[Cite as State v. Pummell, 2023-Ohio-2721.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-23-05 PLAINTIFF-APPELLEE,
v.
DEVIN COREY PUMMELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 22CR0173
Judgment Reversed and Cause Remanded
Date of Decision: August 7, 2023
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-23-05
WILLAMOWSKI, J.
{¶1} Defendant-appellant Devin Corey Pummell (“Pummell”) brings this
appeal from the judgment of the Court of Common Pleas of Union County finding
Pummell guilty of multiple charges and sentencing him to an aggregate indefinite
prison term of 10 to 14 years. Pummell challenges on appeal 1) the voluntariness
of the guilty plea, 2) the failure of the trial court judge to recuse himself, and 3)
imposition of an indefinite sentence. For the reasons set forth below, the judgment
is reversed.
{¶2} On August 5, 2022, the Union County Grand Jury indicted Pummell on
the following counts: 1) Aggravated Burglary in violation of R.C. 2911.11(A)(1),
(B), a felony of the first degree; 2) Abduction in violation of R.C. 2905.02(A)(2),
(C), a felony of the third degree; 3) Assault in violation of R.C. 2903.13(A), (C), a
misdemeanor of the first degree; 4) Aggravated menacing in violation of R.C.
2903.21(A), (B), a misdemeanor of the first degree; 5) Assault in violation of R.C.
2903.13(A), (C), a misdemeanor of the first degree; and 6) Obstructing Official
Business in violation of R.C. 2921.31(A), (B), a misdemeanor of the second degree.
Pummell entered pleas of not guilty to each of the counts. On November 10, 2022,
Pummell withdrew his not guilty plea pursuant to a plea agreement. The agreement
provided that Count 1 would be amended to Burglary, a felony of the second degree
and Pummell would plead guilty to the amended Count 1 and the remaining five
-2- Case No. 14-23-05
counts. Doc. 32. Following a dialogue with Pummell regarding the effect of the
plea, the trial court accepted the plea and found Pummell guilty of the charges.
{¶3} On December 20, 2022, the trial court held a sentencing hearing. The
trial court then imposed the following sentence: Count 1 – an indefinite prison term
of 8-12 years; Count 2 – 24 months to be served consecutive to Count 1; Count 3 –
180 days in jail to be served concurrent to Counts 1 and 2; Count 4 – 180 days in
jail to be served concurrent to Counts 1 2,and 3; Count 5 – 180 days in jail to be
served concurrent to Counts 1, 2, 3, and 4; and Count 6 – 90 days in jail to be served
concurrent to Counts 1, 2, 3, 4, and 5. The aggregate prison term was 10-14 years.
Pummell appealed from this judgment and on appeal raises the following
assignments of error.
First Assignment of Error
The trial court erred when it accepted [Pummell’s] guilty plea when it was not knowingly, intelligently, or voluntarily made because it was based on representations by the court that the court would be lenient in sentencing.
Second Assignment of Error
The trial court erred when it failed to recuse itself, as it was evident that the site of the crime became personal to the judge, unduly influencing him, and resulting in a bias with the court that directly impacted the sentencing, resulting in a violation of [Pummell’s] due process rights, creating a sentence that is contrary to law.
-3- Case No. 14-23-05
Third Assignment of Error
The trial court’s imposition of an indefinite sentence pursuant to the statutory scheme known as “The Reagan Tokes Law” is unconstitutional and must be reversed.
Voluntariness of Plea
{¶4} Pummell alleges in the first assignment of error that his guilty plea was
not voluntarily entered because he was led to believe that the court would be lenient
in sentencing. “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
527, 1996-Ohio-179, 660 N.E.2d 450. If a plea is coerced or induced by promises
or threats, the plea is rendered involuntary. State v. Lawson, 3d Dist. Seneca No. 13-
18-20, 2018-Ohio-4922, ¶ 20. In evaluating the voluntariness of a plea, a reviewing
court must “scrutinize carefully any participation by the trial court in the plea
bargaining process.” State v. Walker, 61 Ohio App.3d 768, 770, 573 N.E.2d 1158
(8th Dist. 1989). The judge’s status as the trier of fact creates a great potential for
coerced guilty pleas if he or she participates in the plea bargaining process. State v.
Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980). Comments made by a trial
judge in the plea bargaining process must be carefully scrutinized to see if they
affected the voluntariness of the defendant’s guilty plea. Id. An appellate court must
determine whether the statements of the judge “could have led the defendant to
believe he could not get a fair trial, including a fair sentence after the trial” to
determine if the voluntariness of the plea was undermined. Lawson, supra.
-4- Case No. 14-23-05
{¶5} Here, the change of plea occurred during the final pretrial. Before
Pummell and the State had a discussion about a plea, the trial court made the
following statements.1
The other thing that you need to know is is, [sic] if you enter a plea of guilty, that you are likely, likely I said, to be sent to prison for a period of time. In the event of a guilty plea where you’re taking responsibility for your actions on the night in question, you can count on the fact that your sentence is going to be on the lower end of the scale as opposed to the higher end of the scale. And, if you’re also required to enter a plea to the Abduction, it’s likely that the Court would impose a concurrent sentence and not a consecutive sentence.
At the end of a trial, if you choose not to take – and it’s your choice – at the end of the trial, if you were to be found guilty, you could count on the penalties being more severe than what I’ve told you.
Plea Hearing Tr. 7. The trial court then recessed to allow Pummell and the State to
discuss a possible plea. When the hearing resumed, the State indicated that a plea
agreement had been reached. Pursuant to the agreement, Count 1 of the indictment
was amended to burglary, a second degree felony and a lesser included offense of
aggravated burglary. Pummell agreed to enter a plea of guilty to the amended Count
1 and all of the remaining counts.
{¶6} Pummell argues that his plea was coerced when he was promised a
lower sentence if he entered a plea, but a harsher sentence if he was convicted after
a trial. The State argues that since the trial court’s statements were made before
1 From the record it appears the change in plea occurred very late in the day on the Thursday prior to a three- day weekend with the court needing to know whether to cancel the jury that was summoned to appear the following Monday.
-5- Case No. 14-23-05
Pummell requested the amended charge, the trial court was not involved in the plea
negotiations. This Court has previously held that statements made by a trial court
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[Cite as State v. Pummell, 2023-Ohio-2721.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-23-05 PLAINTIFF-APPELLEE,
v.
DEVIN COREY PUMMELL, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 22CR0173
Judgment Reversed and Cause Remanded
Date of Decision: August 7, 2023
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-23-05
WILLAMOWSKI, J.
{¶1} Defendant-appellant Devin Corey Pummell (“Pummell”) brings this
appeal from the judgment of the Court of Common Pleas of Union County finding
Pummell guilty of multiple charges and sentencing him to an aggregate indefinite
prison term of 10 to 14 years. Pummell challenges on appeal 1) the voluntariness
of the guilty plea, 2) the failure of the trial court judge to recuse himself, and 3)
imposition of an indefinite sentence. For the reasons set forth below, the judgment
is reversed.
{¶2} On August 5, 2022, the Union County Grand Jury indicted Pummell on
the following counts: 1) Aggravated Burglary in violation of R.C. 2911.11(A)(1),
(B), a felony of the first degree; 2) Abduction in violation of R.C. 2905.02(A)(2),
(C), a felony of the third degree; 3) Assault in violation of R.C. 2903.13(A), (C), a
misdemeanor of the first degree; 4) Aggravated menacing in violation of R.C.
2903.21(A), (B), a misdemeanor of the first degree; 5) Assault in violation of R.C.
2903.13(A), (C), a misdemeanor of the first degree; and 6) Obstructing Official
Business in violation of R.C. 2921.31(A), (B), a misdemeanor of the second degree.
Pummell entered pleas of not guilty to each of the counts. On November 10, 2022,
Pummell withdrew his not guilty plea pursuant to a plea agreement. The agreement
provided that Count 1 would be amended to Burglary, a felony of the second degree
and Pummell would plead guilty to the amended Count 1 and the remaining five
-2- Case No. 14-23-05
counts. Doc. 32. Following a dialogue with Pummell regarding the effect of the
plea, the trial court accepted the plea and found Pummell guilty of the charges.
{¶3} On December 20, 2022, the trial court held a sentencing hearing. The
trial court then imposed the following sentence: Count 1 – an indefinite prison term
of 8-12 years; Count 2 – 24 months to be served consecutive to Count 1; Count 3 –
180 days in jail to be served concurrent to Counts 1 and 2; Count 4 – 180 days in
jail to be served concurrent to Counts 1 2,and 3; Count 5 – 180 days in jail to be
served concurrent to Counts 1, 2, 3, and 4; and Count 6 – 90 days in jail to be served
concurrent to Counts 1, 2, 3, 4, and 5. The aggregate prison term was 10-14 years.
Pummell appealed from this judgment and on appeal raises the following
assignments of error.
First Assignment of Error
The trial court erred when it accepted [Pummell’s] guilty plea when it was not knowingly, intelligently, or voluntarily made because it was based on representations by the court that the court would be lenient in sentencing.
Second Assignment of Error
The trial court erred when it failed to recuse itself, as it was evident that the site of the crime became personal to the judge, unduly influencing him, and resulting in a bias with the court that directly impacted the sentencing, resulting in a violation of [Pummell’s] due process rights, creating a sentence that is contrary to law.
-3- Case No. 14-23-05
Third Assignment of Error
The trial court’s imposition of an indefinite sentence pursuant to the statutory scheme known as “The Reagan Tokes Law” is unconstitutional and must be reversed.
Voluntariness of Plea
{¶4} Pummell alleges in the first assignment of error that his guilty plea was
not voluntarily entered because he was led to believe that the court would be lenient
in sentencing. “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525,
527, 1996-Ohio-179, 660 N.E.2d 450. If a plea is coerced or induced by promises
or threats, the plea is rendered involuntary. State v. Lawson, 3d Dist. Seneca No. 13-
18-20, 2018-Ohio-4922, ¶ 20. In evaluating the voluntariness of a plea, a reviewing
court must “scrutinize carefully any participation by the trial court in the plea
bargaining process.” State v. Walker, 61 Ohio App.3d 768, 770, 573 N.E.2d 1158
(8th Dist. 1989). The judge’s status as the trier of fact creates a great potential for
coerced guilty pleas if he or she participates in the plea bargaining process. State v.
Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980). Comments made by a trial
judge in the plea bargaining process must be carefully scrutinized to see if they
affected the voluntariness of the defendant’s guilty plea. Id. An appellate court must
determine whether the statements of the judge “could have led the defendant to
believe he could not get a fair trial, including a fair sentence after the trial” to
determine if the voluntariness of the plea was undermined. Lawson, supra.
-4- Case No. 14-23-05
{¶5} Here, the change of plea occurred during the final pretrial. Before
Pummell and the State had a discussion about a plea, the trial court made the
following statements.1
The other thing that you need to know is is, [sic] if you enter a plea of guilty, that you are likely, likely I said, to be sent to prison for a period of time. In the event of a guilty plea where you’re taking responsibility for your actions on the night in question, you can count on the fact that your sentence is going to be on the lower end of the scale as opposed to the higher end of the scale. And, if you’re also required to enter a plea to the Abduction, it’s likely that the Court would impose a concurrent sentence and not a consecutive sentence.
At the end of a trial, if you choose not to take – and it’s your choice – at the end of the trial, if you were to be found guilty, you could count on the penalties being more severe than what I’ve told you.
Plea Hearing Tr. 7. The trial court then recessed to allow Pummell and the State to
discuss a possible plea. When the hearing resumed, the State indicated that a plea
agreement had been reached. Pursuant to the agreement, Count 1 of the indictment
was amended to burglary, a second degree felony and a lesser included offense of
aggravated burglary. Pummell agreed to enter a plea of guilty to the amended Count
1 and all of the remaining counts.
{¶6} Pummell argues that his plea was coerced when he was promised a
lower sentence if he entered a plea, but a harsher sentence if he was convicted after
a trial. The State argues that since the trial court’s statements were made before
1 From the record it appears the change in plea occurred very late in the day on the Thursday prior to a three- day weekend with the court needing to know whether to cancel the jury that was summoned to appear the following Monday.
-5- Case No. 14-23-05
Pummell requested the amended charge, the trial court was not involved in the plea
negotiations. This Court has previously held that statements made by a trial court
before the State and the Defense negotiate a plea can still be participation in the plea
negotiation. State v. Howard, 3d Dist. Hardin No. 6-09-16, 2010-Ohio-4828.
{¶7} In Howard, the State rested its case and defense counsel indicated that
Howard wished to testify against the advice of counsel. The trial court held a
discussion with Howard about how he should take a plea deal in order to get a
shorter sentence. The trial court then ordered a recess to allow the State and the
defense to have time to discuss a potential plea agreement. After the recess, Howard
changed his plea to one of guilty. On appeal Howard claimed that his plea was not
voluntarily entered because of the statements by the trial court before the
negotiation. This Court held that the trial court had participated in the plea
bargaining process by making the statements and the statements rendered the plea
involuntary. Based upon this, this Court reversed the judgment and remanded the
matter for a new trial.
{¶8} Like the matter in Howard, the trial court here did not officially
participate in the plea bargaining process. However, the trial court did make
statements telling Pummell that he would receive a lower sentence if he entered a
guilty plea than if he went to trial. The trial court guaranteed that the sentence would
be at the lower end of the sentencing range if Pummell entered a plea, threatened a
harsher sentence if Pummell was convicted after a trial, and then took a recess to
-6- Case No. 14-23-05
allow the parties time to discuss. The trial court specifically stated “at the end of
the trial, if you were to be found guilty, you could count on the penalties being more
severe than what I’ve told you.” This statement is the equivalent of the trial court
making a threat that there will be additional punishment if the defendant did not
reach a plea agreement and was found guilty after trial, thus rendering the plea
involuntary. Machibroda v. U.S., 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).
The first assignment of error is sustained.
{¶9} Having sustained the first assignment of error regarding the withdrawal
of the guilty plea, the remaining assignments of error are rendered moot. Pursuant
to App.R. 12(A)(1)(c), this Court will not rule on them at this time.
{¶10} Having found error prejudicial to the appellant, the judgment of the
Court of Common Pleas of Union County is reversed and the matter is remanded to
the trial court for further proceedings.
MILLER, P.J. and WALDICK, J., concur.
/hls
-7-