[Cite as State v. Woodruff , 2013-Ohio-5161.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25697 Plaintiff-Appellee : : Trial Court Ca se No. 12-CR-3437 v. : : ROBERT L. WOODRUFF : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 22nd da y of November, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee WILLIAM T. DALY, Atty. Reg. #0069300, 70 Bi rch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, P.J. {¶ 1} Defendant-appellant Robe rt L. Woodruff appeals from his conviction and 2

 sentence for Felonious Assault, following a no-c ontest plea. Woodruff contends that the trial court failed to determine that his plea was knowing, intelligent, and voluntary, because it failed to follow up on Woodruff’s initial statement, when aske d if pleading no contest was what he wanted to do, that: “Well, I’m not seeing where I have much of a choice.” {¶ 2} We conclude that upon the complete record, which includes Woodruff’s subsequent statement that he was entering hi s plea voluntarily, the tria l court could reasonably construe Woodruff’s initial comment as a reco gnition that accepting the offered plea bargain limiting his sentence to the minimum sentence of two years was clearly preferable to the alternative choice of going to trial and risking a more severe sentence. Therefore, we conclude that the record does not support Woodruff’s sole a ssignment of error, and the judgment of the trial court is Affirmed.

I. The Course of Proceedings {¶ 3} Woodruff was charged by indictment w ith Felonious Assault (serious physical harm), in violation of R.C. 2903.11(A)(1), a fe lony of the second degree. His trial was scheduled to start on Monday, March 18, 2013. On the Wednesday before trial, just after 10:00 in the morning, Woodruff appeared in open court with his trial attorney for a final pre-trial, during the course of which a potential plea barg ain was discussed. Woodr uff’s counsel reported that the State and the trial court had indicat ed a willingness to sentence Woodruff to the minimum, two-year sentence if he would plead no contest to the charge, with his two-year sentence in this case to be served consecutively to a sentence he was already serving in another case. Woodruff’s counsel furthe r reported that Woodruff had indi cated he was not inclined to 3

 agree to the proposed plea agreement unless his tw o-year sentence in this case would be imposed concurrently with the sentence in the other case. {¶ 4} Complicating the matter was the fact th at Woodruff had an appeal pending from his conviction and sentence in th e other case. Also complicatin g the matter was the fact that there was a discovery dispute between Woodruff a nd the State pending in this case concerning certain records pertaining to his alleged vi ctim, who had been convicted of a felony. {¶ 5} During this discussion, Woodruff made it cl ear that his hope in this case was to establish that his assault upon the victim was under the influence of sudden passion or in a sudden fit of rage, brought on by serious provoca tion by the victim reasonably sufficient to have incited Woodruff into using deadly force, which would make his offense Aggravated Assault, a fourth-degree felony, rather than Felonious Assault. {¶ 6} The trial court advised W oodruff that: (1) it could not guarantee him that he would be successful in his appeal in the other case, but that appeal was something for him to consider; (2) if Woodruff were convicted of Aggr avated Assault in this case, the visiting judge who would be presiding over his tr ial would, “I strongly suspect,” sentence him to the maximum, eighteen-month prison term, to be served consecutively to the sentence he was already serving; and (3) the trial court had ordere d the State to produce the disput ed discovery documents for in camera review, and the trial court would render its decision about th e discovery dispute by Friday morning, March 15th. It was then agreed that the parties would return to court at about 10:45 the next morning, with Woodruff having until then to think about the offered plea bargain. {¶ 7} When the parties reappeared before the trial court the following morning, the trial court recited the terms of the plea agreement, after which the following colloquy was had:[Cite as State v. Woodruff , 2013-Ohio-5161.] THE COURT: So, with that being said; is that what you want to do today?
THE DEFENDANT: Well, I’m not seeing where I have much of a choice

. THE COURT: All right. Is that what you want to do today? THE DEFENDANT: Yeah. THE COURT: All right. I want you to come forward. All right, Mr. Woodruff, we’re going to go through the pro cess of taking your plea. First of all, Mr. Woodruff, I need to – looks lik e you’re age 41; is that correct? THE DEFENDANT: In August. THE COURT: Oh, so you’re, 40, all righ t. You need to take your hand away from your mouth so there’s – there’s no problem with the recording. So you’re age 40; how far did you go in school, sir?
THE DEFENDANT: GED. THE COURT: So you can read and understand the plea form? THE DEFENDANT: Perfectly. THE COURT: As we speak this morn ing, are you under the influence of any drug, alcohol or medication? THE DEFENDANT: Not at all. THE COURT: Have you been – are you – do you have any physical or mental disability or problem that w ould have any impact upon your ability to understand what we are doing today?
THE DEFENDANT: Zero. THE COURT: Are you entering this plea vol untarily and of your free will?
THE DEFENDANT: Yes. 5 THE COURT: Have you been threatened or forced in any way to enter this plea?
THE DEFENDANT: No, they have not

. (Emphasis added.) {¶ 8} The plea colloquy then continued, w ith Woodruff ultimately tendering his no-contest plea to the charge of Felonious Assa ult. The trial court accepted the plea and found Woodruff guilty of the charge. The trial c ourt then proceeded immediately to impose the two-year sentence, to be served consecutively to the sentence Woodruff was serving in another case, consistently with the plea agreement. {¶ 9} From his conviction and se ntence, Woodruff appeals.

II. The Record Does Not Support Woodruff’s Contention that the Trial Court Failed to Determine that his Plea Was Knowing, Intelligent, and Voluntary {¶ 10} Woodruff’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN ACCEPTING A PLEA WHICH WAS NOT VOLUNTARY, KNOWINGLY [sic] AND INTELLIGENT. {¶ 11} Most of Woodruff’s argument centers on his statement that he didn’t see where he had “much of a choice” when he was asked what he wanted to do. {¶ 12} A defendant at a plea hearing in a fe lony case is in an unenviable position. Woodruff had two choices. He could accept the offered plea bargain and limit his exposure to a two-year prison sentence, or he c ould reject it and go to trial, where he would be exposed to a possible eight-year prison sentence. In this cas e, Woodruff evidently accepted the fact that an 6

 acquittal was an unlikely outcome, so that the best he could realistically hope for if he went to trial would be a conviction for th e lesser offense of Aggravated Assault. The trial court had advised him that the visiting judge who would preside over his trial would likely sentence him to the maximum sentence of eighteen months for Aggr avated Assault, to be served consecutively to the sentence he was already serving, so that W oodruff’s best realistic case scenario would have resulted in a sentence only six months shorter than the sentence he received as a result of the plea bargain. Had he rejected the pl ea bargain, he could have served up to six years longer in prison as a result. {¶ 13} The situation of any defendant at a plea hearing necessarily involves some coercion. Most defendants in Woodruff’s positi on would doubtless prefer a third choice: to walk away from the courtroom and never come back. But th at choice was not on offer. {¶ 14} In view of Woodruff’s subsequent stat ements that he was tendering his plea voluntarily of his own free will, and that no one had threatened him or forced him to enter his plea, we conclude that the tria l court could reasonabl y have determined that Woodruff’s initial statement that he didn’t see that he had much of a choice in the matter was merely an allusion to the unenviable situation in whic h he found himself, with two choices, neither of which was desirable. See State v. Kemp , 2d Dist. Clark No. 03CA0025, 2004-Ohio-167, ¶ 11, 35-37, in which a defendant’s initial protestation that “I got no choice,” was held not to have rendered a guilty plea other than voluntary. {¶ 15} Woodruff also argues in his brief that: [T]he defendant did not have any basis for a knowing, voluntary and intelligent plea as he was never provided the discovery sought. The state failed to 7 turn over discovery in this case. Counsel for the defense filed a motion to compel this discovery on 3/12/13. Counsel for th e defense did not obtain or review the discovery with appella nt, nor advise appella nt of his rights, any motions he could file or any defenses he could bring fort h. There is no dialogue in the Crim.R. 11 advisement as to these rights or whethe r counsel had discussed these rights with appellant, which usually is asked by the trial c ourt under Crim.R. 11 when accepting a plea. {¶ 16} Woodruff also attached his own affidavit to his brief, but we agree with the State that Woodruff’s affidavit is not properly before us , since it is not part of the record before the trial court. {¶ 17} Crim.R. 11(C)(2)(a) requires a trial court, in accepting a plea to a felony, to determine: “that the defe ndant is making the plea voluntarily, w ith understanding of the nature of the charges and of the maximum penalty involved, and if applicab le, that the defendant is not eligible for probation or for the imposition of co mmunity control sanctions.” The Rule also requires that the trial c ourt determine that the de fendant understands the effect of the plea of no contest, and that by pleading no contest, the defendant is waiving various constitutional rights. Crim.R. 11(C)(2)(b) and (c). From our review of the record, we conclude that the trial court satisfied all of these requirements. {¶ 18} The record not only fails to support W oodruff’s claims, it affirmatively belies some of them. For example, there are several receipts in the record itemizing the discovery that Woodruff’s trial counsel received from the State at various times. And th e pre-trial conference of March 13th, at which the possible plea bargai n was discussed, demonstrates that Woodruff’s 8

 counsel discussed with him the tria l strategy of arguing that he wa s guilty at most of Aggravated Assault, not Felonious Assault. There is nothing in the record to establish, or even suggest, that trial counsel failed to review with Woodruff the discovery that was obtained from the State. {¶ 19} There was a pending discovery issue before the trial court when Woodruff tendered his plea. Two days before Woodru ff’s plea was tendered a nd accepted, he moved to compel the discovery of psychol ogical evaluations and reports pertaining to the sanity and competency of the complaining witness in two fe lony cases involving the complaining witness. In that motion, Woodruff states: “Defendant ha s made written a nd telephone demands for said discovery but State refuses to provide it until the Court has re viewed the matter and ruled upon the instant motion.” {¶ 20} There is nothing in the record to suggest that the State’s resistance to this discovery was either frivolous or in bad faith. The trial court to ld Woodruff that it had ordered the State to produce the documents requested for in camera review, and that it would rule on the motion Friday morning, March 15, 2013, the da y after Woodruff’s plea was tendered and accepted, and the Friday before the tria l was scheduled to commence on Monday. {¶ 21} We conclude that the fact that th is discovery dispute was pending when Woodruff pled no contest did not render his plea ot her than voluntary, knowing, and intelligent. There is nothing in the record to reflect that the plea offer would not have been kept open until after the trial court had ruled on the discovery motion, but even if there were, we conclude that this would not have rendered Woodruff’s plea ot her than voluntary, knowing, and intelligent. {¶ 22} Legal disputes may be resolved by a plea bargain just as factual disputes may. With respect to factual disputes, we are aware of no cases holding that the State must keep a plea 9

 offer open until after a jury has rendered its verdict in a case. One essential purpose of plea negotiation is to reduce the uncertainties to which the parties are otherwise subject. The State presumably offers attractive plea bargains, at least in part, precisely because there is a chance that taking the case to trial might result in a worse outcome for the State, just as the defendant may accept a plea bargain, at least in part, because the outcome of a trial might be worse for the defendant. {¶ 23} The outcome of a criminal trial may i nvolve both factual and legal disputes. Both kinds of disputes may aff ect the bargaining positions of th e parties during plea negotiations, and both may be resolved by the plea negotiate d. Here, the documents requested by Woodruff may have been discoverable, or th ey may not have been. That wa s a legal issue that had not yet been decided by the trial court. Both parties were free to incorporate their assessments of the likely resolution of that issue in their decisions, respectively, whether to offer and whether to accept the plea bargain that was ultimately agreed to in this case. {¶ 24} In short, uncertainty in the outcome of a criminal trial has never, to our knowledge, been deemed to render a defendant ’s decision to plead other than voluntary, knowing, and intelligent. {¶ 25} Woodruff’s sole assignme nt of error is overruled.

III. Conclusion {¶ 26} Woodruff’s sole assignment of error ha ving been overruled, the judgment of the trial court is Affirmed.

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DONOVAN and FROELICH, JJ., concur.
Copies mailed to: Mathias H. Heck Matthew T. Crawford William T. Daly Hon. Michael Tucker