[Cite as State v. Newton, 2011-Ohio-2188.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24154
v. : T.C. NO. 07CR478
GARY N. NEWTON : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 6th day of May , 2011.
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LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box 1262,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Gary Newton appeals from a judgment of the Montgomery County Court of
Common Pleas, which overruled his motion to vacate a plea he entered in 2007. For the reasons
discussed below, the trial court’s judgment will be affirmed.
{¶ 2} In 2007, Newton was indicted as follows: Count One – possession of cocaine in an
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amount greater than or equal to 1,000 grams (not crack cocaine), with a major drug offender
specification; Count Two – possession of cocaine (not crack cocaine) in an amount greater than
or equal to 500 grams, but less than 1,000 grams; and several counts of possession of criminal
tools.
{¶ 3} Newton pled not guilty and filed a Motion to Dismiss the major drug offender
specification related to Count One, arguing that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio
856, had found unconstitutional the sentencing scheme by which a trial court made factual
findings in support of a major drug offender specification. He also filed a motion to suppress
evidence.
{¶ 4} On June 28, 2007, the trial court had not yet ruled on Newton’s motions.
Nonetheless, pursuant to a plea and sentencing agreement, Newton pled guilty to Counts One and
Two, including the major drug offender specification. The next day, Newton withdrew his
motion to dismiss the major drug offender specification and his motion to suppress. The counts
of possession of criminal tools were dismissed. The trial court sentenced Newton to an agreed
sentence of ten years each on Counts One and Two, to be served concurrently. It also suspended
his driver’s license for five years and ordered him to pay a mandatory fine of $10,000. The court
did not impose any additional sentence related to the major drug offender specification.
{¶ 5} In March 2010, Newton filed a motion to vacate his plea. 1 The court held a
hearing on the motion, and Newton filed a post-hearing memorandum in support of the motion.
The State did not respond. The trial court overruled Newton’s motion to vacate his plea.
1
Newton filed his first Motion to Vacate Plea in February 2010, but he withdrew that motion and filed an amended motion in
March 2010.
3
{¶ 6} Newton appeals from the trial court’s order overruling his motion to vacate his
plea, raising two assignments of error. The assignments are related, and we will consider them
together.
{¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THE
MAJOR DRUG OFFENDER (MDO) SPECIFICATION IS CONSTITUTIONAL”
{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION TO VACATE HIS PLEA BASED UPON HIM ENTERING A PLEA
TO AN UNCONSTITUTIONAL SPECIFICATION WHICH INFLUENCED HIS PLEA
NEGOTIATIONS.”
{¶ 9} Newton’s arguments under his assignments of error mirror his arguments in the
motion to vacate his plea. In essence, he claims that his plea was not knowingly and voluntarily
entered because the major drug offender specification contained in his indictment was
unconstitutional, he was unaware of this fact at the time of his plea, and he thus did not correctly
calculate the maximum possible sentence he faced and failed to negotiate a more favorable plea
agreement.
{¶ 10} Initially, we note that Newton mischaracterizes, to some extent, the choice he
faced in the plea negotiations. He claims that, “if the MDO was not present, then he could have
negotiated a lower term of imprisonment.” Similarly, he claimed in his motion to vacate his plea
that he believed he had faced a maximum sentence of twenty years when he entered the plea
agreement for a ten-year sentence; “if [he] had known the maximum penalty he faced was
actually ten years, he would not have entered his plea” because he received “no benefit” from it.
{¶ 11} As the trial court noted in its order overruling Newton’s motion to vacate his plea,
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Newton’s possession of over 1,000 grams of cocaine (not crack) classified him as a major drug
offender, and the trial court was required to impose the maximum prison term prescribed for a
felony of the first degree. R.C. 2925.11(C)(4)(f). The maximum term is ten years. R.C.
2929.14(A)(1). Furthermore, because he was a major drug offender, the trial court had
discretion to impose an additional one- to ten-year prison term. R.C. 2929.14(D)(3)(b); Foster
at ¶99. Newton additionally faced three to ten years of incarceration on the second count of
possession of cocaine, R.C. 2925.11(C)(4)(e) and R.C. 2929.14(A)(1), and additional time on the
counts of possession of criminal tools. He also could have been given consecutive terms of
imprisonment. Thus, Newton could not have pled guilty to Count One in the indictment and
received a sentence of less than ten years, as he claims, and his maximum potential sentence was
more than thirty years; he undoubtedly received a benefit from his plea agreement.
{¶ 12} Newton argues that he did not enter his plea knowingly because he did not realize,
at the time of his plea, that the major drug offender specification was unconstitutional and should
not or could not have been used to enhance his sentence.2 Newton’s argument that the major
drug offender specification was unconstitutional is based on his interpretation of Foster.
{¶ 13} In Foster, the Supreme Court of Ohio held that R.C. 2929.14(D)(3)(b) was
unconstitutional because it “require[d] judicial finding of facts not proven to a jury beyond a
reasonable doubt or admitted by the defendant before repeat-violent-offender and
major-drug-offender penalty enhancements are imposed.” Id. at ¶83. Foster “severed” the
offending provisions and held that “judicial fact-finding is not required before imposition of
2
Newton raises this argument notwithstanding the motion to dismiss filed prior to his plea, in which he argued precisely this
issue: that the major drug offender specification was unconstitutional pursuant to Foster.
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additional penalties for repeat-violent-offender and major-drug-offender specifications.” Foster,
paragraph six of the syllabus.
{¶ 14} Soon after the decision in Foster, and four months after Newton’s pleas of guilty,
we decided a case in which a defendant, after a jury trial, argued that an eight-year major drug
offender enhancement to a maximum sentence for possession of drugs was unconstitutional
because it was based on the portion of R.C. 2929.14 declared unconstitutional in Foster. State v.
Dillard, 173 Ohio App.3d 373, 2007-Ohio-5651. We concluded that the “add-on sentence”
could not be predicated upon R.C. 2929.14(D)(3)(b), “which provided the only statutory language
permitting an enhancement to the underlying ten-year term [and had] been excised from the
statutory scheme.” Id. at ¶100. Thus, we held that the enhanced sentence for the major drug
offender specification in Dillard was unconstitutional. Id. Several other appellate districts took
a different view, holding that the effect of Foster was to sever from R.C. 2929.14(D)(3)(b) only
the language that required judicial fact-finding as a prerequisite to imposing the additional
sentence. See, e.g., State v. Pena, Franklin App. No. 06AP-688, 2007-Ohio-4516, ¶14; State v.
Adams, Lake App. No. 2006-L-114, 2007-Ohio-2434, ¶27; State v. Foster, Wood App. No.
WD-06-013, 2007-Ohio-1524, ¶17.
{¶ 15} In 2009, the Supreme Court clarified the effect of Foster on the
repeat-violent-offender and major-drug-offender specifications. State v. Hunter, 123 Ohio St.3d
154, 2009-Ohio-4147. In Hunter, the defendant was found guilty of felonious assault by a jury,
but he “stipulated to the facts necessary to designate him as a repeat violent offender.” Id. at ¶3.
On appeal, he challenged the imposition of the repeat violent offender specification, relying on
Foster. The Supreme Court stated:
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{¶ 16} “Our opinions in Foster and [State v.] Mathis, [109 Ohio St.3d 54,
2006-Ohio-855] patently demonstrate our intent to excise only the portions of former R.C.
2929.14(D)(2)(b) that required judicial fact-finding in violation of the Sixth Amendment and the
United States Supreme Court’s decisions in Apprendi 3 and Blakely. 4 We never specifically
precluded a trial court from imposing enhanced penalties for a repeat violent offender
specification, nor did we excise the definition of a repeat violent offender as set forth in former
R.C. 2929.01(DD). Furthermore, none of our decisions after Foster indicate that this
specification no longer exists. Thus, Foster excised judicial fact-finding from former R.C.
2929.14(D)(2) but did not eliminate the repeat violent offender specification ***.” Id. at ¶27
(footnotes added).
{¶ 17} R.C. 2929.14(D)(2)(b) imposes enhanced sentences on repeat violent offenders;
R.C. 2929.14(D)(3)(b) contains the parallel provisions for a major drug offender. In Hunter’s
more general language, the court indicated that the existence of the major drug offender
specification also had been unaffected by Foster except to eliminate the need for judicial
fact-finding. Id. at ¶26. And it did not excise the definition of a major drug offender as set
forth in R.C. 2929.01(X).
{¶ 18} In addition to holding that Foster had not eliminated the specifications, Hunter
identified three reasons why, under the facts of that case, the trial court’s imposition of a repeat
violent offender specification did not violate Hunter’s Sixth Amendment right to a jury trial.
First, Hunter had “waived whatever right he had” with respect to a jury determination of the
3
Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.
4
Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 158 L.Ed.2d 403.
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repeat violent offender specification because “he chose to submit that determination to the court
to avoid presenting evidence of his prior conviction *** to the jury.” Id. at ¶30-31. Second,
Hunter had “stipulated to all the facts necessary for the trial court to designate him as a repeat
violent offender;” specifically, he stipulated that he had previously been charged with felonious
assault, that the indictment had specified that he caused physical harm to the victim, that he had
pled guilty to the offense as charged in the indictment, and that he had been sentenced to prison.
{¶ 19} Hunter concluded that, because of the stipulations, the trial court had no need to
conduct fact-finding before designating Hunter as a repeat violent offender, so no Sixth
Amendment violation had occurred. Id. at 32-33. Third, relying on Apprendi, Hunter
concluded that “the Sixth Amendment does not bar judicial consideration of a defendant’s prior
convictions at sentencing because ‘recidivism *** is a traditional, if not the most traditional,
basis for a sentencing court’s increasing an offender’s sentence;’” it held that a sentencing court
may look not only at the existence of the prior conviction, but may also consider other “relevant
information about the offender’s prior conviction that is part of the judicial record” in
determining whether he is a repeat violent offender, without violating the Sixth Amendment. Id.
at ¶35, ¶37-38.
{¶ 20} Although Hunter involved a repeat violent offender specification (which, if
anything, requires more “fact-finding” than does a major drug offender specification), its
discussion of Foster left little doubt of the Supreme Court’s view that both the repeat violent
offender specification and the major drug offender specification survived Foster and that Foster
had excised only the need for judicial fact-finding prior to the imposition of enhanced sentences
based on those specifications. Numerous appellate courts have now applied the reasoning in
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Hunter to cases involving major drug offender specifications. See, e.g., State v. Black, Hamilton
App. Nos. C-100357 and C-100358, 2011-Ohio-1330, ¶30; State v. Jones, Jefferson App. No. 08
JE 20, 08 JE 29, 2010-Ohio-2704, ¶17; State v. Walker, Fayette App. No. CA2009-02-002,
2010-Ohio-329, ¶29.
{¶ 21} Newton relies on our holding in Dillard in support of his argument that the major drug
offender specification is unconstitutional. The Supreme Court’s ruling in Hunter, however, rejected
the view we expressed in Dillard that the specification imposing an enhanced sentence for a major
drug offender could never survive Foster; Hunter made clear that the major drug offender
specification contained in R.C. 2929.14(D)(3)(b) was not totally eliminated or rendered
unconstitutional by Foster. This holding undercuts Newton’s argument that “he never faced that
additional ten year penalty” connected with the major drug offender specification and would not have
entered a plea if he had known that the major drug offender specification was unconstitutional. The
major drug specification was not unconstitutional, so it appears that Newton entered his plea with an
accurate understanding of the potential penalty he faced.
{¶ 22} Newton also claims that Hunter is distinguishable, because its reasoning
emphasized a trial court’s ability to make findings regarding prior convictions, which is relevant
to a repeat violent offender specification, but not to a major drug offender specification. Under
the facts presented in this case, we find this distinction to be immaterial. Hunter’s rationale was
unique to repeat violent offenders only with respect to the third of its three reasons for rejecting
the constitutional argument presented in that case. The first two reasons – the defendant’s
waiver of judicial fact-finding and his stipulation to the relevant facts – are dispositive of
Newton’s appeal.
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{¶ 23} Hunter expressly stated that a defendant can consent to judicial fact-finding. Id.
at ¶30. Newton’s plea of guilty to two counts of possession of cocaine, including the major drug
offender specification contained in the first count, constituted his consent to having the issue
determined by the court, rather than a jury. Thus, he waived any potential objection to judicial
fact-finding on this issue. Furthermore, Hunter held that a “trial court ha[s] no need to conduct
fact-finding” in connection with a specification contained in an indictment if the defendant’s
stipulations establish the specification. Id. at ¶33. A plea of guilty is a complete admission of
factual guilt and, accordingly, the defendant’s factual guilt is removed from further consideration.
State v. Salmon, Montgomery App. No. 24305, 2011-Ohio-1289, ¶4, citing Menna v. New York
(1975), 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195. Newton’s plea of guilty to
possession of more than 1,000 grams of powder cocaine and to the major drug offender
specification constituted a “stipulation” or admission and eliminated the need for judicial
fact-finding on this specification. For these reasons, Newton’s constitutional rights were not
violated by judicial fact-finding.
{¶ 24} As we have discussed and as Newton points out, the Hunter opinion did set forth a
third reason for its holding that a repeat violent offender specification does not involve judicial
factfinding: the “traditional” consideration of a defendant’s prior convictions at sentencing
through reliance on judicial records. Newton argues that this rationale cannot be applied to a
major drug offender specification, and we agree. Nonetheless, we find that Hunter’s emphasis
on the defendant’s waiver of his right to fact-finding by a jury and his stipulation to facts
establishing the sentencing enhancement compel us to conclude that Newton’s constitutional
rights were not violated in this case.
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{¶ 25} Pursuant to Crim.R. 32.1, a defendant must demonstrate a “manifest injustice” to
withdraw a guilty plea after sentencing. “A manifest injustice has been defined as ‘a clear or
openly unjust act’ that involves ‘extraordinary circumstances.’” State v. Minker, Champaign
App. No. 2009 CA 16, 2009-Ohio-5625, ¶25, quoting State v. Stewart, Greene App. No.
2003-CA-28, 2004-Ohio-3574. See, also, State v. Tunstall, Montgomery App. No. 23730,
2010-Ohio-4926, ¶9. We review a trial court’s ruling on a post-sentence motion to withdraw a
plea for an abuse of discretion. Xenia v. Jones, Greene App. No. 07-CA-104, 2008-Ohio-4733,
¶6.
{¶ 26} The trial court did not abuse its discretion in holding that Newton was aware of
potential challenges to the major drug offender specification and that the (perceived) ambiguity
about the specification had been factored into his decision to accept the plea agreement. The
trial court correctly found that, at the time of his plea, the Supreme Court had excised the
objectionable provisions of the sentencing statutes that required judicial fact-finding and that the
major drug offender specification had not been eliminated by Foster, as Newton now claims.
The trial court also found that the information provided to Newton before the plea by his attorney
as to the potential penalties he faced had been accurate. The trial court concluded that Newton
“has had nothing more than a change of heart” and that “given the nature of the evidence against
Newton, the outcome negotiated by [his attorney] was remarkably favorable.”
{¶ 27} The trial court did not abuse its discretion in overruling Newton’s motion to
vacate his plea. Because Newton made a knowing, voluntary, and intelligent decision to plead
guilty, and his argument was based on an incorrect view that the major drug offender
specification is unconstitutional, he did not demonstrate a manifest injustice.
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{¶ 28} The assignments of error are overruled.
{¶ 29} The judgment of the trial court will be affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Laura M. Woodruff
Jon Paul Rion
Hon. Mary Katherine Huffman
State v. Newton
Combined Opinion