State v. Goss

2020 Ohio 207

• Court: Ohio Court of Appeals
• Decided: January 24, 2020
• Docket: 2019-CA-14 2019-CA-15
• Status: Published

Opinion

[Cite as State v. Goss, 2020-Ohio-207.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 2019-CA-14 & : 2019-CA-15 v. : : Trial Court Case Nos. 2018-CR-939 & KENNETH W. GOSS : 2019-CR-2 : Defendant-Appellant : (Criminal Appeal from : Common Pleas Court)

...........

OPINION

Rendered on the 24th day of January, 2020.

DAVID M. MORRISON, Atty. Reg. No. 0087487, Assistant Prosecuting Attorney, Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

.............

DONOVAN, J. -2-

{¶ 1} Kenneth W. Goss appeals from the trial court’s March 29, 2019 judgment

convicting him on his no contest pleas to multiple drug-related offenses in Greene C.P.

Nos. 2018-CR-939 (“the 2018 case”) and 2019-CR-2 (“the 2019 case”). At the plea

hearing addressing both cases, the trial court promised Goss that it would not impose a

prison term in the 2019 case, and then it did so. Therefore, Goss’s sentence in the 2019

case is reversed and remanded for the limited purpose of imposing monitored time as the

sentence, as promised by the trial court. The judgment in the 2019 case is affirmed in

all other respects. The trial court’s judgment in the 2018 case is also affirmed.

{¶ 2} On December 3, 2018, Goss was indicted on 17 drug-related offenses, with

three forfeiture specifications, in the 2018 case. On January 4, 2019, Goss was indicted

on three additional drug-related offenses, with one forfeiture specification, in the 2019

case. The trial court scheduled a final resolution conference in each case for January 18,

2019, and a jury trial for February 4, 2019. The entries included the following notice:

(THE DEFENDANT MUST BE PRESENT FOR THE FINAL RESOLUTION

CONFERENCE. THE COURT WILL SET THE DATE OF THE FINAL

RESOLUTION CONFERENCE AS THE PLEA CUT-OFF DATE FOR ANY

NEGOTIATED PLEA. ABSENT ANY EXTENUATING CIRCUMSTANCES,

ANY PLEA TAKEN AFTER THE FINAL RESOLUTION CONFERENCE

WILL ONLY BE ACCEPTED AS CHARGED IN THE INDICTMENT AND

THE COURT WILL CONSIDER IMPOSING SENTENCE AT THE TIME OF

THE PLEA.)

{¶ 3} On January 16, 2019, the State filed a motion in each case to join the cases

for trial. The motions stated: -3-

In Case 2018 CR 0939, Kenneth W. Goss is alleged to have

committed multiple counts of trafficking in drugs as well as possession of

drugs, over a period of time beginning in September of 2018 and ending in

November of 2018. Counts 7, 8, and 9 of the Indictment in Case No. 2018

CR 0939 arise from an alleged drug transaction between Mr. Goss and the

A.C.E. Task Force on October 30, 2018.

However, the Bureau of Criminal Investigation and Identification * * *

required additional time to adequately conduct a laboratory analysis of all

substances alleged to have been sold by Mr. Goss on October 30, 2018.

The charges contained in the Indictment in Case No. 2019 CR 002 are the

result of the additional laboratory analysis having been completed for the

substances alleged to have been sold by Mr. Goss on October 30, 2018.

The charges arise from the same facts.

{¶ 4} On February 4, 2019, Goss filed a motion to continue in each case, which

set forth the following arguments: Goss’s counsel was appointed on the 2018 case on

December 13, 2018, and she received discovery on December 20, 2018, which included

120 pages of reports and a DVD. Counsel was appointed on the 2019 case on January

14, 2019, and the final pre-trial on both cases was held on January 18, 2019. Goss

argued that, at the conference, counsel “made it clear that this case would not be

proceeding to trial and that plea negotiations had just begun between the State and the

defense.” On February 1, 2019, defense counsel learned that Goss’s co-defendant had

agreed to testify against him and that the co-defendant had requested and was granted

a continuance of her trial. Counsel “was told that she had missed the ‘plea cutoff date,’ ” -4-

but she consulted with the assistant prosecuting attorney about this date, and he “similarly

had no knowledge of this date,” of which the court stated it had informed both parties at

the final pre-trial. Goss argued that the court had not filed “an order memorializing such

an important date” and that neither defense counsel nor the State was “given so much as

an informal notice on paper of this date.”

{¶ 5} In his motions, Goss further asserted that defense counsel was told by court

personnel that the trial would have to proceed because the jury could not be called off,

but he argued that the “inconvenience of the citizens of Greene County to appear for jury

duty when a trial is continued pales in comparison to the rights of a defendant facing

nearly three decades in prison.” Goss also argued that the court acted arbitrarily in

granting the co-defendant’s request for a continuance but not Goss’s. Goss argued that

he met all the factors in favor of a continuance, and that the request for a continuance of

the trial was only to allow him to accept the State’s plea offer. Goss asserted that his

attorney had not had enough time to prepare for a trial, considering that there were 20

charges, and that the “recently obtained information of a potential witness against [Goss]

in no way was precipitated by [Goss] to create undue delay.” Finally, Goss asserted that

a denial of the motions for continuance would deny him his right to the effective assistance

of counsel, because counsel “never intended to proceed to trial and therefore never

prepared for trial.”

{¶ 6} On February 4, 2019, Goss also filed a handwritten document asking that

his counsel be replaced and giving his reasons for the request.

{¶ 7} At Goss’s plea hearing on February 4, 2019, the following exchange

occurred after defense counsel indicated that Goss would plead no contest. -5-

[DEFENSE COUNSEL] MS. CONNELLY: * * * Your Honor, this

morning I filed a Motion for a Continuance. It’s my understanding, we did

discuss in chambers, that the Court at this time has denied that Motion for

Continuance - -

THE COURT: Well, I have reviewed the motion. In regard to Case

Number * * * 19-002, I will grant that request if the Defense so chooses.

I’m denying in Case Number 18 CR 939.

MS. CONNELLY: Your Honor, * * * did the Court rule on the State’s

Motion for Joinder of Indictments?

***

MS. CONNELLY: * * * I guess my point is, * * * if the Court would

have been inclined to join the indictments, it’s really - - if it’s going to be

granted on one, it doesn’t make sense for it to not - - I guess I just need to

know what the Court’s position is on that motion?

[The court noted that it had not ruled on the motion for joinder in either case.]

MS. CONNELLY: So I guess my next question then would be: Was

today’s trial date for both cases or just the 2019 case or just the 2018 case?

THE COURT: Well, it might be moot in the sense that I’m - -

THE COURT: - - granting a continuance on 02, so in light of the fact

the Court has not ruled in favor of the State’s Motion, the fact you filed the

Motion to Continue, and the Court’s granting it in 02, I guess by virtue of

that, I’m denying the Motion for Joinder. -6-

MS. CONNELLY: * * * And so today, though, would have been trial

--

THE COURT: Trial for Case Number 18 CR 939.

MS. CONNELLY: * * * And I guess because of that, because these

two cases are so closely linked, they arise out of the same couple of

incidents - - these involved drug buys - - that really they’re so intertwined

that for us to agree to a Motion to Continue the 2019 case, when the bulk

of the charges are in the 2018 case, doesn’t make - - it wouldn’t benefit my

client, and so that’s why the Defense initially is still requesting the

continuance of the trial for both cases, but I understand that the Court is

denying the 2018 CR 939.

Really the Motion to Continue is so that the Defendant can also

benefit from the plea agreement reached by both the State and the Defense.

I also understand when we spoke in chambers, the Court did say

even though he’s going to be pleading to all charges, that you would listen

to or entertain arguments for disposition?

THE COURT: Oh, absolutely.

MS. CONNELLY: * * *

The negotiations between the State and the Defense ended up being

a plea of four years. That was recently extended. * * *

THE COURT: When was * * * that plea?

MS. CONNELLY: That was as recent as this weekend, your Honor.

*** -7-

MS. CONNELLY: * * * I discussed that with my * * * client, who is

accepting of the plea with the understanding that it would have been

stipulated to. I understand that’s not happening.

Prior to that, the initial offer was extended at the final pretrial, which

was January 18, of six years; and again, * * * throughout this case, it was

always understood * * * that this case was never actually going to trial. That

this was always going to be resolved by way of plea, and that the date today

was simply a placeholder for that plea.

So through the negotiations, we’ve went from that initial offer of six

years to an offer of four years, and that four years be run concurrent with

his Montgomery County case, which is Montgomery County Case Number

2018 CR 3863.

He’s already plead [sic] in that case and has been sentenced to three

years mandatory time.

Today he’s pleading No Contest with the hope that the Court accepts

the recommendation for disposition by the State of four years to be run

concurrent with that case.

Once the Defendant has plead [sic], the Defendant requests that a

PSI be conducted, again, so that the Court [can] get to know a little bit more

about the Defendant, and * * * to emphasize that four years would be in the

best interest of resolving this case and would be a fair and equitable result

for this Defendant.

And I need to put on the record today that the Court has given the -8-

Defendant three options in this case, plea as charged, go to trial, or for the

State to dismiss the charges - - which obviously is not in the Defendant’s

hands.

Because he has never wanted to go to trial, he is pleading today.

He understands that his plea needs to be * * * voluntarily made, intelligently

made, and we’ve discussed that in detail.

So with that background the Defendant will be pleading No Contest

today to the charges outlined in the State’s plea agreement with the

recommendation of the State by agreement of the Defense of four years to

be run concurrently with the Montgomery County Case Number. * * *

THE COURT: * * * I have a question for the State. Are you familiar

with the Court’s rule that’s been in place for 16 years that a plea on the day

of the Jury trial when the Jury comes in must be as charged without any

deals?

[PROSECUTOR] MR. MORRISON: You Honor, that was given in

the context of a motion that I knew was pending that I did not know how the

Court - -

THE COURT: No. My question is: Are you aware of that rule that

the Court’s had for 16 years?

MR. MORRISON: Of course, I am.

THE COURT: Then why were you making an offer knowing that the

next day we get-together that rule would apply?

MR. MORRISON: Your Honor, it was in the context of the motion -9-

that I knew that she was going to be filing, but I did not know how the court

was going to take that Motion to Continue.

It was a counteroffer that was extended by the Defense. I ran it by

̶

THE COURT: That counteroffer - -

MR. MORRISON: - - my detective - -

THE COURT: - - was made on January 18 when we had the final

pretrial?

MR. MORRISON: She extended another - -

THE COURT: Well, I guess my bottom line here is: When we show

up for day of trial, and we have a Jury brought in, the only plea the Court

will take is as charged with no deals from the State. That has been the rule

from beginning to end.

Now, whether there’s a continuance or not, I’m not sure you’re being

fair to the Defense by offering something that the Court will not consider.

THE COURT: What was the purpose of that offer?

MR. MORRISON: It was, it was an acceptance of a counteroffer

after having extensive conversations with, with Defense Counsel as to what

the Court would probably do, what the Court would likely do, but - -

THE COURT: It’s a conditional offer?

MR. MORRISON: - - but, again - -

THE COURT: If the Court were to change the rule - - -10-

MR. MORRISON: * * * [S]hould the court accept her motion - - it

was not a simple Motion to Continue because of a * * * scheduling conflict.

It was a Motion to Continue based on, I believe, what was a

misapprehension as to a plea cutoff date.

When she informed me she was going to file a motion based on in

part a misapprehension of a plea cutoff date, again, with the benefit * * * of

knowing what the Court’s general policy is, I did not know if that

misapprehension would be enough for the Court to continue it, and let us

continue the negotiations. * * *

THE COURT: Let’s assume for a moment there was no plea cutoff

date. For 16 years, the rule has been you show up day of trial, you plead

as charge[d]. No deals.

THE COURT: So forget a misunderstanding as to a plea cutoff. * * *

Now, if the Defense wish[es] to make a continuance, you can

certainly agree, disagree, whatever you want to do with the continuance,

but I’m not sure making an offer is of any moment under those

circumstances because if the Court grants the continuance, then you can

make an offer.

So what’s the purpose of making an offer waiting for the Court to

decide whether a continuance should take place?

MR. MORRISON: Again, it was because of the misapprehension of -11-

the plea cutoff is why we’re here today. It’s why we’re having to do this on

day of trial.

THE COURT: You mean, a plea cutoff that was scheduled for

January 25?

MR. MORRISON: * * * I do not have that date in my file.

THE COURT: * * *

The Court has a rule that’s in my standard trial practice forms - -

which have been handed out to lawyers for the past 16 years – that says

date of trial, it’s a plea as charged. No deals.

I guess my point is, the State should be aware of this in terms of their

relationship to the Defense and make reasonable and fair offers in a timely

manner to the Defense if you intend to do something.

THE COURT: Now, I will tell you assuming we go forward with the

plea, you will be entitled to make any recommendation you wish to the

probation department in the course of the PSI. That’s your prerogative.

THE COURT: And the Court will listen to that as much as I’ll listen

to any recommendation the Defense makes in this case.

Be aware of when our dates are, and when the dates can be

addressed, and what needs to be addressed. -12-

I mean, I’m * * * kind of flummoxed by the fact that an offer’s made

over the weekend when clearly the Court will not under any circumstances

consider that offer in light of the rule the Court employs in this case.

MR. MORRISON: Your Honor, in fairness, * * * I made it very clear

that the Court would not let us stipulate to any number, and what I’ve told

Ms. Connelly even just this morning is that I would stand by my

recommendation of four years.

I understand Mr. Goss wishes to enter a No Contest Plea at this time.

MS. CONNELLY: That’s correct, your Honor.

THE COURT: Mr. Goss, I’m going to ask you a series of questions

today regarding this plea. And the first thing I want to say to you is if I ask

you a question that you don’t understand or you’re not sure what the

question was, ask me to repeat the question.

And the reason I say that is I want you to think about the question

carefully because we will record your answer, and it’s going to be locked

down.

So think about the question. If you have any question you want to

ask me about anything we’re discussing, I want you to ask me that question;

okay?

I want to hear your thoughts, make sure that we’re all on the same

page as we go through this process. -13-

Also want you to know if you want to ask your lawyer a question

privately, just turn to your lawyer and start talking.

Take as much time as you need to get your answer; and when you’re

done, we’ll continue with our question and answer process; okay? Did you

want to say anything right now?

(WHEREUPON, Ms. Connelly confers with Defendant Kenneth Goss.)

DEFENDANT KENNETH GOSS: I feel like we’ve ran out of time.

It’s not my fault. * * * I don’t want to blame, but it’s my Counsel’s fault we’ve

ran out of time, and * * * I don’t feel like I should have to take, push a No

Contest Open Plea for his case at this point * * *

THE COURT: Well, you don’t have to plead. We have a jury out

here. We can have a trial.

DEFENDANT KENNETH GOSS: I don’t feel like I should have to

go to Jury trial. * * * I feel like I should have more time. * * *

THE COURT: We all know that you’ve got a limited amount of time

before we have to have a trial, and that’s why we’re having our trial

scheduled today.

DEFENDANT KENNETH GOSS: * * * I could sign a speedy trial

waiver. * * *

THE COURT: Well, we’re beyond that today. We have a Jury out

here waiting to try this case or we’re going to do a plea. It’s your decision.

*** -14-

DEFENDANT KENNETH GOSS: Wee. I guess we’ll take a plea. I don’t

want to go to Jury trial. I’m facing quite a bit of time if found guilty - -

DEFENDANT GOSS: Do you have a copy of the paper I sent in

today to the Judge of reasons why I needed new Counsel?

THE COURT: * * * I have reviewed your request. I believe the

discretion rests with the Court to decide on day of trial whether we should

switch Counsel, and I’m going to deny that request at this time.

DEFENDANT KENNETH GOSS: Move on with the No Contest Plea.

{¶ 8} The court then ascertained that Goss was 37 years old, a U.S. citizen, not

under the influence of drugs or alcohol, and able to understand the proceedings. Goss

indicated that he and defense counsel discussed the nature of the charges against him

and that he understood the nature of the charges. When asked if he was aware of the

facts underlying the charges “that the State’s provided in the discovery packet,” Goss

indicated to the court that he “received [his] discovery packet yesterday, less than 24

hours ago.” The following exchange occurred:

Now, the question is, do you feel that in reviewing the discovery

package yesterday, that you are comfortable with the assessment that you

should go forward with a No Contest Plea? -15-

In other words * * * having reviewed the evidence in this case, do you

feel comfortable entering a plea where the Court would ultimately make a

finding of guilty based upon your belief that from the evidence that you read,

the State has sufficient evidence that if presented to a Jury, they could find

you guilty beyond a reasonable doubt?

Now, do you wish to go forward with your plea with that

understanding?

DEFENDANT KENNETH GOSS: Yes.

{¶ 9} Defense counsel then represented to the court that prior to providing Goss

with a copy of the discovery packet, she “review[ed] with him all of the discovery that I’d

received from the State of Ohio, so even though he didn’t have his own copy, he did have

an opportunity to review it himself[.] * * * I answered questions that he had.”

{¶ 10} The court then asked Goss if he had shared with his attorney with all the

information he felt she needed to know in order to fully represent him. Goss responded,

“Not really, but I don’t want to go to a Jury trial.” The court then called a recess to allow

Goss to discuss with his attorney anything he felt she needed to know that he had not

told her.

{¶ 11} After the recess, the following exchange occurred:

THE COURT: * * * Mr. Goss, have you provided all the information

to your attorney that you fell she needs to know in order to represent you?

DEFENDANT KENNETH GOSS: Yes, your Honor.

THE COURT: Has your attorney answered your questions so far?

DEFENDANT KENNETH GOSS: Yes. -16-

THE COURT: Now, do you understand you have a Constitutional

Right to have this case resolved with a speedy and public trial to a Jury with

a verdict of either guilty or not guilty?

THE COURT: And I take it you have affirmatively chosen not to

pursue that option?

THE COURT: Has anyone caused you to feel rushed in making

your decision to enter a Plea of No Contest today or has anyone left you

with the impression you have no choice to enter a No Contest Plea?

DEFENDANT KENNETH GOSS: No.

THE COURT: Has anyone said any of that to you?

DEFENDANT KENNETH GOSS: Nobody’s rushed me.

THE COURT: Has anyone caused you to feel pressured, coerced,

compelled, manipulated, or frightened in making your decision to plead No

Contest?

THE COURT: From what you’ve told me, can I conclude for the

record that your decision to enter a No Contest Plea today is a decision you

are making on your own. It is a free choice, from more than one choice.

You’re doing it voluntarily, without any improper influence or duress from

any person or any source? -17-

THE COURT: And you understand that a No Contest Plea is one in

which you’re not making an admission of guilt. You’re simply saying that

the facts of this case are not being contested. That the decision to plead

No Contest cannot be used against you in any subsequent civil or criminal

proceeding, but that you should expect upon the conclusion of the plea, the

Court would make a finding of guilty; do you understand all that?

THE COURT: Now, when we end the case in this manner, you’ll be

giving up important Constitutional Protections. I have an obligation to

make sure you understand those rights and confirm that you’re willing to, to

waive those rights.

The Constitutional Rights that you are afforded when you’re accused

of a crime is a right to a speedy and public trial to a Jury, and we have a

Jury outside right now.

You have the right of compulsory process, to require witnesses to

come to trial to testify in your behalf.

You have the right to require the State at trial to prove you guilty

beyond a reasonable doubt. If they don’t, then the Jury must make a

finding of not guilty.

You give up the right to confront witnesses who testify against you

by having your Counsel cross-examine those witnesses for their

truthfulness of the facts and their integrity. -18-

And, finally, you give up the right not to be compelled to be a witness

against yourself at trial, which means no one can force you to testify at trial

if you don’t want to testify nor can anyone use the decision not to testify

against you in any way in front of that Jury.

Now, these are the Constitutional Rights that a person gives up when

they enter a No Contest Plea. Do you understand these rights?

THE COURT: Counsel satisfied the Rule 11 Forms are correct?

MR. MORRISON: Yes, your Honor.

MS. CONNELLY: Yes, your Honor.

{¶ 12} After conferring with defense counsel, Goss acknowledged his signature on

the plea form and that he went over it with defense counsel. The court then accepted

Goss’s no contest pleas to 17 drugs offenses in the 2018 case, including several forfeiture

specifications, and his no contest pleas to three drug offenses in the 2019 case. The

court noted that several of these offenses merged for purposes of sentencing, including

one offense in the 2019 case that merged with an offense in the 2018 case, and that the

State had elected to proceed on nine offenses. The court informed Goss that he faced a

maximum possible sentence of 25 and a half years, which included a mandatory term of

two to eight years on Count 14 in the 2018 case, and of the possible fines. Goss

indicated his understanding of the possible sentence. Then the following exchange

occurred:

THE COURT: Now, I’m just going to tell you right now, in [the 2019 -19-

case], which consists of the three - - well, I guess two felony fives, the Court

will not be imposing a prison sentence on those cases.

I’m going to impose monitored time, which basically results in no

consequence to you in effect.

In other words, in [the 2018 case], you will be serving whatever

appropriate sentence will be imposed, but you’ll not be serving a prison

sentence in [the 2019 case] - -

DEFENDANT KENNETH GOSS: Yes, I understand.

THE COURT: - - the fifth degree felonies, and I’ll just commit to that

right now; all right?

DEFENDANT KENNETH GOSS: Yes, I understand that.

{¶ 13} Finally, the court advised Goss that he was subject to mandatory post-

release control on Count 14 for a period of three years, and to optional post-release

control on the remaining counts; Goss indicated his understanding of post-release control.

The court ordered a presentence investigation report (PSI) and explained to Goss that he

would be sentenced at a future date when the court had more information about Goss

and about the case. As such, the court informed Goss that it could not tell him at the

plea hearing exactly what the sentence would be, but that there would be a sentence

imposed. Goss indicated his understanding of these facts and his intention to proceed

with his no contest pleas.

{¶ 14} The court accepted Goss’s no contest pleas and found him guilty of those

offenses. The court scheduled disposition for March 29, 2019.

{¶ 15} At the sentencing hearing, the trial court reviewed the original charges, the -20-

counts that had merged, and the counts on which the State had elected to proceed

(Counts 1, 4, 5, 8, 9, 10, 13, 14, and 16 in the 2018 case, and Counts 2 and 3 in the 2019

case). After the prosecutor noted that Count 1 in the 2019 case and Count 2 in the 2018

case were allied offenses, the court noted that “there would be no sentence on Count 1”

in the 2019 case. The court noted that it had received and reviewed the PSI. The

following exchange occurred:

MS. CONNELLY: Your Honor, we stand on our Sentencing

Memorandum. We also request the four years run concurrently with the

Montgomery County case, which is 2018 CR 3863; and we had made a

record the day of the plea that that four years to run * * * concurrently with

the Montgomery County case was the offer from the State.

THE COURT: The Court will note that the Rule of Court is that a

plea on the day of trial results in no agreements; and, therefore, the Court

did not acknowledge any understanding between counsel prior to that date.

{¶ 16} In the 2018 case, the court sentenced Goss to 12 months on Count 1, 12

months on Count 4, 36 months on Count 5, 36 months on Count 8, 18 months on Count

9, 36 months on Count 10, 18 months on Count 13, five years on Count 14, and 18 months

on Count 16. The court ordered that all of the sentences be served concurrently, for a

“total effective sentence of five years of which five years is mandatory.” In the 2019 case,

the court sentenced Goss to concurrent terms of 12 months on Counts 2 and 3, and the

court ordered that “[t]hese sentences will be served concurrently to the sentences

imposed” in the 2018 case. The court advised Goss that he was subject to mandatory

post-release control for the second degree felony. Finally, the court ordered Goss’s -21-

sentence to be served concurrently to the term imposed in Montgomery C.P. No. 2018

CR 3863.

{¶ 17} Goss asserts two assignments of error, which raise nearly identical

arguments. He argues that the trial court erred as a matter of law, abused its discretion,

and committed plain error at the plea hearing “when it failed to comply with C[rim].R. 11

because the no contest plea of the defendant was not made knowingly, intelligently,

freely, and voluntarily thereby denying the Defendant his rights to due process granted

by the Ohio and United States Constitutions.”

{¶ 18} In his first assignment of error, Goss contends that the trial court “failed to

reveal” to him the specific facts to which he was pleading, failed to inquire if he understood

those facts as reflected in the bill of particulars and the two indictments, denied him the

effective assistance of counsel, accepted a no contest plea to a defective count (Count

14), failed to timely rule on motions pending before the court, actively prevented him from

asserting his due process right to waive the speedy trial requirement, and made “unkept

promises to him regarding sentencing.” He also asserts that “[a]ll of these events

occurred at a jury trial date converted into a plea hearing in an atmosphere of intimidation,

pressure, and a lack of fundamental fairness, or with an efficient dispatch of justice.”

{¶ 19} Goss asserts that “an overall reading of the plea transcript” demonstrates

that the trial court “dominated and controlled” his decision-making process. According

to Goss, the trial court asked him how he pled to the charges, but not as to the facts

underlying and supporting those charges; the trial court also never referenced the

indictments or the bill of particulars when asking Goss how he pled to the charges. The

trial court “simply said the no contest plea gave up the right to contest the facts.” Goss -22-

asserts that he “was entering blind no contest pleas” and that he “did not know the facts.”

{¶ 20} Goss further asserts that, in the 2018 case, the court found Counts 14 and

15 to be allied offenses of similar import, noting that the “enhancement” for those offenses

was five times the bulk amount but less than fifty times the bulk amount of

Methamphetamine, but Count 14 of the indictment contained “no factual statement of the

amount of Methamphetamine recovered” from him. Goss argues that, according to the

lab report referenced in the indictment, 18.12 grams of Methamphetamine were

recovered from him, and that amount “should have been classified as either a felony four

or perhaps a felony five * * * without the possibility of mandatory imprisonment.” (Count

14 described the offense as a second-degree felony.) Goss contends that he “was not

counse[led] by anyone in this case” or “informed” by the trial court, such that his no contest

plea to Count 14 “could not possibly have [been] given knowingly, intelligently, freely, and

voluntarily.”

{¶ 21} Goss asserts that he needed more time but was “forced, pushed and

intimidated” into entering his no contest pleas, despite his willingness to sign a speedy

trial waiver. Finally, Goss contends that the trial court also “made a promise” before he

entered his no contest plea that “it had no intention of ordering a prison sentence” in the

2019 case.

{¶ 22} In his second assignment of error, Goss argues that “the trial court’s

attitude was unreasonable, capricious, arbitrary, and unconscionable” in refusing to allow

him to sign a speedy trial waiver, which “was an abuse of [his] due process rights.”

According to Goss, the trial court “failed to even remotely consider” the possibility of

continuing the 2018 case in the interests of justice, due process, and further plea -23-

negotiations. Goss claims that the trial court denied him the benefit of effective

assistance of counsel “in negotiating a plea agreement acceptable to the state and the

defendant.”

{¶ 23} Goss also asserts that the trial court’s rule that it will not accept a negotiated

plea on the day scheduled for trial is not contained in the Local Rules of Practice and

Procedure of the Greene County Common Pleas Court, and therefore was arbitrary,

capricious, and unreasonable. Goss directs our attention to the trial court’s comment to

the prosecutor that he was “not being fair to the defense” by offering a plea agreement

beyond the time limit specified in this rule, knowing that the court would not consider it.

From this statement, Goss infers that “1) defense counsel must generally not be aware

of the rule, and 2) the trial court is aware of potential abuse,” yet the trial court was

“unwilling to hold the rule in abeyance on this occasion” or to grant Goss’s request to

continue the case “for the benefit of the defendant.”

{¶ 24} Further, Goss contends that the court’s failure to rule on the State’s motion

for joinder prior to the day scheduled for trial and the manner in which it disposed of the

motion that day support the conclusion that the trial court acted unconscionably,

arbitrarily, and unreasonably. He points out that the trial court made no finding of facts

or conclusions of law to support its decisions on the motion for joinder or the denial of his

request for a continuance; the court also did not allow his request for new counsel or give

him “additional time to review the discovery and facts supporting the charges against

him.” Finally, Goss asserts that the trial court “gave [him] a ten minute break to discuss

discovery and learn the facts of his cases,” when it had taken “weeks of preparation” by

defense counsel “to formulate coherent defenses” even without knowing whether the two -24-

cases would be joined for trial.

{¶ 25} On appeal, Goss asks that we dismiss the cases against him or, in the

alternative, “vacate his pleas” and remand for further proceedings.

{¶ 26} The State responds that the transcript of the Crim.R. 11 plea colloquy

clearly demonstrates that the trial court complied with the rule; “[u]nlike in misdemeanor

cases * * * the State is not required to explain the circumstances of how the offenses were

committed, but allows the court to make a finding of guilt based upon the facts alleged in

the indictment.” Moreover, the State contends that Goss’s assertion that he did not know

the facts underlying the charges is not supported by the record. The State argues that

“the purpose of the recess during the plea hearing was not so that [Goss] could learn

additional facts from his attorney; the recess was called when [Goss] said that he had not

shared everything with his attorney that she needed to represent him.”

{¶ 27} According to the State, the facts contained in the indictment and bill of

particulars in the 2018 case were sufficient to sustain a conviction for a second-degree

felony, and Goss’s attorney was not ineffective in failing to assert that the offense was a

fourth or fifth-degree felony. Specifically, the State contends that Counts 14 and 15

complied with R.C. 2941.05, as the counts contained statements that Goss had

committed aggravated trafficking in drugs and aggravated possession of drugs (in

violation of R.C. 2925.03(A)(2) and R.C. 2925.11(A), respectfully), both felonies of the

second degree involving the trafficking and possession of Methamphetamine, a Schedule

II drug. The indictment incorporated the laboratory report, whereas the bill of particulars

specified the amount of Methamphetamine to be 18.12 grams. The State contends that,

by mirroring the language of R.C. 2925.03 and R.C. 2925.11, the indictment contained -25-

the essential facts of the charges, the numerical designation of the applicable statutes,

and placed Goss on notice of the elements of each offense. Further, the State asserts:

Both the Indictment and the Bill of Particulars specified the amount

of methamphetamine was greater than five times the bulk amount but less

than fifty times the bulk amount. The bulk amount of methamphetamine is

three grams, as defined by R.C. § 2925.01(D)(1)(g). See also State v.

Silcott, 2d Dist. Clark No. 2017-CA-12, 2018-Ohio-3507, ¶ 37. Because

18.12 grams is greater than five time the bulk amount (15 grams), Count 14

was a second-degree felony and carried a mandatory prison term. R.C. §

2925.03(C)(1)(d) and § 2929.13(F)(5).

{¶ 28} The State asserts that, because the amount of Methamphetamine at issue

in Counts 14 and 15 was greater than five times the bulk amount, the trial court did not

err as matter of law or abuse its discretion in finding “that the Indictment (and Bill of

Information) was sufficient to charge and sustain a conviction for a second-degree felony

with mandatory imprisonment.” Moreover, Goss was not denied the effective assistance

of counsel because counsel did not challenge the indictment or bill of particulars on this

basis.

{¶ 29} The State argues that the particulars of the negotiated plea agreement were

never made part of the record beyond the State’s willingness to stipulate to a four-year

prison sentence to be served concurrently with Goss’s sentence in a Montgomery County

case. According to the State, it informed defense counsel that, if the requested

continuance were granted, then the State would be willing to enter into a plea agreement

calling for a stipulated four-year sentence. The trial court also acknowledged that, if the -26-

continuance were granted, the parties would have been able to continue negotiations and

the State could “make an offer.” However, because the continuance was denied, the

State never offered -- and defense counsel never requested -- the reduction or dismissal

of any counts or a stipulated sentence. According to the State, defense counsel

repeatedly acknowledged there would be no stipulated sentence, and the complete terms

of the parties’ agreement were “never even contemplated on the record.”

{¶ 30} The State argues that Goss’s use of one quote from the trial court (i.e., “I’m

not sure you are being fair to the defense by offering something that the Court will not

consider”) is misleading in light of the court’s acknowledgement that it would consider the

State’s recommendation; the State “does not abuse the process when it simply tells the

defense what it intends to recommend in the event of a conviction, whether by a jury or

through a plea as charged to all twenty counts.” The State argues that Goss’s plea was

not rendered less than knowing and voluntary by the fact that the court sentenced him to

five years instead of four, especially when he faced the prospect of more than 25 years.

{¶ 31} The State notes that Goss never asked for a joinder of the indictments and

that Goss has not alleged “any particular prejudice” that he suffered due to the trial court’s

denial of the State’s motion to join the cases for trial. The State points out that, because

no questions of fact were involved in the court’s decision to deny the motion, the court

was not required to state its findings on the record, citing Crim.R. 12(F).

{¶ 32} With respect to Goss’s request for new counsel, the State asserts that

Goss’s request was primarily based on his claim that he had not seen discovery and had

not discussed the case or developed a defense strategy with his attorney. The State

argues that the plea hearing transcript belies these claims and that the trial court did not -27-

err or abuse its discretion when it denied Goss’s request for new counsel on the day

scheduled for trial.

{¶ 33} The State argues that Goss’s plea was not rendered involuntary by the trial

court’s denial of a continuance and its adherence to its policy regarding plea agreements

on the day of trial. According to the State, the trial court “did not deny [Goss] his right or

ability to waive his own rights to a speedy trial, but rather rendered this issue moot” by

denying the motion for a continuance in the 2018 case. The State asserts that the

transcript “indicates that this issue was discussed and decided in chambers,” and there

were no factual questions presented for the court to resolve in deciding the motion for a

continuance. Moreover, “there is nothing in this record to suggest” that the State and

Goss were prevented from reaching a negotiated plea agreement before the day of trial,

and the trial court “did not abuse its discretion by exercising its inherent authority to control

its own docket.”

{¶ 34} Finally, the State asserts that the trial court erred by not sentencing Goss

to “community control sanctions/monitored time” in the 2019 case, but the record does

not reflect that his sentence would clearly have been different but for the error, since the

sentence in that case was ordered to run concurrently with the 2018 case.

{¶ 35} We begin our analysis with Goss’s assertion that Count 14 of the 2018 case

should have been classified as either a fourth- or fifth-degree felony “without the

possibility of mandatory imprisonment.” R.C. 2941.05 provides:

In an indictment or information charging an offense, each count shall

contain, and is sufficient if it contains in substance, a statement that the

accused has committed some public offense therein specified. Such -28-

statement may be made in ordinary and concise language without any

technical averments or any allegations not essential to be proved. It may

be in the words of the section of the Revised Code describing the offense

or declaring the matter charged to be a public offense, or in any words

sufficient to give the accused notice of the offense of which he is charged.

See also Crim.R. 7.

{¶ 36} Count 14 of the indictment in the 2018 case stated:

KENNETH W. GOSS, on or about November 19, 2018, in Greene

County, Ohio, or by some manner enumerated in Section 2901.12 of the

Ohio Revised Code whereby proper venue is placed in Greene County,

Ohio, did, knowingly prepare for shipment, ship, transport, deliver, prepare

for distribution, or distribute a controlled substance or a controlled

substance analog, to wit: Methamphetamine, a Schedule II drug, as

described in the laboratory report, incorporated herein by reference, in an

amount equal to or exceeding five times the bulk amount but less than fifty

times the bulk amount, when the offender knew or had reasonable cause to

believe that the controlled substance was intended for sale or resale by the

offender or another person, contrary to and in violation of Section

2925.03(A)(2) of the Ohio Revised Code and against the peace and dignity

of the State of Ohio. (Aggravated trafficking in drugs, a felony of the

second degree, with mandatory imprisonment)

{¶ 37} Count 15 (which the trial court merged with Count 14) stated:

KENNETH W. GOSS, on or about November 19, 2018, * * * did, -29-

knowingly obtain, possess or use a controlled substance or a controlled

substance analog, to wit: Methamphetamine, a Schedule II drug, as

described in the laboratory report, incorporated herein by reference, in an

amount equal to or exceeding five times the bulk amount but less than fifty

times the bulk amount, contrary to and in violation of Section 2925.11(A) of

the Ohio Revised Code * * * (Aggravated possession of drugs, a felony

of the second degree, with mandatory imprisonment)

{¶ 38} The bill of particulars for Count 14 provided, in part:

Manner in which statute was violated: On November 16, 2018,

Kenneth W. Goss agreed to sell 23 capsules of heroin and a quarter ounce

(approximately 7.08 grams) of methamphetamine to an undercover

detective (UC) for $240.00. Mr. Goss agreed to sell the above-referenced

drugs on November 19, 2018. On November 19, 2018, the UC

communicated by text message with a person who identified herself at Mr.

Goss’ “old lady”, and who stated she was willing to facilitate the agreed

transaction on Mr. Goss’ behalf as Mr. Goss was sleeping. Mr. Goss then

contacted the UC and advised that his girlfriend would meet the UC at 263

S. Detroit Street in Xenia, Greene County, Ohio to engage in the exchange

of money for drugs.

A female later identified as Stacey Reese was seen leaving Mr.

Goss’ residence located at 244 E. Third St., Lot 196, Xenia, Ohio. Ms.

Reese then proceeded to 263 S. Detroit Street in Xenia, Greene County,

Ohio and met the UC where she gave the purported heroin and -30-

methamphetamine to the UC in exchange for the $240.00. The UC agreed

to drive Ms. Reese back to Mr. Goss’ residence, and during the drive their

vehicle was stopped by Xenia Police at which point Ms. Reese was

arrested. On Ms. Reese’s person was located the pre-recorded $240.00

in currency. Ms. Reese was advised of her Miranda rights, after which she

stated that her conduct was a “joint effort,” and indicated that the other

person involved was Mr. Goss.

After the arrest of Ms. Reese, members of the Greene County ACE

Task Force executed a search warrant at Mr. Goss’ residence * * *. Mr.

Goss was found standing next to several capsules of suspected heroin, a

scale, and a ten dollar bill. After being advised of his Miranda rights, Mr.

Goss admitted that another individual found at his residence was there to

purchase 2 capsules of heroin for $10.00. Mr. Goss further admitted to

possession of a bag of methamphetamine found in his room. A number of

items were seized by the Task Force and submitted to MVRCL for testing.

A laboratory analysis by Todd Yoak of the MVRCL confirmed the

substances to include 18.12 grams of methamphetamine.

The bill of particulars contains identical language related to Count 15.

{¶ 39} Pursuant to R.C. 2925.01(D)(1)(g), the bulk amount of methamphetamine,

a Schedule II drug, is “[a]n amount equal to or exceeding three grams.” The amount

confiscated from Goss, 18.12 grams, was greater than five times the bulk amount (15

grams). R.C. 2925.03 provides:

*** -31-

(C) Whoever violates division (A) of this section is guilty of one of the

following:

(1) If the drug involved in the violation is any compound, mixture,

preparation, or substance included in schedule I or schedule II, with the

exception of marihuana, cocaine, L.S.D., heroin, any fentanyl-related

compound, hashish, and any controlled substance analog, whoever violates

division (A) of this section is guilty of aggravated trafficking in drugs. The

penalty for the offense shall be determined as follows:

(d) Except as otherwise provided in this division, if the amount of the

drug involved equals or exceeds five times the bulk amount but is less than

fifty times the bulk amount, aggravated trafficking in drugs is a felony of the

second degree, and the court shall impose as a mandatory prison term a

second degree felony mandatory prison term.

See also R.C. 2929.13(F)(5).

{¶ 40} We agree with the State that the indictment was sufficient to charge and

sustain a conviction for aggravated trafficking in and/or possession of drugs as second-

degree felonies. Regarding Goss’s suggestion that he received ineffective assistance of

counsel due to counsel’s failure to advise him that Count 14 should have been otherwise

classified, as this Court has noted:

In order to succeed on an ineffective assistance claim, [Defendant]

must show that his trial counsel rendered deficient performance and that

counsel's deficient performance prejudiced him. Strickland v. Washington, -32-

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish

deficient performance, [Defendant] must prove that his trial counsel’s

performance fell below an objective standard of reasonable representation.

Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

In evaluating counsel’s performance, “a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances the challenged action ‘might

be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

To show prejudice, [Defendant] must establish that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. State v. Hale, 119 Ohio

St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-

688, 694; Bradley at paragraph two of the syllabus. The failure to make a

showing of either deficient performance or prejudice defeats a claim of

ineffective assistance of counsel. Strickland at 697.

State v. Hartman, 2d Dist. Montgomery No. 27162, 2017-Ohio-7933, ¶ 30-31.

{¶ 41} Because Count 14 properly charged the offense of aggravated trafficking in

drugs as a felony of the second degree, with mandatory imprisonment, Goss has not

demonstrated that he was provided ineffective assistance of counsel.

{¶ 42} We next address Goss’s arguments regarding the trial court’s alleged failure

to timely rule on the motions for joinder of the indictments and for a continuance, and the -33-

court’s failure to allow him to obtain new counsel. We note that Goss’s assertion that the

trial court failed “to make any ruling on the State’s Motion for Joinder” mischaracterizes

the record. The court clearly indicated that it granted the motion for a continuance in the

2019 case, and that “by virtue of that [it was] denying the Motion for Joinder.”

{¶ 43} Regarding Goss’s motion for a continuance, we note that the grant or denial

of a continuance is a matter entrusted to the discretion of the trial court. State v.

Breneman, 2d Dist. Champaign No. 2010 CA 18, 2012-Ohio-2534, ¶ 15, citing State v.

Goode, 2d Dist. Montgomery No. 19273, 2003-Ohio-4323, citing State v. Unger, 67 Ohio

St.2d 65, 423 N.E.2d 1078 (1981).

{¶ 44} As the Supreme Court of Ohio has determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. * * * It is to be expected that

most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.

A decision is unreasonable if there is no sound reasoning process

that would support that decision. It is not enough that the reviewing court,

were it deciding the issue de novo, would not have found that reasoning

process to be persuasive, perhaps in view of countervailing reasoning

processes that would support a contrary result.

AAAA Ents., Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

{¶ 45} In Breneman, this Court noted:

In evaluating a motion for a continuance, a trial court should consider the -34-

following: 1) the length of the delay requested; 2) whether other

continuances have been requested or received; 3) the inconvenience to the

litigants, witnesses, opposing counsel, and the court; 4) whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful,

or contrived; 5) whether defendant contributed to the circumstances which

give rise to the request for a continuance; and 6) other relevant factors,

depending on the unique facts of each case. Unger, [67 Ohio St.2d 65,] 67-

68, 423 N.E.2d 1078.

Breneman at ¶ 15.

{¶ 46} Goss filed the motions for continuances on the morning scheduled for trial

in the 2018 and 2019 cases. The court had scheduled the final resolution conference in

each case for January 18, 2019, and it made clear in the scheduling entries that that date

was “the plea cut-off date for any negotiated plea.” Although defense counsel points out

that she was appointed on the 2018 case on December 13, 2018, and on the 2019 case

on January 14, 2019, the “plea cut-off date” was contained in the court’s docket.

Contrary to the court’s order, defense counsel argued in her motion that, at the conference

on January 18, 2019, she “made it clear that this case would not be proceeding to trial

and that plea negotiations had just begun between the State and the defense.”

Counsel’s assertion in the motions for a continuance that the court failed “to file an order

memorializing such an important date” is belied by the scheduling entries. While counsel

argued that she received a significant amount of discovery, she further asserted that she

“never intended to proceed to trial and therefore never prepared for trial.” Given that

Goss was on notice that “any plea taken after the final resolution conference [would] only -35-

be accepted as charged in the indictment,” we see no abuse of discretion in the trial

court’s denial of the motion to continue the 2018 case on the day of trial. For the same

reason, we conclude that Goss was not entitled to waive his speedy trial rights on the day

set for trial.

{¶ 47} Moreover, Goss was not entitled to findings of fact and conclusions of law.

Crim.R. 12 governs in part motions before trial, and section (F) provides that, where

“factual issues are involved in determining a motion, the court shall state its essential

findings on the record.” The court denied the motion to continue the 2018 case (thereby

denying the State’s motion for joinder), because the request was based upon the parties’

ongoing plea negotiations in violation of the court’s rule.

{¶ 48} Regarding the trial court refusal to allow Goss to substitute counsel, we

note:

Factors to consider in deciding whether a trial court erred in denying

a defendant's motion to substitute counsel include “the timeliness of the

motion and whether there was a conflict between the attorney and the client

that was so great that it resulted in a total lack of communication preventing

an adequate defense.” State v. Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-

57, 744 N.E.2d 1163, quoting U.S. v. Jennings, 83 F.3d 145, 148 (6th

Cir.1996). “In addition, courts should ‘balanc[e] * * * the accused’s right to

counsel of his choice and the public’s interest in the prompt and efficient

administration of justice.’ ” Id. at 342-343. The decision of whether to grant

a defendant’s motion for substitution of counsel is confided to the sound

discretion of the trial court. Wheat [v. United States], 486 U.S. at 164, 108 -36-

S.Ct. at 1700, 100 L.Ed.2d at 152.

Breneman, 2d Dist. Champaign No. 2010 CA 18, 2012-Ohio-2534, at ¶ 14.

{¶ 49} Goss’s pro se motion to replace counsel was filed on the day of trial while

Goss was represented by counsel. Goss asserted that he did not want to proceed to

trial, and defense counsel indicated that Goss intended to enter his pleas. The transcript

of the proceedings does not reflect a conflict so great that it resulted in a total lack of

communication between Goss and defense counsel. Counsel for Goss represented to

the court that she had reviewed the discovery with Goss and answered his questions.

After a recess to allow Goss to “share” with defense counsel information that he felt she

needed to know that he had not yet told her, Goss represented to the court that he had

done so and that defense counsel had answered his questions. Based upon the

foregoing, we cannot conclude that the trial court abused its discretion in denying Goss’s

pro se motion to substitute counsel.

{¶ 50} Regarding Goss’s assertion that the trial court abused its discretion in

setting a plea cut-off date of January 18, 2019, we note that the court so advised the

parties by written entries on December 7, 2018, and January 11, 2019, in emphasized

text. In State v. Botts, 2d Dist. Greene No. 2018 CA 41, 2019-Ohio-3801, this Court

concluded that the trial court’s pretrial order, which stated, “ ‘[a]bsent any extenuating

circumstances, any plea taken after the final pretrial will only be accepted as charged in

the indictment,’ * * * reflects a general as opposed to an absolute policy that allows the

trial court to determine whether the circumstances justify a deviation from the policy.” Id.

at ¶ 11. This Court concluded that it was reasonable for the trial court to have a general

policy against the acceptance of a negotiated guilty plea on the date of a scheduled trial. -37-

Id. We cannot conclude that the trial court abused its discretion in determining that the

circumstances herein did not justify a deviation from the general rule; the parties were on

notice regarding the rule, and defense counsel sought a continuance on the date set for

trial “only so that Defendant can accept the State’s plea offer.” Significantly, defense

counsel did not argue or suggest that the second indictment played a critical role in the

continued negotiations and/or any purported trial preparation.

{¶ 51} We next address Goss’s arguments that his plea was not knowing,

intelligent and voluntary.

{¶ 52} Crim.R. 11 provides in relevant part as follows:

(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 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 -38-

defendant's guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.

{¶ 53} This Court recently noted:

In order to be constitutionally valid and comport with due process, a

guilty plea must be entered knowingly, intelligently, and voluntarily. State v.

Bateman, 2d Dist. Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

“In order for a plea to be knowing, intelligent, and voluntary, the trial court

must comply with Crim.R. 11(C).” (Citation omitted.) State v. Russell, 2d

Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6.

“Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. “The court must make

the determinations and give the warnings that Crim.R. 11(C)(2)(a) and (b)

require and must notify the defendant of the constitutional rights that

Crim.R. 11(C)(2)(c) identifies.” State v. Bishop, [156 Ohio St.3d 156, 2018-

Ohio-5132, 124 N.E.3d 766,] ¶ 11, citing Veney at ¶ 13.

“While the court must strictly comply with the [constitutional]

requirements listed in Crim.R. 11(C)(2)(c), the court need only substantially

comply with the [non-constitutional] requirements listed in Crim.R.

11(C)(2)(a) and (b).” Id., citing Veney at ¶ 18. “Substantial compliance

means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is -39-

waiving.” (Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564

N.E.2d 474 (1990).

“Crim.R. 11 provides that, before accepting a guilty plea, a court must

‘[d]etermin[e] that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved[.]’ ” State v. Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-

119, ¶ 6. “The ‘maximum penalty’ includes any mandatory post-release

control sanction[.]” Id. at ¶ 7.

State v. Jones, 2d Dist. Clark No. 2018-CA-63, 2019-Ohio-303, ¶ 8-11.

{¶ 54} As this Court has further noted:

In State v. Bird, 81 Ohio St.3d 582, 584, 1998-Ohio-606, the Ohio

Supreme Court stated that [on a no contest plea,] “the trial court is required

to find the defendant guilty of the charged offense if the indictment alleges

sufficient facts to state a felony offense, i.e., if the indictment is sufficient to

state an offense.” State v. Landgraf, Montgomery App. No. 21141, 2006-

Ohio-838. The requirements regarding no contest pleas in misdemeanor

cases are different than the rules in felony cases. Pursuant to R.C. §

2937.06(A)(1), in misdemeanor cases, the trial court is required to hear an

explanation of the circumstances surrounding the offense and then

determine whether the facts are sufficient to convict on a misdemeanor

offense following a no contest plea. In a felony case, however, Crim.R. 11

permits a plea of no contest to a criminal charge, and does not require an

explanation of the circumstances. Instead, the rule permits the court to -40-

enter judgment only based upon the facts as alleged in the indictment.

State v. Adams, 2d Dist. Montgomery No. 22493, 2009-Ohio-2056, ¶ 14.

{¶ 55} We initially note that Goss’s characterization of the “atmosphere of

intimidation, pressure, and a lack of fundamental fairness” is belied by the record.

Defense counsel represented to the court that Goss “never wanted to go to trial,” that he

understood that his plea needed to be “voluntarily made, intelligently made,” and that she

had discussed that with him “in detail.” When Goss asserted that he did not “feel like

[he] should have to take, push a No Contest Open plea for this case at this point,” the

court advised him, “you don’t have to plead. * * * We can have a trial.” When Goss

advised the court that he “could sign a speedy trial waiver,” the court indicated that “we’re

beyond that today.”

{¶ 56} Goss advised the court that he and defense counsel had discussed the

nature of the charges against him and that he understood them. In the course of the

exchange regarding the facts underlying the charges, Goss indicated that, having

reviewed the evidence against him, he felt comfortable entering his no contest pleas.

Defense counsel represented to the court that she had gone over all the discovery that

she had received from the State with Goss and had answered all of his questions. Goss

advised the court, after a recess, that he had provided all of the information to defense

counsel so that she could properly represent him, and that she had answered all of his

questions. Goss indicated that he was not under the impression that he had no choice

but to enter his pleas, and he indicated, “[n]obody’s rushed me.” When asked if the felt

“pressured, coerced, compelled, manipulated, or frightened in making his decision” to

plead no contest, Goss responded, “No.” -41-

{¶ 57} The transcript reflects that the court advised Goss of each of the

constitutional rights he waived by entering his plea, and Goss indicated his understanding

thereof.

{¶ 58} Finally, in accepting Goss’s plea, the court indicated that, based on its

review of the bill of particulars in this case and the indictments, it found Goss guilty as to

each count beyond a reasonable doubt.

{¶ 59} Goss correctly points out, however, that the trial court advised him at the

plea hearing that, in the 2019 case, it would “impose monitored time, which basically

results in no consequence to you in effect,” and that Goss would “not be serving a prison

sentence in [the 2019 case] * * * and I’ll just commit to that right now; all right?” Goss

responded, “I understand that.” The State acknowledges that the trial court sentenced

Goss in the 2019 case to 12 months each on Counts 2 and 3, but it notes that Goss “failed

to raise this sentencing error before the trial court.” According to the State, Goss cannot

show plain error “unless the record indicates that his sentence would clearly have been

different but for the error.”

{¶ 60} As this Court has noted,

* * * “Ordinarily, a failure to bring an error to the attention of the trial

court at a time when the court could correct that error constitutes a waiver

of all but plain error.” State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-

6826, 844 N.E.2d 372, ¶ 22 (2d Dist.), citing State v. Wickline, 50 Ohio St.3d

114, 120, 552 N.E.2d 913 (1990). Plain error does not exist unless the

record indicates that [a defendant’s] sentence would clearly have been

different but for the error. Id. at ¶ 23, citing State v. Long, 53 Ohio St.2d 91, -42-

97, 372 N.E.2d 804 (1987). (Other citation omitted.)

We have previously held that “[i]f the trial court accepts a plea

agreement on the record, it must honor it. If the trial court imposes

anything other than the agreed-upon sentence, the sentence is rendered

void or voidable.” (Citation omitted.) State v. Arde, 190 Ohio App.3d 196,

2010-Ohio-5274, 941 N.E.2d 119, ¶ 18 (2d Dist.). This is the case because

“ ‘[w]hen the trial court promises a certain sentence, the promise becomes

an inducement to enter a plea, and unless that sentence is given, the plea

is not voluntary.’ ” State v. Layman, 2d Dist. Montgomery No. 22307, 2008-

Ohio-759, ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No. CA2001-

12-094, 2002-Ohio-5882, ¶ 18. (Other citation omitted.) “ ‘Accordingly, a

trial court commits reversible error when it participates in plea negotiations

but fails to impose the promised sentence.’ ” Id.

“On remand for a breach of a plea agreement, two remedies are

available, depending on the circumstances of the case. * * * Either the trial

court must sentence appellant in accordance with the plea agreement, or if

it determines such a sentence is no longer appropriate, it must allow

appellant the opportunity to withdraw his guilty plea.” (Citations omitted.)

Bonnell at ¶ 23.

State v. Anderson, 2d Dist. Montgomery No. 26056, 2014-Ohio-4699, ¶ 8-10.

{¶ 61} Based upon the foregoing, we conclude that the trial court committed plain

error in promising Goss that he would not be sentenced to prison in the 2019 case and

then imposing a sentence in that case. Goss’s sentence in the 2019 case (Greene C.P. -43-

No. 2019-CR-2) is reversed, and the matter is remanded to the trial court for the limited

purpose of imposing monitored time for the offenses of which he was found guilty in that

case. In all other respects, the judgment of the trial court in Case No. 2019-CR-2 is

affirmed. The judgment in the 2018 case (Greene C.P. No. 2018-CR-939) is also

affirmed.

WELBAUM, P.J., concurs.

FROELICH, J., concurs:

{¶ 62} I agree with the majority opinion but write separately to address the trial

court’s decision to deny a continuance.

{¶ 63} Under the facts before us, the Breneman factors weighed in favor of

granting a continuance:

1. The length of the delay requested is unclear, but would have been short given

the stage of the plea negotiations;

2. No other continuances of the trial had been requested on the record;

3. There was minimal inconvenience and no prejudice to the litigants, witnesses,

counsel, or the court;

4. The requested continuances were apparently the result of, at worst, defense

counsel’s lack of awareness of the court’s plea policy, which was included in the

scheduling entries filed in each case before counsel was appointed;

5. The defendant, perhaps as opposed to counsel, did not give rise to the request

for a continuance;

6. Both defense counsel and the defendant indicated they were not ready to go -44-

to trial, and the prosecutor agreed to the continuance for the purpose of continued

plea negotiations.

{¶ 64} On the surface, it appears that Goss was faced with a Hobson’s choice of

pleading no contest to all counts as charged or immediately going to trial with an

unprepared attorney that he requested be removed. At the beginning of the plea

colloquy, Goss and the court had the following exchange:

DEFENDANT KENNETH GOSS: I feel like we’ve ran out of time. It’s not

my fault. It’s – I don’t want to blame, but it’s my Counsel’s fault we’ve ran

out of time, and I just don’t – I don’t feel like I should have to take, push a

No Contest Open Plea for this case at this point I feel like –

THE COURT: Well, you don’t have to plead. We have a Jury out here.

We can have a trial.

DEFENDANT KENNETH GOSS: I don’t feel like I should have to go to Jury

trial. I feel like I need more – I feel like I should have more time. * * *

(Plea Tr. at 17-18.) The court noted that Goss’s speedy trial time was “coming to a

close,” to which Goss offered to waive his speedy trial rights. The court responded that

“we’re beyond that today. We have a Jury out here waiting to try this case or we’re going

to do a plea.” (Plea Tr. at 19.) Goss replied: “Well, I guess we’ll take a plea. I don’t

want to go to Jury trial. I’m facing quite a bit of time if found guilty --.” (Plea Tr. at 19.)

Goss subsequently stated during the Crim.R. 11 colloquy that no one had “rushed” him

or coerced him to enter his plea (Pleas Tr. at 28), but it arguably could be found that the

lack of a continuance resulted in a less than a voluntary plea.

{¶ 65} However, in the unique facts of the case, I would find that the denial of the -45-

requested continuance was harmless. Goss’s counsel and the prosecutor explicitly

stated that they never intended to go to trial, but wanted more time for plea negotiations.

The parties had apparently reached an agreement that the State would recommend a

four-year sentence (Plea Tr. at 7-9, 16, 45), but such an agreement as to sentencing

could not be presented to the court if a plea hearing were held that day. Nevertheless,

the trial court made clear that the prosecution was free to request a four-year sentence

for Goss to the presentence investigator or at sentencing. There is nothing in the record

to suggest that continued plea negotiations would have resulted in an agreed – rather

than a recommended -- four-year sentence. Accordingly, the trial court’s denial of the

continuance did not preclude Goss or the State from presenting the recommended

sentence at a later time to which they had agreed. Moreover, even if the trial court had

accepted the State’s recommendation at the plea hearing, the trial court still would not

have been bound by the parties’ recommendation.

Copies sent to:

David M. Morrison Joe Cloud Hon. Stephen Wolaver