State v. May

[Cite as State v. May, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                  CASE NO. 8-20-10

        v.

MARK D. MAY,                                                 OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 18 04 0119

                                         Judgment Affirmed

                            Date of Decision: February 1, 2021




APPEARANCES:

        William T. Cramer for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-20-10


PRESTON, J.

      {¶1} Defendant-appellant, Mark D. May (“May”), appeals the February 25,

2020 judgment of sentence of the Logan County Court of Common Pleas. For the

reasons that follow, we affirm.

      {¶2} This case arises from two separate incidents, one on February 20, 2018,

and one on July 28, 2019, during which May acted violently toward his live-in

girlfriend, L.J. On April 10, 2018, the Logan County Grand Jury indicted May on

three counts relating to the February 20, 2018 incident: Count One of abduction in

violation of R.C. 2905.02(A)(2), (C), a third-degree felony; Count Two of domestic

violence in violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony; and Count

Three of felonious assault in violation of R.C. 2903.11(A)(1), (D)(1)(a), a second-

degree felony. (Doc. No. 2). On August 9, 2019, May appeared for arraignment

and pleaded not guilty to the counts of the indictment. (Doc. No. 17).

      {¶3} On August 13, 2019, the Logan County Grand Jury issued a superseding

indictment which related to both the February 20, 2018 and July 28, 2019 incidents,

and contained nine counts: Count One of felonious assault in violation of R.C.

2903.11(A)(1), (D)(1)(a), a second-degree felony; Count Two of abduction in

violation of R.C. 2905.02(A)(2), (C), a third-degree felony; Count Three of

domestic violence in violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony;

Count Four of attempted murder in violation of R.C. 2923.02(A), (E)(1), a first-


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degree felony; Count Five of felonious assault in violation of R.C. 2903.11(A)(1),

(D)(1)(a), a second-degree felony; Count Six of intimidation of an attorney, victim,

or witness in a criminal case in violation of R.C. 2921.04(B)(1), (D), a third-degree

felony; Count Seven of disrupting public services in violation of R.C.

2909.04(A)(3), (C), a fourth-degree felony; Count Eight of domestic violence in

violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony; and Count Nine of

menacing by stalking in violation of R.C. 2903.211(A)(1), (B)(2)(e), a fourth-degree

felony. (Doc. No. 22). On September 3, 2019, May appeared for arraignment and

pleaded not guilty to the counts of the superseding indictment. (Doc. No. 35).

       {¶4} A change-of-plea hearing was held on January 22, 2020. (Doc. No.

125). At the hearing, Count One of the superseding indictment was amended to

charge May with aggravated assault in violation of R.C. 2903.12(A)(1), (B), a

fourth-degree felony. (Id.). Under a negotiated plea agreement, May withdrew his

pleas of not guilty and pleaded guilty to Count One (as amended) and Count Five

of the superseding indictment. (Id.). In exchange, the State agreed to move for

dismissal of the remaining counts of the superseding indictment. (Id.). The trial

court accepted May’s guilty pleas, found him guilty of Count One (as amended) and

Count Five, and ordered a presentence investigation. (Id.). Furthermore, the

remaining counts of the superseding indictment were dismissed. (Id.).




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       {¶5} On February 24, 2020, the trial court sentenced May to 18 months in

prison on Count One and 8 years in prison on Count Five, to be served consecutively

for an aggregate term of 114 months in prison. (Doc. No. 134). The trial court filed

its judgment entry of sentence on February 25, 2020. (Id.).

       {¶6} May filed a notice of appeal on March 23, 2020. (Doc. No. 144). He

raises one assignment of error.

                               Assignment of Error

       Appellant’s guilty pleas were not voluntary or intelligent because
       the court failed to engage in an Alford inquiry to explore
       appellant’s reasons for entering the guilty pleas after appellant
       implied that he was innocent during the plea colloquy.

       {¶7} In his assignment of error, May argues that his guilty pleas were not

knowing, intelligent, or voluntary because the trial court failed to conduct an Alford

plea inquiry before accepting his guilty pleas. Specifically, May contends that the

trial court erred by accepting his guilty pleas after he told the trial court, “I agree

[the victim and I] fought that day. … I’m not agreeing to those facts.” May

alleges that this statement rendered his plea an Alford plea and that, accordingly, the

trial court erred when it accepted his plea without conducting an enhanced inquiry

to determine that his plea was made knowingly, voluntarily, and intelligently.

       {¶8} “All guilty pleas must be made knowingly, voluntarily, and

intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

Ohio-926, ¶ 9, citing State v. Engle, 

 (1996). “‘“Failure on

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any of those points renders enforcement of the plea unconstitutional under both the

United States Constitution and the Ohio Constitution.”’” State v. Montgomery, 3d

Dist. Putnam No. 12-13-11, 

, quoting State v. Veney, 

, 

, ¶ 7, quoting 

. Crim.R. 11(C)(2), which

governs guilty pleas for felony-level offenses, provides:

       In felony cases the court may refuse to accept a plea of guilty or a plea

       of no contest, and shall not accept a plea of guilty or no contest

       without first addressing the defendant personally and doing all of the

       following:

       (a) Determining 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.

       (b) Informing the defendant of and determining 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.

       (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury


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       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.

Crim.R. 11(C)(2)(a)-(c).

       {¶9} “An ‘Alford plea’ is a specialized type of guilty plea when the

defendant, although pleading guilty, continues to deny his or her guilt but enters the

guilty plea because the defendant believes that the offered sentence is better than

what the outcome of a trial is likely to be.” State v. Carey, 3d Dist. Union No. 14-

10-25, 

, citing State v. Schmidt, 3d Dist. Mercer No. 10-10-04,

, ¶ 13 and State v. Piacella, 

 (1971). “The term

‘Alford plea’ originated with the United States Supreme Court’s decision in North

Carolina v. Alford …, wherein the Supreme Court held that guilty pleas linked

with claims of innocence may be accepted provided the ‘defendant intelligently

concludes that his interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt.’” 

 quoting North Carolina v.

Alford, 

, 

 (1970). “Although an Alford plea allows a

defendant to maintain his factual innocence, the plea has the same legal effect as a




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guilty plea.” 

 citing State v. Vogelsong, 3d Dist. Hancock No. 5-06-60, 2007-

Ohio-4935, ¶ 15.

       {¶10} “All pleas, including an Alford plea, must meet the general

requirement that the defendant knowingly, voluntarily, and intelligently waived his

or her right to trial.” Id. at ¶ 7, citing State v. Padgett, 

, 337-

338 (2d Dist.1990), construing Crim.R. 11(C). In cases involving Alford pleas,

there is a “heightened duty upon the trial court to ensure that the defendant’s rights

are protected and that entering the plea is a rational decision on the part of the

defendant.” 

 Accordingly, “[w]here the defendant interjects protestations of

innocence into the plea proceedings, and fails to recant those protestations of

innocence, the trial court must determine that the defendant has made a rational

calculation to plead guilty notwithstanding his belief that he is innocent.” 

. “This requires, at a minimum, inquiry of the defendant concerning his

reasons for deciding to plead guilty notwithstanding his protestations of innocence;

it may require, in addition, inquiry concerning the state’s evidence in order to

determine that the likelihood of the defendant’s being convicted of offenses of equal

or greater magnitude than the offenses to which he is pleading guilty is great enough

to warrant an intelligent decision to plead guilty.” 

.

       {¶11} May contends that the trial court erred by failing to conduct an

enhanced Alford plea inquiry after he implied his innocence during the change-of-


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plea proceedings. However, although May now claims that he entered an Alford

plea, the record does not support his assertion. At the change-of-plea hearing, the

parties engaged in the following exchange with the trial court:

       [Trial Court]:          So it is your desire today to withdraw your

                               plea of not guilty and enter a plea of guilty to

                               felonious assault, a felony of the second

                               degree, and aggravated assault, a felony of

                               the fourth degree; is that correct, sir?

       [May]:                  Yes, sir.

       [Trial Court]:          Do you understand that a plea of guilty is a

                               complete admission of your guilt to the

                               charges of felonious assault and aggravated

                               assault and to the facts that support them?

       [May]:                  Yes, sir.

       …

       [Trial Court]:          The indictment indicates that these offenses

                               occurred on two separate dates.            The

                               felonious assault occurred on July 28, 2019.

                               Can you in your own words tell me what you




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                            did on July 28, 2019 that leads you to plead

                            guilty here today?

      [May’s Trial Counsel]: Your Honor, I think Mr. May would admit

                            there’s enough evidence to support a finding

                            of felonious assault.

      [Trial Court]:        The plea agreement requires a factual basis

                            from Mr. May and the prosecutor.

      [May’s Trial Counsel]: It’s kind of tricky because … [May] is

                            saying he doesn’t really remember. Certainly

                            if the prosecutor wants to read [the facts] into

                            the record and admit to those facts.

      [Trial Court]:        Madam prosecutor, … read the facts into

                            the record.

      [The State]:          Sure, Your Honor. As to July 29, 2019 [sic],

                            … [in] Lakeview, Logan County, Ohio, the

                            defendant was previously at large due to a

                            prior incident. He hit and punched [L.J.], the

                            victim, who is a family or household member

                            in and on her head. He strangled her leaving

                            visible marks upon her neck, he slammed her


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                       head on a concrete floor.         The serious

                       physical harm is an element of felonious

                       assault, including a broken collarbone and

                       broken nose. …

      [Trial Court]:   Thank you[.] … Do you agree, Mr. May,

                       that those events occurred?

      [May]:           Yes, to the events.

      [Trial Court]:   Thank you.      With regard, then, to the

                       aggravated assault     which occurred on

                       February 20, 2018, again, … would [the

                       State] read the facts … detailing that day?

      [The State]:     Yes. On or about February 20, 2018, law

                       enforcement was dispatched to …

                       Lakeview, Logan County, Ohio … to a 911

                       call. … The defendant, Mark May, and the

                       victim were family or household members.

                       They were having an argument about

                       whether or not [the victim] had been faithful

                       to [May]. Doing [sic] that, he ripped off her

                       clothes, smelled … her body to see if there


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                               was the smell of another male upon her, and

                               grabbed her by the throat. He strangled her

                               until her body became limp and she became

                               unconscious and thereby having a physical

                               incapacity, Your Honor. She fell to the floor

                               and … experienced serious physical harm.

                               He then picked her up by the head, slammed

                               her three times into the kitchen sink, again,

                               causing    serious   physical   harm.      She

                               attempted to leave. He did not allow her to

                               do that. She tried to get away and a neighbor

                               saw her and called law enforcement ….

       [Trial Court]:          Thank you …. Again, Mr. May, do you

                               admit those are the facts underlying this …

                               offense?

       [May]:                  I agree we fought that day.

       [Trial Court]:          Thank you.

       [May]:                  I’m not agreeing to those facts.

(Jan. 22, 2020 Tr. at 7-11).




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       {¶12} First, although May suggests in his brief that the statement, “I’m not

agreeing to those facts,” applies to both the felonious assault and aggravated assault

charges, it is clear from the record that the statement applied exclusively to the

aggravated assault charge, and there is no support for his claim that he entered an

Alford plea to the charge of felonious assault. Accordingly, we need not further

discuss the statement in the context of May’s felonious assault charge.

       {¶13} With respect to the aggravated assault charge, we find that, in the

totality of the circumstances, May’s single, tenuous statement that he did not

“agree[] to those facts” does not support the assertion that May entered an Alford

plea. At no time during the change-of-plea hearing did May state, or even suggest,

that he was innocent of the charge of aggravated assault or that his conduct on

February 20, 2018, was not sufficient to satisfy the elements of the offense. See

State v. Short, 3d Dist. Logan No. 8-19-19, 

 (“Importantly,

the record reveals that Short never made a protestation of his innocence in open

court.”); State v. Scurlock, 2d Dist. Clark No. 2002-CA-34, 

, ¶ 80

(finding that the appellant did not enter an Alford plea where he “did not protest his

innocence,” but rather, “indicated he was not himself when he gave a statement to

the police”). In fact, May specifically admitted that he fought with the victim that

night. Moreover, May’s statements that he fought with the victim that night but that

he did not “agree[] to [the] facts” described by the State are consistent with his trial


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counsel’s statement that although May admitted that the record supported his guilt,

he did not have a clear memory of the events. Moreover, in his brief in support,

May characterizes his statement as merely “impl[ying] that he was innocent,” rather

than as a protestation of his innocence. (Appellant’s Brief at 2, 5).

       {¶14} Also, neither May nor his attorney ever represented his plea to be an

Alford plea at the change-of-plea hearing or in his written plea agreement. See State

v. Swoveland, 3d Dist. Van Wert No. 15-17-14, 

 (“[N]either

Swoveland nor his trial counsel represented that his pleas were Alford pleas.”),

citing Carey, 

, citing State v. Pate, 3d Dist. Hancock No. 5-

96-12, 

, *3 (Nov. 19, 1996) (stating that the requirements for an

Alford plea were not met because, in part, “there was never any oral or written notice

that such a plea was being attempted”). Further, the record does not indicate that

the State was informed that May intended to make an Alford plea, or that it agreed

to condition the plea bargain upon such a qualified plea. See 

 (“The

State was never informed that Carey was intending to enter an Alford plea, nor did

it agree to condition the plea bargain upon such [qualified terms].”). Rather, the

trial court’s unrefuted statement that “[t]he plea agreement requires a factual basis

from [May] and the prosecutor” indicates that the agreement was predicated on May

making a complete admission of guilt. (Jan. 22, 2020 Tr. at 8).




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       {¶15} Additionally, in his written plea agreement, May acknowledged that

“I know that the Court must be satisfied that there is a factual basis for a plea of

‘Guilty’ … before my plea can or will be accepted.” (Doc. No. 125, Ex. A). The

document also contained the statement, “I know that the Court cannot and will not

permit any one to plead guilty or no contest who maintains his or her innocence.

Because I admit each of the operative facts of the charges against me, I respectfully

request the court to accept my plea of ‘guilty’ to the … charges [of]: felonious

assault [and] aggravated assault.” (Id.). Importantly, the written plea agreement,

which was signed and initialed by May and his trial counsel, was presented to the

trial court after May made the statement that he did not “agree[] to those facts.”

(Id.); (Jan. 22, 2020 Tr. at 25). When the trial court reviewed the written plea

agreement on the record, May affirmed that he signed the petition to plea voluntarily

and had an opportunity to review and discuss the document with his counsel before

signing. (Jan. 22, 2020 Tr. at 25).

       {¶16} Thus, considering the totality of the circumstances, we cannot find that

May’s single comment that he did not “agree[] to those facts” is sufficient to

characterize his plea as an Alford plea. 

 (“Carey’s one comment,

wherein she failed to take full responsibility for her participation in the offenses,

was not sufficient to characterize her plea as an Alford plea.”). Therefore, the trial

court was not required to conduct an enhanced Alford plea inquiry before accepting


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May’s guilty pleas in order for his pleas to be made knowingly, intelligently, and

voluntarily.

       {¶17} Accordingly, May’s assignment of error is overruled.

       {¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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