[Cite as State v. Hill,

.]

COURT OF APPEALS STATE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 00130 DAVIS ANTHONY HILL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2019 CR 01338

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE AARON KOVALCHIK PROSECUTING ATTORNEY 116 Cleveland Avenue, NW VICKI L. DeSANTIS 808 Courtyard Centre ASSISTANT PROSECUTOR Canton, Ohio 44702 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 State County, Case No. 2020 CA 00130 2

Wise, John, J.

{¶1} Defendant-Appellant Davis Hill appeals the judgment entered by the Stark

County Court of Common Pleas convicting him of one count of Trafficking in Heroin with

a major drug offender specification in violation of R.C. 2925.03(A)(2)(C)(6)(g) and R.C.

2941.1410, one count of Possession of Heroin with a major drug offender specification in

violation of R.C. 2925.11(A)(C)(6)(f) and R.C. 2941.1410, one count of Trafficking in

Fentanyl-Related Compound with a major drug offender specification in violation of R.C.

2925.03(A)(2)(C)(9)(h) and R.C. 2941.1410, one count of Possession of Fentanyl-

Related Compound with a major drug offender specification in violation of R.C.

2925.11(A)(C)(11)(g) and R.C. 2941.1410, two counts of Having Weapons While Under

Disability in violation of R.C. 2923.13(A)(2), and one count of Aggravated Possession of

Drugs in violation of R.C. 2925.11(A)(C)(1)(a) entered on August 14, 2020. Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 26, 2019, Appellant was indicted for one count of Trafficking in

Heroin with a major drug offender specification in violation of R.C. 292503(A)(2)(C)(6)(g)

and R.C. 2941.1410, one count of Possession of Heroin with a major drug offender

specification in violation of R.C. 2925.11(A)(C)(6)(f) and R.C. 2941.1410, one count of

Trafficking in Fentanyl-Related Compound with a major drug offender specification in

violation of R.C. 2925.03(A)(2)(C)(9)(h) and R.C. 2941.1410, one count of Possession of

Fentanyl-Related Compound with a major drug offender specification in violation of R.C.

2925.11(A)(C)(11)(g) and R.C. 2941.1410, two counts of Having Weapons While Under Stark County, Case No. 2020 CA 00130 3

Disability in violation of R.C. 2923.13(A)(2), and one count of Aggravated Possession of

Drugs in violation of R.C. 2925.11(A)(C)(1)(a).

{¶3} On July 27, 2019, Appellant entered a plea of not guilty.

{¶4} On January 3, 2020, Appellant filed a Motion to Suppress.

{¶5} On February 6, 2020, the trial court held a hearing on Appellant’s Motion to

Suppress.

{¶6} On April 22, 2020, the trial court denied Appellant’s Motion to Suppress.

{¶7} On April 24, 2020, Appellant filed a Motion for Judicial Release.

{¶8} On April 29, 2020, the trial court denied Appellant’s Motion for Judicial

Release.

{¶9} On June 8, 2020, new counsel filed a notice of appearance on behalf of

Appellant.

{¶10} On July 21, 2020, Appellant filed a second Motion to Suppress.

{¶11} On July 27, 2020, the trial court held a hearing on Appellant’s second Motion

to Suppress. The trial court overruled Appellant’s second Motion to Suppress.

{¶12} After the Suppression Hearing the trial court asked the Appellee to put the

State’s recommendation on the record. The State’s recommendation was for a minimum

sentence of sixteen years. This includes a five-year sentence on the specification and

eleven to sixteen and a half years on the underlying offenses.

{¶13} On July 28, 2020, the trial court conducted a pretrial hearing for purposes

of discussing the Appellee’s plea offer. At the hearing, Appellant expressed interest in

entering a plea of no contest; however, Appellee objected to Appellant entering a plea of

no contest. The trial court indicated that this is not an option. The trial court stated that he Stark County, Case No. 2020 CA 00130 4

rarely lets a defendant plead no contest. When this occurs it is usually because there is

a legitimate legal issue that was undecided in the State of Ohio.

{¶14} On August 5, 2020, Appellant entered a change of plea to guilty.

{¶15} The trial court sentenced Appellant to a total of sixteen to twenty-one and

one half years in prison.

ASSIGNMENTS OF ERROR

{¶16} On September 10, 2020, Appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶17} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT

ALLOW APPELLANT TO ENTER A PLEA OF NO CONTEST.

{¶18} “II. THE TRIAL COURT ERRED WHEN IT IMPOSED A VINDICTIVE

SENTENCE UPON APPELLANT.”

I.

{¶19} In Appellant’s First Assignment of Error, Appellant argues the trial court

erred by refusing to allow Appellant to enter a plea of no contest. We disagree.

{¶20} Crim.R. 11(C)(2) provides in pertinent part: “In felony cases the court may

refuse to accept a plea of guilty or a plea of no contest[.]”

{¶21} “A trial court has discretion to accept or reject a no-contest plea. See

Crim.R. 11(A) (defendant may plead no contest with the consent of the court). *473 The

court’s decision will not be reversed absent an abuse of discretion. See State v. Jenkins,

,

(1984).” State v. Beasley,

,

,

. Stark County, Case No. 2020 CA 00130 5

{¶22} We review the decision of the trial court, therefore, for an abuse of

discretion. “The term ‘abuse of discretion’ connotes more than an error of law or judgment;

it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore,

,

(1983).

{¶23} A court rejecting any and all no-contest pleas as a matter of course without

any consideration to the facts or circumstances of each case constitutes a blanket policy

of not accepting no contest pleas.

. A court’s adherence to a blanket policy

of not accepting no contest pleas is arbitrary and constitutes an abuse of discretion.

{¶24} In Beasley, the defense attorney summarized the trial court’s policy as a

blanket policy of not accepting a no contest plea is preventing her client from entering a

plea of no contest. Id. at ¶3. The trial court judge acknowledged he understood the

defense attorney and accepted a plea of guilty from the defendant. Id. at ¶3-¶6. The

Supreme Court of Ohio reversed the guilty plea concluding, “the trial court erred in

adopting a blanket policy of refusing to accept no-contest pleas[.]” Id. at ¶17.

{¶25} In the case sub judice, the trial court prevented Appellant from entering a

no contest plea. The trial court made clear that it does permit no contest pleas in certain

circumstances, such as when a legitimate legal issue remains in flux. The trial court made

note that it looked at the facts and circumstances of the case at bar and determined it

would not accept a no contest plea.

{¶26} After a review of the record we find the trial court did not abuse its discretion

in preventing Appellant from entering a no contest plea.

{¶27} Appellant’s First Assignment of Error is overruled. Stark County, Case No. 2020 CA 00130 6

II.

{¶28} In Appellant’s Second Assignment of Error, Appellant argues the trial court

imposed a vindictive sentence upon Appellant. We disagree.

{¶29} It is well-established “a sentence vindictively imposed on a defendant for

exercising his constitutional right to a jury trial is contrary to law.” State v. Rahab,

,

,

, citing State v. O’Dell,

,

(1989). When reviewing a sentence for vindictiveness, we

begin by presuming the trial court considered the proper sentencing criteria. Id at ¶19.

We then review the record for evidence of actual vindictiveness on the part of the trial

court.”

citing R.C. 2953.08(G)(2) and State v. Marcum,

, 2016-

Ohio-1002,

, ¶1. It is incumbent upon the defendant to prove actual

vindictiveness. Id. at ¶18, citing United States v. Wasman,

,

,

(1984).

{¶30} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford,

,

(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb,

(1985). “Where the

degree of proof required sustaining an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.”

.

{¶31} In his statement of facts and Second Assignment of Error, Appellant

misstates the State’s recommended sentence. In Appellant’s Statement of Facts,

Appellant says, “the State of Ohio stated on the record that if Appellant wished to enter a Stark County, Case No. 2020 CA 00130 7

guilty plea as indicted it would recommend a sentence of 11 to 16 and a half years.”

Appellant’s Brief, 4. In Appellant’s Second Assignment of error he states, “it [the State]

would recommend a sentence of 11 to 16 and a half years.” Appellant’s Brief, 8. These

Statements cite to the transcript of the hearing for Appellant’s Motion to Suppress held

on July 27, 2020. After the hearing the trial court asked the State to put their offer for a

guilty plea on the record.

{¶32} However, at the Suppression Hearing the State said they would

recommend, “sixteen years minimum at this point, which would be a five-year on the

specification and then the mandatory 11 to technically 16 and a half on the underlying

offense[.]” Supp. Hrng. Tr. at 50.

{¶33} On August 5, 2020, Appellant entered a plea of guilty to the indictment. At

the sentencing hearing, the trial court sentenced Appellant to eleven to sixteen and a half

years on the trafficking in fentanyl-related compound charge and an additional five years

for the major drug offender specification which must be served prior to and consecutive

to the trafficking charge. All other sentences were to run concurrent to the trafficking in

fentanyl-related compound charge.

{¶34} Upon review of the entire record, we are not convinced that the court’s

sentencing, which was in line with the State’s recommendation, was based on

vindictiveness rather than on the facts of the case. Stark County, Case No. 2020 CA 00130 8

{¶35} Appellant’s Second Assignment of Error is overruled.

{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is hereby affirmed.

By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.

JWW/br 0607 State County, Case No. 2020 CA 00130 9