State v. Tolbert

[Cite as State v. Tolbert, 2022-Ohio-1159.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA2

v. :

D’LONTAE B. TOLBERT, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

___________________________________________________________________

APPEARANCES:

D’Lontae B. Tolbert, pro se.

Nicole Coil, Washington County Prosecuting Attorney, and David K.H.
Silwani, Assistant Prosecuting Attorney, Marietta, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:3-31-22
ABELE, J.

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

Court judgment of conviction and sentence. D’Lontae Tolbert,

defendant below and appellant herein, pleaded guilty to one count

of possession of drugs in violation of R.C. 2925.11(A)&(C)(11)(c),

a third-degree felony, with a forfeiture specification.

{¶2} Appellant assigns two errors for review:
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WASHINGTON, 21CA2

FIRST ASSIGNMENT OF ERROR:

“IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT
TO GRANT THE IMPERMISSIBLE AMENDMENT TO THE
INDICTMENT.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT UNLAWFULLY ORDERED THE
FORFEITURE OF PROPERTY.”

{¶3} On September 18, 2019, a Washington County Grand Jury

returned an indictment that charged appellant with one count of

trafficking in drugs in violation of R.C. 2925.03(A)(2), a first-

degree felony, and one count of possession of drugs in violation of

R.C. 2925.11(A), a first-degree felony. The indictment also

included a forfeiture specification for $1,329 seized from

appellant’s person.

{¶4} At his September 20, 2019 arraignment, the trial court

referred to a re-indictment. Counsel stated that appellant

received the indictment on September 19, 2019 and was prepared to

proceed. The court indicated that the amount of the Schedule I

controlled substance for count one and count two “is more than 20

grams but less than 50 grams: to-wit, 26.25 grams.” The prosecutor

stated that the re-indictment occurred because the heroin contained

fentanyl. The state also (1) asked the court to maintain the
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WASHINGTON, 21CA2

$50,000 bond, and (2) indicated that appellant was on post-release

control from his recently served three-year prison term for a

first-degree felony aggravated trafficking in drugs. The court

advised appellant that, with a possible prison term for his post-

release control violation, he faced a total of 19 and one-half

years in prison. Appellant pleaded not guilty.

{¶5} At the October 17, 2019 change of plea hearing, the state

indicated that the sheriff’s office executed a search warrant and

encountered appellant in possession of what appeared to be heroin,

but later determined to be nine grams of a mix of heroin and

fentanyl. The state also moved to dismiss count one and to amend

count two “to amend the amount of the drugs and the language of the

indictment to say, ‘in an amount more than five grams and less than

ten grams: to-wit, nine grams.’” The trial court acknowledged that

the amendment changed the code section from R.C. 2925.11 (A) &

(C)(11)(e) to R.C. 2925.11(A) & (C)(11)(c). Appellants trial

counsel also stated that the appellant did not object to the

amendment.

{¶6} At that point the trial court reviewed appellant’s rights

and stated that appellant (1) faced a maximum prison term of 36

months on the amended count two, (2) faced an additional two years

and eight months for the postrelease control violation, and (3)
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WASHINGTON, 21CA2

could face an additional nonmandatory three-year postrelease

control term. Further, appellant acknowledged that he understood

that his guilty plea to the forfeiture specification would result

in the forfeiture of $1,329. Appellee then recommended a maximum

combined four-year prison term and stated its intention to dismiss

the original indictment (19CR320) and count one of the amended

indictment (19CR379).

{¶7} At the November 8, 2019 sentencing hearing, the trial

court (1) waived the $5,000 mandatory fine due to appellant’s

indigence, (2) found appellant’s crime to be serious “because it’s

part of an organized criminal activity,” and (3) noted that

appellant’s ORAS score indicated a high recidivism risk. Further,

based on appellant’s prior felony offense in Michigan, his 2014

Washington County first-degree drug trafficking conviction (for

which he was on post-release control when indicted in the present

case), and his current charge, the court stated that appellant had

not been rehabilitated to the court’s satisfaction. Thus, the

court sentenced appellant to (1) serve a 30-month prison term, (2)

serve 943 days for the postrelease control violation, to be served

consecutively for an aggregate sentence of six years with 94 days

local confinement credit, (3) forfeit $1,329, (4) submit to drug

testing, (5) undergo a discretionary postrelease control term of up
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WASHINGTON, 21CA2

to three years, and (6) pay court costs.

{¶8} On April 7, 2021, this court granted appellant’s motion

for leave to file a delayed appeal and this appeal followed.

I.

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

the trial court granted an impermissible amendment to the

indictment. Specifically, appellant argues that although the trial

court substantially complied with Crim.R. 11 at his plea hearing,

his counsel rendered ineffective assistance regarding the Crim.R.

7(D) protections. Appellant contends that the state “amended the

charge as to change the identity and counsel not only failed to

object to this forbidden procedure, but also stipulated to it as to

bestow jurisdiction.”

{¶10} Initially, we observe that because appellant did not

object to the indictment’s amendment, he has waived all but plain

error. See Crim.R. 12(C)(2). To reverse a decision based on plain

error, a reviewing court must determine that a plain (or obvious)

error occurred that affected the trial’s outcome. State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R. 52(B).

Further, plain-error review must be undertaken “‘with the utmost

caution, under exceptional circumstances and only to prevent a
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WASHINGTON, 21CA2

manifest miscarriage of justice.’” Barnes, quoting State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.

{¶11} Additionally, the Sixth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution

provide that defendants in all criminal proceedings shall have the

assistance of counsel for their defense. The United States Supreme

Court has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance” of

counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S. 263, 272,

134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (explaining that the Sixth

Amendment right to counsel means “that defendants are entitled to

be represented by an attorney who meets at least a minimal standard

of competence”).

{¶12} To establish constitutionally ineffective assistance of

counsel, a defendant must show (1) that his counsel's performance

was deficient and (2) that the deficient performance prejudiced the

defense and deprived the defendant of a fair trial. Strickland,

466 U.S. at 687; State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-

1903, 114 N.E.3d 1138, ¶ 183; State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure to establish either
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WASHINGTON, 21CA2

element is fatal to the claim.” State v. Jones, 4th Dist. Scioto

No. 06CA3116, 2008-Ohio-968, ¶ 14; State v. Blackburn, 4th Dist.

Jackson No. 18CA3, 2020-Ohio-1084, ¶ 32. Accordingly, if one

element is dispositive, a court need not analyze both. State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

{¶13} As it relates to pleas, a defendant generally has the

ultimate authority to decide whether to plead guilty. State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 121,

citing Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160

L.Ed.2d 565 (2004). Thus, a defendant who claims ineffective

assistance related to the decision to plead guilty must show that a

reasonable probability exists that, but for counsel's errors, the

defendant would not have pleaded guilty and insisted on going to

trial. Id., citing State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 89, citing Hill v. Lockhart, 474 U.S.

52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

{¶14} In the case sub judice, the state, pursuant to the

parties’ plea agreement, moved to amend the indictment from R.C.

2925.11(A)/(C)(11)(e) to R.C. 2925.11(A)/(C)(11)(c). R.C.

2925.11(A) provides: “No person shall knowingly obtain, possess, or

use a controlled substance or a controlled substance analog.” R.C.

2925.11(C)(11)(e) states:
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WASHINGTON, 21CA2

(C) Whoever violates division (A) of this section is
guilty of one of the following:

(11) If the drug involved in the violation is a fentanyl-
related compound and neither division (C)(9)(a) nor
division (C)(10)(a) of this section applies to the drug
involved, or is a compound, mixture, preparation, or
substance that contains a fentanyl-related compound or is
a combination of a fentanyl-related compound and any
other controlled substance and neither division (C)(9)(a)
nor division (C)(10)(a) of this section applies to the
drug involved, whoever violates division (A) of this
section is guilty of possession of a fentanyl-related
compound. The penalty for the offense shall be determined
as follows:

(e) If the amount of the drug involved equals or exceeds
two hundred unit doses but is less than five hundred unit
doses or equals or exceeds twenty grams but is less than
fifty grams, possession of a fentanyl-related compound is
a felony of the first degree, and the court shall impose
as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.

The state amended the indictment from R.C. 2925.11(C)(11)(e) to

(C)(11)(c):

(c) If the amount of the drug involved equals or exceeds
fifty unit doses but is less than one hundred unit doses
or equals or exceeds five grams but is less than ten
grams, possession of a fentanyl-related compound is a
felony of the third degree, and there is a presumption
for a prison term for the offense.

{¶15} We recognize, as appellee argues, that appellant

explicitly agreed to the indictment’s amendment pursuant to a plea

agreement. Thus, the amendment is valid regardless of whether it

changed the name or identity of the crime charged. In State v.
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WASHINGTON, 21CA2

Freeman, 11th Dist. Trumbull No. 2004-T-0055, 2006-Ohio-492, the

Eleventh District determined that if a defendant agrees to an

indictment’s amendment pursuant to a plea agreement, the amendment

is valid regardless of whether it changed the name or identity of

the crime charged. Freeman at ¶ 41, citing State v. Bartelson,

11th Dist. Trumbull No. 95-T-5322, 1996 WL 586758. In Bartelson,

the indictment’s amendment added a physical harm specification and

the Eleventh District observed that because the Crim.R. 7(D)

provisions are primarily for the protection of defendants, the

requirement may be waived. See also State v. Cook, 35 Ohio App.3d

20, 519 N.E.2d 419, paragraph three of the syllabus (12th

Dist.1987)(Crim.R. 7(D) primarily for defendant’s protection and

prohibits amendments that change the nature or identity of the

charged crime so the accused can be aware of the charges and can

prepare his defense accordingly.)

{¶16} The Eighth District has also held that a defendant waives

any challenge to an indictment when he is in the courtroom, did not

object to the amendment prior to trial, and indicated to the court

that he understood the proceedings. State v. Baxter, 8th Dist.

Cuyahoga No. 106187, 2018-Ohio-2237, ¶ 10-13, citing State v.

Owens, 181 Ohio App.3d 725, 2009-Ohio-1508, 910 N.E.2d 1059, ¶ 69

(7th Dist.); State v. Pondexter, 8th Dist. Cuyahoga No. 108940,
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WASHINGTON, 21CA2

2020-Ohio-1290, ¶ 14; State v. Kibble, 8th Dist. Cuyahoga No.

103822, 2017-Ohio-12.

{¶17} The Tenth District has concluded that a defendant may

waive the right to indictment altogether, or by plea can acquiesce

to the amendment of the identity of the offense charged. State v.

Battin, 10th Dist. Franklin No. 19AP-485, 2019-Ohio-5001, ¶ 8-9,

citing State v. Bruce, 10th Dist. Franklin No. 16AP-31, 2016-Ohio-

7132; State v. Wooden, 10th Dist. Franklin No. 02AP-473, 2002-Ohio-

7363, ¶ 15. See also State v. Oliver, 2021-Ohio-2543, 176 N.E.3d

1054, ¶ 31 (12th Dist.) (pleading guilty waives many errors

including defect in indictment); State v. Spates, 64 Ohio St.3d

269, 271-272, 595 N.E.2d 351 (guilty plea represents break in the

chain of events and defendant may not raise claims that occurred

prior to entering the plea; defendant may only attack the voluntary

and intelligent character of the plea).

{¶18} In the case sub judice, appellant does not argue that his

plea was not knowing and voluntary. Moreover, our review of the

record reveals that appellant knowingly and voluntarily agreed to

the amended indictment when he pleaded guilty pursuant to the

parties’ plea agreement. Thus, because appellant entered a guilty

plea in open court, after he acknowledged that he had no objection
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WASHINGTON, 21CA2

to the amended charge and after being fully apprised of the rights,

we conclude that appellant acquiesced in the amendment.

Consequently, after our review we conclude that (1) no error, plain

or otherwise, occurred and (2) no reasonable probability that, but

for counsel’s alleged errors, appellant would have declined to

plead guilty.

{¶19} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II.

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

the trial court improperly ordered the forfeiture of his property.

Appellant argues that, pursuant to R.C. 2941.1417 and 2981.04,

forfeiture is prohibited unless a forfeiture specification is

attached to a specific count of the indictment.

{¶21} Appellant cites State v. Brimacombe, 195 Ohio App.3d 524,

2011-Ohio-5032, 960 N.E.2d 1042, where the Sixth District noted

that (1) the indictment did not refer to the surrendered firearms

and (2) between the filing of the indictment and the sentencing

hearing, nothing in the record indicated that the prosecution

furnished prompt notice to counsel about the forfeiture of the

firearms. Id. at ¶ 66. In the case at bar, however, we recognize
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that appellant explicitly agreed to the forfeiture as part of his

plea agreement. Thus, appellant’s reliance on Brimacombe is

misplaced.

{¶22} Appellee, on the other hand, analogizes this case to

State v. Gloeckner, 4th Dist Meigs No. 520, 1994 WL 111337 (March

21, 1994). In Gloeckner, the defendant did not object to the

forfeiture of his vehicle and, therefore, voluntarily relinquished

the vehicle as a part of the plea agreement. We held that no

forfeiture statute applied to the relinquishment. Id. at * 5.

Similarly, in State v. Dickens, 4th Dist. Meigs No. 05CA14, 2006-

Ohio-4920, because the defendant agreed to the forfeiture, the

defendant “cannot now complain that the prosecution took the action

he allowed it to take.” Id. at ¶ 10.

{¶23} Other appellate districts have reached the same

conclusion regarding voluntary forfeiture. In State v. Wyley, 8th

Dist. Cuyahoga No. 66163, 1994 WL 581522 (Oct. 20, 1994), the

defendant agreed to forfeit money confiscated at the time of his

arrest, but argued that the state’s untimely forfeiture petition

and failure to hold a R.C. 2933.43(C) forfeiture hearing

constituted reversible error. The Eighth District concluded that

the defendant waived any error or due process rights associated
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with the forfeiture proceedings when he agreed to forfeit the

money. Id. at *2. See also State v. Compton, 2021-Ohio-3106, 178

N.E.3d 123, ¶ 19 (8th Dist.)(property forfeited through a plea

agreement not effectuated by operation of the statutory provisions

governing forfeiture, but rather by the parties’ agreement); State

v. Smith, 117 Ohio App.3d 656, 691 N.E.2d 324 (8th Dist.1997)(plea

agreement and voluntary relinquishing forfeited property waives

procedural or due process right regarding forfeiture); State v.

Fogel, 8th Dist. Cuyahoga No. 87035, 2006-Ohio-1613 (forfeiture as

part of negotiated plea agreement is valid); State v. Keith, 81

Ohio App.3d 192, 610 N.E.2d 1017 (9th Dist. 1991)(upholding plea

agreement forfeiture); State v. Hunter, 9th Dist. Summit No. 13929,

1989 WL 80515 (July 19, 1989)(plea agreement and voluntary

relinquishment of confiscated monies waived right to object on

appeal); State v. Gladden, 86 Ohio App.3d 287, 620 N.E. 2d 947 (1st

Dist.1993)(relinquishment of vehicle not effectuated by operation

of statutory provision, but by the parties’ agreement); State v.

Hensley, 9th Dist. Lorain No. 03CA008356, 2004-Ohio-2664, ¶

7(defendant agreed to forfeiture thus waived application of

statutory provisions governing forfeiture procedure).

{¶24} In the case sub judice, appellant’s guilty plea states,

in pertinent part: “The Defendant will plead to the amended count 2
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in this case and be sentenced on the PRC Violation. The Defendant

shall forfeit $1,329.00.” At the plea hearing, the trial court

asked appellant if he understood that his guilty plea to the

forfeiture specification would result in the forfeiture of $1,329.

Appellant indicated that he so understood. Here, we conclude that

appellant had notice of the forfeiture and agreed to the forfeiture

in his plea agreement.

{¶25} Accordingly, based upon the foregoing reasons, we

overrule appellant's second assignment of error and affirm the

trial court's judgment.

JUDGMENT AFFIRMED.
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15
JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee
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 Washington 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. & Hess, J.: Concur in Judgment & Opinion

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.