[Cite as State v. Carty, 2018-Ohio-2739.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                       Nos. 106218 and 106302



                                            STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            PHILIP J. CARTY

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                           Case Nos. CR-17-617208-A and CR-17-613832-A

        BEFORE: Kilbane, P.J., Stewart, J., and Keough, J.

        RELEASED AND JOURNALIZED:                  July 12, 2018
ATTORNEY FOR APPELLANT

Steve W. Canfil
55 Public Square, Suite 2100
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Jennifer King
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} In this consolidated appeal, defendant-appellant, Philip Carty (“Carty”), appeals

from his guilty plea and no contest plea in two separate cases. For the reasons set forth below,

we affirm.

       {¶2} In February 2017, Carty, a Navy veteran, was charged in Case No. CR-17-613832-A

with the following two counts: Count 1 charged him with operating a vehicle while under the

influence (“OVI”), with a specification that Carty has been convicted or pled guilty to five or

more equivalent offenses within the previous 20 years; and Count 2 charged Carty with failure to

comply. These charges arose from a traffic stop in Berea, Ohio.

       {¶3} While out on bail, Carty was arrested by North Royalton Police after he failed field

sobriety tests administered during a traffic stop on May 4, 2017. Subsequently, Carty was

charged in Case No. CR-17-617208-A with two counts. Count 1 charged him with OVI, which

carried a furthermore specification stating that he had a prior OVI conviction; and Count 2

charged him with failure to comply.

         {¶4} Trial for CR-17-613832-A was set for May 17, 2017. On May 10, 2017, a hearing
was held where the state put on the record its plea offer. In exchange for a guilty plea to Count
1, a third-degree felony OVI, the state would nolle Count 2. The state also notified the court that
Carty received another OVI a few days prior to that hearing. The court continued the matter to
May 17, 2017, so that defense counsel could determine if the cases could be combined.

       {¶5} At the outset of the hearing on May 17, 2017, defense counsel stated that a probation

officer had advised Carty the day before that he could apply to Veterans Treatment Court.

Defense counsel then requested that the matter be transferred to veterans court. The state

objected because it was the day of trial. The trial court denied Carty’s request, and the matter

proceeded to a plea hearing. The trial court conducted its Crim.R. 11 colloquy, accepted Carty’s
guilty plea, and found him guilty of OVI as charged in the indictment. The trial court nolled

Count 2. The court then referred Carty for a presentence investigation report.

       {¶6} The trial court reconvened in August 2017, at which time it addressed both of

Carty’s cases. At the hearing, Carty entered a no contest plea in CR-17-617208-A. Carty was

assigned the public defender’s office to represent him in that case. Carty was represented by

different counsel in CR-17-613832-A.

       {¶7} As the trial court conducted its Crim.R. 11 colloquy with regard to Case No.

CR-17-617208-A, the court had an off-the-record discussion with the attorneys involved. The

court then returned to the record and stated:

       The Court took a recess to review the penalties for the charges of which the
       defendant has been indicted in Case Number 617208 and 613832 * * * and has
       conducted research on the potential penalties in light of the indictment in each
       case.

       So based on that, I am going to re-plea the defendant in Case Number 613832 to
       ensure that he has been properly advised of all of the penalties involved prior to
       him pleading guilty. And then in 617208, my understanding is he’s going to
       enter a plea of no contest. So I will re-plea him in 613832 and plea him in
       617208 and then go to sentencing. So I will take the pleas prior to the
       sentencing.

       {¶8} Defense counsel in each case did not object, and the trial court proceeded with its

Crim.R. 11 colloquy. The state then outlined the potential penalty involved in pleading guilty to

Count 1 (third-degree felony OVI, with the added specification) in CR-17-613832-A. The state

explained that the sentence was 60 days up to 36 months, plus one, two, three, four, or five years

of prison to be served prior and consecutive to any of the third-degree penalties or fourth-degree

penalties. With regard to CR-17-617208-A, the stated explained that the penalty for Count 1

(third-degree felony OVI, with a furthermore clause) was 60 days up to 36 months and 6 to 18

months on Count 2 (failure to comply), which must be served consecutive to any other penalty.
The trial court informed Carty of the fines associated with both cases. The trial court accepted

Carty’s pleas and found him guilty.

       {¶9} The trial court then sentenced Carty in both cases to a total of seven years in prison.

In CR-17-613832-A, the trial court sentenced Carty to two years on Count 1, to be served

consecutive to the two-year sentence on the specification, for a total of four years in prison. The

court ordered that the sentence in that case be served consecutive to the sentence in

CR-17-617208-A. In CR-17-617208-A, the trial court sentenced Carty to two years in prison on

Count 1 and one year in prison on Count 2, to be served consecutively, for an aggregate of three

years in prison. The trial court also ordered Carty to pay a $2,000 fine and imposed a 15-year

driver’s license suspension in each case.

       {¶10} Carty now appeals, raising the following three assignments of error for review.

                                      Assignment of Error One

       The trial court violated [Carty’s] federal and state constitutional rights to due
       process of law and Crim.R. 11 when it accepted [Carty’s] pleas.

                                      Assignment of Error Two

       [Carty] was deprived of his federal and state constitutional rights to effective
       assistance of counsel.

                                      Assignment of Error Three

       The trial court erred in denying [Carty’s] motion to transfer his case to Veterans
       Court.

                                                Pleas

       {¶11} In the first assignment of error, Carty argues the court violated his constitutional

rights and Crim.R. 11 when it accepted his pleas. Carty claims the trial court did not strictly

comply with its duties under Crim.R. 11 at the August 3, 2017 hearing and the court’s actions at
that hearing rendered his plea in CR-17-613832-A invalid.

       {¶12} When a defendant enters a plea in a criminal case, the plea must be knowingly,

intelligently, and voluntarily made. “Failure on any of those points renders enforcement of the

plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450, citing Kercheval v.

United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927); Mabry v. Johnson, 467 U.S.

504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969); State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991); Crim.R.

11(C). Crim.R. 11(C)(2) governs the acceptance of guilty and no contest pleas in felony cases.

It provides:

       (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no
       contest, and shall not accept a plea of guilty or no contest without first addressing
       the defendant personally and doing all of the following:

       (a) Determining 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.

       (b) Informing the defendant of and determining 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.

       (c) Informing the defendant and determining 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.

Id.

       {¶13} The underlying purpose of Crim.R. 11(C) is to convey information to the defendant

so that he or she can make a voluntary and intelligent decision regarding whether to plead. State
v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). The standard of review we

must apply for compliance with the requirements set forth in Crim.R. 11(C) is de novo. State v.

Darling, 8th Dist. Cuyahoga No. 104517, 2017-Ohio-7603, ¶ 17, citing State v. Roberts, 8th Dist.

Cuyahoga No. 89453, 2010-Ohio-3302, ¶ 19, citing State v. Stewart, 51 Ohio St.2d 86, 364

N.E.2d 1163 (1977). It requires an appellate court to review the totality of the circumstances

and determine whether the plea hearing was in compliance with Crim.R. 11(C). Id.

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

11(C)(2), reviewing courts distinguish between constitutional rights and nonconstitutional rights.

 State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-21. The trial court

must strictly comply with the requirements of Crim.R. 11(C)(2)(c) relating to the waiver of

constitutional rights. Id. at ¶ 18. In Veney, the Ohio Supreme Court enumerated the following

five constitutional rights set forth in Crim.R. 11(C)(2)(c) as: (1) the right to a jury trial; (2) the

right to confront one’s accusers; (3) the privilege against compulsory self-incrimination; (4) the

right to compulsory process to obtain witnesses; and (5) the right to require the state to prove

guilt beyond a reasonable doubt. Id. at ¶ 19.

       {¶15} Under the strict-compliance standard set forth, the trial court must orally inform the

defendant of the rights set forth in Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be

valid. “Although the trial court may vary slightly from the literal wording of the rule in the

colloquy, the court cannot simply rely on other sources to convey these rights to the defendant.”

Id. at ¶ 29. When the record demonstrates that the trial court failed to perform this duty, the

defendant’s plea is constitutionally infirm, making it presumptively invalid. Id. at ¶ 29, Ballard;

State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51.
        {¶16} As to the nonconstitutional aspects of Crim.R. 11(C)(2)(a) and (b), “substantial

compliance” is sufficient. Id. at ¶ 14. “Substantial compliance means that under the totality of

the circumstances the defendant subjectively understands the implications of his plea and the

rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing

State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977); State v. Carter, 60 Ohio St.2d 34,

396 N.E.2d 757 (1979). “‘[I]f it appears from the record that the defendant appreciated the

effect of his plea and his waiver of rights in spite of the trial court’s error, there is still substantial

compliance.’” State v. Thomas, 8th Dist. Cuyahoga No. 94788, 2011-Ohio-214, ¶ 13, quoting

State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).

        {¶17} A defendant must show prejudice before a plea will be vacated for an error

involving Crim.R. 11(C)(2) when nonconstitutional aspects of the colloquy are at issue. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 17. To demonstrate prejudice in this

context, the defendant must show that the plea would not have otherwise been entered. Id. at ¶

15, citing Nero.

        {¶18} With regard to his constitutional rights, Carty contends the trial court did not

inform him that he has the right to “compulsory process.” A review of the record in both cases,

however, reveals that the trial court did in fact advise Carty of his right to “compulsory process.”

 In both cases, the trial court advised:

        THE COURT: Do you understand that you have the right to confront and
        cross-examine witnesses the State must bring forth at such a trial?

        [CARTY]: I do, Your Honor.

        THE COURT: Do you understand that you have the right to subpoena witnesses
        to testify in your favor at a trial?

        [CARTY]: Yes, I do, Your Honor.
       {¶19} This court has previously found that the trial court strictly complied with Crim.R.

11(C) by informing the defendant that witnesses could be “forced,” “subpoenaed,” “compelled,”

“summoned,” or “required” to appear. State v. Rosenberg, 8th Dist. Cuyahoga No. 84457,

2005-Ohio-101, ¶ 14, citing State v. Cummings, 8th Dist. Cuyahoga No. 83759, 2004-Ohio-4470;

State v. Wilson, 8th Dist. Cuyahoga No. 82770, 2004-Ohio-499; State v. Senich, 8th Dist.

Cuyahoga No. 82581, 2003-Ohio-5082; State v. Gurley, 8th Dist. Cuyahoga No. 70586, 1997

Ohio App. LEXIS 2414 (June 5, 1997); State v. Huff, 8th Dist. Cuyahoga No. 70996, 1997 Ohio

App. LEXIS 1879 (May 8, 1997).

       {¶20} The language used by the trial court in the instant case was sufficient to inform the

defendant of his constitutional right of compulsory process. Therefore, we find that the trial

court properly informed Carty of his right to compulsory process.

       {¶21} With regard to his nonconstitutional rights, Carty first contends the trial court did

not ensure that he was thinking clearly in the absence of his prescription medication. In the

instant case, Carty advised the trial court that he was unable to obtain his prescription medication

while in jail because it was not offered. He tried three different medications that had adverse

effects and did not provide him with any relief.        Carty stated that he was not under any

medication at the August 2017 hearing.

       {¶22} We note that

       [t]he mere fact that a defendant suffered from a mental illness or was taking
       psychotropic medication under medical supervision when he entered a guilty plea
       is not an indication that his plea was not knowing and voluntary, that the
       defendant lacked mental capacity to enter a plea or that the trial court otherwise
       erred in accepting the defendant’s guilty plea.

State v. McClendon, 8th Dist. Cuyahoga No. 103202, 2016-Ohio-2630, ¶ 16, citing State v.
Robinson, 8th Dist. Cuyahoga No. 89136, 2007-Ohio-6831; State v. Harney, 8th Dist. Cuyahoga

No. 71001, 1997 Ohio App. LEXIS 1768 (May 1, 1997); State v. Bowen, 8th Dist. Cuyahoga

Nos. 70054 and 70055, 1996 Ohio App. LEXIS 5612 (Dec. 12, 1996); State v. McDowell, 8th

Dist. Cuyahoga No. 70799, 1997 Ohio App. LEXIS 113 (Jan. 16, 1997); State v. Ketterer, 111

Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48. A trial court may determine that a defendant

understands his plea “by considering the surrounding circumstances such as the dialogue between

the court and the defendant and the defendant’s demeanor.” McDowell at *4, citing State v.

Swift, 86 Ohio App.3d 407, 411, 621 N.E.2d 513 (11th Dist.1993).

         {¶23} A review of the plea colloquies in the instant case reveals that Carty indicated he

understood the trial court. He participated in a reasonably intelligible dialogue with the trial

court. As a result, we find the trial court substantially complied with its duties under Crim.R.

11(C).

         {¶24} Carty next claims the court never informed him during the plea hearing about the

possible sentence he could receive in CR-17-613832-A. With regard to that case, Carty was

incorrectly advised of his possible sentence at his May 2017 plea hearing. The trial court

realized the error at the August 2017 hearing and conducted a new plea. The court stated:

         The Court took a recess to review the penalties for the charges of which the
         defendant has been indicted in Case Number 617208 and 613832 * * * and has
         conducted research on the potential penalties in light of the indictment in each
         case.

         So based on that, I am going to re-plea the defendant in Case Number 613832 to
         ensure that he has been properly advised of all of the penalties involved prior to
         him pleading guilty. * * * So I will re-plea him in 613832[.]

         {¶25} Defense counsel did not object, and the trial court proceeded with its Crim.R. 11

colloquy. The court advised Carty of the potential penalty involved in pleading guilty to Count
1 (third-degree felony OVI, with the added specification) in CR-17-613832-A. The court stated

the sentence was “60 days of prison up to 36 months that must be run consecutive to Count 2.”

As a result, we find the trial court sufficiently advised Carty of his possible sentence.

       {¶26} Carty additionally claims the court did not inform him of the effects of pleading no

contest in CR-17-617208-A.        He contends that no showing of prejudice was required to

invalidate his plea because the trial court completely failed to advise him that a no contest plea is

not an admission of guilt, but rather an admission of truth of the facts alleged in the complaint.

       {¶27} “Crim.R. 11(C)(2)(b) requires that a defendant be informed of and understand the

effect of a no contest or guilty plea; it does not require a ‘rote recitation’ of the language of

Crim.R. 11(B)(2).” State v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 18,

citing State v. Mallon, 11th Dist. Trumbull No. 98-T-0032, 1999 Ohio App. LEXIS 6131 (Dec.

17, 1999). Furthermore, with respect to a defendant’s right to be informed of and understand the

effect of a no contest or guilty plea — unlike other nonconstitutional aspects of Crim.R. 11(C)(2)

— “it is presumed that a defendant who has entered a no contest or guilty plea without asserting

actual innocence understands the effects of his or her plea.” Id.

       {¶28} In the instant case, while the trial court did not recite the language of Crim.R.

11(C)(2)(b), the court did inform Carty of the nature of the charges, the potential penalties he

faced and the constitutional rights he was giving up by pleading no contest to the charge in the

indictment, including his right to a jury or bench trial, his right to continued representation by

counsel through trial, his right to compel witness testimony on his behalf, his right to confront

and cross-examine any witnesses that would be called to testify against him and his right not to

testify at his trial if he chose not to do so. The trial court further advised Carty that by entering

his no contest plea, he was giving up his right to have “the State prove [him] guilty beyond a
reasonable doubt at a trial.” Carty stated that he understood the offenses to which he was

pleading no contest and all the rights he was waiving by pleading no contest.

       {¶29} Based on the foregoing, the record reflects that Carty was both advised of the

       “essence” of his no contest plea, i.e., that he was permitting the trial court to find
       him guilty without the opportunity to present a defense, and the negative effects of
       his no contest plea, i.e., that “he could be found guilty without going through a
       trial and that he would be waiving all of his Constitutional trial rights.”

Musleh, quoting State v. Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 19.

Moreover, Carty who was represented by counsel at the plea hearing, did not assert his innocence

at the plea hearing and there is nothing in the record that suggests that Carty was confused or did

not understand that his no contest plea was an admission of the truth of the facts alleged in the

indictment. There has been no showing that Carty suffered any prejudice as a result of the trial

court’s failure to fully comply with Crim.R. 11(C)(2)(b). Where, as here, “a defendant enters a

guilty or no contest plea without asserting actual innocence, a defendant is presumed to

understand the effect of the plea such that a trial court’s failure to inform the defendant of the

effect of his plea is presumed not to be prejudicial.” Musleh at ¶ 24. Therefore, considering the

presumption that applies and the totality of the circumstances, we find that the trial court at least

partially complied with the “effect-of-plea” requirement under Crim.R. 11(C)(2)(b). Id. at ¶ 23.

       {¶30} Accordingly, the first assignment of error is overruled.

                                 Ineffective Assistance of Counsel

       {¶31} In the second assignment of error, Carty argues defense counsel in

CR-17-613832-A was ineffective for:         (1) not withdrawing representation after Carty was

arrested for another OVI in a municipality where defense counsel serves as assistant prosecutor;

(2) “encouraging” Carty to plea even though he misadvised Carty that the maximum sentence he
could get was “36 months”; and (3) not moving the trial court to waive the fines and not filing an

affidavit of indigence.

       {¶32} In order to establish ineffective assistance of counsel, Carty must demonstrate that:

 (1) counsel’s performance fell below an objective standard of reasonable representation, and (2)

he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

       {¶33} In evaluating a claim of ineffective assistance of counsel, a court must give great

deference to counsel’s performance.      Strickland at 689.    “A reviewing court will strongly

presume that counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” State v. Pawlak, 8th Dist. Cuyahoga No. 99555,

2014-Ohio-2175, ¶ 69.

       {¶34} We do not find a conflict of interest with the representation of defense counsel in

CR-17-613832-A. That case concerned Carty’s arrest in Berea, not the city of North Royalton

where defense counsel is an assistant prosecutor. Carty was represented by different counsel in

the North Royalton case. Therefore, no conflict of interest exists.

       {¶35} We further find Carty cannot demonstrate that but for counsel telling him the

maximum sentence was 36 months in May 2017, he would not have entered a plea of guilty.

Carty repled in CR-17-613832-A in August 2017. At that time, he was informed of the correct

maximum possible sentence before entering the plea again.             As a result, Carty was not

prejudiced by counsel’s statement that “the maximum sentence was 36 months.”
       {¶36} With regard to the mandatory fine, Carty argues there was a reasonable probability

that the court would have found him indigent if an affidavit had been filed.

       {¶37}    This court has held that the failure to file an affidavit of indigency only

constitutes ineffective assistance of counsel when the record shows a reasonable probability that

the trial court would have found the defendant indigent and unable to pay the fine had the

affidavit been filed. State v. Hubbard, 8th Dist. Cuyahoga No. 99093, 2013-Ohio-1994, ¶ 9,

citing State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002-Ohio-2045; State v. Huffman, 8th

Dist. Cuyahoga No. 63938, 1995 Ohio App. LEXIS 233 (Jan. 26, 1995); State v. Powell, 78 Ohio

App.3d 784, 605 N.E.2d 1337 (3d Dist.1992); State v. Parsley, 10th Dist. No. 09AP-612,

2010-Ohio-1689.

       {¶38} In the instant case, Carty retained and was represented by private counsel from the

outset of his case, up to and including sentencing. While Carty was found indigent for purposes

of this appeal and was appointed counsel in his other case, “‘[a]n offender’s indigency for

purposes of receiving appointed counsel is separate and distinct from his or her indigency for

purposes of avoiding having to pay a mandatory fine.”’ State v. Harrison, 2015-Ohio-1419, 31

N.E.3d 220, ¶ 93 (3d Dist.), quoting State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357,

922 N.E.2d 248, ¶ 79 (10th Dist.), citing State v. Gipson, 80 Ohio St.3d 626, 631-633,

1998-Ohio-659, 687 N.E.2d 750 (1998); see also State v. Tribune, 12th Dist. Warren No.

CA2016-04-027, 2017-Ohio-1407, ¶ 11, citing State v. Bolden, 12th Dist. Preble No.

CA2003-03-007, 2004-Ohio-184, ¶ 35.          As there is no evidence to suggest a “reasonable

probability” that the trial court would have found Carty indigent and unable to pay the fine, we

cannot say that Carty received ineffective assistance of counsel on this issue.

       {¶39} Accordingly, the second assignment of error is overruled.
                                    Veterans Treatment Court

        {¶40} In the third assignment of error, Carty argues that the trial court should have

granted his motion to transfer his case to Veterans Treatment Court.

        {¶41} Loc.R. 30.3 of the Cuyahoga County Court of Common Pleas, General Division

states in pertinent part:

        (A) Purpose. The Veterans Treatment Court is established for defendants * * *
        who served in the United States Armed Forces. Hereafter, defendant(s) refers to
        such individuals. The Veterans Treatment Court is committed to providing
        community services that seek to develop self-sufficiency, reduce recidivism,
        promote public safety, and provide alternatives to incarceration. To accomplish
        these purposes, the Veterans Treatment Court will utilize the shared military
        experience of other veterans to assist these defendants. The Veterans Treatment
        Court will work closely with the Veterans Administration (VA) and other
        agencies to accomplish these purposes.

        ***

        (C) Eligibility. A defendant is eligible for transfer to the Veterans Treatment
        Court when charged with a felony described in paragraph (D), provided the
        defendant presents evidence of military service with military form DD 214.

        ***

        (D) Permitted Felonies. Any felony offense for which a defendant may receive a
        sentence of community control sanctions (CCS) makes that defendant eligible to
        transfer to the Veterans Treatment Court, subject to the approval of the Veterans
        Treatment Court Judge. * * * At any point after arraignment, a defendant may be
        referred to the Veterans Treatment Court, but when a defendant is convicted of or
        pleads to a felony of the first or second degree, or of the third degree that is
        subject to high tier sentencing under R.C. 2929.14(A)(3), the assigned Judge shall
        sentence the defendant before transfer to the Veterans Treatment Court.

        ***

        (F) Procedure for Admission.  A defendant must enter into a Participation
        Agreement with the Veterans Treatment Court; must undergo a clinical and
        administrative assessment to determine eligibility; and must be approved by the
        Veterans Treatment Court Judge.
        (G) Effective of Transfer. When a case is transferred to the Veterans Treatment
        Court, the Veterans Treatment Court Judge shall acquire full jurisdiction over that
        transferred case. If a defendant is found ineligible or is not approved for
        Veterans Treatment Court, the transfer shall not be completed and the case shall
        be returned to the docket of the original assigned Judge.

(Emphasis added.)

        {¶42} As an initial matter, we note that the case law in this area is sparse. It is well

known that veterans, such as Carty, often suffer from mental illness and substance abuse

problems as a result of their experiences serving in the armed forces. Indeed, “[i]t is an

unfortunate truth that many veterans return to civilian life with significant physical and mental

traumas that often contribute to their involvement in the criminal justice system.” Ohio v.

Dunne, 8th Dist. Cuyahoga No. 100460, 2014-Ohio-3323, ¶ 10 (Frank D. Celebrezze, Jr. J.,

concurring). The goal of Veterans Treatment Court is for veterans to have law-abiding lives.

        {¶43} In the instant case, a review of the record reveals that at the hearing on May 17,

2017, defense counsel in CR-17-613832-A stated that the day before, a probation officer advised

Carty that he could apply to Veterans Treatment Court. Defense counsel then requested that the

matter be transferred to veterans court. The state objected because it was the day of trial. The

trial court denied Carty’s request, and the matter proceeded to a plea hearing. At the August

hearing, the issue of transfer was not brought to the court’s attention by either party. The trial

court then proceeded with the plea hearing in CR-17-617208-A and replea in CR-17-613832-A.

        {¶44} While we are most supportive of the purposes of the Veterans Treatment Court, the

local rule does not provide for a mandatory transfer. Carty has lengthy record of alcohol-related

offenses, which includes several OVI’s and he was subject to mandatory prison time. Thus,

based on the foregoing, we cannot say the trial court abused its discretion when it denied Carty’s

request for a transfer.
       {¶45} Accordingly, the third assignment of error is overruled.

       {¶46} Judgment is 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MELODY J. STEWART, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
