State v. Hendershot

• Decision Date: 05 October 2017
• Docket Number: No. CT2016–0061,CT2016–0061
• Citation: 2017 Ohio 8112,98 N.E.3d 1139
• Parties: STATE of Ohio, Plaintiff–Appellee v. Heath HENDERSHOT, Defendant–Appellant
• Court: Ohio Court of Appeals

98 N.E.3d 1139

2017 Ohio 8112

STATE of Ohio, Plaintiff–Appellee

v.Heath HENDERSHOT, Defendant–Appellant

No. CT2016–0061

Court of Appeals of Ohio, Fifth District, Muskingum County.

DATE OF JUDGMENT ENTRY: October 5, 2017

D. MICHAEL HADDOX, Prosecuting Attorney, By: Gerald V. Anderson II, 27 North Fifth St., Box 189, Zanesville, OH 43702–0189, for Plaintiff–Appellee.

Heath A. Hendershot, # A727–644, Noble Correctional Institution, 15708 McConnelsville Road, Caldwell, OH 43724, for Defendant–Appellant.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., John W. Wise, J.

OPINION

Gwin, P.J.

{¶ 1} Appellant Heath Hendershot appeals the judgment entries of the Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶ 2} This case deals with controlled buys involving a confidential informant working with the Central Ohio Drug Enforcement Task Force. The confidential informant made several controlled buys from appellant. During the last controlled buy, appellant spotted the police cruisers there to arrest him, began driving erratically at a high rate of speed, and rolled his vehicle. However, he was still able to drive the vehicle and then fled the scene, lost control of his vehicle again, and sideswiped a tree on the side of the road. Appellant exited the vehicle, left the vehicle in gear, and the vehicle stopped in the yard of a residence. Appellant ran on foot through the woods, removed money and narcotics from his pocket and threw them into a creek, and ran a short distance until he was apprehended.

{¶ 3} Appellant was indicted in January of 2016 with one count of trafficking drugs (heroin), in violation of R.C. 2925.03(A)(1), a felony of the fifth degree; one count of trafficking in drugs (methamphetamine), in violation of R.C. 2925.03(A)(1), a felony of the fourth degree; two counts of trafficking in drugs (methamphetamine) in violation of R.C. 2925.03(A)(1), each a felony of the third degree, one with a forfeiture specification and one with a school specification; one count of trafficking in drugs (methamphetamine), in violation of R.C. 2925.03(A)(2), a felony of the third degree; one count of possession of drugs (heroin), in violation of R.C. 2925.11(A), a felony of the third degree; one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree; and one count of failure to comply (risk of harm) in violation of R.C. 2921.331(B), a felony of the third degree.

{¶ 4} On June 1, 2016, appellant and his counsel signed a "plea of guilty" form, withdrawing his former not guilty pleas and entering pleas of guilty to the eight offenses listed in the indictment. Under "post release control," the box was checked that provided post-release control was optional for up to three years. On the plea form, there is a chart entitled "maximum penalty," above which it states, "I understand that the maximum penalty for each offense is as follows." The chart separately lists each offense or specification, maximum stated prison term, maximum fine, mandatory fine, license suspension, if the prison term is mandatory consecutive, and if the prison term is mandatory. Each of the eight counts appellant pled guilty to is listed separately on the chart and, for each count, the license suspension is listed as, "6 mos. up to 5 years."

{¶ 5} The plea of guilty form also provided the parties agreed to a joint recommendation that appellant be sentenced to an aggregate prison term of nine years, and that the parties stipulated to the judicial findings necessary for the imposition of consecutive sentences. Also on the form, appellant confirmed he understood by pleading guilty he gives up: his right to a jury trial, where he could confront and have his attorney question witnesses against him and where he could use the power of the court to call witnesses to testify for him; and his right to have the prosecutor prove his guilt beyond a reasonable doubt on every element of each charge.

{¶ 6} Appellant also appeared at a plea hearing on June 1, 2016. The trial court went through each charge and the possible penalties for each charge, excluding the license suspensions. The trial court informed appellant it is mandatory upon his release from prison that the Adult Parole Authority place him on three years of post-release control. The trial court specifically told appellant the plea form was inaccurate as it stated post-release control was optional for up to three years; however, it was mandatory due to the F–3 with the risk of harm.

{¶ 7} The trial court inquired with regard to the plea form, "You understand what I told you is what's accurate? The plea form with—only in that regard, that small circumstances of optional versus mandatory, the plea form is inaccurate with regard to that. Do you understand that?" Appellant responded, "yes" and confirmed he wanted to go forward with his pleas of guilty knowing post-release control was mandatory for three years.

{¶ 8} Appellant stated he: understood the nature of charges against him, the possible defenses he has to the charges, was satisfied with the assistance of his attorney, was not under the influence of alcohol or drugs, understood the joint recommendation of sentence, stipulated to the judicial findings necessary for consecutive sentences, was not promised anything else and was not threatened to plead guilty, understood he was giving up constitutional rights, understood he was giving up his right to have a jury or bench trial, understood he was giving up his right to confront and have his attorney cross-examine witnesses, understood he was giving up the right to use the power of the court to subpoena or compel witnesses to come in to court and testify on his behalf, understood he was giving up his right not to take the witness stand, understood he was giving up his right to require the State of Ohio to prove each and every element of each offense beyond a reasonable doubt, and understood he limited his right to appeal by pleading guilty.

{¶ 9} Appellant pled guilty to each of the eight charges, as well as the specifications. The trial court accepted his pleas of guilty on each count and each specification. The trial court ordered a pre-sentence investigation.

{¶ 10} The trial court issued a judgment entry on June 1, 2016. In the entry, the court found appellant had his constitutional rights fully explained to him pursuant to Criminal Rule 11. The trial court found appellant, in open court and having been advised of all constitutional rights, made a knowing, intelligent, and voluntary waiver of those rights; and that appellant understands the nature of the charges, the effect of a guilty plea, as well as the maximum penalty which can be imposed for each offense to which he has entered a plea of guilty. The court found appellant's plea to be voluntary, accepted his plea of guilty, and found appellant guilty of the eight counts listed. The court deferred sentence and ordered a pre-sentence investigation.

{¶ 11} The trial court held a sentencing hearing on August 1, 2016. Counsel for appellant requested the trial court impose the joint sentencing recommendation of nine years in prison. When the trial court asked appellant, "do you know of any reason why the Court should not proceed to sentencing at this time," appellant responded, "no, your honor." When asked if he had anything to say, appellant apologized for the acts he committed, stated his drug use did not justify his unlawfulness, and detailed the programs he sought to complete while in prison. Appellant stated he knows he is "part of the problem putting drugs in this community and people," but wants to be part of the solution taking drugs out of the community.

{¶ 12} The trial court stated it thoroughly reviewed the presentence investigation. The trial court followed the jointly recommended sentence of an aggregate prison term of nine years. The trial court ordered appellant to pay court costs and ordered appellant to forfeit $780 in currency. The trial court waived the mandatory fines due to appellant's indigent status.

{¶ 13} The trial court informed appellant that, upon his release from prison, the Adult Parole Authority had the option of placing him on post-release control for up to three years. The trial court also reviewed the consequences for violating post-release control.

{¶ 14} At the conclusion of the sentencing hearing, the trial court asked appellant if he understood when he went over. Appellant responded, "Yes, your Honor." When asked if he had any questions about his sentence, appellant said, "No, your honor."

{¶ 15} The trial court issued a sentencing entry on August 3, 3016, finding appellant had been afforded all of his rights pursuant to Criminal Rule 32. The trial court listed the offenses appellant was convicted of and stated the parties stipulated to the judicial findings necessary for the imposition of consecutive sentences. The trial court sentenced appellant to: twelve months on Count 1; twelve months on Count 2; thirty-six months on Count 3; thirty-six months on Count 4; thirty months on Count 5; twelve months on Count 6; thirty months on Count 7, and thirty-six months on Count 8. The trial court ordered Counts 1, 2, 5, 6, and 7 be served concurrently with each other; and Counts 3, 4, and 8 be served consecutively with each other, but concurrently with the sentence imposed for Counts 1, 2, 5, 6, and 7, for an aggregate prison sentence of nine years.

{¶ 16} The trial court stated it notified appellant that post-release control is optional for up to three years, as well as notifying appellant the consequences for violating post-release control.

{¶ 17} On December 29, 2016, this Court granted appellant's motion for delayed appeal and ordered the instant appeal shall proceed as if it were filed as a timely appeal of right.

{¶ 18} Appellant assigns the following as error:

{¶ 19} "I. APPELLANT WAS DENIED DUE PROCESS OF LAW, AS GUARANTEED BY BOTH THE UNITED STATES...