[Cite as State v. Townsend, 2019-Ohio-4336.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29221
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DARREN TOWNSEND COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2017-09-3326-A
DECISION AND JOURNAL ENTRY
Dated: October 23, 2019
HENSAL, Judge.
{¶1} Darren Townsend appeals his convictions and the denial of his motion to
withdraw his plea in the Summit County Court of Common Pleas. For the following reasons,
this Court affirms.
I.
{¶2} Shortly before closing argument during his jury trial, Mr. Townsend decided to
plead guilty after reaching a plea deal with the State. The trial court advised him of his rights,
including his right to a trial, but did not specifically state that he had the right to a jury trial. The
court accepted Mr. Townsend’s plea and sentenced him to a total of 14 years imprisonment. Mr.
Townsend subsequently moved to withdraw his plea, alleging that he was not in the right state of
mind when he accepted the plea deal because his family had received a death threat. He also
appealed his convictions. At the request of Mr. Townsend, this Court remanded the case to the 2
trial court so that it could rule on his motion to withdraw his plea. Mr. Townsend has assigned
two errors in his appellate brief.
II.
ASSIGNMENT OF ERROR I
APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED BECAUSE THE TRIAL COURT FAILED TO ADVISE APPELLANT OF HIS RIGHT TO A TRIAL BY JURY.
{¶3} Mr. Townsend argues that his plea was invalid because the trial court failed to
advise him of all of his constitutional rights, specifically, his right to a jury trial. Criminal Rule
11(C)(2)(c) provides that “the court * * * shall not accept a plea of guilty * * * without first
addressing the defendant personally and * * * [i]nforming the defendant * * * that by the plea the
defendant is waiving the right[ ] to [a] jury trial * * *.” The Ohio Supreme Court has held that a
trial court “must strictly comply” with Rule 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, syllabus. “We review whether the trial court strictly complied with Crim.R.
11(C)(2)(c) de novo.” State v. Owens, 9th Dist. Summit No. 25174, 2010-Ohio-4635, ¶ 7.
{¶4} Regarding his right to a jury trial, the trial court told Mr. Townsend: “Now, you
are giving up your right to have a trial here today. Do you understand that?” The State notes
that a trial court does not have to “provide a word-for-word recitation of the criminal rule, so
long as the trial court actually explains the rights to the defendant.” Veney at ¶ 27. According to
the State, because Mr. Townsend’s plea came during the third day of a jury trial, after the State
and defense had called witnesses and the exhibits has been introduced, the trial court’s reference
to Mr. Townsend’s “right to have a trial here today” sufficiently conveyed to Mr. Townsend that
he would be giving up his right to a jury trial. Mr. Townsend, on the other hand, notes that the
Ohio Supreme Court has explained that, “[a]lthough the trial court may vary slightly from the 3
literal wording of the rule in the colloquy, the court cannot simply rely on other sources to
convey these rights to the defendant.” Id. at ¶ 29. He acknowledges that the Ohio Supreme
Court has also held that “ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by
reference to other portions of the record, including the written plea.” State v. Barker, 129 Ohio
St.3d 472, 2011-Ohio-4130, paragraph two of the syllabus.
{¶5} In State v. Benjamin, 8th Dist. Cuyahoga No. 73017, 1998 WL 564037 (Sept. 3,
1998), the trial court told the defendant that he “[is] presumed innocent and you have the right to
a trial. We’re here for trial in your case.” Id. at *2. The Eighth District Court of Appeals
concluded that the court had “explained and referred to the right to a jury trial in a manner
reasonably intelligible to the defendant.” Id. at *3. It concluded that the court’s statements made
the defendant “aware and adequately informed of his right to a jury trial.” Id.
{¶6} Similar to the statement of the court in Benjamin, the trial court told Mr.
Townsend that he would be “giving up [his] right to have a trial here today.” At the time of the
trial court’s statement, it was the afternoon of the third day of Mr. Townsend’s jury trial. The
parties had spent the entire morning of the first day selecting the jury. The State and Mr.
Townsend had both rested, and the court was about to read the first part of the jury instructions
before the parties made their closing arguments. Upon review of the totality of the
circumstances, we conclude that the trial court’s statement, together with the setting in which it
was made, conveyed to Mr. Townsend in a reasonably intelligible manner his right to a jury trial.
State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph two of the syllabus; Barker at ¶ 26. We
conclude that Mr. Townsend has not established that he did not knowingly, intelligently, and
voluntarily waive his right to a jury trial because the trial court failed to strictly comply with
Rule 11(C)(2)(c). Mr. Townsend’s first assignment of error is overruled. 4
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO WITHDRAW HIS PLEA WITHOUT A HEARING.
{¶7} Mr. Townsend also argues that the trial court incorrectly denied his motion to
withdraw his guilty plea. He argues that his motion should be deemed denied because the trial
court never ruled on it. According to Mr. Townsend, the trial court erred in denying his motion
without a hearing. Criminal Rule 32.1 provides that “[a] motion to withdraw a plea of guilty or
no contest may be 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.”
{¶8} “This court ordinarily holds that a motion that is still pending at the time of the
final disposition of a case is presumed to have been denied.” State v. Romandetti, 9th Dist.
Summit No. 23388, 2007-Ohio-363, ¶ 7; State ex rel. Scott v. Streetsboro, 150 Ohio St.3d 1,
2016-Ohio-3308, ¶ 14. In this case, however, Mr. Townsend did not file his motion to withdraw
until after the trial court entered its judgment. The fact that Mr. Townsend appealed the trial
court’s judgment before it ruled on his motion does not mean that we must presume the motion
was denied. To the contrary, Mr. Townsend specifically requested that this Court stay his appeal
and remand the matter to the trial court so that it could rule on the motion, which this Court
allowed. According to Mr. Townsend, the trial court denied his motion on remand, but he has
not moved to supplement the appellate record with its decision. He also acknowledged at oral
argument that he has not filed a notice of appeal of the trial court’s decision.
{¶9} Upon review of the record that is before this Court, we conclude that we are
unable to reach the merits of Mr. Townsend’s argument. Mr. Townsend’s second assignment of
error is overruled. 5
III.
{¶10} Mr. Townsend’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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[Cite as State v. Townsend, 2019-Ohio-4336.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29221
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DARREN TOWNSEND COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR-2017-09-3326-A
DECISION AND JOURNAL ENTRY
Dated: October 23, 2019
HENSAL, Judge.
{¶1} Darren Townsend appeals his convictions and the denial of his motion to
withdraw his plea in the Summit County Court of Common Pleas. For the following reasons,
this Court affirms.
I.
{¶2} Shortly before closing argument during his jury trial, Mr. Townsend decided to
plead guilty after reaching a plea deal with the State. The trial court advised him of his rights,
including his right to a trial, but did not specifically state that he had the right to a jury trial. The
court accepted Mr. Townsend’s plea and sentenced him to a total of 14 years imprisonment. Mr.
Townsend subsequently moved to withdraw his plea, alleging that he was not in the right state of
mind when he accepted the plea deal because his family had received a death threat. He also
appealed his convictions. At the request of Mr. Townsend, this Court remanded the case to the 2
trial court so that it could rule on his motion to withdraw his plea. Mr. Townsend has assigned
two errors in his appellate brief.
II.
ASSIGNMENT OF ERROR I
APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED BECAUSE THE TRIAL COURT FAILED TO ADVISE APPELLANT OF HIS RIGHT TO A TRIAL BY JURY.
{¶3} Mr. Townsend argues that his plea was invalid because the trial court failed to
advise him of all of his constitutional rights, specifically, his right to a jury trial. Criminal Rule
11(C)(2)(c) provides that “the court * * * shall not accept a plea of guilty * * * without first
addressing the defendant personally and * * * [i]nforming the defendant * * * that by the plea the
defendant is waiving the right[ ] to [a] jury trial * * *.” The Ohio Supreme Court has held that a
trial court “must strictly comply” with Rule 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, syllabus. “We review whether the trial court strictly complied with Crim.R.
11(C)(2)(c) de novo.” State v. Owens, 9th Dist. Summit No. 25174, 2010-Ohio-4635, ¶ 7.
{¶4} Regarding his right to a jury trial, the trial court told Mr. Townsend: “Now, you
are giving up your right to have a trial here today. Do you understand that?” The State notes
that a trial court does not have to “provide a word-for-word recitation of the criminal rule, so
long as the trial court actually explains the rights to the defendant.” Veney at ¶ 27. According to
the State, because Mr. Townsend’s plea came during the third day of a jury trial, after the State
and defense had called witnesses and the exhibits has been introduced, the trial court’s reference
to Mr. Townsend’s “right to have a trial here today” sufficiently conveyed to Mr. Townsend that
he would be giving up his right to a jury trial. Mr. Townsend, on the other hand, notes that the
Ohio Supreme Court has explained that, “[a]lthough the trial court may vary slightly from the 3
literal wording of the rule in the colloquy, the court cannot simply rely on other sources to
convey these rights to the defendant.” Id. at ¶ 29. He acknowledges that the Ohio Supreme
Court has also held that “ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by
reference to other portions of the record, including the written plea.” State v. Barker, 129 Ohio
St.3d 472, 2011-Ohio-4130, paragraph two of the syllabus.
{¶5} In State v. Benjamin, 8th Dist. Cuyahoga No. 73017, 1998 WL 564037 (Sept. 3,
1998), the trial court told the defendant that he “[is] presumed innocent and you have the right to
a trial. We’re here for trial in your case.” Id. at *2. The Eighth District Court of Appeals
concluded that the court had “explained and referred to the right to a jury trial in a manner
reasonably intelligible to the defendant.” Id. at *3. It concluded that the court’s statements made
the defendant “aware and adequately informed of his right to a jury trial.” Id.
{¶6} Similar to the statement of the court in Benjamin, the trial court told Mr.
Townsend that he would be “giving up [his] right to have a trial here today.” At the time of the
trial court’s statement, it was the afternoon of the third day of Mr. Townsend’s jury trial. The
parties had spent the entire morning of the first day selecting the jury. The State and Mr.
Townsend had both rested, and the court was about to read the first part of the jury instructions
before the parties made their closing arguments. Upon review of the totality of the
circumstances, we conclude that the trial court’s statement, together with the setting in which it
was made, conveyed to Mr. Townsend in a reasonably intelligible manner his right to a jury trial.
State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph two of the syllabus; Barker at ¶ 26. We
conclude that Mr. Townsend has not established that he did not knowingly, intelligently, and
voluntarily waive his right to a jury trial because the trial court failed to strictly comply with
Rule 11(C)(2)(c). Mr. Townsend’s first assignment of error is overruled. 4
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO WITHDRAW HIS PLEA WITHOUT A HEARING.
{¶7} Mr. Townsend also argues that the trial court incorrectly denied his motion to
withdraw his guilty plea. He argues that his motion should be deemed denied because the trial
court never ruled on it. According to Mr. Townsend, the trial court erred in denying his motion
without a hearing. Criminal Rule 32.1 provides that “[a] motion to withdraw a plea of guilty or
no contest may be 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.”
{¶8} “This court ordinarily holds that a motion that is still pending at the time of the
final disposition of a case is presumed to have been denied.” State v. Romandetti, 9th Dist.
Summit No. 23388, 2007-Ohio-363, ¶ 7; State ex rel. Scott v. Streetsboro, 150 Ohio St.3d 1,
2016-Ohio-3308, ¶ 14. In this case, however, Mr. Townsend did not file his motion to withdraw
until after the trial court entered its judgment. The fact that Mr. Townsend appealed the trial
court’s judgment before it ruled on his motion does not mean that we must presume the motion
was denied. To the contrary, Mr. Townsend specifically requested that this Court stay his appeal
and remand the matter to the trial court so that it could rule on the motion, which this Court
allowed. According to Mr. Townsend, the trial court denied his motion on remand, but he has
not moved to supplement the appellate record with its decision. He also acknowledged at oral
argument that he has not filed a notice of appeal of the trial court’s decision.
{¶9} Upon review of the record that is before this Court, we conclude that we are
unable to reach the merits of Mr. Townsend’s argument. Mr. Townsend’s second assignment of
error is overruled. 5
III.
{¶10} Mr. Townsend’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
TEODOSIO, P. J. CARR, J. CONCUR. 6
APPEARANCES:
JOSEPH C. PATITUCE, MEGAN M. PATITUCE, and CATHERINE R. MEEHAN, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.