State v. Johnson , 2015 Ohio 4650 ( 2015 )

[Cite as State v. Johnson, 2015-Ohio-4650.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-02-016
: OPINION
- vs - 11/9/2015
:
RYAN BLAKE JOHNSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2014-09-1475
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for defendant-appellant
PIPER, P.J.
{¶ 1} Defendant-appellant, Ryan Johnson, appeals a decision of the Butler County
Court of Common Pleas accepting his guilty plea.
{¶ 2} Johnson was indicted on charges of rape of a child under 13 years old and
gross sexual imposition. As part of a plea bargain, the state amended the rape charge to a
first-degree felony without the age specification, and the gross sexual imposition charge was
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dismissed. Johnson read and signed a plea form that indicated the details of the plea
agreement, including that Johnson would be classified as a Tier III sex offender as a result of
his rape conviction.
{¶ 3} The trial court held a plea hearing, during which it performed a colloquy
informing Johnson of the constitutional rights he was relinquishing, as well as details
surrounding the plea agreement and sentencing. Johnson pled guilty at the end of the
hearing, and the trial court accepted Johnson's plea as knowingly, voluntarily, and
intelligently made. The trial court later sentenced Johnson to eight years in prison. Johnson
now appeals the trial court's decision to accept his guilty plea, raising the following
assignment of error.
{¶ 4} DEFENDANT-APPELLANT'S PLEA WAS NOT KNOWING, INTELLIGENT,
AND VOLUNTARY.
{¶ 5} Johnson argues in his sole assignment of error that the trial court erred in
accepting his guilty plea because the trial court misinformed him of notification requirements
and did not address his right to subpoena witnesses.
{¶ 6} When a defendant enters a guilty plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily, and the failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and the
Ohio Constitution. State v. Butcher, 12th Dist. Butler No. CA2012-10-206, 2013-Ohio-3081,
¶ 8. To ensure that a defendant's plea is properly accepted, the trial court must engage the
defendant in a colloquy pursuant to Crim.R. 11(C). State v. Henson, 12th Dist. Butler No.
CA2013-12-221, 2014-Ohio-3994, ¶ 10.
{¶ 7} According to Crim.R. 11(C)(2), the trial court may not accept a defendant's
guilty plea without first addressing the defendant personally and:
(a) Determining that the defendant is making the plea voluntarily,
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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.
(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.
{¶ 8} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.
11(C)(2)(c), which requires the trial court to verify that the defendant understands the
constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,
2015-Ohio-1485, ¶ 9. While the most accurate way to inform a criminal defendant of his
constitutional rights during the plea colloquy "is to use the language contained in Crim.R.
11(C), * * * a trial court's failure to literally comply with Crim.R. 11(C) does not invalidate a
plea agreement if the record demonstrates that the trial court explained the constitutional
right 'in a manner reasonably intelligible to that defendant.'" (Emphasis sic.) State v. Barker,
129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 14 quoting State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, ¶ 27. "This is because a trial court can still convey the requisite information
on constitutional rights to the defendant even when the court does not provide a word-for-
word recitation of the criminal rule, so long as the trial court actually explains the rights to the
defendant." Barker at ¶ 15.
{¶ 9} Johnson first argues that the trial court did not strictly comply with Crim.R. 11(C)
because the court failed to tell him that one of the rights he was waiving was the right to have
the court compel witnesses to appear and testify on his behalf. According to Crim.R.
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11(C)(2)(c), a defendant must be informed that by pleading guilty, he is waiving the right "to
have compulsory process for obtaining witnesses in the defendant's favor."
{¶ 10} During the trial court's colloquy at the plea hearing, the court stated:
Do you further give up your right to call or compel witness [sic] to
testify against yourself? What that means is you give up your
right to call - - to force witnesses to take the witness stand and
be a witness against yourself. And further the - - to be a witness,
sorry. You're giving up your right to - - to force witnesses to
come to the court through the subpoena process to compel them
to testify even though they don't wish to be here.
You're also giving up your right, what we call you [sic] right or
confrontation of the right to face your accusers. In every trial the
accusing witnesses have to take the witness stand, they have to
testify under oath; they're subject to cross examination by your
attorney. But again, today because you are pleading guilty you
give up this right of confrontation, and also what we call
compulsory service; do you understand that?
{¶ 11} While the trial court misspoke at first when explaining Johnson's right to
compulsory process, we nonetheless find that the trial court corrected its misstatement and
explained the right of compulsory service in a way that was reasonably intelligible to Johnson.
The trial court apologized for its misstatement, which indicated to Johnson that the trial court
had previously misspoke when indicating the compulsory process was to call witnesses
against Johnson. After the court's apology, it went forward to correctly indicate that the right
being waived was the right to make the court compel a witness' appearance as well as
testimony. The court's discussion clearly included a reiteration that Johnson was waiving his
right of compulsory service.
{¶ 12} There is no indication in the record that Johnson did not understand that
compulsory service was specific to his right to have witnesses appear in his defense. In fact,
the court always addressed the compulsory service issue to Johnson as "your right."
Johnson was aware he was waiving his right by pleading guilty.
{¶ 13} The court's colloquy successfully informed Johnson that the state had the
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burden to prove the charges against him, that he had the right against self-incrimination, and
that the state had to prove the charges beyond a reasonable doubt. The trial court correctly
explained that the right to compel included making witnesses "testify even though they don't
wish to be here," which obviously explained to Johnson that the court would require these
witnesses' appearance on behalf of Johnson. This is especially true where the trial court
informed Johnson that the plea hearing was held to inform him of important information
regarding his plea and to allow Johnson to question any fact regarding the plea process.
{¶ 14} At the beginning of the plea hearing, the court directly addressed Johnson and
stated, "Now, I'm going to go over a number of issues with you this morning on the record. If
at any point during our conversation you are unsure of anything I'm going to discuss, you
need to stop me so I can review those – those issues with you in more detail. Or if
necessary, we can recess the hearing so you can talk privately to your attorney * * *." Later
during the colloquy, and specific to the compulsory service issue, the trial court specifically
inquired as to whether or not Johnson was willing to "further give up your right to call or
compel witness [sic] to testify * * *."
{¶ 15} The court's colloquy was directed at Johnson specifically, and he was informed
at each turn that it was his right to compulsory service, and Johnson clearly understood that
the right being addressed was the right to call witnesses on his behalf. Therefore, there is no
indication that the trial court's initial, brief, misstatement somehow vitiated Johnson's
understanding that he had a right to compel witnesses to testify for him.
{¶ 16} This is especially true where Johnson signed the plea form, which included a
very specific statement that the plea would result in waiver of his right to "use the power of
the court to call witnesses to testify for me." Johnson verified during the plea hearing that he
read the form, signed it, and understood it, and posed no questions or indication of
misunderstanding during the trial court's colloquy. See Barker, 2011-Ohio-4130, at ¶ 25
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("alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to
other portions of the record, including the written plea, in determining whether the defendant
was fully informed of the right in question").
{¶ 17} After reviewing the record, we find that the trial court explained the right of
compulsory service to Johnson in a manner that would make him understand that he was
waiving his right to compulsory service, and that any ambiguity caused by the trial court's
initial misstatement was certainly clarified by the written plea agreement. Thus, the record
reveals the trial court strictly complied with Crim.R. 11(C)(2)(c).
{¶ 18} Johnson also argues that the trial court failed to substantially comply with
Crim.R. 11(C) by misstating the repercussions of his Tier III sexual classification. Crim.R.
11(C)(2)(a) requires a trial court to inform a defendant of the maximum penalty associated
with a plea. However, the trial court need only substantially comply with the nonconstitutional
notifications required by Crim.R. 11(C)(2)(a) and (b), which includes notification of the
maximum penalty involved. Shavers, 2015-Ohio-1485, at ¶ 9. Substantial compliance with
this provision of Crim.R. 11 is sufficient so long as no prejudice results. State v. Irvin, 12th
Dist. Warren No. CA2013-03-027, 2013-Ohio-5209, ¶ 7. "To demonstrate prejudice in this
context, the defendant must show that the plea would otherwise not have been entered." Id.{¶ 19} Pursuant to the substantial compliance standard, the appellate court must
review the totality of the circumstances surrounding the defendant's plea and determine
whether the defendant subjectively understood the effects of his plea. State v. Givens, 12th
Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶ 12.
{¶ 20} The trial court's colloquy should have informed Johnson that community
notification was a mandatory aspect of his Tier III classification. Instead, the trial court stated
that "the County Sheriff or the people who are responsible could put you on a notification list
of where you live * * *." (Emphasis added.) Despite the ambiguity raised by the trial court's
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statement, we find that the trial court's colloquy was in substantial compliance with Crim.R.
11(C)(2)(a) because it informed Johnson that he would be subject to community notification
and did nothing to make Johnson believe that he would not be subject to the notification
requirement.
{¶ 21} While the trial court did not say that the notification was mandatory, its
statement that the sheriff or other personnel could require public notification clearly indicates
that Johnson was aware that he would be subject to notification. This is not a case where
the trial court incorrectly stated that Johnson would not be subject to notification. Instead,
while the trial court should have used the word "must" instead of "could," the court's colloquy
nevertheless informed Johnson that his rape conviction would result in a Tier III classification,
and that "every 90 days for the rest of your life you will be required to register in the County in
which you live, your residence and - - and your work employment * * *." The court further
explained, "now, equally important there's also what we call public notification requirement
attached to that." The words "requirement attached" indicates that such notification was
mandatory in nature, and that the requirement was in place because of Johnson's
classification. There is no indication in the record that Johnson somehow believed that the
trial court's statement that notification "could" occur made the mandatory nature of the
notification null or void.
{¶ 22} Again, we also note that Johnson's plea form serves to clarify any ambiguity
caused by the trial court's statement during the colloquy. The plea form contains a notation
that the plea would result in Johnson being classified a "Tier III sex offender, (every 90 days
for life)." Johnson did not indicate during the plea hearing that he was confused regarding
the notification requirement, or that he understood the trial court's colloquy to be in conflict
with the written plea form. Moreover, there is no indication in the record that Johnson was
prejudiced by the trial court's inclusion of the word "could" in regard to the notification issue.
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Johnson does not assert that he would not have made his plea had he been told that
notification was mandatory, or that he was led to believe he was not subject to the notification
requirement.
{¶ 23} After reviewing the record and considering the totality of the circumstances
surrounding Johnson's plea, we find that Johnson subjectively understood the effects of his
plea, including the notification requirement associated with his rape conviction and Tier III
classification.
{¶ 24} Having found that Johnson's plea was knowing, voluntary, and intelligent, we
find that the trial court did not err in accepting the plea. As such, Johnson's sole assignment
of error is overruled.
{¶ 25} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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