State v. Smith , 2019 Ohio 4115 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-4115.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 19CA3680
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
ROBERT D. SMITH, :
Defendant-Appellant. : RELEASED 10/03/2019
APPEARANCES:
Paige J. McMahon, Chillicothe, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Hess, J.
{¶1} Robert D. Smith pleaded guilty to theft from a person in a protected class.
After accepting the plea, the court convicted him and imposed a sentence. Smith
contends that his guilty plea was not entered knowingly, intelligently and voluntarily
because the trial court did not explain to him that if he had paid only a nominal amount
towards restitution, rather than a substantial amount, the trial court would have granted
his request for intermittent jail service.
{¶2} However, the trial court correctly found Smith’s plea was made knowingly,
intelligently and voluntarily. The trial court informed Smith that it would be willing to
consider some form of intermittent jail service only if Smith made a substantial or a full
payment of restitution at sentencing. Smith stated that he understood that when he
entered the guilty plea. Smith subsequently failed to make any restitution payment and
Ross App. No. 19CA3680 2
the trial court informed him he would not receive intermittent jail service. The trial court
sentenced him to 75 consecutive days in jail. We overrule Smith’s assignment of error
and affirm the trial court’s judgment.
I. FACTS
{¶3} The state indicted Smith for theft from a person in a protected class in
violation of R.C. 2913.02, a fourth-degree felony. He pleaded guilty. The trial court
conducted a Crim.R. 11 colloquy to determine whether Smith was fully informed of his
rights and understood the consequence of his guilty plea. Upon being satisfied that Smith
voluntarily entered his plea and waived his constitutional rights, the court accepted his
plea and convicted him.
{¶4} At the plea hearing, the trial court expressed a willingness to consider some
form of intermittent jail service, such as 14 days on and 14 days off, in order to assist
Smith with childcare obligations. However, the trial court stated that it would consider
intermittent jail service only if Smith made “a substantial payment or a full payment of
restitution at sentencing.” A month later at the sentencing hearing, Smith’s counsel
explained that because Smith was the sole caretaker of several small children, he was
financially unable to make any restitution payment. The trial court asked Smith if he would
like to make a statement and Smith replied, “No, sir.”
{¶5} The trial court explained the deal again to Smith, “If you made a payment
toward restitution, I would seriously consider allowing you to serve intermittent time in the
Ross County Jail so that you could take care of your children.” The trial court stated that
it would not consider honoring the request of intermittent jail time because Smith did not
generate so much as one dollar towards restitution for the victims: “You had your
Ross App. No. 19CA3680 3
opportunity and you were silent just like you were silent on the ability to generate one
dollar. Had you brought in a dollar, at least I would have considered honoring your
request.” The trial court imposed a 75-day consecutive (non-intermittent) sentence in the
county jail, 200 hours of community service, and ordered restitution in the sum of
$1,350.00.
II. ASSIGNMENT OF ERROR
{¶6} Smith assigns the following error for our review:
APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER
THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION WHEN THE TRIAL COURT ACCEPTED AN UNKNOWING,
UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.
III. LAW AND ANALYSIS
A. Standard of Review
{¶7} A defendant who enters a plea in a criminal case must act knowingly,
intelligently, and voluntarily. Failure on any of those points renders enforcement of the
plea unconstitutional under both the United States Constitution and the Ohio Constitution.
See State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting
State v. Engle, 74 Ohio St. 3d 525, 527, 660 N.E.2d 450 (1996). An appellate court that
determines whether a guilty plea was entered knowingly, intelligently, and voluntarily must
conduct a de novo review of the record to ensure that the trial court complied with the
constitutional and procedural safeguards. See State v. Cassell, 2017-Ohio-769, 79
N.E.3d 588, ¶ 30-32 (4th Dist.), see also State v. Moore, 4th Dist. Adams No. 13CA965,
2014-Ohio-3024, ¶ 13.
Ross App. No. 19CA3680 4
B. Defendant’s Claim of Lack of Knowledge
{¶8} To decide Smith’s claim we look to Crim.R. 11(C), which governs the
process for accepting a felony plea of guilty or no contest. See Veney at ¶ 8. Before
accepting a guilty plea in a felony case a trial court must address the defendant personally
and determine that “the defendant is making the plea voluntarily, 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.” Crim.R. 11(C)(2)(a). The court must inform the
defendant of both the constitutional and nonconstitutional rights he is waiving and
determine that he “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.” Crim.R.
11(C)(2)(b). Finally, the court must determine that the defendant understands that he “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.” Crim.R. 11(C)(2)(c).
{¶9} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a
valid plea because they do not involve constitutional rights. State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. “ ‘Substantial compliance means that,
under the totality of the circumstances, appellant subjectively understood the implications
of his plea and the rights he waived.’ ” State v. McDaniel, 4th Dist. Vinton No. 09CA677,
2010-Ohio-5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP-903, 2009-
Ohio-3240, ¶ 6.
Ross App. No. 19CA3680 5
{¶10} But strict compliance with Crim.R. 11(C)(2)(c) is required because
constitutional rights are involved. “ ‘However, failure to [literally comply] will not
necessarily invalidate a plea. The underlying purpose, from the defendant's perspective,
of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a
voluntary and intelligent decision whether to plead guilty.’ ” Veney at ¶ 18, quoting State
v. Ballard, 66 Ohio St. 2d 473, 479–480, 423 N.E.2d 115 (1981). A guilty plea that is not
entered into knowingly, intelligently, and voluntarily is void. State v. Moore, 165 Ohio
App.3d 538, 2006-Ohio-114, ¶ 22 (4th Dist.), citing McCarthy v. United States, 394 U.S.
459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969).
{¶11} Smith contends that he did not knowingly, intelligently, and voluntarily make
his guilty plea under Crim.R. 11(C)(2)(a) because he was not informed that making a one-
dollar restitution payment was all that was required of him to avoid the sterner sentence.1
For the nonconstitutional notifications required by Crim.R. 11(C)(2)(a), substantial
compliance is sufficient. “ ‘[A] defendant who challenges his guilty plea on the basis that
it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.’ ”
Veney at ¶ 15, quoting State v. Nero, 56 Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990). To
demonstrate prejudice in this context, the defendant must show that the plea would
otherwise not have been entered. Veney at ¶ 15.
{¶12} Smith contends that at the plea hearing, the trial court informed him that he
must make substantial payment towards restitution to receive an intermittent jail
sentence, but at the sentencing hearing the trial court changed the requirement to only a
one-dollar payment to receive an intermittent sentence. Smith inaccurately characterizes
1 Smith does not contend that the trial court erred in any of the other requirements of Crim.R. 11(C) and
the record shows that the trial court conducted a proper Crim.R. 11(C) plea colloquy.
Ross App. No. 19CA3680 6
the trial court’s statements. At the sentencing hearing, the trial court did not state that all
Smith had to do was pay one-dollar restitution to obtain an intermittent jail sentence.
Instead the trial court explained it was Smith’s lack of sincere initiative towards restitution
for the victims that guided the trial court’s discretion. Had Smith made even the slightest
showing of good faith towards restitution for the victims, it might have triggered some
discretionary leniency because of the trial court’s concern for Smith’s small children:
If you made a payment toward restitution, I would seriously consider
allowing you to serve intermittent time * * * so that you could take care of
your children. * * * I know that you probably do care about your children but
a deal is a deal. You didn’t even come up with a dollar. * * * Had you brought
in a dollar, at least I would have considered honoring your request. I hate to
punish your children because you can’t keep a bargain and apparently don’t
want to generate any kind of money to pay the victims of this offense back
* * * you’re going to spend some time in the Ross County Jail, not as much
as the prosecutor wants. This is your first foray into the big time so to speak.
{¶13} The trial court was not changing the standard of the previously agreed
sentencing terms, but rather was explaining that no amount of discretionary leniency
would be shown where Smith failed to take even the smallest steps to begin restitution
for the victims. Smith received the benefit of his bargain – he failed to make restitution,
so the trial court did not consider intermittent sentencing and instead sentenced him to
75 consecutive days in jail.2 Moreover, Smith has failed to contend that he was prejudiced
and that his plea would not have been otherwise entered. Here where Smith argues that
the trial court intended to be more lenient with restitution than it led him to believe, it
strains the limits of credulity to believe Smith would have changed his plea.
2The state points out that the 75-day sentence imposed by the trial court was less than the 90-day sentence
agreed to by the parties. The trial court stated it was imposing jail time, but “not as much as the prosecutor
wants.”
Ross App. No. 19CA3680 7
{¶14} Smith also contends that the trial court failed to allow him the right to make
a statement on his own behalf as provided in Crim.R. 32(A)(1), which states, “* * *At the
time of imposing sentence, the court shall do all of the following: (1) Afford counsel an
opportunity to speak on behalf of the defendant and address the defendant personally
and ask if he or she wishes to make a statement in his or her own behalf or present any
information in mitigation of punishment.”
{¶15} The record shows that the trial court complied with Crim.R. 32(A)(1) in
allowing both Smith’s attorney an opportunity to be heard and, after Smith’s counsel
spoke, asking Smith, “* * * Mr. Smith, would you like to make a statement as to why
sentence should not be imposed or in mitigation or lessening of your punishment?” Smith
responded, “No, sir.” After Smith declined to make a statement, he later interrupted the
trial court and interjected excuses for his failed restitution efforts. The trial court
admonished him for the interruption. The trial court had previously given Smith an
opportunity to speak and was simply controlling the courtroom decorum by admonishing
Smith for the interruption. “A trial judge is empowered to maintain decorum and enforce
reasonable rules to insure the orderly and judicious disposition of the court's business.”
State v. Baskin, 3rd Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 22. The record shows
that the trial court complied with Crim.R. 32(A)(1) and Smith declined the opportunity to
speak.
{¶16} We overrule Smith’s sole assignment of error.
Ross App. No. 19CA3680 8
IV. CONCLUSION
{¶17} Having overruled the assignment of error, we affirm the trial court’s
judgment.
JUDGMENT AFFIRMED.
Ross App. No. 19CA3680 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court,
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.