State v. Heard

[Cite as State v. Heard, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                            No. 113929
                 v.                              :

CARLTON HEARD,                                   :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: March 6, 2025


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-22-676912-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and John Farley Hirschauer, Assistant
                 Prosecuting Attorney, for appellee.

                 Goldberg Dowell & Associates LLC, and Adam Parker, for
                 appellant.


SEAN C. GALLAGHER, J.:

                   Carlton Heard appeals his guilty plea to involuntary manslaughter,

felonious assault, having weapons while under a disability, and two attendant, three-

year firearm specifications. For the following reasons, we affirm.
               On New Year’s Eve 2019, the victim entered a Sunoco gas station

located at East 55th Street and Woodland Avenue in Cleveland. Heard was inside

the store with another individual, Michael Harrison, believed to be a leader of a local

gang. Surveillance footage shows the victim making a purchase, leaving the store,

and getting into his vehicle. Heard exited the store and retrieved a firearm from his

own vehicle. As the victim began to pull out of the gas station, Heard ran in front of

the vehicle and shot 11 times through the windshield. Two of the rounds hit the

victim in the chest. He was transported to the hospital to undergo surgery and

ultimately survived the shooting.

               Three years later, in an unrelated incident, Marcelous Tell went to a

lounge in Warrensville Heights with his cousin at around 1:00 a.m. After a few

minutes, Tell went outside to meet another cousin who had difficulty entering the

lounge because of a misplaced identification. He sat outside with her for a bit before

attempting to re-enter the club. At that time, a line formed on the ramp outside the

door. Surveillance footage shows Heard leaving and re-entering the club several

times to go to his vehicle. As Tell awaited re-entry, Heard retrieved a firearm from

his vehicle and walked to the entrance of the club. Tell was standing a few feet in

front of Heard, when suddenly, and without any provocation, Heard shot Tell from

behind. The bullet entered just above Tell’s right ear, exiting and striking a security

officer standing at the entrance. Tell was pronounced dead shortly thereafter.
               Heard fled the scene with no apparent motive uncovered.               At

sentencing, Heard told the court that he shot Tell because Heard felt that Tell

disrespected him at some unknown point in the evening.

               Heard was charged with 14 counts including aggravated murder and

related charges, which carried the possibility of life in prison. In exchange for

pleading down the significant charges to involuntary manslaughter, felonious

assault, having weapons while under a disability, and two attendant, three-year

firearm specifications for shooting three people, Heard agreed to a jointly

recommended sentencing range of 23–25 years. That agreement included and

acknowledged the additional indefinite sentence under the Reagan Tokes Law that

was required in addition to the agreed-upon range. The court imposed a term of

imprisonment of 25–30.5 years. Despite the rather favorable outcome given the

severity of the original charges, Heard filed this delayed appeal challenging his guilty

plea.

               In the sole assignment of error, Heard claims his plea was not

knowingly, voluntarily, or intelligently entered because the trial court did not

adequately advise him about the jury unanimity requirement or how many jurors

would be on the panel. Heard concedes that the trial court advised him of his right

to a jury as required under Crim.R. 11, and there is no dispute that when asked about

the advisement, Heard indicated he understood his rights that he would be waiving

by pleading guilty.
               Under Crim.R. 11(C)(2)(a), before accepting a plea of guilty in a felony

case, the trial court must address the defendant personally and determine “that the

defendant is making the plea voluntarily, with understanding of the nature of the

charges and of the maximum penalty involved . . . .” Crim.R. 11(C)(2)(a) and (b)

identify the nonconstitutional rights that must be addressed before accepting a plea

of guilty, while Crim.R. 11(C)(2)(c) identifies the constitutional rights that must be

explained.

               In State v. Dangler, 

, the Ohio Supreme Court held

that when reviewing a plea challenge under Crim.R. 11, aside from two limited

exceptions, the “traditional rule” applies under which “a defendant is not entitled to

have his plea vacated unless he demonstrates he was prejudiced by a failure of the

trial court to comply with the provisions of Crim.R. 11(C).” Id. at ¶ 16, citing State v.

Nero, 

 (1990). “The test for prejudice is ‘whether the plea would

have otherwise been made.’”        

 quoting 

.        Prejudice must be

established on the face of the record. Id. at ¶ 24, citing Hayward v. Summa Health

Sys./Akron City Hosp., 

.

               A trial court failing to explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c) is one exception for which no showing of prejudice is required.

. This is distinguished from “when a trial court fails to fully cover

other ‘nonconstitutional’ aspects of the plea colloquy,” in which case “a defendant

must affirmatively show prejudice to invalidate a plea.” Id. at ¶ 14, citing State v.

Veney, 

, ¶ 17. The other exception to the prejudice component of
the rule occurs only if a trial court completely fails to comply with a portion of

Crim.R. 11(C). Id. at ¶ 15.

               In reviewing a Crim.R. 11 challenge, the questions to be answered are

“(1) has the trial court complied with the relevant provision of the rule? (2) if the

court has not complied fully with the rule, is the purported failure of a type that

excuses a defendant from the burden of demonstrating prejudice? and (3) if a

showing of prejudice is required, has the defendant met that burden?” 

.   Notwithstanding, there is no requirement that the trial court advise a

defendant of every possible permutation of a constitutional right or to define every

term used in the advisement, especially if the defendant expressly indicates his

understanding of the advisement. State v. Miller, 

; State v.

McElroy, 

, ¶ 28 (8th Dist.).

               In this appeal, although he concedes the trial court advised him of his

right to a jury trial during the plea colloquy, Heard claims the trial court failed to

advise him of the substance of what the right to a jury trial means. He cites no

authority to support his argument regarding the need for further explanation of the

right to a jury trial. See State v. Quarterman, 

, citing State v.

Bodyke, 

 (O’Donnell, J., concurring in part and dissenting in

part); see also Russo v. Gissinger, 

 (9th Dist.), quoting State v.

Taylor, 

, *3 (9th Dist. Feb. 9, 1999) (“‘It is the duty of the

appellant, not [an appellate court], to demonstrate his assigned error through an

argument that is supported by citations to legal authority and facts in the record.’”).
               The trial court advised Heard of his right to a bench or jury trial, his

right to confront witnesses against him, the right to compulsory process, the right to

have the prosecution prove him guilty beyond a reasonable doubt, and the right

against self-incrimination. At every step, the court inquired into whether Heard

understood the rights being described. After the advisements, Heard indicated that

he understood the rights as they were presented by the court. The trial court

complied with Crim.R. 11, and therefore, Heard made a knowing, intelligent, and

voluntary decision to withdraw his previous not guilty plea. There is no error. See

State v. Martin, 

 (8th Dist.) (concluding that because the

trial court advised the defendant of the advisements required by Crim.R. 11 and the

defendant acknowledged understanding those advisements, any appeal challenging

the guilty plea would be wholly frivolous); see also State v. Crawford, 2023-Ohio-

3791, ¶ 44-49 (8th Dist.) (dismissing appeal as no non-frivolous argument could be

raised as to the guilty plea in light of the trial court’s colloquy advising the defendant

of his rights under Crim.R. 11 and the defendant’s acknowledgment as to

understanding the rights as explained); State v. Garrison, 

(same); State v. Sims, 

 (8th Dist.).

               In light of the foregoing, Heard’s convictions are 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
convictions 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.


______________________
SEAN C. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and
DEENA R. CALABRESE, J., CONCUR