[Cite as State v. Hall, 2019-Ohio-633.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 107197




                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                          ARROYAL M. HALL

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-619151-B

        BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: February 21, 2019
ATTORNEY FOR APPELLANT

Richard E. Hackerd
55 Public Square, Suite 2100
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Eben McNair
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶1}    Defendant-appellant, Arroyal Hall (“appellant”), brings the instant appeal

challenging his guilty plea. More specifically, appellant argues that his plea was not knowingly,

intelligently, and voluntarily entered, and that his trial counsel was ineffective for failing to

incorporate the plea agreement on the record at the change of plea hearing.     After a thorough

review of the record and law, this court affirms.

                               I.   Factual and Procedural History

       {¶2} Appellant was indicted on July 14, 2017, for an incident stemming from a traffic

stop conducted by Parma police officers on April 5, 2017. Appellant was driving his vehicle

and had two passengers with him, Kelvin Bunton (“Bunton”), and James Cargill (“Cargill”).      As

officers were conducting the traffic stop, they observed what appeared to be an open liquor bottle

tucked into the rear pocket of the front passenger seat. Officers instructed appellant to turn off
his vehicle, and appellant complied.       While officers were asking appellant and the other

occupants for identification, officers observed appellant’s hands on a large plastic cup that was in

the vehicle’s center console. Officers then asked appellant if they could retrieve the open liquor

bottle.     Officers also asked appellant permission to search his vehicle for any further

contraband. At this point, appellant turned his car back on and drove off.

          {¶3} As officers were pursuing appellant’s vehicle, they observed a large plastic cup

thrown from the driver’s side of appellant’s vehicle.     Officers observed the plastic cup hitting

the street, and observed several items falling out of the plastic cup and scattered on the street.

Officers later discovered these items to be 11 plastic baggies containing large quantities of

cocaine.     Officers eventually caught up to appellant’s vehicle, and Bunton and Cargill were

detained. Appellant fled from the vehicle, and officers were unsuccessful in locating him.

          {¶4} Appellant, Bunton, and Cargill were collectively charged in a nine-count indictment.

 Counts 1, 4, 5, 6, 7, and 9 pertained to appellant. Appellant was charged with Count 1,

trafficking in cocaine, in violation of R.C. 2925.03(A)(2), a first-degree felony, with a major drug

offender specification in violation of R.C. 2941.1410(A); Count 4, possession of drugs, in

violation of R.C. 2925.11(A), a first-degree felony, with a major drug offender specification in

violation of R.C. 2941.1410(A); Count 5, tampering with evidence, in violation of R.C.

2921.12(A)(1), a third-degree felony; Count 6, failure to comply, in violation of R.C.

2921.331(B), a third-degree felony; Count 7, failure to comply, in violation of R.C. 2921.331(B),

a fourth-degree felony; and Count 9, possession of criminal tools, in violation of R.C.

2923.24(A), a fifth-degree felony. The other counts within the indictment were associated with

Bunton, Cargill, and a fourth individual not associated with the traffic stop, Barbara Diluzio.
       {¶5} Appellant eventually pled guilty to Count 1, trafficking in cocaine, a first-degree

felony, Count 5, tampering with evidence, a third-degree felony, and Count 6, failure to comply,

a third-degree felony.     As part of a plea agreement, the major drug offender specification

associated with Count 1 was nolled, and Counts 4, 7, and 9 were nolled as well.

       {¶6} Thereafter, the trial court sentenced appellant to a prison term of seven years on

Count 1, one year on Count 5, to run concurrent to Count 1, and 18 months on Count 6, to run

consecutive to Count 1, for an aggregate prison sentence of eight and one-half years.

       {¶7} Appellant filed the instant appeal assigning two errors for our review.

       I. [Appellant] was denied due process and other rights when his plea was
       accepted by the [t]rial [c]ourt without expressing on the record promises made to
       him regarding sentencing.

       II.    [Appellant’s] counsel was ineffective.

                                  II.   Law and Analysis

                                   A. Plea Agreement

       {¶8} In appellant’s first assignment of error, he argues that his plea was not knowingly,

intelligently, and voluntarily entered because the trial court did not place the plea agreement on

the record.

       {¶9} In determining whether the defendant entered a plea knowingly, intelligently, and

voluntarily, this court examines the totality of the circumstances through a de novo review of the

record. State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7.

       {¶10} First, we note that appellant does not argue that the trial court failed to conduct the

standard plea colloquy as set forth in Crim.R. 11(C). However, appellant does argue that the

trial court failed to place the plea agreement on the record as required by Crim.R. 11(F).

Crim.R. 11(F) states:
       When, in felony cases, a negotiated plea of guilty or no contest to one or more
       offenses charged or to one or more other or lesser offenses is offered, the
       underlying agreement upon which the plea is based shall be stated on the record in
       open court.

       {¶11} To this end, appellant argues that his guilty plea did not comply with Crim.R.

11(F) because appellant believed “there was an agreement for cooperation in exchange for a

reduced sentence and yet that agreement was nowhere spread upon the record.” Appellant’s

brief at 9. Appellant argues that because the plea agreement was omitted from the record, his

plea was not knowing, intelligent, and voluntary.

       {¶12} At the plea hearing, the prosecutor and appellant’s counsel both outlined their

understanding of the plea agreement.     As best we can discern from the record before us, this

plea agreement consisted of reduced charges by way of amending the indictment in exchange for

appellant’s plea of guilty.   More specifically, the state dismissed the major drug offender

specification associated with Count 1, trafficking, and dismissed Count 4, possession of cocaine

and the major drug offender specification associated with that count. The state also dismissed

Count 7, failure to comply, and Count 9, possession of criminal tools.

       {¶13} In our de novo review of the record, we first note that the record indicates that the

court complied with Crim.R. 11(C) and properly found that appellant entered a knowing,

intelligent, and voluntary plea of guilty to the charges in the amended indictment.    Further, the

record indicates that both appellant and appellant’s counsel stated that no threats or promises had

been made.    We note the following exchange between the trial court, the prosecutor, and

appellant’s counsel:

       THE COURT: Any threats or promises made?

       [Prosecutor]: No, your Honor.
        ***

        [Appellant’s counsel]: * * * I have fully discussed all aspects of the case with
        [appellant]. The discovery has truly been extensive. We really [have] been
        working on this plea, or aspects of it for some time.

(Tr. 10.)

        {¶14} Furthermore, we note the following exchange between appellant and the trial court:

        THE COURT: Do you, in fact, understand what’s happening today in this case?

        [Appellant]:   Yes, sir.

        THE COURT: Have any threats or promises been made to you to induce
        you to change your plea?

        [Appellant]:   No, sir.

        THE COURT: Pardon me?

        [Appellant]:   No, sir.

        THE COURT: Are you satisfied with the services of your lawyer[?]

        [Appellant]:   Yes, sir.

(Tr. 12.)

        {¶15} At the sentencing hearing, and prior to the trial court imposing its sentence, the

following exchange occurred:

        THE COURT: Have any threats or promises been made to you other than what has been
        stated in open court on the record today?

        [Appellant]:   No, sir.

        THE COURT: And do you understand there’s no promise of a particular sentence?

        [Appellant]:   Yes, sir.

(Tr. 22-23.)
       [Appellant’s counsel]: Yes. I would like the [c]ourt to fully understand that
       prior to the entry of the guilty plea by [appellant] in this case, he had
       conversations. As a matter of fact, he solicited the police officer I think through
       his wife and he had private conversations with them [in] which he attempted to
       prevail upon them to make recommendations for a minimum sentence.

       [Appellant] told me that he thought they were going to dismiss all of the charges
       and I thought the progress toward some sort of resolution was progressing very,
       very well. As a matter of fact, at one point I was assured that it was going well,
       but later it turned out that the prosecutor told me that the police were not
       completely satisfied that they were able to make full use of whatever had been
       contributed by the defendant. And that the deal, of course, that he thought was
       on board was not about to take place. [Appellant] indicated to me that he
       thought it would dismiss all the charges, although I told him I didn’t believe that
       would happen, he nonetheless believed it, as did his wife.

       But then [appellant] plead and in the end I was told by the prosecutor that the
       information that he had provided was somewhat tardy and had it been given at
       some point earlier, it could very well have benefitted him to a greater degree.

       But given the fact that [appellant] made the effort, and certainly there’s no
       indication that the effort was lacking in sincerity, I would hope that the [c]ourt
       will take all of that into consideration and give [appellant] whatever sentence the
       [c]ourt deems to be appropriate, but be one that would be close to the very, very
       minimum sentence that the [c]ourt could give under the circumstances given his
       efforts to make every effort to cooperate with the police.

(Tr. 29-30.)

       {¶16} Furthermore, at the sentencing hearing, the prosecutor provided the following

information:

       And what happened was [police] encouraged [appellant] to come forward with
       information very close in time to when this incident happened in April of 2017.
       [Appellant] repeatedly declined that invitation.

       And then after [appellant] was apprehended and this case was indicted [appellant]
       eventually late — last year late in 2017 [after appellant was indicted], did meet
       with [police], did provide some information, but as [appellant’s counsel] has
       accurately said, [the information provided] was tardy. So it may be useful
       background information, but it was nothing that was actionable. Had [appellant]
       come forward earlier, it may have been something that was actionable or more
       useful and he may have gotten a greater benefit from that.
       In this case he has accepted responsibility. He has received the benefit of that
       acceptance of responsibility and of his meeting with the officers. We have come
       off the major drug offender specification, which would have been a mandatory
       minimum of 11 years [prison].

(Tr. 31-32.)

       {¶17} Therefore, to the extent that appellant argues that there was a plea agreement, and

that the plea agreement was breached or violated in some way, this assertion is simply not

supported by the record. It is clear from the record before us that there existed an opportunity

for appellant to cooperate with police. That cooperation in return could have resulted in the

possibility of the charges against appellant being dismissed.     However, it appears from the

prosecutor’s and appellant’s counsel’s statements that appellant failed to fully perform with this

opportunity in a timely fashion. As a result of appellant’s failure to seize this opportunity,

appellant was indicted on the charges stemming from the traffic stop.

       {¶18} Nevertheless, we note that the record does reveal that appellant did provide some

information to police.   Whether or not this information was or was not helpful to investigating

officers, we are unable to conclude from the record before us. However, we are able to surmise

that, whatever information appellant did provide clearly benefitted appellant. Undoubtedly,

appellant benefitted from an amended indictment.     As originally charged within the indictment,

appellant was facing a mandatory prison sentence of 11 years on Count 1, with the major drug

offender specification. Moreover, with regards to Count 6, failure to comply, the trial court was

required to run this count consecutive to the trafficking count. As such, appellant was facing a

minimum sentence of 11 years and 9 months on Count 1, with the major drug offender

specification, and on Count 6, respectively. Therefore, appellant clearly received a benefit.
       {¶19} “‘[I]n order to portray a claimed error of failure to comply with Crim.R. 11(F), it

must affirmatively appear in the record that such an ‘underlying agreement’ existed.’”      State v.

Irizarry, 8th Dist. Cuyahoga No. 94727, 2011-Ohio-607, ¶ 12, quoting State v. Triplett, 8th

Dist. Cuyahoga No. 68707, 1995 Ohio App. LEXIS 4740 (Oct. 26, 1995), citing State v. Butler,

44 Ohio App.2d 177, 337 N.E.2d 633 (3d Dist.1974).               “Furthermore, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily

made must show a prejudicial effect.” Irizarry at id., citing State v. Stewart, 51 Ohio St.2d 86,

93, 364 N.E.2d 1163 (1977); Crim.R. 52(A). The test for prejudice is whether the plea would

have otherwise been made. Id.

       {¶20} Therefore, the only plea agreement we can discern from the record is that the state

amended the indictment in exchange for appellant’s plea of guilty.     We find that the trial court

allowed the parties to sufficiently outline the terms of the plea agreement.          Furthermore,

appellant can in no way establish that he was prejudiced because he received the benefit of the

plea agreement: reduced charges and a reduced sentence. Undeniably, appellant received the

benefit of the plea agreement by the amended indictment and reduced sentence.

       {¶21} In our de novo review of the record, we find that Crim.R. 11(F) was not violated

because the plea agreement was, in fact, placed upon the record. As such, we find no evidence

within the record that appellant’s plea was not knowingly, intelligently, and voluntarily entered.

       {¶22} Lastly, in our de novo review of the record, we note that the trial judge of record in

this matter did not preside over appellant’s change of plea hearing.     The trial judge of record

did, however, impose appellant’s sentence in the instant matter.    All parties were aware of this

procedural arrangement. Moreover, appellant and his trial counsel agreed to this arrangement
and stated that they had no objections to such an arrangement. Consequently, we find that any

arguments relative to this arrangement have been waived by appellant.

          {¶23} Accordingly, appellant’s first assignment of error is overruled.

                               B.   Ineffective Assistance of Counsel

          {¶24} In appellant’s second assignment of error, he argues that his trial counsel was

ineffective because he failed to spread the plea agreement upon the record.

          {¶25} This court has previously noted that under certain circumstances, ineffective

assistance of counsel may constitute a manifest injustice warranting the withdrawal of a guilty

plea. State v. Montgomery, 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. However,

if a defendant enters a guilty plea, he or she waives any claim of ineffective assistance of counsel,

except to the extent that the ineffective assistance of counsel caused the defendant’s plea to be

less than knowing, intelligent, and voluntary.        State v. Williams, 8th Dist. Cuyahoga No.

100459, 2014-Ohio-3415, ¶ 11. “In such cases, a defendant can prevail only by demonstrating

that there is a reasonable probability that, but for counsel’s deficient performance, he would not

have pleaded guilty and would have insisted on going to trial.” Id., citing State v. Xie, 62 Ohio

St.3d 521, 524, 584 N.E.2d 715 (1992); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d

203 (1985). A “reasonable probability” is a “probability sufficient to undermine confidence in

the outcome.”      Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).

          {¶26} As we noted in our analysis of appellant’s first assignment of error, appellant

received the benefit of the plea agreement, an amended indictment in exchange for his plea of

guilty. As such, we cannot find that appellant’s counsel’s performance was deficient in any

regard.
       {¶27} Of significant importance to our finding that appellant’s counsel’s performance

was not deficient, we note, again, that appellant was facing a mandatory minimum prison

sentence of 11 years and 9 months because the trial court was required to run Count 6

consecutively.     Furthermore, appellant could have been sentenced to as much as three years on

Count 6, for an aggregate sentence of 14 years on Count 1 and Count 6. This 14-year sentence

would not have even included Count 5, tampering with evidence, which carried with it the

possibility of a prison sentence of 9 to 36 months, or Count 9, possession of criminal tools,

which carried with it the possibility of a prison sentence of 6 to 12 months.    If the trial court

imposed consecutive sentences on these counts, appellant was facing the possibility of an 18-year

prison sentence.

       {¶28} Accordingly, appellant’s second assignment of error is overruled.



                                        III.   Conclusion

{¶29} At the change of plea hearing, the prosecutor and appellant’s counsel both outlined their

understanding of the plea agreement which consisted of reduced charges by way of amending the

indictment in exchange for appellant’s plea of guilty.       As such, appellant’s argument that

Crim.R. 11(F) was in any way violated is meritless. Appellant’s counsel’s performance was not

deficient because he successfully negotiated a plea agreement that substantially decreased the

maximum prison sentence that could have been imposed upon appellant.

       {¶30} 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 convictions having been affirmed,

any bail pending appeal 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
