[Cite as State v. Harris, 2018-Ohio-3222.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2017-11-161

                                                   :            OPINION
    - vs -                                                       8/13/2018
                                                   :

ZACHARY HARRIS,                                    :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2016-08-1111



Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Maxwell D. Kinman, 423 Reading Road, Mason, Ohio 45040, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Zachary Harris, appeals his convictions in the Butler

County Court of Common Pleas after pleading guilty to two counts of aggravated murder.

        {¶ 2} Harris was part of a three-person team that killed Orlando Gilbert and Todd

Berus. The three individuals were hired to retaliate against Gilbert for a shooting that took

place several days earlier. On the day of the incident, Harris and his accomplices pulled

alongside Gilbert's vehicle and opened fire into the car with an AK-47, killing Gilbert and
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Berus. Police soon identified the vehicle Harris was in after it left the murder scene, and a

chase then ensued. Harris was captured and arrested after the chase ended.

       {¶ 3} Harris was indicted on two counts of aggravated murder with death penalty

specifications and possessing a weapon under disability. Harris was appointed two defense

attorneys who filed a plethora of motions in Harris' defense. These motions included two

motions to suppress evidence, a motion to exclude the death penalty claiming that Harris

lacked mental capacity, and a motion to continue the trial. After hearings on the motions, the

trial court denied each.

       {¶ 4} On the day trial was to commence, Harris pled guilty to both counts of

aggravated murder. In return, the state agreed to dismiss the death penalty specifications

and the having weapons under disability charge. The parties agreed to a sentence of life

imprisonment without the possibility of parole, which the trial court accepted. Harris now

appeals his convictions, raising the following assignments of error.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT FAILED TO ENSURE THAT THE APPELLANT

KNOWINGLY ENTERED A GUILTY PLEA IN THIS MATTER.

       {¶ 7} Harris argues in his first assignment of error that his guilty plea was invalid and

should not have been accepted by the trial court.

       {¶ 8} When a defendant enters a guilty plea in a criminal case, the plea must be

knowingly, intelligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No.

CA2014-12-142, 2015-Ohio-3108, ¶ 6. "Failure on any of these points 'renders enforcement

of the plea unconstitutional under both the United States Constitution and the Ohio

Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 21 (12th

Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To ensure that a defendant's

guilty plea is knowingly, intelligently, and voluntarily made, the trial court must engage the
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defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Henson, 12th Dist. Butler

No. CA2013-12-221, 2014-Ohio-3994, ¶ 10.

       {¶ 9} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.

11(C)(2)(c), which requires the trial court to verify that the defendant understands the

constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,

2015-Ohio-1485, ¶ 9. Conversely, the trial court need only substantially comply with the

nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Id. Under the

substantial compliance standard, the appellate court must review the totality of the

circumstances surrounding the defendant's plea and determine whether the defendant

subjectively understood the effects of his plea. State v. Givens, 12th Dist. Butler No.

CA2014-02-047, 2015-Ohio-361, ¶ 12. When a court complies with Crim.R. 11(C)(2), there

is a presumption that the plea entered by a defendant was voluntary. State v. Kennell, 12th

Dist. Clermont No. CA2015-01-002, 2015-Ohio-4817, ¶ 29.

       {¶ 10} Harris now claims that his plea was not voluntarily made because he wanted a

continuance of the jury trial, he had diminished capacity, and he felt he had no other choice

but to accept the plea. However, Harris does not raise any argument that the trial court did

not strictly or substantially comply with Crim.R. 11(C), and a review of the record indicates

that the trial court complied with the rule's requirements. Thus, there is a presumption that

Harris' plea was voluntary.

       {¶ 11} After reviewing the record, we find that Harris' claims do not rebut the

presumption that his plea was voluntarily made. The facts are undisputed that Harris faced

two aggravated murder charges, each with death penalty specifications, as well as having a

weapon under disability charge. Although the motions Harris filed were denied, the trial court

specifically addressed the consequences of Harris' plea with him before accepting the plea

as voluntarily given. Moreover, the trial court recognized Harris' displeasure regarding the
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denial of his motions and reiterated the voluntariness of Harris' plea. "I understand that you

disagree with my decisions and all that's on the record, whatever. All that into consideration,

do you still want to plead guilty today?" Harris then affirmed his choice to plead guilty.

       {¶ 12} The trial court also discussed the benefits of pleading guilty and addressed

Harris that both counts of murder exposed him to the possibility of a death sentence after a

jury or bench trial, while the plea made capital punishment impossible. "As a result of this

plea, [a death sentence] is not a possibility. Those specifications are being dismissed. A

jury, nor myself, [cannot] sentence you to death as a result of this case." Thus, Harris had

motivation to accept the plea, and accepting the plea was advantageous to Harris

considering the agreed sentence and dismissal of two death penalty specifications and a

third charge.

       {¶ 13} Harris expressly confirmed that he understood the terms of the agreement,

that he was not under the influence of drugs or medication, and that he had read and

understood the written plea form. Harris also confirmed that his attorneys discussed the plea

with him fully and had answered all his questions. Harris recognized that the plea was "in

[his] best interest" and asserted that he had no other questions for his attorneys or the court

about the plea. Harris' defense attorneys assured the court that they believed in the

voluntary nature of Harris' plea and that the plea was a "just resolution" to the case. Harris

himself told the court that his plea was voluntarily made, which is patently reasonable

considering that Harris would avoid the death penalty with his plea despite the overwhelming

evidence the state was prepared to present to establish Harris' guilt.

       {¶ 14} The record does contain some hesitancy from Harris regarding his decision to

plead guilty. When Harris was asked during the plea hearing whether he admitted the facts

from the bill of particulars, Harris responded, "I'm really not, but * * *." The court then stated,

"I cannot take a plea when you state, well I really don't, but yes, I do." The trial court then
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offered time for Harris to confer with this attorneys and assured Harris that the trial court

would be "as patient and accommodating as possible. I’m not trying to rush anybody into any

kind of a plea." Harris then conferred with his defense team and announced his desire to

continue with the plea, including fully admitting to the facts in the bill of particulars. The trial

court asked Harris if he was entering the plea of his own free will, to which Harris replied

"yes, sir."

       {¶ 15} While Harris was dissatisfied that his motions were denied and may have

believed that his counsel were unprepared to move on with the trial, the record is clear that

Harris fully understood the rights he was waiving, as well as the consequences of his plea.

Moreover, Harris has not asserted his innocence, nor raised any basis on which he would

have chosen a jury trial over the guilty plea.

       {¶ 16} Harris was faced with an unpleasant alternative, either agree to life in prison

without the possibility of parole or proceed to trial where he could be subject to two death

sentences. That fact, however, did not render Harris' plea involuntary and Harris' sentiment

that he had to accept the plea was a mere acknowledgement that he was choosing to avoid

the death penalty even if the resulting sentence was life without parole.

       {¶ 17} Specific to Harris' suggestion that he has diminished capacity and therefor

could not enter a voluntary plea, the record clearly demonstrates otherwise. The trial court

held a full hearing to address Harris' claim that he was intellectually disabled and Harris'

motion to remove the death penalty specifications because he had diminished capacity. The

trial court found that Harris was not intellectually disabled and did not have diminished

capacity after hearing extensive evidence on the issue and after fully considering Harris'

motion. The trial court considered that Harris' IQ was above the threshold range for

intellectual disability, and also that Harris demonstrated "logical tactics" and "strategy and

sophistication" throughout the proceedings. Nothing occurred on record to alter the trial
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court's determination and the record clearly shows that Harris knew and understood the

effects of his plea.

        {¶ 18} After a full review of the record, we find that Harris' guilty plea was knowingly,

voluntarily, and intelligently made. As such, Harris' first assignment of error is overruled.

        {¶ 19} Assignment of Error No. 2:

        {¶ 20} THE TRIAL COURT ERRED BY FAILING TO GRANT A CONTINUANCE OF

THE TRIAL IN THIS MATTER.

        {¶ 21} Harris argues in his second assignment of error that the trial court erred by not

granting him a continuance.

        {¶ 22} It is well-established that a trial court has broad discretion in determining

whether to grant or deny a continuance. State v. Robinson, 12th Dist. Butler No. CA2015-01-

013, 2015-Ohio-4533, ¶ 19. This court will not reverse the trial court's decision denying a

defendant's motion for a continuance absent an abuse of discretion. State v. Glowka, 12th

Dist. Butler No. CA2012-10-203, 2013-Ohio-3080, ¶ 8. An abuse of discretion "connotes

more than an error of law or of judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable." State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.

        {¶ 23} While there is no bright-line test for determining whether a continuance should

be granted, the trial court should be guided by consideration of several factors, "including the

length of the requested delay, whether other continuances have been requested and

received, the inconveniences likely to result, the reasons for the delay, and whether the

defendant contributed to the circumstances giving rise to the need for delay." State v.

Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, ¶ 18.1


1. The state argues that this court should not address the merits of Harris' assignment of error because Harris
waived the argument by pleading guilty. With the exception of the constitutionality of the plea itself, a defendant
who enters a guilty plea waives the right to appeal all nonjurisdictional issues arising during prior stages of the
proceedings. State v. Moxley, 12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572. In other words, a guilty
plea waives any and all constitutional infirmities that occurred prior to the plea. Id. Therefore, the state is correct
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        {¶ 24} Seven weeks before the trial was to start, and before he pled guilty, Harris

moved for a continuance citing the yet-to-be-decided issue of whether he would be subject to

the death penalty. However, the trial court soon thereafter ruled on the motion, finding that

Harris was eligible to face the death penalty specification. The trial court also denied Harris'

request for a continuance. At that point, Harris' counsel were ready to move forward with

trial, knowing all pertinent issues in the case and having performed hundreds of hours of

work on the case.

        {¶ 25} While the competency issue was undoubtedly time consuming and an

important component of counsel's pre-trial work, nothing in the record indicates that Harris'

defense team was not ready to move forward to the trial phase. The trial court found that

having to address Harris' mental eligibility for the death penalty would benefit Harris' defense

team, as the issues addressed within that motion and argument were "strongly correlated" to

issues raised at the trial and possible mitigation phases. We agree.

        {¶ 26} Moreover, the trial court did not abuse its discretion in denying the continuance

where the trial date had been set for approximately a year, the witnesses were prepared to

attend trial, and both parties were able and prepared to move forward. Harris' second

assignment of error is, therefore, overruled.

        {¶ 27} Assignment of Error No. 3:

        {¶ 28} COUNSEL PROVIDED TO THE APPELLANT WERE INEFFECTIVE.

        {¶ 29} Harris argues in his third assignment of error that he was denied his right to

effective assistance of counsel.

        {¶ 30} To prevail on an ineffective assistance of counsel claim, an appellant must


that Harris' guilty plea waived any previous errors by the trial court unless the denial of the motion for a
continuance of the trial date effectively coerced Harris' plea by making it other than voluntary. While Harris does
not address the voluntariness of his plea in his second assignment of error, he did claim in his first that his plea
was not voluntarily made because the trial court denied his motion for a continuance. Therefore, we will address
the merits of Harris' argument.
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show his trial counsel's performance was deficient, and that he was prejudiced as a result.

State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance will

not be deemed deficient unless it fell below an objective standard of reasonableness.

Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's

errors, there is a reasonable probability that the result of his trial would have been different.

Id. at 694.

       {¶ 31} The failure to satisfy either prong of the Strickland test is fatal to an ineffective

assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-

4625, ¶ 7. When applied in the context of a guilty plea, a defendant must also demonstrate

that there is a reasonable probability that, but for his counsel's errors, he would not have pled

guilty and would have insisted on going to trial. State v. Moxley, 12th Dist. Madison No.

CA2011-06-010, 2012-Ohio-2572.

       {¶ 32} Harris claims that his counsel was ineffective for two reasons, (1) not

requesting a no contest plea so that he could pursue more arguments on appeal, and (2) for

not being more prepared for trial.

       {¶ 33} Regarding the guilty plea itself, Harris does not allege that he would have

insisted on going to trial, but instead argues that he would have pled no contest and

appealed the trial court's ruling on several issues including his motions to suppress and to

not face the death penalty because of mental incompetence. However, there is nothing in

the record that indicates that the state offered the possibility of a different plea, and Harris

does not argue in his brief that he was ever given the choice of a no contest plea.

       {¶ 34} Harris' guilty plea was the result of an agreement wherein one criminal charge
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and two death penalty specifications were dismissed. The parties both agreed to a sentence

wherein Harris would not be subject to the death penalty on either aggravated murder

charge, but instead, would receive a life sentence. There is no indication in the record that

the state offered or would have afforded Harris the opportunity to plead no contest or to any

plea wherein he did not fully admit his guilt in the murders.

       {¶ 35} We also observe that Harris asks this court to make assumptions not

supported by the record and that are purely theoretical. For example, in support of his

arguments, Harris suggests that "there is nothing in the record to indicate that a no contest

plea would not have been accepted by the trial court." However, and just as easily, there is

nothing in the record to indicate that a no contest plea would have been agreed upon by the

state or accepted by the trial court.     Raising allegations of ineffectiveness based on

suggestions or facts not appearing in the record is an improper method of demonstrating

ineffective assistance of counsel.

       {¶ 36} Harris next claims that his trial counsel was ineffective for not being more

prepared for trial. However, the record does not demonstrate that counsel was not prepared

for trial, regardless of the amount of time they spent arguing the mental incompetence issue.

The facts indicate that counsel requested a continuance seven weeks before trial, but did not

renew the request once the trial court denied a continuance, nor did the attorneys claim they

were not prepared for trial.

       {¶ 37} Harris' attorneys continually filed motions and every indication on record

demonstrates that counsel continually prepared for a trial. For example, counsel focused on

jury selection and filed motions indicating that they were pursuing every possible means for

selecting a jury favorable to the defense. The trial court noted that Harris' attorneys were

effective, had zealously defended Harris, and offered "very well argued" motions in support of



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Harris.2

        {¶ 38} Moreover, there is nothing in the record that demonstrates that Harris would

not have pled guilty if his counsel prepared for trial in any different manner. Harris rationally

choose to accept a plea deal wherein the death penalty specifications were dismissed,

especially given the overwhelming evidence the state was prepared to present regarding

Harris' guilt. Harris has simply failed to demonstrate that he would not have accepted a plea

agreement in lieu of trial.

        {¶ 39} Having found that Harris was not denied his right to effective assistance of

counsel, his final assignment of error is overruled.

        {¶ 40} Judgment affirmed.


        S. POWELL, P.J., and M. POWELL, J., concur.




2. At one point during the proceedings, the trial court made reference to the 61 motions defense counsel had
already filed.
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