[Cite as State v. Barnett , 2020-Ohio-5364.]

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

State of Ohio Court of Appeals Nos. L-19-1172 L-19-1173 Appellee Trial Court Nos. CR0201802934 v. CR0201901330 Aerial S. Barnett DECISION AND JUDGMENT Appellant Decided: November 20, 2020 * * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and William H. Dailey V, Assistant Prosecuting Attorney, for appel lee. Sarah R. Anjum, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is a consolidated appeal from a July 17, 2019 judgment of the Lucas County Court of Common Pleas, finding appellant guilty pursuant to a negotiated plea agreement of one count of domestic violence, in violation of R. C. 2919.25(A), a felony of the fourth degree, and one count of felonious assault, in viola tion of R.C. 2903.11(A), a felony of the second degree.2. {¶ 2} In exchange, an additional domestic violence offense, a rape of fense, and a sexual registration requirement accompanying the rape offense, were all dismissed. For the reasons set forth below, this court affirms the judgment of the trial court. {¶ 3} Appellant, Aerial Barnett, sets forth the following two assignm ents of error:

I. The Bill of Information was invalid because it was filed be fore the Waiver of Prosecution by Indictment. II. Appellant’s plea was not knowingly, voluntarily, and intelligently entered because he didn’t waive the 24 hour waiti ng period on

the Bill of Information. {¶ 4} The following undisputed facts are relevant to this appeal. Th is appeal stems from physical attacks committed separately against two di fferent women with whom appellant had personal relationships. {¶ 5} On October 2, 2018, appellant was staying at the Toledo residen ce of a woman with whom he shares a minor child. Appellant was removed from the residence by the Toledo Police Department after they learned that appella nt had been assaulting her on an ongoing basis. {¶ 6} On October 3, 2018, appellant was released from custody and ret urned to the victim’s residence. Appellant kicked the victim in the back of her head multiple times, struck her arms and back, choked her, pistol whipped her, and t hreatened to kill her if she reported him the police.3. {¶ 7} On October 16, 2018, despite appellant’s threats and the above- detailed injuries inflicted against her, the victim reported the attack to the police. {¶ 8} On October 24, 2018, appellant was indicted on one count of dom estic violence, in violation of R.C. 2919.25(A), as enhanced to a fel ony of the fourth degree based upon appellant’s prior domestic violence convictions. {¶ 9} On February 14, 2019, after appellant had relocated to the Tole do residence of a different girlfriend, he became enraged after viewing some thing on her mobile phone. Although she had attempted to prevent appellant from ac cessing her mobile phone, appellant forcibly took it from her and viewed it. {¶ 10} Appellant jumped upon the victim and strangled her to a near lo ss of consciousness. Appellant’s attack upon the restrained victim q uickly escalated. {¶ 11} Appellant ordered the victim to perform oral sex upon him. Whe n the victim refused, appellant struck the victim in her face, grabbe d the victim by her hair with such force that appellant’s nails dug into the victim’s neck, s hoved the victim’s head down to his groin, and forced the victim to perform oral sex up on him. {¶ 12} When the victim later broke free from appellant, she fled outdo ors and ran

down the street in search of assistance. The victim was clothe d in a sports bra, as appellant had torn the victim’s shirt off during her escape. {¶ 13} Witnesses observed the partially attired, injured victim franti cally running down the street and contacted emergency assistance.4. {¶ 14} On February 22, 2019, appellant was indicted on one count of do mestic violence, in violation of R.C. 2919.25(A), as enhanced to a fel ony of the fourth degree based upon appellant’s prior domestic violence convictions, and one count of rape, in violation of R.C. 2907.02(A), a felony of the first degree. {¶ 15} The record reflects that appellant subsequently engaged in thre ats and intimidation against the victims in an effort to dissuade them from cooperating with law enforcement. Accordingly, appellee obtained material witness w arrants for both victims. {¶ 16} On May 30, 2019, following lengthy negotiations covering all of fenses, appellant was presented with a package plea proposal. Appellan t was granted an extension of time to consider the proposed plea agreement. {¶ 17} On June 4, 2019, appellant accepted the plea agreement. Pursua nt to the plea agreement, appellant entered a plea to one count of domest ic violence, in violation of R.C. 2919.25(A), a felony of the fourth degree, for the 2018 of fense, and one count of felonious assault, in violation of R.C. 2903.11(A), a felony of the second degree, for the

2019 offense. {¶ 18} In exchange, the other domestic violence offense, the rape offe nse, and the sexual offender registration requirement accompanying the rape offense were all

dismissed. {¶ 19} During the change of plea proceedings, the trial court conveyed to appellant, “[D]o you understand that the prosecution, as part o f this plea agreement, is5. charging you with new charges not by way of grand jury, [but] by what is called a bill of information? ” (Emphasis added). Appellant affirmatively replied, “Yes, Yo ur Honor.” {¶ 20} Upon affirming appellant’s understanding, the trial court proce eded to inquire, “[D]o you understand that you have the right to indict ment by grand jury, but if you wish to waive your right to prosecution by indictment and consent to being charged by information, you can do that today? ” (Emphasis added). Appellant again affirmatively replied, “Yes, Your Honor.” {¶ 21} Counsel for appellant conveyed to the trial court that counsel had discussed all of the rights being waived with appellant, answered appella nt’s questions, reviewed the written waiver forms with appellant, and appellant then exe cuted the documents memorializing the plea agreement. {¶ 22} The trial court then confirmed from appellant that his signatur e had been affixed upon the waiver of prosecution by indictment, the bill of information, and the judgment entry paperwork. {¶ 23} As the change of plea proceedings continued, the trial court st ated, “[Appellant] is present with counsel, acknowledged receipt of t he bill of information, waived any defects as to time, place, and manner of service. D efendant waived reading of the bill of information in open court and so is entering a p lea on the bill of information.” At this juncture appellant stated, “No contest, Your Honor.” {¶ 24} Following appellant’s entry of the negotiated plea, the record reflects that the trial court carefully conducted the change of plea colloquy with appellant. The record6. reflects appellant’s understanding of, and consent to, the term s of the plea agreement and associated legal implications. {¶ 25} At the conclusion of the change of plea proceedings, the trial court ordered a presentence investigation. The case was continued for senten cing. {¶ 26} On July 12, 2019, appellant was sentenced to a five-year term o f incarceration, along with a five-year term of community control . This appeal ensued. {¶ 27} In the first assignment of error, appellant alleges that the bi ll of information accompanying appellant’s plea agreement was nullified on a proc edural basis as it was file stamped several hours before the waiver of prosecution by indictment was file stamped. We do not concur. {¶ 28} The record reflects that on June 4, 2019, the bill of informati on was file stamped at 9:36 a.m., while the waiver of prosecution by indict ment was file stamped at 2:28 p.m. {¶ 29} Appellant maintains that this discrepancy in the file stamp tim es of documents which had previously been presented to, explained to, and consented to, by appellant, acted to prejudice appellant. We are not persuaded. {¶ 30} Crim.R. 7(A) establishes, in pertinent part, “[F]elonies shall be prosecuted by indictment, except * * * the defendant may waive that right in writing and in open court. Where an indictment is waived, the offense may be prosecuted by information .” (Emphasis added).7. {¶ 31} R.C. 2941.03 establishes that the sufficiency of a bill of info rmation is

satisfied where the information contained therein reflects that it is in a court with the authority to receive it, was presented to the court by the pros ecuting attorney, names the defendant, shows that the offense was committed within the juri sdiction of the court, and shows that the offense was committed prior to the filing of the bill of information. The record of evidence reflects R.C. 2941.03 compliance in this cas e. {¶ 32} In support of the first assignment, appellant argues that the f iling of the waiver of prosecution of indictment and the associated bill of information at separate times on the same day constituted a violation of Crim.R. 7(A). We are not convinced. {¶ 33} Appellant provides no objective evidence in support of this con clusion and acknowledges that in the similar case of State v. Hines , 5th Dist. Knox No. 90-CA-22, 1990 WL 166469 (Oct. 25, 1990), the court held that the discrep ancy in filing times of the waiver of prosecution of indictment and the bill of informa tion constituted harmless clerical error and was, therefore, not prejudicial. We find th at conclusion likewise applies to the instant case. {¶ 34} The record is devoid of any evidence that the time stamp discre pancy constituted a violation of Crim.R. 7(A) or R.C. 2941.03, such t hat the change of plea was arguably compromised. Further, the record is devoid of any oth er evidence that the time stamp discrepancy prejudiced appellant. {¶ 35} Wherefore, we find appellant’s first assignment of error not we ll-taken.8. {¶ 36} In appellant’s second assignment of error, appellant similarly maintains that the plea was not knowingly, voluntarily, and intelligently entered. We do not concur. {¶ 37} In support of the second assignment of error, appellant argues, without legal support, that although he voluntarily executed a written waiver of service for the R.C. 2941.49 one-day period in which a defendant cannot be mand ated to reply to a felony, the trial court also needed to orally secure a second R .C. 2941.49 waiver from appellant during the change of plea colloquy. We do not concur

. {¶ 38} R.C. 2941.49 establishes in pertinent part, “A defendant, without his assent , shall not be arraigned or called on to answer an indictment unt il one day has elapsed after receiving or having an opportunity to receive in person or by c ounsel, a copy of such indictment.” (Emphasis added.) {¶ 39} The record reflects, and appellant concedes, that appellant exe cuted a written waiver of the R.C. 2941.49 service requirement. The re cord is devoid of evidence that such a waiver is invalidated in the absence of a separate, oral R.C. 2941.49 waiver during the change of plea colloquy. {¶ 40} Wherefore, we find appellant’s second assignment of error not w ell-taken. {¶ 41} On consideration whereof, the judgment of the Lucas County Cour t of Common Pleas is hereby affirmed. Appellant is ordered to pay t he costs of this appeal pursuant to App.R. 24. Judgment affirmed.9. State v. Barnett C .A. Nos. L-19-1172 L-19-1173

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

Arlene Singer, J. _________________

______________ JUDGE Thomas J. Osowik, J.

_______________________________ Christine E. Mayle, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.