State v. Dailey , 2024 Ohio 3166 ( 2024 )

[Cite as State v. Dailey, 2024-Ohio-3166.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230687
TRIAL NO. B-2202912
Plaintiff-Appellee, :
vs. :
O P I N I O N.
PATRICK DAILEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Appeal Dismissed in Part
Date of Judgment Entry on Appeal: August 21, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Laursen, Colliver, Mellott LLC and Erik W. Laursen, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Following guilty pleas, Patrick Dailey was convicted of attempted
robbery and abduction. The plea agreement included an agreed aggregate sentence of
66 months. Dailey now appeals, and in three assignments of error, he argues that the
trial court failed to advise him of his right to confront witnesses against him and
inadequately informed him of postrelease control prior to accepting his pleas,
rendering the pleas involuntary, and that his written plea form was altered after he
executed it. For the following reasons, we affirm the judgment of the trial court.
Plea Colloquy
{¶2} In his first assignment of error, Dailey contends that the trial court
failed to comply with Crim.R. 11 when it did not advise him that he was waiving his
right to confront the witnesses against him, rendering his pleas constitutionally infirm.
During the plea colloquy, the trial court explained to Dailey that by entering guilty
pleas, he would “give up your right to see all of the witnesses against you and have your
attorney cross-examine them.” Daily argues that this explanation was insufficient
because the court failed to explain that Dailey had the right to confront the witnesses
against him.
{¶3} When reviewing a trial court’s acceptance of a guilty plea, the ultimate
inquiry is whether the defendant’s plea was entered in a knowing, intelligent, and
voluntary manner. State v. Veney, 2008-Ohio-5200, ¶ 7, citing State v. Engle, 74 Ohio
St.3d 525 (1996). When an appellate court reviews a trial court’s acceptance of a guilty
plea, it must independently review the record to ensure that the trial court followed
the dictates of Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128 (1991).
{¶4} A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
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OHIO FIRST DISTRICT COURT OF APPEALS
advise a defendant before accepting a felony plea that the plea waives certain
constitutional rights. See Crim.R. 11(C)(2); Veney at the syllabus. In relevant part,
Crim.R. 11(C)(2)(c) provides that the court shall, prior to accepting a guilty plea,
inform the defendant and determine that the defendant understands that by pleading
guilty, the defendant is waiving the right “to confront witnesses against him or her.”
A trial court’s failure to notify a defendant of the constitutional rights listed in Crim.R.
11(C)(2)(c) constitutes plain error. See Veney at ¶ 24.
{¶5} A trial court is not required to recite the exact language contained in
Crim.R. 11(C)(2). State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph two of the
syllabus. The court need “not provide a word-for-word recitation of the criminal rule,
so long as the trial court actually explains the rights to the defendant.” Veney at ¶ 27.
A plea will not be vacated if the record shows that the trial court’s explanation of the
constitutional rights being waived by entering a guilty plea was done “in a manner
reasonably intelligible to that defendant.” Ballard at paragraph two of the syllabus.
Put differently, “the record must provide a sufficient basis for the conclusion ‘that
defendant was meaningfully informed of the specific rights enumerated in [Crim.R.
11(C)(2)(c)].’ . . . The defendant does not have to be advised in the exact language of
the constitution to be meaningfully informed.” (Citations omitted). Id. at 480.
{¶6} Here, with respect to the right to confront the witnesses against him, the
court explained, “You also give up your right to see all of the witnesses against you and
have your attorney cross-examine them. Do you understand that?” In response,
Dailey nodded affirmatively. According to Dailey, the explanation was deficient
because the court used the word “see” instead of “confront.” However, the focus is on
whether the record shows that the explanation was done “in a manner reasonably
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OHIO FIRST DISTRICT COURT OF APPEALS
intelligible to that defendant.” Id. at 480. The court’s explanation that the guilty pleas
would waive the right to “see” and “cross-examine” the witnesses was a reasonably
intelligible description that adequately informed Dailey of his right to confront the
witnesses against him. See State v. Anderson, 108 Ohio App.3d 5 (9th Dist. 1995)
(holding that defendant’s right to confront witnesses was adequately explained by the
statement “You are giving up your right . . . to cross-examine witnesses.”); State v.
McNeal, 2001 Ohio App. LEXIS 1596, *3 (8th Dist. April 5, 2001) (holding the
statement that “you’re giving up your right to cross-examine, through your lawyers,
the witnesses for the prosecution” was sufficient to advise defendant of his right to
confront witnesses).
{¶7} We overrule the first assignment of error.
Postrelease Control
{¶8} Next, Dailey contends that his pleas were not knowingly, voluntarily and
intelligently entered because the trial court inadequately explained the impact of the
guilty pleas in regard to postrelease control.
{¶9} Prior to accepting a plea, the trial court must inform the defendant of
certain nonconstitutional rights, such as the maximum penalty, which includes an
advisement on postrelease control. See Crim.R. 11(C)(2)(a); State v. Sarkozy, 2008-
Ohio-509, ¶ 22 (explaining postrelease control is a nonconstitutional advisement).
When explaining the rule’s nonconstitutional provisions, the trial court need only
substantially comply with Crim.R. 11. Veney, 2008-Ohio-5200, at ¶ 14. “But when a
trial court fails to fully cover other ‘nonconstitutional’ aspects of the plea colloquy, a
defendant must affirmatively show prejudice to invalidate a plea.” State v. Dangler,
2020-Ohio-2765, ¶ 14, citing Veney at ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Here, the trial court informed Dailey that upon his release from prison,
he would be subject to postrelease control “for up to one to three years.” The court
clarified that Dailey would be on postrelease control “anywhere from one to three
years” and determined that Dailey understood. The court noted that the postrelease-
control law had been amended several times and confirmed the accuracy of the term
of postrelease control with the bailiff.
{¶11} Dailey contends that the advisement was deficient because “the trial
court itself could not adequately express the law and its impact upon him.” Although
the court initially misspoke regarding the potential term of postrelease control, the
court immediately corrected the error and accurately informed Dailey of postrelease
control. By correcting the record, the court complied with the requirements of Crim.
R. 11. See State v. Poage, 2022-Ohio-467, ¶ 13 (8th Dist.).
{¶12} Accordingly, we overrule the second assignment of error.
Written Plea Form
{¶13} In his third assignment of error, Dailey alleges that his written plea form
was altered with white-out after he reviewed and executed it.
{¶14} Dailey argues that his plea agreement was “altered” and that portions of
the agreement were “whited out” after he signed it. Dailey filed a motion to withdraw
the pleas on that basis, which was overruled. Dailey asks this court to reverse the
court’s judgments overruling his motion to withdraw his pleas.
{¶15} However, Dailey did not appeal from the court’s order overruling his
motion to withdraw the pleas. Consequently, this court lacks jurisdiction to consider
this claim and must dismiss it. See State v. Perin, 2019-Ohio-4817, ¶ 5 (4th Dist.).
Therefore, we dismiss the third assignment of error
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶16} Having overruled Dailey’s two assignments of error and dismissed the
third, we affirm the judgment of the trial court.
Judgment affirmed and appeal dismissed in part.
BOCK, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its own entry this date.
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