State v. Montgomery ( 2014 )

[Cite as State v. Montgomery, 2014-Ohio-1789.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-13-11
v.
ROBERT M. MONTGOMERY, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 13-CR-24
Judgment Affirmed
Date of Decision: April 28, 2014
APPEARANCE:
Esteban R. Callejas for Appellant
Case No. 12-13-11
PRESTON, J.
{¶1} Defendant-appellant, Robert M. Montgomery, appeals the Putnam
County Court of Common Pleas’ judgment entry of sentence. We affirm.
{¶2} On May 13, 2013, the Putnam County Grand Jury indicted
Montgomery on Count One of illegal assembly or possession of chemicals for the
manufacture of drugs in violation of R.C. 2925.041(A), a third-degree felony;
Count Two of illegal manufacture of drugs in violation of R.C. 2925.04(A) &
(C)(3), a second-degree felony; and, Count Three of possession of drugs in
violation of R.C. 2925.11(A) & (C)(1)(a), a fifth-degree felony. (Doc. No. 1).
{¶3} On May 15, 2013, Montgomery entered pleas of not guilty to all three
counts in the indictment. (See Doc. Nos. 5, 8, 11).
{¶4} On August 28, 2013, the trial court held a change-of-plea hearing
wherein Montgomery withdrew his previously tendered plea of not guilty to Count
One and entered a plea of guilty, whereupon the State agreed to dismiss Counts
Two and Three of the indictment and to remain silent at sentencing. (Aug. 28,
2013 Tr. at 2). Montgomery signed a written plea agreement reflecting these
terms. (Doc. No. 29). The trial court accepted Montgomery’s plea, found him
guilty of Count One, and ordered a pre-sentence investigation (“PSI”) report.
(Aug. 28, 2013 Tr. at 8-9). The trial court dismissed Counts Two and Three of the
indictment. (See Nov. 19, 2013 Entry).
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{¶5} On October 3, 2013, the trial court sentenced Montgomery to 30
months imprisonment. (Oct. 3, 2013 Tr. at 6). On October 9, 2013, the trial court
filed its judgment entry of sentence. (Doc. No. 35).
{¶6} On October 16, 2013, Montgomery filed a notice of appeal. (Doc. No.
41). He raises three assignments of error on appeal. We elect to combine
Montgomery’s first and second assignments of error.
Assignment of Error No. I
The trial court erred when it accepted the guilty plea which was
against the manifest weight of the evidence and sufficiency of the
evidence.
Assignment of Error No. II
The trial court erred when it accepted the guilty plea as that plea
was not knowingly, intelligently, and voluntarily given.
{¶7} In his first assignment of error, Montgomery argues that, during the
Criminal Rule 11 colloquy, the State failed to present any evidence that the
criminal actions occurred in Ottawa, Putnam County, Ohio.
{¶8} In his second assignment of error, Montgomery argues that he did not
knowingly, intelligently, and voluntarily enter his guilty plea. Specifically,
Montgomery argues that the trial court failed to inform him of all of his rights
prior to accepting his plea. Montgomery also argues that the plea is invalid
because the State failed to allege and prove venue.
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{¶9} As an initial, procedural matter, we note that the State failed to file an
appellee’s brief. Under these circumstances, App.R. 18(C) provides that this
Court “may accept the appellant’s statement of the facts and issues as correct and
reverse the judgment if appellant’s brief reasonably appears to sustain such
action.” After reviewing the record, we conclude that appellant’s brief does not
reasonably appear to sustain a reversal.
{¶10} “‘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
that end, Crim.R. 11(C)(2), governing guilty pleas for felony-level offenses,
provides:
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:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
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for probation or for the imposition of community control sanctions at
the sentencing hearing.
(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.
(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.
{¶11} A trial court must strictly comply with Crim.R. 11(C)(2)(c) and
orally advise a defendant before accepting a felony plea that the plea waives the
defendant’s constitutional rights. Veney at ¶ 31. “When a trial court fails to
strictly comply with this duty, the defendant’s plea is invalid.” Id. A trial court,
however, is required to only substantially comply with the non-constitutional
notifications in Crim.R. 11(C)(2)(a) and (b). Id. at ¶ 14-17.
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{¶12} An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 20.
“Furthermore, a defendant who challenges his guilty plea on the basis that it was
not knowingly, intelligently, and voluntarily made must show a prejudicial effect.
* * * The test is whether the plea would have otherwise been made.” State v.
Nero, 56 Ohio St.3d 106, 108 (1990).
{¶13} Contrary to Montgomery’s arguments on appeal, the trial court
strictly complied with Crim.R. 11(C)(2)(c) at the change-of-plea hearing. (Aug.
28, 2013 Tr. at 5-6). Furthermore, the Crim.R. 11(C)(2)(c) notifications were also
contained within the written plea agreement that Montgomery read and signed in
open court. (Id. at 8); (Doc. No. 29). The trial court also substantially complied
with the Crim.R. 11(C)(2)(a) and (b) notifications. (Aug. 28, 2013 Tr. at 2-6).
During the colloquy, Montgomery indicated that he understood the nature of the
charges against him and the rights he was waiving by pleading guilty. (Id. at
passim). Consequently, we are not persuaded that the trial court erred by
accepting Montgomery’s guilty plea. Notably, Montgomery has also failed to
argue—much less establish—prejudice in this case, i.e. that he would not have
pled guilty but for the trial court’s alleged errors. Nero at 108.
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{¶14} Montgomery also argues that his guilty plea was invalid because the
State failed to indicate, at the change-of-plea hearing, that Putnam County, Ohio
was the proper venue. We summarily reject that argument. To begin,
Montgomery has waived this issue by failing to raise it below. State v. Wheat,
10th Dist. Franklin No. 05AP-30, 2005-Ohio-6958, ¶ 10, citing State v. Loucks, 28
Ohio App.2d 77, 78 (4th Dist.1971); Crim.R. 12(C)(2). Aside from that,
Montgomery admitted to venue when he pled guilty to Count One of the
indictment, which specifically alleged that the criminal act occurred in Putnam
County, Ohio. United States v. Broce, 488 U.S. 563, 569-570, 109 S.Ct. 757(1989) (A guilty plea admits to committing the crime charged, as described in the
indictment.). Proper venue was also provided in the bill of particulars. (Doc. No.
17). Quite simply, Montgomery’s guilty plea precludes the venue argument on
appeal. State v. McCartney, 55 Ohio App.3d 170 (9th Dist.1988), syllabus.
{¶15} For the aforementioned reasons, we overrule Montgomery’s first and
second assignments of error.
Assignment of Error No. III
The trial court erred when it failed to allow Appellant to exercise
his right to make a statement before sentencing.
{¶16} In his third assignment of error, Montgomery argues that the trial
court erred by failing to permit him to make a statement before sentencing
requiring a resentencing.
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{¶17} Crim.R. 32(A)(1) provides that “[a]t the time of imposing sentence,
the court shall * * * address the defendant personally and ask if he or she wishes
to make a statement in his or her own behalf or present any information in
mitigation of punishment.” When a trial court imposes sentence “without first
asking the defendant whether he or she wishes to exercise the right of allocution
created by Crim.R. 32(A), resentencing is required unless the error is invited error
or harmless error.” State v. Campbell, 90 Ohio St.3d 320 (2000), paragraph three
of the syllabus. See also State v. Reynolds, 80 Ohio St.3d 670, 684 (1998).
{¶18} In this case, the trial court asked Montgomery if he wanted to make a
statement, and Montgomery testified, “No, sir.” (Oct. 3, 2013 Tr. at 4).
Consequently, the trial court did not violate Montgomery’s right of allocution in
this case, despite his allegation on appeal.
{¶19} Montgomery’s third assignment of error is, therefore, overruled.
{¶20} 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
ROGERS and SHAW, J.J., concur.
/jlr
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