State v. Murray

[Cite as State v. Murray, 2023-Ohio-1628.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY

STATE OF OHIO, CASE NOS. 2022-T-0075
2022-T-0076
Plaintiff-Appellee,

- vs - Criminal Appeals from the
Court of Common Pleas
DANIEL A. MURRAY,

Defendant-Appellant. Trial Court Nos. 2021 CR 00323
2021 CR 01019

OPINION

Decided: May 15, 2023
Judgment: Affirmed

Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Daniel A. Murray, appeals his sentences following his guilty pleas

to a total of four felony charges in two cases. We affirm.

{¶2} This appeal involves two cases pertaining to two separate incidents. First,

in April 2021, officers arrived at Murray’s residence to arrest him pursuant to a warrant.

Murray attempted to flee the residence on foot. While running, Murray reached into his

coat and retrieved a black bag containing methamphetamine, which he discarded during

the chase. When the officers ultimately overtook Murray, an altercation ensued, and
Murray spit on an officer. The second incident occurred in June 2021, when Murray was

again arrested. Upon arrest, officers located a bag of methamphetamine in Murray’s coat

pocket.

{¶3} Murray was indicted in Case No. 2021 CR 00323 on the following counts

relating to the April 2021 incident: (1) tampering with evidence, in violation of R.C.

2921.12(A)(1) and (B), a third-degree felony; (2) assault on a peace officer, in violation of

R.C. 2903.12(A) and (C)(5), a fourth-degree felony; (3) aggravated possession of drugs,

in violation of R.C. 2925.11(A) and (C)(1)(b), a third-degree felony; and (4) possession of

a fentanyl-related compound, in violation of R.C. 2925.11(A) and (C)(11)(a), a fifth-degree

felony. Murray was later indicted in Case No. 2021 CR 01019 on one count of aggravated

possession of drugs, in violation of R.C. 2925.11(A) and (C)(1)(c), a second-degree

felony, as a result of the June 2021 incident. Murray initially pleaded not guilty to all

charges in both cases, and the trial court joined the cases for trial on motion of the state.

{¶4} Thereafter, pursuant to plea agreements, Murray pleaded guilty to the first

through third counts charged in Case No. 2021 CR 00323 and to the sole charge in Case

No. 2021 CR 01019. The state agreed to dismiss the remaining count in Case No. 2021

CR 00323, and the parties agreed to jointly recommend the following sentences in each

case: in Case No. 2021 CR 00323, consecutive prison terms of 36 months on each of the

tampering with evidence and aggravated possession of drugs charges and six months on

the assault on a peace officer charge, for an aggregate prison sentence of 78 months;

and, in Case No. 2022 CR 01019, an indefinite prison term of six to nine years, to run

concurrent to the prison term ordered in Case No. 2021 CR 00323. Murray further agreed

to waive the presentence investigation. After accepting Murray’s pleas, the trial court

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Case Nos. 2022-T-0075 and 2022-T-0076
proceeded immediately to sentencing, imposing the jointly-recommended sentences

stated above.

{¶5} Murray noticed an appeal from the sentencing entries issued in both cases,

and this court consolidated the appeals for all purposes.

{¶6} In his first assigned error, Murray argues:

The court erred by accepting appellant's guilty plea since his
plea was not knowingly, intelligently and voluntarily entered.

{¶7} “‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “The

United States Supreme Court has held that a knowing and voluntary waiver of the right

to jury trial, the right against compulsory self-incrimination, and the right to confront one’s

accusers cannot be inferred from a silent record.” Veney at ¶ 7, citing Boykin v. Alabama,

395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “Crim.R. 11 was adopted in

1973, giving detailed instruction to trial courts on the procedure to follow when accepting

pleas.” Veney at ¶ 7.

{¶8} Here, when accepting Murray’s pleas, the trial court engaged in a plea

colloquy with him pursuant to Crim.R. 11(C), which pertains to guilty pleas entered in

felony cases. Murray does not raise any challenge to the substance of the colloquy. After

Murray pleaded guilty and the court accepted the pleas, it immediately proceeded to

sentencing. During the sentencing portion of the hearing, the following exchange

occurred:
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Case Nos. 2022-T-0075 and 2022-T-0076
 THE COURT: * * *. Mr. Murray, is there anything you would
like to say about you, your arrest, or anything in the way of
mitigation of punishment?

[MURRAY]: I only had one question. On the CR-1019, is that
what it is?

THE COURT: Yes.

[MURRAY]: Upon arrest, I never had a parole violation.
When they – when they actually came to my residence there
was no parole violation when I got arrested. So they said –
they came to my house with a parole violation when – upon
arrest at that point, I was in handcuffs. They never produced
any parole violation warrant at all. I actually had a
misdemeanor falsification warrant, that was all that they had
when they came to the county jail. I never had a parole
violation or anything, was never charged with a parole
violation or anything. So they say at the time when they raided
my house I had a parole violation when I –

THE COURT: Well, if you did have one, that wouldn’t be
something we would deal with here. That’s something that’s
dealt with the Parole Board at the state level. And if they
haven’t filed one, that’s a good thing. So that’s much less that
you could be forced to go back and serve some of that PRC
time. So you save yourself, depending on what your PRC
was, you save yourself a couple years on that.

[MURRAY]: Okay.

[THE COURT]: Any other questions?

[MURRAY]: No, sir.

{¶9} Murray bases his first assigned error upon this exchange. The entirety of

Murray’s argument in support of his first assigned error follows:

While Appellant recognizes that the provisions contained in
Crim. R. 11 were intended to ensure that a criminal defendant
is advised of all the constitutional rights he or she is waving
by entering a guilty plea, Appellant respectfully submits that
where, as here, the record reveals that the criminal defendant
did not enter the plea on a knowing and voluntary basis,
reversible error has occurred. While perhaps the Trial Court
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Case Nos. 2022-T-0075 and 2022-T-0076
 in the case at bar did not need to address Appellant's claim
concerning the warrant in question at all, it is axiomatic that
when the Trial Court undertook to do so, the Trial Court was
required to accurately analyze the issue and advise Appellant
accordingly. While the Trial Court did correctly advise the
Appellant at [sic] any parole violation would be handled by the
Parole Board, the Trial Court failed to recognize and advise
Appellant that if in fact police authorities did not have a valid
warrant when the seizure in search of Appellant occurred, that
evidence was subject [sic] suppression pursuant to the
exclusionary rule.

Clearly, Appellant in the case at bar did not enter his pleas in
this package deal on a knowing and voluntary basis.
Consequently, Appellant's guilty pleas should be vacated and
the matter remanded for further proceedings.

{¶10} Murray fails to support this argument with citation to any authority. See

App.R. 16(A)(7). We disagree that it is “axiomatic” that the trial court was required to

advise Murray regarding potential suppression issues that could have been implicated if

the officers had not obtained a valid warrant. Further, this court has held that a trial court

is “not required to inform [the accused] of any possible suppression issues during the plea

hearing.” State v. Pough, 11th Dist. Trumbull No. 2000-T-0151, 2002-Ohio-6927, ¶ 45,

citing State v. Taylor, 2d Dist. Montgomery No. 12570, 1992 WL 103698, *1 (May 18,

1992); and State v. Drawdy, 8th Dist. Cuyahoga No. 52154,1988 WL 87584, *1 (Aug. 4,

1988).

{¶11} Additionally, at this point in the proceedings, Murray had already pleaded

guilty, and the court had accepted the plea. There was no indication during the plea

colloquy that Murray did not knowingly, voluntarily, or intelligently waive his rights by

pleading guilty, and, as set forth above, Murray does not argue that the trial court failed

to comply with Crim.R. 11(C) prior to accepting his plea. Neither Murray’s statements nor

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Case Nos. 2022-T-0075 and 2022-T-0076
the court’s response at sentencing retroactively undermined the knowing, voluntary, and

intelligent nature of Murray’s plea.

{¶12} Accordingly, Murray’s first assigned error lacks merit.

{¶13} In his second assigned error, Murray contends:

The trial court committed reversible error in violation of various
constitutional rights by sentencing appellant to indefinite
terms of incarceration.

{¶14} The Reagan Tokes Law required Murray’s sentence imposed in Case No.

2021 CR 01019 to be set at an indeterminate length. At sentencing, defense counsel

stated the following with respect to the Reagan Tokes Law:

I do – I am of the opinion that the indefinite sentence is kind
of in a state of flux with Reagan Tokes. So from our
perspective, Judge, I think I need to object to that application
in case the Supreme Court does, in fact, review, which I
believe is going on. It shouldn’t impact our agreed upon
sentence as it relates to the minimum sentences of this case.

{¶15} Defense counsel did not advance any more particularized argument with

respect to the Reagan Tokes Law or challenge the constitutionality of the Reagan Tokes

Law in any specific manner. “While an appellate court may hear a constitutional challenge

that has not been raised below, such an issue is evaluated only for plain error.” State v.

Shannon, 11th Dist. Trumbull No. 2021-T-0049, 2022-Ohio-4160, ¶ 42, citing State v.

Freetage, 11th Dist. Portage No. 2020-P-0083, 2021-Ohio-4050, ¶ 34. “When the court

hears an appeal for plain error, it must presume the constitutionality of the statute at issue

and will not invalidate it unless the challenger establishes that it is unconstitutional beyond

a reasonable doubt.” Shannon at ¶ 42, quoting Freetage at ¶ 34.

{¶16} Nonetheless, as Murray recognizes in his appellate brief, this court has

previously considered the constitutionality of the Reagan Tokes Law. See, e.g., State v.
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Case Nos. 2022-T-0075 and 2022-T-0076
Moran, 2022-Ohio-3610, 198 N.E.3d 922 (11th Dist.) and State v. Taylor, 2022-Ohio-

3611, 198 N.E.3d 956 (11th Dist.). We have “determined that the Reagan Tokes Law

does not violate the doctrine of separation of powers, an appellant’s constitutional rights

to due process, fair trial, or trial by jury, and, further, that it is not void for vagueness.”

State v. Stearns, 11th Dist. Lake No. 2021-L-091, 2022-Ohio-4245, ¶ 29, appeal allowed,

2023-Ohio-554.1

{¶17} Accordingly, for the reasons stated by this court in Moran and Taylor,

Murray’s second assigned error lacks merit.

{¶18} The judgments are affirmed.

JOHN J. EKLUND, P.J.,

MARY JANE TRAPP, J.,

concur.

1. “[T]he constitutionality of the Reagan Tokes Law has been addressed by other Ohio appellate courts, each of which
has declared that the sentencing scheme does not facially violate an inmate’s constitutional rights.” Moran at ¶ 4,
citing State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; State v. Hacker, 2020-Ohio-5048, 161
N.E.3d 112 (3d Dist.), appeal allowed in part, 161 Ohio St.3d 1449, 2021-Ohio-534, 163 N.E.3d 585; State v.
Bontrager, 2022-Ohio-1367, 188 N.E.3d 607 (4th Dist.); State v. Ratliff, 2022-Ohio-1372, 190 N.E.3d 684 (5th Dist.),
appeal allowed, 167 Ohio St.3d 1481, 2022-Ohio-2765, 192 N.E.3d 516; State v. Maddox, 2022-Ohio-1350, 188
N.E.3d 682 (6th Dist.); State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (en banc), appeal allowed, 166
Ohio St.3d 1496, 2022-Ohio-1485, 186 N.E.3d 830; and State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837. See also State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, appeal allowed, 168 Ohio
St.3d 1418, 2022-Ohio-3752, 196 N.E.3d 850, ¶ 1; and State v. Runner, 2022-Ohio-4756, ---N.E.3d ---- (7th Dist.). The
issue of the facial constitutionality of the Reagan Tokes Law is currently pending before the Supreme Court of Ohio.
See, e.g., State v. Hacker, Sup. Ct. Case No. 2020-1496; and State v. Simmons, Sup. Ct. Case No. 2021-0532.
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Case Nos. 2022-T-0075 and 2022-T-0076