State v. Grigsby

• Decision Date: 18 May 1992
• Docket Number: No. 60450,60450
• Citation: 609 N.E.2d 183,80 Ohio App.3d 291
• Parties: The STATE of Ohio, Appellee, v. GRIGSBY, Appellant.
• Court: Ohio Court of Appeals

Page 291

80 Ohio App.3d 291

609 N.E.2d 183

The STATE of Ohio, Appellee, v. GRIGSBY, Appellant.

No. 60450.

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

Decided May 18, 1992.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Jeffrey Margolis, Asst. Pros. Atty., Cleveland, for appellee.

Jay B. White, Cleveland, for appellant.

WILLIAM J. MARTIN, Judge.

Defendant appeals from the trial court's denial of his motion to withdraw his no contest plea and from his sentence on charges of drug law violation, R.C. 2925.03, and possession of criminal tools, R.C. 2923.24. The relevant facts follow.

On July 11, 1989, defendant Ernest Grigsby was charged by the Cuyahoga County Grand Jury in a two-count indictment, viz., count one, sale of cocaine in an amount equal to or exceeding three times the bulk amount, R.C. 2925.03, and count two, possession of criminal tools, to wit: a car telephone, pager and money, R.C. 2923.24. Both counts of the indictment carried a violence specification for a prior conviction of carrying a concealed weapon.

Defendant pleaded not guilty at his arraignment. On May 21, 1990, after a series of continuances granted at defendant's request, a plea hearing was finally held before the trial court. At the plea hearing the trial judge read the indictment and informed defendant of the nature of the charges. The judge then informed defendant of the possible sentences involved, stating the following:

"THE COURT: The first count as indicted is a felony of the first degree. It calls for a sentence of 4, 5, 6, 7 to 25 years, a fine of up to $10,000. In addition to that, because it is alleged that we are dealing with more than three times the bulk amount, this calls for a mandatory fine of $7,500. It also calls for a mandatory period of incarceration of 5 years.

"Do you understand what the nature of that charge is and the possible penalties that attach?

"THE DEFENDANT: Yes, sir.

"THE COURT: What it means basically is that I have to send you to jail for 5 years. It is non-probationable in nature.

"I could send you to jail for 7 to 25 years, if I choose to.

"Do you understand that ?

"THE DEFENDANT: Yes.

"THE COURT: And I must fine you, of course, $7,500.

"The second count of the indictment is possession of criminal tools. Attached to that is a violence specification. That is an indeterminate 4th degree felony. It calls for a sentence of 5 years and a fine of up to $2,500, or a combination of both.

"As relates to these two counts, I have indicated to your counsel, Mr. Wade, who is currently here, that as relates to these two charges, that in the event you enter a plea, and it is my understanding that you are going to, that I would run these two counts concurrently.

"Regardless of what the sentence is on the first count, the second one would run concurrently.

"It means in addition to your probation in 221470, in a carrying concealed weapons, by pleading guilty, by operation of law this will render you a probation violator.

"If I want to, I can sentence you on the original charge, the carrying concealed weapons charge. And in the event I send you to jail in the probation violation, it would run consecutive to any substantive sentence in the new case, 241943.

"Do you understand that ?

"THE DEFENDANT: Yes.

"THE COURT: The bottom line is I must sentence you to 5 to 25 on the first count.

"I could add to that, if I wanted to, a year, year and-a-half, two years on the CCW as a result of the probation violation, which will be held the same date and time as the sentencing.

"Do you understand that?

"THE DEFENDANT: Yes." (Emphasis added.)

The trial court then, pursuant to Crim.R. 11, carefully explained what a no contest plea was and the rights defendant would be giving up upon entering a no contest plea. Throughout the explanation the trial court continuously asked defendant if he understood and each time defendant answered "yes." The trial court then inquired if defendant was under the influence of anything which would affect his thinking and defendant responded "no." The trial court then reiterated the possible sentences involved for each count of the indictment and for the probation violation on the carrying concealed weapons conviction. The trial court repeated its intention to run the sentences on the two counts of the indictment concurrently. Defendant stated in response to the trial court's inquiry that he was satisfied with his legal representation in the case.

Thereafter, the following exchange took place:

"THE COURT: I am going to ask you, then, Mr. Grigsby, how do you plead to Count 1, a non-probationable drug law violating, alleging three times the bulk amount, calling for a possible sentence of 4, 5, 6, 7 up to 25 years, and calling for a mandatory period of incarceration of 5 years, a mandatory fine of $7,500, a possible total fine of up to $10,000?

"How do you plead to that count?

"THE DEFENDANT: No contest.

"THE COURT: That also relates to the violence specification, you understand, although it has no meaning in Count 1?

"THE DEFENDANT: Yes.

"THE COURT: How do you plead to Count 2, possession of criminal tools, along with a violence specification, an indeterminate 4th degree felony, calling for a possible sentence of a year, year and-a-half, 2, 3 up to 5, a possible fine of up to $2,500, with the statement by the Court that regardless of what the sentence is on the first count, it is my intention to run the second count concurrent with whatever that sentence is?

"How do you plead to that charge?

"THE DEFENDANT: No contest."

Thereupon, the trial court requested the state to relate the facts pertinent to the charges. The transcript of the hearing reveals the following:

"MR. MARGOLIS: * * * on July 7, 1989, approximately 3:50 p.m., the defendant, Ernest Grigsby, sold to DEA and MEG agents, specifically MEG agent Eddie Young, one quarter kilo of cocaine for the purchase price of $6,500, and one quarter kilo being in excess of three times the bulk amount of cocaine, in that he transferred the cocaine to a confidential informant at the Holiday Inn at Westlake, and the money was transferred to the MEG agent, Ed Young, at a Shell gas station thereafter.

"The money was transferred for the sale of the cocaine, that it was three times the bulk amount.

"The evidence will also show that this occurred in Westlake, in Cuyahoga County, Ohio.

"And the evidence will also show that the defendant has been previously convicted of carrying concealed weapons.

"The evidence will also show, your Honor, if I may, in completing this transaction, that the defendant contacted the police by use of a car telephone, and he used a pager involved in this transaction, and he used money to complete this transaction."

The trial court then accepted defendant's plea, ascertained that it was made "voluntarily, knowledgeably and of [defendant's] own free will," accepted the state's recitation of the facts, and found defendant guilty on both counts and of the specification. The trial court thereupon referred defendant to the probation department for a presentence report.

On June 27, 1990, defendant's sentencing hearing was held. The trial court restated the possible sentences which could be imposed and noted that it had reviewed the presentence report. When asked if he had anything to say, defendant stated only that he was sorry and he requested leniency. The transcript of the hearing then reflects the following exchange:

"THE COURT: This case was first pretried in July of 1989. It was reset at your request. There was some indication that you were going to work with the authorities. Is that a correct statement?

"MR. GRIGSBY: Yes, sir.

"THE COURT: So you're not caught off guard, I was visited by the authorities yesterday, and not only did you not cooperate with the authorities, you fronted the authorities, in fact disclosed to people what the police and federal government was doing, and you're going to be punished as a result of that.

"It's going to be the sentence that you be sentenced to seven to twenty-five years on count one and you be sentenced to three to five years on count number two. The time is to run consecutively. I am going to terminate the probation in 221470. Pay the court costs. On count number one you will be fined $7,500. There will be no fine assessed on count number two."

The sentence was journalized on July 10, 1990. On July 3, 1990, defendant filed a "motion to vacate plea of guilty [sic]" pursuant to Crim.R. 32.1. Therein, defendant stated the motion was based upon "an underlying premise and plea bargaining agreement that the Court would run the sentences on each of the counts concurently [sic]." Defendant therefore claimed his plea could not "be viewed as voluntary and made with an understanding of the true effect of his plea and the penalty involved."

The trial court held a hearing on defendant's motion on August 9, 1990. The court noted that in the transcript of the plea hearing the court stated its intention to run the sentences on the two counts of the indictment concurrently.

The trial court then asked the defendant to explain his "position." Defense counsel's response was as follows:

"MR. WHITE: * * * I will go on the record and say this, that he tells us that he never set anybody up under any circumstances, he was doing the best he could and the people were a little bit reluctant in doing business with him because they knew he had been busted and they thought he might have been trying to set somebody else up. He did not get the kind of cooperation that he thought he would.

"THE COURT: He didn't show up on several occasions.

"He did have an opportunity to work with the authorities and he kept breaking the appointment.

"MR. WHITE: That is true, no question about it. * * * Judge, he is going to do a mandatory five. Can we cut the seven back to five?

"THE COURT: We are not here for that purpose.

" * * *

"MR. WHITE: * * * Now, tell the Judge...