[Cite as State v. Carter, 2019-Ohio-2046.]




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


State of Ohio                                     Court of Appeals Nos. L-18-1037

        Appellee                                  Trial Court Nos. CR0201702134
v.

Marcus Carter                                     DECISION AND JUDGMENT

        Appellant                                 Decided: May 24, 2019


                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Dan M. Weiss, for appellant.

                                             *****
        OSOWIK, J.

        {¶ 1} Appellant, Marcus Carter, appeals the judgment of the Lucas County Court

of Common Pleas, convicting him, following a plea of no contest, of one count of

felonious assault in violation of R.C. 2903.11(A)(1) and (D), a felony of the second

degree. For the reasons that follow, we affirm.
                            I. Facts and Procedural Background

       {¶ 2} On July 5, 2017, the Lucas County Grand Jury indicted appellant on one

count of felonious assault in violation of R.C. 2903.11(A)(1) and (D), a felony of the

second degree. Appellant entered an initial plea of not guilty, and the matter progressed

through several pretrial hearings.

       {¶ 3} On December 12, 2017, appellant withdrew his not guilty plea, and entered a

plea of no contest to the charge in the indictment. In exchange, the state agreed to

recommend a cap of five years on any prison sentence. Prior to accepting the plea

agreement, appellant was permitted to have an ex parte discussion with the trial court,

and additional time to discuss the matter with his attorney.

       {¶ 4} Thereafter, the trial court engaged in a detailed Crim.R. 11 plea colloquy

with appellant. After the court conveyed the range of penalties that appellant was facing,

the following exchange occurred:

              THE COURT: And we have discussed this as well, but the case --

       the state’s recommendation in this case is that any sentence not exceed 5

       years in prison. Do you understand that?

              THE DEFENDANT: Yes.

              THE COURT: And that is the -- so they are recommending a cap of

       5 years. And am I correct, Ms. Facey, that the state is asking for a prison

       term in this case?

              MS. FACEY: We will be, Your Honor, yes.



2.
            THE COURT: Okay. Thank you, Ms. Facey. Do you understand

     that, Mr. Carter?

            THE DEFENDANT: I was understanding that they’re not asking --

     that there’s no more than 5 years should be my sentence, but now I

     understand that I can get from 0 to 2 to 8 and you don’t have to agree to the

     5-year cap, you can go over it, but I didn’t know they was asking for time.

     I thought they was just basically capping it off and I was going to apologize

     for not taking it, I just thought they was just saying 5 years but --

            THE COURT: Okay. I understand your confusion on this.

            THE DEFENDANT: Now I’m facing prison time again or I was.

            THE COURT: Mr. Carter, I understand your confusion on this

     because this is confusing when the state is recommending that cap it seems

     like that’s a pretty hard cap and that is what their recommendation is. But

     now I’m explaining to you the entirety of what you’re facing in terms of a

     penalty which can range anywhere from community control, because it’s

     not mandatory, to that 8 years. So do you want to ask your attorney some

     follow-up questions to make sure you understand the parameters of this?

            THE DEFENDANT: I already took the plea, I’m going to just now I

     know they are asking for prison and just now I fully understand.

            THE COURT: Okay. Do you want to ask Mr. Rost any questions or

     you feel like you’re kind of just understanding the entirety of this now?



3.
              THE DEFENDANT: Yes.

              THE COURT: Okay. Do you have any questions of the court, Mr.

       Carter? No. You’re shaking your head no.

              THE DEFENDANT: No.

              THE COURT: Okay. Would you like to proceed with the rest of

       this hearing?

              THE DEFENDANT: Yes.

       {¶ 5} Following the colloquy, the trial court asked the state to provide the factual

basis for the charge of felonious assault. The state responded:

              Had this matter proceeded to trial the state would have proven

       beyond a reasonable doubt that Marcus Johnell Carter on or about the 24th

       day of June, 2017, in Lucas County, Ohio, did knowingly cause serious

       physical harm to another in violation of 2903.11(A)(1) and (D) of the Ohio

       Revised Code. More specifically on June 24th, 2017, the defendant was

       living with his girlfriend [J.B.] * * * in Toledo, Lucas County, Ohio.

              On that date the two did have an argument over the phone. When

       [J.B.] returned home later that day the defendant was present with his 7

       year old godson * * *. When [J.B.] entered the apartment, she went to put

       her items down in the kitchen, turned around, the defendant was there and

       immediately punched her in the face. He punched her several more times.

       She backed up and became cornered in the kitchen at which point the



4.
          defendant continued punching her and started throwing kitchen items at her

          including several glass mugs that did break on the victim’s body upon

          striking her, as well as a butcher block that contained several kitchen

          knives. When those knives became loose, the defendant did take two of the

          kitchen knives, held them to the victim’s throat and threatened to kill her.

                 The victim was struck again by several of those items, one of them

          hit her square in the forehead causing a serious laceration to her head that

          did require seven stitches. After the assault took place the defendant saw

          that she was bleeding, said you’re going to need stitches for that and soon

          after left the apartment. [J.B.] at that point called her mother frantic to be

          picked up as she had no car and no way of leaving the apartment on her

          own not knowing where the defendant was. Mom did arrive, saw her

          daughter bleeding from the head and took her to the University of Toledo

          Medical Center where she was treated for her injuries, again seven stitches

          to her forehead to repair that laceration. As well as she had x-rays on her

          arms and hands from where she was holding her hands up to protect herself

          from the objects flying at her. There was no broken bones in her hands or

          arms but some swelling that were noted in the medical records.

          {¶ 6} The trial court then accepted appellant’s plea of no contest, and found him

guilty. At the sentencing hearing, the trial court ordered appellant to serve five years in

prison.



5.
                                 II. Assignments of Error

       {¶ 7} Appellant has timely appealed the trial court’s January 30, 2019 judgment

memorializing his conviction, and now raises two issues on appeal:1

              1. The trial court erred when it found that the state of Ohio

       presented facts sufficient to meet the elements of felonious assault and

       appellant’s case should be dismissed and double jeopardy should apply.

              2. The trial court erred when it found appellant knowingly and

       voluntarily entered into the no contest plea.

                                        III. Analysis

       {¶ 8} In his first assignment of error, appellant argues that the statement of facts

presented by the state was insufficient to support the trial court’s finding of guilt on the

count of felonious assault. In particular, appellant argues that the state’s recitation of

facts did not demonstrate the element of “serious physical harm.”

       {¶ 9} R.C. 2903.11(A)(1) states, “No person shall knowingly * * *: (1) Cause

serious physical harm to another or to another’s unborn.” “Serious physical harm” is

defined in R.C. 2901.01(A)(5) as:

              (a) Any mental illness or condition of such gravity as would

       normally require hospitalization or prolonged psychiatric treatment;

              (b) Any physical harm that carries a substantial risk of death;


1
 Appellant’s brief puts forth “issues presented for review” rather than “assignments of
error” as required by App.R. 16. We construe appellant’s “issues presented for review”
as the “assignments of error” we are required to rule upon pursuant to App.R.
12(A)(1)(b).
6.
               (c) Any physical harm that involves some permanent incapacity,

       whether partial or total, or that involves some temporary, substantial

       incapacity;

               (d) Any physical harm that involves some permanent disfigurement

       or that involves some temporary, serious disfigurement;

               (e) Any physical harm that involves acute pain of such duration as to

       result in substantial suffering or that involves any degree of prolonged or

       intractable pain.

       {¶ 10} In his brief, appellant concedes that the victim was harmed, but he contends

that the injuries inflicted did not rise to the level of serious physical harm because there

was no permanent or substantial incapacity, permanent or substantial disfigurement, acute

pain that resulted in substantial suffering, or any degree of prolonged or protracted pain.

We disagree.

       {¶ 11} In State v. Lee, 6th Dist. Lucas No. L-06-1384, 2008-Ohio-253, we

recognized that “Ohio appellate courts have held that ‘[w]here injuries are serious enough

to cause him or her to seek medical treatment, the finder of fact may reasonably infer that

the force exerted on the victim caused serious physical harm as defined by R.C.

2901.01(A)(5).’” Id. at ¶ 30, quoting State v. Lee, 8th Dist. Cuyahoga No. 82326, 2003-

Ohio-5640, ¶ 24. More specifically, Ohio courts have held that serious physical harm is

present when the victim suffers cuts to the head that require stitches. See State v. Powell,

11th Dist. Lake No. 2007-L-187, 2009-Ohio-2822, ¶ 44-45 (serious physical harm where



7.
victim was struck on the back of the head with a beer glass, resulting in a sizeable gash

that required eight stitches); State v. Henricks, 6th Dist. Wood No. WD-05-051, 2006-

Ohio-6181, ¶ 34 (serious physical harm where victim was struck in the head with a frying

pan, resulting in a two-and-one-half-centimeter cut that required staples to close the

wound); State v. Edwards, 83 Ohio App.3d 357, 614 N.E.2d 1123 (10th Dist.1992)

(serious physical harm where victim was repeatedly punched in the face, resulting in a

two-centimeter cut above his right eyebrow, and the reopening of a one-centimeter scar

on his forehead, which required a total of twenty-three stitches to close).

       {¶ 12} Here, appellant punched the victim several times in the face and threw

kitchen objects, including glass mugs and a knife block, at her. At least one of the

objects hit the victim in the face, causing a laceration on her forehead that required seven

stitches to close. We hold that these facts are sufficient to support the conclusion that

appellant caused serious physical harm to the victim in that the harm consisted of

temporary serious disfigurement under R.C. 2901.01(A)(5)(d) and acute pain of such

duration as to result in substantial suffering under R.C. 2901.01(A)(5)(e).

       {¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 14} In his second assignment of error, appellant argues that the trial court erred

in accepting his plea of no contest because he did not fully understand the waiver of his

rights and the nature of his plea. Appellant claims that his statement, “I already took the

plea * * *” reflects that he was merely going forward and did not recognize that he could

exercise other options in his defense.



8.
       {¶ 15} “[U]nless a plea is knowingly, intelligently, and voluntarily made, it is

invalid.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. To

ensure that the plea is knowingly, intelligently, and voluntarily made, the trial court must

engage in a colloquy as prescribed in Crim.R. 11. Id. at ¶ 26. Relevant here, Crim.R.

11(C)(2)(a) and (b) provide,

              (2) In felony cases the court * * * 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.

       {¶ 16} “[I]f the trial judge imperfectly explained nonconstitutional rights such as

the right to be informed of the maximum possible penalty and the effect of the plea, a

substantial-compliance rule applies.” Clark at ¶ 31. “Under this standard, a slight

deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicates that ‘the defendant subjectively understands the implications of



9.
his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v. Nero,

56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

       {¶ 17} Here, the record indicates that the trial court properly and thoroughly

notified appellant of the potential penalties involved, as well as the consequences of his

plea of no contest. Furthermore, the record demonstrates that appellant subjectively

understood the implications of his plea. After being informed that the state was

recommending a prison sentence with a cap of five years, appellant affirmatively stated

that he understood that his sentence could be zero years in prison or a term from two to

eight years, and that the court did not have to agree to the five-year cap, but could go over

it. Following further discussion, appellant then made the comment cited in his brief that

“I already took the plea * * *.” However, his full statement was, “I already took the plea,

I’m going to just now I know they are asking for prison and just now I fully understand.”

Thus, appellant conveyed his understanding of the potential consequences resulting from

his plea. Appellant then declined further opportunity to discuss the matter with his

counsel, and expressed his desire to continue with the hearing. Therefore, we hold that

appellant’s plea was knowingly, voluntarily, and intelligently made.

       {¶ 18} Accordingly, appellant’s second assignment of error is not well-taken.

                                     IV. Conclusion

       {¶ 19} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                       Judgment affirmed.

10.
                                                                             L-18-1037
                                                                             State v. Carter




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


Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, 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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