[Cite as State v. Turner, 2016-Ohio-3325.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 103610 and 103611




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                               HEATH CLAY TURNER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-14-586796-B and CR-14-586935-A

        BEFORE: E.T. Gallagher, J., Keough, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: June 9, 2016
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113-2098


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John D. Kirkland
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Heath Clay Turner (“Turner”), appeals his guilty pleas

and sentences in two cases. He raises the following three assignments of error:

      1. The defendant was denied due process of law when the court overruled
      defendant’s motion to withdraw his pleas of guilty.

      2. The defendant was denied due process of law when the court did not
      inform the defendant that the firearm specifications would have to be served
      consecutively to one another.

      3. The defendant was denied due process of law when the court
      disapproved defendant’s placement into an intense prison program.

      {¶2} We find no merit to the appeal and affirm the trial court’s judgment.

                           I. Facts and Procedural History

      {¶3} In Cuyahoga C.P. No. CR-14-586796-B, Turner was charged with four

counts of aggravated burglary, one count of attempted murder, seven counts of felonious

assault, 15 counts of aggravated robbery, 14 counts of kidnapping, two counts of illegal

possession of a firearm in a liquor permit premises, and three counts of having a weapon

while under disability. In Cuyahoga C.P. No. CR-14-586935-A, Turner was charged

with one count of theft and one count of unauthorized use of a vehicle.

      {¶4} The charges in Case No. CR-14-586796-B arose from a series of armed

robberies in bars and restaurants in Parma and Independence, Ohio. A patron at one of

the bars was shot in the back, and other victims were “pistol whipped.” Turner was

named in the indictment along with codefendants Cortique Higgins (“Higgins”),
Diamante Collins, and Lee Adams II. Higgins was the alleged gunman in the crime

spree.

         {¶5} Pursuant to a plea agreement, the state agreed to nolle all but seven counts

and all three-year firearm specifications in exchange for Turner’s truthful testimony

against his codefendants. Accordingly, Turner pleaded guilty to one count of aggravated

burglary, three counts of kidnapping, two counts of aggravated robbery, and one count of

felonious assault. Turner also pleaded guilty to the attendant forfeiture specifications

and three one-year firearm specifications. In Case No. CR-14-586935-A, Turner pleaded

guilty to both counts charged in the indictment.

         {¶6} Prior to sentencing, Turner moved to withdraw his guilty plea, and the court

held a hearing on the motion. Turner’s lawyer advised the court that Turner mistakenly

believed he would be sentenced to a four-year prison term when he entered his plea.

However, counsel conceded the court never suggested Turner would receive a four-year

sentence.

         {¶7} The court, prosecutor, and defense counsel reviewed the transcript from the

plea hearing to determine if there was any basis for Turner’s purported confusion

regarding his potential sentence. The prosecutor read the following language from page

ten of the transcript:

         And do you further understand that there’s been a sentence of eight years
         discussed in this matter? That is not a promise. I am free at any time to
         disregard that recommendation.

         Do you understand that?
       THE DEFENDANT: Yes, sir.

(Tr. 10, 31.)

       {¶8} Upon further questioning, defense counsel explained that Turner had been in

the county jail for 15 months and none of this time could be applied to any possible

judicial release. Turner was fearful of Higgins, who was also in the county jail and had

twice threatened Turner with retaliation for snitching. Counsel also asserted Turner would

be known as a snitch when he is later incarcerated at the Lorain correctional facility.

       {¶9} The court afforded Turner an opportunity to speak at the hearing.             He

explained: “I don’t want to be around the man who has threatened me.” Referring to his

codefendants, Turner further stated:

       Here’s the thing. I need them to go down before me so I can be — so they
       can go down, that way when I go down, I can tell them who I’m separated
       from and they will — they will make the separation.

Neither Turner nor counsel made any further argument regarding any claimed confusion

or misunderstandings at the time Turner entered his guilty pleas.

       {¶10} The trial court denied Turner’s motion to withdraw his guilty plea. The

court sentenced Turner to five years on each of the predicate offenses in Case No.

CR-14-586796-B, and one year on each of three firearm specifications to be served

consecutively for an aggregate eight-year prison term. In Case No. CR-14-586935-A,

the court sentenced Turner to 12 months in prison to be served concurrently with his

eight-year sentence in Case No. CR-14-586796-B. Turner now appeals the trial court’s

judgment.
                                  II. Law and Analysis

                                      A. Guilty Plea

       {¶11} In the first assignment of error, Turner argues the trial court violated his

right to due process of law when it overruled his motion to withdraw his guilty pleas. He

contends his pleas should be vacated because there were “irregularities” at the plea

hearing that created a “manifest injustice.”

       {¶12} Crim.R. 32.1 governs motions to withdraw guilty pleas and states 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.”

       {¶13} “[A] presentence motion to withdraw a guilty plea should be freely and

liberally granted.”   State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

However, a defendant does not have an absolute right to withdraw a guilty plea prior to

sentencing. Id. at paragraph one of the syllabus. Indeed, a mere change of heart is not a

sufficient justification for vacating a guilty plea. State v. Bloom, 8th Dist. Cuyahoga No.

97535, 2012-Ohio-3805, ¶ 13. Before ruling on a motion to withdraw a guilty plea, “the

trial court must conduct a hearing to determine whether there is a reasonable legitimate

basis for the withdrawal of the plea.” Id.

       {¶14} The decision to grant or deny a presentence motion to withdraw is within the

trial court’s discretion.   Id. at paragraph two of the syllabus. We, therefore, will not

disturb the trial court’s judgment absent an abuse of discretion.   Id. at 527.
       {¶15} A trial court does not abuse its discretion in denying a motion to withdraw

the plea where a defendant was (1) represented by competent counsel, (2) given a full

Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion

to withdraw, and (4) the record reflects that the court gave full and fair consideration to

the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863

(8th Dist.1980), paragraph three of the syllabus.

       {¶16} Before accepting a guilty plea, Crim.R. 11(C)(2)(a)-(c) requires that the trial

court personally address the defendant and

       (1) determin[e] 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[,]

       (2) [i]nform[ ] the defendant of and determin[e] 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[;]
       [and]

       (3) [i]nform the defendant and determin[e] 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.

       {¶17} When a trial court engages in a plea colloquy with the defendant, it must

strictly comply with Crim.R. 11(C)(2)(c), which sets forth the constitutional rights a

guilty plea waives. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 18. Thus, the trial court must explain to the defendant that by pleading guilty, he
waives (1) the right to a jury trial, (2) the right to confront one’s accusers, (3) the right to

compulsory process to obtain witnesses, (4) the right to require the state to prove guilt

beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination.

Veney at syllabus.

       {¶18} The trial court held a hearing and gave full and fair consideration to his

motion to withdrawal his guilty pleas.      Moreover, the record reflects the court engaged

in a thorough Crim.R. 11 colloquy with Turner.            The court informed Turner, and

determined he understood, that he was waiving his constitutional rights to a jury trial, to

confront the witnesses against him, to call witnesses in his favor, and to require the state

to prove his guilt beyond a reasonable doubt. He also understood that no one could

compel him to testify against himself and that no one could comment on his decision to

remain silent.

       {¶19} As previously stated, the court made clear that it was not bound by the

agreed eight-year sentence that was part of Turner’s plea agreement with the state.        The

court individually described each count to which Turner was pleading guilty and

identified its felony level. In explaining the potential penalties that could be imposed by

virtue of his guilty pleas, the court stated:

       THE COURT: All right. Going over potential penalties right here. Most
       of these are felonies of the first degree. Felonies of the first degree carry a
       potential prison sentence of three to 11 years in yearly increments and a fine
       of no more than $20,000.

       A felony of the second degree, which is Count 26, two to eight years in state
       prison in yearly increments and a fine of no more than $15,000.
      ***

      Do you understand that?

      THE DEFENDANT: Yes, sir.

      {¶20} Further, the court informed Turner that he would be required to serve any

firearm specifications prior to and consecutive to any sentence imposed on a predicate

offense.   (Tr. 11.)   The court also explained (1) the mandatory nature of postrelease

control and the consequences of violating postrelease control, (2) that Turner’s guilty

pleas would result in forfeiture of certain property, (3) the court could hold him

responsible for court costs and supervision fees, and (4) he would have to pay restitution

to the victims.   Thus, the record reflects the court    fully advised Turner of all the

constitutional and procedural protections set forth in Crim.R. 11(C). There were no

“irregularities” nor “manifest injustice” in either the plea proceedings or the court’s

decision to deny Turner’s plea withdrawal request.

      {¶21} Therefore, the first assignment of error is overruled.

                               B. Firearm Specifications

      {¶22} In the second assignment of error, Turner argues the court violated his right

to due process of law by failing to inform him that he would have to serve the prison

terms on the firearms specifications consecutively.    Turner concedes the court advised

him in the plea colloquy that a one-year firearm specification “must be served prior to and

consecutive to any sentence given,” but claims he was unaware that the court could run
each of the one-year prison terms on the firearm specifications consecutive to one

another.

       {¶23} In State v. Johnson, 40 Ohio St.3d 130, 134, 532 N.E.2d 1295 (1988), the

Ohio Supreme Court held that, “[f]ailure to inform a defendant who pled guilty to more

than one offense that the court may order him to serve any sentences it imposed

consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does

not render the plea involuntary.”

       {¶24} Turner, however, cites State v. Petitto, 8th Dist. Cuyahoga No. 95276,

2011-Ohio-2391, in support of his argument. In Petitto, the court failed to explain that

sentences on each offense could be served consecutively. However, that was not the basis

for this court’s reversal of the trial court’s judgment. Rather, this court concluded that

       under the totality of the circumstances, the appellant could not have
       subjectively understood the implications of his plea because the trial court’s
       ambiguous reference to a potential “prison term of anywhere from one to
       five years” failed to convey to him that the potential maximum prison term
       for each offense was five years. The prejudice to appellant is obvious
       from the record. A plain reading of the trial court’s language would lead
       one to believe that the maximum penalty he faced was 5 years,
       cumulatively. The trial court was not required to inform appellant that the
       individual penalties for his offenses could be served consecutively.
       However, we hold that a trial court errs when it fails to inform the
       defendant of the maximum penalty for each offense and uses misleading
       language in connection with multiple offenses that ambiguously refers to a
       single maximum penalty.

Id. at ¶ 13.

       {¶25} As previously stated, the trial court in this case reviewed each count

individually and explained the potential range of penalties applicable to each count.   The
trial court also acknowledged that because the plea agreement required an aggregate

eight-year prison term, it would run all prison terms concurrently.      However, the court

warned that if Turner did “something stupid,” the court could order consecutive

sentences.   Under the totality of these circumstances, we find that the trial court’s failure

to specifically state that prison terms on the firearm specifications could run

consecutively did not render Turner’s plea involuntary.

      {¶26} Accordingly, the second assignment of error is overruled.

                              C. Intense Prison Program

      {¶27} In the third assignment of error, Turner argues the trial court violated his

right to due process of law when it arbitrarily disapproved of placing him in an intensive

prison program (“IPP”).

      {¶28} IPPs focus on “‘educational achievement, vocational training, alcohol and

other drug abuse treatment, community service and conservation work, and other

intensive regimens or combinations of intensive regimens.’”      State v. Howard, 190 Ohio

App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, ¶ 10 (2d Dist.), quoting R.C. 5120.032.

Trial courts have discretion to recommend placement of an offender into an IPP pursuant

to R.C. 5120.032.

      {¶29} However, only eligible prisoners may participate in an IPP, and R.C.

5120.032(B)(2)(a) specifically excludes individuals serving prison terms for first- and

second-degree felonies from participating in an IPP.          R.C. 5120.032(B)(2)(c) also
excludes offenders serving prison terms for third-, fourth-, and fifth-degree felonies “in

which the prisoner caused or attempted to cause actual physical harm to a person.”

        {¶30} If the court recommends or disapproves of placement in an IPP, R.C.

2929.19(D) requires that the court “make a finding that gives its reasons for its

recommendation or disapproval.”     Turner argues the trial court violated R.C. 2929.19(D)

by arbitrarily disapproving of his placement in IPP without explanation. He relies on

Howard, supra, in support of his argument.

        {¶31} In Howard, the defendant argued the trial court erred by disapproving shock

incarceration, IPP, and transitional control as part of his sentence following termination

of his community control sanctions.        The trial court did not address IPP, shock

incarceration, or transitional control at the sentencing hearing, but rejected the

defendant’s potential participation in those programs in a subsequently filed termination

entry. On appeal, the court reversed the trial court’s judgment, in part, because the trial

court failed to give its reasons for its disapproval as required by R.C. 2929.19(D).   Id. at

¶ 39.

        {¶32} However, the Howard court further held that where a trial court fails to

orally mention IPP at the sentencing hearing, the reviewing court may review the entire

record and sentencing transcript for “implied reasons for disapproval.” Id. at ¶ 29-32,

citing State v. Heger, 5th Dist. Perry No. 2008-CA-1, 2009-Ohio-2691, and State v.

Lowery, 11th Dist. Trumbull No. 2007-T-0039, 2007-Ohio-6734.
        {¶33} Howard was convicted of one count of abduction.            The court observed that

Howard’s abduction conviction did not necessarily make him ineligible for IPP. Id. at ¶

26.   The Howard court observed that abduction could be committed under circumstances

that place the victim in fear without any attempt of physical harm.         In reversing the trial

court’s judgment, the Howard court explained:

        The record in the case before us is silent concerning the specific
        circumstances of the alleged crime, and the trial court did not mention the
        facts of the crime at the revocation hearing.

        *      *        *

        In the case before us, the record does not contain any finding by the trial
        court “that gives reasons for its * * * disapproval [of shock incarceration or
        an intensive program prison].” Nor does the record contain any other
        findings by the trial court that could be deemed to constitute its implied
        reasons for disapproval of either program.

        In short, the record reflects a complete failure by the trial court to have
        complied with the finding requirement of R.C. 2929.19(D). We are
        therefore unable to conclude that the trial court substantially complied with
        that requirement.

        {¶34} We find Howard distinguishable from the case before us.            Turner pleaded

guilty and was convicted of first- and second-degree felonies, which made him

automatically ineligible for IPP under R.C. 5120.032(B)(2).                Moreover, the court

commented at the sentencing hearing that at least one victim sustained serious physical

harm.       (Tr. 58.)       As previously stated, offenders serving prison terms for first- or

second-degree felonies or other felonies involving attempts to cause physical harm are

ineligible for IPP.         Therefore, despite Turner’s argument to the contrary, the trial court

provided appropriate reasons for disapproving of Turner’s placement in an IPP.
      {¶35} The third assignment of error is overruled.

      {¶36} 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 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.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
