[Cite as State v. Starr, 2016-Ohio-1004.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Sheila G. Farmer, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 15-CA-36
MARK M. STARR                                   :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    2014CR0240D

JUDGMENT:                                           Affirmed




DATE OF JUDGMENT ENTRY:                             March 11, 2016



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

MELISSA ANGST                                       CASSANDRA MAYER
Assistant Prosecuting Attorney                      452 Park Ave. West
38 South Park Street                                Mansfield, OH 44906
Mansfield, OH 44902
Richland County, Case No. 15-CA-36                                                              2

Gwin, J.

       {¶1}    Appellant Mark M. Starr [“Starr”] appeals his convictions and sentences on

one count of Trafficking in Heroin, near a juvenile, a felony of the first degree and one count of

Possession of Heroin, near a juvenile, a felony of the second degree.

                                         Facts and Procedural History

       {¶2}    On June 6, 2014, Starr was indicted by the Richland County Grand Jury on

one count of trafficking heroin in the vicinity of a school zone and/or juvenile with two (2)

forfeiture specifications, in violation of R. C. 2925.03(A)(2) & (C)(6)(c), a felony of the first

degree and one count of possession of heroin in the vicinity of school zone and/or juvenile

with two (2) forfeiture specifications, in violation of R. C. 2925.11(A) &(C)(6)(d), a felony of

the second degree.

       {¶3}    A Motion to Suppress and/or Limit the Use of Evidence was filed on October

21, 2014 and an evidentiary hearing on the motion occurred on November 12, 2014. The

trial court denied Starr’s motion to suppress.

       {¶4}    On February 24, 2014, a change of plea hearing occurred two days prior to the

scheduled start of Starr’s jury trial.

       {¶5}    The trial judge provided Starr time to privately review the written explanation of

rights with his attorney. After the meeting, Starr’s attorney requested to approach the bench

and stated, "he would like to enter no contest pleas and submit to a finding of guilty by the

Court just in case he decides at some point to challenge his suppression hearing.” The judge

responded, "...he's going to be pleading, I am ordering a presentence investigation and so I

need guilty pleas, otherwise he can have his trial tomorrow if he wants.”
Richland County, Case No. 15-CA-36                                                            3


       {¶6}   After another private conversation between Starr and his counsel, his attorney

informed the trial court that, "he's ok with that then.” After subsequent questions by the judge

about his understanding and if he had any questions of his counsel or of the trial court, Starr

responded, "I'm just ready to get this over with.” (TR 12: 14-15). Starr plead guilty and a

presentence investigation was ordered.

       {¶7}   Starr was sentenced on or about March 16, 2015, to a term of mandatory

incarceration of seven years.

                                         Assignment of Error

       {¶8}   Starr raises one assignment of error,

       {¶9}   “I. THE TRIAL COURT ERRED AND USED ITS DISCRETION WHEN IT

REFUSED TO ACCEPT DEFENDANT'S NO CONTEST PLEA TO THE INDICTMENT.”

                                          Law and Analysis

       {¶10} In his sole assignment of error, Starr maintains that his plea was not knowingly,

voluntarily or intelligently entered as the trial court refused to accept his no contest plea to

allow him to appeal the denial of pre-trial motions.

              In State v. Lovelace, this Court observed,

              This Court has indeed recognized that a defendant, by entering a guilty

       plea, waives the right to raise on appeal the propriety of a trial court’s

       suppression ruling. See State v. Bennett, 5th Dist. Stark No.2013CA00097,

       2013–Ohio–4453, ¶ 10, citing State v. Elliott, 86 Ohio App.3d 792, 621 N.E.2d

       1272 (12th Dist.1993). Also, in State v. Pepper, 5th Dist. Ashland No. 13 COA

       019, 2014–Ohio–364, this Court emphasized: “In the review of an attempt to

       withdraw * * * [a] negotiated plea after the fact, we must * * * bear in mind that
Richland County, Case No. 15-CA-36                                                            4


       the trial court is under a duty pursuant to Crim.R 11 to ensure that the plea

       comports with constitutional standards.” Id. at ¶ 40, citing State v. Stowers, 8th

       Dist. Cuyahoga No. 48572, 1985 WL 7495 (additional citations omitted).

       {¶11} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. A trial court has the discretion to accept or reject a no contest plea. State v.

Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264(1984). “The plea of no contest is not an

admission of defendant's guilt, but is an admission of the truth of the facts alleged in the

indictment, information, or complaint, and the plea or admission shall not be used against the

defendant in any subsequent civil or criminal proceeding.” Crim.R. 11(B)(2). A no contest

plea does not preclude defendant from asserting, on appeal, that the trial court erred in ruling

on a pretrial motion. Crim.R. 12(H).

       {¶12} Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d at 475, 423 N.E.2d at 117,

citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Griggs, 103

Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted the

following test for determining substantial compliance with Crim.R. 11:

              Though failure to adequately inform a defendant of his constitutional

       rights would invalidate a guilty plea under a presumption that it was entered

       involuntarily and unknowingly, failure to comply with non-constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

       prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

       The test for prejudice is ‘whether the plea would have otherwise been
Richland County, Case No. 15-CA-36                                                               5


       made.’ Id. Under the substantial-compliance standard, we review the

       totality of circumstances surrounding [the defendant’s] plea and determine

       whether he subjectively understood [the effect of his plea].” See, State v.

       Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

       {¶13} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished between constitutional and non-

constitutional rights. State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-

3748 at ¶ 32; State v. Aleshire, 5th Dist. Licking No. 2007-CA-1, 2008-Ohio-5688, ¶10.

The trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to

the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at

499, 2008-Ohio-3748, ¶ 31.

       {¶14} Starr does not argue or allege that the trial court judge failed to satisfy his duties

under Crim. R. 11 in taking the plea; rather Starr asserts that under the totality of the

circumstances, the trial court’s summary denial of his no contest plea caused his guilty plea

to be involuntary.

       {¶15} We are not faced with a situation in which the trial court has a blanket policy of

rejecting no contest pleas. See, State v. Fitzgerald, 188 Ohio App.3d 701, 2010-Ohio-3721,

936 N.E.2d 585(8th Dist. 2010); State v. Carter, 124 Ohio App.3d 423, 427-428, 706 N.E.2d

409(2nd Dist. 1997). We further note that Crim.R. 11(C)(2) does not require a trial court to

list its reasons for rejecting a no-contest plea. We also note that the record does not

demonstrate that the state agreed to a no-contest plea.
Richland County, Case No. 15-CA-36                                                             6


       {¶16} The record supports a finding that Starr was aware of the distinction between

a no contest plea and a guilty plea, was represented by competent counsel, and knowingly

and voluntarily chose to plead guilty.

       {¶17} A trial court has discretion to accept or reject a no contest plea. State v.

Jenkins, 15 Ohio St.3d 164, 222, 473 N.E.2d 264(1984). In fact, a defendant has no

constitutional right to have his guilty plea accepted. See North Carolina v. Alford, 400 U.S.

25, 91 S.Ct. 160, 27 L.Ed.2d 162(1970); Jenkins, 15 Ohio St.3d at 222-223, 473 N.E.2d 264.

       {¶18} In State v. Nezalova cited by Starr, the Court of appeals found the trial court

abused its discretion in failing to accept the defendant’s no contest plea. 10th Dist. Franklin

Nos. 00AP-1246, 01AP-1067, 00AP-1245, 01AP-1068, 2002-Ohio-3081. The Court of

Appeals observed,

              We cannot say with absolute certainty that appellants' guilty pleas

       and waiver of their right to appeal the denial of the pretrial motions, were

       not clouded or tainted by the trial court's refusal to accept their no contest

       pleas, and the trial court's perceived urgency to complete the proceedings

       of the case to allow the court's staff to have an adequate lunch break before

       the jurors returned.

Id. at ¶47. In the case at bar, the trial judge exercised his discretion to refuse to accept a no

contest plea. The trial judge did not express any concern for urgency and gave Starr the

opportunity to discuss the plea with his attorney. (T., Change of Plea Hearing, Feb 24, 2015

at 11-12]. After the discussion, Starr’s defense attorney advised the judge, “Your Honor, he’s

okay with that then.” Id.
Richland County, Case No. 15-CA-36                                                                      7

        {¶19} In State v. Harper cited by Starr1 the Court found,

                In the case sub judice, the court stated that on a plea of no contest, “all

        deals are off as far as the minimum sentence is concerned, since he’s going

        to appeal.” This statement and the other statements highlighted above not

        only indicate the judge’s improper involvement in plea bargaining, but also that

        the judge did not wish to accept a no-contest plea in order to prevent

        defendant’s exercise of his right to appeal. We are constrained to conclude

        that the trial court abused its discretion by basing its decision whether to accept

        a no-contest plea upon such inappropriate considerations.

47 Ohio App.3d 109, 112, 547 N.E.2d 395(1st Dist. 1988). In the case at bar, the trial judge

did not express any desire to prevent Starr from appealing the denial of his motion to

suppress as the reason for refusing a no contest plea. Nor does the record indicate that the

judge was involved in the plea bargaining process. As previously noted nothing in the record

before this court does not indicates that the state had agreed to a no contest plea.

        {¶20} Starr was arraigned on June 24, 2014. A jury trial had been scheduled for

August 21, 2014. On August 18, 2014, Starr filed a motion to continue the trial date. The

trial court granted Starr’s request to continue the trial date by judgment entry filed August 20,

2014. A new trial date was scheduled for October 9, 2014. On October 6, 2014, Starr’s

attorney filed a motion to continue the October 9, 2014 trial date. The trial court granted the

request by Judgment Entry filed October 8, 2014. A new trial date was scheduled for

November 11, 2014.




        1Starr mistakenly cites this case as State v. Harper, 47 Ohio St.3d 109. See, Appellant’s Brief at
8. The proper citation is State v. Harper, 47 Ohio App.3d 109, 547 N.E.2d 395(1st Dist. 1988).
Richland County, Case No. 15-CA-36                                                           8


       {¶21} On October 9, 2014, the trial court issued a bench warrant for Starr for failing

to abide by the terms of his pre-trial release.

       {¶22} On October 21, 2014, Starr filed a motion to suppress. By Judgment Entry

filed November 7, 2014, the trial court continued the trial date in order to conduct a hearing

on Starr’s motion to suppress on November 12, 2014.

       {¶23} On October 28, 2014, Starr’s bond was modified by the trial court.

       {¶24} An oral hearing on Starr’s motion to suppress was held on November 12, 2014.

The trial court overruled the motion by judgment entry filed November 17, 2014.

       {¶25} On December 4, 2014, Starr’s probation officer filed a motion to revoke Starr’s

bond on the ground that on December 4, 2014, Starr had been stopped in Ashland in a

possibly stolen vehicle and was in possession of marijuana and possibly heroin. A bench

warrant was issued for Starr on December 5, 2014.

       {¶26} By judgement entry filed January 8, 2015, the trial court continued the trial date

to January 15, 2015. On January 12, 2015, Starr’s attorney filed a motion to continue the

trial date and a demand for additional discovery. By Judgment Entry filed January 16, 2015,

the trial judge granted the continuance and scheduled a new trial date for February 26, 2015.

Starr entered his plea in open court on February 24, 2015.

       {¶27} Over eight months elapsed from Starr’s arraignment to his decision to enter

his plea. The decision came after numerous continuances and a mere two days before his

scheduled jury trial. The trial judge also had before him the fact that during this eight-month

period, two bench warrants had been issued for Starr due to his non-compliance with the

terms of his pre-trial release. Starr had also been in possession of controlled and possible

controlled substances during this time.
Richland County, Case No. 15-CA-36                                                               9

       {¶28} In State v. Kuhner, the Court found,

               The trial judge did not give Kuhner an ultimatum of pleading guilty in

       order to partake in the recommended sentence by the prosecutor, nor was his

       reason for refusing to accept the no-contest plea to prevent Kuhner from

       appealing his ruling on the motion to suppress. The trial judge based his

       decision of not accepting the no-contest plea on the timing of the motion to

       change the plea, as Kuhner sought to change his plea and accept the sentence

       recommendation two days before his scheduled trial.

154 Ohio St.3d 457, 2003-Ohio-4631, 797 N.E.2d 992(3rd Dist.), ¶11

       {¶29} Simply put, there is no evidence before this Court, in any form, that the trial

court interjected itself into the plea negotiations. Based upon the colloquy that occurred on

the record, we can only conclude that in accepting Starr’s plea, the trial court met its burdens

as outlined in Crim.R. 11. The trial court clearly informed Starr of the impact that his guilty

plea would have upon his rights. There is no indication in the record that Starr did not

knowingly and voluntarily enter his guilty plea. Starr willfully chose to plead guilty while fully

aware that he was not required to do so, in an attempt to minimize the sentence to be

imposed on the charges.          During the course of the plea hearing, Starr expressly

acknowledged his awareness of the fact that he was pleading guilty and thereby waiving his

right to appeal suppression issues.

       {¶30} A trial judge is within the bounds of his discretion in refusing a no-contest plea

based on procedural considerations in the particular case before him. We find no abuse of

discretion on the part of the trial court with regard to the denial of the no-contest plea. Kuhner,

¶13.
Richland County, Case No. 15-CA-36                                                   10


      {¶31} Starr’s sole assignment of error is overruled.

      {¶32} The judgment of the Richland County Court of Common Pleas is affirmed.



By Gwin, J.,

Farmer, P.J., and

Delaney, J., concur
