State v. Pippen , 2020 Ohio 4297 ( 2020 )

[Cite as State v. Pippen, 2020-Ohio-4297.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109059
v. :
FLORZELL PIPPEN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 3, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638170-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kelly N. Mason, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant Florzell Pippen (“Pippen”) appeals his convictions
for attempted rape and gross sexual imposition. For the reasons that follow, we
affirm.
{¶ 2} In 2019, Pippen was charged with rape, two counts of gross sexual
imposition, and kidnapping. Pursuant to a plea agreement, he pleaded guilty to an
amended count of attempted rape, in violation of R.C. 2923.02 and
2907.02(A)(1)(b), and two counts of gross sexual imposition, in violation of R.C.
2907.05(A)(4). The kidnapping count was dismissed. The trial court sentenced
Pippen to 11 years in prison and classified him as a Tier III sex offender.
{¶ 3} Pippen raises the following assignment of error:
The trial court failed to substantially comply with Criminal Rule 11 by
not informing Mr. Pippen that he was not eligible for the imposition of
community control sanctions, as well as by wholly not addressing two
separate denials of factual guilt during the plea colloquy by a 61-year-
old diagnosed schizophrenic.
{¶ 4} In his single assignment of error, Pippen contends that the trial court
violated Crim.R. 11(C)(2)(a) because it did not advise him before accepting his plea
that he was subject to a mandatory term of imprisonment and not eligible for
community control sanctions.1
{¶ 5} Crim.R. 11(C)(2)(a) provides that a trial court shall not accept a guilty
plea in a felony case without first
[d]etermining 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
for probation or for the imposition of community control sanctions at
the sentencing hearing.
1The attempted rape conviction in this case carried with it a mandatory prison sentence
pursuant to R.C. 2929.13(F)(2).
{¶ 6} “Crim.R. 11(C)(2)(a) requires a trial court to determine that the
defendant has an awareness about the potential penalty before accepting a guilty
plea. It does not, however, require the court to make any specific articulation as to
the potential penalty.” State v. Homolak, 8th Dist. Cuyahoga No. 107040, 2019-
Ohio-869, ¶ 4 (comparing Crim.R. 11(C)(2)(a) with Crim.R. 11(C)(2)(b)-(c)), citing
State v. Davis, 8th Dist. Cuyahoga No. 76085, 2000 Ohio App. LEXIS 4044, 12
(Sept. 7, 2000) (“Although the judge must specifically determine whether a
defendant understands that [the defendant] is not eligible for probation, the rule
does not require [the judge] to personally inform a defendant of this fact in every
circumstance. Crim.R. 11(C)(2) distinguishes between things the judge must
determine from those of which [the judge] must inform a defendant regardless of
whether an independent understanding is shown.”).
{¶ 7} Thus, this court has held that a court need not specifically inform a
defendant that a particular conviction mandates prison or precludes a community
control sanction where the record clearly indicates that the defendant so
understood. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-
1796, ¶ 11 (“The mere fact that the [trial] court did not specifically say ‘You are
ineligible for probation’ or ‘This offense requires a mandatory term of prison’ will
not be fatal unless the record clearly indicates that the defendant was unaware that
[the defendant] would be sent to prison upon a plea of guilty and [the defendant]
was prejudiced by that fact.”); State v. McLaughlin, 8th Dist. Cuyahoga No. 83149,
2004-Ohio-2334, ¶ 19 (“[T]he trial court need not specifically inform the defendant
he [or she] is ‘ineligible for probation’ if the totality of the circumstances warrant the
trial court in making a determination the defendant understands the offense is
‘nonprobationable.’”).
{¶ 8} As is relevant to this case, when a defendant claims that the trial court
failed to explain a nonconstitutional right, the relevant inquiry is whether the court
substantially complied with the rule. 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 [the
defendant’s] plea and the rights [the defendant] is waiving.” State v. Nero, 56 Ohio
St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶ 9} At the plea colloquy in this case, the state indicated that it would amend
Count 1 from rape to attempted rape and nolle Count 4, kidnapping, in exchange for
Pippen’s guilty plea to attempted rape and two counts of gross sexual imposition.
The state explained, “Count 1, your Honor, he would be sentenced to 3 to 11 years in
prison, and that would be a mandatory sentence.” The trial court asked defense
counsel if that was his understanding and defense counsel responded, “It is, your
Honor.”
{¶ 10} Pippen contends that he did not understand his plea due to his mental
health condition. We are not persuaded. After informing the court that he
understood that Pippen was facing a mandatory sentence of 3 to 11 years in prison,
defense counsel stated that Pippen told him that “as of last week * * * he was given
his monthly injection of his psych [sic] medications. He’s feeling very clear this
morning. He understands the proceedings, and is prepared to address the Court to
the same.” Pippen told the court that he was taking his medicine as prescribed.
{¶ 11} The trial judge asked Pippen if he had had the chance to speak with his
lawyer regarding the plea and asked him if he understood the plea. Pippen answered
affirmatively. The judge then asked Pippen, “Is this what you would like to do
today?” and Pippen responded, “I’m pleading not guilty.” The court explained that
Pippen initially pleaded not guilty but was offered a plea by the state and again asked
him if he would like to plead guilty to Counts 1, 2, and 3. Pippen responded, “I ain’t
rape nobody.” The court asked Pippen, “Mr. Pippen, is this what you would like to
do today?” Pippen responded affirmatively.
{¶ 12} The trial court reviewed the constitutional rights Pippen would be
waiving by pleading guilty and confirmed Pippen’s understanding of those rights.
The court advised Pippen that the attempted rape count “can be punished by a
mandatory prison sentence ranging from 3 to 11 years,” the gross sexual imposition
counts “can be punished by 9 to 36 months in prison, and a fine up to $10,000,” and
that he would be classified as a Tier III sex offender. The court explained that Pippen
would be required to verify his address with in-person verification every 90 days for
his lifetime.
{¶ 13} The court told Pippen that it could run his prison sentences
concurrently or consecutively and “when you are finished serving your prison
sentence, the State of Ohio Adult Parole Authority will have a mandatory five-year
period of supervision under post release control.” (Emphasis added.)
{¶ 14} After explaining the possible penalties for violating postrelease
control, the judge asked Pippen if he understood all the information and that the
court did not promise a specific sentence. Pippen confirmed he understood.
{¶ 15} After confirming that both defense counsel and the prosecutor were
satisfied the court had complied with Crim.R. 11, the judge found that Pippen had
been informed of his constitutional rights, and that he understood the nature of the
charge, the effect of the plea, and the maximum penalties that could be imposed.
The court further found that Pippen was making a knowing, intelligent, and
voluntary plea.
{¶ 16} The court asked Pippen how he pled to attempted rape and Pippen
answered, “I ain’t rape nobody.” The court asked again, “Mr. Pippen, how would
you like to plead, guilty or not guilty?” Pippen responded, “Guilty.” The court
accepted his plea to one count of attempted rape and two counts of gross sexual
imposition and found him guilty of the same. The court advised Pippen to have no
contact with the victim and continued the case for sentencing.
{¶ 17} Pippen argues that the trial court never specifically advised him that
prison was mandatory because the court said his attempted rape count “can be
punished by a mandatory prison sentence ranging from 3 to 11 years.” (Emphasis
added.) We disagree.
{¶ 18} Recently, this court found that the trial court substantially complied
with Crim.R. 11(C)(2)(a) although the trial court never specifically advised the
defendant that prison was mandatory or that the defendant was ineligible for
community control sanctions because the record reflected that the defendant was
nevertheless subjectively aware that he faced mandatory prison time. State v. Gary,
8th Dist. Cuyahoga No. 109074, 2020-Ohio-4069. This court explained:
The trial court advised Gary that the offense to which he was pleading
guilty was punishable by three to 11 years in prison, and when the trial
court asked if it was “mandatory prison,” the prosecutor responded
affirmatively. Gary told the court that he understood both the offense
to which he was pleading guilty and the maximum penalty, and told the
judge he did not have any questions about the rape charge or the
associated penalties. The court advised Gary that he would be subject
to postrelease control “upon completion of your prison term,” and
when the court asked Gary after this advisement if he had any
questions, he told the court “no.” The record is abundantly clear that
Gary understood he would be sentenced to prison and was not eligible
for community control. Indeed, community control was never
discussed as a possible sentence, and due to the nature and severity of
his offense * * * Gary had no basis upon which to conclude that he
would not be sentenced to prison.
Id. at ¶ 15.
{¶ 19} Likewise, here, the trial court substantially complied with Crim.R.
11(C)(2)(a), even though the trial court used the qualifier “can” and did not
specifically state that Pippen was ineligible for community control sanctions.
Community control sanctions were never discussed as a possible sentence; Pippen,
who has a lengthy criminal record, was pleading guilty to attempted rape and gross
sexual imposition involving a ten-year-old relative. Similar to the defendant in
Gary, Pippen had no basis upon which to conclude that he would not be sentenced
to prison. Thus, the record reflects that Pippen was subjectively aware that he would
be sentenced to mandatory prison time.
{¶ 20} We also do not find error with the trial court’s handling of Pippen’s
mental health. Pippen was assigned to the mental health docket. Pippen underwent
a competency evaluation and was found to be competent to stand trial. Both parties
stipulated to the competency report and its findings at a May 2019 pretrial hearing.
At the plea hearing, defense counsel informed the court that Pippen was up to date
on his injectable psychiatric medications and Pippen told the court he was taking his
medications as prescribed. In addition, Pippen’s statements during his plea that he
did not rape anyone are not inconsistent to a plea to a charge of attempted rape.
{¶ 21} Based on the totality of the circumstances, we find that the trial court
substantially complied with Crim.R. 11(C)(2)(a).
{¶ 22} Our review of the record in this case indicates that Pippen subjectively
understood that he faced a mandatory prison sentence and was not eligible for
community control sanctions. Accordingly, we find that the trial court substantially
complied with Crim.R. 11(C)(2)(a) and overrule the assignment of error.
{¶ 23} Finally, we would like the trial courts to take note that as a measure to
avoid this and other similar appeals, the court should state clearly on the record that
the prison sentence is mandatory and the offense is nonprobationable. “While we
do not require it, the trial court might consider as a better practice * * * the use of
written plea agreements signed by the state and the defendant. Many other trial
courts find this practice useful.” Gary, 8th Dist. Cuyahoga No. 109074, 2020-Ohio-
4069, at ¶ 18, citing Homolak, 8th Dist. Cuyahoga No. 107040, 2019-Ohio-869, at ¶
15.
{¶ 24} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
FRANK D. CELEBREEZE, JR., J., CONCUR