State v. Mitchell

2023 Ohio 724

• Court: Ohio Court of Appeals
• Decided: March 10, 2023
• Docket: C-210623
• Status: Published

Opinion

[Cite as State v. Mitchell, 2023-Ohio-724.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210623 TRIAL NO. B-2000233 Plaintiff-Appellee, :

: O P I N I O N. vs. :

RAMON MITCHELL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 10, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Law Office of Michele L. Berry, LLC, and Michele L. Berry, for Defendant- Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} Defendant-appellant Ramon Mitchell pled guilty to misdemeanor

possession of marijuana. Mitchell now appeals his conviction, claiming that his right

to a speedy trial was violated; that his guilty plea is invalid because he pled guilty to a

charge that does not exist under Ohio law; that he received ineffective assistance of

counsel; and that the cumulative effect of these errors requires reversal of his

conviction. For the reasons set forth below, we reject each of Mitchell’s claimed errors

and affirm the judgment of the trial court.

I. Factual and Procedural History

{¶2} On January 12, 2020, Mitchell was arrested following a traffic stop. At

the time of his arrest, he was in possession of a total of 175 grams of marijuana, divided

into multiple baggies. He was also in possession of a digital scale and $9,401 in cash.

Mitchell admitted to police that he occasionally sold marijuana to help finance his own

usage. Mitchell also produced documentation suggesting that he had recently received

a large amount of cash in settlement of a workers’ compensation claim.

{¶3} Mitchell was initially charged in municipal court with possession of less

than 200 grams of marijuana, in violation of R.C. 2925.11, and possession of drug

paraphernalia, in violation of R.C. 2925.14. Both charges are fourth-degree

misdemeanors. The case was referred to the grand jury, which returned an indictment

for trafficking in marijuana, in violation of R.C. 2925.03(A)(2), a fifth-degree felony.

On January 22, Mitchell was released on bond. Mitchell was represented by appointed

counsel throughout these proceedings.

{¶4} Over the following 21 months, three different attorneys from the public

defender’s office withdrew from representation. On October 7, 2021, the court

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appointed Mitchell a fourth attorney from the panel of private attorneys who accept

court appointments. In that same time, two judges recused themselves from hearing

Mitchell’s case. Between September 21 and October 13, 2021, Mitchell filed four pro se

motions asking to have the judge disqualified, to remove his appointed counsel, and

to have his case dismissed on evidentiary and speedy-trial grounds.

{¶5} On October 21, with the advice of newly-appointed counsel, Mitchell

withdrew his outstanding motions and not-guilty plea and entered a plea of guilty to

an amended charge of marijuana possession, as a first-degree misdemeanor. The trial

court sentenced Mitchell to 27 days in the Hamilton County Justice Center, granted

credit for 27 days served, and remitted all costs. This timely appeal followed.

II. Analysis

{¶6} Mitchell raises four assignments of error for our consideration. In his

first assignment of error, Mitchell claims that his right to a speedy trial was violated.

In his second assignment of error, Mitchell argues that his guilty plea was invalid

because there is no first-degree-misdemeanor charge under Ohio law for possession

of marijuana and because it was not made knowingly, intelligently, and voluntarily. In

his third assignment of error, Mitchell claims that he received constitutionally

ineffective assistance of counsel. In his fourth assignment of error, Mitchell argues

that the cumulative effect of these errors “demands reversal.” We address each of these

arguments in turn.

Speedy Trial

{¶7} Mitchell argues that the span of 647 days that elapsed from his arrest

until the date he pleaded guilty violated his right to a speedy trial under the state and

federal constitutions, as well as under R.C. 2945.71. Mitchell advances several

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arguments on this issue, none of which overcome the fact that he eventually withdrew

his motion to dismiss on speedy-trial grounds and entered a guilty plea.

{¶8} Mitchell filed a pro se motion to dismiss on speedy-trial grounds on

October 13, 2021. At the hearing on October 21, after Mitchell informed the court that

he and the state had reached an agreement, but before entering his guilty plea, Mitchell

withdrew all outstanding motions. The court then engaged in a plea colloquy with

Mitchell and accepted his guilty plea.

{¶9} By entering a guilty plea, a defendant “waives both the statutory and the

constitutional right to a speedy trial.” State v. Watson, 2018-Ohio-4971, 126 N.E.3d

289, ¶ 7 (1st Dist.). See State v. Morris, 1st Dist. Hamilton No. C-180520,

2019-Ohio-3011, ¶ 6, quoting State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283,

855 N.E.2d 48, ¶ 105 (“A guilty plea waives ‘any complaint as to claims of

constitutional violations not related to the entry of the guilty plea.’ ”).

{¶10} Because by entering a guilty plea, Mitchell waived his speedy-trial claim,

we overrule his first assignment of error.

Validity of Mitchell’s Guilty Plea

{¶11} Mitchell argues that his guilty plea is invalid on the basis that (1) the

plea was to a nonexistent charge under Ohio law, and (2) his plea was not made

knowingly, voluntarily, or intelligently because he misunderstood the nature of the

charge to which he was pleading.

{¶12} “To determine whether a plea was entered knowingly, voluntarily, and

intelligently, ‘an appellate court examines the totality of the circumstances through a

de novo review of the record.’ ” State v. Illing, 1st Dist. Hamilton No. C-220166, 2022-

Ohio-4266, ¶ 12, quoting State v. Foster, 2018-Ohio-4006, 121 N.E.3d 76, ¶ 33 (1st

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Dist.) (Zayas, J., concurring in part and dissenting in part). “A trial court must strictly

comply with the constitutional notifications contained in Crim.R. 11(C)(2)(c).” Id. at

¶ 14, citing State v. Green, 1st Dist. Hamilton No. C-170477, 2019-Ohio-1428, ¶ 3. The

trial court must also “substantially comply with the nonconstitutional notifications

required by Crim.R. 11(C)(2)(a) and (b).” Id. at ¶ 15, citing State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14.

{¶13} Our review of the record shows that the trial court strictly complied with

the requirements of Crim.R. 11(C)(2)(c) and substantially complied with the

requirements of Crim.R. 11(C)(2)(a) and (b).

{¶14} Mitchell argues that the trial court was required to recite the elements

of the charged offense, and the trial court failed to do so. Such failure, Mitchell claims,

renders his plea constitutionally infirm, as it prevented the plea from being made

knowingly, voluntarily, or intelligently. However, this argument is without merit, as

“ ‘the courts of this state have generally held that a detailed recitation of the elements

of the charge is not required under Crim.R. 11(C)(2)(a).’ ” State v. Fitzpatrick, 102

Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 57, quoting State v. Swift, 86 Ohio

App.3d 407, 412, 621 N.E.2d 513 (11th Dist.1993), citing State v. Rainey, 3 Ohio

App.3d 441, 442, 446 N.E.2d 188 (10th Dist.1982).

{¶15} Mitchell has also claimed that he pleaded guilty to a nonexistent crime

under Ohio law, namely possession of marijuana as a first-degree misdemeanor.

Under R.C. 2925.11(C)(3), the degree of the offense of marijuana possession is

determined by the amount of marijuana the offender possessed. Possession of less

than 100 grams of marijuana is a minor misdemeanor. R.C. 2925.11(C)(3)(a).

Possession of at least 100 grams, but less than 200 grams, is a fourth-degree

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misdemeanor. R.C. 2925.11(C)(3)(b). Possession of at least 200 grams is a felony,

ranging from a fifth- to a second-degree felony, depending on the amount. R.C.

2925.11(C)(3)(c)-(g). Mitchell is correct that no amount of marijuana possession

corresponds to a first-degree misdemeanor.

{¶16} Nonetheless, Ohio courts have routinely held that a person may plead

guilty to a nonexistent offense as part of the plea-bargaining process. For example,

Ohio courts have upheld guilty pleas to attempted involuntary manslaughter, which is

not only a nonexistent crime, but a logically inconsistent one. See, e.g., State v. Lester,

8th Dist. Cuyahoga No. 106850, 2018-Ohio-4893 (affirming a guilty plea to

nonexistent crime of attempted involuntary manslaughter, on the basis that it was

bargained for); State v. Toms, 2d Dist. Clark No. 2000 CA 64, 2001 Ohio App. LEXIS

3944 (Sept. 7, 2001) (affirming a guilty plea to attempted involuntary manslaughter,

without comment on the existence of such a crime, because any potential error was

invited); State v. Wickham, 5th Dist. Muskingum No. CA 76-40, 1977 Ohio App. LEXIS

10210 (Sep. 28, 1977) (affirming a guilty plea to the nonexistent crime of attempted

involuntary manslaughter, while questioning the technical and logical consistency of

such a plea).

{¶17} Here, Mitchell was facing a fifth-degree-felony charge of trafficking in

marijuana. On advice of counsel, Mitchell negotiated a plea to a first-degree-

misdemeanor possession charge. Having received the benefit of his bargain, Mitchell

cannot now complain that the negotiated charge does not exist.

{¶18} Finally, Mitchell complains that at the time he entered his plea, he did

not understand which charge he was pleading guilty to. Mitchell argues that he was

attempting to plead guilty to the fourth-degree-misdemeanor charge of possession and

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misunderstood that he was actually pleading guilty to a first-degree misdemeanor.

{¶19} Mitchell’s claimed confusion is contradicted by the record. The trial

court fully informed him of the nature of his plea during the plea colloquy. Further,

Mitchell had previously filed multiple pro se motions in which he referred to the fact

that the fourth-degree-misdemeanor charge had already been dismissed.

{¶20} We find no merit in Mitchell’s arguments that his guilty plea was invalid.

Accordingly, we overrule his second assignment of error.

Ineffective Assistance

{¶21} Mitchell argues that he received ineffective assistance of trial counsel on

the basis that counsel: (1) permitted him to enter a guilty plea to a nonexistent charge;

(2) failed to ensure that he understood the charge to which he pled; (3) failed to pursue

his claim of a speedy-trial violation; (4) waived time without his permission; and (5)

failed to have his misdemeanor charges bound over from municipal court to the court

of common pleas.

{¶22} In order to reverse a conviction for ineffective assistance of counsel, “the

defendant must demonstrate that (1) counsel’s performance was deficient, meaning it

fell below an objective standard of reasonableness; and (2) the performance caused

actual prejudice to the defendant, meaning there is a reasonable probability that the

outcome would have been different, but for the deficient performance.” State v.

Parker, 1st Dist. Hamilton No. C-210440, 2022-Ohio-3831, ¶ 20, citing State v.

Rosemond, 1st Dist. Hamilton No. C-180221, 2022-Ohio-111, ¶ 10, citing Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). “Appellant’s

failure to satisfy either prong is dispositive.” Id., citing Rosemond at ¶ 11; Strickland

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at 697.

{¶23} None of Mitchell’s claimed deficiencies constitutes error. Mitchell’s

guilty plea to a first-degree misdemeanor allowed him to avoid the risk of being

convicted of a fifth-degree felony. The plea colloquy established that Mitchell was

accurately apprised of the charge to which he pled. The misdemeanor charges in

municipal court were dismissed before Mitchell entered his guilty plea.

{¶24} Counsel was not ineffective for failing to pursue Mitchell’s speedy-trial

claim. Mitchell’s attorneys routinely filed motions for continuances with the court,

waiving time. Although Mitchell now objects to these time waivers, it is well-

established that “speedy trial rights may be waived by defense counsel, with or without

the defendant’s consent.” State v. Chiles, 8th Dist. Cuyahoga No. 103179,

2016-Ohio-1225, ¶ 6, citing State v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d 903

(1994). Thus, the likelihood that Mitchell could succeed on a speedy-trial claim was

substantially in doubt. Mitchell’s attorney was not deficient for counseling a guilty plea

to a lesser charge in light of the weakness of Mitchell’s speedy-trial claim.

{¶25} Even if any of these issues did demonstrate deficient performance,

Mitchell has not shown that he was prejudiced. Mitchell argues on appeal that he had

intended to plead guilty to possession of marijuana as a fourth-degree misdemeanor,

rather than a first-degree misdemeanor. However, his sentence was within the

permissible range for a fourth-degree-misdemeanor charge. Mitchell was sentenced

only to time served, he was not fined, and the court remitted costs.

{¶26} Based on the above, Mitchell has not established that counsel’s

performance was deficient. Even if counsel’s performance was deficient in some way,

Mitchell has not shown actual prejudice resulting from counsel’s performance. We

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overrule Mitchell’s third assignment of error.

Cumulative Error

{¶27} In his fourth assignment of error, Mitchell claims that the cumulative

effect of the errors raised in the first three assignments prejudiced him and demands

reversal of his conviction.

{¶28} Because we have not found any instances of error, we cannot find

cumulative error. We overrule Mitchell’s fourth assignment of error.

III. Conclusion

{¶29} For the foregoing reasons, we overrule all four of Mitchell’s assignments

of error and affirm the judgment of the trial court.

Judgment affirmed.

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.