: Thank you, your Honor ***

Further, I would like to state for the record that to the best of my knowledge that no threats or promises have been made to induce such plea, except for the fact that the Court informed me that should Mr. Jackson plea, (sic.) the bond in the lower numbered case would apply for the bond on the higher numbered case. I also told Mr. Jackson that the Court promised me that once he gets out and it comes time for sentencing and Mr. Jackson does not show up for sentencing at the scheduled sentencing date, that the Court promised me the sentence will be three to five years.

THE COURT: Thank you sir. Mr. Jackson, do you understand the statements made by the prosecutor and by your attorney?

THE DEFENDANT: Yes.

THE COURT: How far in school have you gone?

THE DEFENDANT: I went to the 11th grade and got my GED in the military.

THE COURT: Presently, are you under the influence of any alcohol or narcotic drugs?

THE DEFENDANT: No.

THE COURT: Are you satisfied with the representation that your attorney has given you?

THE DEFENDANT: Yes.

THE COURT: You have certain basic rights which I'm about to explain. Please feel free to interrupt me at any time should you not understand them.

* * *

THE COURT: Do you understand that the Court could impose sentence immediately should you enter a plea of guilty.

THE DEFENDANT: Yes.

* * *

THE COURT: *** Knowing all these things, how do you wish to plead, guilty or not guilty, to drug law violation, a fourth degree felony?

THE DEFENDANT: Guilty, your Honor.

THE COURT: Has anyone threatened you or made any promises to you in order to get you to plead guilty?

THE DEFENDANT: It was --

THE COURT: Other than what was spread upon the record?

THE DEFENDANT: It was not a threat, but I was promised I could go out on bond to take care of a few things before sentencing.

THE COURT: Whose desire is it that you enter this plea of guilty?

THE DEFENDANT: It's my desire, your Honor.

THE COURT: Let the record show that the defendant understands his Constitutional rights, he voluntarily waives those rights and enters a plea of guilty to the indictment, drug law violation, 2925.11, a fourth degree felony carrying an indefinite sentence. ***

* * *

THE COURT: Mr. Jackson, I'm going to honor your attorney's request and refer this matter to the probation department for a presentencing report. This does not mean that you will receive probation.You will be called back to this court for sentencing and sentencing will be at that time. Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: The same bond is to apply as was imposed in case number CR 259046. I'm ordering that the presentence report be submitted to the Court on or about

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