State v. Petitto , 2011 Ohio 2391 ( 2011 )

[Cite as State v. Petitto, 2011-Ohio-2391.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95276
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY PETITTO
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530113
BEFORE: E. Gallagher, J., Kilbane, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 19, 2011
2
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Ronni Ducoff
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Defendant-Appellant, Anthony Petitto, appeals from his
convictions in the Cuyahoga County Court of Common Pleas. Appellant
argues that the trial court failed to inform him of the effect of his guilty plea,
failed to inform him of the consequences of pleading guilty to a new felony
while on postrelease control, failed to determine whether or not he
understood the nature of the charges against him, failed to properly assess
costs, and failed to consider statutory criteria in imposing more than a
minimum sentence. Appellant additionally argues that the trial court failed
3
to make statutory findings pursuant to R.C. 2929.14(E) and that his attorney
provided ineffective assistance of counsel at his sentencing hearing. For the
following reasons, we reverse and remand.
{¶ 2} Appellant was indicted on November 13, 2009. Appellant’s
indictment included 48 separate counts including rape and kidnapping
involving two victims. Appellant initially pled not guilty to the indictment.
On March 3, 2010, pursuant to a plea agreement between the State and
appellant, the State moved to amend Count 5 (rape) and Count 30 (rape) to
gross sexual imposition pursuant to R.C. 2907.05(A)(4). The amended
counts were third degree felonies involving separate victims less than 13
years of age.
{¶ 3} Appellant pled guilty to the two counts, as amended, on March 3,
2010, the remaining counts were nolled, and the trial court remanded
appellant pending sentencing. A sentencing hearing was held on April 7,
2010 and the trial court sentenced appellant to four years on each count to
run consecutive to one another for a total of eight years. Appellant was also
advised of a mandatory five year postrelease control term and was deemed a
Tier III sex offender. Appellant subsequently appealed, raising the seven
assignments of error contained in the appendix of this opinion.
{¶ 4} In his first assignment of error, appellant argues that his guilty
4
plea must be vacated because during the plea proceedings, the trial court
failed to inform him of the effect of his guilty pleas pursuant to Crim.R.
11(C). “The standard for reviewing whether the trial court accepted a plea
in compliance with Crim.R. 11(C) is a de novo standard of review. It
requires an appellate court to review the totality of the circumstances and
determine whether the plea hearing was in compliance with Crim.R. 11(C).”
State v. Cardwell, 8th Dist. No. 92796, 2009-Ohio-6827, ¶26, citing State v.
Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163 (internal citations
omitted).
{¶ 5} When accepting a plea of guilty in a felony case, the trial court is
required to inform the defendant of the effect of the plea. Crim.R.
11(C)(2)(b); State v. Jones, 116 Ohio St.3d 211, 216, 2007-Ohio-6093, 877
N.E.2d 677. Crim.R.11(B) defines a guilty plea as, “a complete admission of
the defendants guilt.”
{¶ 6} The trial court’s duty to inform the defendant of the effect of the
plea is a nonconstitutional requirement of Crim.R. 11. State v. Griggs,
103 Ohio St.3d 85, 87, 2004-Ohio-4415, 814 N.E.2d 51, citing State v. Nero
(1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474. With respect to the
nonconstitutional requirements of Crim.R. 11, as set forth in Crim.R.
11(C)(2)(a) and (b), reviewing courts shall consider whether there was
5
substantial compliance with the rule. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶14-17. 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. Id.,citing State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.
{¶ 7} Furthermore, a defendant must show prejudice before a plea will
be vacated for a trial courts error involving Crim.R. 11(C) procedure when
nonconstitutional aspects of the colloquy are at issue. Veney. The test for
prejudice is whether the plea would have otherwise been made. Id.; see, also,
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.
{¶ 8} In the present case, the record reveals that the trial court failed
to strictly comply with Crim.R. 11(C)(2)(b) in that the court did not
specifically ask appellant if he understood that his plea was a complete
admission of his guilt. Nonetheless, the Ohio Supreme Court has held that
unless a defendant asserts “actual innocence,” he is “presumed to understand
that he has completely admitted his guilt,” and “a courts failure to inform
the defendant of the effect of his guilty plea as required by Crim.R. 11 is
presumed not to be prejudicial.” State v. Griggs, 103 Ohio St.3d 85, 814
N.E.2d 51, syllabus; see, also, State v. Taylor, Cuyahoga App. No. 94569,
2010-Ohio-5607; State v. Thomas, Cuyahoga App. No. 94788, 2011-Ohio-214.
6
Appellant did not assert “actual innocence” during his plea proceeding.
Additionally, appellant offers no argument as to how he was prejudiced in
any way by the trial courts failure to determine if he understood the effect
of his guilty plea nor is any prejudice apparent from the record.
{¶ 9} Although not raised as an assignment of error by appellant, we
note that the trial court failed to directly ascertain whether appellant
understood the maximum penalty for each offense pursuant to Crim.R.
11(C)(2)(a). This is a nonconstitutional duty under Crim.R. 11(C)(2)(a) and
the substantial compliance analysis discussed above applies. State v. Scott,
Cuyahoga App. No. 84381, 84382, 84383, 84384, 84389, 2005-Ohio-3690,
citing State v. Griggs, 103 Ohio St.3d 85, 87, 814 N.E.2d 51.
{¶ 10} At appellant’s plea proceeding, the State read the two amended
counts of gross sexual imposition to which he would plead guilty. The State
then concluded, “And as such, he would face anywhere between one and five
years of definite yearly intervals. In this case, he would also agree that he
must go to prison, that although this offense usually is eligible for
community control, there would be no community control. That he must go to
prison. The period of PRC, post release control, for this is five years.” (Tr. 5.)
After discussing a number of appellant’s constitutional rights, postrelease
control and his Tier III offender status, the trial court stated, “That would be
7
after you finish your sentence because a condition of this plea is that
notwithstanding the fact that it is probationable, you could serve a prison
term of anywhere from one to five years in yearly increments, possible fine of
$10,000.” (Tr. 11.) After discussing postrelease control, the trial court
asked appellant if he had any questions to ask regarding the plea and the
possible consequences. Appellant stated that he did not. (Tr. 5.)
{¶ 11} This is not an instance where, as in State v. Tokar, Cuyahoga
App. No. 91941, 2009-Ohio-4369, the trial court completely failed to comply
with the requirements of Crim.R.11(C)(2)(a) such that an analysis of
substantial compliance and prejudice are not implicated. The trial court in
this instance partially complied with the rule in that the potential maximum
penalty for a third degree felony was mentioned, however the penalty was
discussed in an ambiguous manner open to reasonable misinterpretation by
appellant. (Emphasis added.)
{¶ 12} We are mindful of the Ohio Supreme Court’s holding in State v.
Johnson (1988), 40 Ohio St.3d 130, 134, 532 N.E.2d 1295, that, “[f]ailure to
inform a defendant who pled guilty to more than one offense that the court
may order him to serve any sentences it imposed consecutively, rather than
concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the
plea involuntary.”
8
{¶ 13} However, on the facts presented in this case, we conclude that
under the totality of the circumstances, the appellant could not have
subjectively understood the implications of his plea because the trial court’s
ambiguous reference to a potential “prison term of anywhere from one to five
years” failed to convey to him that the potential maximum prison term for
each offense was five years. The prejudice to appellant is obvious from the
record. A plain reading of the trial court’s language would lead one to
believe that the maximum penalty he faced was 5 years, cumulatively. The
trial court was not required to inform appellant that the individual penalties
for his offenses could be served consecutively. However, we hold that a trial
court errs when it fails to inform the defendant of the maximum penalty for
each offense and uses misleading language in connection with multiple
offenses that ambiguously refers to a single maximum penalty. Accordingly,
appellant’s first assignment of error is sustained and his plea is vacated.
{¶ 14} Although appellant’s remaining assignments of error are
rendered moot by our vacating of his sentence pursuant to the first
assignment of error, we note that as addressed in his fourth assignment of
error, the trial court erred when it did not assess costs in open court and
subsequently assessed costs in its journal entry. The State concedes the
trial court erred in that its failure to address court costs denied appellant the
9
opportunity to claim indigence and to seek a waiver of the payment of costs.
Pursuant to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d
278, the appropriate course in such an instance would be a limited remand to
the trial court to allow appellant to move the court for a waiver of the
payment of court costs.
{¶ 15} Judgment reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
Appendix
10
Assignment of Error No. 1:
{¶ 16} “Defendant was denied due process of law when the Court did
not inform the Defendant of the effect of a plea of guilty.”
Assignment of Error No. 2:
{¶ 17} “Defendant was denied due process of law when the court failed
to inform the Defendant concerning the consequences of pleading guilty to a
new felony while on post-release control.”
Assignment of Error No. 3:
{¶ 18} “Defendant was denied due process of law when the court did not
determine the Defendant understood the nature of the plea to amended
charges.”
Assignment of Error No. 4:
{¶ 19} “Defendant was denied due process of law when the court did not
assess costs in open court and costs were assessed in the judgment entry.”
Assignment of Error No. 5:
{¶ 20} “Defendant was denied due process of law when the court failed
to consider the statutory criteria in imposing more than a minimum
sentence.”
Assignment of Error No. 6:
{¶ 21} “Defendant was denied due process of law when the court
arbitrarily imposed consecutive sentences without any findings.”
Assignment of Error No. 7:
{¶ 22} “Defendant was denied counsel as guaranteed by the Sixth
Amendment.”