State v. Bell , 2011 Ohio 5016 ( 2011 )

[Cite as State v. Bell, 2011-Ohio-5016.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24356
vs. : T.C. CASE NO. 10CR513
SHAQUANA BELL : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of September, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
William T. Daly, Atty. Reg. No. 0069300, 1250 W. Dorothy Lane,
Suite 105, Kettering, OH 45409
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Shaquana Bell, appeals from her conviction
and sentence for aggravated burglary and intimidation of a crime
victim.
{¶ 2} Defendant was indicted on one count of aggravated
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burglary-deadly weapon, R.C. 2911.11(A)(2), with a three year
firearm specification, R.C. 2941.145, one count of felonious
assault-deadly weapon, R.C. 2903.11(A)(2), with a three year
firearm specification, R.C. 2941.145, and one count of intimidation
of a crime victim by force or threat, R.C. 2921.04(B). Defendant
entered pleas of guilty to the aggravated burglary and intimidation
of a crime victim charges. In exchange, the State dismissed the
firearm specification attached to the aggravated burglary charge
as well as the felonious assault charge and its firearm
specification. The trial court sentenced Defendant to consecutive
prison terms of three years for aggravated burglary and one year
for intimidation of a crime victim, for an aggregate sentence
of four years.
{¶ 3} Defendant timely appealed to this court from her
conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT FAILED TO MEET THE REQUIREMENTS OF
CRIMINAL RULE 11(C)(2) AND FAILED TO ADVISE THE DEFENDANT, DURING
THE RULE 11 DIALOGUE, OF HER RIGHT TO WAIVE A JURY TRIAL, PRIOR
TO ACCEPTING DEFENDANT’S GUILTY PLEA.”
SECOND ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT DID NOT ADVISE THE DEFENDANT THAT HER
PLEA OF GUILTY WAS A COMPLETE ADMISSION OF GUILT.”
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{¶ 6} In these related assignments of error, Defendant argues
that her guilty pleas were not entered knowingly, intelligently
and voluntarily because, in accepting her pleas, the trial court
failed to comply with the requirements in Crim.R. 11(C)(2) in two
respects: (1) the trial court failed to advise Defendant that she
could waive her right to a jury trial and instead be tried by the
court, and that her guilty pleas likewise waived her right to a
bench trial; (2) the trial court failed to advise Defendant about
the effect of her guilty pleas: that they were a complete admission
of her guilt.
{¶ 7} To be constitutionally valid and comport with due
process, a guilty plea must be entered knowingly, intelligently,
and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct.
1709, 23 L.Ed.2d 274. Compliance with Crim.R. 11(C)(2) in
accepting guilty or no contest pleas portrays those qualities.
State v. Fisher, Montgomery App. No. 23992, 2011-Ohio-629, at ¶6.
{¶ 8} Crim. R. 11(C)(2) provides:
{¶ 9} “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:
{¶ 10} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
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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.
{¶ 11} “(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.
{¶ 12} “(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.”
{¶ 13} In State v. Russell, Clark App. No. 10CA54,
2011-Ohio-1738, we stated:
{¶ 14} “¶7. The Supreme Court of Ohio has urged trial courts
to literally comply with Crim.R. 11. Clark at ¶ 29. The trial court
must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to
the waiver of constitutional rights. Clark at ¶ 31. The failure
to adequately inform a defendant of his constitutional rights would
invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly. State v. Griggs, 103 Ohio St.3d
585, 2004–Ohio–4415, ¶ 12.
{¶ 15} “¶8. However, because Crim.R. 11(C)(2)(a) and (b)
involve non-constitutional rights, the trial court need only
substantially comply with those requirements. State v. Nero (1990),
56 Ohio St.3d 106, 108; Greene at ¶ 9. 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. State v. Miller, Clark App. No. 08 CA 90,
2010–Ohio–4760, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176,
2008–Ohio–5200, ¶ 15. A defendant who challenges his guilty plea
on the ground that the trial court did not substantially comply
with Crim.R. 11(C)(2)(a) and (b) must show a prejudicial effect,
which requires the defendant to show that the plea would otherwise
not have been entered. Griggs at ¶ 12.”
{¶ 16} The record of the plea colloquy in this case demonstrates
that the trial court strictly complied with Crim.R. 11(C)(2)(c)
in advising Defendant of the various constitutional rights she
would be giving up by entering pleas of guilty, including the right
to a jury trial. Furthermore, Defendant signed a written waiver
acknowledging that she understood that by pleading guilty she was
giving up her right to a jury trial. Defendant complains, however,
that the trial court did not inform her that she had the right
to both waive a jury trial and instead be tried before the court
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pursuant to R.C. 2945.05, and that Defendant’s guilty pleas waived
that right to a bench trial.
{¶ 17} The right to trial by jury is guaranteed by the Sixth
Amendment to the Constitution of the United States. Prior to
accepting a guilty plea, the court must inform the defendant of
that right. State v. Ballard (1981), 66 Ohio St.2d 473. The right
to instead be tried by the court that R.C. 2945.05 confers is a
non-constitutional right. Crim.R. 11(C)(2) does not require the
trial court to advise a defendant that she has the right to be
tried by the court when she waives a jury trial. Neither is the
court then required to advise the defendant that her pleas of guilty
waive her right to a bench trial. Crim.R. 11(C)(2) only requires
that Defendant be advised, and the court to determine that she
understands, that her plea of guilty waives her right to a jury
trial, which the trial court did in this case.
{¶ 18} Defendant additionally complains that the trial court
failed to advise her of the effect of her guilty pleas, as required
by Crim.R. 11(C)(2)(b). During the plea, the trial court did not
advise Defendant or ask if she understood that her guilty plea
was a complete admission of her guilt. Crim.R.11(B)(1),
(C)(2)(b). Nevertheless, such an omission is not presumed to be
prejudicial under the facts in this case.
{¶ 19} In State v. Russell, supra, at ¶10-11, this court stated:
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{¶ 20} “[A] defendant who has entered a guilty plea without
asserting actual innocence is presumed to understand that, by
pleading guilty, he has completely admitted his guilt. Griggs,
supra. In such circumstances, the trial court's failure to inform
the defendant of the effect of his guilty plea, as required by
Crim.R. 11(C), is presumed not to be prejudicial. Id.; State v.
Thomas, Cuyahoga App. No. 94788, 2011–Ohio–214, ¶ 32.
{¶ 21} “{¶ 11} Russell has not claimed that he was innocent
of the charges. Moreover, Russell signed a plea form, in which
he stated that he understood that he was waiving his constitutional
rights and that ‘by pleading guilty I admit committing the offense
and will tell the Court the facts and circumstances of my guilt.
I know the judge may either sentence me today or refer my case
for a presentence report. * * *.’ Russell stated at the plea hearing
that he had reviewed, understood, and signed the plea form. The
court did not proceed directly with sentencing; instead, it
referred the matter for a presentence investigation. Under these
circumstances, Russell's plea was not rendered invalid by the
court's failure to orally inform him of the effect of his guilty
plea or that the court may proceed with judgment and sentencing.”
{¶ 22} The same is true in this case. Defendant never asserted
at the plea hearing that she was innocent of the charges. To the
contrary, the trial court asked Defendant: “Do you admit that you
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caused or threatened to cause physical harm to the person in the
commission of this offense?” Defendant responded: “Yes.” It is
presumed that Defendant understood that by then pleading guilty
she has completely admitted her guilt. State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415. The substantial compliance standard
is satisfied. Defendant’s guilty pleas are not rendered invalid
by the trial court’s failure to also orally inform her of the effect
of her guilty pleas, which is presumed not to be prejudicial.
Id.{¶ 23} Defendant’s first and second assignments of error are
overruled. The judgment of the trial court will be affirmed.
DONOVAN, J. And WAITE, J., concur.
(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Johnna M. Shia, Esq.
William T. Daly, Esq.
Hon. Barbara P. Gorman