State v. Farnsworth , 2016 Ohio 7919 ( 2016 )

[Cite as State v. Farnsworth, 2016-Ohio-7919.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 15CA0038-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MASON S. FARNSWORTH COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 14CR0644
DECISION AND JOURNAL ENTRY
Dated: November 28, 2016
CARR, Presiding Judge.
{¶1} Appellant Mason Farnsworth appeals his conviction from the Medina County
Court of Common Pleas. This Court affirms.
I.
{¶2} Farnsworth was indicted in case number 14CR0644 on one count of receiving
stolen property (firearm), with an attendant firearm specification, and one count of having
weapons while under disability. He subsequently pleaded guilty to the charges and specification
in the indictment. The trial court sentenced Farnsworth to an aggregate term of twenty-four
months in prison, with jail time credit for 174 days served. In addition, the trial court ordered
Farnsworth to pay $4,640.00 in restitution. This Court granted Farnsworth’s motion to file a
delayed appeal. He raises three assignments of error for review.
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II.
ASSIGNMENT OF ERROR I
THE COURT ERRED BY ACCEPTING A GUILTY PLEA IN VIOLATION OF
CRIMINAL RULE 11 AS THE COURT IN CONTRAVENTION OF LAW
ADVISED THE DEFENDANT THAT CREDIT FOR TIME SERVED
DISPUTES COULD BE ADDRESSED VIA POST SENTENCING MOTION.
{¶3} Farnsworth argues that the trial court erred by accepting his guilty plea because he
did not enter it knowingly. This Court disagrees.
{¶4} A plea is invalid where it has not been entered in a knowing, intelligent, and
voluntary manner. State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, ¶ 25, citing State v.
Engle, 74 Ohio St. 3d 525, 527 (1996). Crim.R. 11(C) prohibits a trial judge from accepting a
guilty plea without first ensuring that the defendant is fully informed regarding his rights and that
he understands the consequences of his plea. Farnsworth does not argue that the trial court failed
to properly advise him of his constitutional rights delineated in Crim.R. 11(C)(2)(c). Rather, he
challenges the knowing entry of his plea, arguing that the trial court incorrectly informed him
that he could challenge the application of his jail time credit after sentence was imposed.
Accordingly, he appears to argue that he did not understand the maximum sentence he was
facing or the effect of his plea.
{¶5} Crim.R. 11(C)(2)(a) and (b) address the issues implicated in Farnsworth’s
argument and state:
In felony cases the court may refuse to accept a plea of guilty * * *, and shall not
accept a plea of guilty * * * without first addressing the defendant personally and
* * * [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 * * * [i]nforming the defendant of and determining that the defendant
understands the effect of the plea of guilty * * *, and that the court, upon
acceptance of the plea, may proceed with judgment and sentence.
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These provisions address nonconstitutional notifications. State v. Stoddard, 9th Dist. Summit
No. 26663, 2013-Ohio-4896, ¶ 7.
{¶6} The Ohio Supreme Court has urged literal compliance with the mandates of
Crim.R. 11. Clark at ¶ 29. However, in the absence of literal compliance, “reviewing courts
must engage in a multitiered analysis to determine whether the trial judge failed to explain the
defendant’s constitutional or nonconstitutional rights and, if there was a failure, to determine the
significance of the failure and the appropriate remedy.” Id. at ¶ 30. The Clark court set forth the
following rules for analysis:
When a trial judge fails to explain the constitutional rights set forth in Crim.R.
11(C)(2)(c), the guilty or no-contest plea is invalid under a presumption that it
was entered involuntarily and unknowingly. However, if the trial judge
imperfectly explained nonconstitutional rights such as the right to be informed of
the maximum possible penalty and the effect of the plea, a substantial-compliance
rule applies. Under this standard, a slight deviation from the text of the rule is
permissible; so long as the totality of the circumstances indicates that the
defendant subjectively understands the implications of his plea and the rights he is
waiving, the plea may be upheld.
When the trial judge does not substantially comply with Crim.R. 11 in regard to a
nonconstitutional right, reviewing courts must determine whether the trial court
partially complied or failed to comply with the rule. If the trial judge partially
complied, e.g., by mentioning mandatory postrelease control without explaining
it, the plea may be vacated only if the defendant demonstrates a prejudicial effect.
The test for prejudice is whether the plea would have otherwise been made. If the
trial judge completely failed to comply with the rule, e.g., by not informing the
defendant of a mandatory period of postrelease control, the plea must be vacated.
A complete failure to comply with the rule does not implicate an analysis of
prejudice.
(Internal quotations and citations omitted.) Clark at ¶ 31-32.
{¶7} In addition to the pending charges in case number 14CR0644, Farnsworth had
been charged with a probation violation in case number 12CR0202, based on the charges in the
2014 case. The parties presented a joint resolution to the court at the plea hearing regarding the
2014 case, wherein Farnsworth was to be sentenced to two years in prison for each case with
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credit for time served. There was no consensus regarding the amount of jail time credit he had
accumulated in each case, and the parties and trial court recognized that a representative from the
probation department would be required to render a computation. Although the State explained
that the two concurrent two-year sentences could terminate on different dates due to the different
amounts of jail time credit in the 2012 and 2014 cases, there appeared to be some confusion
whether the jail time credit for both cases could be combined and applied to the concurrent two-
year sentences.
{¶8} Although Farnsworth asserts that the trial court informed him that he would be
permitted to brief the issue regarding jail time credit after sentencing, this is an inaccurate
depiction of the events as they occurred during the change of plea hearing. Recognizing the
differing views regarding jail time credit, the trial court inquired, “If we accept the plea today,
then can we delay sentencing until we get all of these details worked out?” (Emphasis added.)
Accordingly, the trial court did not inform Farnsworth during the plea hearing that he could raise
any issue regarding jail time credit after sentencing was concluded. Rather, the court informed
him that the precise amount of jail time credit he would receive was not yet determined, but that
it would be determined in advance of sentencing. Accordingly, Farnsworth was fully aware that
the amount of jail time credit he would receive was still unresolved at the time he nevertheless
entered his plea. Moreover, the trial court thoroughly explained the maximum penalties
Farnsworth faced, as well as the effect of his guilty plea. Accordingly, the trial court
substantially complied with Crim.R. 11, and this Court concludes that Farnsworth entered a
knowing plea.
{¶9} To the extent that Farnsworth argues that his plea was not entered knowingly
because the trial court informed him during the sentencing hearing that he could brief the issue of
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jail time credit after sentencing, he has not explained how that rendered his prior knowing guilty
plea unknowing. Had he believed that his plea was not in fact entered knowingly, he could have
moved to withdraw his plea prior to sentencing. Crim.R. 32.1. He did not do so, but rather
proceeded with sentencing. Even still, he might file a motion to withdraw his plea after sentence
where he believes that a manifest injustice has occurred. Id. Finally, where he believed that the
trial court wrongfully imposed sentence by failing to properly apply his jail time credit, he might
have challenged his sentence on appeal. See State v. Patrick, 163 Ohio App. 3d 666, 2005-Ohio-
5332, ¶ 29 (8th Dist.) (Where an initial plea was knowingly, voluntarily, and intelligently made,
“the cure for an error in sentencing is to remand for resentencing, not to vacate both the plea and
the sentence.”).
{¶10} There is no indication in the record of the plea hearing that the trial court
informed Farnsworth that he would be able to challenge any issues regarding the application of
his jail time credit before the trial court after sentence was imposed. The first assignment of
error is overruled.
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO CORRECT THE COURT REGARDING
ERRONEOUS STATEMENTS OF LAW REGARDING THE VIABILITY OF
POST TRIAL MOTIONS TO AWARD CREDIT FOR TIME SERVED.
{¶11} Farnsworth argues that defense counsel was ineffective for failing to correct the
trial court when it informed him during the sentencing hearing that he could continue to litigate
the issue of jail time credit after sentence had been imposed. This Court disagrees.
{¶12} Farnsworth pleaded guilty to two felonies and one gun specification. “To prove
ineffective assistance of counsel after a plea of guilty, ‘defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
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have insisted on going to trial.’” State v. Maggy, 9th Dist. Medina No. 3127-M, 2001 WL
1144131, *2 (Sept. 26, 2001), quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985). Farnsworth has
neither demonstrated, nor even alleged that, but for counsel’s alleged ineffective assistance, he
would not have pleaded guilty. Accordingly, the second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE COURT COMMITTED PLAIN ERROR BY ORDERING RESTITUTION
SOLELY ON THE BASIS OF DEFENDANT[‘]S EVENTUAL RECEIPT OF
AN ANNUITY.
{¶13} Farnsworth argues that the trial court erred by ordering restitution solely in
consideration of his future receipt of a substantial annuity. Specifically, he argues that the trial
court committed plain error by failing to make a finding regarding the victim’s economic loss.
This Court disagrees.
{¶14} Farnsworth notes that the trial court premised the restitution order on its
consideration of information obtained from the presentence investigation report. Specifically,
the trial court stated, “[A]s it has been reported through the presentence investigation that you
will be coming in to a substantial annuity at 25, [you are] ordered to pay restitution in the amount
of $4,640.”
{¶15} “R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence in order to compensate the victim for economic loss.” State v. Lalain, 136 Ohio St. 3d
248, 2013-Ohio-3093, ¶ 20. Moreover, the statute permits the trial court to base the amount of
restitution on various sources, including statements by the victim and/or the offender; estimates,
receipts, and other information evidencing the economic loss; and information contained in the
presentence investigation report. Id., citing R.C. 2929.18(A)(1). In this case, although the trial
court did not expressly state that the information before it indicated that $4,640 represented the
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victim’s economic loss, it is clear that the trial court utilized the presentence investigation report
in considering the issue of restitution. Moreover, by ordering restitution in that specific amount,
the trial court as a practical matter made a finding that $4,640 represented the amount of the
victim’s economic loss.
{¶16} The presentence investigation report has not been included in the record on
appeal. It is the appellant’s responsibility to ensure that the record on appeal contains all matters
necessary to allow this Court to resolve the issues on appeal. See App.R. 9. This Court has
consistently held that, where the appellant has failed to provide a complete record to facilitate
appellate review, we are compelled to presume regularity in the proceedings below and affirm
the trial court’s judgment. State v. Daniel, 9th Dist. Summit No. 27390, 2014-Ohio-5112, ¶ 5,
citing State v. McGowan, 9th Dist. Summit No. 27092, 2014-Ohio-2630, ¶ 6. In cases such as
this where the presentence investigation report is necessary to enable an appropriate review of
the propriety of the sentence, Farnsworth’s failure to ensure that the record includes that report
requires a presumption of regularity in the sentencing proceedings. State v. Yuncker, 9th Dist.
Medina No. 14CA0068-M, 2015-Ohio-3933, ¶ 17, citing Daniel at ¶ 6; McGowan at ¶ 7.
{¶17} Finally, to the extent that Farnsworth’s captioned assignment of error raises plain
error, he does not make any argument in that regard. In addition, he fails to argue how he
suffered prejudice. As this Court has repeatedly stated, “‘an appellant’s assignment of error
provides this Court with a roadmap to guide our review.’” Akron v. Johnson, 9th Dist. Summit
No. 26047, 2012-Ohio-1387, ¶ 3, quoting Taylor v. Hamlin-Scanlon, 9th Dist. Summit No.
23873, 2008-Ohio-1912, ¶ 12, citing App.R. 16(A). We decline to construct a plain error
argument on Farnsworth’s behalf.
{¶18} The third assignment of error is overruled.
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III.
{¶19} Farnsworth’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, 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 to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
WHITMORE, J.
CONCUR.
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APPEARANCES:
SEAN BUCHANAN, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant
Prosecuting Attorney, for Appellee.