State v. Harris

[Cite as State v. Harris, 2023-Ohio-4182.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JORDAN THOMAS DANIEL HARRIS, : Case No. 2023CA00025
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2022-
CR-0776A

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 17, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE AARON KOVALCHIK
Prosecuting Attorney 116 Cleveland Ave. NW
Stark County, Ohio Suite 808
Canton, Ohio 44702
By: VICKI L. DESANTIS
Assistant Prosecuting Attorney
110 Central Plaza South, Ste. 510
Canton, Ohio 44702-1413
Stark County, Case No. 2023CA00025 2

Baldwin, J.

{¶1} Appellant, Jordan Thomas Daniel Harris, appeals his sentence for multiple

offenses: Felonious Assault in violation of R.C. 2903.11(A)(2)/((D)(1)(a), a felony of the

second degree, with a firearm specification in violation of R.C. 2941.146(A) - 5 years,

drive by shooting, and a repeat violent offender specification in violation of R.C.

2941.149(A); Discharge of a Firearm on or Near Prohibited Premises in violation of R.C.

2923.162(A)(3)/(C)(2), a felony of the third degree, with a firearm specification in violation

of R.C. 2941.146(A) - 5 years, drive by shooting; Having Weapons While Under Disability

in violation of R.C. 2923.13(A)(2)/(B), a felony of the third degree; and Improperly

Handling Firearms in a Motor Vehicle in violation of R.C. 2923.16(A)/(I), a felony of the

fourth degree. The State of Ohio is Appellee.

STATEMENT OF THE FACTS AND THE CASE

{¶2} The facts underlying the charges brought against Harris are not well

developed in the record as he entered a plea of guilty. His assignments of error are

directed toward his state of mind during the change of plea hearing, so the underlying

facts are not pertinent to the resolution of this appeal and are omitted.

{¶3} Harris entered a not-guilty plea at arraignment and later agreed to a

negotiated plea agreement in which Appellee agreed to dismiss the three year fire arm

specifications associated with the first three counts of the indictment and Harris agreed

to plead guilty.

{¶4} The negotiated plea agreement was reviewed by the court and the parties

during a June 28, 2022 pretrial. Harris’s counsel described the details of the agreement

and confirmed that Harris understood the terms, and that Harris consented to his attorney
Stark County, Case No. 2023CA00025 3

signing on his behalf. The trial court reviewed the written plea of guilty and asked if Harris

had read and understood the document. Harris responded that he had not read it, but

that his trial counsel read “some of it. You know, we skimmed it pretty much whatever

applied to me, pretty much.” (Plea and Sentencing Transcript, June 28, 2022, p. 8, lines

4-6). Trial counsel clarified by explaining that paragraphs related to lesser charges would

not be applicable because the terms regarding the more serious charges would govern.

The trial court asked if Harris felt “that Mr. Hill explained this plea form to you in its

entirety?” and he responded “Yep. I mean . . .” (Plea and Sentencing Transcript, June 28,

2022, p. 9, lines 4-7). When asked if he had an opportunity to ask his trial counsel

questions and if he had any questions he “wanted to ask at that time,” Harris responded:

“Yeah, I already asked the questions I needed to, Your Honor.” (Plea and Sentencing

Transcript, June 28, 2022, p. 9, lines 8-13).

{¶5} Harris’s trial attorney reviewed the details of the plea agreement and the

expected sentence and explained that Harris had “a bad experience in a prior plea

situation where he didn’t feel like the attorney did things to his satisfaction.” (Plea and

Sentencing Transcript, June 28, 2022, p. 5, line 23 to p. 6, line 1.) He then asked for

Harris’s confirmation that the details were on the record and Harris agreed. These

comments by Harris’s counsel supports a conclusion that Harris was acutely aware of the

nature of the charges and the potential penalties. Harris communicated with his attorney

to express his understanding of the agreement and to convey his demand that the

attorney insure that the State fulfilled its commitment regarding the plea agreement.
Stark County, Case No. 2023CA00025 4

{¶6} The trial court reviewed the plea agreement and Harris agreed to the terms

as explained by the trial court. The trial court then engaged in the Rule 11 colloquy with

Harris and he indicated his understanding of all his rights with no hesitation or question.

{¶7} The trial court sentenced Harris for an aggregate minimum prison term of

four years up to a maximum term of six years for the listed offenses and a prison term of

five years on the firearm specifications to be served prior to the sentence on the four

underlying offenses. The trial court ordered Harris to pay restitution, jointly and severally

with the co-defendant, and to pay the costs of prosecution. Harris filed a timely notice of

appeal and submitted two assignments of error:

{¶8} “I. THE TRIAL COURT ERRED WHEN IT ACCEPTED A PLEA FROM

APPELLANT THAT WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY.”

{¶9} “II. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I

SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS TRIAL

COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.”

STANDARD OF REVIEW

{¶10} When reviewing a plea's compliance with Crim.R. 11(C), we apply a de novo

standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d 474 (1990);

State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶ 9; State v. Groves,

5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶ 7.
Stark County, Case No. 2023CA00025 5

{¶11} A determination of whether a plea is knowing, intelligent, and voluntary is

based upon a review of the record. State v. Spates, 64 Ohio St.3d 269, 272 (1992). If a

criminal defendant claims that his plea was not knowingly, voluntarily, and intelligently

made, the reviewing court must review the totality of the circumstances in order to

determine whether or not the defendant's claim has merit. State v. Nero, 56 Ohio St.3d

106, 108 (1990).

{¶12} The court can look to the totality of the record to determine whether that

defendant was meaningfully informed of the specific rights. State v. Ballard, 66 Ohio St.2d

473, 480-482, 423 N.E.2d 115 (1981).

{¶13} Furthermore, a defendant who challenges his guilty plea on the basis that it

was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.

Stewart, supra, 51 Ohio St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A).

The test is whether the plea would have otherwise been made. Id. Nero, supra at 108.

ANALYSIS

I.

{¶14} Harris opens his argument by claiming that the trial court erred because he

did not review the facts and law with his trial counsel and his trial counsel did not advise

the court that it reviewed the facts and law with him (Appellant’s Brief, p. 5) and concludes

by alleging “ the trial court erred because [Harris] did not review the plea form in its entirety

himself and his trial counsel admitted on the record that he did not review the plea form

in its entirety with Appellant.” (Appellant’s Brief, p. 6).

{¶15} “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
Stark County, Case No. 2023CA00025 6

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

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

{¶16} Crim.R. 11 governs rights upon plea. Subsection (C)(2) states the following:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea

of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally either in-person or by remote

contemporaneous video in conformity with Crim.R. 43(A) and doing all of

the following:

(a) Determining that the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum

penalty involved, and if applicable, that the defendant is not eligible

for probation or for the imposition of community control sanctions at

the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the

court, upon acceptance of the plea, may proceed with judgment and

sentence.

(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to

jury trial, to confront witnesses against him or her, to have

compulsory process for obtaining witnesses in the defendant's favor,

and to require the state to prove the defendant's guilt beyond a
Stark County, Case No. 2023CA00025 7

reasonable doubt at a trial at which the defendant cannot be

compelled to testify against himself or herself.

{¶17} The standard for a trial court's Crim.R. 11 non-constitutional notifications

under (C)(2)(a) and (b) is substantial compliance; the standard for Crim.R. 11(C)(2)(c)

constitutional notifications is strict compliance. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621.

{¶18} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses

against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the

state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the

defendant cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with

these requirements, the defendant's plea is invalid. Id. at ¶ 31.

{¶19} The non-constitutional rights that the defendant must be informed of are: (1)

the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,

an advisement on post-release control; (3) if applicable, that the defendant is not eligible

for probation or the imposition of community control sanctions; and (4) that after entering

a guilty plea or a no contest plea, the court may proceed directly to judgment and

sentencing. Crim.R. 11(C)(2)(a)(b); Veney, supra at ¶ 10-13; State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26 (post-release control is a non-

constitutional advisement).

{¶20} In State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), the

Supreme Court of Ohio explained the following:
Stark County, Case No. 2023CA00025 8

Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of

his plea and the rights he is waiving. State v. Stewart, 51 Ohio St.2d 86,

364 N.E.2d 1163 (1977)], supra; State v. Carter (1979), 60 Ohio St.2d 34,

38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445

U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. Furthermore, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently,

and voluntarily made must show a prejudicial effect. Stewart, supra, 51 Ohio

St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is

whether the plea would have otherwise been made. Id.

{¶21} Harris concludes that his plea was not offered knowingly, intelligently and

voluntarily, but that bare conclusion is insufficient to establish error and void the plea.

Harris does not describe any prejudice he suffered as a result of the alleged error and he

does not contend that he would have not entered a guilty plea had he fully understood

the consequences. He relies on the decision in State v. Black, 10th Dist. Franklin

No. 11AP-966, 2012-Ohio-3774, but the court in that case expressly identified the

prejudice to Black: “We believe that these errors and omissions had a prejudicial effect

on Black, he could not understand the nature of his plea nor was he aware of the

maximum penalty.” Id. at ¶ 18. Harris’s only complaint is that he was not given the

opportunity to read the plea agreement and that his attorney did not state to the court that

he reviewed the law and the facts with him prior to the plea. And, while those facts are

part of the analysis of the plea, they alone do not support Harris’s conclusion that the plea

was not offered voluntarily, intelligently and knowingly.
Stark County, Case No. 2023CA00025 9

{¶22} We have reviewed the transcript and find that the trial court fully complied

with the requirements of Rule 11, informed Harris of his rights and confirmed he

understood he was waiving rights. Harris apparently had some experience in plea

agreements as his attorney disclosed that he was instructed to take certain actions

because Harris had a negative experience offering a plea in a prior case. That information

suggests that Harris may have had an incentive to be more attentive than many

defendants regarding the details of his plea agreement. And Harris confirmed that he

had the opportunity to ask his attorney questions, was satisfied with his representation,

and both he and his attorney agreed that they had reviewed the plea agreement in detail.

Harris’s counsel explained that he read the relevant portions of the plea agreement to

Harris, and Harris has not complained that any specific omission resulted in confusion,

misunderstanding or mistake that lead to a prejudicial impact and that he otherwise would

not have entered a guilty plea.

{¶23} We have completed a review of the totality of the circumstances

surrounding Harris’s plea and conclude that the trial court complied with the requirements

of Crim.R. 11 and that Harris understood the nature of the charges, his rights and the

potential penalties. He has offered no description of prejudice suffered as the result of

any action of the court or his counsel and we cannot find evidence of prejudicial impact

in the record or any evidence to support a conclusion that Harris would not have otherwise

submitted a guilty plea.

{¶24} The first assignment of error is overruled.
Stark County, Case No. 2023CA00025 10

II.

{¶25} In his second assignment of error, Harris contends that his counsel was

ineffective because he did not provide Harris a copy of the plea form to review and did

not read it to him in its entirety. The record confirms that Harris’s counsel did not provide

him the plea form and that Harris knew that his attorney had omitted review of those

portions of the plea agreement that were not applicable.

{¶26} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838,

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

{¶27} Harris offers only a conclusory statement that his counsel’s failure to provide

a copy of the plea agreement or read it to him in his entirety was a violation of counsel’s

essential duty and he has supplied no legal precedent in support of that conclusion. He

has also failed to described how he was prejudiced by the actions of his counsel.

{¶28} The validity of this assignment of error is dependent upon our finding that

Harris’s first assignment of error had merit. As we have concluded that Harris’s plea was

given voluntarily, knowingly and intelligently we cannot find that the actions of his counsel,

effective or ineffective, resulted in prejudice or that there was a reasonable probability

that but for “counsel's unprofessional errors, the result of the proceeding would have been

different.” State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. Harris’s
Stark County, Case No. 2023CA00025 11

failure to describe a prejudicial impact in his brief leads inexorably to the conclusion that

this assignment of error had no merit.

{¶29} The second assignment of error is denied.

{¶30} The decision of the Stark County Court of Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.