State v. Portis

2014 Ohio 3641

• Court: Ohio Court of Appeals
• Decided: August 22, 2014
• Docket: 2013-CA-53
• Status: Published

Opinion

[Cite as State v. Portis, 2014-Ohio-3641.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

JERMAINE PORTIS

Defendant-Appellant

Appellate Case No. 2013-CA-53

Trial Court Case No. 2011-CR-631

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 22nd day of August, 2014.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecutor, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

JOHN J. SCACCIA, Atty. Reg. No. 0022217, 1814 East Third Street, Dayton, Ohio 45403 Attorney for Defendant-Appellant

............. 2

WELBAUM, J.

{¶ 1} Defendant-appellant, Jermaine Portis, appeals from his conviction and sentence

in the Clark County Court of Common Pleas following his guilty plea to possession of heroin.

For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On September 12, 2011, Portis was indicted on one count of possessing heroin

and one count of possessing crack cocaine, both in violation of R.C. 2925.11(A), as well as two

counts of trafficking drugs in violation of R.C. 2925.03(A)(2). Each count included two

specifications: (1) the offenses were committed in the vicinity of a juvenile; and (2) the grand

jury found that $1,572 belonging to Portis was subject to forfeiture as proceeds derived from the

indicted offenses. On September 19, 2011, Portis pled not guilty to all the charges.

{¶ 3} Following his plea, Portis filed a motion to suppress on November 22, 2011. In

the motion, Portis moved to suppress statements he made to police prior to being Mirandized;

however, the State later agreed that it would not use Portis’s statements at trial. Portis also

moved to suppress evidence seized during an August 19, 2011 search of his residence on grounds

that there were alleged deficiencies in the warrant used to effectuate the search. On April 2,

2012, the trial court held a hearing on the motion to suppress. An additional suppression hearing

was also held on April 26, 2012. After reviewing the testimony and evidence in the record, on

April 27, 2012, the trial court issued an entry overruling Portis’s motion to suppress. Trial was 3

then scheduled for June 20, 2012.

{¶ 4} The day of trial, the parties presented the trial court with a written plea agreement

in which Portis agreed to plead guilty to one count of possessing heroin in an amount greater than

10 grams, but less than 50 grams, in violation of R.C. 2925.11(A), a felony of the second degree.

Portis also agreed to forfeit the $1,572 as proceeds derived from the offense. In exchange, the

State agreed to dismiss all remaining counts of the indictment. After questioning Portis at the

plea hearing, the trial court found that his plea was knowingly, intelligently and voluntarily made.

Accordingly, the trial court accepted his plea and ordered a presentence investigation report for

sentencing.

{¶ 5} On July 18, 2012, the trial court sentenced Portis to five years in prison, three

years of mandatory post-release control, and a two-year license suspension. Almost a year later,

on June 29, 2013, this court granted Portis leave to file a delayed appeal from his conviction and

sentence, in which Portis raised two assignments of error.

Assignment of Error No. I

{¶ 6} Portis’s First Assignment of Error is as follows:

THE TRIAL COURT COMMITTED ERROR IN FAILING TO ADVISE MR.

PORTIS’ [sic] THAT A GUILTY PLEA WAS A WAIVER OF HIS RIGHT TO

APPEAL PRE[-]PLEA ISSUES SUCH AS THOSE ARISING FROM HIS

MOTION TO SUP[P]RESS.

{¶ 7} Under his First Assignment of Error, Portis claims the trial court erred in failing

to advise him of the effect of pleading guilty as required by Crim.R. 11(C)(2). Specifically, he 4

claims the trial court failed to inform him that pleading guilty would waive his right to appeal

from the trial court’s decision overruling his motion to suppress. Portis claims that this alleged

error rendered his plea less than voluntary, and as a result, his right to appeal from the trial

court’s decision on his motion to suppress was not waived. We disagree.

{¶ 8} “[A] guilty plea waives all appealable errors that may have occurred in the trial

court, unless such errors precluded the defendant from knowingly, intelligently, and voluntarily

entering the guilty plea.” State v. Blessing, 2d Dist. Clark No. 2011 CA 56, 2013-Ohio-392, ¶

14, citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph two of the

syllabus. (Other citations omitted.) For felony cases, “[a] trial court may show that a guilty

plea was made knowingly, intelligently and voluntarily by complying with Crim. R. 11(C)(2).”

(Citations omitted.) State v. Richie, 2d Dist. Montgomery No. 25681, 2014-Ohio-1114, ¶ 5.

{¶ 9} “Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the maximum

penalty, and, if applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions; (b) inform the defendant of and determine that the defendant

understands the effect of the plea of guilty and that the court, upon acceptance of the plea, may

proceed with judgment and sentencing; and (c) inform the defendant and determine that he

understands that, by entering the plea, the defendant is waiving the rights to a jury trial, to

confront witnesses against him, to have compulsory process for obtaining witnesses, and to

require the State to prove his guilt beyond a reasonable doubt at a trial at which he cannot be

compelled to testify against himself.” State v. Scerba, 2d Dist. Clark No. 2013 CA 96,

2014-Ohio-3002, ¶ 11, citing State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, 5

¶ 3.

{¶ 10} As noted above, section (b) of Crim. R. 11(C)(2) requires the trial court to inform

the defendant of the effect of his guilty plea and to determine whether he understands that effect.

In State v. Satterwhite, 2d Dist. Montgomery No. 23142, 2009-Ohio-6593, we found that Crim.R.

11(C)(2)(b) does not require the trial court to inform a criminal defendant that a guilty plea will

forfeit his ability to assign as error any claimed errors in pretrial rulings. Id. at ¶ 47. We further

held that the trial court’s duty under Crim.R. 11(C)(2)(b), “does not require the trial court to

conduct [a] specific inquiry into the defendant’s understanding of the effect of a guilty plea on the

appealability of adverse pre-trial rulings, where a defendant’s misunderstanding of that effect is

not apparent from the record.” Id. at ¶ 48. However, “a trial court has not substantially

complied with [Crim.R. 11(C)(2)(b)] when it says something during the plea colloquy, even

inadvertently, that is likely to cause the defendant to misunderstand this specific effect of a guilty

plea, or to contribute significantly to a defendant’s misunderstanding in that regard.” Id.

{¶ 11} To satisfy the effect-of-plea requirement under Crim.R. 11(C)(2)(b), a trial court

instead must inform the defendant, either orally or in writing, of the language in Crim.R. 11(B),

which defines “effect of guilty plea” as “a complete admission of the defendant’s guilt.” State v.

Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph two of the syllabus, ¶

23-24, 51; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 10; Crim.R.

11(B)(1). “The information that a guilty plea is a complete admission of guilt, along with the

other information required by Crim.R. 11, ensures that defendants enter pleas with knowledge of

rights that they would forgo and creates a record by which appellate courts can determine whether

pleas are entered voluntarily.” (Citations omitted.) Griggs at ¶ 11. “A defendant who has 6

entered a guilty plea without asserting actual innocence is presumed to understand that he has

completely admitted his guilt.” Id. at syllabus.

{¶ 12} That said, contrary to Portis’s claim otherwise, the trial court did not have a duty

under Crim.R. 11(C)(2) to inform him that his guilty plea would result in the waiver of his right

to appeal issues raised in adverse pretrial rulings. Rather, our decision in Satterwhite establishes

that the trial court would only have to inform him of this if a misunderstanding was apparent

from the record or if the trial court said something that would have likely caused the defendant to

misunderstand that specific effect. Here, the plea form, which Portis said he reviewed with his

attorney and understood before signing, stated that he understood his “limited appellate rights.”

Plea of Guilty Form (June 20, 2012), Clark County Court of Common Pleas Case No.

2011-CR-631, Docket No. 19, p. 2-3. The record is devoid of any evidence indicating that he

somehow misunderstood what those appellate rights were. In addition, the trial court did not say

anything during the plea hearing that would have caused Portis to misunderstand the effect his

guilty plea would have on his ability to appeal pretrial rulings. Therefore, because there was no

indication of a misunderstanding, the trial court was not required to conduct a specific inquiry

into whether Portis understood that his guilty plea would waive his right to appeal pretrial

rulings, including the trial court’s decision overruling his motion to suppress.

{¶ 13} Moreover, the record establishes that the trial court substantially complied with

all the other requirements under Crim.R. 11(C)(2)(a) and (b), and strictly complied with the

requirements under Crim.R. 11(C)(2)(c).1 During the plea hearing, the trial court recited the

1 “The trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of constitutional rights.” (Citation omitted.) State v. Bell, 2d Dist. Montgomery No. 24356, 2011-Ohio-5016, ¶ 14. “[B]ecause Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need only substantially comply with those requirements. Substantial compliance means that, under 7

elements of the possession charge against Portis, and Portis indicated that he understood the

nature of the charge. Portis also indicated that he was making his plea voluntarily, and that he

understood he faced a maximum penalty of eight years in prison, a $15,000 fine, and a five-year

license suspension. He also acknowledged that a prison sentence was mandatory for two years,

and that upon his release from prison, he would be placed on post-release control for a mandatory

three years. In addition, the plea form signed by Portis advised him that “by pleading guilty [he]

admit[s] committing the offense” and acknowledged that “the judge may either sentence [him]

today or refer [his] case for a presentence report.” Plea of Guilty Form (June 20, 2012), Clark

County Court of Common Pleas Case No. 2011-CR-631, Docket No. 19, p. 2. Portis further

stated that he understood by pleading guilty he was waiving his constitutional rights to a jury

trial, to confront witnesses against him, to have compulsory process for obtaining witnesses, and

to require the State to prove his guilt beyond a reasonable doubt at a trial, during which he would

not be compelled to testify against himself.

{¶ 14} Having found that the trial court satisfied all the requirements under Crim.R.

11(C)(2), including the effect-of-plea requirement under division (b), we conclude that Portis

knowingly, intelligently and voluntarily pled guilty to possession of heroin. By entering a valid

guilty plea, Portis waived all appealable errors that may have occurred at the trial court level,

including any alleged errors in the trial court’s decision overruling his motion to suppress.

Accordingly, Portis’s First Assignment of Error is overruled.

the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving.” (Citations omitted.) Id. at ¶ 15. 8

Assignment of Error No. II

{¶ 15} Portis’s Second Assignment of Error is as follows:

THE TRIAL COURT COMMITTED ERROR IN FAILING TO SUPPRESS

THE EVIDENCE SEIZED FROM MR. PORTIS’ HOME WHERE THE

AFFIDAVIT OF THE SEARCH WARRANT WAS FACIALLY [sic.]

{¶ 16} Under his Second Assignment of Error, Portis contends the trial court erred in

overruling his motion to suppress because the affidavit used to secure the search warrant

contained insufficient information to establish probable cause that drugs were in Portis’s home at

the time the warrant was issued. This assignment of error is not well taken, as we have already

concluded under Portis’s First Assignment of Error that, by pleading guilty to possession of

heroin, Portis waived his right to appeal from adverse pretrial rulings, including the trial court’s

decision overruling his motion to suppress. Accordingly, Portis’s Second Assignment of Error is

overruled.

Conclusion

{¶ 17} Having overruled both of Portis’s assignments of error, the judgment of the trial

court is affirmed.

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

DONOVAN and HALL, JJ., concur. 9

Copies mailed to:

Ryan A. Saunders John J. Scaccia Hon. Douglas M. Rastatter