[Cite as State v. Newton, 2011-Ohio-2188.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                           :

        Plaintiff-Appellee                              :        C.A. CASE NO.        24154

v.                                                      :        T.C. NO.     07CR478

GARY N. NEWTON                                          :        (Criminal appeal from
                                                                 Common Pleas Court)
        Defendant-Appellant                   :

                                                        :

                                             ..........

                                             OPINION

                         Rendered on the          6th   day of    May       , 2011.

                                             ..........

LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, Suite 2150, P. O. Box 1262,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

        {¶ 1} Gary Newton appeals from a judgment of the Montgomery County Court of

Common Pleas, which overruled his motion to vacate a plea he entered in 2007. For the reasons

 discussed below, the trial court’s judgment will be affirmed.

        {¶ 2} In 2007, Newton was indicted as follows: Count One – possession of cocaine in an
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amount greater than or equal to 1,000 grams (not crack cocaine), with a major drug offender

specification; Count Two – possession of cocaine (not crack cocaine) in an amount greater than

or equal to 500 grams, but less than 1,000 grams; and several counts of possession of criminal

tools.

         {¶ 3} Newton pled not guilty and filed a Motion to Dismiss the major drug offender

specification related to Count One, arguing that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio

856, had found unconstitutional the sentencing scheme by which a trial court made factual

findings in support of a major drug offender specification. He also filed a motion to suppress

evidence.

         {¶ 4} On June 28, 2007, the trial court had not yet ruled on Newton’s motions.

Nonetheless, pursuant to a plea and sentencing agreement, Newton pled guilty to Counts One and

Two, including the major drug offender specification. The next day, Newton withdrew his

motion to dismiss the major drug offender specification and his motion to suppress. The counts

of possession of criminal tools were dismissed. The trial court sentenced Newton to an agreed

sentence of ten years each on Counts One and Two, to be served concurrently. It also suspended

his driver’s license for five years and ordered him to pay a mandatory fine of $10,000. The court

did not impose any additional sentence related to the major drug offender specification.

         {¶ 5} In March 2010, Newton filed a motion to vacate his plea. 1 The court held a

hearing on the motion, and Newton filed a post-hearing memorandum in support of the motion.

The State did not respond. The trial court overruled Newton’s motion to vacate his plea.


             1
             Newton filed his first Motion to Vacate Plea in February 2010, but he withdrew that motion and filed an amended motion in
   March 2010.
                                                                                             3

       {¶ 6} Newton appeals from the trial court’s order overruling his motion to vacate his

plea, raising two assignments of error. The assignments are related, and we will consider them

together.

       {¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THE

MAJOR DRUG OFFENDER (MDO) SPECIFICATION IS CONSTITUTIONAL”

       {¶ 8} “THE       TRIAL     COURT      ABUSED       ITS    DISCRETION        IN   DENYING

APPELLANT’S MOTION TO VACATE HIS PLEA BASED UPON HIM ENTERING A PLEA

TO AN UNCONSTITUTIONAL SPECIFICATION WHICH INFLUENCED HIS PLEA

NEGOTIATIONS.”

       {¶ 9} Newton’s arguments under his assignments of error mirror his arguments in the

motion to vacate his plea. In essence, he claims that his plea was not knowingly and voluntarily

entered because the major drug offender specification contained in his indictment was

unconstitutional, he was unaware of this fact at the time of his plea, and he thus did not correctly

calculate the maximum possible sentence he faced and failed to negotiate a more favorable plea

agreement.

       {¶ 10} Initially, we note that Newton mischaracterizes, to some extent, the choice he

faced in the plea negotiations. He claims that, “if the MDO was not present, then he could have

negotiated a lower term of imprisonment.” Similarly, he claimed in his motion to vacate his plea

that he believed he had faced a maximum sentence of twenty years when he entered the plea

agreement for a ten-year sentence; “if [he] had known the maximum penalty he faced was

actually ten years, he would not have entered his plea” because he received “no benefit” from it.

       {¶ 11} As the trial court noted in its order overruling Newton’s motion to vacate his plea,
                                                                                                                                    4

Newton’s possession of over 1,000 grams of cocaine (not crack) classified him as a major drug

offender, and the trial court was required to impose the maximum prison term prescribed for a

felony of the first degree. R.C. 2925.11(C)(4)(f). The maximum term is ten years. R.C.

2929.14(A)(1).          Furthermore, because he was a major drug offender, the trial court had

discretion to impose an additional one- to ten-year prison term. R.C. 2929.14(D)(3)(b); Foster

at ¶99. Newton additionally faced three to ten years of incarceration on the second count of

possession of cocaine, R.C. 2925.11(C)(4)(e) and R.C. 2929.14(A)(1), and additional time on the

counts of possession of criminal tools. He also could have been given consecutive terms of

imprisonment.           Thus, Newton could not have pled guilty to Count One in the indictment and

received a sentence of less than ten years, as he claims, and his maximum potential sentence was

more than thirty years; he undoubtedly received a benefit from his plea agreement.

         {¶ 12} Newton argues that he did not enter his plea knowingly because he did not realize,

at the time of his plea, that the major drug offender specification was unconstitutional and should

not or could not have been used to enhance his sentence.2 Newton’s argument that the major

drug offender specification was unconstitutional is based on his interpretation of Foster.

         {¶ 13} In Foster, the Supreme Court of Ohio held that R.C. 2929.14(D)(3)(b) was

unconstitutional because it “require[d] judicial finding of facts not proven to a jury beyond a

reasonable doubt or admitted by the defendant before repeat-violent-offender and

major-drug-offender penalty enhancements are imposed.” Id. at ¶83. Foster “severed” the

offending provisions and held that “judicial fact-finding is not required before imposition of


             2
                 Newton raises this argument notwithstanding the motion to dismiss filed prior to his plea, in which he argued precisely this
   issue: that the major drug offender specification was unconstitutional pursuant to Foster.
                                                                                             5

additional penalties for repeat-violent-offender and major-drug-offender specifications.” Foster,

paragraph six of the syllabus.

       {¶ 14} Soon after the decision in Foster, and four months after Newton’s pleas of guilty,

we decided a case in which a defendant, after a jury trial, argued that an eight-year major drug

offender enhancement to a maximum sentence for possession of drugs was unconstitutional

because it was based on the portion of R.C. 2929.14 declared unconstitutional in Foster. State v.

Dillard, 173 Ohio App.3d 373, 2007-Ohio-5651. We concluded that the “add-on sentence”

could not be predicated upon R.C. 2929.14(D)(3)(b), “which provided the only statutory language

permitting an enhancement to the underlying ten-year term [and had] been excised from the

statutory scheme.” Id. at ¶100. Thus, we held that the enhanced sentence for the major drug

offender specification in Dillard was unconstitutional. Id. Several other appellate districts took

a different view, holding that the effect of Foster was to sever from R.C. 2929.14(D)(3)(b) only

the language that required judicial fact-finding as a prerequisite to imposing the additional

sentence. See, e.g., State v. Pena, Franklin App. No. 06AP-688, 2007-Ohio-4516, ¶14; State v.

Adams, Lake App. No. 2006-L-114, 2007-Ohio-2434, ¶27; State v. Foster, Wood App. No.

WD-06-013, 2007-Ohio-1524, ¶17.

       {¶ 15} In 2009, the Supreme Court clarified the effect of Foster on the

repeat-violent-offender and major-drug-offender specifications. State v. Hunter, 123 Ohio St.3d

154, 2009-Ohio-4147. In Hunter, the defendant was found guilty of felonious assault by a jury,

but he “stipulated to the facts necessary to designate him as a repeat violent offender.” Id. at ¶3.

 On appeal, he challenged the imposition of the repeat violent offender specification, relying on

Foster. The Supreme Court stated:
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       {¶ 16} “Our opinions in Foster and [State v.] Mathis, [109 Ohio St.3d 54,

2006-Ohio-855] patently demonstrate our intent to excise only the portions of former R.C.

2929.14(D)(2)(b) that required judicial fact-finding in violation of the Sixth Amendment and the

United States Supreme Court’s decisions in Apprendi 3 and Blakely. 4 We never specifically

precluded a trial court from imposing enhanced penalties for a repeat violent offender

specification, nor did we excise the definition of a repeat violent offender as set forth in former

R.C. 2929.01(DD).           Furthermore, none of our decisions after Foster indicate that this

specification no longer exists. Thus, Foster excised judicial fact-finding from former R.C.

2929.14(D)(2) but did not eliminate the repeat violent offender specification ***.” Id. at ¶27

(footnotes added).

       {¶ 17} R.C. 2929.14(D)(2)(b) imposes enhanced sentences on repeat violent offenders;

R.C. 2929.14(D)(3)(b) contains the parallel provisions for a major drug offender. In Hunter’s

more general language, the court indicated that the existence of the major drug offender

specification also had been unaffected by Foster except to eliminate the need for judicial

fact-finding. Id. at ¶26. And it did not excise the definition of a major drug offender as set

forth in R.C. 2929.01(X).

       {¶ 18} In addition to holding that Foster had not eliminated the specifications, Hunter

identified three reasons why, under the facts of that case, the trial court’s imposition of a repeat

violent offender specification did not violate Hunter’s Sixth Amendment right to a jury trial.

First, Hunter had “waived whatever right he had” with respect to a jury determination of the


          3
           Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435.
          4
           Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 158 L.Ed.2d 403.
                                                                                             7

repeat violent offender specification because “he chose to submit that determination to the court

to avoid presenting evidence of his prior conviction *** to the jury.” Id. at ¶30-31. Second,

Hunter had “stipulated to all the facts necessary for the trial court to designate him as a repeat

violent offender;” specifically, he stipulated that he had previously been charged with felonious

assault, that the indictment had specified that he caused physical harm to the victim, that he had

pled guilty to the offense as charged in the indictment, and that he had been sentenced to prison.

       {¶ 19} Hunter concluded that, because of the stipulations, the trial court had no need to

conduct fact-finding before designating Hunter as a repeat violent offender, so no Sixth

Amendment violation had occurred.         Id. at 32-33.     Third, relying on Apprendi, Hunter

concluded that “the Sixth Amendment does not bar judicial consideration of a defendant’s prior

convictions at sentencing because ‘recidivism *** is a traditional, if not the most traditional,

basis for a sentencing court’s increasing an offender’s sentence;’” it held that a sentencing court

may look not only at the existence of the prior conviction, but may also consider other “relevant

information about the offender’s prior conviction that is part of the judicial record” in

determining whether he is a repeat violent offender, without violating the Sixth Amendment. Id.

at ¶35, ¶37-38.

       {¶ 20} Although Hunter involved a repeat violent offender specification (which, if

anything, requires more “fact-finding” than does a major drug offender specification), its

discussion of Foster left little doubt of the Supreme Court’s view that both the repeat violent

offender specification and the major drug offender specification survived Foster and that Foster

had excised only the need for judicial fact-finding prior to the imposition of enhanced sentences

based on those specifications. Numerous appellate courts have now applied the reasoning in
                                                                                             8

Hunter to cases involving major drug offender specifications. See, e.g., State v. Black, Hamilton

App. Nos. C-100357 and C-100358, 2011-Ohio-1330, ¶30; State v. Jones, Jefferson App. No. 08

JE 20, 08 JE 29, 2010-Ohio-2704, ¶17; State v. Walker, Fayette App. No. CA2009-02-002,

2010-Ohio-329, ¶29.

       {¶ 21} Newton relies on our holding in Dillard in support of his argument that the major drug

offender specification is unconstitutional. The Supreme Court’s ruling in Hunter, however, rejected

the view we expressed in Dillard that the specification imposing an enhanced sentence for a major

drug offender could never survive Foster; Hunter made clear that the major drug offender

specification contained in R.C. 2929.14(D)(3)(b) was not totally eliminated or rendered

unconstitutional by Foster. This holding undercuts Newton’s argument that “he never faced that

additional ten year penalty” connected with the major drug offender specification and would not have

entered a plea if he had known that the major drug offender specification was unconstitutional. The

major drug specification was not unconstitutional, so it appears that Newton entered his plea with an

accurate understanding of the potential penalty he faced.

       {¶ 22} Newton also claims that Hunter is distinguishable, because its reasoning

emphasized a trial court’s ability to make findings regarding prior convictions, which is relevant

to a repeat violent offender specification, but not to a major drug offender specification. Under

the facts presented in this case, we find this distinction to be immaterial. Hunter’s rationale was

unique to repeat violent offenders only with respect to the third of its three reasons for rejecting

the constitutional argument presented in that case. The first two reasons – the defendant’s

waiver of judicial fact-finding and his stipulation to the relevant facts – are dispositive of

Newton’s appeal.
                                                                                             9

       {¶ 23} Hunter expressly stated that a defendant can consent to judicial fact-finding. Id.

at ¶30. Newton’s plea of guilty to two counts of possession of cocaine, including the major drug

offender specification contained in the first count, constituted his consent to having the issue

determined by the court, rather than a jury. Thus, he waived any potential objection to judicial

fact-finding on this issue. Furthermore, Hunter held that a “trial court ha[s] no need to conduct

fact-finding” in connection with a specification contained in an indictment if the defendant’s

stipulations establish the specification. Id. at ¶33. A plea of guilty is a complete admission of

factual guilt and, accordingly, the defendant’s factual guilt is removed from further consideration.

 State v. Salmon, Montgomery App. No. 24305, 2011-Ohio-1289, ¶4, citing Menna v. New York

(1975), 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195. Newton’s plea of guilty to

possession of more than 1,000 grams of powder cocaine and to the major drug offender

specification constituted a “stipulation” or admission and eliminated the need for judicial

fact-finding on this specification. For these reasons, Newton’s constitutional rights were not

violated by judicial fact-finding.

       {¶ 24} As we have discussed and as Newton points out, the Hunter opinion did set forth a

third reason for its holding that a repeat violent offender specification does not involve judicial

factfinding: the “traditional” consideration of a defendant’s prior convictions at sentencing

through reliance on judicial records.    Newton argues that this rationale cannot be applied to a

major drug offender specification, and we agree. Nonetheless, we find that Hunter’s emphasis

on the defendant’s waiver of his right to fact-finding by a jury and his stipulation to facts

establishing the sentencing enhancement compel us to conclude that Newton’s constitutional

rights were not violated in this case.
                                                                                            10

       {¶ 25} Pursuant to Crim.R. 32.1, a defendant must demonstrate a “manifest injustice” to

withdraw a guilty plea after sentencing. “A manifest injustice has been defined as ‘a clear or

openly unjust act’ that involves ‘extraordinary circumstances.’” State v. Minker, Champaign

App. No. 2009 CA 16, 2009-Ohio-5625, ¶25, quoting State v. Stewart, Greene App. No.

2003-CA-28, 2004-Ohio-3574. See, also, State v. Tunstall, Montgomery App. No. 23730,

2010-Ohio-4926, ¶9.     We review a trial court’s ruling on a post-sentence motion to withdraw a

plea for an abuse of discretion. Xenia v. Jones, Greene App. No. 07-CA-104, 2008-Ohio-4733,

¶6.

       {¶ 26} The trial court did not abuse its discretion in holding that Newton was aware of

potential challenges to the major drug offender specification and that the (perceived) ambiguity

about the specification had been factored into his decision to accept the plea agreement. The

trial court correctly found that, at the time of his plea, the Supreme Court had excised the

objectionable provisions of the sentencing statutes that required judicial fact-finding and that the

major drug offender specification had not been eliminated by Foster, as Newton now claims.

The trial court also found that the information provided to Newton before the plea by his attorney

as to the potential penalties he faced had been accurate. The trial court concluded that Newton

“has had nothing more than a change of heart” and that “given the nature of the evidence against

Newton, the outcome negotiated by [his attorney] was remarkably favorable.”

       {¶ 27} The trial court did not abuse its discretion in overruling Newton’s motion to

vacate his plea. Because Newton made a knowing, voluntary, and intelligent decision to plead

guilty, and his argument was based on an incorrect view that the major drug offender

specification is unconstitutional, he did not demonstrate a manifest injustice.
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       {¶ 28} The assignments of error are overruled.

       {¶ 29} The judgment of the trial court will be affirmed.

                                          ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Laura M. Woodruff
Jon Paul Rion
Hon. Mary Katherine Huffman
