[Cite as State v. McCarty, 2016-Ohio-4734.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2015-P-0064 - vs - :
KEITH A. McCARTY, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR 00331.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Ruth R. Fischbein-Cohen, 3552 Severn Road, #613, Cleveland Heights, OH 44118 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} After entering a plea of guilty to six counts of sexual battery, each a felony
of the third degree, appellant, Keith A. McCarty, was sentenced to an aggregate term of
24 years imprisonment. He now appeals from the Portage County Court of Common
Pleas acceptance of his guilty plea, the judgment overruling his motion to withdraw his
guilty plea, his sentence, and he challenges his counsel’s effectiveness. For the
reasons that follow, we affirm the trial court’s judgments. {¶2} On May 8, 2015, appellant was indicted by the Portage County Grand Jury
on 24 counts. The charges included: two counts of rape of a child less than 13 years
old, in violation of R.C. 2907.02(A)(1)(b) and (B); four counts of rape, in violation of R.C.
2907.02(A)(2); six counts of sexual battery, in violation of R.C. 2907.03(A)(5); six counts
of gross sexual imposition, in violation of R.C. 2907.05; and six counts of unlawful
conduct with a minor, in violation of R.C. 2907.04. Appellant pleaded not guilty to all
charges.
{¶3} The matter proceeded to jury trial on May 27, 2015. The morning of trial,
the prosecutor, defense counsel, and appellant met with the trial judge in chambers to
make a record of the plea negotiations. The state summarized two separate offers that
included various third- and/or third- and fourth-degree felonies which appellant had
rejected. The judge confirmed that defense counsel had discussed the ramifications of
each offer, as well as the consequences of being found guilty after trial. Appellant
stated he understood he was facing the potential of life imprisonment if he were found
guilty; he still stated he did not wish to plead.
{¶4} The matter proceeded to jury trial and the state’s initial two witnesses
were Ravenna police officers who took the victim’s information and statement when she
arrived at the station to report the abuse. Both officers testified the victim was reluctant
to provide details and made little eye contact. The victim reported unwanted sexual
occurrences over the past eight years by her mother’s boyfriend, appellant. She further
provided a brief written statement and the information was forwarded to detectives.
{¶5} The victim testified she was a student at Kent State University at the time
of the trial. Before attending school, she was involved in a heated argument with her
2 mother when she disclosed appellant’s sexual abuse for the first time via text message.
She asserted the abuse began when she was 10 years old and continued until she was
16 years old.
{¶6} The victim stated she, her mother, her siblings, and appellant lived
together as a family in three separate locations from the time her mother began her
relationship with appellant. She testified appellant was “the man of the house” with
authority to punish the children, but not spank.
{¶7} The victim testified that between 2006 and 2013, appellant sexually
abused her in a range of ways. The abuse would commence with appellant sitting on
the edge of the victim’s bed, where he would rub her stomach and legs. The rubbing
ultimately progressed to appellant placing his hand in the victim’s pants where he would
digitally penetrate her. The victim was unable to recall how many times this occurred.
{¶8} Eventually the abuse escalated to appellant engaging in oral as well full
sexual intercourse with the victim. The victim was unable to detail the amount of times
appellant sexually accosted her and was not clear on the frequency. She testified she
did not invite or desire appellant’s advances; she stated she did not tell anyone because
appellant was the primary bread winner of the family and, in any event, she “didn’t know
what to say * * * didn’t understand what was going on [and] * * * didn’t want anybody to
know.” During her junior year of high school, the victim testified she finally told two
friends about the sexual abuse. She, however, requested that her friends not disclose
the abuse to anyone.
3 {¶9} On cross-examination, the victim denied disclosing the abuse to hurt her
mother; instead, she admitted she reported the sexual abuse to change her mother’s
view of appellant.
{¶10} Defense counsel compared the victim’s testimony and her statement to
police and noted a variety of inconsistencies including the reported length of abuse and
her age relating to the first and last time intercourse occurred. Defense counsel also
challenged the victim’s memories of dates and addresses.
{¶11} Defense counsel subsequently objected to the state’s next two witnesses,
friends of the victim. The parties agreed that the limited purpose of the friends’
testimony would be to establish a time frame and not the details of the vicim’s
disclosure. Both friends testified in this limited fashion. The proceedings recessed for
the evening.
{¶12} On the following morning, “in the middle of a jury trial, and as a result of
the victim’s testimony,” defense counsel confirmed appellant “now wants to enter a
plea.” Appellant entered a written plea of guilty to counts seven through twelve, six
counts of sexual battery, in violation of R.C. 2907.03(A)(5), all felonies of the third
degree. On May 28, 2015, after a full plea colloquy, the trial court accepted the plea
and nolled the remaining counts of the indictment. The matter was referred to the Adult
Probation Department for a presentence investigation report.
{¶13} On June 1, 2015, appellant filed a pro se motion to withdraw his guilty
plea. In the motion, he alleged he “was misinformed and coerced to make such deal.”
The trial court scheduled a hearing on the motion for June 29, 2015.
4 {¶14} Appellant failed to appear at the hearing; and, it was discovered, he cut off
his electronic monitoring bracelet and fled the jurisdiction because he “didn’t want to get
sentenced.” Appellant was ultimately apprehended and the matter proceeded to
hearing on July 31, 2015. Appellant testified in support of his motion, asserting he was
lied to by his defense counsel and coerced into accepting the state’s plea offer. The
trial court denied the motion and proceeded to sentencing. After declaring appellant a
Tier III sex offender, the trial court imposed consecutive terms of 48-months
imprisonment on each of the six felonies. This appeal follows.
{¶15} Appellant’s first assignment of error provides:
{¶16} “Keith McCarty was deprived of his due process right when the trial court
accepted his plea which was in violation of Crim.R. 11.”
{¶17} Under this assignment of error, appellant contends his plea was not
entered voluntarily because, at the time he made his decision, he “felt he had no other
choice.” He claims that, in this state of mind, counsel noted the judge “told him that he
had better plead” and advised him the judge tends to issue harsh sentences. As a
result of these purported “scare tactics,” he accepted and entered the plea.
{¶18} When determining whether the trial court has met its obligations under
Crim.R. 11 in accepting a plea, appellate courts have distinguished between
constitutional and non-constitutional rights. With respect to the constitutional rights, a
trial court must advise a defendant that, by pleading guilty, he or she is waiving: “(1) the
right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory
process to obtain witnesses, (4) the right to require the state to prove guilt beyond a
reasonable doubt, and (5) the privilege against compulsory self-incrimination.” State v.
5 Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, syllabus. A trial court must strictly comply
with those provisions of Crim.R. 11(C) that relate to the waiver of constitutional rights
and the failure to do so invalidates the plea. Veney, supra; see also State v. Lavender,
11th Dist. Lake No. 2000-L-049, 2001 Ohio App. LEXIS 5858, *11 (Dec. 21, 2001).
{¶19} Alternatively, the remaining non-constitutional rights set forth under
Crim.R. 11 require the court to: (1) determine the defendant understands the nature of
the charge(s) and possesses an understanding of the legal and practical effect(s) of the
plea; (2) determine the defendant understands the maximum penalty that could be
imposed; and (3) determine that the defendant is aware that, after entering a guilty plea
or a no contest plea, the court may proceed to judgment and sentence. See Crim.R.
11(C)(2)(a) and (b); see also State v. Nero, 56 Ohio St.3d 106, 108 (1990). Although
literal compliance with Crim.R. 11 as it pertains to the non-constitutional rights is
preferred, an advisement substantially complying with the letter of the rule is legally
sufficient. Nero, supra. A court substantially complies where the record demonstrates
the defendant, under the totality of the circumstances, subjectively understood the
implications of the plea and the rights waived. Id.
{¶20} Furthermore, even when a trial court fails to substantially comply with the
non-constitutional requirements of Crim.R. 11(C), such an error is reversible if a
defendant demonstrates he or she was prejudiced by the lack of compliance. State v.
Johnson, 40 Ohio St.3d 130, 134 (1988); see also Crim.R. 52(A); Crim.R. 33. The test
for prejudice is “whether the plea would have otherwise been made.” Nero, supra.
{¶21} At the plea hearing, the trial judge specifically inquired whether appellant,
by entering the plea, understood that he was voluntarily waiving: his right to a jury trial;
6 his right to confront witnesses; his right to cross examine witnesses; his right to
subpoena witnesses; as well as his right to require the prosecutor to prove his guilt
beyond a reasonable doubt. Appellant expressly stated he understood he was
voluntarily waiving each of the foregoing rights.
{¶22} The trial judge further explained the specific charges to which appellant
was pleading and inquired whether appellant understood the nature of these charges.
Appellant stated he did. The court further advised appellant of the maximum penalty of
the charge as well as the sexual offender classification and post-release control
sanctions to which he would be subject. Appellant stated he understood. Finally, the
court asked appellant whether he understood that, after accepting his guilty plea, it may
immediately proceed with judgment and sentencing. Appellant stated he did.
{¶23} There is nothing in the record to indicate appellant had been pressured
into pleading to the charges or that his autonomy had, in any way, been compromised
by any outside influence. To the contrary, in an effort to ensure appellant understood
his rights and that he was knowingly and voluntarily waiving the same, the court asked
appellant if he had any questions. Appellant responded in the negative. The court then
asked appellant “just for the record, we’re almost at the end of a jury trial, are you sure
you do not want to continue?” Appellant replied, “I don’t want to continue.”
{¶24} The record demonstrates the trial court thoroughly advised appellant of
both his constitutional and non-constitutional rights. From the colloquy, it is clear that
appellant knowingly, voluntarily, and intelligently, entered the guilty plea. We perceive
no error in the trial court’s acceptance of the same.
{¶25} Appellant’s first assignment of error lacks merit.
7 {¶26} Appellant’s second assignment of error alleges:
{¶27} “Keith McCarty was denied his constitutional guarantee to effective
assistance of counsel.”
{¶28} Under this assigned error, appellant contends his trial counsel was
ineffective because he failed to diligently prepare for trial. He further argues counsel
was ineffective by using alleged “scare tactics” in advising him to accept the state’s offer
of a guilty plea.
{¶29} For appellant to prevail on his claim of ineffective assistance of counsel,
we must first conclude that counsel’s performance fell measurably below that which
might be expected from an ordinary fallible attorney. Second, we must conclude that
appellant suffered prejudice as a result of counsel’s deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish prejudice, appellant must show, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. State v. Seiber, 56 Ohio St.3d 4, 11 (1990). A reviewing court indulges a
strong presumption that counsel's conduct is within the wide range of reasonable
professional representation. Strickland, supra, at 689. An attorney's arguably reasoned
strategic or tactical decisions do not generally constitute ineffectiveness. State v.
Phillips, 74 Ohio St.3d 72, 85 (1995).
{¶30} With the foregoing standard in mind, appellant waived any issue relating to
counsel’s ineffectiveness prior to his voluntary entry of his guilty plea. See, e.g., State v.
Platt, 11th Dist. Portage No. 89-P-2065, 1990 Ohio App. LEXIS 3508, *5 (Aug.17, 1990)
(“a plea of guilty waives all defects in the case except lack of subject matter jurisdiction
of the court[.]”). Once a guilty plea is entered before the trial court and judgment is
8 rendered on the basis of that plea, an appealing party’s ability to challenge the judgment
on appeal is significantly narrowed. Id. To wit, a criminal defendant may only contest
(1) the subject matter jurisdiction of the trial court or (2) whether the plea was entered
knowingly, voluntarily, and intelligently, as required by Crim.R. 11. Id.
{¶31} Appellant’s allegations of ineffectiveness, i.e., counsel’s purported lack of
trial preparation, his alleged dishonesty, as well as counsel’s alleged lack of diligence
and use of so-called “scare tactics” to compel appellant to enter his plea of guilty, relate
to counsel’s actions occurring either prior to or during the course appellant’s truncated
trial. None of the allegations are jurisdictional in nature. Accordingly, appellant’s
voluntary plea of guilty waived these arguments on appeal.
{¶32} Appellant’s second assignment of error lacks merit.
{¶33} We shall address appellant’s fourth assignment of error next; it provides:
{¶34} “The trial court erred in denying Keith McCarty’s Motion to vacate guilty
plea.”
{¶35} Appellant moved to vacate his guilty plea because, prior to pleading, he
“felt his lawyer totally lost it and that he had no choice left” but to enter the plea. He
contends he only did so because he believed his counsel had essentially conceded
defeat. Appellant further emphasizes counsel used “scare tactics” to compel the plea;
to wit, he contends counsel advised him that the trial judge wanted him to plead and, if
he continued with trial, the judge had an alleged predisposition for meting out harsh
sentences.
{¶36} Crim.R. 32.1 provides a means for a criminal defendant to withdraw a
guilty plea and states, “[a] motion to withdraw a plea of guilty or no contest may be
9 made only before sentence is imposed; but to correct manifest injustice the court after
sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea.”
{¶37} Here, appellant moved the court to withdraw the guilty plea prior to
sentencing. While motions to withdraw guilty pleas before sentencing should be freely
allowed, a court is not required to grant such a motion as “the right to withdraw a plea is
not absolute.” State v. Ziefle, 11th Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621,
¶9, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992). In entering judgment on such a
motion, a trial court must hold a hearing and assess whether “there is a reasonable and
legitimate basis for the withdrawal of the plea.” Ziefle, supra. After considering the basis
of the motion, the trial court’s decision to grant or deny a presentence motion to
withdraw a guilty plea is within its sound discretion. Ziefle, supra. Accordingly, we
review a trial court’s judgment on a motion to withdraw a guilty plea for an abuse of
discretion. State v. Gibbs 11th Dist. Trumbull No. 98-T-0190, 2000 Ohio App. LEXIS
2526, *6-*7 (June 9, 2000). An abuse of discretion occurs if the trial court fails to
“‘“exercise sound, reasonable, and legal decision-making.”’” State v. Sawyer, 11th Dist.
Portage No. 2011-P-0003, 2011-Ohio-6098, ¶72, quoting State v. Beechler, 2d Dist.
Clark No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary (8
Ed.Rev.2004) 11.
{¶38} Generally, this court has applied the four-factor test set forth in State v.
Peterseim, 68 Ohio App.2d 211 (8th Dist.1980), to determine whether a trial court has
abused its discretion in denying a presentence motion to withdraw a plea. State v.
Parham, 11th Dist. Portage No. 2011-P-0017, 2012-Ohio-2833, ¶ 19. Under Peterseim,
10 a trial court does not abuse its discretion in denying a motion to withdraw a plea: (1)
where the defendant is represented by competent counsel, (2) where the defendant was
afforded a full hearing, pursuant to Crim. R. 11, before he or she entered the plea, (3)
when, after the motion to withdraw is filed, the defendant is afforded a complete and
impartial hearing on the motion, and (4) where the record reveals that the court gave full
and fair consideration to the defendant’s motion.1 Id. at paragraph three of the syllabus.
{¶39} Appellant does not contest he received a full and impartial hearing or that
the court gave fair consideration to his request; instead, he asserts he was neither
represented by competent counsel, nor was he accorded a full Crim.R. 11 hearing. We
have already determined appellant knowingly and voluntarily entered his guilty plea,
during a complete Crim.R. 11 hearing, under his first assignment of error. We shall
therefore confine our analysis to appellant’s assertion that he was not represented by
competent counsel prior to entering his plea.
{¶40} Although appellant testified at the plea withdrawal hearing that he felt
coerced to enter the plea of guilty because of certain scare tactics his counsel
employed, the record of the plea hearing does not support this allegation. During the
plea colloquy with the court, appellant expressly stated that he had not been coerced or
threatened, in any way, into entering his plea. Appellant stated he had reviewed all
aspects of the plea agreement with his attorney and had signed the agreement
voluntarily and of his own free will. Moreover, prior to accepting the plea, the court
1. The first factor of the Peterseim test asks a court to determine whether a defendant moving to withdraw his or her guilty plea was represented by “highly competent” counsel. The Sixth Amendment guarantees competent counsel; moreover, absent evidence to the contrary, a properly licensed attorney is presumed competent. Because reasonable competency is the standard against which due process is measured, the adjective “highly” is either superfluous or meaningless and accordingly adds nothing to the analysis. In the context of a presentence motion to withdraw a guilty plea, therefore, it follows that we need only assess whether counsel’s representation passes constitutional muster.
11 reminded appellant that the jury trial was reaching its conclusion and asked appellant if
he was certain he did not wish to finish the trial in lieu of pleading. Appellant responded
firmly and without hesitation: “I don’t want to continue.” Neither appellant’s responses to
the court’s questions nor the manner in which he communicated with the court indicates
he had been pushed into pleading or that his will was overborne by some insidious
outside influence.
{¶41} Moreover, contrary to appellant’s assertions, counsel’s performance
demonstrates he was prepared, diligent, and advanced a reasonable and effective
defense, notwithstanding the severity of the offenses and the difficulties an attorney is
regularly confronted with in defending a case of this nature. During cross-examination,
the victim admitted making accusations against appellant, in part, to change her
mother’s view of him. Moreover, counsel identified various inconsistencies between her
original statement and her testimony. Counsel also underscored that the victim was
unable to offer a great deal of clarity on the type and regularity of activities she alleged
occurred between the ages of 10 and 16.
{¶42} Counsel also successfully limited the testimony from two of the victim’s
friends. At sidebar, defense counsel raised an objection to these witnesses, arguing
that any discussion of the details of the alleged abuse would be hearsay. The court
agreed, ruling the witnesses could only confirm that the victim did disclose abuse to
them during the victim’s junior year. Even if appellant believed counsel was not fully
prepared or had “lost it” after the victim’s testimony, counsel’s performance did not
reflect appellant’s asserted perceptions.
12 {¶43} And, even, assuming arguendo, counsel stated “I don’t know what to do”
during the recess after the victim testified, such a statement does not necessarily
indicate a lack of effort or effectiveness. Counsel’s statement could simply be an
acknowledgement that the witness appeared both strong and credible in light of his
vigorous cross-examination. Regardless of this possibility, the record supports the
conclusion that appellant was represented by competent counsel.
{¶44} Appellant was expressly given the opportunity to continue with trial before
the court accepted his plea. He decisively refused and never expressed misgivings
about counsel’s representation or the circumstances under which he accepted the plea.
Under the circumstances of this case, we conclude the court’s decision to deny the
same was sound and reasonable. Therefore, the trial court did not abuse its discretion
in denying appellant’s motion to withdraw his guilty plea.
{¶45} Appellant’s fourth assignment of error lacks merit.
{¶46} Appellant’s third assignment of error provides:
{¶47} “The trial court erred in rendering consecutive sentences.”
{¶48} Under this assignment of error, appellant asserts the trial court’s
imposition of an aggregate term of 24 years for the six felony-three sexual battery
counts was contrary to the legislature’s intent in enacting felony sentencing statutes and
violated the Eighth Amendment of the United State’s Constitution.
{¶49} In reviewing felony sentences, we apply the standard of review set forth in
R.C. 2953.08(G)(2). That section directs the appellate court “to review the record,
including the findings underlying the sentence” and to modify or vacate the sentence “if
it clearly and convincingly finds * * * (a) [t]hat the record does not support the
13 sentencing court’s findings under division * * * (C)(4) of section 2929.14 * * * of the
Revised Code * * * [or] (b) [t]hat the sentence is otherwise contrary to law.” R.C.
2953.08(G)(2), see also State v. Marcum, ___ Ohio St.3d ___, 2016-Ohio-1002, ¶22.
{¶50} Because the court imposed consecutive sentences, it was required to
make certain findings pursuant to R.C. 2929.14(C)(4). That subsection provides:
{¶51} (4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
{¶52} (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
{¶53} (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
{¶54} (c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶55} Appellant pleaded guilty to six counts of felony-three sexual battery; as
such, appellant could have received a maximum of five years imprisonment on each
count. The trial court sentenced appellant to a term of four years on each count; the
judge ordered these terms to be served consecutively to one another, for an aggregate
term of 24 years imprisonment. Both the record of the sentencing hearing and the
14 judgment entry reflect the trial court considered all appropriate sentencing factors and
made the requisite findings pursuant to R.C. 2929.14(C)(4). Accordingly, there is
nothing to suggest the trial court’s sentence was either contrary to law or ran afoul of
the legislature’s intent in enacting Ohio’s felony-sentencing statutes.
{¶56} Moreover, appellant pleaded guilty to six counts of sexual battery. He
commenced his pattern of abuse when the minor victim was only 10-years old and
continued abusing her over the course of eight years. As the minor victim grew older,
the nature of the sexual abuse escalated. Although appellant denied the allegations at
the hearing on his motion to withdraw, he admitted he failed a polygraph test relating to
the crimes; and, during his guilty plea hearing, he admitted to the truth of the allegations
to which he pleaded. Given the factual background of this case and the severity of the
allegations, we discern nothing cruel or unusual about the ultimate sentence imposed
by the trial court.
{¶57} Appellant’s third assignment of error lacks merit.
{¶58} For the reasons discussed in this opinion, the judgment of the Portage
County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.