State v. Leppert ( 2011 )

[Cite as State v. Leppert, 2011-Ohio-6406.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 JE 6
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
KARRIE LEPPERT, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR65.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Prosecuting Attorney
16001 State Route Seven
Steubenville, Ohio 43952
For Defendant-Appellant: Attorney Christopher Gagin
970 Windham Court, Suite 7
Youngstown, Ohio 44512
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 7, 2011
VUKOVICH, J.
{¶ 1} Defendant-appellant Karrie Leppert appeals from the conviction and
sentence entered in the Jefferson County Common Pleas Court for two counts of drug
trafficking, one count of drug possession, and the specification that the $2,020 found
on her at the time of her arrest was used or intended to be used in the commission or
facilitation of a felony drug offense. Leppert asserts that the trial court erred when it
required her to admit her crimes prior to it accepting her plea.
{¶ 2} We find no merit with her argument. Leppert’s position that the trial court
required her to confess prior to accepting her plea is inaccurate. That said, when the
trial court was determining whether she understood the charges against her, its
questions did illicit confessions. However, that did not render her plea unknowing,
unintelligent or involuntary; the trial court complied with Crim.R. 11(C) in accepting the
guilty plea. Thus, the judgment of the trial court is hereby affirmed.
STATEMENT OF THE CASE
{¶ 3} Leppert was indicted on two counts of drug trafficking, violations of R.C.
2925.02(A)(1)(C)(4)(c), fourth-degree felonies and one count of drug possession, a
violation of R.C. 2925.11(A)(C)(4)(f), a first-degree felony. Two specifications were
attached to the drug possession charge. The first specification was that the $2,020
that was seized at the time of her arrest was used or intended to be used in the
commission of a felony drug offense. The second specification was that Leppert was
a major drug offender as defined by R.C. 2929.01. 06/02/10 Indictment.
{¶ 4} Leppert originally pled not guilty to the charges. However, the state and
Leppert eventually entered into a plea agreement. Leppert pled guilty to both drug
trafficking charges, the drug possession charge, and the specification pertaining to the
money that was seized at the time of her arrest. 12/15/10 Plea Tr.; 01/05/11 J.E. The
major drug offender specification was dismissed. The parties agreed on a joint
recommendation of an aggregate seven year prison term, all of which was mandatory.
12/15/10 Plea Tr.; 01/05/11 J.E.
{¶ 5} Following a Crim.R. 11 plea colloquy, the trial court accepted the guilty
plea and followed the parties agreed upon sentence recommendation. Accordingly, on
each drug trafficking conviction, Leppert received a six month sentence and on the
drug possession charge a seven year mandatory sentence. The court ordered those
sentences to be served concurrently. 01/27/11 J.E. Leppert was permitted by this
court to file a delayed appeal.
ASSIGNMENT OF ERROR
{¶ 6} “MANIFEST INJUSTICE RESULTED WHEN THE TRIAL COURT
COMPELLED DEFENDANT-APPELLANT TO CONFESS PRIOR TO ACCEPTING
HER CHANGE OF PLEA CONTRA TO CRIM.R. 11(C) AND IN VIOLATION OF THE
5TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION.”
{¶ 7} The sole issue in this case is whether a trial court’s alleged requirement
for a defendant to confess to her crimes prior to advising her of the constitutional and
nonconstitutional rights she is waiving by entering a guilty plea and prior to accepting
her guilty plea renders the plea not knowingly, voluntarily or intelligently entered. In
the appellate brief while Leppert acknowledges that this is the issue, she tries to also
employ the manifest injustice standard of review espoused in Crim.R 32.1. The
language in the brief states that the appeal “must be viewed as one pursued as a post-
sentence motion pursuant to Crim.R. 32.1.”
{¶ 8} Crim.R. 32.1 provides that a post-sentence motion to withdraw a guilty
plea can only be granted to correct a manifest injustice. However, Leppert did not file
a post-sentence motion to withdraw. Thus, the trial court did not render a ruling on
whether a manifest injustice occurred in the acceptance of the plea and, as such, we
have no Crim.R. 32.1 decision to review. Furthermore, the trial court, not the
reviewing court, employs the manifest injustice test. The reviewing court only reviews
the decision of the trial court to grant or deny the post-sentence motion to withdraw for
an abuse of discretion. State v. Ikharo, 10th Dist. No. 10AP967, 2011-Ohio-2746, ¶9,
citing State v. Smith (1977), 49 Ohio St. 2d 261. Therefore, Crim.R. 32.1 and its
manifest injustice standard are wholly inapplicable in this situation. Consequently, we
will not review this appeal for whether a manifest injustice occurred, but rather for
whether Leppert’s plea was knowingly, intelligently and voluntarily entered.
{¶ 9} In determining whether a felony guilty plea is entered into knowingly,
intelligently and voluntarily all relevant circumstances surrounding the acceptance of
the guilty plea must be considered. State v. Jones, 7th Dist. No. 09MA144, 2011-
Ohio-1648, ¶16. Typically, the analysis surrounds whether the Crim.R. 11 (C)
advisements were made. These advisements are typically divided into constitutional
rights and nonconstitutional rights.
{¶ 10} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses
against him; 3) the compulsory process for obtaining witnesses in his favor; 4) that the
state must prove the defendant's guilt beyond a reasonable doubt at trial, and 5) that
the defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c);
State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶19-21. The trial court must
strictly comply with these requirements; if it fails to strictly comply, the defendant's plea
is invalid. Veney, supra, at ¶31; State v. Ballard (1981), 66 Ohio St. 2d 473, 477. See,
generally, Boykin v. Alabama (1969), 395 U.S. 238. See, also, State v. Singh (2000),
141 Ohio App. 3d 137.
{¶ 11} The nonconstitutional rights are that: 1) the defendant must be informed
of the nature of the charges; 2) the defendant must be informed of the maximum
penalty involved, which includes an advisement on post-release control, if it is
applicable; 3) the defendant must be informed, if applicable, that he is not eligible for
probation or the imposition of community control sanctions, and 4) the defendant must
be informed that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence. Crim.R. 11(C)(2)(a)(b); Veney, supra, at ¶10-13;
State v. Sarkozy, 117 Ohio St.3dd 86, 2008-Ohio-509, ¶19-26, (indicating that post-
release control is a nonconstitutional advisement); State v. Aleshire, 5th Dist. No.2007-
CA-1, 2008-Ohio-5688, ¶8 (stating that post-release control is a part of the maximum
penalty).
{¶ 12} For the nonconstitutional rights, the trial court must substantially comply
with Crim.R. 11's mandates. State v. Nero (1990), 56 Ohio St. 3d 106, 108.
“Substantial compliance means that under the totality of the circumstances the
defendant subjectively understands the implications of his plea and the rights he is
waiving.” Veney, supra, at ¶15 quoting Nero, supra at 108. Furthermore, a defendant
who challenges his guilty plea on the basis that the advisement for the
nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must
also show a prejudicial effect, meaning the plea would not have been otherwise
entered. Veney, supra, at ¶15 citing Nero, supra, at 108.
{¶ 13} The record clearly indicates that Leppert was not coerced in any manner
to enter the guilty plea. 12/15/10 Plea Tr. 7. In the sentencing transcript, it shows that
prior to the trial court issuing the sentence, Leppert had made statements to either
counsel and/or the court off the record indicating that she might wish to withdraw her
guilty plea. On the record, the trial court indicated that if she wanted to withdraw her
guilty plea, it would grant such a request. 01/25/11 Sentencing Tr. 1-8. The state also
indicated it would not oppose such a request. 01/25/11 Sentencing Tr. 1-8. Leppert
indicated after the discussion and some time to consult with her attorney that she did
not wish to withdraw her guilty plea. 01/25/11 Tr. 8.
{¶ 14} Likewise, a review of the plea transcript clearly reveals that Leppert was
advised of all her constitutional and nonconstitutional rights. Leppert was informed
and acknowledged that she understood that by pleading guilty she was waiving her
right to a jury trial, to confront witnesses against her, to subpoena witnesses in her
favor and to have the state prove at trial each and every element of the offenses by
proof beyond a reasonable doubt. 12/15/10 Plea Tr. 9, 12-13. She was also informed
and indicated that she understood that if she went to trial she could not be compelled
to testify against herself and that by pleading guilty she was giving up that right.
12/15/10 Plea Tr. 13-14. Leppert was also advised of the charges against her and the
maximum punishment for the crimes, including post release control. 12/15/10 Plea Tr.
6-9, 10-12, 16-18. She was also informed that after acceptance of the guilty plea the
court could proceed directly to sentencing. 12/15/10 Plea Tr. 6-7.
{¶ 15} It was during the advisement of the charges against her where the
alleged error occurred.
{¶ 16} “THE COURT: Had this case gone to trial or if you wanted a trial and
certainly at this point you could still have one, you would have a number of trial rights
but by your plea of guilty you’re waiving or giving up all these rights. So, I want to
explain some of them to you.
{¶ 17} “First and perhaps most important is your right to trial by jury and in this
case that means that there would have been 12 jurors who could not convict you
unless they were unanimously convinced beyond a reasonable doubt by the State of
Ohio of each and every element of these offenses. Do you understand that?
{¶ 18} “THE DEFENDANT: Yes, sir.
{¶ 19} “THE COURT: Okay. With respect to Count One, you’re charged with
trafficking in crack cocaine, more than 1 gram on April the 14th, 2010. What did you
do to get yourself into that trouble?
{¶ 20} “THE DEFENDANT: Got mixed up with the wrong crowd.
{¶ 21} “* * *
{¶ 22} “THE COURT: Okay. But you’re allowed to do that in America and
that’s not a crime.
{¶ 23} “* * *
{¶ 24} “THE COURT: What did you do that was trafficking in cocaine?
{¶ 25} “THE DEFENDANT: Oh. I sold crack cocaine.
{¶ 26} “THE COURT: Okay. And was it at least a gram.
{¶ 27} “THE DEFENDANT: Yes, sir.
{¶ 28} “THE COURT: Okay. And with respect to Count Two, it looks like the
same thing all over again on April the 21st. It’s a week later. What did you do to get
yourself into that trouble?
{¶ 29} “THE DEFENDANT: Did the same thing, sir, sold crack cocaine.
{¶ 30} “THE COURT: Okay. And was it at least a gram that time too?
{¶ 31} “THE DEFENDANT: Yes, sir.
{¶ 32} “THE COURT: Then in count Three, you’re charged with possession of
crack cocaine in excess of 100 grams.
{¶ 33} “THE DEFENDANT: I possessed --
{¶ 34} “THE COURT: What did you do to get yourself into that trouble?
{¶ 35} “THE DEFENDANT: I possessed crack cocaine.
{¶ 36} “THE COURT: Was it more than 100 grams?
{¶ 37} “THE DEFENDANT: Yes, sir.
{¶ 38} “THE COURT: And was it around April 23rd, 2010, around about then
anyway?
{¶ 39} “THE DEFENDANT: Yes, sir.
{¶ 40} “THE COURT: Okay. And with respect to the forfeitures you understand
that the $2,020 forfeiture and the $15,381 forfeiture, the State of Ohio would not cause
you to forfeit that, they couldn’t make you forfeit it unless they could provide that it was
either used in a felony drug offense or it was the product of a felony drug offense. Do
you understand that?
{¶ 41} “THE DEFENDANT: Yes, sir.
{¶ 42} “THE COURT: And it’s my understanding that part of your plea is you’re
agreed in that that money will be forfeited.
{¶ 43} “THE DEFENDANT: Yes, sir.
{¶ 44} “* * *
{¶ 45} “THE COURT: And that if there was a trial it’s the State of Ohio that
would have the burden of proving beyond a reasonable doubt each and every
element, all the things that you and I just talked about. Do you understand that?
{¶ 46} “THE DEFENDANT: Yes, sir.” 12/15/10 plea Tr. 9-12.
{¶ 47} Reading the questions in the context they were made, we do not find that
the trial court was requiring Leppert to confess in order to accept her guilty plea.
Rather, it appears that the trial court is trying to determine if she knows the charges
against her and knows what the state would be required to prove if she decided to go
to trial. Thus, Leppert’s characterization that the trial court was requiring her to
confess before it would accept her guilty plea is not completely accurate. This is not
the situation where the trial court demands that a defendant state exactly what he or
she did to commit the crimes or it will not accept the guilty plea.
{¶ 48} Furthermore, case law provides that a plea of guilty constitutes a
complete admission of guilt and that “by entering a plea of guilty, the accused is not
simply stating that he did the acts described in the indictment; he is admitting guilt of a
substantive crime.” State v. Wright (July 29, 1994), 4th Dist. No.93CA2110, citing
United States v. Broce (1989), 488 U.S. 563, 570. Thus, since the guilty plea is itself
an admission, any confession that occurs during the plea colloquy as a result of
questions asked by the court would be harmless. The effect of the confession in that
situation is the same as the effect of the guilty plea.
{¶ 49} Consequently, there is no basis to find that the trial court’s questions
rendered the guilty plea unknowingly, unintelligently or involuntary entered. The plea
colloquy complied with Crim.R. 11’s mandates. The plea transcript evinces that
Leppert wanted to enter a guilty plea and did so knowingly, intelligently and voluntarily.
We do not find any basis to reverse the trial court’s acceptance of the guilty plea.
{¶ 50} Leppert contends that allowing the court to obtain a confession prior to
accepting her guilty plea means that if the guilty plea is withdrawn, her confession is
still on record and could be used against her. Although a prior decision from this court
casts doubt on whether admissions made when entering a plea could be used against
a defendant where the guilty plea is withdrawn, we are not called upon to decide that
issue at this time. State v. Marcum, 7th Dist. No. 03CO36, 2004-Ohio-3036, ¶43.
Leppert’s plea was not withdrawn. Thus, the issue of what effect the “confession”
made during the plea colloquy would have if the plea had been withdrawn is not ripe
for review. This assignment of error lacks merit; the plea was entered into knowingly,
intelligently and voluntarily.
{¶ 51} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.