State v. Carey , 2011 Ohio 1998 ( 2011 )

[Cite as State v. Carey, 2011-Ohio-1998.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-10-25
v.
SHONTA CAREY, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 09-CR-0087
Judgment Affirmed
Date of Decision: April 25, 2011
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Shonta R. Carey (“Carey”), appeals the
judgment of the Union County Court of Common Pleas finding her guilty and
sentencing her to prison after Carey entered a plea of guilty to fifty-four counts of
various theft-related offenses. On appeal, Carey contends that the trial court erred
in accepting her guilty plea and that it should have conducted a heightened Alford
inquiry because she had maintained her innocence. For the reasons set forth
below, the judgment is affirmed.
{¶2} On June 18, 2009, the Union County1 Grand Jury indicted Carey on
seventy-two counts of theft-related offenses that occurred in the latter part of
2008. Carey entered a plea of “not guilty” and the matter was set for trial for July
20, 2010. Eighteen counts were dismissed prior to the trial date, leaving fifty-four
counts remaining in the indictment consisting of: twenty-five counts of theft,
sixteen counts of receiving stolen property, one count of grand theft, one count of
petty theft, eight counts of identity fraud, two counts of forgery, and one count of
engaging in a pattern of corrupt activity (“RICO charge”).2 Carey, along with two
accomplices, was apprehended after stealing purses, jewelry, credit cards,
checkbooks, car keys and other valuables, and then making purchases utilizing the
victims’ credit cards and checks. Over a period of time, the three women would
1
The offenses occurred in Union, Franklin, Hamilton, Champaign, Butler, Licking, Muskingham,
Pickaway, and Montgomery counties, but they were all indicted and set for trial in Union County.
2
On the morning of Carey’s plea, pursuant to the agreement, four counts in the indictment were further
amended, reducing two of the counts from felonies of the fourth degree to felonies of the fifth degree, and
changing two of the counts from theft of an elderly person to simply theft.
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go into women’s locker rooms at various YMCAs and fitness facilities and take
the women’s purses from their lockers. Or, they would take their car keys, find
the vehicle in the parking lot, and then take purses and other valuables that had
been left locked in the car. Carey’s two accomplices had previously entered guilty
pleas pursuant to negotiated plea agreements. On the day of the trial, the
attorneys gave opening statements to all of the potential jurors; they conducted
voir dire; and a jury panel was selected. At shortly before 2:00 p.m., just as the
trial was ready to begin, Carey informed the trial court that she wished to change
her plea.3 The trial court was presented with a third amended sentencing
recommendation that was signed by all the parties. The “Entry Withdrawing Plea
of Not Guilty, Entering Plea of Guilty and Referral for Presentence Investigation”
was thirty pages long and contained a sentencing recommendation of ten years.
{¶3} Carey was then sworn in and the trial court conducted a full and
detailed Crim.R. 11 plea colloquy. The trial court informed Carey that she could
potentially be facing a maximum sentence of over sixty-four years in prison and a
maximum fine of $172,000. The trial court repeatedly asked Carey if she wanted
to enter a guilty plea to all of the charges and reminded her that she had a right to
have a jury trial and that everyone was ready to proceed with the trial if that was
her choice. The State also gave a statement of facts giving the details of each of
the fifty-four counts in the indictment. The trial court then accepted Carey’s guilty
3
The record shows that Carey had indicated early in the morning that she might want to change her plea.
The trial court elected to proceed with selecting the jury first. After the jury was selected, although not
sworn and seated, the court was informed that Carey was ready to enter a guilty plea.
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pleas, found her guilty of all of the charges, ordered a presentence investigation,
and set the sentencing hearing for August 20, 2010.
{¶4} At the sentencing hearing, the trial court followed the
recommendations pursuant to the plea agreement and sentenced Carey to a total of
ten years in prison. She was also ordered to pay costs and was jointly and
severally responsible for paying $32,604.31 in restitution to the victims. The trial
court noted that she could be eligible for judicial release. It is from this judgment
that Carey now appeals, raising the following two assignments of error.
First Assignment of Error
The trial court erred when it accepted [Carey’s] guilty plea
when [Carey] told the court she was not guilty, in effect,
rendering her plea not knowing, intelligent or voluntary.
Second Assignment of Error
The trial court erred when it failed to perform a proper Alford
inquiry after the court was informed by [Carey] that she was
pleading guilty even though she did not commit the crime,
thereby rendering her plea not knowing, intelligent or voluntary.
{¶5} In her first assignment of error, Carey maintains that the trial court
erred when it accepted her guilty plea after she told the court “I’m going to plead
to it, but I didn’t – I didn’t commit those acts. But I’m going to plea. Yes. I
admit.” (Tr. 7/20/10, pp. 116-17.) Carey now asserts that her “protestations of
innocence” meant that her plea was actually an “Alford plea.” Therefore, Carey
contends that the trial court erred when it accepted her plea without conducting an
enhanced inquiry in order to determine that her plea was voluntarily and
intelligently made.
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{¶6} An “Alford plea” is a specialized type of guilty plea when the
defendant, although pleading guilty, continues to deny his or her guilt but enters
the guilty plea because the defendant believes that the offered sentence is better
than what the outcome of a trial is likely to be. State v. Schmidt, 3d Dist. No. 10-
10-04, 2010-Ohio-4809, ¶13. See, also, State v. Piacella (1971), 27 Ohio St.2d
92, 271 N.E.2d 852. The term “Alford plea” originated with the United States
Supreme Court's decision in North Carolina v. Alford (1971), 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162, wherein the Supreme Court held that guilty pleas
linked with claims of innocence may be accepted provided the “defendant
intelligently concludes that his interests require entry of a guilty plea and the
record before the judge contains strong evidence of actual guilt.” Id., 400 U.S. at
37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. Although an Alford plea allows a
defendant to maintain his factual innocence, the plea has the same legal effect as a
guilty plea. State v. Vogelsong, 3d Dist. No. 5-06-60, 2007-Ohio-4935, ¶15.
{¶7} All pleas, including an Alford plea, must meet the general requirement
that the defendant knowingly, voluntarily, and intelligently waived his or her right
to trial. See, e.g., State v. Padgett (1990), 67 Ohio App.3d 332, 337-38, 586
N.E.2d 1194, construing Crim.R. 11(C). Because pleas accompanied by
protestations of innocence give rise to an inherent suspicion that a knowing,
voluntary, and intelligent waiver may not have occurred, an Alford plea places a
heightened duty upon the trial court to ensure that the defendant's rights are
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protected and that entering the plea is a rational decision on the part of the
defendant. Id.{¶8} Although Carey now claims that she entered an “Alford plea,” the
record does not support that assertion. Carey made one, tenuous denial as to her
participation in the events but, thereafter, she fully acknowledged her guilt.
Neither Carey nor her attorney ever represented her plea to be an Alford plea – not
during the plea negotiations, not at the change of plea hearing, nor in her lengthy
written plea agreement. See State v. Pate¸ 3d Dist. No. 5-96-12, 1996 WL 689196(finding that the requirements of an Alford plea were not met; “there was never
any oral or written notice that such a plea was being attempted.”) The State was
never informed that Carey was intending to enter an Alford plea, nor did it agree to
condition the plea bargain upon such a qualified plea. Furthermore, Carey signed
and initialed a detailed, thirty-page plea document acknowledging that she
understood all of the charges to which she was pleading guilty; that she was
satisfied with her lawyer’s advice and counsel; and that “I understand that my plea
of guilty is a complete admission of my guilt to the charges ***.” Carey’s one
comment, wherein she failed to take full responsibility for her participation in the
offenses, was not sufficient to characterize her plea as an Alford plea.
{¶9} Furthermore, after Carey’s single denial of guilt, she immediately
retracted that claim, reversed her position, and acknowledged her guilt throughout
the rest of the proceedings, and thereafter at her sentencing hearing. “Where the
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defendant interjects protestations of innocence into the plea proceedings, and fails
to recant those protestations of innocence, the trial court must determine that the
defendant has made a rational calculation to plead guilty notwithstanding his
belief that he is innocent.” (Emphasis added.) State v. Padgett, 67 Ohio App.3d at
338-339, 586 N.E.2d at 1198. However, in this case, Carey did “recant” her denial
of guilt and completely pled guilty to everything thereafter.
Carey: *** Yes. I admit.
The Court: You admit that you –
Carey: Yeah.
The Court: You understand that you have a right to a jury trial
if you want to go forward.
Carey: No, I’m here.
The Court: So once again, do you admit that you committed the
acts as alleged in the statement of facts?
Carey: Yes.
(Tr., p. 117.) Carey’s statements did not contain any qualification wherein she
stated that she did not commit the acts, but was going to plead guilty anyway.
Carey unequivocally admitted to committing the offenses.
{¶10} The trial court then posed ten more questions to Carey, asking her
specifically “how do you plead?” as to each group of like-counts in the indictment
(and specifically enumerating the number of each count, the revised code number,
and the degree of the felony or misdemeanor). Carey responded, “Guilty,” ten
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times. The trial court then asked, “Do you understand that what you’ve just done
is you’ve plead guilty to 24 fifth degree felony theft offenses, do you understand
that?” The trial court repeated the question for each of the ten groups of offenses,
and Carey answered in the affirmative ten separate times. Following this, the trial
court asked:
The Court: Do you wish to stand on your plea of guilty to all of
these offenses?
Carey: Yes.
(Tr. at p. 121.) The trial court then summarized her plea to all of the counts,
accepted her plea of guilty, and found her guilty of all of the offenses.
{¶11} Furthermore, at the sentencing hearing, when Carey began to
equivocate as to her complicity in all the offenses,4 the trial court immediately
inquired, “You did the ones you plead guilty to, right?” Carey again
acknowledged that she did. (Sentencing Hearing Tr., p. 6.)
{¶12} Finally, the record demonstrates that the trial court was not willing to
accept Carey’s change of plea if Carey had maintained her innocence. A criminal
defendant does not have an absolute right under the United States Constitution to
have his or her guilty plea accepted by the court. North Carolina v. Alford, 400
U.S. at 38, 91 S.Ct. 160, 27 L.Ed.2d 162, n. 11. “In Alford, the court did not
4
It would appear that she wanted the court be aware that she was not guilty of all of the approximately
eighty counts that her two accomplices pled guilty to; she only acknowledged participation in the
approximately fifty counts in her indictment. (Apparently Carey was in custody on another matter during
the time when some of the other offenses were committed.) Carey wanted the court to take into
consideration that her accomplices were sentenced to six years in prison for more counts, while her plea
agreement called for ten years in prison for fewer counts.
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determine that adult offenders have a constitutional right to enter a guilty plea and
simultaneously maintain innocence; rather the opinion merely states that courts
may, in certain circumstances, accept guilty pleas of defendants who maintain
their innocence.” (Emphasis sic.) In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-
970, 804 N.E.2d 476, ¶13. The holding in Alford “does not mean that a trial judge
must accept every constitutionally valid guilty plea merely because a defendant
wishes so to plead.” Id. at ¶17, quoting Alford, 400 U.S. at 38, 91 S.Ct. 160, 27
L.Ed.2d 162, n. 11.
{¶13} The trial court was more than willing to go forward with the trial if
Carey had wished to maintain that she was innocent. Immediately after Carey
denied committing the acts, the trial court informed her that, “You understand that
you have a right to a jury trial if you want to go forward.” (Tr. at p. 117.) The
jury had been selected, the witnesses were waiting, and the attorneys were
prepared to go forward. Carey responded, “No, I’m here.” (Id.)
{¶14} The dialogue between the trial court and Carey indicated the trial
court was committed to ensuring that Carey’s rights were protected, that she
understood what all of her options were, and that her decision to change her plea
was made knowingly, intelligently, and voluntarily. After accepting Carey’s
change of plea, the trial court called the jury back into the courtroom and told
them what had occurred. The trial court further explained to the jury that:
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it’s the court’s obligation then to make sure that when the
defendant enters a plea of guilty, that she knows what she’s
doing and what she’s entering a plea of guilty to. ***
And certainly we don’t want anybody ever pleading guilty to an
offense that they feel that they’re not guilty of. And so everybody
has a right to, under our system of justice, to a jury trial.
(Emphasis added.) (Tr., pp. 124, 128.)
{¶15} If Carey truly wished to maintain her claim of innocence, she was
clearly and repeatedly informed that she would then have the right to go to trial.
Based on the above, Carey’s plea was not an Alford plea. Carey’s first assignment
of error is overruled.
{¶16} In her second assignment of error, Carey alleges that the trial court
erred by not conducting an “Alford inquiry” once Carey had supposedly asserted
her innocence. Carey maintains that the trial court did not comply with the
requirements set forth in Piacella, supra, or any of the other aspects of a
heightened Alford inquiry. See, e.g., Padgett, 67 Ohio App.3d at 337-38; Schmidt,
2010-Ohio-4809, at ¶15.
{¶17} Based upon our finding in the first assignment of error, that Carey’s
guilty plea was not an Alford plea, this assignment of error is moot. Given that
there was no notice of any intention to enter an Alford plea trial, coupled with
Carey’s repeated, unqualified admissions that she had done the acts along with her
pleas of “guilty,” the trial court was not obligated to conduct any kind of an Alford
inquiry.
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{¶18} For all of the above reasons, Carey’s second assignment of error is
also overruled. Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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