State v. Rusu , 2012 Ohio 2613 ( 2012 )

[Cite as State v. Rusu, 2012-Ohio-2613.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25597
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL H. RUSU COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 12 3596(B)
DECISION AND JOURNAL ENTRY
Dated: June 13, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Michael Rusu, appeals from his convictions in the Summit
County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} Rusu entered into a written plea of guilt after he and another man stole a trailer
and, in the course of their conduct, proximately caused the death of Michael Hall. Rusu pleaded
guilty to three charges: (1) vehicular homicide, a first-degree misdemeanor in violation of R.C.
2903.06(A)(3); (2) theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1); and (3)
tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1). Rusu’s
vehicular homicide conviction required the trial court to suspend Rusu’s driver’s license. At his
plea hearing, the court informed Rusu that he would be subject to a class five suspension that
could span a definite period of six months to three years. In actuality, Rusu’s conviction
required a more severe class four suspension. When the trial court sentenced Rusu, the court
2
imposed the correct class four suspension and suspended Rusu’s driver’s license for a period of
four years. The court also sentenced Rusu to four years in prison, costs, and attorney fees.
{¶3} Rusu now appeals from his convictions and raises seven assignments of error for
our review. For ease of analysis, we combine and reorder several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
FINDING THAT RUSU’S PLEA WAS MADE KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY WHEN THE COURT DID NOT
PROPERLY OUTLINE THE PUNISHMENTS THAT WERE POSSIBLE.
Assignment of Error Number Two
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO ARGUE THAT THE TRIAL’S (sic) COURT’S ACCEPTANCE OF
RUSU’S PLEA WAS DEFECTIVE.
{¶4} In his first two assignments of error, Rusu argues that he did not knowingly,
voluntarily, and intelligently enter his guilty plea because he entered it with the understanding
that the maximum period for which his license could be suspended was three years when, in fact,
it was five. He further argues that his trial counsel was ineffective because he failed to object to
his plea on the foregoing basis.
{¶5} “In order for a plea to be constitutionally enforceable, it must be entered
knowingly, voluntarily, and intelligently.” State v. Dowdell, 9th Dist. No. 25930, 2012-Ohio-
1326, ¶ 7. “A trial court’s obligations in accepting a plea depend upon the level of offense to
which the defendant is pleading.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 6.
Crim.R. 11 imposes different obligations for felony cases than for misdemeanor cases. See
Crim.R. 11(C)-(E). Specifically, a trial court need not inform a defendant of the maximum
3
possible penalty for his offense in a misdemeanor case involving a petty offense. See Jones at
paragraph one of the syllabus. On the contrary, in felony cases a court must inform a defendant
“of the nature of the charges and of the maximum penalty involved.” Crim.R. 11(C)(2)(a).
Accord State v. Souris, 9th Dist. No. 24550, 2009-Ohio-3562, ¶ 5.
{¶6} A defendant’s right to be informed of his maximum possible penalty in a felony
case is a non-constitutional right, so a substantial compliance standard applies. State v. Hubbard,
9th Dist. No. 25141, 2011-Ohio-2770, ¶ 7. “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 (1990). “When the trial judge does
not substantially comply with Crim.R. 11 in regard to a non[-]constitutional right, reviewing
courts must determine whether the trial court partially complied or failed to comply with the
rule.” (Emphasis sic.) State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 32. If a court
partially complied with Crim.R. 11, a defendant must demonstrate prejudice before his plea will
be vacated. Id. “The test for prejudice is ‘whether the plea would have otherwise been made.’”
Id., quoting Nero at 108.
{¶7} The record reflects that the trial court failed to inform Rusu of the maximum
possible penalty for his vehicular homicide offense when it accepted his plea. Specifically, the
court informed Rusu he could receive up to a three year license suspension when, in fact, he
could receive up to five years. See R.C. 4510.02(A)(4) (definite suspension period for class four
suspension set as one to five years); State v. Harris, Slip Opinion No. 2012-Ohio-1908,
paragraph one of the syllabus (mandatory driver’s license suspension constitutes part of
offender’s sentence). The court later sentenced Rusu to a four-year suspension.
4
{¶8} The State acknowledges the trial court’s error in the plea colloquy, but argues that
the error was harmless because the court was not required to inform Rusu of the maximum
possible penalty for his petty offense. See Crim.R. 11(E); State v. Higby, 9th Dist. No.
10CA0054, 2011-Ohio-4996, ¶ 4. The State correctly classifies Rusu’s vehicular homicide
conviction as a petty offense because it is a first-degree misdemeanor punishable by up to six
months in jail. See R.C. 2929.24(A)(1); Crim.R. 2(D) (defining “petty offense”). The trial
court’s duty during a plea colloquy, however, depends upon the nature of the “case,” not the
nature of the individual offenses within a case. Rusu’s case was a felony case because, in
addition to the first-degree misdemeanor, he pleaded guilty to two felonies. Therefore, the trial
court had to substantially comply with Crim.R. 11(C) and inform Rusu of “the maximum penalty
involved.” Crim.R. 11(C)(2)(a). See generally State v. Karmasu, 9th Dist. No. 25210, 2011-
Ohio-3253, ¶ 32-41 (plea analyzed under Crim.R. 11(C) when case involved both felonies and
misdemeanors).
{¶9} The trial court partially complied with Crim.R. 11(C) because it informed Rusu
his license would be suspended, but misstated the possible length of the suspension. State v.
Wagner, 9th Dist. No. 08CA0063-M, 2009-Ohio-2790, ¶ 14 (partial compliance where court
conveyed inaccurate information about maximum penalty). Thus, the burden is upon Rusu to
demonstrate that, but for the trial court’s error, he would not have entered his plea. Id. at ¶ 16.
Rusu limits his prejudice analysis to a statement that he might not have pleaded guilty had the
court told him his suspension could last for five years. Rusu’s statement does not demonstrate
prejudice. In exchange for his guilty plea, the State dismissed six other charges, including ones
for involuntary manslaughter and reckless homicide. Moreover, the difference between the
suspension the trial court informed Rusu he could receive and the suspension the court actually
5
imposed only amounts to one year. Given the record before us, we cannot agree with Rusu’s
assertion that he was prejudiced. This Court declines to vacate Rusu’s plea.
{¶10} In a related assignment of error, Rusu argues that he received ineffective
assistance of counsel because his counsel did not object when the trial court failed to properly
inform him of his maximum possible sentence. An ineffective assistance claim requires a
defendant to prove that his counsel’s deficient performance prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, “defendant must demonstrate
that there is a reasonable probability that, but for his counsel’s error, he would not have pleaded
guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M,
2010-Ohio-3545, ¶ 4. As we have already determined that Rusu has not proven prejudice as a
result of his plea, we reject his ineffective assistance of counsel argument. Rusu’s first and
second assignments of error are overruled.
Assignment of Error Number Three
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ASSESSING COURT COSTS AGAINST RUSU WITHOUT COMPLYING
WITH R.C. 2947.23(A).
Assignment of Error Number Four
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF COURT
COSTS UNDER R.C. 2947.23(A) WAS DEFECTIVE.
Assignment of Error Number Seven
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT
COMPLYING WITH R.C. 2941.51(D), AND NOT DOING SO IN OPEN
COURT.
6
{¶11} In his third and seventh assignments of error, Rusu argues that the court erred by
imposing costs and attorney fees against him. In his fourth assignment of error, Rusu argues that
his trial counsel was ineffective for failing to object to the court’s imposition of costs.
{¶12} “R.C. 2947.23 mandates that the trial court assess the cost of prosecution against a
convicted criminal defendant.” State v. Payne, 9th Dist. No. 21178, 2003-Ohio-1140, ¶ 15. Yet,
a trial court must orally inform a defendant of his obligation to pay costs at the time of
sentencing so as to give the defendant an opportunity to claim indigency and seek a waiver of
payment. State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 22. Similarly, R.C. 2941.51(D)
allows a trial court to order a defendant to pay some or all of his court-appointed attorney fees,
but only after finding that the defendant is financially capable of doing so. State v. Marrero, 9th
Dist. No. 10CA009867, 2011-Ohio-3745, ¶ 20. A trial court commits reversible error when it
imposes costs or attorney fees against a defendant in the absence of such a notification. Joseph
at ¶ 22; State v. Warner, 9th Dist. No. 96CA006534, 2001 WL 1155698, *3-4 (Sept. 21, 2001).
The appropriate remedy for such an error as to costs is a “remand * * * to the trial court for the
limited purpose of allowing [the defendant] to move the court for a waiver of the payment of
court costs.” State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-4492, ¶ 32, quoting Joseph at ¶
23. As to an error in the imposition of attorney fees, the appropriate remedy is a remand for “a
determination of [the defendant’s] financial ability to pay for his court-appointed counsel.”
Warner at *4.
{¶13} The record reflects that the trial court imposed costs and attorney fees upon Rusu
in its sentencing entry, but did not orally inform him of his obligation to pay costs or inform him
that he would be responsible for his attorney fees at the time of sentencing. Rusu, therefore, did
not have the opportunity to claim an inability to pay based on his indigency. His third and
7
seventh assignments of error are sustained on that basis and the matter is remanded to allow him
to seek a waiver of court costs and for a determination of his ability to pay his attorney fees.
Joseph at ¶ 23; Warner at *4.
{¶14} In light of our resolution of Rusu’s third and seventh assignments of error, his
argument that his trial counsel was ineffective for failing to object to the imposition of costs is
moot. State v. Ross, 9th Dist. No. 25778, 2012-Ohio-1389, ¶ 29-30. Therefore, we decline to
address his fourth assignment of error. App.R. 12(A)(1)(c).
Assignment of Error Number Five
THE COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
SENTENCING RUSU ON CHARGES TO WHICH HE WAS NOT CHARGED
AND TO WHICH HE DID NOT PLEAD.
Assignment of Error Number Six
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO
ARGUE THAT THE TRIAL COURT WAS SENTENCING RUSU FOR
CHARGES TO WHICH HE WAS NOT CHARGED AND TO WHICH HE DID
NOT PLEAD.
{¶15} In his fifth assignment of error, Rusu argues that the court improperly sentenced
him in connection with an offense for which he was never indicted. As such, Rusu argues, he
did not have notice of the charges against him. In his sixth assignment of error, Rusu argues that
his trial counsel was ineffective for failing to object to the improper sentence.
{¶16} The portion of the sentencing entry Rusu challenges reads:
IT IS FURTHER ORDERED that pursuant to Ohio Revised Code Section
2925.11(E)(2), the Defendant’s driver’s license and all driving privileges be
SUSPENDED for a period of 4 years, which is mandatory and required by statute.
R.C. 2925.11(E)(2) governs license suspensions in drug possession offenses. Rusu was not
convicted of a drug possession offense. The trial court should have imposed Rusu’s driver’s
license suspension pursuant to R.C. 2903.06(C)/R.C. 4510.02(A)(4) after Rusu pleaded guilty to
8
vehicular homicide. The record reflects that the trial court simply cited the wrong statute in
imposing Rusu’s license suspension.
{¶17} Crim.R. 36 allows a court to correct a clerical mistake in a judgment at any time.
Generally, the appropriate remedy for such a clerical error is a nunc pro tunc entry. State v.
Zack, 9th Dist. No. 11CA009955, 2011-Ohio-4882, ¶ 6. As addressed above, however, this
matter must be remanded to the trial court to allow Rusu to seek a waiver of court costs and for a
determination of his ability to pay his attorney fees. Because further proceedings are required,
the trial court will have an opportunity to correct its clerical error at that time. Rusu’s fifth
assignment of error is sustained solely on the basis that his sentencing entry contains a clerical
error that the trial court must address upon remand. Based on our resolution of Rusu’s fifth
assignment of error, his ineffective assistance argument is moot and we decline to address his
sixth assignment of error. App.R. 12(A)(1)(c).
III
{¶18} Rusu’s third, fifth, and seventh assignments of error are sustained for the reasons
set forth above. His fourth and sixth assignments of error are moot, and his remaining
assignments of error are overruled. The judgment of the Summit County Court of Common
Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with
the foregoing opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
9
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
MOORE, J.
CONCURS IN JUDGMENT ONLY.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶19} I concur in judgment only. In regard to the first assignment of error, I concur in
the majority’s judgment solely on the basis that Rusu has not demonstrated that the error in the
license suspension would have caused him not to plead guilty.
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.