[Cite as State v. Blair, 2022-Ohio-2572.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2021-0055 SCOTT BLAIR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2021-0184
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 27, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON PROSECUTING ATTORNEY 8138 Somerset Road TAYLOR P. BENNINGTON Thornville, Ohio 43076 ASSISTANT PROSECUTOR 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2021-0055 2
Wise, J.
{¶1} Appellant Scott Blair appeals his conviction and sentence entered in the
Muskingum County Court of Common Pleas. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 8, 2021, Appellant was indicted on one count of Felonious Assault
in violation of R.C. §2903.11(A)(1), one count of Felonious Assault in violation of R.C.
§2903.11(A)(2), and one count of Possession of Criminal Tools in violation of R.C.
§2923.24.
{¶3} On August 5, 2021, the trial court held a hearing where Appellant sought to
discharge counsel. In broad generalities, Appellant told the court his attorney did not listen
to his side of the story and was pushing the idea of his guilt. The judge denied Appellant’s
request.
{¶4} That same day, Appellant entered a plea of guilty of one count of Attempted
Felonious Assault in violation of R.C. §2923.02(A) and R.C. §2903.11(A)(1) and one
count of Possession of Criminal Tools in violation of R.C. §2923.24(A).
{¶5} On September 15, 2021, the trial court sentenced Appellant to thirty-six
months in prison for Attempted Felonious Assault and twelve months in prison for
Possession of Criminal Tools to be served concurrently.
ASSIGNMENTS OF ERROR
{¶6} Appellant filed a timely notice of appeal. He herein raises the following two
Assignments of Error: Muskingum County, Case No. CT2021-0055 3
{¶7} “I. SCOTT BLAIR DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING BLAIR’S
MOTION TO DISMISS HIS TRIAL COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE
I OF THE OHIO CONSTITUTION.”
I.
{¶9} In Appellant’s first Assignment of Error, Appellant argues his guilty plea was
not knowingly, intelligent, and voluntary. We disagree.
{¶10} Crim.R. 11(C)(2) sets forth a trial court’s duties during a felony plea hearing
to address the defendant personally to convey certain information to the defendant and
prohibits acceptance of guilt or no contest without performing these duties. State v.
Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶10. The rule specifically
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 either in-person or by remote
contemporaneous video in conformity with Crim.R. 43(A) and doing all of
the following: Muskingum County, Case No. CT2021-0055 4
(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 waving 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.
{¶11} Crim.R. 11(C)(2) contains both constitutional advisements with which a trial
court must strictly comply and non-constitutional advisements with which a trial court must
substantially comply. In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124
N.E.3d 766, the Supreme Court of Ohio stated at paragraph 19:
A trial court need only substantially comply with the nonconstitutional
advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, at ¶18. But “[w]hen the trial judge does
not substantially comply with Crim.R. 11 in regard to a nonconstitutional
right, reviewing courts must determine whether the trial court partially
complied or failed to comply with the rule.” (Emphasis sic.) Clark, 119 Ohio Muskingum County, Case No. CT2021-0055 5
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶32. “If the trial judge
partially complied, e.g., by mentioning mandatory postrelease control
without explaining it, the plea may be vacated only if the defendant
demonstrates a prejudicial effect.” Id. But if the trial court completely failed
to comply with the rule, the plea must be vacated. Id. Complete failure “ ‘to
comply with the rule does not implicate an analysis of prejudice.’ ” Id.,
quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224, ¶22.
{¶12} In the case sub judice, Appellant argues the trial court failed to ensure that
he subjectively understood that his guilty plea was a complete admission of guilt.
{¶13} The record shows the trial court substantially complied with Crim.R. 11. At
the plea hearing, the trial court reviewed with Appellant the rights that he was giving up
by pleading guilty, including the right to trial, the right to confront and cross-examine
witnesses, the right to call witnesses, and the right to present his own evidence. The trial
court advised Appellant that he could not be forced to testify at trial, and that his silence
could not be used against him. The court advised Appellant the burden of proof was
beyond a reasonable doubt. The State read the facts of the case, and Appellant, through
counsel, still wished to enter a plea of guilty.
{¶14} While Appellant argues that he claimed innocence at the plea hearing, a
review of the transcript is absent of any such claims. Appellant points to nothing in the
record indicating at the time of the plea Appellant was maintaining his innocence. In
addition, Appellant fails to show or even allege he suffered prejudice. Muskingum County, Case No. CT2021-0055 6
{¶15} Based on the foregoing exchange, we find Appellant knowingly, voluntarily,
and intelligently entered his guilty plea.
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[Cite as State v. Blair, 2022-Ohio-2572.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. CT2021-0055 SCOTT BLAIR
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2021-0184
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 27, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD L. WELCH CHRIS BRIGDON PROSECUTING ATTORNEY 8138 Somerset Road TAYLOR P. BENNINGTON Thornville, Ohio 43076 ASSISTANT PROSECUTOR 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2021-0055 2
Wise, J.
{¶1} Appellant Scott Blair appeals his conviction and sentence entered in the
Muskingum County Court of Common Pleas. Appellee is the State of Ohio. The relevant
facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 8, 2021, Appellant was indicted on one count of Felonious Assault
in violation of R.C. §2903.11(A)(1), one count of Felonious Assault in violation of R.C.
§2903.11(A)(2), and one count of Possession of Criminal Tools in violation of R.C.
§2923.24.
{¶3} On August 5, 2021, the trial court held a hearing where Appellant sought to
discharge counsel. In broad generalities, Appellant told the court his attorney did not listen
to his side of the story and was pushing the idea of his guilt. The judge denied Appellant’s
request.
{¶4} That same day, Appellant entered a plea of guilty of one count of Attempted
Felonious Assault in violation of R.C. §2923.02(A) and R.C. §2903.11(A)(1) and one
count of Possession of Criminal Tools in violation of R.C. §2923.24(A).
{¶5} On September 15, 2021, the trial court sentenced Appellant to thirty-six
months in prison for Attempted Felonious Assault and twelve months in prison for
Possession of Criminal Tools to be served concurrently.
ASSIGNMENTS OF ERROR
{¶6} Appellant filed a timely notice of appeal. He herein raises the following two
Assignments of Error: Muskingum County, Case No. CT2021-0055 3
{¶7} “I. SCOTT BLAIR DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING BLAIR’S
MOTION TO DISMISS HIS TRIAL COUNSEL, IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE
I OF THE OHIO CONSTITUTION.”
I.
{¶9} In Appellant’s first Assignment of Error, Appellant argues his guilty plea was
not knowingly, intelligent, and voluntary. We disagree.
{¶10} Crim.R. 11(C)(2) sets forth a trial court’s duties during a felony plea hearing
to address the defendant personally to convey certain information to the defendant and
prohibits acceptance of guilt or no contest without performing these duties. State v.
Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶10. The rule specifically
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 either in-person or by remote
contemporaneous video in conformity with Crim.R. 43(A) and doing all of
the following: Muskingum County, Case No. CT2021-0055 4
(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 waving 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.
{¶11} Crim.R. 11(C)(2) contains both constitutional advisements with which a trial
court must strictly comply and non-constitutional advisements with which a trial court must
substantially comply. In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124
N.E.3d 766, the Supreme Court of Ohio stated at paragraph 19:
A trial court need only substantially comply with the nonconstitutional
advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, at ¶18. But “[w]hen the trial judge does
not substantially comply with Crim.R. 11 in regard to a nonconstitutional
right, reviewing courts must determine whether the trial court partially
complied or failed to comply with the rule.” (Emphasis sic.) Clark, 119 Ohio Muskingum County, Case No. CT2021-0055 5
St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶32. “If the trial judge
partially complied, e.g., by mentioning mandatory postrelease control
without explaining it, the plea may be vacated only if the defendant
demonstrates a prejudicial effect.” Id. But if the trial court completely failed
to comply with the rule, the plea must be vacated. Id. Complete failure “ ‘to
comply with the rule does not implicate an analysis of prejudice.’ ” Id.,
quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224, ¶22.
{¶12} In the case sub judice, Appellant argues the trial court failed to ensure that
he subjectively understood that his guilty plea was a complete admission of guilt.
{¶13} The record shows the trial court substantially complied with Crim.R. 11. At
the plea hearing, the trial court reviewed with Appellant the rights that he was giving up
by pleading guilty, including the right to trial, the right to confront and cross-examine
witnesses, the right to call witnesses, and the right to present his own evidence. The trial
court advised Appellant that he could not be forced to testify at trial, and that his silence
could not be used against him. The court advised Appellant the burden of proof was
beyond a reasonable doubt. The State read the facts of the case, and Appellant, through
counsel, still wished to enter a plea of guilty.
{¶14} While Appellant argues that he claimed innocence at the plea hearing, a
review of the transcript is absent of any such claims. Appellant points to nothing in the
record indicating at the time of the plea Appellant was maintaining his innocence. In
addition, Appellant fails to show or even allege he suffered prejudice. Muskingum County, Case No. CT2021-0055 6
{¶15} Based on the foregoing exchange, we find Appellant knowingly, voluntarily,
and intelligently entered his guilty plea.
{¶16} Appellant’s First Assignment of Error is overruled.
II.
{¶17} In Appellant’s Second Assignment of Error, Appellant argues the trial court
abused its discretion by denying Appellant’s Motion to Dismiss his trial counsel. We
disagree.
{¶18} The decision whether to discharge court-appointed counsel is within the trial
court’s sound discretion. State v. Dukes, 34 Ohio App.3d 263, 518 N.E.2d 28 (8th
Dist.1986). In order to find an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶19} The right to competent counsel does not require that a criminal defendant
have a meaningful relationship with counsel. Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct.
1610, 1617, 75 L.Ed.2d 610 (9183); State v. Blankenship, 102 Ohio App.3d 534, 657
N.E.2d 559 (12th Dist.1995); State v. Burroughs, 5th Dist. No. 04CAC03018, 2004-Ohio-
4769, ¶11. To discharge a court-appointed attorney, the defendant must show “a
breakdown in the attorney-client relationship of such magnitude as to jeopardize the
defendant’s right to effective assistance of counsel.” State v. Coleman, 37 Ohio St.3d
286, paragraph four of the syllabus, certiorari denied (1988), 102 L.Ed.2d 238.
“[C]ounsel’s belief in their client’s guilt is not good cause for substitution.” State v.
Cowans, 87 Ohio St.3d 68, 1999-Ohio-250, 717 N.E.2d 298 (1999). Muskingum County, Case No. CT2021-0055 7
{¶20} In the case sub judice, Appellant contends that his trial counsel believed he
was guilty and would not listen to his side of the story. Our review of the record indicates
Appellant’s counsel was communicating with Appellant and providing Appellant an honest
appraisal of the case.
{¶21} For these reasons, we do not find any abuse of discretion by the trial court.
{¶22} Appellant’s Second Assignment of Error is overruled.
{¶23} For the foregoing reasons, the judgment of the Court of Common Pleas of
Muskingum County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
JWW/br