[Cite as State v. Kennedy, 2013-Ohio-4553.]




                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2013-A-0002
        - vs -                                 :

JAMES S. KENNEDY,                              :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 243.

Judgment: Affirmed.


Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Michael J. Goldberg and Scott M. Kuboff, The Goldberg Law Firm, LLC, 323 Lakeside
Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, James S. Kennedy, appeals from the judgment of the

Ashtabula County Court of Common Pleas, convicting him of attempted aggravated

murder and a firearm specification, after accepting his plea of guilty by way of Carolina

v. Alford, 400 U.S. 25 (1970). At issue is whether the trial court followed the proper

procedure in accepting the plea. For the reasons that follow, we affirm.
       {¶2}      On July 7, 2011, appellant was indicted on one count of attempted

aggravated murder with a firearm specification, in violation of R.C. 2929.02, a felony of

the first degree; one count of attempted murder with a firearm specification, in violation

of R.C. 2923.02, a felony of the first degree; one count of felonious assault with a

firearm specification, in violation of R.C. 2903.11(A)(1), a felony of the second degree;

and one count of felonious assault with a firearm specification, in violation of R.C.

2903.11(A)(2), a felony of the second degree. Appellant entered a plea of not guilty to

the charges.

       {¶3}      On the day of trial, appellant withdrew his not-guilty plea and entered a

plea of guilty pursuant to Alford, supra, to the charges in the indictment.                 In

consideration of the plea, the state recommended a three-year prison term for the

attempted aggravated murder charge and a three-year mandatory term for the firearm

specification for an aggregate term of six years. As such, the state recommended any

other non-merged term to be served concurrently.

       {¶4}      At the plea hearing, the state set forth the factual basis which, it alleged,

was sufficient to prove, beyond a reasonable doubt, appellant would be convicted by a

jury on all counts. After engaging in a full Crim.R. 11 colloquy, the trial court accepted

appellant’s plea, ordered a pre-sentence investigation, and set the matter for

sentencing.

       {¶5}      After a hearing, the trial court sentenced appellant to a five-year term of

imprisonment for aggravated attempted murder and a three-year term for the firearm

specification.     Appellant was sentenced to three years for each count of felonious




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assault and was ordered to serve these sentences concurrently with the sentences for

the other charges. This appeal followed.

       {¶6}   Appellant’s first assignment of error provides:

       {¶7}   “The trial court failed to comply with Crim.R. 11 in the acceptance of

appellant’s Alford pleas as there was no meaningful dialogue concerning his motivation

nor was there a sufficient factual basis presented to support whether his choice was

intelligent and a product of his rational calculation.”

       {¶8}   Under his first assignment of error, appellant contends the trial court failed

to comply with Crim.R. 11 when the record failed to demonstrate a meaningful dialogue

transpired concerning appellant’s motivation to enter his Alford pleas. Hence, appellant

maintains there was an insufficient factual basis that the Alford pleas were an intelligent

and rational response to the state of the evidence in the case.

       {¶9}   A plea entered pursuant to Alford is a plea that permits a defendant to

plead legal guilt, yet maintain his or her factual innocence. State v. Anderson, 11th Dist.

Lake No. 2005-L-178, 2006-Ohio-5167, ¶8. Before accepting an Alford plea, “[t]he trial

judge must ascertain that notwithstanding the defendant’s protestations of innocence,

he has made a rational calculation that it is in his best interest to accept the plea

bargain offered by the prosecutor.” State v. Padgett, 67 Ohio App.3d 332, 338 (2d

Dist.1990) citing Alford, supra, at 38, fn. 10; see also Anderson, supra, at ¶8.

       {¶10} In the context of an Alford plea, the Ohio Supreme Court has held:

       {¶11} Where the record affirmatively discloses that: (1) defendant’s guilty

              plea was not the result of coercion, deception or intimidation; (2)

              counsel was present at the time of the plea; (3) counsel’s advice



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              was competent in light of the circumstances surrounding the

              indictment; (4) the plea was made with the understanding of the

              nature of the charges; and, (5) defendant was motivated either by a

              desire to seek a lesser penalty or a fear of the consequences of a

              jury trial, or both, the guilty plea has been voluntarily and

              intelligently made. State v. Piacella, 27 Ohio St.2d 92 (1971) at

              syllabus.

       {¶12} In this case, appellant stated on record that his decision to enter the plea

was not the result of any threats or force. He further indicated he was aware of the

nature of the plea and understood the implications of entering an Alford plea. Also

counsel was present at the time of the plea.         And, given the significant charges

appellant was facing, the negotiated plea that was recommended to appellant indicates

counsel’s advice was certainly competent under the circumstances. Furthermore, the

court explained, in great detail, the charges appellant was facing, including what the

state was specifically required to prove if the case went to trial. And appellant stated on

record he understood each of the charges as well as the potential penalties associated

with them if he were convicted.

       {¶13} Finally, contrary to appellant’s assertions, the record contains evidence of

appellant’s motivation for entering his Alford plea. In particular, the discussion the court

had with appellant on record indicates he was motivated by both a desire to seek a

lesser penalty and the fear of the consequences of a jury trial. First of all, appellant’s

counsel stated on record that the six-year sentence recommended by the state was a




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joint recommendation to which appellant had agreed. Moreover, after explaining the

nature and effect of appellant’s Alford plea, the court stated:

       {¶14} [I]f you’re found guilty of every one of these charges, as you should

              know – and I will talk about this in a few minutes – there are some

              very serious penalties and, of course, much greater than what the

              State is willing to even recommend for a sentence in this case.

       {¶15} There’s some other considerations that your lawyer had mentioned

              in chambers that you perhaps could be eligible for, such as judicial

              release, that might be more difficult for you to obtain if you were

              convicted after trial, so I can see there are reasons that you might

              be willing to enter this Alford plea. I guess the other thing that I

              might as well mention – I don’t think that’s come up yet – but your

              attorney has also mentioned the possibility of perhaps civil liability.

              That is a concern in this case and I can understand that it might be

              * * *.

       {¶16} Although the court did not directly ask appellant to articulate why he

wished to plea by way of Alford, the record demonstrates defense counsel disclosed

appellant’s motivations for entering the plea personally to the judge. See State v. Byrd,

4th Dist. Athens No. 07CA29, 2008-Ohio-3909, ¶19 (where a trial court did not

specifically ask a defendant why he was entering the plea, the appellate court still

concluded there was sufficient evidence to show a defendant was motivated to enter

Alford plea because defense attorney conveyed the defendant’s reasons and the

rationale was sufficient to demonstrate appellant had a basis to fear the result of a jury



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trial.) And, although the trial court did not orally confirm whether appellant was actually

motivated by what counsel disclosed, neither appellant nor his attorney objected to the

court’s statements regarding the motivations that were apparently discussed with the

judge prior to the hearing. And, after the trial court engaged in a full Crim.R. 11 colloquy

and the factual basis for the charges was set forth by the prosecutor, appellant

specifically stated he wished to enter “[t]he Alford plea.”

       {¶17} Given the foregoing, we hold the trial court sufficiently inquired into

whether appellant rationally calculated his decision to plead guilty pursuant to Alford.

Furthermore, the record demonstrates appellant was motivated to enter the plea to seek

a lesser penalty as well as to avoid potential civil liability that could eventuate from

either going to trial or entering a general plea of guilty. Finally, statements of counsel

on record, coupled with the trial court’s lengthy and thorough colloquy with appellant,

established an adequate factual basis showing the Alford plea appellant entered was a

rational response to the state’s evidence. See e.g. State v. Al-Jumailee, 11th Dist.

Portage No. 2006-P-0037, 2007-Ohio-2061, ¶27-28.

       {¶18} Appellant’s first assignment of error lacks merit.

       {¶19} Appellant’s second assignment of error provides:

       {¶20} “Appellant did not enter any plea prescribed by Crim.R. 11. Therefore the

trial court could not impose a sentence.”

       {¶21} Appellant asserts the trial court erred in imposing sentence because

appellant did not enter his plea orally on record. We do not agree.

       {¶22} R.C. 2943.04 provides: “Pleas of guilty or not guilty may be oral.”

Similarly, Crim.R. 11(A) provides, in relevant part: “A defendant may plead not guilty,



                                              6
not guilty by reason of insanity, guilty or, with the consent of the court, no contest. A

plea of not guilty by reason of insanity shall be made in writing by either the defendant

or the defendant’s attorney. All other pleas may be made orally.” (Emphasis added.)

Given the permissive language of the foregoing, it would appear that, while a guilty plea

may be entered orally, it also, by implication, may be entered in writing. See State v.

Suttles, 2d Dist. Montgomery No. 23030, 2010-Ohio-846, ¶11 (noting that “[t]he fact that

a simple guilty plea may be made orally implies that it also may be made in writing, and

we see no reason why it cannot”).

       {¶23} In this case, appellant entered a written plea of guilty pursuant to Alford

before the plea hearing.     Appellant represented on record that he knowingly and

voluntarily signed his plea of guilty and understood his actions in doing so. And there is

no confusion that the hearing took place for the court to engage appellant in a Crim.R.

11 colloquy and advise appellant of the rights he would be waiving by entering the plea

and to provide appellant with other information necessary for entering a knowing,

intelligent, and voluntary plea by way of Alford. In other words, there was neither any

confusion regarding why the parties convened nor any question about the nature of the

proceedings occurring before the court. Under the circumstances, therefore, appellant’s

written plea would be sufficient to meet the demands of law regarding the entry of a plea

of guilty. See Suttles, supra. This conclusion, unto itself, is sufficient to undermine

appellant’s position.

       {¶24} In the interest of a comprehensive analysis, however, we also underscore

that the record also discloses sufficient evidence that appellant entered a functional oral

plea of guilty via Alford during the hearing. At the hearing, the trial court inquired



                                            7
whether appellant read, understood, and signed the written plea of guilty. Appellant

responded that he did and his attorney confirmed appellant’s statement.

        {¶25} In State v. Thompson, 10th Dist. Franklin No. 96APA12-1679, 1997 Ohio

App.    LEXIS      4354,     the    Tenth     District   concluded       that    a   defendant’s       legal

acknowledgement that he knowingly and voluntarily signed a written plea agreement on

record is tantamount to orally entering a plea. Id. at *3-*4.1 Following Thompson,

appellant’s affirmation stands as the equivalent of an oral plea of guilty.

        {¶26} Moreover, During the plea colloquy, the following exchange occurred

between the court and appellant:

        {¶27} THE COURT: Okay. Now, the plea in this case is being made

                pursuant to a United States Supreme Court case called North

                Carolina versus Alford.            What that means is that you’re not

                admitting that you committed the offense; however, it’s a guilty plea

                and if I accept this plea, then I could impose all the same penalties

                as if you did admit you committed the offenses. Do you understand

                that?

        {¶28} [Appellant]: Yes, sir.

        {¶29} Later, the court clarified that appellant desired to enter the guilty plea

pursuant to Alford. To wit:


1. Appellant acknowledges Suttles, supra, and Thompson, supra, but argues they are “distinguishable on
significant grounds.” To wit, in Suttles, the defendant signed the plea of guilty form while on record and in
the presence of the trial judge. Here, however, appellant signed the document prior to the plea hearing.
And, in Thompson, the trial court read the written plea of guilty into the record after which the defendant
acknowledged signing the same. The trial court took no such action in this case. Although these are
differences, we find them subtle and not significant. Appellant entered a written plea of guilty that he
acknowledged executing with full understanding of its implications. These representations were in open
court and in response to the judge’s inquiries.


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       {¶30} THE COURT: Now with the understanding that this plea is being

              tendered under this Supreme Court case known as North Carolina

              versus Alford, what plea do you personally wish to make at this

              time?

       {¶31} [Appellant]: The Alford plea.

       {¶32} THE COURT: All right. And you understand that I treat that as a

              guilty plea and that I can impose all the penalties that I have talked

              about?

       {¶33} [Appellant]: Yes sir.

       {¶34} These points, in addition to appellant’s acknowledgement, before the

judge, that he had voluntarily signed the plea of guilty with full understanding of its

implications are sufficient to demonstrate appellant entered an oral plea of guilty by way

of Alford at the hearing. We therefore hold the trial court did not err in sentencing

appellant as the record reflects appellant entered both a written and an oral plea of

guilty pursuant to Alford.

       {¶35} Appellant’s second assignment of error is without merit.

       {¶36} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               ______________________




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COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶37} I respectfully dissent.

       {¶38} In affirming the judgment of the trial court, the majority contends that the

court sufficiently inquired into whether appellant rationally calculated his decision to

plead guilty pursuant to Alford, and thus, did not err in sentencing him accordingly. I

disagree.

       {¶39} Preliminarily, this writer notes that the trial judge, in light of the ever more

complicated colloquy requirements under Crim.R. 11, performed a textbook inquiry

regarding the standard recitations. However, this matter involves an Alford plea which

presents the trial court with another more in-depth level of inquiry regarding appellant’s

assertion of innocence.

       {¶40} “‘An Alford plea is a plea “whereby the defendant pleads guilty yet

maintains actual innocence of the charges.”’ [State v. Anderson, 11th Dist. Lake No.

2005-L-178, 2006-Ohio-5167,] ¶8, citing [State v.]Griggs, 103 Ohio St.3d 85, 2004-

Ohio-4415, ¶13, * * *. ‘Although an Alford plea allows the defendant to maintain his

factual innocence, the plea has the same legal effect as a plea of “guilty,” and upon

acceptance by the trial court, the defendant stands convicted as though he had been

found guilty by a trier of fact.’ Id. (citations omitted). ‘Before accepting an Alford plea,

“(t)he trial judge must ascertain that notwithstanding the defendant’s protestations of

innocence, he has made a rational calculation that it is in his best interest to accept the

plea bargain offered by the prosecutor.”’ Id. (Citations omitted). State v. Johnson, 11th

Dist. Lake No. 2005-l-211, 2007-Ohio-781, ¶16, quoting Anderson, supra.




                                             10
       {¶41} This writer notes that in this case, there were no benefits conferred in the

form of a reduced number or degree of charges or an agreed sentence. “‘In the context

of an Alford plea, the Ohio Supreme Court has held: “Where the record affirmatively

discloses that: (1) defendant’s guilty plea was not the result of coercion, deception or

intimidation; (2) counsel was present at the time of the plea; (3) counsel’s advice was

competent in light of the circumstances surrounding the indictment; (4) the plea was

made with the understanding of the nature of the charges; and, (5) defendant was

motivated either by a desire to seek a lesser penalty or a fear of the consequences of a

jury trial, or both, the guilty plea has been voluntarily and intelligently made.”’ Id. at ¶9,

citing State v. Piacella, 27 Ohio St.2d 92 (1971), * * *, at syllabus.” (Parallel citations

omitted). State v. Johnson, supra, at ¶17, quoting Anderson, supra.

       {¶42} “All guilty pleas, including Alford pleas, must meet the general requirement

that the defendant knowingly, voluntarily, and intelligently waives his right to trial. [State

v. Padgett, 67 Ohio App.3d 332,] 338 [(2d Dist.1990)].               Because guilty pleas

accompanied by a protestation of innocence gives rise to an inherent suspicion that a

knowing, voluntary, and intelligent waiver has not occurred, Alford pleas place a

heightened duty upon the trial court to ensure that the defendant’s rights are protected

and that entering the plea was a rational decision on the part of the defendant. When a

defendant protests his innocence, the rational calculation differs significantly than that

made by a defendant who admits he is guilty; accordingly, the trial court’s obligation

with regard to taking an Alford plea is correspondingly different. Padgett, supra. The

Padgett court explained the trial court’s duty in taking an Alford plea, as follows: (* * *)

The trial judge must ascertain that notwithstanding the defendant’s protestations of



                                             11
innocence, he has made a rational calculation that it is in his best interest to accept the

plea bargain offered by the prosecutor. (* * *)

       {¶43} “(* * *)

       {¶44} “(* * *) This requires more than a routine litany. Where the defendant

interjects protestations of innocence into the plea proceedings, and fails to recant those

protestations of innocence, the trial court must determine that the defendant has made

a rational calculation to plead guilty notwithstanding his belief that he is innocent. This

requires, at a minimum, inquiry of the defendant concerning his reasons for deciding to

plead guilty notwithstanding his protestations of innocence (* * *)(.)

       {¶45} “(* * *) (I)f a guilty plea is to be accepted, the trial court must determine, in

a meaningful way, that the defendant’s decision to tender the plea is knowing and

intelligent. If it becomes impossible for the trial court to satisfy itself that the defendant’s

decision is knowing and intelligent, the trial court has the alternative of declining to

accept the plea. (* * *) Id. at 338-339.” State v. Kirigiti, 10th Dist. Franklin No. 06AP-

612, 2007-Ohio-6852, ¶34 (Whiteside, J., dissenting).

       {¶46} Based on the facts presented in this case, I do not believe that appellant’s

plea was sufficient under Alford. The trial judge did not inquire as to why appellant

wanted to plead guilty while asserting his innocence. Appellant has an amazing record,

including military service and a bronze star. Appellant signed a plea form on October

22, 2012, and indicated on the record, “By entering a GUILTY plea by way of Alford, I

do not contest the facts as stated in the Indictment.” This admission is more than

sufficient for a no contest plea. However, “I do not contest the facts” is not the same as

“I am pleading because I am innocent and here is why.”



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       {¶47} Thus, because the record does not reflect a knowing, voluntary, and

intelligent Alford plea, I dissent.




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