State v. Hurt

• Decision Date: 30 April 2020
• Docket Number: Case No. CT2019-0053
• Citation: 2020 Ohio 2754
• Parties: STATE OF OHIO Plaintiff-Appellee v. KELVIN HURT JR. Defendant-Appellant
• Court: Ohio Court of Appeals

2020 Ohio 2754

STATE OF OHIO Plaintiff-Appellee v. KELVIN HURT JR. Defendant-Appellant

Case No. CT2019-0053

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

April 30, 2020

JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019 0083

JUDGMENT: AFFIRMED

APPEARANCES:

For Plaintiff-Appellee:

D. MICHAEL HADDOX

MUSKINGUM CO. PROSECUTOR

TAYLOR P. BENNINGTIN

27 North Fifth St., P.O. Box 189

Zanesville, OH 43701

For Defendant-Appellant:

ERIC E. WILLISON

4876 Cemetery Rd.

Hilliard, OH 43026

Delaney, J.

{¶1} Appellant Kelvin Hurt Jr. appeals from the April 11, 2019 Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following statement of facts is adduced from appellee's statement at the change-of-plea hearing on April 9, 2019.

{¶3} In August and September 2018, the CODE Task Force made two controlled buys of methamphetamine from appellant in Muskingum County, Ohio. The first controlled buy, on August 31, 2018, was captured on video.¹ Appellant and a confidential informant agreed to a deal in which appellant sold one and a half ounces of methamphetamine for $600. Appellant had a bag of methamphetamine in his hands, which he opened and repackaged a smaller amount of methamphetamine into a smaller bag, which he wrapped and handed to the informant. This purchase yielded 38.89 grams of methamphetamine and took place within 1000 feet of a school.

{¶4} A month later, an informant purchased 25.57 grams of methamphetamine from appellant for around $400. The second sale took place on the sidewalk in front of appellant's residence.

{¶5} Appellant was charged by indictment with one count of drug trafficking (methamphetamine) pursuant to R.C. 2925.03(A)(1) with a school specification, a felony of the first degree [Count I]; illegal manufacture of methamphetamine pursuant to R.C. 2925.04(A) with a school specification, a felony of the first degree [Count II]; and drugtrafficking (methamphetamine) pursuant to R.C. 2925.03(A), a felony of the second degree [Count III]. Appellant entered pleas of not guilty.

{¶6} On April 9, 2019, appellant changed his pleas to guilty to the following amended counts: Count I, drug trafficking pursuant to R.C. 29225.03(A)(1), a felony of the third degree; Count II, illegal manufacture of Schedule III drugs pursuant to R.C. 2925.04(A) with a school specification, a felony of the second degree; and Count III, drug trafficking pursuant to R.C. 2925.03(A)(1), a felony of the third degree. Appellant was sentenced to an aggregate prison term of 10 years.

{¶7} Appellant now appeals from the trial court's Entry of May 15, 2019.

{¶8} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶9} "I. THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT'S GUILTY PLEA WHICH WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY."

{¶10} "II. THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT'S GUILTY PLEA WHICH WAS A RESULT OF INEFFECTIVE ASSISTANCE OF COUNSEL."

ANALYSIS

I., II.

{¶11} Appellant's two assignments of error are related and will be considered together. Appellant argues his plea of guilty upon Count II was not voluntary, intelligent, or knowing because it was premised upon a misunderstanding of the charged offense and compounded by ineffective assistance of counsel.² We disagree.

{¶12} Appellant's arguments on appeal relate solely to Count II, illegal manufacture of methamphetamine with a school specification. We begin by noting that the record is almost nonexistent as to the facts underlying the charged offenses due to the procedural posture of the case as a guilty plea. Appellant entered a plea of guilty to one count of illegal manufacture pursuant to R.C. 2925.04(A), which states, "No person shall knowingly cultivate marihuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance." Count II of the indictment alleges in pertinent part:

* * * *.

The Jurors of the Grand Jury of the State of Ohio * * * do find and present that on or about 8/31/2018 in the County of Muskingum, Ohio, [appellant] did knowingly manufacture or otherwise engage in any part of the production of a controlled substance, to wit: Methamphetamine, the said [appellant] committing said offense in the vicinity of a school; in violation of the Ohio Revised Code, Title 29, Section 2925.04(A), and against the peace and dignity of the State of Ohio.

* * * *.

{¶13} No request was made for a bill of particulars pursuant to Crim.R. 7(E) and no bill was filed.

{¶14} Appellant now argues he "misunderstood the nature" of the illegal-manufacture charge in Count II when he entered his plea of guilty to that offense. We note that at no time throughout the proceedings did appellant express any confusion or misunderstanding about the offenses he was pleading to. Instead, he implicitly argues that the court should have sua sponte questioned whether he was guilty upon Count II. Appellant's argument is premised upon the following statements during at the change-of-plea hearing:

* * * *.

[PROSECUTOR]: Your Honor, on August 31^st of 2018 the Code Task Force arranged for a controlled buy of two ounces of methamphetamine from the defendant, Mr. Hurt. The CI was met at a previous location, and indicated that—or the address where the transaction was, 1055 Moxahala Avenue here in Muskingum County, Ohio. It was going to be $600 for the two ounces.

The CI was searched, the vehicle was searched. They were provided with $600 of confidential funds. They were equipped with audio and video recording devices. They were tailed to 1055 Moxahala Avenue. Hurt was outside the residence engaged in conversation with the confidential informant. He was seen there by detectives. He began talking about drugs and the price of the drugs. He informed the confidential informant that two ounces was going to be $700. They agreed that the CI would get one and a half ounces for $600. He's seen on the video captured during the crime. His face is visible numerous times. He's observed in the video with a plastic bag of meth in his hand. He opens up the bag, repackages a smaller amount from this baggie to another bag. He's seen wrapping the baggie up, tying it off, handing it to the CI, and retrieving money from the CI.

The CI was kept under surveillance throughout the buy, and the baggie was collected. It was 38.89 grams of methamphetamine. And that location was within 1,000 feet of the Zanesville Community School at 920 Moxahala.

On September 26 of 2018 the Code Task Force arranged for a controlled buy of one ounce of methamphetamine from Mr. Hurt. There was a series of text messages setting up the buy. He was now living behind the East End Café on Cemetery Street, also here in Muskingum County, Ohio. The vehicle and the CI were searched, provided with $400 in confidential funds, equipped with audio and video recording devices, tracking devices, tailed to that location, met with Hurt on the sidewalk in front of the residence where Mr. Hurt was, again, observed by detectives at that location.

He has a conversation with the confidential informant. The confidential informant talks about him never having baggies, they talk about the quality of the drugs, and the size of the shards, which is slang for large chunks of methamphetamine. And the CI was then tailed back after the transaction. 25.57 grams of methamphetamine was recovered from that controlled buy. This all occurred here in Muskingum County, Ohio.

THE COURT: Explain to me the illegal manufacture from that scenario.

[PROSECUTOR]: That's the repackaging and packaging which is compounding.

THE COURT: And that's what I presumed you were referring to, and that's why I wanted to clarify. Thank you. [Defense counsel], anything that you would like to add?

[DEFENSE COUNSEL]: No. We would so stipulate to the facts for the purposes of the plea, Your Honor.

THE COURT: Thank you. The Court will accept the defendant's pleas of guilty, order them to be filed. There will be a specific finding of guilty with regard to each of these three counts. The Court will order a presentence investigation to be conducted in the matter.

* * * *.

T. I, 19-22 (emphasis added).

{¶15} Appellant argues the above indicates a mistake of law as to whether appellant's conduct met the elements of illegal manufacture, i.e., the act of transferring the meth from one bag to another does not rise to the level of "illegal manufacture." Pursuant to R.C. 2925.01(J), "manufacture" means to plant, cultivate, harvest, process, make, prepare, or otherwise engage in any part of the production of a drug, by propagation, extraction, chemical synthesis, or compounding, or any combination of the same, and includes packaging, repackaging, labeling, and other activities incident to production. Appellant argues his act of taking drugs from a larger bag and placing them in a smaller bag is activity incident to sale and/or transportation, not activity incident to production.

{¶16} Appellant has not cited any authority for his underlying premise: that the conduct briefly described at the change-of-plea hearing does not fit the statutory elements. From that premise, however, appellant extrapolates a fatal flaw in the plea process that resulted in an involuntary plea. The issue presented by this case is whether the guilty plea was rendered involuntary on the basis of the conversation between the trial court and appellee, and we find it was not.

{¶17} "'When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.'" State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). "An ...