[Cite as State v. Turner,
2016-Ohio-3325.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 103610 and 103611
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HEATH CLAY TURNER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-586796-B and CR-14-586935-A
BEFORE: E.T. Gallagher, J., Keough, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: June 9, 2016
ATTORNEY FOR APPELLANT
Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Heath Clay Turner (“Turner”), appeals his guilty pleas
and sentences in two cases. He raises the following three assignments of error:
1. The defendant was denied due process of law when the court overruled
defendant’s motion to withdraw his pleas of guilty.
2. The defendant was denied due process of law when the court did not
inform the defendant that the firearm specifications would have to be served
consecutively to one another.
3. The defendant was denied due process of law when the court
disapproved defendant’s placement into an intense prison program.
{¶2} We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
{¶3} In Cuyahoga C.P. No. CR-14-586796-B, Turner was charged with four
counts of aggravated burglary, one count of attempted murder, seven counts of felonious
assault, 15 counts of aggravated robbery, 14 counts of kidnapping, two counts of illegal
possession of a firearm in a liquor permit premises, and three counts of having a weapon
while under disability. In Cuyahoga C.P. No. CR-14-586935-A, Turner was charged
with one count of theft and one count of unauthorized use of a vehicle.
{¶4} The charges in Case No. CR-14-586796-B arose from a series of armed
robberies in bars and restaurants in Parma and Independence, Ohio. A patron at one of
the bars was shot in the back, and other victims were “pistol whipped.” Turner was
named in the indictment along with codefendants Cortique Higgins (“Higgins”),
Diamante Collins, and Lee Adams II. Higgins was the alleged gunman in the crime
spree.
{¶5} Pursuant to a plea agreement, the state agreed to nolle all but seven counts
and all three-year firearm specifications in exchange for Turner’s truthful testimony
against his codefendants. Accordingly, Turner pleaded guilty to one count of aggravated
burglary, three counts of kidnapping, two counts of aggravated robbery, and one count of
felonious assault. Turner also pleaded guilty to the attendant forfeiture specifications
and three one-year firearm specifications. In Case No. CR-14-586935-A, Turner pleaded
guilty to both counts charged in the indictment.
{¶6} Prior to sentencing, Turner moved to withdraw his guilty plea, and the court
held a hearing on the motion. Turner’s lawyer advised the court that Turner mistakenly
believed he would be sentenced to a four-year prison term when he entered his plea.
However, counsel conceded the court never suggested Turner would receive a four-year
sentence.
{¶7} The court, prosecutor, and defense counsel reviewed the transcript from the
plea hearing to determine if there was any basis for Turner’s purported confusion
regarding his potential sentence. The prosecutor read the following language from page
ten of the transcript:
And do you further understand that there’s been a sentence of eight years
discussed in this matter? That is not a promise. I am free at any time to
disregard that recommendation.
Do you understand that?
THE DEFENDANT: Yes, sir.
(Tr. 10, 31.)
{¶8} Upon further questioning, defense counsel explained that Turner had been in
the county jail for 15 months and none of this time could be applied to any possible
judicial release. Turner was fearful of Higgins, who was also in the county jail and had
twice threatened Turner with retaliation for snitching. Counsel also asserted Turner would
be known as a snitch when he is later incarcerated at the Lorain correctional facility.
{¶9} The court afforded Turner an opportunity to speak at the hearing. He
explained: “I don’t want to be around the man who has threatened me.” Referring to his
codefendants, Turner further stated:
Here’s the thing. I need them to go down before me so I can be — so they
can go down, that way when I go down, I can tell them who I’m separated
from and they will — they will make the separation.
Neither Turner nor counsel made any further argument regarding any claimed confusion
or misunderstandings at the time Turner entered his guilty pleas.
{¶10} The trial court denied Turner’s motion to withdraw his guilty plea. The
court sentenced Turner to five years on each of the predicate offenses in Case No.
CR-14-586796-B, and one year on each of three firearm specifications to be served
consecutively for an aggregate eight-year prison term. In Case No. CR-14-586935-A,
the court sentenced Turner to 12 months in prison to be served concurrently with his
eight-year sentence in Case No. CR-14-586796-B. Turner now appeals the trial court’s
judgment.
II. Law and Analysis
A. Guilty Plea
{¶11} In the first assignment of error, Turner argues the trial court violated his
right to due process of law when it overruled his motion to withdraw his guilty pleas. He
contends his pleas should be vacated because there were “irregularities” at the plea
hearing that created a “manifest injustice.”
{¶12} Crim.R. 32.1 governs motions to withdraw guilty pleas and states that “[a]
motion to withdraw a plea of guilty or no contest may be made only before sentence is
imposed; but to correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶13} “[A] presentence motion to withdraw a guilty plea should be freely and
liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527,
584 N.E.2d 715 (1992).
However, a defendant does not have an absolute right to withdraw a guilty plea prior to
sentencing.
Id. at paragraph one of the syllabus. Indeed, a mere change of heart is not a
sufficient justification for vacating a guilty plea. State v. Bloom, 8th Dist. Cuyahoga No.
97535,
2012-Ohio-3805, ¶ 13. Before ruling on a motion to withdraw a guilty plea, “the
trial court must conduct a hearing to determine whether there is a reasonable legitimate
basis for the withdrawal of the plea.”
Id.
{¶14} The decision to grant or deny a presentence motion to withdraw is within the
trial court’s discretion. Id. at paragraph two of the syllabus. We, therefore, will not
disturb the trial court’s judgment absent an abuse of discretion. Id. at 527.
{¶15} A trial court does not abuse its discretion in denying a motion to withdraw
the plea where a defendant was (1) represented by competent counsel, (2) given a full
Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion
to withdraw, and (4) the record reflects that the court gave full and fair consideration to
the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211,
428 N.E.2d 863
(8th Dist.1980), paragraph three of the syllabus.
{¶16} Before accepting a guilty plea, Crim.R. 11(C)(2)(a)-(c) requires that the trial
court personally address the defendant and
(1) determin[e] that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing[,]
(2) [i]nform[ ] the defendant of and determin[e] that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence[;]
[and]
(3) [i]nform the defendant and determin[e] that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the
defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶17} When a trial court engages in a plea colloquy with the defendant, it must
strictly comply with Crim.R. 11(C)(2)(c), which sets forth the constitutional rights a
guilty plea waives. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897 N.E.2d
621, ¶ 18. Thus, the trial court must explain to the defendant that by pleading guilty, he
waives (1) the right to a jury trial, (2) the right to confront one’s accusers, (3) the right to
compulsory process to obtain witnesses, (4) the right to require the state to prove guilt
beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination.
Veney at syllabus.
{¶18} The trial court held a hearing and gave full and fair consideration to his
motion to withdrawal his guilty pleas. Moreover, the record reflects the court engaged
in a thorough Crim.R. 11 colloquy with Turner. The court informed Turner, and
determined he understood, that he was waiving his constitutional rights to a jury trial, to
confront the witnesses against him, to call witnesses in his favor, and to require the state
to prove his guilt beyond a reasonable doubt. He also understood that no one could
compel him to testify against himself and that no one could comment on his decision to
remain silent.
{¶19} As previously stated, the court made clear that it was not bound by the
agreed eight-year sentence that was part of Turner’s plea agreement with the state. The
court individually described each count to which Turner was pleading guilty and
identified its felony level. In explaining the potential penalties that could be imposed by
virtue of his guilty pleas, the court stated:
THE COURT: All right. Going over potential penalties right here. Most
of these are felonies of the first degree. Felonies of the first degree carry a
potential prison sentence of three to 11 years in yearly increments and a fine
of no more than $20,000.
A felony of the second degree, which is Count 26, two to eight years in state
prison in yearly increments and a fine of no more than $15,000.
…
Do you understand that?
THE DEFENDANT: Yes, sir.
{¶20} Further, the court informed Turner that he would be required to serve any
firearm specifications prior to and consecutive to any sentence imposed on a predicate
offense. (Tr. 11.) The court also explained (1) the mandatory nature of postrelease
control and the consequences of violating postrelease control, (2) that Turner’s guilty
pleas would result in forfeiture of certain property, (3) the court could hold him
responsible for court costs and supervision fees, and (4) he would have to pay restitution
to the victims. Thus, the record reflects the court fully advised Turner of all the
constitutional and procedural protections set forth in Crim.R. 11(C). There were no
“irregularities” nor “manifest injustice” in either the plea proceedings or the court’s
decision to deny Turner’s plea withdrawal request.
{¶21} Therefore, the first assignment of error is overruled.
B. Firearm Specifications
{¶22} In the second assignment of error, Turner argues the court violated his right
to due process of law by failing to inform him that he would have to serve the prison
terms on the firearms specifications consecutively. Turner concedes the court advised
him in the plea colloquy that a one-year firearm specification “must be served prior to and
consecutive to any sentence given,” but claims he was unaware that the court could run
each of the one-year prison terms on the firearm specifications consecutive to one
another.
{¶23} In State v. Johnson, 40 Ohio St.3d 130, 134,
532 N.E.2d 1295 (1988), the
Ohio Supreme Court held that, “[f]ailure to inform a defendant who pled guilty to more
than one offense that the court may order him to serve any sentences it imposed
consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does
not render the plea involuntary.”
{¶24} Turner, however, cites State v. Petitto, 8th Dist. Cuyahoga No. 95276,
2011-Ohio-2391, in support of his argument. In Petitto, the court failed to explain that
sentences on each offense could be served consecutively. However, that was not the basis
for this court’s reversal of the trial court’s judgment. Rather, this court concluded that
under the totality of the circumstances, the appellant could not have
subjectively understood the implications of his plea because the trial court’s
ambiguous reference to a potential “prison term of anywhere from one to
five years” failed to convey to him that the potential maximum prison term
for each offense was five years. The prejudice to appellant is obvious
from the record. A plain reading of the trial court’s language would lead
one to believe that the maximum penalty he faced was 5 years,
cumulatively. The trial court was not required to inform appellant that the
individual penalties for his offenses could be served consecutively.
However, we hold that a trial court errs when it fails to inform the
defendant of the maximum penalty for each offense and uses misleading
language in connection with multiple offenses that ambiguously refers to a
single maximum penalty.
Id. at ¶ 13.
{¶25} As previously stated, the trial court in this case reviewed each count
individually and explained the potential range of penalties applicable to each count. The
trial court also acknowledged that because the plea agreement required an aggregate
eight-year prison term, it would run all prison terms concurrently. However, the court
warned that if Turner did “something stupid,” the court could order consecutive
sentences. Under the totality of these circumstances, we find that the trial court’s failure
to specifically state that prison terms on the firearm specifications could run
consecutively did not render Turner’s plea involuntary.
{¶26} Accordingly, the second assignment of error is overruled.
C. Intense Prison Program
{¶27} In the third assignment of error, Turner argues the trial court violated his
right to due process of law when it arbitrarily disapproved of placing him in an intensive
prison program (“IPP”).
{¶28} IPPs focus on “‘educational achievement, vocational training, alcohol and
other drug abuse treatment, community service and conservation work, and other
intensive regimens or combinations of intensive regimens.’” State v. Howard, 190 Ohio
App.3d 734,
2010-Ohio-5283,
944 N.E.2d 258, ¶ 10 (2d Dist.), quoting R.C. 5120.032.
Trial courts have discretion to recommend placement of an offender into an IPP pursuant
to R.C. 5120.032.
{¶29} However, only eligible prisoners may participate in an IPP, and R.C.
5120.032(B)(2)(a) specifically excludes individuals serving prison terms for first- and
second-degree felonies from participating in an IPP. R.C. 5120.032(B)(2)(c) also
excludes offenders serving prison terms for third-, fourth-, and fifth-degree felonies “in
which the prisoner caused or attempted to cause actual physical harm to a person.”
{¶30} If the court recommends or disapproves of placement in an IPP, R.C.
2929.19(D) requires that the court “make a finding that gives its reasons for its
recommendation or disapproval.” Turner argues the trial court violated R.C. 2929.19(D)
by arbitrarily disapproving of his placement in IPP without explanation. He relies on
Howard, supra, in support of his argument.
{¶31} In Howard, the defendant argued the trial court erred by disapproving shock
incarceration, IPP, and transitional control as part of his sentence following termination
of his community control sanctions. The trial court did not address IPP, shock
incarceration, or transitional control at the sentencing hearing, but rejected the
defendant’s potential participation in those programs in a subsequently filed termination
entry. On appeal, the court reversed the trial court’s judgment, in part, because the trial
court failed to give its reasons for its disapproval as required by R.C. 2929.19(D). Id. at
¶ 39.
{¶32} However, the Howard court further held that where a trial court fails to
orally mention IPP at the sentencing hearing, the reviewing court may review the entire
record and sentencing transcript for “implied reasons for disapproval.” Id. at ¶ 29-32,
citing State v. Heger, 5th Dist. Perry No. 2008-CA-1, 2009-Ohio-2691, and State v.
Lowery, 11th Dist. Trumbull No. 2007-
T-0039, 2007-Ohio-6734.
{¶33} Howard was convicted of one count of abduction. The court observed that
Howard’s abduction conviction did not necessarily make him ineligible for IPP. Id. at ¶
26. The Howard court observed that abduction could be committed under circumstances
that place the victim in fear without any attempt of physical harm. In reversing the trial
court’s judgment, the Howard court explained:
The record in the case before us is silent concerning the specific
circumstances of the alleged crime, and the trial court did not mention the
facts of the crime at the revocation hearing.
…
In the case before us, the record does not contain any finding by the trial
court “that gives reasons for its … disapproval [of shock incarceration or
an intensive program prison].” Nor does the record contain any other
findings by the trial court that could be deemed to constitute its implied
reasons for disapproval of either program.
In short, the record reflects a complete failure by the trial court to have
complied with the finding requirement of R.C. 2929.19(D). We are
therefore unable to conclude that the trial court substantially complied with
that requirement.
{¶34} We find Howard distinguishable from the case before us. Turner pleaded
guilty and was convicted of first- and second-degree felonies, which made him
automatically ineligible for IPP under R.C. 5120.032(B)(2). Moreover, the court
commented at the sentencing hearing that at least one victim sustained serious physical
harm. (Tr. 58.) As previously stated, offenders serving prison terms for first- or
second-degree felonies or other felonies involving attempts to cause physical harm are
ineligible for IPP. Therefore, despite Turner’s argument to the contrary, the trial court
provided appropriate reasons for disapproving of Turner’s placement in an IPP.
{¶35} The third assignment of error is overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
