[Cite as State v. Leech, 2020-Ohio-1440.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2019-T-0042
        - vs -                                  :

BRANDON JONTAE LEECH                            :
(a.k.a. “BAMA”),
                                                :
                 Defendant-Appellant.


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2018 CR 00377.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH
44481 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Brandon Jontae Leech (a.k.a. “Bama”), appeals from the

January 16, 2019 entry on sentence issued by the Trumbull County Court of Common

Pleas. The judgment is affirmed.

        {¶2}     On May 30, 2018, appellant was indicted on three counts, all with

accompanying firearm specifications: (1) Attempted Murder (F1), in violation of R.C.
2923.02(A)&(E)(1) and R.C. 2903.02(A)&(D); (2) Felonious Assault (F2), in violation of

R.C. 2903.11(A)(1)&(D)(1)(a); and (3) Felonious Assault (F2), in violation of R.C.

2903.11(A)(2)&(D)(1)(a).

        {¶3}     A suppression hearing was held on November 16, 2018. Appellant sought

to suppress the pretrial identification made by the victim when presented with a photo

array. The trial court found there was no violation of the minimum requirements for

photo lineup procedures, as set forth in R.C. 2933.83(B), and found no violation of

appellant’s constitutional rights. The court concluded appellant failed to establish that

the pretrial identification procedure was unnecessarily suggestive and, upon the court’s

independent review of the photo array, found it was not unduly suggestive as composed

or as presented to the victim. The trial court overruled appellant’s motion on January 2,

2019.

        {¶4}     On January 9, 2019, appellant entered a counseled and negotiated plea of

guilty to an amended indictment. Appellant pleaded guilty to one count of Aggravated

Assault (F4), in violation of R.C. 2903.12(A)(2)&(B). Pursuant to the plea agreement,

the state of Ohio agreed to nolle the remaining counts of the indictment. The parties

jointly recommended a six-month sentence for the underlying offense, to be served

subsequent and consecutive to the mandatory three-year sentence for the firearm

specification.

        {¶5}     The state offered the following factual basis at the plea hearing:

                 Had this case proceeded to trial the State would have proven
                 beyond a reasonable doubt each and every element of the offense
                 as charged in the amended indictment. Specifically the State would
                 have shown that on April 15th, 2018, at the Hideaway Lounge
                 located at 5840 ½ Youngstown Warren Road, Niles, Trumbull
                 County, Ohio, this defendant and the victim Lawrence William



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              Saunders, got into an argument at that location. As a result this
              defendant shot the victim in the mouth. The bullet was later spit out
              two months later by the victim after the victim had previously been
              told by doctors it was not able to be removed due to the risks that
              were involved.

              The State would have offered the testimony of the victim in this
              case, investigating officers, an eye witness to the shooting, as well
              as medical personnel. We also would have offered into evidence at
              trial the victim’s medical records, crime scene photographs and the
              recovered projectile as well as other evidence.

       {¶6}   The trial court accepted appellant’s guilty plea, proceeded directly to

sentencing, and imposed the jointly recommended sentence of three years and six

months.

       {¶7}   The trial court issued its entry on sentence on January 16, 2019, from

which appellant now appeals. He raises one assignment of error for our review:

              THE TRIAL COURT ERRED WHEN IT OVERRULED
              APPELLANT’S MOTION TO SUPPRESS THE PHOTO ARRAY
              IDENTIFICATION BY THE VICTIM.

       {¶8}   Appellant argues the trial court erred when it denied his motion to

suppress the photo array identification by the victim.       Appellee responds—and we

agree—that appellant waived appellate review of the denial of his motion to suppress by

pleading guilty to the offense.

       {¶9}   At the plea hearing, the trial court advised appellant of the appellate rights

he was waiving by entering a plea of guilty:

              THE COURT: If you were convicted at that jury trial you also have
              what’s called the automatic right to appeal and that means you or
              your attorney could file a paper with our Court of Appeals stating
              what errors or irregularities that you or your attorney think occurred
              at the trial of your case. The Court of Appeals would have to hear
              that appeal but they may not necessarily agree on what you or your
              attorney think the errors or irregularities were.




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              If you cannot afford a transcript of the proceedings, the Court will
              provide that for you, and if you cannot afford an attorney to
              represent you, the Court would provide that for you.

              Do you understand what your Court of Appeals rights are?

              THE DEFENDANT: Yes, sir.

              THE COURT: Do you understand by entering a guilty plea here
              today you would be giving up those rights?

              THE DEFENDANT: Yes, sir.

       {¶10} Appellant signed a written plea of guilty, which also provides the following:

              The Court and my Attorney have advised me that by entering this
              Plea of Guilty I am waiving (giving up) the following Constitutional
              Rights: * * * My right to appeal upon conviction after a trial.

              My attorney has advised me that I may only be able to appeal the
              imposition of a maximum sentence or other procedural issues
              regarding this plea. I also understand my other limited appellate
              rights that have been explained to me by the Court * * *.

       {¶11} “A valid guilty plea by a counseled defendant * * * generally waives the

right to appeal all prior nonjurisdictional defects, including the denial of a motion to

suppress.” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶15 (citations omitted).

“A guilty plea is a complete admission of guilt under Crim.R. 11(B)(1), and a ‘defendant

who * * * voluntarily, knowingly, and intelligently enters a plea of guilty with the

assistance of counsel “may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea.”’”

State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶55, quoting State v.

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶78, quoting Tollett v. Henderson,

411 U.S. 258, 267 (1973). See also Class v. United States, ___ U.S. ___, 138 S.Ct.

798, 805 (2018) (“A valid guilty plea also renders irrelevant—and thereby prevents the




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defendant from appealing—the constitutionality of case-related government conduct

that takes place before the plea is entered.”).

       {¶12} An exception does exist, in that a guilty plea does not bar a direct appeal

that challenges “the very power of the State” to prosecute the offender, such as the

constitutionality of a statute under which the offender is convicted. See Class, supra, at

syllabus, citing Blackledge v. Perry, 417 U.S. 21 (1974) and Menna v. New York, 423

U.S. 61 (1975). Appellant does not raise such an argument here. Nor does he argue

that his plea was entered unknowingly, involuntarily, or unintelligently.     Rather, he

argues the trial court erred in concluding the photo array presented to the victim was not

unduly suggestive and that the denial of his motion to suppress affected his decision not

to proceed to trial. By pleading guilty, however, appellant waived his right to raise this

argument on appeal.

       {¶13} Appellant’s sole assignment of error is not well taken.

       {¶14} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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