[Cite as State v. Bhambra, 2017-Ohio-8485.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105283



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              JOBANJEET BHAMBRA
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-601758-A

        BEFORE:          McCormack, P.J., S. Gallagher, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEY FOR APPELLANT

Michael J. Cheselka
75 Public Square, Ste. 920
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Kristin M. Karkutt
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

       {¶1} Defendant-appellant Jobanjeet Bhambra appeals from an order of the trial

court denying his motion to withdraw his guilty plea. For the reasons that follow, we

affirm the trial court.

       {¶2} On December 30, 2015, Bhambra was indicted along with a codefendant on

a multiple-count indictment as follows: Count 1 — rape in violation of R.C.

2907.02(A)(2); Count 2 — rape in violation of R.C. 2907.02(A)(1)(c); Count 3 —

attempted rape in violation of R.C. 2907.02(A)(2); Count 4 — attempted rape in violation

of R.C. 2907.02(A)(1)(c); Count 5 — gross sexual imposition in violation of

R.C. 2907.05(A)(1); Count 6 — kidnapping in violation of R.C. 2905.01(A)(4); Count 7

— rape in violation of R.C. 2907.02(A)(2); Count 8 — rape in violation of R.C.

2907.02(A)(1)(c); and Count 9 — kidnapping in violation of R.C. 2905.01(A)(4). The

charges arise from the sexual assault of a 17-year-old victim.

       {¶3} Thereafter, Bhambra agreed to accept a plea offer from the state that

included an amended charge.     On August 3, 2016, the court held a plea hearing, during

which the state moved to amend Count 4, attempted rape, to the charge of attempted

felonious assault. Bhambra then pleaded guilty to amended Count 4 and Count 5, gross

sexual imposition, as indicted, and the state agreed to dismiss the remaining counts of the

indictment.     On October 14, 2016, the court sentenced Bhambra to three years

imprisonment on Count 4 and 18 months on Count 5, to be served concurrently.
       {¶4} Approximately two weeks later, Bhambra filed a motion to withdraw his

guilty plea, alleging he is innocent of the charges and his plea was not made knowingly,

intelligently, and voluntarily. On November 29, 2016, the trial court denied Bhambra’s

motion, finding no basis for withdrawal of his plea.

       {¶5} On December 21, 2016, Bhambra appealed, attaching the trial court’s order

of November 2016. On appeal, however, Bhambra contends in his sole assignment of

error that the trial court abused its discretion by permitting the state to amend the

indictment from attempted rape to attempted felonious assault at the plea hearing.          He

argues that the amendment resulted in a change in the identity of the offense charged in

the indictment and was therefore improper.       Bhambra’s appeal does not relate to his

motion to withdraw his guilty plea or the trial court’s denial of his motion to withdraw.

       {¶6} We note, initially, that a knowing and intelligent guilty plea to an amended

indictment waives any alleged error within that indictment on appeal. State v. Johnson,

8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 21, citing State v. Simmons, 8th Dist.

Cuyahoga No. 69238, 1997 Ohio App. LEXIS 696 (Feb. 27, 1997). Distinguishing

between cases where an indictment is amended pursuant to a plea agreement from cases

where an indictment is amended and the case proceeds to trial, this court has stated that

where the amendment was made pursuant to a plea bargain in open court with the

defendant’s voluntary agreement, after full disclosure, an indictment may be amended

without returning to the grand jury. Simmons at 6-7, citing State v. Childress, 91 Ohio

App.3d 258, 261, 632 N.E.2d 562 (3d Dist.1993). “Since a counseled guilty plea * * *
waives a defendant’s right to challenge his conviction on constitutional grounds, it must

also operate as a waiver of any claimed errors on grounds relating to the wording of the

indictments.” State v. Hill, 8th Dist. Cuyahoga Nos. 61685, 61686, 1993 Ohio App.

LEXIS 641, 14 (Feb. 4, 1993).

       {¶7} Here, Bhambra does not argue on appeal that his plea was not entered

knowingly and voluntarily.     And we find the record, in fact, demonstrates that Bhambra

knowingly and voluntarily agreed to the amended indictment to which he entered a guilty

plea pursuant to the plea agreement.

       {¶8} Prior to the defendant’s plea, the state advised the court that Bhambra

agreed to plead to an amended Count 4, and at this time, the state moved to amend Count

4, attempted rape, to reflect a charge of attempted felonious assault.    The state also

advised the court that in exchange for the defendant’s guilty plea to the amended Count 4

as well as Count 5, as indicted, the state would move to dismiss the remaining counts of

the indictment. Finally, the state provided that no threats or promises were made to

induce the plea.

       {¶9} Thereafter, the following Crim.R. 11 colloquy occurred:

       Court:       Mr. Bhambra, do you understand that plea arrangement?

       Defendant: Yes, I do.

       Court:       * * * So do you understand, Mr. Bhambra, that you have a
                    right to a grand jury indictment on any charge?

       Defendant: Yes, I do.
      Court:        But if you like this new charge of attempted felonious assault
                    better than the one they charged you with originally, you’re
                    welcome to waive a grand jury indictment and let them
                    substitute this new crime. Understood?

      Defendant: Yes.

      Court:        But it does mean that you would have to waive any complaint
                    about it. In other words, waive any defect in how you were
                    given notice and served with a new charge called attempted
                    felonious assault. Understood?

      Defendant: Yes.

      {¶10} The trial court further explained the charges, including the amended count,

and the possible sentences for the charges.     The court also advised Bhambra of his

constitutional rights, to which Bhambra indicated that he understood. When asked if he

had any questions, Bhambra stated that he did not, and he pleaded guilty to Count 4, as

amended, and Count 5, as indicted.   Bhambra further stated that he was not threatened or

promised anything in exchange for his plea other than the dismissal of the remaining

charges on the indictment.   The court then accepted Bhambra’s guilty plea, finding the

plea was intelligent, voluntary, and knowing, and it found him guilty of the two charges.

      {¶11} Based upon the above, we find Bhambra’s guilty plea was knowingly,

intelligently, and voluntarily entered, and Bhambra knowingly and voluntarily assented,

after full disclosure, to the amended indictment pursuant to his plea agreement.

Bhambra has therefore waived his right to question the validity of his indictment on

appeal.
       {¶12} Notwithstanding Bhambra’s waiver, we find that Bhambra is attempting to

employ the procedure of “bootstrapping” through his appeal.          “Bootstrapping” is “the

utilization of a subsequent order to indirectly and untimely appeal a prior order that was

never directly appealed.”      State v. Williamson, 8th Dist. Cuyahoga No. 102320,

2015-Ohio-5135, ¶ 9. Such attempt is “procedurally anomalous and inconsistent with

the appellate rules that contemplate a direct relationship between the order from which

the appeal is taken and the error assigned as a result of that order” and is disfavored.

Williamson, citing State v. Church, 8th Dist. Cuyahoga No. 68590, 1995 Ohio App.

LEXIS 4838 (Nov. 2, 1995); Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882,

2017-Ohio-1164, ¶ 12 (noting this court’s consistent declination to consider bootstrapped

claims).

       {¶13} Here, Bhambra argues in his sole assignment of error that the trial court

erred in permitting an amendment to his indictment.       However, Bhambra only appealed

the trial court’s denial of his motion to withdraw his guilty plea, attaching the trial court’s

order of November 2016 denying his motion.            The assignment of error is therefore

unrelated to the only order that was timely appealed.     Because Bhambra is attempting to

bootstrap a claim that is now time-barred, we are without jurisdiction to consider it.

State v. Cottrell, 8th Dist. Cuyahoga No. 95053, 2010-Ohio-5254, ¶ 20; see App.R. 4.

       {¶14} Bhambra’s sole assignment of error is overruled.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover of 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.



________________________________________
TIM McCORMACK, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
