State v. Stoddard , 2013 Ohio 4896 ( 2013 )

[Cite as State v. Stoddard, 2013-Ohio-4896.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26663
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS A. STODDARD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 12 3438
DECISION AND JOURNAL ENTRY
Dated: November 6, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Thomas Stoddard, appeals from his conviction in the
Summit County Court of Common Pleas. This Court affirms.
I
{¶2} Stoddard’s 14-year-old grandniece told a friend that she was having sexual
relations with Stoddard. The friend told her parents, who, in turn, notified the police. After an
investigation Stoddard was indicted on: (1) one count of rape, in violation of R.C.
2907.02(A)(2), a felony of the first degree; (2) one count of unlawful sexual conduct with a
minor, in violation of R.C. 2907.04, a felony of the third degree; and (3) one count of gross
sexual imposition, in violation of R.C. 2907.05(A)(1), a felony of the fourth degree.
{¶3} After negotiations with the State, Stoddard pleaded guilty to unlawful sexual
conduct with a minor, and the State dismissed the remaining charges. The trial court accepted
Stoddard’s guilty plea and, on April 25, 2012, sentenced him to 54 months in prison. In October
2
2012, Stoddard filed a pro se motion for a delayed appeal. This Court granted his motion and
appointed him appellate counsel. Stoddard’s appellate counsel now raises two assignments of
error for our review.
II
Assignment of Error Number One
APPELLANT STODDARD’S GUILTY PLEA MUST BE VACATED
BECAUSE HE DID NOT ENTER HIS PLEA KNOWINGLY, VOLUNTARILY,
OR INTELLIGENTLY.
{¶4} In his first assignment of error, Stoddard argues that his plea was not knowingly,
voluntarily, or intelligently made. Specifically, he argues that the trial court erred when it did
not “determine whether he understood that probation or community control might not be
appropriate” and when it did not “determine whether [he] understood the effect of his [guilty]
plea.”
{¶5} “When a defendant enters a plea in a criminal case, the plea must be made
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.”
State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St. 3d
525, 527 (1996). To determine whether a plea is being made knowingly, intelligently, and
voluntarily, the court must conduct a colloquy with the defendant before accepting a guilty plea
in a felony case. See State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, ¶ 26. See also
Crim.R. 11(C)(2).
{¶6} In the colloquy, the court is required to notify the defendant of various
constitutional rights he or she is waiving by pleading guilty. See Crim.R. 11(C)(2)(c). These
rights include: the right to a jury trial, to confront witnesses against him or her, to compel
3
witnesses to testify on his or her behalf, to have the State prove the defendant’s guilt beyond a
reasonable doubt, and the privilege against self-incrimination. Id. The court must strictly
comply with Crim.R. 11(C)(2)(c) when it notifies the defendant of his or her constitutional
rights. Veney at syllabus. Stoddard concedes in his brief that the trial court properly informed
him of his constitutional rights during the change of plea hearing.
{¶7} However, in addition to providing notice of particular constitutional rights,
Crim.R. 11(C)(2)(a) and (b) require the court to give other non-constitutional notifications.
These notifications include informing the defendant if he or she is not eligible for probation or
community control sanctions and “determining that the defendant understands the effect of the
plea of guilty.” Crim.R. 11(C)(2)(a) and (b). The court must substantially comply with these
non-constitutional notifications. Clark at ¶ 31. “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. Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-2613, ¶ 6,
quoting State v. Nero, 56 Ohio St. 3d 106, 108 (1990).
{¶8} Stoddard first argues that the court erred in not determining “whether he
understood that probation or community control might not be appropriate.” However, Crim.R.
11(C)(2)(a) does not turn on whether probation or community control is appropriate or not. The
rule only requires the court to inform the defendant when he or she is not eligible for probation
or community control. See State v. Prieshoff, 1st Dist. Hamilton No. C-850683, 1986 WL 4792,
*2 (“[T]rial court had no duty under Crim.R. 11(C) to apprise the appellant that he would be
ineligible for probation in the matter sub judice for the reason that appellant remained eligible for
probation until the court imposed a specific sentence of actual incarceration.”). In his brief,
Stoddard concedes that there is no mandatory sentence for unlawful sexual conduct with a minor.
4
Because Stoddard was eligible for probation or community control sanctions, the court did not
err in failing to notify Stoddard at his plea hearing that he was not eligible for probation or
community control.
{¶9} Stoddard also argues that the trial court erred in not determining “whether [he]
understood the effect of his [guilty] plea.” Specifically, Stoddard argues that he did not
understand that by pleading guilty he was admitting to the offense and could not challenge the
finding of guilt on appeal. As support for his argument, Stoddard cites his “intellectual
difficulties,” which were mentioned in the psychosexual report, and the fact that he filed a pro se
appeal attempting to challenge his conviction.
{¶10} In reviewing the psychosexual evaluation, we cannot conclude that Stoddard is
intellectually impaired to the point where he could not understand the effect of his guilty plea.
Dr. James Orlando found that Stoddard “was resistant, evasive, and required significant
encouragement and redirection to complete the evaluation.” While there was evidence of
memory impairment, Dr. Orlando could not tell if this was “solely due to his reluctance to
discuss his history and the instant offense.” There is no evidence in the presentence investigation
report (“PSI”), the psychosexual report, or in the record anywhere, for that matter, that suggests
Stoddard was unable to understand the effect of his guilty plea.
{¶11} At the plea hearing, the court asked Stoddard if he understood that by pleading
guilty “there w[ould] be no further proceedings in [his] case, and [he] would be giving up any
appeal rights that could arise from a trial.” Stoddard replied that he understood. He also
acknowledged that he understood the evidence against him and had discussed the facts of his
case with his attorney. Stoddard admitted that he had discussed his decision to plead guilty with
5
his sons and understood that by pleading guilty he was relieving the State of its obligation to
prove his guilt beyond a reasonable doubt.
{¶12} After reviewing the record, we conclude that Stoddard’s guilty plea was
knowingly, intelligently, and voluntarily made. Stoddard’s first assignment of error is overruled.
Assignment of Error Number Two
APPELLANT STODDARD’S SENTENCE MUST BE VACATED, AS THE
TRIAL COURT DID NOT CONSIDER FACTORS THAT WOULD HAVE
MITIGATED STODDARD’S SENTENCE, AND THEREBY ABUSED ITS
DISCRETION.
{¶13} In his second assignment of error, Stoddard argues that the trial court abused its
discretion in sentencing him to 54 months in prison. We disagree.
{¶14} When reviewing a trial court’s sentence, we apply a two-step approach. State v.
Roper, 9th Dist. Summit Nos. 26631 & 26632, 2013-Ohio-2176, ¶ 5. “The first step is to
determine whether the sentence is contrary to law. The second step is to determine whether the
court exercised proper discretion in imposing a term of imprisonment.” (Internal citation
omitted.) State v. Smith, 9th Dist. Medina No. 11CA00115-M, 2012-Ohio-2558, ¶ 3, citing State
v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, ¶ 26.
{¶15} Stoddard makes no argument that his sentence is contrary to law. Instead, he
limits his argument to the assertion that the court abused its discretion in “[i]mposing a near-
maximum sentence.” We, therefore, limit our review accordingly.
{¶16} When imposing a felony sentence, the court “shall be guided by the overriding
purposes of felony sentencing.” R.C. 2929.11(A). “The overriding purposes of felony
sentencing are to protect the public from future crime by the offender and others and to punish
the offender using the minimum sanctions that the court determines accomplish those purposes
without imposing an unnecessary burden on state or local government resources.” Id. Further,
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the sentence shall be “commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim.” R.C. 2929.11(B). R.C. 2929.12 sets forth factors for
the court to consider when determining the seriousness of the offense and the likelihood of
recidivism.
{¶17} Stoddard argues that the court failed to consider that (1) he did not inflict physical
harm on the minor “separate from the sexual conduct,” (2) he did not flee the jurisdiction despite
having the opportunity, (3) he had a history of alcohol and drug abuse, and (4) his “intellectual
functioning has never been on par with his peers.”
{¶18} Stoddard was accused of having sexual intercourse with his 14-year-old
grandniece several times over a period of a few months. At sentencing, the court said that it had
considered the PSI, the psychosexual report, the age of the victim, and Stoddard’s “total lack of
remorse.” In the psychosexual report, it was noted that Stoddard had an extensive history of
drug and alcohol abuse, but Stoddard denied having any substance abuse problems. The report
concluded that Stoddard “is irresponsible, deceitful and self[-]centered.” He repeatedly denied
responsibility. Stoddard accused his family of convincing the victim to lie “to get back at
[him].”
{¶19} The PSI similarly concluded that Stoddard had shown “absolutely no remorse and
failed to take any responsibility for any of his actions.” Stoddard repeatedly told the officer
during the PSI interview that the sexual conduct was consensual and that it was his grandniece’s
idea to have sex, not his. In addition to his utter lack of remorse, the PSI details Stoddard’s
criminal history. His earliest conviction was in 1980 for involuntary manslaughter. Since then
he has had at least three convictions for operating a motor vehicle while under the influence, a
7
conviction for possession of cocaine, several convictions for disorderly conduct, and a conviction
for failing to comply with a police order.
{¶20} When asked at sentencing if he had anything he would like to say, Stoddard told
the court, “I take full responsibility for anything that I have done.” The court then asked him
why he had not said that before. Stoddard responded, “I don’t know.” The court found that
Stoddard did not, in fact, accept responsibility.
{¶21} After a review of the record, we cannot conclude that the court abused its
discretion in sentencing Stoddard to 54 months in prison for his unlawful sexual conduct with his
14-year-old grandniece. Stoddard’s second assignment of error is overruled.
III
{¶22} Stoddard’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
8
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.