State v. Bond ( 2011 )

[Cite as State v. Bond, 2011-Ohio-3272.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24457
Plaintiff-Appellee :
: Trial Court Case No. 10-CRB-9518
v. :
: (Criminal Appeal from
ALEXANDRIA BOND : (Dayton Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of June, 2011.
.........
STEPHANIE COOK, Atty. Reg. #0067101, 335 West Third Street, Room 372, Dayton, Ohio
45402
Attorney for Plaintiff-Appellee
THOMAS HAHN, Atty. Reg. #0086858, Post Office Box 341688, Beavercreek, Ohio 45432
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} On November 8, 2010, Alexandria Bond entered a guilty plea to one count of
aggravated menacing, a first-degree misdemeanor, with the State dismissing a charge of
telephone harassment. Consequently, during the pre-sentencing investigation hearing on
December 14, 2010, the trial court sentenced Bond to one year of supervised community
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control with 60 days of electronic home detention, with release to attend counseling, school,
and probation. Additionally, the trial court ordered that Bond attend anger management class.
{¶ 2} Bond has a four-year-old son. Her son’s father has a sister, the victim, who
brought these charges of aggravated menacing and telephone harassment. During the court
proceedings, Bond pled guilty to the aggravated menacing charge. However, following her
plea, Bond continued to attempt to justify her actions. Bond told the court that this situation
has been an ongoing problem over the last several years because she takes the victim’s brother
to court for child support. Bond claimed she has made several attempts to avoid the victim,
such as not sending her child with the victim and changing her telephone number. However,
Bond claimed, the victim continues to locate her and provoke her towards this behavior.
After hearing this information, the trial court accepted Bond’s guilty plea and imposed the
appropriate sentence. Bond appealed.
{¶ 3} On March 28, 2011, Bond’s appellate counsel filed a brief pursuant to Anders
v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the absence of
any potentially meritorious issues for our review. In the Anders brief, however, Bond’s
appellate counsel did identify what he characterized as “a potential assignment of error
relating to whether the guilty plea of appellant was knowingly, willingly, and voluntarily
given[.]”
{¶ 4} We notified appellant that her counsel had filed an Anders brief and offered
appellant ample time to file a pro se brief. None has been received.
{¶ 5} Pursuant to Anders, we are required to conduct a full examination of all
proceedings and to appoint new counsel to assist Bond if we find any non-frivolous issues for
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review. Anders; see, also, Penson v. Ohio (1988), 488 U.S. 75, 76, 109 S.Ct. 346, 102 L.Ed.2d
300. Having thoroughly reviewed the record in this case, we do not find any non-frivolous
issues.
{¶ 6} In his Anders brief, Bond’s appellate counsel recognized a potential issue
regarding whether Bond knowingly, willingly, and voluntarily entered her guilty plea. A trial
court’s obligations in accepting a plea depend upon the level of offense to which the defendant
is pleading. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 6, citing State v. Watkins,
99 Ohio St.3d 12, 2003-Ohio-2419, ¶ 25.
{¶ 7} Pursuant to Crim.R. 2(D), aggravated menacing, as charged, is a petty offense
that requires the trial court’s compliance with Crim.R. 11(E). State v. Bowman, Montgomery
App. No. 22459, 2008-Ohio-5157, citing Crim.R. 11(E). Crim.R. 11(E) states in part: “In
misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or
no contest, and shall not accept such pleas without first informing the defendant of the effect
of the plea of guilty, no contest, and not guilty.” (Emphasis added.) Id. To satisfy the
requirement of informing a defendant of the effect of a plea, a trial court must recite the
appropriate language from Crim.R. 11(B) that “a plea of guilty to a criminal offense is a
complete admission of criminal liability that is sufficient to support a conviction.” Jones,
supra, citing State v. Mapes , Champaign App. No. 09CA19, 2010-Ohio-4042.
{¶ 8} In cases involving felonies, “[t]he proper taking of a guilty plea requires ‘a
meaningful dialogue between the court and the defendant.’” Mapes, citing State v. Bowling
(March 10, 1987), Montgomery App. No. 9925. However, the trial court conducting a guilty
plea colloquy in a case involving a petty offense is not required to advise the defendant of the
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same rights to which a defendant in a felony case would be entitled, and reversible error
cannot be predicated upon the trial judge’s having failed to conduct that inquiry. Id.; State v.
Lacy, Greene App. No. 2001-CA-130, 2002-Ohio-1798; Crim.Proc., Rule 11(C)(2), (E).
Although Crim.R. 11(E) does not require the trial court to engage in a lengthy inquiry when a
plea is accepted to a misdemeanor charge involving a petty offense, the rule does require that
certain information be given on the “effect of the plea.” Jones, supra. Whether orally or in
writing, a trial court must recite the appropriate language from Crim.R. 11(B) before accepting
the plea. Id.
{¶ 9} The following guilty plea colloquy occurred during Bond’s proceedings:
{¶ 10} “***The Court: At this time counselor, How did Miss Bond wish to proceed?
{¶ 11} “The Defense: She’s going to plead guilty, your honor, to the aggravated
menacing charge with the state dismissing the telephone harassment charge.
{¶ 12} “The Court: Alright, we will recall the warrant then. Miss Bond, at this time
for the record, how do you plead to one count of aggravated menacing?
{¶ 13} “The Defendant: Guilty.
{¶ 14} “The Court: Do you understand that if you plead guilty today that you would be
giving up your right to a trial by entering a plea of guilty?
{¶ 15} “The Defendant: Yes, Sir.
{¶ 16} “The Court: Do you understand the possible penalties for aggravated
menacing?
{¶ 17} “The Defendant: Yes, Sir.
{¶ 18} “The Court: Up to a hundred and eighty days in jail and a fine up to a thousand
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dollars are the maximum penalties.
{¶ 19} “The Defendant: Yes, Sir.
{¶ 20} “The Court: Has anyone promised you anything or threatened you to induce
you to plead guilty?
{¶ 21} “The Defendant: No, Sir.
{¶ 22} “The Court: Are you pleading guilty freely and voluntarily?
{¶ 23} “The Defendant: Yes, Sir.”
{¶ 24} After closely examining the trial record, we find that not only did the trial court
inform Bond that entering a guilty plea would remove her right to a jury trial, as well as the
possible penalties resulting from her plea during the hearing, but the court also informed Bond
of her rights, in writing, in a waiver-of-rights form. Within that document, the language of
Crim.R. 11(B) is contained in paragraph 10: “A plea of guilty is a complete admission of the
truths of the facts in the Complaint and of my guilt of the charge brought by the state.” Bond
read and signed this document during her hearing on November 8, 2010. Therefore, we find
that the trial court exceeded the requirements of Crim.R. 11(E).
{¶ 25} Appellate counsel asserts that even if the court did notify Bond of the effect of
the plea, the plea was improperly accepted because she did not fully understand that she was
making a complete admission of guilt. Counsel claims this is evident in the statements
following her guilty plea, in which she attempts to justify her actions. This potential
assignment of error lacks merit.
{¶ 26} The right to be informed that a guilty plea is a complete admission of guilt is
nonconstitutional and therefore is subject to review under a standard of substantial
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compliance. State v. Griggs 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. Under the
substantial-compliance standard, we review the totality of circumstances surrounding Bond’s
plea and determine whether she subjectively understood that a guilty plea is a complete
admission of guilt. Id. “[F]ailure to comply with nonconstitutional rights [is harmless error,
and] will not invalidate a plea unless the defendant thereby suffered prejudice.” Jones, supra.
The test for prejudice is “whether the plea would have otherwise been made.” Id., citing State
v. Nero (1990), 56 Ohio St.3d 106, 108.
{¶ 27} Bond entered her guilty plea, in the presence of her counsel, through a desire to
seek a lesser penalty. In exchange for pleading guilty to one count of aggravated menacing,
the State dropped the count of telephone harassment. Following Bond’s plea, the trial court
ensured that she understood that she would not have a trial and the potential consequences of
entering her plea. Bond assured the trial court that she was not coerced and willingly desired
to enter this plea. Although Bond proceeded to justify her actions, she never maintained her
innocence by denying her participation in the alleged acts. Consequently, because Bond did
not assert her innocence at the colloquy, her guilty plea was not prejudicial. She is, therefore,
presumed to understand that a plea of guilty is a complete admission of guilt. Griggs, at ¶ 19.
We find that, under the totality of the circumstances, Bond was aware that a plea of guilty is a
complete admission of guilt and find that she was not prejudiced. We conclude that this issue
does not have arguable merit for appeal.
{¶ 28} Finally, pursuant to our responsibility under Anders, we have conducted a
complete review of the record, which fails to portray any potential meritorious issues for our
review. As a result, the trial court’s judgment is affirmed.
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DONOVAN and FROELICH, JJ., concur.
Copies mailed to:
Stephanie Cook
Thomas H. Hahn
Alexandria Bond
Hon. John S. Pickrel