[Cite as State v. Bailey, 2014-Ohio-639.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 37
v. : T.C. NO. 13CR204
CHRISTOPHER BAILEY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 21st day of February , 2014.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 E. Columbia Street, 4th Floor, P. O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 2372 Lakeview Drive, Suite H, Beavercreek, Ohio 45431 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Christopher Bailey appeals from his conviction and
sentence for one count of domestic violence, in violation of R.C. 2919.25(A), a felony of the 2
third degree; and one count of intimidation of an attorney, victim, or witness in a criminal case,
in violation of R.C. 2921.04(B)(1), a felony of the third degree. Bailey filed a timely notice of
appeal with this Court on April 15, 2013.
{¶ 2} On March 25, 2013, Bailey was indicted for three counts of domestic violence
and one count of intimidation of an attorney, victim, or witness in a criminal case. At his
arraignment on April 9, 2013, Bailey pled not guilty to all of the charges in the indictment. On
the same day, the State filed a motion in limine asking the trial court to exclude the use of some
of its witnesses’ criminal convictions that the defense intended to introduce for impeachment
purposes. A jury trial was set for April 10, 2013.
{¶ 3} On the morning of April 10, 2013, prior to the commencement of trial, the court
heard arguments on the State’s motion in limine. The trial court also heard Bailey’s oral motion
in limine. Bailey argued that the State was required to elect either the prior domestic violence
conviction or the aggravated menacing conviction for enhancement purposes of the domestic
violence charge. Bailey asserted that the State was barred from mixing the two prior
convictions to enhance a violation of R.C. 2912.25(A) to a felony of the third degree.
Ultimately, the trial court granted the State’s motion in limine in part, and denied Bailey’s
motion in limine in its entirety.
{¶ 4} After voir dire had commenced, the State informed the trial court that it had
received an audio tape containing a telephone conversation from the previous afternoon wherein
Bailey called the victim and made comments of an intimidating nature. Defense counsel was
provided an audio copy of the phone conversation. During the lunch recess, defense counsel
took the tape to Bailey at the jail so he could listen to it. [Cite as State v. Bailey, 2014-Ohio-639.] {¶ 5} Upon returning from the jail, defense counsel informed the trial court that he had
insufficient time to properly review the tape with Bailey. Defense counsel requested a
continuance so that he could have additional time to review and discuss the contents of the tape
with Bailey. The trial court denied the request for a continuance.
{¶ 6} Thereafter, defense counsel moved to withdraw from the case in order to ensure
that Bailey could receive a fair trial. Specifically, defense counsel argued that based on certain
statements made by Bailey to the victim on the tape, the jury could infer that defense counsel was
attempting to influence the victim not to appear for trial, thereby prejudicing Bailey in the eyes of
the jury. The trial court granted defense counsel’s motion to withdraw and stated that it would
appoint new counsel.
{¶ 7} A brief recess was taken, after which defense counsel informed the trial court
that Bailey wanted to enter a negotiated plea. Additionally, defense counsel asked the trial court
to vacate its former ruling removing him as Bailey’s counsel. The trial court agreed to rescind
its ruling appointing new counsel and allowed Bailey’s original defense counsel to represent him
during the plea. Bailey subsequently pled guilty to Counts III and IV (domestic violence and
intimidation of an attorney, victim, or witness in a criminal case), and the remaining counts were
dismissed. The trial court accepted Bailey’s plea and sentenced him to thirty months for one
count of domestic violence and thirty months for one count of intimidation of an attorney, victim,
or witness in a criminal case. The trial court ordered that Bailey’s sentences be served
consecutively for an aggregate sentence of five years in prison.
{¶ 8} It is from this judgment that Bailey now appeals.
{¶ 9} Bailey’s first assignment of error is as follows:
{¶ 10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, MR. 4
BAILEY, WHEN IT ACCEPTED MR. BAILEY’S GUILTY PLEAS WHICH WERE NOT
ENTERED KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.”
{¶ 11} In his first assignment, Bailey contends that his guilty plea to Counts III and IV
were not made in a knowing, voluntary, and intelligent manner. Specifically, Bailey argues that
while they were in the midst of voir dire, the State informed him and his counsel of additional
evidence it had just obtained: namely the recorded phone calls wherein Bailey allegedly
threatened the victim. Bailey points out that the trial court denied his motion for a continuance
based on the newly discovered evidence and did not provide him with sufficient time to review
the recordings. Bailey also emphasizes that the trial court permitted his attorney to withdraw.
Lastly, Bailey notes that he stated on the record during the plea colloquy that he had not
discussed his case and possible defense with his attorney.
{¶ 12} An appellate court must determine whether the trial court record affirmatively
demonstrates that a defendant’s plea was knowing, intelligent, and voluntary; otherwise, the plea
has been obtained in violation of due process and is void. Boykin v. Alabama, 395 U.S. 238,
243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A trial court’s compliance with Crim.R. 11(C)(2) in
accepting a defendant’s guilty or no contest plea portrays those qualities. State v. Fisher, 2d Dist.
Montgomery No. 23992, 2011-Ohio-629, ¶ 16.
{¶ 13} Crim.R. 11(C)(2) provides:
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 and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with 5
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 reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶ 14} The Ohio Supreme Court requires trial courts to strictly comply with Crim.R.
11(C)(2)(c), as it pertains to the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v. Griggs, 103 Ohio St.3d 85,
2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. Trial courts need only substantially comply with
Crim.R. 11(C)(2)(a) and (b), which involve non-constitutional rights. State v. Nero, 56 Ohio
St.3d 106, 109, 564 N.E.2d 474 (1990).
{¶ 15} Substantial compliance means that, under the totality of the circumstances, the
defendant subjectively understands both the implications of his plea and the rights that he waives
by entering that plea. State v. Miller, 2d Dist. Clark No. 08 CA 90, 2010-Ohio-4760, ¶ 8, citing
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15. Therefore, a 6
defendant who challenges his guilty plea on the ground that the trial court failed to substantially
comply with Crim.R. 11(C)(2)(a) and (b) must show a prejudicial effect, which requires him to
show that the plea would not otherwise have been entered. Griggs, at ¶ 12.
{¶ 16} Prior to the plea hearing, the following exchange occurred:
Defense Counsel: My second motion would be this: During the course of
the three calls we did listen to, the calls were between the alleged victim in this
case, Senika Channels, and my client Chris Bailey. And during those calls, all
three of them throughout made references to me in the calls; and the references
were basically: Go talk to Mr. Marshall; call my attorney; call Jim; talk to Jim.
And as I said, there were three different calls and somewhere during the course of
the third call, it appears from when you listen to the tapes, somewhere between
the second and third call, Senika Channels implies, at least, that she spoke to me
on the phone. And then during the third call with Mr. Bailey, she says, “Mr.
Marshall told me.” And then it doesn’t – you don’t really hear what it is that I
told her and I’m not sure if it’s because the – because of the quality of the
recording or because it just didn’t come through at all or it just wouldn’t come
through on the laptop that I was playing it on, but you couldn’t hear quite what
was said.
But in any event, all three of those calls, one could take them to – one
reading of those calls I guess, in the big picture would be is that Mr. Bailey was
trying to get Ms. Channels to drop the charges or that Ms. Channels wanted to
drop the charges. And then you could take that one step further and you could 7
get the impression that I somehow was advising them or suggesting to them how
to avoid proceeding at trial here today. And I would say – well, so I guess a jury,
if the calls are played to a jury, a jury could get the impression that I was
somehow involved in that, that I was trying to manipulate the system or I was
trying to advise Chris and/or Ms. Channels as to how to have the charges
dismissed or how to prevent the State from proving the charges.
I will say this. There was never one time that I suggested to Ms. Channels
how to do any of that; but that could be the implication that you could get from it
if you listen to it. My concern is that if a jury reads it that way, then a jury won’t
trust me or they won’t believe anything that I say; and if that’s the case, then I
don’t think Mr. Bailey will get a fair trial by me continuing to represent him. So
on that basis, I’m asking for leave to withdraw from the case.
***
The Court: *** However, did the State talk to the victim in this case?
The State: Yes, Your Honor.
The Court: Did she indicate to you that she did, she initiated
communication with [defense counsel] Mr. Marshall?
The State: Originally, Your Honor, Mr. Marshall called the victim, but she
did not call back – oh, she did? She did call back, Your Honor.
The Court: That’s all part of the discovery for the preparation for trial.
Did she ask Mr. Marshall? Did she tell you that she asked Mr. Marshall for
advice, however? [Cite as State v. Bailey, 2014-Ohio-639.] The State: Yes.
The Court: That could be interpreted if she were to be asked that or if that
came out on the phone calls; and if that’s what she was talking about, that is a
conflict which could put the issue in a bad light as far as the jury – you indicated,
Mr. Marshall, the jury reading into things in regard to that conversation. So I
find your second motion to be well taken. I am going to allow you to withdraw
from the case.
Therefore, the Court is going to appoint a new attorney to represent the
defendant. (Emphasis added).
{¶ 17} A brief recess was taken during which defense counsel, who had just withdrawn
from the case, had a discussion with Bailey and a representative from the State. At the
conclusion of the discussion, the following exchange occurred:
The Court: We’re back on record in 13-CR-0204. Mr. Marshall, last time
we were on record, I granted your motion to withdraw on the basis of an
appearance of an impropriety that could affect your client’s trial, not because the
Court found that you had somehow violated your client’s rights or anything of that
nature.
Are you withdrawing that motion now in order for the client wishes to take
advantage of this plea offer?
Defense Counsel: I am, Judge. Just to speak very briefly to what
the Court said, I don’t believe I acted in an improper fashion in any 9
way in representing my client; but I think the jury could have
gotten that impression from what was said on the phone calls. So
I moved to withdraw for that reason.
As to the Court ruling on that motion, I have spoken to my client and we
were able to negotiate the plea. So about the same time the Court entered that
withdrawal, he indicated that he wanted to accept the plea. So I would ask the
Court to withdraw the previous ruling, reinstate me for the case, and proceed
with the negotiated plea at this time.
The Court: Previous ruling is rescinded. It had not been filed. And we
will proceed on this plea offer.
I received a written plea to Count Three, domestic violence, a felony of the
third degree, and to Count Four, intimidation of a witness in a criminal case, a
felony of the third degree. Counts One and Two are being dismissed on the
State’s motion.
The document indicates that the parties, in addition to those terms, are
agreeing to a thirty-month prison sentence on each count consecutive for a total
of five years; and the State will not proceed with any charges that arise out of
letters received by the victim.
Are those the full terms as understood by the State?
The Court: Are those the full terms as understood by the Defendant?
Defense Counsel: Yes, Judge. [Cite as State v. Bailey, 2014-Ohio-639.] The Court: Then as to Counts Three and Four, place the facts on the
record.
The State: Your Honor, on or about January 5, 2013, Christopher D.
Bailey, in the vicinity of 129 East Cecil Street in Springfield / Clark County,
Ohio, did knowingly cause or attempt to cause physical harm to Senika Channels.
Bailey and Channels are family or household members as the two are boyfriend
and girlfriend. They resided together at the time of the event and have children in
common. Bailey hit Senika Channels multiple times about the face, causing
injury. Christopher Bailey has two prior convictions.
As regards to the intimidation charge, Christopher D. Bailey did
knowingly, by unlawful threat upon Senika Channels, attempt to influence,
intimidate, or hinder Senika Channels from the filing of prosecution of criminal
charges. Bailey made the statement to the effect that he would take Ms. Channels
to Ferncliff if she pressed charges or called the police. Ms. Channels took that to
mean Ferncliff Cemetery and understood that he would take her there and kill her
there.
The Court: As to Count Three, domestic violence, a felony of the third
degree, and Count Four, intimidation of a witness in a criminal case, felony of the
third degree, how does the Defendant wish to proceed?
Defense Counsel: Thank you, Judge. At this time, Mr. Bailey would
withdraw his former plea of not guilty. He would enter a plea of guilty to Count
Three of the indictment, plea of guilty to Count Four of the indictment, that being
done with the understanding that Counts One and Two of the indictment would be 11
dismissed.
The Court: You are Christopher Dion Bailey?
Bailey: Yes, sir.
The Court: How old are you?
Bailey: Thirty-six.
The Court: What’s the highest level of education you’ve completed?
Bailey: Eleven.
The Court: Are you a United States citizen?
The Court: Are you under the influence alcohol, drugs, or medication
today?
Bailey: No, sir.
The Court: Are you on probation, parole, community control, or
post-release control?
The Court: Have you discussed your case and possible defenses with your
attorney?
The Court: Are you satisfied with the advice, representation your
attorney’s given you?
The Court: Is this your signature on the plea form? 12
The Court: Before you signed the document, did you read it and go over it
with our attorney?
The Court: Did you understand everything in the document?
The Court: Has anyone made any promises to you other than what’s been
placed on the record at this time to get you to enter this plea?
The Court: Has anyone made any threat to you to get you to enter this
plea?
The Court: Do you understand the possible maximum offenses for these
penalties for these offenses is thirty-six months in prison, $10,000.00 fine,
restitution if any were found to be due and owing, and court costs?
The Court: If run consecutively, that is seventy-two months in prison,
$20,000.00 fine, restitution, and costs.
Do you understand that?
The Court: Upon release, after serving the time given you by the Court,
The Parole Authority would be required to place you on post-release control for a 13
period of three years. While in that program, you must comply with all the rules
of the Parole Authority. If you violate any rules of the Parole Authority, longer,
more restrictive sanctions can be imposed; the program could be extended to a
maximum of eight years; and the new sanctions could include going back to
prison for up to one-half the time originally imposed by the Court, not to exceed
nine months on any violation.
If you commit a felony while on post-release control, you could go back to
prison for at least one year and up to the amount of time remaining on post-release
control if it’s greater than one year. That time would have to be served
consecutive to any sentence you receive on the new felony.
Do you understand the explanation of post-release control?
The Court: By pleading guilty to these charges, you admit the truth of the
facts the Prosecutor put on record, you admit that you committed the offense of
domestic violence as a felony of the third degree, and you admit that you
committed the offense of intimidation of a witness in a criminal case as a felony
of the third degree, and you waive your right to trial by jury?
The Court: At a trial, you cannot be found guilty of any charge against you
unless the State proved beyond a reasonable doubt to every member of the jury 14
each and every element of that particular charge.
The Court: As to the counts to which you are pleading guilty, the elements
would be as follows: Count Three, domestic violence, on or about January 5,
2013, in Clark County, Ohio, you did knowingly cause or attempt to cause
physical harm to Senika Channels who was a family or household member and
you had previously been convicted of domestic violence in Clark County
Municipal Court in Case 08-CRB-2470 and previously convicted of aggravated
menacing in Clark County Municipal Court in Case 07-CRB-4455.
Do you understand these elements?
The Court: As to the aggravated menacing, the State would have to prove
the additional elements that the aggravated menacing conviction included the fact
that the victim of the offense was a family or household member at the time of the
commission of the offense.
Do you understand that, sir?
The Court: As to Court Four, the intimidation charge, the elements that
would hae to be proven would be that on or about January 5, 2013, at Clark
County, Ohio, you did knowingly, and by force or by unlawful threat to commit
any offense or felony against any person, attempted to influence, intimidate, or 15
hinder the victim of a crime from the filing of the prosecution and criminal
charges.
Do you understand the elements of that offense, sir?
Bailey, Yes, sir.
The Court: At the trial you would have the right to have witnesses brought
against you and the right to cross-examine witnesses.
Do you understand these rights?
The Court: You would have the right to have witnesses testify on your
behalf. You would have the subpoena power of the Court to compel your
witnesses to appear.
The Court: You would have the right to testify, but you could not be
compelled to do so. If you decided not to testify, the fact you did not testify
could not be used against you.
The Court: If you want to appeal the case, you must file the notice of
appeal within thirty days from the filing of the judgment entry of conviction.
Bailey: Yes, sir. 16
The Court: Mr Marshall, are you satisfied that your client understands the
nature and elements of the offense to which he’s pleading guilty and the elements
of the offenses that would have to be proven if he were to go to trial?
Defense Counsel: Yes, Judge.
The Court: Mr. Bailey, are you telling [the] Court that you want to waive
all rights that we’ve gone over; give them up for the purposes of this case; and
plead guilty to Count Three, domestic violence, a felony of the third degree; and
plead guilty to Count Four, intimidation of a witness in a criminal case, a felony
of the third degree?
The Court: Then I find the Defendant has knowingly, voluntarily, and
intelligently waived his rights and entered a plea of guilty to Count Three,
domestic violence, a felony of the third degree; and plead guilty to Count Four,
intimidation of a witness in a criminal case, a felony of the third degree. Based
upon his pleas, I find him guilty of those two offenses.
***.
{¶ 18} The record establishes that defense counsel moved to withdraw because of a
communication he had with the complaining witness prior to trial during which, according to the
State, he apparently “advised” her in some manner regarding Bailey’s criminal trial. We note
that it is unclear exactly what defense counsel said to the witness. Nevertheless, defense counsel
stated that if evidence of the conversation was provided to the jury, his ability to effectively
represent Bailey would become severely compromised. Thus, Bailey would be potentially 17
prejudiced because the jury would not trust defense counsel.
{¶ 19} By moving to withdraw, defense counsel acknowledged that his further
representation of Bailey was compromised. The court indicated to Bailey that new counsel
would be appointed and the jury trial did not proceed. Instead, after a brief recess, defense
counsel asked to be reinstated for the purpose of representing Bailey in a plea negotiated with the
State.
{¶ 20} Upon this record, we conclude that the trial court erred when it reinstated defense
counsel after he withdrew from his representation of Bailey. Once a conflict of interest arises
wherein the court removes counsel, neither the State nor the former attorney should be discussing
plea negotiations. The conflict compromised defense counsel’s ability to objectively and
effectively represent Bailey and rendered suspect defense counsel’s decision to advise Bailey to
enter into the negotiated plea. The proper course would have been for the trial court to appoint
new counsel, thereby removing any hint of impropriety from the proceedings and guaranteeing
that Bailey would not be prejudiced. Moreover, with new counsel, Bailey’s potential decision to
enter into a negotiated plea would not be potentially influenced by his prior counsel’s actions.
{¶ 21} Finally, we note that during the plea colloquy, the trial court also erred when it
failed to inquire of Bailey when he answered “no” that his counsel had not discussed the case and
possible defenses with him. Upon hearing Bailey’s negative response to the question, the trial
court had a duty to halt the colloquy and further inquire of Bailey. Without an inquiry of Bailey,
we are left with the implication that defense counsel was clearly deficient in a key aspect of his
representation; namely his duty to discuss the nature of the charges with the defendant and any
potential defenses that may be available to him. If defense counsel failed to discuss the charges 18
and possible defenses with Bailey, his pleas were not knowing, intelligent and voluntary.
Rushed pleas cannot be used to resolve the apparent conflict issue that arose.
{¶ 22} Bailey’s first assignment of error is sustained.
{¶ 23} Bailey’s second and final assignment of error is as follows:
{¶ 24} ”THE TRIAL COURT ERRED AS A MATTER OF LAW BY ENHANCING
AND SUBSEQUENTLY SENTENCING APPELLANT PURSUANT [TO] A THIRD DEGREE
FELONY FOR APPELLANT’S DOMESTIC VIOLENCE CONVICTION.”
{¶ 25} In light of our disposition with respect to Bailey’s first assignment of error, his
second assignment is rendered moot.
{¶ 26} Bailey’s first assignment of error having been sustained, the judgment of the trial
court is reversed and his guilty pleas are vacated, and this matter is remanded for proceedings
consistent with this opinion. This judgment would not preclude Bailey from accepting this plea
negotiation with newly appointed counsel after being fully apprised of his rights and options.
FROELICH, P.J. and FAIN, J., concur.
Copies mailed to:
Lisa M. Fannin Thomas M. Kollin Hon. Richard J. O’Neill