State v. Richardson

1

2023-Ohio-4718

STATE OF OHIO, Plaintiff-Appellee, v. GREGORY DELMAR RICHARDSON II, Defendant-Appellant.

No. 22 MA 0136

Court of Appeals of Ohio, Seventh District, Mahoning

December 18, 2023

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2021 CR 00086

Atty Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A Czopur, Assistant Mahoning County Prosecutor, for Plaintiff-Appellee and

Atty Brian A. Smith, Brian A. Smith Law Firm, LLC, for Defendant-Appellant.

BEFORE: Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.

OPINION AND JUDGMENT ENTRY

ROBB J.

{¶1} Appellant, Gregory Richardson, II, appeals his convictions after pleading guilty to robbery in violation of R.C. 2911.02(A)(1), with a firearm specification and having weapons while under a disability in violation of R.C. 2923.13(A)(2).

{¶2} Appellant argues his plea was not voluntary because the trial court failed to address him personally and ensure he understood the effect of his plea. Appellant also claims his trial counsel was ineffective for not advising Appellant that his guilty plea precluded an appeal from his motion to suppress and discussing a potential no-contest plea. For the following reasons, we affirm.

Statement of the Case

{¶3} Appellant was indicted in March of 2021 and charged with six counts: aggravated murder, murder, aggravated robbery with a 54-month firearm specification under R.C. 2941.145(D), two counts of having weapons while under disability, and criminal damaging. (March 11, 2021 Indictment.) He was appointed counsel, and the parties exchanged discovery.

{¶4} Appellant moved to suppress his photo identification by a witness contending the police identification process was impermissibly suggestive and unfair. (July 29, 2021 Motion.) The state opposed. The suppression hearing was held on December 20, 2021, and the trial court overruled Appellant's motion finding in part:

It was testified that the defendant had been to that convenience store many times, that she [the identifying witness] had known him for a long period of time, and that the defendant has very distinct tattoos. Those were all factors that the Court considered in finding that the identification, despite not being in compliance and being suggestive, is reliable and, therefore, can be admitted into court.

(January 20, 2022 Tr. 13.) The store manager testified in part that she recognized Appellant because of his tattoos. And although she was not certain during the robbery it was him, she was certain after she reviewed the security camera footage and looked at photographs she pulled up on Facebook. The witness further said she had known Appellant for about 20 years and she has seen him at family functions since Appellant is her niece's uncle. The witness identified Appellant as the person who robbed the store before the police showed her the photograph of him. (Tr. 10-15.) She remained certain at the time of the suppression hearing that he is the man who committed the robbery. (Tr. 16.)

{¶5} Appellant moved to sever counts one, two, five, and six. He claimed these offenses allegedly occurred on a different date and were unrelated to counts three and four. The state opposed the severance. The trial court eventually granted the motion to sever and ordered counts three and four severed from the other charges against him. (October 6, 2022 Judgment.)

{¶6} Appellant moved for leave to file a not guilty by reason of insanity plea. (April 7, 2022 Motion.) The trial court ordered Appellant to undergo a forensic examination to determine his competency to stand trial and to address a not guilty by reason of insanity plea. (April 13, 2022 Order.) Appellant then requested a second competency and sanity evaluation, which the trial court sustained. (June 23, 2022 Judgment.) The court ultimately found Appellant competent. It set trial for October 3, 2022. The parties agreed "the robbery-related charges" would be heard on this date, and then a separate trial would be held on the "murder-related" offenses on a later date. (August 5, 2022 Judgment.) This appeal arises solely from counts three and five.

{¶7} The court issued an entry October 6, 2022 indicating it was amending count three from aggravated robbery, a first-degree felony, to robbery, a second-degree felony under R.C. 2911.02(A)(1) based on the parties' Rule 11 negotiations. (October 6, 2022 Judgment.) Appellant entered a guilty plea the same date. He plead guilty to counts three and five. The written guilty plea indicates amended count three charged Appellant with one count of robbery in violation of R.C. 2911.02(A)(1), a second-degree felony with a "F/A SPEC - 54 month, R.C. 2941.145(D)." It also states he plead guilty to count five, "W.U.D. R.C. 2923.13(A)(2)" a third-degree felony. (October 6, 2022 Plea of Guilty Pursuant to Crim.R. 11(F).)

{¶8} At the plea hearing, the prosecutor detailed the parties' plea agreement. He explained that on the two severed counts, counts three and five, Appellant agreed to plead guilty to an amended robbery count with a firearm specification and the weapons under disability charge. And "in exchange" the state agreed to recommended the agreed upon sentence of a total of eight to nine years. The state moved to amend the aggravated robbery charge to robbery, which the court granted. Count three was a first-degree felony before it was reduced to a second-degree charge. (September 29, 2022 Plea Hearing Tr. 2-7.)

{¶9} The state's recommendation on the robbery charge was for the court to impose two years as the mandatory portion with a one-year tail for a total of up to three years. And in explaining the potential sentence Appellant was facing, the court advised him it could impose a minimum of eight years with a four-year tail on the robbery count. (September 29, 2022 Plea Hearing Tr. 8-9.)

{¶10} After reviewing the rights Appellant was foregoing by entering the plea agreement, the trial court concluded by stating: "by pleading guilty, you're giving up all those rights. No trial, no burden on the state, no witnesses to be brought forth to be cross-examined, to be subpoenaed. And you have appellate rights, they are not all gone today, but they are limited from what they were when you walked into this courtroom. Do you understand that?" Appellant agreed he understood. (September 29, 2022 Plea Hearing Tr. 15.)

{¶11} The court sentenced Appellant at the same hearing by agreement of the parties. During the sentencing portion of the hearing, the court advised Appellant because it was imposing an agreed sentence, Appellant cannot appeal the sentence. (Tr. 21-22.)

{¶12} In its written decision, the trial court stated it was adopting the agreed upon sentence of the parties. For count three, it sentenced Appellant to the minimum sentence of two years in prison with a maximum of three years. On the attendant firearm specification, the court sentenced him to the mandatory four and a half years, which was to be served before and consecutive to count three. As for count five, the court imposed an eighteen-month prison sentence to run consecutive to the time for count three, for a total sentence of eight to nine years in prison. (October 6, 2022 Judgment.)

{¶13} Appellant raises two assignments of error.

Assignments of Error: Voluntary Nature of Guilty Plea

{¶14} Appellant's first assignment contends:

"Appellant's guilty plea was not knowingly, voluntarily, and intelligently made, in violation of Appellant's right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution, because the trial court failed to comply with Crim.R. 11(C)(2)(b) and determine 'that the defendant understands the effect of the plea of guilty or no contest,' while addressing Appellant at the plea hearing."

{¶15} Appellant claims the court failed to comply with Crim.R. 11 (C)(2) by failing to inform him about the difference between a guilty plea and a no contest plea. In addition, Appellant contends he was not informed that his decision to enter a guilty plea waived the right to appeal the court's decision overruling a motion to suppress. He claims the court's lack of total compliance made his plea not knowingly, voluntarily, and intelligently rendered, and as such, he claims his plea violates the Ohio and United States Constitutions.

{¶16} Appellant also challenges the state's photo lineup procedure and the merits of his suppression motion. He claims he had a meritorious argument on appeal if he were given the option to plead no contest instead of guilty. Thus, he claims the court's failure to follow Crim.R. 11 (C)(2) renders his plea involuntary. He also claims he is not required to establish prejudice as a result of the court's noncompliance because an exception applies, i.e., the court completely failed to comply with a section of Crim.R. 11 (C). Thus, Appellant claims it eliminates his burden to show resulting prejudice. For the following reasons, his arguments lack merit.

{¶17} Crim.R. 11(C)(2)(b) states in pertinent part:

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: * * *

(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.

(Emphasis added.)

{¶18} The underlying purpose of Crim.R. 11 is to convey certain information to a defendant so they can make a voluntary and...