State v. Collins

[Cite as State v. Collins, 

.]


                                IN THE COURT OF APPEALS OF OHIO
                                   FOURTH APPELLATE DISTRICT
                                        HIGHLAND COUNTY


STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        : CASE NO. 23CA13

        v.                                         :

CLAYTON COLLINS,                                   : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                       :

_________________________________________________________________

                                              APPEARANCES:

Christopher Bazeley, Cincinnati, Ohio, for appellant1.

Andrea K. Boyd, Special Prosecuting Attorney, Assistant Attorney
General, Ohio Attorney General’s Office, Columbus, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-25-24
ABELE, J.

        {¶1}     This is an appeal from a Highland County Common Pleas

Court judgment of conviction and sentence.                   Clayton Collins,

defendant below and appellant herein, assigns two errors for

review:

                 FIRST ASSIGNMENT OF ERROR:

                 “COLLINS’ PLEA WAS NOT KNOWINGLY, VOLUNTARILY,
                 AND INTELLIGENTLY GIVEN.”

        1
        Different counsel represented appellant during the trial
court proceedings.
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HIGHLAND, 23CA13


           SECOND ASSIGNMENT OF ERROR:

           “THE TRIAL COURT ERRED WHEN IT IMPOSED A
           CONSECUTIVE SENTENCE WITHOUT CONSIDERING ALL OF
           THE R.C. 2929.14 FACTORS.”

    {¶2}   In January 2023, a Highland County Grand Jury returned an

indictment that charged appellant with (1) one count of rape of a

child in violation of R.C. 2907.02(A)(1)(b), a first-degree felony,

and (2) one count of gross sexual imposition in violation of R.C.

2907.05(A)(4), a third-degree felony.    Appellant entered not guilty

pleas.

    {¶3}   At a May 31, 2023 pretrial hearing, the trial court

notified the parties of the court’s practice that plea offers “be

placed in writing so that it’s clear what they are and then in the

event that there isn’t a plea reached that this matter proceeds to

trial the Court has a written plea rejection form.”   In addition,

the court added:

    [M]y policy is that any resolution of the case involving a
    jury trial has to be done fourteen days prior to the
    hearing. So, that’s just a couple days prior to that and
    the reason for that is once we send out jury notices people
    start changing their routines and calling in and there’s a
    lot of people effected [sic.] and so I don’t engage, we
    don’t have jury’s that are sitting here everyday like they
    do in the city. So, we don’t like to inconvenience people.
    So, there is no plea bargaining after fourteen days.
                                                                     3
HIGHLAND, 23CA13

     {¶4}   At the final pretrial hearing on June 26, 2023, the State

informed the trial court that appellant rejected the State’s plea

offer.   Consequently, the parties entered a written plea rejection.

In addition, the trial court reiterated:

     [W]’ll send out jury notices the end of this week and the
     Court’s policy is there is no plea bargaining on trial
     date. There’s no plea bargaining fourteen days, uh within
     fourteen days. So, if there is going to be a resolution
     it needs to be done by the end of the week. Otherwise, we
     will go to trial, we don’t mess around talking and seeing
     if somebody wants to work something out the day of trial.
     We’ve got jurors here, they change their lives, everybody
     changes their schedule so. That’s the way it will go.


     {¶5}   Two days later, at the June 28, 2023 change-of-plea

hearing, appellant indicated that he consulted with his attorney,

expressed satisfaction with his representation, acknowledged he

understood the plea agreement, the allegations contained in the

indictment, the rights he waived with his plea, and the possible

penalties.    The State reviewed the underlying facts of the

indictment and noted that this case involved two separate victims,

both appellant’s relatives, one less than ten years old and one

less than six years old.

     {¶6}   After appellant entered a guilty plea to both counts, the

trial court ordered appellant to (1) serve a mandatory life term

with possibility of parole after 15 years on Count 1- Rape, (2)

serve a 48-month prison term on Count 2- Gross Sexual Imposition,
                                                                      4
HIGHLAND, 23CA13

(3) serve the prison terms consecutively to each other and to

another prison sentence appellant was serving on a different case,

(4) serve a mandatory 5-year postrelease control term, and (5)

register as a Tier III sex offender.   This appeal followed.

                                  I.

    {¶7}   In his first assignment of error, appellant asserts that

he did not enter a knowing, intelligent, and voluntary plea.

Specifically, appellant contends that the trial court’s policy of

imposing a plea agreement deadline provided an advantage to the

State and caused him to enter an invalid plea.

    {¶8}   “Because a no-contest or guilty plea involves a waiver of

constitutional rights, a defendant's decision to enter a plea must

be knowing, intelligent, and voluntary.”   Crim.R. 11, State v.

Dangler, 

, citing Parke v. Raley, 

 (1992).   Thus, if a defendant did not enter a plea knowingly,

intelligently, and voluntarily, enforcement of that plea is

unconstitutional.    Id.; State v. Leib, 

 (4th

Dist.).    In general, appellate courts apply a de novo standard of

review when evaluating a plea's compliance with Crim.R. 11(C).

State v. Nero, 

 (1990).    Moreover,

evidence of a written waiver form signed by the accused constitutes

strong proof of a valid waiver.   State v. Clark, 

,
                                                                     5
HIGHLAND, 23CA13

261 (1988).

     {¶9}   In the case at bar, appellant does not challenge the

trial court's compliance with Crim.R. 11, but rather argues that,

due to the court’s policy to preclude pleas less than 14 days

before a trial, he did not enter a knowing, intelligent, and

voluntary plea.

     {¶10} Concerning a judge's participation in the plea-bargaining

process, the Supreme Court of Ohio cautioned that “the judge's

position in the criminal justice system presents a great potential

for coerced guilty pleas and can easily compromise the impartial

position a trial judge should assume.”    State v. Byrd, 

 (1980).    Thus, although judicial participation is

strongly discouraged, it does not render a plea per se involuntary;

rather, the “ultimate inquiry is whether the judge's active conduct

could have led the defendant to believe he could not get a fair

trial, including a fair sentence after trial, and whether the

judicial participation undermined the voluntariness of the plea.”

State v. Lawson, 

 (3d Dist.); State v. Bodine,

, ¶ 8 (3d Dist.).

     {¶11} In Bodine, following the denial of Bodine’s suppression

motion, the trial court set the case for a jury trial on May 5,

2022.   On April 18, 2022 the court held a final pretrial hearing
                                                                           6
HIGHLAND, 23CA13

and explained that, because the court needed to send jury notices

the next day, the court inquired whether Bodine understood the

State's plea offer.     Id. at ¶ 10.   The court further explained its

policy not to accept plea agreements to anything less than the

entire indictment after the court sends jury notices.     Bodine

responded that, because the court planned to send jury notices the

next day, he did not have adequate time to fully consider his

options.   When the court replied that the case had been pending for

multiple months, Bodine responded that he had recently given his

attorney documents relevant to his case and he did not believe he

had adequate time to consult with his attorney.     The court then

stated, “[t]his is your option, Mr. Bodine, to go ahead with the

proposal and enter pleas of guilty to those two counts or take it

to a jury trial.”     Bodine chose a jury trial.   Id. at ¶ 11.    Later

that day, however, the parties presented the court with a

negotiated plea agreement and the court conducted a thorough

Crim.R. 11 colloquy.

    {¶12} On appeal, the Third District pointed out that cases in

which a judge's involvement impacted the voluntariness of a plea

include significant coercion from the trial court judges.     For

example, in State v. Byrd, 

 (1980), the

Supreme Court of Ohio found a plea involuntary when the trial judge
                                                                       7
HIGHLAND, 23CA13

met with Byrd without his lawyer present, urged him to enter a

guilty plea, informed him that the evidence at trial would

determine whether he “went to the electric chair,” and urged his

family members and a family friend to encourage him to enter a

guilty plea.   

, citing Byrd.

     {¶13} The Bodine court pointed to another Third District

involuntary plea case when the trial court told a defendant that if

he testified at trial, he is “setting himself up for additional

charges,” that the evidence against him is “overwhelming,” that “no

way” would the jury not find him guilty, and that his decision to

reject any plea offer is “stupid.”    Id. at ¶ 23, citing State v.

Howard, 

 (3d Dist.).   In Howard, the trial

court also stated, “you should've been scared the night you did

this stupid thing,” indicating that the trial court had already

determined the defendant's guilt. 

    The Bodine court held that

the Howard statements emphasized the defendant's futility of

pursuing a trial and are “entirely different” than the facts in

Bodine.   Id. at ¶ 23.   Thus, the court concluded that, although at

times Bodine did express reservations about entering a plea, the

trial court’s statements at the plea hearing did not amount to

coercion that rendered Bodine’s plea involuntary.    Id. at ¶ 25.

     {¶14} In the case sub judice, appellant's signed written guilty
                                                                       8
HIGHLAND, 23CA13

plea form is included in the record.    During the plea colloquy, the

trial court reviewed the elements of the charge, the possible

sentence and asked appellant if he understood that his guilty plea

waived his right to a jury trial, right not to testify against

himself, right to confront witnesses, right to compulsory process,

and right to require the State to prove his guilt beyond a

reasonable doubt.    Appellant responded that he did understand.

     {¶15} Although appellant now contends that the trial court’s

admonition meant that he had only “a matter of hours” to enter his

plea, the record reveals that the trial court notified appellant of

the plea deadline at the May 31, 2023 pretrial hearing and again at

the June 26, 2023 pretrial hearing.    When appellant entered his

plea on June 28, 2023, trial was set to begin on July 12.     With a

trial date of July 12, 2023, appellant knew about the time limit

and that he had four weeks to enter his plea.     Thus, appellant knew

about the plea deadline from May 31 until his June 28 plea.

     {¶16} Moreover, as appellee points out, at the June 28, 2023

change of plea hearing the trial court asked appellant, “do you

feel you had enough time to fully consider this matter before

making this decision to sign this document?”    Appellant replied,

“Yes, Your Honor.”   When asked if he signed the agreement

voluntarily, appellant responded, “Absolutely.”    Further, appellant
                                                                    9
HIGHLAND, 23CA13

confirmed that he had spoken with his attorney about the plea, that

he understood the terms of the plea and understood the

constitutional rights he waived by entering the plea, that he was

satisfied with his counsel, and that no threats had been made.



     {¶17} In addition to his argument that he had “only a matter of

hours” to enter his plea, appellant further characterizes the trial

court’s plea deadline policy as an “arbitrary deadline [that]

provided the state with the upper hand in plea negotiations.”

Other courts, however, also use plea agreement deadlines.     See

State v. Cogar, 

 (5th Dist.)(plea deadline three

weeks before trial); State v. Dahlberg, 

 (11th

Dist.)(plea deadline hearing); State v. Stephenson (Apr. 30, 1997),

9th Dist. No. 17752 (trial court had discretion to accept plea

after court's plea deadline had passed.)   Further, as appellee

points out, federal courts employ plea deadlines.   See U.S. v.

Santos, 

 (E.D. Tenn May 2, 2003)(it is common

knowledge that the Court consistently sets plea deadlines

approximately three to four weeks before the scheduled trial date).

     Setting such deadlines is the standard practice in this
     district and is widely practiced in many districts across
     the country. United States v. Allen, 

 (6th
     Cir. Dec. 26, 2002) (unpublished); United States v.
     Robertson, 

 (10th Cir. Aug. 2, 2002)
     (unpublished); United States v. Vargas Lopez, 

HIGHLAND, 23CA13

     1728114 (9th Cir. Aug. 25, 2000) (unpublished). Courts may
     reject guilty pleas that are tendered after a deadline is
     set by the court. United States v. Moore, 

,
     1136 n. 11 (6th Cir.1990); United States v. Gamboa, 

 (11th Cir.1998).

Santos, supra.

     {¶18} As outlined above, in the case sub judice the trial court

notified appellant of the plea agreement deadline well in advance.

There are valid reasons that courts use plea agreement deadlines,

especially in less populated counties that do not have readily

available pools of jurors at hand in the courthouse to serve, but

instead must order personnel to individually notify prospective

jurors that their services are necessary and make other necessary

preparations to accommodate prospective jurors.   Here, at the plea

hearing appellant stated that he had not been threatened to enter

his plea, and, when asked if he signed the agreement voluntarily,

appellant replied, “Absolutely.”

     {¶19} Consequently, after our review we conclude that appellant

did enter a knowing, intelligent, and voluntary guilty plea.

Accordingly, we overrule appellant's first assignment of error.

                                   II.

     {¶20} In his second assignment of error, appellant asserts that

the trial court erred when it did not consider all of the R.C.

2929.14 factors and imposed sentences to be served consecutively to
                                                                     11
HIGHLAND, 23CA13

each other and to a previously imposed sentence in Case No.

21CR0107.

     {¶21} When reviewing felony sentences, appellate courts apply

the standard outlined in R.C. 2953.08(G)(2).   State v. Wilburn,

, ¶ 70 (4th Dist.)   R.C. 2953.08(G)(2)(a) provides

that “[t]he appellate court’s standard for review is not whether

the sentencing court abused its discretion.”   Instead, the statute

authorizes appellate courts to “increase, reduce, or otherwise

modify a sentence” “if it clearly and convincingly finds either of

the following”:

     (a) That the record does not support the sentencing court’s
     findings under division (B) or (D) of section 2929.13,
     division (B)(2)(e) or(C)(4) of section 2929.14, or division
     (I) of section 2929.20 of the Revised Code, whichever, if
     any, is relevant;

     (b) That the sentence is otherwise contrary to law.


R.C. 2953.08(G)(2).

     {¶22} The Supreme Court of Ohio has recognized that R.C.

2953.08(G)(2) means that appellate courts ordinarily, “ ‘ defer to

trial courts’ broad discretion in making sentencing decisions.’ ”

State v. Gwynne, 

, quoting State v. Rahab,

; see also State v. Marcum, 

 (appellate court's review of whether sentence is clearly and

convincingly contrary to law under R.C. 2953.08(G) is deferential
                                                                       12
HIGHLAND, 23CA13

to sentencing court).    Thus, R.C. 2953.08(G)(2) provides that an

appellate court may increase, reduce, or otherwise modify

consecutive sentences only if the record does not “clearly and

convincingly” support the trial court's R.C. 2929.14(C)(4)

consecutive-sentence findings.   The clear-and-convincing standard

for appellate review in R.C. 2953.08(G)(2) is written in the

negative.   Gwynne, 

.   Moreover, “clear and

convincing evidence” is “that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the

extent of such certainty as is required ‘beyond a reasonable doubt’

in criminal cases, and which will produce in the mind of the trier

of facts a firm belief or conviction as to the facts sought to be

established.”   Cross v. Ledford, 

 (1954), paragraph

three of the syllabus.

     {¶23} In general, a statutory presumption exists in favor of

concurrent sentences pursuant to R.C. 2929.41(A) and R.C.

2929.14(C)(4) governs the imposition of consecutive terms of

imprisonment.   To justify the imposition of consecutive terms of

imprisonment, “a trial court must make the findings mandated by

R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry, but the court has no obligation

to state reasons to support its findings.”     State v. Blair, 2019-
                                                                   13
HIGHLAND, 23CA13

Ohio-2768 ¶ 52 (4th Dist.), citing State v. Bonnell, 2014-Ohio-

3177, syllabus.    This Court explained the findings required to

support the imposition of consecutive sentences:

    “Under the tripartite procedure set forth in R.C.
    2929.14(C)(4), prior to imposing consecutive sentences a
    trial court must find that: (1) consecutive sentences are
    necessary to protect the public from future crime or to
    punish the offender; (2) consecutive sentences are not
    disproportionate to the seriousness of the offender's
    conduct and to the danger the offender poses to the public;
    and (3) that one of three circumstances specified in the
    statute applies.”

State v. Cottrill, 

, ¶ 14 (4th Dist.), quoting State
v. Baker, 

 (4th Dist.).


    {¶24} Further, as we outlined in Cottrill, the three

circumstances are:

    “(a) The offender committed one or more of the multiple
    offenses while the offender was awaiting trial or
    sentencing, was under a sanction imposed pursuant to
    section 2929.16, 2929.17, or 2929.18 of the Revised Code,
    or was under post-release control for a prior offense.

    (b) At least two of the multiple offenses were committed
    as part of one or more courses of conduct, and the harm
    caused by two or more of the multiple offenses so committed
    was so great or unusual that no single prison term for any
    of the offenses committed as part of any of the courses of
    conduct adequately reflects the seriousness of the
    offender's conduct.

    (c) The offender's history of criminal conduct demonstrates
    that consecutive sentences are necessary to protect the
    public from future crime by the offender.”

, quoting R.C. 2929.14(C)(4)(a)-(c).
                                                                     14
HIGHLAND, 23CA13

    {¶25} The record must support any findings that the applicable

statutory sentencing provisions require and made by the sentencing

court, such as those contained in R.C. 2929.14(C)(4)(c).     State v.

Gray, 

 (4th Dist.); State v. Drummond, 2024-

Ohio-81, ¶ 11 (4th Dist.).   Further, in Drummond we observed that

the plain language of R.C. 2953.08(G)(2) requires an appellate

court to defer to a trial court's consecutive-sentence findings,

and to uphold the trial court's findings unless those findings are

clearly and convincingly not supported by the record.   Drummond at

¶ 12.   In State v. Bonnell, 

, the Supreme Court of

Ohio held, “In order to impose consecutive terms of imprisonment, a

trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its

findings into its sentencing entry[.]”   Id. at ¶ 37.

    {¶26} In the case sub judice, it is undisputed that the trial

court included the necessary findings under R.C. 2929.14(C)(4) to

support the imposition of consecutive sentences in its June 28,

2023 sentencing entry.   Appellant, however, asserts that the trial

court failed to make the required necessity and proportionality

findings at the sentencing hearing.   “If the trial court fails to

make the requisite findings at the sentencing hearing, the

imposition of consecutive sentences is contrary to law even if the
[Cite as State v. Collins, 

.]

sentencing entry includes the findings.”                 State v. Conn, 2023-Ohio-

2669, ¶ 26 (4th Dist.), citing State v. Brickles, 

 (4th Dist.).                 However, as appellee points out, although the

record must contain a basis upon which a reviewing court can

determine that the trial court made the R.C. 2929.14(C)(4)

findings, “a word-for-word recitation of the language of the

statute is not required, and as long as the reviewing court can

discern that the trial court engaged in the correct analysis and

can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.”                 

.

        {¶27} In the case at bar, at sentencing the trial court stated

the following regarding its decision to impose consecutive

sentences:

        The Court is not going to follow the recommendation of
        concurrent sentence because to do so would mean that the
        offense meant nothing. There’s two separate victims. If
        it had been the same victim it would be different. We have
        two separate victims, you have two courses of conduct that
        are independent and the harm to these victims in each case
        is such that one single prison term would not adequately
        reflect the seriousness of your conduct. And that has to
        be taken into consideration. And the fact that you did
        these, and you have a prior criminal record. Your criminal
        history demonstrates to the Court as well as the nature of
        these offenses that this is necessary to protect the
        public. So, the four years sentence will be ordered to be
        served consecutively to the sentence in Count One. Both
        sentences are ordered to be served consecutively to the
        sentence that you’re currently serving from this court in
        … 21 CR 107.
[Cite as State v. Collins, 

.]




Thus, we believe that the court adequately stated on the record

that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the

offender poses to the public.                       

.

        {¶28} Finally, appellant contends that the sentencing entry

failed to indicate the statute that established the consecutive

sentencing requirement.                       As appellee observes, however, the

sentencing entry contained checkboxes for the trial court to

determine which sections applied to the case at bar.                      The trial

court placed an “X” by the clause that stated, “Consecutive

sentences are required pursuant to Section                             ORC,” but did not

fill in the blank.                 The court also placed an “X” next to the

following clauses:

        Pursuant to Section 2929.14(C)(4) that the consecutive
        sentences are necessary to protect the public from future
        crime or to punish the offender and that the consecutive
        sentences are not disproportionate to the seriousness of
        the offender’s conduct and to the danger the offender poses
        to the public, and the court also finds any of the
        following:

        ___ The offender committed one or more of the multiple
        offenses while the offender was awaiting rial or
        sentencing, was under a sanction imposed pursuant to
        section 2929.16, 2929.17, or 2929.18 of the Revised Code,
        or was under post-release control for a prior offense.

        _X_ At least two of the multiple offenses were commixed as
        part of one or more courses of conduct, and the harm caused
        by two or more of the multiple offenses so committed was
[Cite as State v. Collins, 

.]

        so great or unusual that no single prison term for any of
        the offenses committed as part of any of the courses of
        conduct adequately reflects the seriousness of the
        offender’s conduct.

        _X_ The offender’s history of criminal conduct demonstrates
        that consecutive sentences are necessary to protect the
        public from future crime by the offender.


        {¶29} After our review, we conclude that the trial court did

not err when it imposed consecutive sentences.      Further, we do not

have a firm belief or conviction that the record does not support

the trial court's finding that consecutive sentences are not

disproportionate to the seriousness of appellant’s conduct and to

the danger he poses to the public.

        {¶30} Accordingly, for the foregoing reasons, we overrule

appellant’s second assignment of error and affirm the trial court’s

judgment.



                                                                       JU

                                                                DGMENT

                                                                AFFIRME

                                                                D.
HIGHLAND, 23CA13


                                                                     18
                          JUDGMENT ENTRY

     It is ordered that the judgment be affirmed.   Appellee shall
recover of appellant the 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 Highland County Common Pleas Court to carry this
judgment into execution.

     If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

    Smith, P.J.: Concurs in Judgment & Opinion
    Hess, J.: Concurs in Judgment Only

                                   For the Court




    BY:_____________________________
                                       Peter B. Abele, Judge

                         NOTICE TO COUNSEL
     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.