[Cite as State v. Jones, 2017-Ohio-1396.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-16-1009

        Appellee                                 Trial Court No. CR0201502313

v.

Terry E. Jones                                   DECISION AND JUDGMENT

        Appellant                                Decided: April 14, 2017

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

        Brad F. Hubbell, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} Appellant, Terry Jones, appeals the January 8, 2016 judgment of the Lucas

County Court of Common Pleas, in which the court sentenced appellant to a prison term

of eight years for attempted rape in violation of R.C. 2923.02 and 2907.02(A)(2), a

felony of the second degree. Finding no error, we affirm.
                                   Assignment of Error

       {¶ 2} Appellant sets forth the following assignment of error:

              The trial court violated Mr. Jones (sic) Fifth Amendment rights

       when the judge participated in the plea negotiation process which resulted

       in a high potential for coercion and resulted in Mr. Jones’ (sic) plea being

       involuntary.

                                           Facts

       {¶ 3} On August 12, 2015, appellant was indicted for unlawful sexual contact with

a minor in violation of R.C. 2907.04(A) and (B)(3), a felony of the third degree; and rape

in violation of R.C. 2907.02(A)(2) and (B), a felony of the first degree.

       {¶ 4} Appellant was alleged to have digitally penetrated and had vaginal

intercourse with a 15-year-old family member in January 2014. As a result of this sexual

contact, the family member gave birth to a child, and DNA testing confirmed appellant

was the biological father.

       {¶ 5} Appellant was arraigned, pled not guilty, and was appointed counsel on

August 18, 2015. On December 17, 2015, a final pretrial was held and, in open court,

appellant withdrew his not guilty plea and entered a plea of no contest to attempted rape

in violation of R.C. 2923.02 and 2907.02(A)(2), a felony of the second degree. Prior to

entering his plea, appellant, his counsel, and the court discussed the charges, his plea, and

his potential sentence. After a thorough explanation and confirmation appellant




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understood the consequences of his plea, the court accepted the plea. Sentencing was

scheduled for January 7, 2016.

       {¶ 6} At sentencing, the court found appellant to be a Tier III sex offender and

ordered him to serve a prison term of eight years. The judgment was journalized

January 11, 2016, and appellant now timely appeals.

                                     Law and Analysis

       {¶ 7} In the sole assigned error, appellant argues his plea was not voluntarily

entered into where the judge participated in the negotiation. Appellee contends the judge

played no role in the negotiation that would have affected appellant’s plea.

       {¶ 8} “In Ohio, although a judge’s participation in plea negotiations is strongly

discouraged, such participation does not per se render a plea invalid under the Ohio and

United States Constitutions.” See State v. Cherry, 6th Dist. Erie No. E-10-045, 2013-

Ohio-2596, ¶ 7, citing State v. Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980).

“Rather, the court in Byrd held that a trial judge’s participation in the plea bargaining

process will be carefully scrutinized to determine if it affected the voluntariness of the

defendant’s plea.” (Quotations omitted.) Id., citing Byrd at syllabus.

       {¶ 9} The trial court’s participation in plea negotiations affects a guilty plea when:

“the judge conveys a message to the defendant that going to trial would be futile; the

judge implies that sentencing after a trial would be greater than sentencing if the

defendant pleads guilty; or the judge goes to great lengths to intimidate a defendant into




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accepting a guilty plea.” See id., citing State v. Lutchey, 6th Dist. Wood No. WD-03-094,

2004-Ohio-4847.

       {¶ 10} Appellant did not sufficiently support his argument that the trial court

implied or said that proceeding to trial would be futile or that proceeding to trial would

add more prison time. Appellant has put forth no facts from the record that support the

court acted in a coercive or intimidating manner. Furthermore, appellant’s counsel was

present throughout the plea negotiation, the negotiation interaction was on record, and the

court never expressed an opinion regarding the merits of the case during the negotiation.

       {¶ 11} Our review of the 20 pages of the transcript on which appellant relies

reveals that the trial court simply assisted defense counsel in explaining the law and its

consequences. We find this allowed appellant to make a more informed decision

regarding his plea. The extensive explanation was due to appellant’s confusion as to

whether the plea charge provided for a mandatory or nonmandatory prison term, and how

that would affect the possibility of his jail-time credit and judicial release. The court

informed appellant that he had a choice of accepting a felony of the second degree with a

possibility of eight years incarceration, which came with a chance of judicial release after

five years; or, accepting a felony of the first degree, with a potential prison term of six,

seven or eight years, but that carried no possibility of early release. Specifically, the

following interaction reflects the relevant dialogue:




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                Appellant: But if I plead to the F1, I don’t know if I’m going to get

       6, 7, or 8. If I plead to the F2, that’s like I’m just saying I want to go do 8

       years.

                The court: Well, you’d be agreeing to it. But the thing is, as the

       law exists today, after five years you’d be eligible to be released.

                Appellant: That ain’t guaranteed.

                The court: No it’s not. I’m not making any promises or

       commitments. * * * It’s your decision. You want to plead to the F1 or the

       F2. But I’d really like for you to talk to your lawyer about that one. * * *

                Counsel: Your Honor, he indicates to me that he wishes to enter a

       plea to the F2 with the stipulation that the sentence be 8 years. * * *

       {¶ 12} Thereafter, appellant’s no-contest plea to the second-degree felony, with

possibility of judicial release, was entered into the record. There was no error in the role

assumed by the court during the plea, and to the contrary, we find it was the trial court’s

duty to thoroughly explain the law and its consequences. See Crim.R. 11(C).

       {¶ 13} Accordingly, the trial court did not abuse its discretion in its January 8,

2016 judgment, and appellant’s assigned error is not well-taken.

                                         Conclusion

       {¶ 14} The judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                          Judgment affirmed.




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                                                                      State v. Jones
                                                                      C.A. No. L-16-1009




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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