[Cite as State v. Luna, 2020-Ohio-3211.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     HURON COUNTY


State of Ohio                                       Court of Appeals Nos. H-18-016
                                                                          H-18-017
        Appellee
                                                    Trial Court Nos. CRI 2017-0307
v.                                                                   CRI 2018-0327

Michael Kendall Luna                                DECISION AND JUDGMENT

        Appellant                                   Decided: June 5, 2020

                                            *****

        James Joel Sitterly, Huron County Prosecuting Attorney, and
        Bambi S. Couch, Assistant Prosecuting Attorney, for appellee.

        Brian A. Smith, for appellant.

                                            *****

        SINGER, J.
        {¶ 1} In this consolidated appeal, appellant, Michael Luna, appeals the September 4,

2018 judgment entry of the Huron County Court of Common Pleas sentencing appellant to three

years of community control, up to a six-month term at Community Based Correctional Facility

(“CBCF”), and a 90-day sentence in the Huron County Jail after appellant pled guilty to one
count of trafficking in drugs and one count of failure to appear. Because appellant waived any

errors in the indictment by entering his Alford plea, we affirm the trial court’s judgment.

       {¶ 2} On or about September 19, 2016, police arranged for a confidential informant to

buy marijuana from appellant. Police officers observed the informant entering a residence that

was known to be appellant’s home. The confidential informant bought marijuana from appellant

for $25 and recorded the entire transaction. The recording of the transaction revealed that

appellant discussed the specifics of the transaction including the amount of drugs to be sold and

the amount charged to the confidential informant. The drugs purchased by the confidential

informant weighed 4.94 grams and contained marijuana.

       {¶ 3} On March 27, 2017, appellant was indicted on two counts of trafficking in drugs,

felonies of the fifth degree, in violation of R.C. 2925.03(A)(1) and 2925.03(C)(3)(a) in case No.

CRI 2017-0307. The matter was scheduled for trial on November 14, 2017, but appellant failed

to appear despite receiving notice of the trial date. A warrant was issued for his arrest, after

which appellant was indicted. On December 4, 2017, appellant was then indicted on one count

of failure to appear, a felony of the fourth degree, in violation of R.C. 2937.99(A) and (B) in case

No. CRI 2018-0327.

       {¶ 4} On July 16, 2018, pursuant to a plea agreement, appellant entered an Alford plea to

one count of trafficking in drugs in case No. CRI 2017-0307 and the count of failure to appear in

case No. CRI 2018-0327. Appellee dismissed the first count of trafficking in drugs. As part of

the plea agreement, the parties agreed to a joint recommendation for sentencing. Based on this

joint recommendation, the trial court sentenced appellant to three years of community control, up

to a six-month term at CBCF, and a 90-day sentence at the Huron County Jail.




2.
       {¶ 5} Appellant timely appealed his convictions.

       {¶ 6} Appellant argues that his indictment contained charges “that do not constitute

offenses in Ohio.” He then argues that because the indictment was defective, he could not have

entered a knowing, voluntary, and intelligent plea. Appellant also argues that the trial court did

not have subject-matter jurisdiction and that he did not receive effective assistance of counsel

due to these errors in the indictment.

       {¶ 7} Appellant brings forth three assignments of error for our review:

               I. The trial court did not have subject matter jurisdiction to convict

       and sentence Appellant due to the void indictment issued in case number

       CRI 20170307, which violated Appellant’s right to an indictment under

       Article I, Section 10 of the Ohio Constitution and the Fifth and Fourteenth

       Amendments to the United States Constitution.

               II. Appellant’s guilty plea was not knowingly, voluntarily, and

       intelligently entered due to the void indictment issued in case number CRI

       20170307, in violation of Appellant’s right to Due Process and Equal

       Protection under the Ohio Constitution and the Fifth and Fourteenth

       Amendments to the United States Constitution.

               III. The failure of Appellant’s trial counsel to make a motion to

       dismiss the void indictment issued in case number CRI 20170307

       constituted ineffective assistance of counsel, in violation of Appellant’s




3.
       right to Due Process and to counsel under the Ohio Constitution and the

       Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

                                                 Law

       {¶ 8} “An Alford plea is a plea of guilty with contemporaneous protestation of

innocence.” State v. Hutchison, 2018-Ohio-200, 104 N.E.3d 91, ¶ 55 (5th Dist.), citing North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). A guilty plea is a

complete admission of the defendant’s guilt and by entering such a plea, the defendant admits

guilt of the substantive crime. (Citations omitted). State v. Morgan, 181 Ohio App.3d 747,

2009-Ohio-1370, 910 N.E.2d 1075, ¶ 23 (1st Dist.). “Thus, when the defense or right asserted

by a defendant relates solely to the capacity of the state to prove a defendant’s factual guilt, it is

subsumed by the defendant’s guilty plea.” Id. at ¶ 25. “Therefore, a criminal defendant who

pleads guilty is limited on appeal; ‘[h]e may only attack the voluntary, [knowing,] and intelligent

character of the guilty plea’ and ‘may not thereafter raise independent claims relating to the

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

quoting State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992).

                                              Analysis

       {¶ 9} Appellant’s arguments center on whether the indictment was void because of its

alleged defects. Although appellant argues that our review of the issues in the indictment is a

plain error review, appellant waived all defects in the indictment when appellant entered his

Alford plea. As such, our review is limited to whether the plea hearing reflects that appellant

entered his plea knowingly, voluntarily, and intelligently.




4.
       {¶ 10} Appellant presents no evidence that appellant’s plea was not voluntarily,

knowingly, or intelligently made. A reading of the transcript of appellant’s plea hearing

demonstrates that the trial court followed the requisites of Crim.R. 11 and appraised appellant of

the ramifications of his Alford plea. Appellant was informed of the possible punishments he

faced, what rights he was waiving by entering his Alford plea, and ensured that appellant

received effective assistance of counsel. Appellant fails to present any other argument that

would demonstrate a manifest injustice, which would permit the trial court to withdraw his

Alford plea. Accordingly, the court finds appellant’s assignments of error not well-taken and

they are denied.

       {¶ 11} We find appellant’s assignments of error not well-taken. The judgment of the

Huron County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.


                                                                             Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                                  _______________________________
                                                               JUDGE
Thomas J. Osowik, J.
                                                   _______________________________
Gene A. Zmuda, P.J.                                            JUDGE
CONCUR.
                                                   _______________________________
                                                               JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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