State v. Pettaway , 2014 Ohio 3513 ( 2014 )

[Cite as State v. Pettaway, 2014-Ohio-3513.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-13-1093
Appellee Trial Court No. CR0201202722
v.
Cameo Pettaway DECISION AND JUDGMENT
Appellant Decided: August 15, 2014
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Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Jeffrey P. Nunnari, for appellant.
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YARBROUGH, P.J.
I. Introduction
{¶ 1} This is an Anders appeal. Appellant, Cameo Pettaway, appeals the judgment
of the Lucas County Court of Common Pleas, imposing a six-year prison sentence
following appellant’s plea of no contest to one count of felonious assault. For the
following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} Appellant was indicted on one count of felonious assault in violation of R.C.
2903.11(A)(1), a felony of the second degree. Appellant entered an initial plea of not
guilty. On March 12, 2013, appellant withdrew his plea of not guilty and entered a plea
of no contest to the charge. At the change of plea hearing, the trial court conducted a
Crim.R. 11 colloquy, accepted appellant’s plea, and found him guilty. Appellant was
sentenced on April 22, 2013, to six years in prison. This appeal followed.
B. Anders Requirements
{¶ 3} Appointed counsel has filed a brief and requested leave to withdraw as
counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Under Anders, if, after a conscientious examination of the case, counsel
concludes the appeal to be wholly frivolous, he or she should so advise the court and
request permission to withdraw. Id. at 744. This request must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. In addition,
counsel must provide the appellant with a copy of the brief and request to withdraw, and
allow the appellant sufficient time to raise any additional matters. Id. Once these
requirements are satisfied, the appellate court is required to conduct an independent
examination of the proceedings below to determine if the appeal is indeed frivolous. Id.If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the
appeal without violating any constitutional requirements. Id.
2.
C. Proposed Assignment of Error
{¶ 4} In his brief, counsel proposes one potential assignment of error:
1) Whether the trial court substantially complied with Crim.R. 11 at
the time of the taking of appellant’s plea of no contest?
{¶ 5} Appellant has not filed a pro se brief.
II. Analysis
{¶ 6} In the assignment of error, counsel proposes that the trial court failed to
inform appellant of the effect of entering a no contest plea as required by Crim.R.
11(C)(2)(b), and failed to inform him of the maximum financial sanction that could be
imposed as required by Crim.R. 11(C)(2)(a). As to the latter argument, we find it to be
without merit because the transcript from the change of plea hearing clearly indicates that
appellant was informed of the maximum fine:
[THE COURT]: Felony of the 2nd degree carries a basic prison
term, that starts off at two years and goes up in yearly increments of 2, 3, 4,
5, 6, 7, maximum penalty of 8 years with a maximum possible fine of
$15,000 knowing those maximum penalties, sir, do you still wish to enter
your plea? (Emphasis added.)
[APPELLANT]: Yes.
{¶ 7} Turning to the former argument, to satisfy Crim.R. 11(C)(2)(b)’s
requirement to inform the defendant of, and determine that the defendant understands the
effect of the plea of guilty or no contest, “a trial court must inform the defendant of the
3.
appropriate language under Crim.R. 11(B).” State v. Jones, 116 Ohio St.3d 211, 2007-
Ohio-6093, 877 N.E.2d 677, ¶ 25. Crim.R. 11(B)(2) describes the effect of a no contest
plea as “The plea of no contest is not an admission of defendant’s guilt, but is an
admission of the truth of the facts alleged in the indictment, information, or complaint,
and the plea or admission shall not be used against the defendant in any subsequent civil
or criminal proceeding.” Notably, this information may be provided either orally or in
writing. Jones at ¶ 51. Furthermore, because the right to be informed of the effect of the
plea is a nonconstitutional right, the trial court must only substantially comply with
Crim.R. 11(B)(2). State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
¶ 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. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶ 8} Here, the plea form signed by appellant states, “By pleading no contest, I
understand the Court will decide my guilt on the offenses to which I have pled based
upon the facts as set forth in the indictment and upon the statement by the prosecutor
about the evidence which would have been presented at trial.” Similarly, the trial court
informed appellant, “In all likelihood I’ll by [sic] basing my finding of guilt based solely
on the statements made by the prosecutor as to the evidence he would have presented at
trial and the facts that were alleged in the indictment.” Based upon these statements, we
conclude that appellant understood that his plea was not an admission of guilt, but that it
was an admission of the truth of the facts alleged in the indictment. However, the
4.
information provided to appellant in no way informed him that the plea shall not be used
against him in any subsequent civil or criminal proceeding. Thus, we hold that the trial
court did not substantially comply with its requirement to inform appellant of the effect
of his plea under Crim.R. 11(C)(2)(b).
{¶ 9} Nevertheless, because the trial court partially complied with the rule, “the
plea may be vacated only if the defendant demonstrates a prejudicial effect.” Clark at
¶ 32. The test for prejudicial effect is “whether the plea would have otherwise been
made.” Nero at 108. The state argues that the only omitted information—that the plea
could not be used in subsequent proceedings—is favorable to appellant, and thus
appellant cannot demonstrate that he would not have made the plea had he known this
information. We agree. We further note that nothing exists in the record to support a
determination that appellant would not have entered his plea had he been completely
informed. Therefore, we hold that appellant has not demonstrated a prejudicial effect,
and is not entitled to have his plea vacated.
{¶ 10} Accordingly, the proposed assignment of error is not-well taken.
III. Conclusion
{¶ 11} This court, as required under Anders, has undertaken our own examination
of the record to determine whether any issue of arguable merit is presented for appeal.
We have found none. Accordingly, we grant the motion of appellant’s counsel to
withdraw.
5.
{¶ 12} The judgment of the Lucas County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The clerk is
ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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