State v. Timmons

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[Cite as State v. Timmons, 2019-Ohio-2723.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. STEVEN K. TIMMONS, aka STEVEN K. TIMMINS Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 18 MA 0046 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2016 CR 1349 BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges. JUDGMENT: Reversed and Remanded. Plea Vacated. Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee Atty. Katherine E. Rudzik, 26 Market Street, Suite 904, Youngstown, Ohio 44503, for Defendant-Appellant. Dated: June 26, 2019 WAITE, P.J. –2– {¶1} Appellant Steven K. Timmons (also referred to as “Timmins”) appeals an April 2, 2018 judgment entry convicting him of various crimes after he entered an “Alford” plea in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Appellant argues that the trial court failed to conduct the heightened analysis that is required when a defendant enters an Alford plea. Appellant additionally argues that he did not stipulate to a finding of guilt and the state failed to present evidence of his guilt, thus his plea is against the manifest weight of the evidence. In accordance with State v. Redmond, 7th Dist. Mahoning No. 17 MA 0068, 2018-Ohio-2778, Appellant’s arguments have merit and the judgment of the trial court is reversed. As such, Appellant’s plea is vacated and the matter is remanded for further proceedings consistent with relevant law. Factual and Procedural History {¶2} On April 27, 2017, a superseding indictment was filed charging Appellant with: one count of engaging in a pattern of corrupt activity, a felony of the first degree in violation of R.C. 2923.32(A)(1), (B); thirteen counts of burglary, felonies of the second degree in violation of R.C. 2911.12(A)(2), (C); six counts of theft, felonies of the third degree violation of R.C. 2913.02(A)(1), (B)(1)(4); four counts of receiving stolen property, felonies of the fourth degree in violation of R.C. 2913.51(A), (C); two counts of receiving stolen property, felonies of the fifth degree in violation of R.C. 2913.51(A), (C); three counts of receiving stolen property, misdemeanors of the first degree in violation of R.C. 2913.51(A), (C); one count of possession of cocaine, a felony of the fifth degree in violation of R.C. 2925.11(C)(4), (A); and one count of possession of heroin, a felony of the fifth degree in violation of R.C. 2925.11(C)(6), (A). Case No. 18 MA 0046 –3– {¶3} On January 23, 2018, Appellant entered an Alford plea to the following charges: one count of engaging in a pattern of corrupt activity; seven counts of burglary; two counts of theft; one count of receiving stolen property (felony of the fourth degree); one count of receiving stolen property (felony of the fifth degree); and one count of possession of cocaine. The remaining charges were dismissed. {¶4} On April 2, 2018, the trial court sentenced Appellant as follows: eight years of incarceration for engaging in a pattern of corrupt activity, five years for each count of burglary, thirty-six months for each count of theft, eighteen months for each count of fourth degree receiving stolen property, one year for a fifth degree count of receiving stolen property, and one year for possession of cocaine. The burglary, receiving stolen property, theft, and possession sentences were ordered to run concurrently but consecutively to the sentence for engaging in a pattern of corrupt activity, for an aggregate total of thirteen years of incarceration. The trial court credited Appellant with 485 days of time served. This timely appeal followed. ASSIGNMENT OF ERROR NO. 1 TIMMINS' PLEA WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY BECAUSE THE TRIAL COURT FAILED TO CONDUCT THE HEIGHTENED INQUIRY REQUIRED WHEN ACCEPTING A PLEA PURSUANT TO ALFORD. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT'S FINDING OF TIMMINS GUILTY, PURSUANT TO AN ALFORD PLEA WAS AGAINST THE MANIFEST WEIGHT OF THE Case No. 18 MA 0046 –4– EVIDENCE BECAUSE THE PROSECUTION DID NOT MAKE A SEPARATE PRESENTATION OF EVIDENCE WHEN TIMMINS MADE NO STIPULATION AND THE RECORD BEFORE THE TRIAL COURT DID NOT CONTAIN STRONG EVIDENCE OF ACTUAL GUILT. {¶5} Appellant argues in his first assignment of error that the trial court failed to conduct the heightened Alford inquiry at the plea hearing. In his second assignment of error, Appellant argues that the trial court’s finding of guilt is against the manifest weight of the evidence because he did not stipulate to guilt and there is nothing within the record to support a guilty finding. {¶6} In response, the state argues that the trial court did conduct a heightened Alford plea. Further, the state contends defense counsel advised the court that, in an hour long meeting between the parties, Appellant was open and honest about his involvement in the charged offenses. {¶7} An Alford plea occurs when “a defendant pleads guilty yet maintains actual innocence of the charges.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 13. Under Ohio law, an Alford plea is properly accepted where the record demonstrates: (1) the defendant's plea was not the result of coercion, deception or intimidation; (2) defense counsel was present at the time the plea was entered; (3) defense counsel's representation was competent in light of the circumstances of the indictment; (4) the plea was entered with an understanding of the underlying charges; and (5) the defendant was motivated by a desire for a lesser penalty, a fear of the consequences of a jury trial, or both. State v. LaBooth, 7th Dist. Mahoning No. 15 MA Case No. 18 MA 0046 –5– 0044, 2017-Ohio-1262, ¶ 23, citing State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus. {¶8} We recently addressed this issue in Redmond. In Redmond, aside from a few mentions of the word “Alford” and a handwritten note of “Alford” on the written plea form, the plea hearing was indistinguishable from an ordinary Crim.R. 11 plea hearing. Id. at ¶ 13. The trial court failed to undertake a heightened Alford analysis as it did not ascertain the appellant’s motivation for entering his plea. Further, the state failed to present any background information on the charges against him or any facts or evidence of the case and the appellant did not stipulate to guilt. Consequently, we held that the record did not include evidence of any of the requisite information in order to allow us to find that the Redmond appellant entered his plea knowingly, intelligently, and voluntarily. Id. at ¶ 15. {¶9} Here, the trial court also conducted a hearing that mirrored a typical Crim.R. 11 plea hearing. The court mentioned the word “Alford” and included a handwritten notation of “Alford” on the plea form. Other than these limited references, there is no evidence that the court conducted the heightened Alford analysis. Specifically, the trial court failed to inquire whether Appellant was motivated by a desire for a lesser charge or fear of the consequences of a jury trial. The state contends that this advisement is found on pages four and five of the transcript. Turning to the transcript, it reveals that Appellant’s counsel stated: “Your Honor, I can say I believe in all the years I’ve practiced, I don’t think I’ve ever represented someone that knew the facts of the case as well as [Appellant] knew the facts of his case. As the court is aware, on Friday the three of us sat down probably for in excess of an hour, and I believe that my client was open and Case No. 18 MA 0046 –6– very honest about his involvement with Attorney Andrews.” (Plea Hrg. Tr., p. 5.) Nowhere in this passage does Appellant or his counsel mention a motivation for entering an Alford plea. Appellant’s counsel merely stated that Appellant knew the facts of his case. We cannot infer the presence of the Alford factors; the law requires a heightened analysis. This record is devoid of any facts that would have enabled the trial court to find that Appellant was motivated by a desire for a lesser charge or that he feared the consequences of a jury trial. {¶10} Additionally, the record is devoid of any background information on the charges or any facts or evidence of the case. Aside from a recitation of the charges, no information was provided at the plea hearing on either the basis of the charges or the facts or evidence of the case. The state contends that when defense counsel mentioned in court that his client was “open and very honest” with the prosecutor this statement amounts to a stipulation of guilt. Clearly, this statement by counsel was not such a stipulation, and no facts or evidence were presented by any party at the hearing. {¶11} Because the record does not support a finding that the trial court properly held a heightened Alford inquiry, and because the state failed to provide background information as to the facts and evidence of the case, we cannot find that Appellant entered into his Alford plea knowingly, intelligently, and voluntarily. {¶12} Accordingly, Appellant’s first and second assignments of error have merit and are sustained. Conclusion {¶13} Appellant argues that the trial court failed to conduct the heightened analysis that is required when a defendant enters an Alford plea. Appellant also argues Case No. 18 MA 0046 –7– that he did not stipulate to a finding of guilt and the state failed to present evidence of his guilt, thus his plea is against the manifest weight of the evidence. For the reasons provided, Appellant’s arguments have merit and the judgment of the trial court is reversed. Consequently, Appellant’s plea is vacated and the matter is remanded for further proceedings according to law. Donofrio, J., concurs. Robb, J., concurs. Case No. 18 MA 0046 [Cite as State v. Timmons, 2019-Ohio-2723.] For the reasons stated in the Opinion rendered herein, the assignments of error are sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is reversed and Appellant’s plea is vacated. We hereby remand this matter to the trial court for further proceedings according to law and consistent with this Court’s Opinion. Costs to be taxed against the Appellee. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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