[Cite as State v. Allen , 2022 - Ohio - 3599.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF - APPELLEE, CASE NO. 1 - 21 - 59

v. JAMAREE ALLEN, O P I N I O N DEFENDANT - APPELLANT.

Appeal from Allen County Common Pleas Court

Trial Court No. CR 2019 0261 Judgment Affirmed Date of Decision: October 11, 2022

APPEARANCES: 

### William T. Cramer for Appellant 

### Jana E. Emerick f

or AppelleeCase No. 1

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SHAW, J. {¶1} Defendant

- appellant , Jamaree Allen (“Allen”), brings this appeal from the November 18, 2021 judgment of the Allen County Common P leas Court sentencing him to an aggregate, indefinite prison term of 30

- 34 years after he pled guilty to an 8

- count indictment and all the accompanying specifications

. On appeal, Allen argues that his guilty plea s were not knowing, intelligent and voluntary, that he received ineffective assistance of counsel, and that the Reagan Tokes Law is unconstitutional. Background {¶2} On August 15, 2019, Allen was indic ted for the following offenses: Count 1, participating in a criminal gang in violation of R.C. 292 3.42(A), a second degree felony; Count 2, f eloni ous a ssault in violation of R.C. 2903.11(A)(2), a second degree felony; Count 3, felonious a ssault in violation of R.C. 2903.1 1(A)(2), a second degree felony; Count 4, d ischarge of firearm on or near prohibited premises in violation of R.C. 2923.1 62(A)(3), a third degree felony; Count 5, improperly d ischarging a firearm at or into a habitation or a school safety zone in violation of R.C. 2923.16 1(A)(1), a second degree felony; Count 6, having weapons while under d isability in violation of R.C. 2923. 13(A)(2), a third degree felony; Count 7, i mproperly handling firearms in a motor vehi cle in violation of R.C. 292 3.16(B), a fourth degree felony; and Count 8, carrying a conce aled weapon in violation of R.C.Case No. 1

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2923.12(A)(2), a fourth degree felony. In addition to the stated offenses, th e first 5

c ounts in the indictment all had att ach ed spec ifications as follows: Counts 1 through 5 carried 3

- year firearm specification s pursuant to R.C. 2941.145(A); Count s 2 , 3 , and 5 all carried criminal gang activity specificatio n s pursuant to R.C. 2941.142(A), and r epeat violent offender specificati on s purs uant to R.C. 2941.149(A)

. Allen originally pled not guilty to the charges

. {¶3} After a lengthy pretrial process, a jury trial commenced on November 1, 2021. W hile t he State was still conducting voir dire , court recessed for a break. However, b efore jury selection resumed , the parties reached a negotiated plea agreement wherein Allen agreed to plead guilty to all counts in the indictment and the accompanying spe cifications and , i n exchange, the State agreed not to recommend greater than an aggregate 30

- yea r prison term at sentencing. Notably, Allen’s co

- defendant had already been convicted by a jury and was sentenced to over 60 years in prison. See State v. Wilson , 3d Dist. Allen No. 1

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504. Allen’ s plea agreement was reduced to writing and signed by the parties. {¶4} After being notified of the plea agreement , the trial court conducted a Crim.R. 11 hearing with Allen and determined that he was entering knowing, intelligent, and voluntary guilty pleas. The trial court ordered a pre

- sentence inves tigation and sentencing was set for a later date.Case No. 1

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{¶5} On November 17 , 2021 the case proceeded to sentencing. Per the plea agreement, the State recommended an aggregate 30

- year prison term. Allen, through his attorney, argued for a lesser

- sentence. Ultimately t he trial court ordered Allen to serve an indefinite prison term of 30

- 34 years. A ju dgment entry memorializing his sentence was filed November 18 , 2021. It is from this judgment that he appeals, asserting the following assignments of error. Assignment of E rror No. 1 A ppellant’s rights under the state and federal constitutions were violated by a guilty plea that was not knowing, intelligent, or voluntary. Assignment of Error No. 2 Appellant was deprived of his state and federal constit utional rights to the effective assistance of counsel.

Assignment of Error No. 3 Indefinite prison terms imposed under the Reagan Tokes Law violate the jury trial guarantee, the doctrine of separation of powers, and due process principles under the federal and state constituti ons. First Assignment of Error {¶6} In his first assignment of error, Allen argues that his guilty pleas were not knowing, intelligent, and voluntary. Relevant Authority {¶7} “All guilty pleas must be made knowingly, voluntarily, and intelligently.” State v. Moll , 3d Dist. Defiance Nos. 4

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- 17 and 4

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- 18, 2015

- Ohio

- 926, ¶ 9, citing State v. Engle , 74 Ohio St.3d 525, 527 (1996) . “ Failure on anyCase No. 1

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of those points renders enforcement of the plea unconstitutional under both the United Stat es Constitution and the Ohio Co nstitution. ” Engle at 527. {¶8} Crim inal R ule 11(C)(2) , which governs guilty pleas for felony

- level offenses, provides: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and 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 penal ty 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 pl ea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. {¶9} A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives the def endant’ s constitutional rights. State v. Veney , 120 Ohio St.3d 176, 2008

- Ohio

5200, ¶ 31. When a trial court fails to strictly compl y with this duty, the defendant’ sCase No. 1

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plea is invalid. Id

. H owever, a trial court is only required to substantially comply with the non

- constitutional notifications in Crim.R. 11(C)(2)(a) and (b)

. Id. at ¶ 14

- 17. {¶10} An appellate court reviews the substantial

- compliance standard based upon the totality of the circumst ances surrounding the defendant’ s plea and determines whether he subjectively understood the implications of his plea and the rights he waived. State v. Sarkozy , 117 Ohio St.3d 86, 2008

- Ohio

- 509, ¶ 20. “ Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made.” State v. Nero , 56 Ohio St.3d 106, 108 (1990). Analysis {¶11} In his appeal, Allen does not contend that the trial court failed to comply with Crim.R. 11’s provisions. 1 Rather , he contends that the tr ial court erred by accepting his guilty pleas without conducting an “ Alford plea

- type inquiry” because , he claims, he maintained his innocence throughout the plea process

. More specifically, Allen argues that since he “maintained his innocence” the trial c ourt should have conduct ed a more thorough plea colloquy, and that absent such a colloquy, his pleas were not knowing, intelligent, and voluntary.

1 In fact, a review of the record shows that the trial court fully complied with all of the provisions of Crim.R. 11 when conducting the change

- of

- plea hearing.Case No. 1

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{¶12} Contrary to Allen’s argument on appeal, the record does not factually support his claim that he maintained h is innoc ence throughout the plea process or that he was attempting to enter an Alford plea

. Allen entered into a negotiated plea agreement during a break in voir dire before the jury was ever officially selected. The negotiated plea agreement was reduced to writing and signed by Allen. The written agreement , for guilty pleas to all the charges, was recited to the trial court and Allen indicated that he understood it

. {¶13} The trial court engage d in a thorough Crim.R. 11 dialogue with Allen , making sure he understood each individual charge, the specifications attached to the individual charges , and the maximum penalties for the charges and the specifications. 2 The trial court also ensured that Allen understood t he constitutional and non

- con stitutional rights he was waving by entering his guilty pleas. When prompted, Allen repeatedly and affirmatively stated that he understood the agreement he was making and the rights he was waving. 3 In fact, Allen repeated he understood five times that by pleading guilty he was giving up the specified rights when asked. He never once mentioned innocence or that he did not commit the crimes in the indictment.

2 Just before engaging in a Crim.R. 11 dialogue with Allen , the trial court told Allen to interrupt at any point if he did not understand anything. 3 At one point, Allen did indicate that he did not understand what the trial court meant when the trial court stated that it had discretion on whether it would impose a prison term on a certain specification. Due to Allen’s confusion, he was given further time to speak with his attorney. After Allen indicated that he understood what his attorney explained to him, the trial court offered further explanation but Allen in dicated it was not necessary.Case No. 1

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{¶14} Moreover, the trial court specifically told Allen that he did not have to plead guilty. Yo ur potential jurors should be back by now. We can carry on with the trial. But once we get done talking about everything if you still are desirous of entering into this plea agreement that’s a complete admission of your guilt as to these offenses and with that comes a number of constitutional rights that you’re giving up . (Emphasis added.) (Tr. at 152

- 53). Even with the trial court’s statement, Allen proceeded with the plea hearing. This establishes that Allen did not maintain his innoc ence throughout the plea process , particularly when compounded with the written plea agreement, which said nothing about in nocence. {¶15} The only time that Allen stated anything at all that could be co nstrued as challenging the process wa s during the following exchange with the trial court, late in the Crim.R. 11 dialogue: THE COURT: Has anybody threatened you, coerced you, done a nything you feel like is forcing you to plead here today? MR. ALLEN: No, Ma’am. I just feel it won’t be fair, so I just

– THE COURT: Okay. So you um are doing this of your own freewill? MR. ALLEN: Yes, Ma’am. (Tr. at 157). {¶16} Allen cites this lone in cident from the plea colloquy of him stating that he felt “ it ” would not be “fair” in an attempt to establish that he maintained his innocence through the plea process

. However, a plain reading of Allen’ s minimalCase No. 1

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words in this cited passage reveals nothing about “innocence .” Rather , A llen questioned the “fairness” of something unspecified because he never spoke further on the topic at the hearing. {¶17} However, Allen argues that his statement at the plea hearing questioning “fairness” was further explained in the pre

- sentence investigation, wherein Allen stated that he was actually innocent but he felt he had to plead guilty because his attorney indicated he would no t get a fair trial with an “all

- white jury.” We find this statement specious for mu ltiple reasons. First, Allen’s jury had not even been selected when he entered his guilty pleas, thus his statement in the pre

sentence investigation was factually inaccurate. {¶18} Second , we emphasize that a fter a defendant has entered a plea and the plea has been accepted , courts are not requi red to inquire into a defendant’ s reasoning for pleading guilty despite later assertions of innocence. State v. Wynn , 1st Dist. Hamilton No. C

- 150051, 2015

- Ohio

- 4646, ¶ 12

. Crim.R. 32.1 provides a defendant with the oppor tunity to make a motion to withdraw a plea of before a sentence is imposed. Allen could have made such a motion but elected not to do so. {¶19} Third, A llen’s claims in his pre

- sentence investigation conflict with his earlier , unequivocal statements at the plea hearing that he understood the possible penalties, the rights he was waving , and his statements that he understood that he was entering guilty pleas

. We have previously held t hat statements madeCase No. 1

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after the plea hearing did not render a guilty plea to be less than knowing, intelligent and voluntary. State v. Swoveland , 3d Dist. Van Wert No. 15

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2875, ¶ 2 3

. Thus any after

- the

- fact statements by Allen do not somehow retroactively produce a claim of innocence at the plea hea ring

. {¶20} In sum, t he record does not demonstrate that Allen’s pleas were anything less than knowing, intelligent, and voluntary. Similarly, the record does
not support Allen’s claim on appeal that he was attempting to enter an Alford plea at the time he entered his guilty pleas

. 4 Based on our review of the record, Allen’s first assignment of error is overruled. Second Assignment of Error {¶21} In his second assignmen t of error, Allen argues that he received ineffective assistance of counsel. Standard of Review {¶22} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) counsel’s performance was deficient or unreasonable under the circumstan ces; and (2) the deficient performance prejudiced the defendant. State v. Kole , 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or

4 Notably, all pleas, including Alford pleas, must meet the general requirement that the defendant knowingly, voluntarily, and intelligently waived his right to a trial. State v. Short , 3d Dist. Logan No. 8

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- 33 22, ¶ 11.Case No. 1

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unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel’s actions were not trial strategies prompted by rea sonable professional judgment. Strickland at 689; State v. Harris , 3d Dist. Allen No. 1

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- 4559, ¶ 6. Analysis {¶23} Allen contends that his counsel was ineffective in this case because his counsel purportedly had a conflict of interest. More specifically, Allen claims that in early 202 1 , he retained the attorney that he proceeded to trial with, Anthony V anN oy. 5 According to Allen, at the time he retained V anN oy, other individuals in the V anN oy law firm were representing Allen’s co

- defendant on appeal. Allen’s co

defendant had been convicted at trial in October of 2020

. See State v. Wilson , 3d Dist. Allen No. 1

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- 504. Importantly, Allen does not contend that VanN oy’s law firm represented the co

- defendant at the trial level. {¶24} In reviewing Allen’s argument, we note that a “conflict of int erest” refers to a “circumstance[ ] in which regard for one duty tends to lead to disregard of another duty * * *.” State v. Hathaway , 2d Dist. Greene No. 2014

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- 5488, ¶ 14. The Supreme Court of Ohio has held: A possible conflict of interest exists where the ‘interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.’ * * * State v. Dillon (1995), 74 Ohio St.3d 166, 168, 657 N.E.2d 273, 275 - 276, quoting Cuyler [ v.

5 Prior to retaining VanNoy, Allen was represented by two appointed attorneys.Case No. 1

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Sullivan ], 446 U.S. [335,] 3 56, 100 S.Ct. [1708,] 1722, 64 L.Ed.2d [333,] 351 - 352, fn. 3. It follows, then, that an actual conflict of interest exists if, ‘during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.’ * * * Id. at 169, 657 N.E.2d at 276, quoting Cuyler , 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351

– 352, fn. 3; see, also, Winkler [ v. Keane ], 7 F.3d [304,] 307 [(C.A. 2 1993)]. Indeed, we have said that a lawyer represent s conflicting interests ‘when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.’ [ State v. ] Manross , 40 Ohio St.3d [180,] 182, 532 N.E.2d [735,] 738 [(1988)]. (Emphasis sic.) State v. Gillard , 78 Ohio St.3d 548, 1997

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- 183, 679 N.E.2d 276 (1997). {¶25} A defendant who claims he was denied the right to conflict

- free counsel must demonstrate an actual conflict of interest that adversely affected his lawyer’s performance. State v. Wilson , 3d Dist. Allen No. 1

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- 504, ¶ 137. A possible conflict is insufficient. State v. Getsy , 84 Ohio St.3d 180, 187 (1998). {¶26} After reviewing the matter, we emphasize that t he record before this Court contains no indication whatsoever that Allen’s ret ained attorney , VanNoy , had anything to do with his co

- defendant’s case. In fact, VanNoy was not even retained by Allen until after Allen’s codefendant was convicted. {¶27} Allen claims that attorneys from VanNoy’s firm worked on his codefendant’s appeal, but w e also have no indication of this in our record whatsoever. The only information our record contains is that Allen retainedCase No. 1

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VanNoy, and that Allen affirmatively stated that he was satisfied with VanNoy’s counsel at the plea hearing. Because our record cont ains no information at all that could establish an actual conflict of interest for his attorney , let alone one th at adversely impacted his attorney ’s performance, Allen’s second assignment of error is overruled. Third Assignment of Error {¶28} In his third assig nment of error, Allen a rgues that the Reagan Tokes Law is unconstitutional for violating the jury trial guarantee, for violating the separation of powers, and for violating due process principles. Analysis {¶29} Allen did not challenge the constitutionality of the Reagan Tokes L aw before the trial court. For this reason, we apply the plain

- error standard of review in this case. State v. Ball , 3d Dist. Allen No. 1

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- 1549, ¶ 57. “An error qualifies as ‘pla in error’ only if it is obvious and but for the error, the outcome of the proceeding clearly would have been otherwise.” State v. Barnhart , 3d Dist. Putnam No. 12

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- 2874, ¶ 8, citing State v. Yarbrough , 95 Ohio St.3d 227, 245, 2002

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- 2126 , ¶ 32. {¶30} As this Court noted in Ball , challenges to the Reagan Tokes L aw do not present a matter of first impression in this Court. 6 Ball at ¶ 59. “Since the

6 Allen does acknowledge that he is primarily preserving this argument for further review.Case No. 1

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indefinite sentencing provisions of the Reagan Tokes Law went into effect in March 2019, we have repeatedly been asked to address the constitutionality of these provisions. We have invariably concluded that the indefinite sentencing provisions of the Reagan Tokes Law do not * * * infringe on defendants’ due process rights.” Id. citing e.g. , State v. Crawford , 3d Dist. Henry No. 7

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547, ¶ 10

- 11; State v. Hacker , 3d Dist. Logan No. 8

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- 5048, ¶ 22; State v. Wolfe , 3d Dist. Union No. 14

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- 96, ¶ 21. We h ave also rejected constitutional challenges related to the jury trial issue and the separation of
powers issue

. See Ball at ¶ 63. On the basis of Ball and our prior precedent, this Court finds no merit to Allen’s contention. Therefore, his third assignment of error is overruled. Conclusion {¶31} For the foregoing r easons Allen’s assignments of error are overruled and the judgment and sentence of the Allen County Common Pleas Court is affirmed. Judgment Affirmed ZIMMERMAN, P.J. and MILLER, J., concur. /jlr