[Cite as State v. Howland, 2018-Ohio-613.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

STATE OF OHIO,                                  :    Case No. 17CA3

        Plaintiff-Appellee,                     :

        v.                                      :    DECISION AND
                                                     JUDGMENT ENTRY
CHARLES D. HOWLAND,                             :

        Defendant-Appellant.                    :    RELEASED: 2/12/2018

                                             APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.

Anneka Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.

Harsha, J.
        {¶1}    Charles Howland pleaded guilty to aggravated possession of

methamphetamine with a forfeiture specification. After accepting the plea the court

convicted him, imposed a sentence, and ordered certain monies forfeited. Howland

contends that his guilty plea was not entered knowingly, intelligently and voluntarily

because he was sleep deprived and under the influence of illegal drugs at the time he

entered it.

        {¶2}    However, the trial court correctly found Howland’s plea was made

knowingly, intelligently and voluntarily. Howland expressly denied being under the

influence of drugs or alcohol. And there is no evidence in the record that drugs, alcohol

or sleep deprivation impaired Howland’s judgment. We overrule Howland’s assignment

of error and affirm the trial court’s judgment.

                                               I. FACTS
Highland App. No. 17CA3                                                                 2


       {¶3}   The state indicted Howland for possession of methamphetamine in

violation of R.C. 2925.11, a third-degree felony, with a forfeiture specification for

$674.00 in cash. He pleaded guilty and agreed to the forfeiture. The trial court

conducted a colloquy to determine whether Howland was on drugs or alcohol, and

whether he was fully informed of his rights and understood the consequence of his

guilty plea. Upon being satisfied that Howland voluntarily entered his plea and waived

his constitutional rights, the court accepted his plea and convicted him. Three months

later we allowed Howland this delayed appeal.

                              II. ASSIGNMENT OF ERROR

       {¶4}   Howland assigns the following error for our review:


    HOWLAND’S GUILTY PLEA WAS OBTAINED IN VIOLATION OF THE
    FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
    CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
    CONSTITUTION.


                                 III. LAW AND ANALYSIS

                                  A. Standard of Review

       {¶5}    A defendant who enters a plea in a criminal case must act knowingly,

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

plea unconstitutional under both the United States Constitution and the Ohio

Constitution. See State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). An

appellate court that determines whether a guilty plea was entered knowingly,

intelligently, and voluntarily must conduct a de novo review of the record to ensure that

the trial court complied with the constitutional and procedural safeguards. See State v.
Highland App. No. 17CA3                                                                 3

Cassell, 2017-Ohio-769, 79 N.E.3d 588, ¶ 30-32 (4th Dist.); see also State v. Moore,

4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 13.

                           B. Defendant’s Claim of Impaired Judgment

       {¶6}    To decide Howard’s claim we look to Crim.R. 11(C), which governs the

process for accepting a felony plea of guilty or no contest. See Veney at ¶ 8. Before

accepting a guilty plea in a felony case a trial court must address the defendant

personally and determine 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.” Crim.R. 11(C)(2)(a). The court

must inform the defendant of both the constitutional and nonconstitutional rights he is

waiving and determine that he “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.” Crim.R. 11(C)(2)(b). Finally, the court must determine that the defendant

understands that he “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.” Crim.R.

11(C)(2)(c).

       {¶7}    Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a

valid plea because they do not involve constitutional rights. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. “ ‘Substantial compliance means

that, under the totality of the circumstances, appellant subjectively understood the
Highland App. No. 17CA3                                                                            4

implications of his plea and the rights he waived.’ ” State v. McDaniel, 4th Dist. Vinton

No. 09CA677, 2010-Ohio-5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No.

08AP-903, 2009-Ohio-3240, ¶ 6.

          {¶8}    But strict compliance with Crim.R. 11(C)(2)(c) is required because

constitutional rights are involved. “However, failure to [literally comply] will not

necessarily invalidate a plea. The underlying purpose, from the defendant's perspective,

of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a

voluntary and intelligent decision whether to plead guilty.” Veney at ¶ 18 quoting State

v. Ballard, 66 Ohio St.2d 473, 479–480, 423 N.E.2d 115 (1981). A guilty plea that is not

entered into knowingly, intelligently, and voluntarily is void. State v. Moore, 165 Ohio

App.3d 538, 2006-Ohio-114, ¶ 22 (4th Dist.), citing McCarthy v. United States, 394 U.S.

459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

          {¶9}    Howland contends that he did not knowingly, intelligently, and voluntarily

make his guilty plea under Crim.R. 11(C)(2)(a) because he was under the influence of

methamphetamine and “ICE,” as well as being sleep deprived, when he entered it.1

          {¶10} Initially the state argues that because Howland was given an agreed

sentence, R.C. 2953.08(D) bars appellate review. However, because Howland is

arguing that the trial court did not comply with Crim.R. 11 in accepting his guilty plea,

R.C. 2953.08, which addresses sentencing is not controlling. State v. Gavin, 4th Dist.

Scioto No. 14CA3672, 2015-Ohio-2549, ¶ 10. We can review the validity of the plea

leading to the agreed sentence. Id.




1   Howland concedes that the trial court complied with all other requirements of Crim.R. 11(C).
Highland App. No. 17CA3                                                                  5


       {¶11} Although the trial court asked him if he was under the influence of any

types of drugs or alcohol and he responded “No, Sir,” Howland claims that “the effects

of the drugs were so pervasive that Howland told the trial court he was not under their

influence.” The state responds that Howland was incarcerated in the Highland County

Jail from the time he was arrested until the plea hearing and there is no evidence in the

record that Howland used illegal drugs during that 21-day period. The state also

contends that there is nothing in the hearing transcript that would indicate Howland was

under the influence of drugs or alcohol, or unable to comprehend the proceedings due

to sleep deprivation.

       {¶12} Howland cites to nothing in the record that indicates that he was under the

influence of drugs, alcohol, or that he was so sleep deprived he could not understand

the proceedings. The trial court asked Howland, “do you feel that you’re making a sound

judgment in going ahead now[?]” and Howland responded, “Yeah. I’m making a sound

judgment.” The trial court asked, “Are you under the influence of any types of drugs or

alcohol at this time?” and Howland responded, “No, sir.” The record shows that the trial

court conducted a proper Crim.R. 11 plea colloquy. Howland’s responses were clear

and unequivocal; he responded each time that he understood the trial court’s

statements and questions. Therefore, his assertion that his guilty plea was obtained in

violation of his state and federal constitutional rights is meritless. State v. Jacobson, 4th

Dist. Adams No. 01CA730, 2003-Ohio-1201, ¶ 8 (record did not support defendant’s

claim of impaired judgment where defendant denied being under the influence of drugs

or alcohol and appeared coherent during the Crim.R. 11 colloquy). We overrule

Howland’s sole assignment of error.
Highland App. No. 17CA3                                                             6


                                      IV. CONCLUSION

      {¶13} Having overruled the assignment of error, we affirm the trial court’s

judgment.

                                                              JUDGMENT AFFIRMED.
Highland App. No. 17CA3                                                                    7



                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge


                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
