[Cite as State v. Saunders, 2012-Ohio-104.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96643
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
NATHANIEL SAUNDERS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; DISMISSED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-536994, CR-541910, and CR-543492
BEFORE: Jones, P.J., Rocco, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 12, 2012
ATTORNEY FOR APPELLANT
Michael J. Gordillo
1370 Ontario Street
2000 Standard Building
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Vincent I. Pacetti
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, P.J.:
{¶ 1} Defendant-appellant, Nathaniel Saunders, appeals his convictions in three
criminal cases. For the reasons that follow, we dismiss in part and affirm in part.
{¶ 2} Saunders was indicted in Cuyahoga County Common Pleas Court in three
separate cases: CR-543493, CR-541910, and CR-536994. On February 2, 2011,
Saunders pleaded guilty to amended indictments in all three cases. The trial court held a
sentencing hearing on March 4, 2011, and sentenced him to an aggregate sentence of ten
years in prison. The same day, the trial court issued the journal entries for Case Nos.
CR-543493 and CR-541910. On March 8, 2011, the trial court issued the journal entry
for Case No. CR-536994.
{¶ 3} On April 7, 2011, Saunders filed a notice of appeal from his convictions in
the three cases, raising the following assignments of error for our review:
“I. The trial court did not comply with Crim.R. 11 and Defendant’s plea was not
knowingly, intelligently, and voluntarily made.
“II. Defendant-Appellant was denied the effective assistance of counsel.”
Untimely Appeal
{¶ 4} As an initial matter, the trial court issued the journal entries in Case Nos.
CR-543493 and CR-541910 on March 4, 2011. Saunders did not file his notice of
appeal until April 7, 2011. Consequently, in Case Nos. CR-543493 and CR-541910,
Saunders failed to file a notice of appeal from the original order of sentence within the
30-day jurisdictional requirement set forth in App.R. 4(A)1 or a motion for a delayed
appeal pursuant to App.R. 5(A). Without a timely notice of appeal from the orders
challenged, this court lacks jurisdiction to consider those cases. Cleveland v. Black, 8th
Dist. No. 82457, 2003-Ohio-4197, ¶ 14. Since the original orders of sentence in Case
App.R. 4(A) provides that “[a] party shall file the notice of appeal required by App.R. 3
1
within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of
the notice of judgment and its entry if service is not made on the party within the three day period in
Rule 58(B) of the Ohio Rules of Civil Procedure.”
Nos. CR-543493 and CR-541910 were final appealable orders, and Saunders failed to
appeal those orders, this court cannot consider his assignments of error as to those two
cases. See id. at ¶ 15. Therefore, we dismiss Saunders’s appeal as to Case Nos.
CR-543492 and CR-541910 and proceed to consider only his appeal in Case No.
CR-536994.
Guilty Plea
{¶ 5} A guilty plea is a complete admission of the defendant’s guilt. Crim.R.
11(B)(1). A counseled guilty plea voluntarily and knowingly given removes the issue of
factual guilt from the case. State v. Siders (1992), 78 Ohio App.3d 699, 701, 605
N.E.2d 1283, citing Menna v. New York (1975), 423 U.S. 61, 62, 96 S.Ct. 241, 46
L.Ed.2d 195. When a defendant pleads guilty as part of a plea bargain, he waives all
appealable errors which may have occurred at trial unless such errors precluded the
defendant from entering a knowing and voluntary plea. State v. Barnett (1991), 73 Ohio
App.3d 244, 248, 596 N.E.2d 1101, citing State v. Kelly (1991), 57 Ohio St.3d 127, 566
N.E.2d 658. A guilty plea even waives the right to claim that a defendant was
prejudiced by constitutionally ineffective counsel, except to the extent that the defects
complained of caused the plea to be less than knowing and voluntary. Id. at 299.
Crim.R. 11
{¶ 6} Crim.R. 11(C)(2) provides that a court may not accept a guilty plea unless it
addresses the defendant personally and (1) determines that he is making the plea
voluntarily, understanding the charges and the maximum penalty involved; (2) informs
him of the effect of his guilty plea; and (3) informs him of the federal and state
constitutional rights he will be waiving by entering a guilty plea. The rule creates two sets
of requirements for a court to accept a guilty plea in a felony case. State v. Higgs
(1997), 123 Ohio App.3d 400, 403, 704 N.E.2d 308. The first set is constitutional; the
second set is nonconstitutional. Id. Strict compliance is required for the constitutional
requirements. Id. While literal compliance is the preferred practice for the
nonconstitutional requirements, a guilty plea is valid as long as the court substantially
complies with these requirements. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564
N.E.2d 474. In order to satisfy the requirement of substantial compliance, an appellate
court must view the totality of the circumstances and determine whether the appellant has
suffered prejudice. Id.
{¶ 7} It is with these concepts in mind that we review the assignments of error.
Crim.R. 11
{¶ 8} In Case No. CR-536994, Saunders was charged with three counts each of
aggravated burglary, aggravated robbery, and kidnapping; all counts were accompanied
by one- and three-year firearm specifications. Saunders pleaded guilty to an amended
indictment of two counts of robbery with one-year firearm specifications. The trial court
sentenced Saunders to six years in prison on Case No. CR-536994, to run consecutive to
the sentences for Case Nos. CR-543493 and CR-541910.
{¶ 9} In the first assignment of error, Saunders argues that the trial court failed to
comply with the mandates of Crim.R. 11 because the court improperly “packaged” his
plea in Case No. CR-541910. He contends that the “packaging” of the plea, whereby the
state required that his codefendants also enter into a plea agreement with the state,
resulted in Saunders’s plea being non-voluntary. But we do not have jurisdiction to
consider his plea in Case No. CR-541910, therefore, we cannot consider his “packaging”
argument or whether his plea in that case otherwise complied with Crim.R. 11.
{¶ 10} We do note, however, that Saunders’s plea in Case No. CR-536994 was
contingent upon him pleading guilty in Case Nos. CR-543493 and CR-541910; therefore,
we will consider whether his plea in Case No. CR-536994 complied with Crim.R. 11.
{¶ 11} Saunders does not challenge the trial court’s advisement to him of the
constitutional rights he waived, and our review shows that the court strictly complied with
that advisement. In all other respects, we find that Saunders’s plea in CR-536994
complied with Crim.R. 11; therefore, the first assignment of error is overruled.
Ineffective Assistance of Trial Counsel
{¶ 12} In order to substantiate a claim of ineffective assistance of counsel, the
appellant is required to demonstrate that: (1) the performance of defense counsel is
seriously flawed and deficient; and (2) the result of the appellant’s trial or legal
proceeding would have been different had defense counsel provided proper
representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407.
{¶ 13} As noted supra, Saunders choice to plead guilty waives the right to claim
that he was prejudiced by constitutionally ineffective counsel, except to the extent that the
defects complained of caused his plea to be less than knowing and voluntary.
{¶ 14} Saunders contends that his trial counsel knew he had psychological
problems and should have requested a competency evaluation prior to his plea.
Saunders does not argue, however, that trial counsel’s failure to do so caused his plea to
be less than knowing and voluntary. Instead, he argues that counsel’s failure falls below
the standard of reasonable legal representation and had a detrimental effect on the
outcome of the case. But Saunders has waived that argument by pleading guilty. Even
if we were to consider his argument, we would find that he was afforded effective
assistance of trial counsel.
{¶ 15} In this case, defense counsel’s “failure” to request a competency evaluation
prior to Saunders’s plea does not reflect ineffective assistance of counsel. “[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689.
{¶ 16} Moreover, the competency of a defendant is presumed. The presumption
is rebutted only when a preponderance of the evidence shows that due to his present
mental condition, the defendant was unable to understand the nature of the proceedings
against him and could not assist in his defense. R.C. 2945.37(G); State v. Swift (1993),
86 Ohio App.3d 407, 411, 621 N.E.2d 513.
{¶ 17} Upon review, there is nothing in the record to demonstrate that Saunders
was incompetent at the time of plea. He has not shown that he had any difficulty in
communication with his trial counsel or that he was unable to assist in his own defense.
{¶ 18} The second assignment of error is overruled.
{¶ 19} In sum, the appeals in Case Nos. CR-543493 and CR-541910 are dismissed.
The appeal in Case No. CR-536994 is affirmed.
It is ordered that appellee recover of 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 conviction 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.
LARRY A. JONES, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR