State v. McGill

2020 Ohio 575

• Court: Ohio Court of Appeals
• Decided: February 20, 2020
• Docket: 108469
• Status: Published

Opinion

[Cite as State v. McGill, 2020-Ohio-575.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108469 v. :

JACQUEZ R. MCGILL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 20, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-631610-A and CR-18-632809-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee.

Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.

RAYMOND C. HEADEN, J.:

Defendant-appellant Jacquez R. McGill (“McGill”) appeals his

convictions for attempted murder and felonious assault following a guilty plea. For

the reasons that follow, we affirm. Procedural and Substantive History

On August 17, 2018, McGill was indicted in Cuyahoga C.P.

No. CR-18-631610-A on one count of attempted murder in violation of R.C. 2923.02

and 2903.02(A), one count of felonious assault in violation of R.C. 2903.11(A)(1),

one count of felonious assault in violation of R.C. 2903.11(A)(2), one count of

tampering with evidence in violation of R.C. 2921.12(A)(1), one count of having

weapons while under disability in violation of R.C. 2923.13(A)(3), one count of

having weapons while under disability in violation of R.C. 2923.13(A)(2), one count

of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(B),

and one count of carrying a concealed weapon in violation of R.C. 2923.12(A)(2).

The attempted murder and felonious assault counts each carried one- and three-

year firearm specifications, and the remaining counts each carried forfeiture

specifications.

These charges arose from an incident on July 6, 2018, in which McGill

followed the victim into a convenient store, followed the victim out of the store and

across the parking lot, and fired multiple shots aimed at the victim’s head at point

blank range. The victim ducked; one shot grazed the side of his head and another

shot struck him in the ribs.

On September 28, 2018, McGill was indicted in Cuyahoga C.P.

No. CR-18-632809-A on two counts of felonious assault in violation of

R.C. 2903.11(A)(2), one count of felonious assault in violation of R.C. 2903.11(A)(1),

one count of having weapons while under disability in violation of R.C. 2923.13(A)(3), and one count of having weapons while under disability in

violation of R.C. 2923.13(A)(2). All of the counts carried forfeiture specifications,

and the felonious assault counts each carried one-, three-, and five-year firearm

specifications. These charges arose from an incident on July 28, 2018, in which

McGill pulled up in a vehicle outside of a bar and opened fire on two men, striking

one of the men in the leg.

McGill initially entered a plea of not guilty to all charges. On

March 18, 2019, following extensive plea negotiations with the state, McGill

retracted his not guilty pleas. In CR-18-631610-A, McGill pleaded guilty to an

amended count of attempted murder with a three-year firearm specification, an

amended count of felonious assault, one count of tampering with evidence with

forfeiture specifications, one count of having weapons while under disability with

forfeiture specifications, and an amended count of carrying concealed weapons with

forfeiture specifications. In CR-18-632809-A, McGill pleaded guilty to an amended

count of felonious assault with a three-year firearm specification and forfeiture

specifications, an amended count of felonious assault with forfeiture specifications,

and one count of having weapons while under disability. The remaining counts and

specifications in both cases were dismissed. The parties agreed to a sentencing

range between 10 and 17 years in exchange for McGill’s plea. The court

acknowledged the agreed sentencing range and informed McGill that it would

sentence him within that range. The court also informed McGill that, pursuant to

his plea agreement, he would not be eligible for judicial release. On March 25, 2019, the court held a sentencing hearing. The court

heard from a detective who investigated both cases, the prosecutor, defense counsel,

and McGill. The court ultimately sentenced McGill to an aggregate term of 15 years

in prison.

McGill appeals, presenting two assignments of error for our review.

Law and Analysis

In his first assignment of error, McGill argues that because he did not

understand that he would forgo eligibility for judicial release pursuant to the terms

of his plea agreement, his guilty plea was not knowingly, intelligently, and

voluntarily entered and must be vacated. In his second assignment of error, McGill

argues that his plea should be vacated because the trial court did not advise him of

his right to testify at trial. Because both assignments of error concern the validity of

McGill’s guilty plea, we will address them together.

The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he or she can make a voluntary and intelligent

decision regarding whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-

480, 423 N.E.2d 115 (1981). “The standard for reviewing whether the trial court

accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review.”

State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

In order to ensure that a defendant enters a plea knowingly,

voluntarily, and intelligently, a trial court must engage in an oral dialogue with the defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527,

660 N.E.2d 450 (1996). Crim.R. 11(C) outlines the trial court’s duties in accepting

guilty pleas:

(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 defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

Trial courts must strictly comply with the requirements related to the

waiver of constitutional rights under Crim.R. 11(C)(2)(c) in conducting plea

colloquies, and a trial court’s failure to inform a defendant of any right in that

subsection invalidates the plea. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, 897 N.E.2d 621, ¶ 1. “Strict compliance does not require an exact recitation

of the precise language of the rule, but instead focuses on whether the trial court explained or referred to the right in a manner reasonably intelligent to that

defendant.” State v. Schmick, 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, ¶ 8.

After a thorough review of the plea hearing, we conclude that the trial

court fully complied with Crim.R. 11 in ensuring that McGill’s plea was knowing,

intelligent, and voluntary.

Here, the record indicates the court conducted a full Crim.R. 11

hearing before accepting McGill’s plea. At the plea hearing, the court discussed the

charges McGill faced and the effects of McGill’s plea as it related to the charges.

Additionally, the following discussion took place regarding flat time and judicial

release:

DEFENSE COUNSEL: * * * well, he wants to accept the plea, but he — I think he needs to understand that even without the plea that the State is offering that whatever time he would receive is flat time. And even though there’s a range that the State is offering and the Court is accepting, that’s still flat time too, it just depends on the number.

THE COURT: Okay. So Mr. McGill, do you — do you know what your attorney means when he says flat time?

MCGILL: Whatever number is picked, I guess.

THE COURT: Yes. Like so there’s no time off for good behavior, you don’t get out early depending on your behavior at the institution. And then as a term of this plea deal there would be no judicial release. So that you couldn’t petition the Court to ask for judicial release.

MCGILL: So with that — you saying with this plea deal I won’t be granted a judicial?

THE COURT: It’s an agreed sentence. Which means you would agree to the flat time, to the time, whatever prison sentence that I would impose between the range of 10 and 17 years. And by agreeing to that, you would agree to do any time that I sentence you within that range. MCGILL: Yes, but I’m asking, Your Honor, is like after my mandatory time, would I be able — would I be granted a judicial, is what I’m asking?

THE COURT: Well, I would never — first of all, I would never promise that I would grant a judicial release, not from here. But it’s my understanding that as terms of the plea that it would not be — he would not be eligible for judicial release; is that correct? I don’t want to put words in the State of Ohio’s mouth.

PROSECUTOR: Your Honor, that is correct.

THE COURT: Okay. So that is correct, Mr. McGill. You would do — if I sentence you to 10 years, you would serve 10 years. If I sentenced you to 12, you would do 12. And then anywhere between 10 and 17, you would serve that definite time, and that’s what we mean by flat time. You would also get credit for the days you spent here already on this case, but that’s what we mean by flat time. Do you understand that?

MCGILL: Yes, I understand, Your Honor. I just — I just thought that the only time that would be mandatory would be the mandatory time. I don’t have an understanding of how the whole sentence is mandatory.

THE COURT: It becomes mandatory — it doesn’t really become mandatory. The firearm specification is the mandatory portion of the time. And then under the statute a certain percentage of the first degree felony or the high level felony offenses become mandatory for purposes of judicial release. But because this case, if it resolves under a negotiated plea bargain, you would agree that you would serve a prison sentence ranging from 10 to 17 years, and whatever term that I sentence you on it is your agreement to serve that term. You get the benefit of all these other charges and firearm specifications being dismissed in exchange for a specific sentence. And that’s what I would impose at the time of your sentencing. You kind of can’t have it both ways.

Following this explanation, the court asked McGill if he wished to

accept the state’s plea offer, and he indicated that he did. Subsequently, the court

engaged McGill in a thorough Crim.R. 11 colloquy. McGill advised the court that he

was not under the influence of any medication or drugs. The court then thoroughly reviewed the constitutional rights that McGill was waiving and made sure that he

understood that he was waiving those rights by pleading guilty. With respect to his

right not to testify at trial specifically, the following exchange took place:

THE COURT: Do you understand that you have the right not to testify at the time of your trial, and that no one can use that against you and that you’re giving up that right?

MCGILL: Yes, Your Honor.

McGill also confirmed that no threats or promises had been made to induce him to

enter a guilty plea.

The court again reviewed the nature of the charges with McGill, as

well as the maximum penalty for each charge. McGill confirmed that he was

satisfied with the representation he had received from his attorneys. McGill also

confirmed that he understood the terms of his plea as laid out by the court. Finally,

the court confirmed once more that McGill understood that he would serve whatever

prison term, between 10 and 17 years, that the court imposed, and McGill stated that

he understood this. The trial court accepted McGill’s guilty plea, finding that it was

knowingly, intelligently, and voluntarily entered after he was fully advised of his

constitutional rights.

McGill maintains that his plea was invalid because he did not

understand the effect of his plea on his eligibility for judicial release and because he

was not advised of his right to testify at trial. We disagree. The trial court is not

obligated to go beyond the requirements of Crim.R. 11 prior to accepting a guilty

plea. State v. Hudson, 8th Dist. Cuyahoga No. 105177, 2017-Ohio-7406, ¶ 13, citing State v. Williams, 7th Dist. Mahoning No. 11MA131, 2012-Ohio-6277, ¶ 39. A guilty

plea is not rendered invalid because the defendant was not informed of a right or

waiver not enumerated in Crim.R. 11. State v. Railing, 8th Dist. Cuyahoga

No. 67137, 1994 Ohio App. LEXIS 4703, 2 (Oct. 20, 1994). The trial court’s thorough

explanation of McGill’s rights was sufficient for strict compliance with Crim.R. 11.

The court used the language in Crim.R. 11 in informing McGill that he was waiving

his right not to testify at trial, thus satisfying the rule’s requirements. Although

explicitly informing a defendant that they have the choice to testify at trial or not

would undoubtedly provide them with a more complete understanding of their

constitutional rights, such an explanation goes beyond the requirements of

Crim.R. 11. The absence of this explanation, therefore, does not invalidate McGill’s

knowing, intelligent, and voluntary guilty plea.

Similarly, Crim.R. 11 generally does not require courts to inform a

defendant of his eligibility for judicial release. Where this eligibility is incorporated

into a plea agreement, however, a defendant’s guilty plea may be invalidated if he or

she is given misinformation regarding judicial release. State v. Williams, 8th Dist.

Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, ¶ 15, citing State v. Ealom,

8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365, citing State v. Bush, 3d Dist. Union

No. 14-2000-44, 2002-Ohio-6146.

McGill does not argue that the trial court misinformed him regarding

his ineligibility for judicial release. Further, a review of the record shows that the

court informed McGill repeatedly that he would be ineligible for judicial release. McGill argues that the last thing he said on the record regarding judicial release is

that he did not understand it. A review of the plea hearing transcript in its entirety

shows that, although there was some confusion in the discussion of judicial release,

the court repeatedly confirmed that McGill understood the terms of his plea

agreement. In particular, prior to accepting his plea, the court confirmed with

McGill that he understood that whatever his sentence was, between 10 and 17 years,

he would serve the amount of time that the court imposed. McGill confirmed that

he understood this. Therefore, it appears that McGill had an understanding of the

effect of his guilty plea.

Because the trial court fully complied with Crim.R. 11 and McGill

entered his guilty plea knowingly, intelligently, and voluntarily, we overrule his

assignments of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR