State v. Litton

[Cite as State v. Litton, 

.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-A-0073
        - vs -                                   :

RUSSELL DWAYNE LITTON, a.k.a.                    :
LITTON, RUSSEL DWAYNE
                                                 :
                 Defendant-Appellant.
                                                 :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016
CR 00231.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Russell Dwayne Litton, a.k.a. Litton, Russel Dwayne, appeals

his conviction, following his guilty plea, of illegal manufacture of methamphetamine

(“meth”). At issue is whether the trial court erred in accepting appellant’s guilty plea.

For the reasons that follow, we affirm.
       {¶2}   On June 8, 2016, appellant was charged in a four-count indictment with

illegal manufacture of meth, a felony-two; illegal assembly or possession of chemicals

for the manufacture of meth, a felony-three; aggravated possession of meth, a felony-

five; and possessing criminal tools, a felony-five. Appellant pled not guilty.

       {¶3}   On December 6, 2016, appellant, then 51 years old, entered a “Written

Plea of Guilty and Plea Agreement” with the state pursuant to which he agreed to plead

guilty to illegal manufacture of meth and the state agreed to nolle the remaining counts.

       {¶4}   During the plea hearing, appellant told the court he was satisfied with his

attorney. He acknowledged his attorney had informed him of the charges against him,

the potential sentence, and his constitutional rights. The court advised appellant that by

pleading guilty, he would be waiving his right to a jury trial, his right to confront the

state’s witnesses, his right to subpoena witnesses, his privilege against self-

incrimination, and his right to have the state prove his guilt beyond a reasonable doubt.

       {¶5}   Appellant said that he waived these rights; that he was “voluntarily

pleading guilty of [his] own free will;” and that he understood that by pleading guilty he

was admitting he committed the offense of illegal manufacture of meth.           Appellant

acknowledged that no threats or promises had been made to induce him to plead guilty.

       {¶6}   The court explained to appellant the nature of the charges, his potential

exposure for illegal manufacturing of meth, and the terms of the plea bargain.

       {¶7}   Appellant acknowledged that, pursuant to the plea bargain, in exchange

for his guilty plea to illegal manufacturing of meth, the state would dismiss the remaining

charges and recommend that the court sentence him to three years in prison, which

was the minimum sentence, to run concurrently to his sentence in an unrelated case for




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which the court had recently sentenced him to a prison term. The court advised

appellant that he had negotiated a jointly recommended sentence and that the court

would impose that sentence.

       {¶8}     The court asked appellant what happened that caused him to get into

trouble.   Appellant said he invited two friends to his apartment for dinner, his co-

defendant, Michael Lockwood, and a female. After dinner, appellant told them to “go

ahead and hang out.” He then went to his sister’s house to visit.

       {¶9}     Appellant said that when he returned home, “I smelled it, the chemicals.”

He told Lockwood he was leaving and would be back in awhile. Appellant said he went

for a walk and smoked a cigarette. He then returned and went in the front door.       He

said he walked out the back door and saw an officer trying to break in his bedroom

door. Appellant said another officer came in the apartment through the front door and

arrested him.

       {¶10} The prosecutor then outlined the state’s evidence. He said that Deputy

Matthew Johns of the Ashtabula County Sheriff’s Department was on foot patrol when

he saw an older, shaggy-haired male, later identified as appellant, “walk in the

shadows” near a closed business. Appellant walked past the fence and gates that

surrounded the business and walked around inside the fenced area for some time. The

deputy said the area was dark and the business was clearly closed. He thus believed

appellant was engaging in criminal activity. As a result, the deputy called for backup.

Deputy Johns continued to watch appellant from a distance.           He eventually saw

appellant exit the fenced area and walk over to a nearby apartment and enter




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Apartment 2, which the deputy later learned was leased by appellant. When appellant

entered the apartment, he left the front door open, but closed the screen door.

       {¶11} Another deputy arrived and kept watch at the rear of the apartment, while

Deputy Johns tried to make contact at the front door. As Deputy Johns walked up to the

front door from the sidewalk, he saw Lockwood inside sitting on a couch in the living

room. He was wearing blue rubber gloves that extended up his arms. Deputy Johns

saw chemicals and other items used to manufacture meth spread out on a coffee table

in front of Lockwood. These included bottles, cut-open ammonium nitrate instant cold

packs, mason jars, coffee filters, tubing, digital scales, and baggies. Deputy Johns

smelled the distinct odor of a meth lab coming from the apartment. The deputy said

that, based on his observations, Lockwood was engaging in the manufacture of meth.

       {¶12} Deputy Johns stepped back from the apartment and advised dispatch to

send additional units. While waiting for backup, someone closed the front door of the

apartment and locked it. Due to the hazardous nature of meth labs, Deputy Johns

kicked in the front door.

       {¶13} When Deputy Johns entered the apartment, he saw that Lockwood was

no longer in the living room. The deputy called out commands for all persons in the

apartment to show themselves. The bathroom door opened and Lockwood walked out.

Deputy Johns arrested Lockwood, the female, and appellant.

       {¶14} Throughout the apartment, Deputy Johns saw items used in the

manufacture of meth. Elsewhere in the living room, he saw more cut-open instant cold

packs, coffee filters, tubing, baggies, acid drain opener, mason jars, digital scales with

residue, two baggies of meth, and lithium batteries. A fan was pointed toward the front




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door to blow the chemical fumes out of the apartment. In the bathroom, he saw the blue

rubber gloves Lockwood was wearing, two plastic pop bottles, meth lab sludge in the

toilet water, tubing, and acid drain opener. He saw a respirator in the hallway. In the

kitchen, the deputy saw two one-pot meth labs. In the back room, he saw a canister of

sodium nitrate. By the back door, he saw a one-pot meth lab.

      {¶15} The court found appellant voluntarily waived his constitutional rights,

accepted his guilty plea, and found him guilty.

      {¶16} The court proceeded to sentencing. Appellant’s attorney asked the court

to adopt and impose the jointly recommended minimum three-year prison sentence.

      {¶17} The court noted that appellant has prior felony convictions and was

currently in prison on an unrelated case for which the court had recently sentenced him.

The court sentenced appellant to three years in prison to be served concurrently to the

sentence in his other case.

      {¶18} Appellant appeals, asserting one assignment of error, as follows:

      {¶19} “Did the Trial Court err to the prejudice of the Appellant by accepting the

Defendant’s guilty plea without an adequate acknowledgement of guilt by the

Appellant?”

      {¶20} This court reviews de novo whether the trial court accepted a plea in

compliance with Crim.R. 11. State v. Dundics, 11th Dist. Trumbull No. 2015-T-0047,

, ¶10.

      {¶21} Appellant argues that, although the record shows his guilty plea was

knowing, intelligent, and voluntary, the plea colloquy was insufficient and the trial court

should not have accepted his guilty plea because, in appellant’s explanation of




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circumstances, he did not acknowledge responsibility for his crime. He thus argues the

court should have advised him of the rule set forth in North Carolina v. Alford, 

 (1970), and applied that rule to this case.

       {¶22} “The plea of guilty is a complete admission of the defendant’s guilt.”

Crim.R. 11(B)(1). The Supreme Court of Ohio has held that “a defendant who has

entered a guilty plea without asserting actual innocence is presumed to understand that

he has completely admitted his guilt.” (Emphasis added.) State v. Griggs, 

, 

, ¶19.

       {¶23} The record shows that appellant voluntarily pled guilty and acknowledged

that by pleading guilty he was admitting he was guilty of illegal manufacture of meth and

that the court would immediately impose the stipulated sentence.

       {¶24} Further, during the plea hearing, appellant admitted this was his house

and that “they were making meth.”       He admitted that after he smelled the odor of

chemicals, he did not tell Lockwood and the female to stop their manufacturing

activities, but, rather, left them alone in his apartment to continue. And, appellant did

not dispute Deputy Johns’ report that chemicals and other items used in the

manufacture of meth were present and in plain view throughout the apartment.

Appellant thus tacitly admitted he allowed Lockwood and the female to use his

apartment knowing they were engaged in manufacturing meth.

       {¶25} In State v. Campbell, 11th Dist. Ashtabula No. 2013-A-0047, 2014-Ohio-

972, ¶10, this court held that appellant’s conviction of illegal manufacture of meth was

supported by sufficient evidence where, upon opening the door of appellant’s residence,




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the officer smelled a strong odor of a meth lab inside the residence and found a meth

lab and other items used in the manufacture of meth. Id. at ¶45-48.

       {¶26} We therefore hold that the trial court did not err in accepting appellant’s

guilty plea.

       {¶27} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Ashtabula County

Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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