Opinion
109827
09-23-2021
STATE OF OHIO, Plaintiff-Appellee, v. GREGORY MCLEMORE, Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristin M. Karkutt, Assistant Prosecuting Attorney, for appellee. Friedman | Gilbert | Gerhardstein and Mary Catherine Corrigan, for appellant.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634181-A
JUDGMENT: AFFIRMED
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristin M. Karkutt, Assistant Prosecuting Attorney, for appellee.
Friedman | Gilbert | Gerhardstein and Mary Catherine Corrigan, for appellant.
JOURNAL ENTRY AND OPINION
MARY EILEEN KILBANE, J.
{¶ 1} Defendant-appellant Gregory McLemore ("McLemore") appeals from his conviction following a guilty plea. For the reasons that follow, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
{¶ 2} In the early morning hours of October 29, 2018, McLemore was with a friend at a gas station struggling to change his vehicle's tire when the victim, Raymere Smith ("Smith"), and his friend approached McLemore. McLemore asked for assistance and Smith provided McLemore with a jack. When McLemore asked Smith to physically help him change the tire, Smith became irate and went into the store. When Smith came back, McLemore pulled out a firearm and shot Smith from behind, killing him.
{¶ 3} On November 5, 2018, a Cuyahoga County Grand Jury indicted McLemore with a ten-count indictment: Count 1, aggravated murder; Count 2, murder; Counts 3 and 4, felonious assault; Count 5, obstructing official business; Count 6, resisting arrest; Counts 7 and 8, having weapons while under disability; Count 9, carrying a concealed weapon; and Count 10, driving under the influence. The first four counts of the indictment included one-year, three-year, and 54-month firearm specifications as well as notice of prior conviction and repeat violent offender specifications. Counts 7 and 8 also each carried one-year firearm specifications, three-year firearm specifications, and 18-month firearm specifications
{¶ 4} On January 10, 2019, McLemore was referred to the court's psychiatric clinic to determine if he was eligible to have his case transferred to the Mental Health and Developmental Disabilities ("MHDD") court. On February 15, 2019, McLemore was found eligible and his case was transferred to the MHDD court. On February 20, 2019, the court ordered McLemore to be evaluated by the court psychiatric clinic to determine if he was competent to stand trial. On March 18, 2019, a competency evaluation report was prepared by the court psychiatric clinic's psychologist, Nicole Livingston, Psy.D. ("Dr. Livingston") who found McLemore competent to stand trial.
{¶ 5} On April 16, 2019, McLemore filed a motion for an independent psychological evaluation at the state's expense. The court granted this motion and, at defense counsel's request, appointed psychologist John Fabien, Psy.D. ("Dr. Fabien"). Despite this request, at the subsequent pretrial on June 13, 2019, McLemore's counsel indicated on the record that after consulting Dr. Fabien they decided to stipulate to the findings of competency as stated by Dr. Livingston in her report.
{¶ 6} On January 21, 2020, the plea hearing occurred. The prosecutor outlined the terms of the plea agreement the parties had reached, including the various amended counts, dismissed specifications, and potential penalties for each count. The agreement required McLemore to plead guilty to Count 2, which was amended to involuntary manslaughter with all the indicted specifications merged to the 54-month specification, Count 3 with all the specifications dismissed, Count 5, and Count 7 with the firearm specifications dismissed. Counts 1, 4, 6, 8, 9, and 10 were to then be dismissed. McLemore also agreed to forfeit the firearm used in the instant case.
{¶ 7} The transcript also reflects that the prosecutor stated that "[pursuant to the plea agreement reached between the State of Ohio and the defendant, it would be agreed that this Court would impose a sentence of flat time between 25 years and 30 years, to be determined by the [c]ourt, and the parties to argue their respective positions." Defense counsel then verified for the court that those were the terms to which the parties had agreed. The court then engaged in a Crim.R. 11 colloquy with McLemore before accepting his guilty plea. McLemore was referred to the court psychiatric clinic for a mitigation report.
{¶ 8} On March 4, 2020, the sentencing hearing was conducted. The state played surveillance footage of the shooting and the victim's father spoke on his behalf. McLemore read a letter he wrote to the court. The trial court then sentenced McLemore, pursuant to the plea agreement, to 29 and a half years in prison.
{¶ 9} This appeal follows, with McLemore asserting a single assignment of error: the trial court abused its discretion by accepting the appellant's guilty plea.
II. LAW AND ANALYSIS
{¶ 10} In his assignment of error, McLemore alleges that the trial court abused its discretion by accepting his guilty plea because he did not enter it knowingly, voluntarily, and intelligently, as required by law. His argument is twofold. First, he alleges that the trial court did not explain the rights he was waiving in violation of Crim.R. 11(C)(2)(c). Second, McLemore argues the trial court did not make sure that he understood the nature and circumstances of the offenses being pled to, specifically the difference between Count 2, murder, and the amended Count 2, involuntary manslaughter in violation of Crim.R. 11(C)(2)(a).
{¶ 11} The process of accepting pleas of no contest and guilty in felony cases is governed by Crim.R. 11(C), which provides the trial court with certain requirements that must be met to accept such pleas. State v. Reed, 8th Dist. Cuyahoga No. 102364, 2016-Ohio-689, ¶ 7. Crim.R. 11(C) provides in relevant part:
(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.
"The underlying purpose, from the defendant's perspective, of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty." Id., quoting State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). "The trial court must engage the criminal defendant in an oral colloquy to ensure a knowingly, voluntarily, and intelligently plea is entered." Id., citing State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶ 12} "A trial court must strictly comply with the requirements related to the waiver of constitutional rights under Crim.R. 11(C)(2)." Id. at ¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. A plea is only voluntary, intelligent, and knowing for these constitutional rights if the trial court engaged in a meaningful dialogue with the defendant where it substantively explained the pertinent constitutional rights "in a manner reasonably intelligible to that defendant." Id., citing Veney at ¶ 27, quoting Ballard. A court's acceptance of a guilty plea will only be affirmed if the trial court engaged in a meaningful dialogue with McLemore that explained the pertinent constitutional rights "in a manner reasonably intelligible to that defendant." State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365, ¶ 7, quoting Ballard.
{¶ 13} The Ohio Supreme Court recently addressed the importance of the trial court's strict compliance with Crim.R. 11(C)(2)(c) in State v. Brinkman, Slip Opinion No. 2021-Ohio-2473. There the trial court failed to advise the defendant in the colloquy before accepting his guilty to plea to aggravated murder of two rights he was waiving, the rights to confront witnesses and to have the state prove his guilt beyond a reasonable doubt. Id. at ¶ 16. The court held "that the trial court's failure to strictly comply with Crim.R. 11(C)(2)(c) before accepting Brinkman's guilty plea renders his plea invalid." Id. at ¶ 19. Because the trial court failed to strictly comply with Crim.R. 11(C)(2), the court vacated his convictions and sentences, which included aggravated murder, and remanded the case for new proceedings. Id. At ¶ 23.
{¶14} The instant case is easily distinguished from Brinkman upon review of the trial court's discussion with McLemore. The transcript reflects that the trial court engaged in a thorough colloquy with McLemore and explained all the constitutional rights he was waiving with his plea as required by Crim.R. 11(C)(2)(c):
THE COURT: You're giving up several of your constitutional rights here today. I want to go over those rights with you. First, do you understand you are presumed innocent and that by entering a plea of guilty you admit to the truth of the facts and your full guilt in this matter? Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right to a trial, your choice of either a jury trial, or you could try it to the Court, that's known as a bench trial, at which time the State must prove your guilt and that you're giving up that right?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right to confront and cross-examine witnesses the State must bring forth at such a trial and that you're giving up that right?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right to subpoena witnesses to testify in your favor at trial and that you're giving up that right?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right to have the State prove you guilt beyond a reasonable doubt at trial and that you're giving up that right?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you have the right not to testify at the time of trial, which no one may comment upon or use against you, and that you're giving up that right?
THE DEFENDANT: Yes.
THE COURT: Do you understand the Court can proceed with judgment and sentence you immediately after your plea? I don't intend on doing that, but I could if I wanted to. Do you understand that?
THE DEFENDANT: Yes.
In the instant case, the trial court here properly discussed all the constitutional rights listed in Crim.R. 11(C)(2)(c) and every time the court asked if McLemore understood, he responded in the affirmative. At no point did McLemore state that he did not understand any of the rights the trial court was informing him about, nor does he point to anything in the record indicating he did not understand his rights at that time. As such, by orally informing McLemore of the various constitutional rights he was waiving prior to accepting his guilty plea, the trial court strictly complied with Crim.R 11(C)(2)(c) and did not abuse its discretion by accepting his plea. Veney at ¶ 29 ("the trial court must orally inform the defendant of the rights set forth in Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be valid.").
{¶ 15} McLemore then argues the trial court failed to substantially comply with Crim.R 11(C)(2)(a), which requires a court to determine that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved. Reed, 8th Dist. Cuyahoga No. 102364, 2016-Ohio-689, at ¶ 10. "For the nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b), this court determines whether there was 'substantial compliance' with the rule." Id. at ¶ 9, citing Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 14-17. "'Substantial compliance' means that under the totality of the circumstances the defendant subjectively understands the implications of his or her plea and the rights he or she is waiving." Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "[I]f it appears from the record that the defendant appreciated the effect of his plea and his waiver of rights in spite of the trial court's error, there is still substantial compliance." Id., quoting State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995). A plea will not be vacated for a trial court's error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the plea colloquy are at issue unless the defendant can show prejudice. Id., citing Veney at ¶ 17.
{¶16} McLemore argues the trial court failed to define the nature or explain the elements of the original charges and the amended charges he pled to. Specifically, McLemore argues that because he has a sixth-grade education, difficulty reading, and had two mental health evaluations ordered by the court, that he could not have understood the nature of the charges he pled to pursuant to the plea agreement.
{¶ 17} A criminal defendant is presumed competent to stand trial, and by extension, enter a plea. Id. at ¶ 14, citing R.C. 2945.37(G). McLemore points to no evidence to rebut this presumption. He was evaluated by the state's mental health expert, Dr. Livingston, who produced a report finding him competent to stand trial. McLemore was given the opportunity by the court to be evaluated by an independent psychologist, but after consulting the expert chose not to be evaluated or produce a contrary report. McLemore even stipulated to Livingston's finding that he was competent to stand trial. The trial court made sure that McLemore was thinking clearly, had taken his medication, and that he understood the charges he was pleading to as well as the maximum sentencing ranges and fines for each of them. The court also made sure that McLemore's lawyers had answered all his questions, including explaining any document he struggled to read. McLemore fails to rebut this presumption of competency.
{¶ 18} The court then went on to explain each and every count McLemore was pleading to, the maximum penalties, the ramifications of pleading to them such as the number of years of mandatory postrelease control. After every explanation the trial court asked if McLemore understood, which he responded with "yes" every time. The trial court even explained the ramifications of the firearm specifications as well as the notice of prior conviction and violent repeat offender specifications and how enforcement of the repeat offender violation specification was a part of the plea agreement. The court also explained that McLemore would be forfeiting the firearm as a part of his plea. After every explanation the court asked if McLemore understood, and he said "yes." Lastly, the court reviewed the final sentencing number and total fines with McLemore, who said he understood.
{¶ 19} At no point in the hearing did McLemore make any indication that he did not understand the amended counts, the dismissed counts, the sentencing ranges, or the fines. His attorneys acknowledged on the record that "he was determined competent[, ]" and that they "don't have any questions today as to his competence * * *." Further, McLemore's responses to the trial court were appropriate answers to the questions posed and never indicated any confusion or lack of understanding. As such, we find the court clearly informed McLemore of the maximum penalties and the mandatory community control sanctions pursuant to Crim.R. 11(C)(2)(a).
{¶ 20} As to the nature of the charges, McLemore alleges that the elements of Count 2, murder, as compared to the amended Count 2, involuntary manslaughter, were not explained to him, in violation of Crim.R. 11(C)(2)(a). The transcript reflects that while the trial court did not detail every element of each offense, it did inform McLemore of the Revised Code section of each count he pled guilty to. Furthermore, it is not always necessary for a trial court to advise a defendant of the elements of the charges. This court has previously held that if a "court substantially complied with the requirements of Crim.R. 11(C)(2)(a), its failure to recite the elements of the offenses does not constitute prejudicial error warranting a vacation of his guilty pleas." State v. Turner, 8th Dist. Cuyahoga No. 80317, 2002-Ohio-3774, ¶ 52; see also State v. McKinney, 7th Dist. Mahoning No. 19 MA 0042, 2020-Ohio-4721, ¶ 23, citing Turner; State v. Arafat, 8th Dist. Cuyahoga No. 76765, 2000 Ohio App. LEXIS 4649 (Oct. 5, 2000) (an understanding of the charge does not equate to a detailed recitation of the elements of an offense). Given the trial court's lengthy colloquy with McLemore and by reciting the Revised Code sections for each count, which detail the elements of the offenses, we find the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a).
{¶ 21} Furthermore, as acknowledged in his brief, at no point after the plea hearing or during the sentencing hearing did McLemore actually ever make a formal motion to withdraw his guilty plea. He points to no evidence in the transcript that demonstrates any confusion or lack of understanding with the charges. Even if this court were to find that the trial court erred in not reciting the elements of the offenses, this error would not be sufficient to vacate his conviction. As previously stated, a plea will not be vacated for a trial court's error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the plea colloquy are at issue unless the defendant can show prejudice. Reed, 8th Dist. Cuyahoga No. 102364, 2016-Ohio-689, at ¶ 9, citing Veney at ¶ 17. McLemore points to no prejudice nor does he indicate how the outcome would have been different, which would be difficult given the strong evidence the state presented at the sentencing hearing, including the video of McLemore walking up to Smith while Smith's back was turned and shooting him. Therefore, we would likely find no prejudice even assuming there was an error.
{¶ 22} Because it appears from the record that McLemore appreciated the effect of his plea and the waiver of his rights, we find that the court substantially complied with Crim.R. 11(C)(2)(a) and did not abuse its discretion accepting McLemore's plea. Reed at ¶ 9, quoting Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).
{¶ 23} Therefore, we overrule McLemore's sole assignment of error.
{¶ 24} 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 conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, A.J., and LARRY A. JONES, S.R., J., CONCUR.