State v. Allen

[Cite as State v. Allen, 2018-Ohio-586.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105757
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHARONIKA D. ALLEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-600080-A and CR-16-607905-B
BEFORE: Blackmon, J., S. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: February 15, 2018
ATTORNEY FOR APPELLANT
David L. Doughten
David L. Doughten, LPA
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Holly Welsh
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Defendant-appellant, Sharonika D. Allen (“Allen”), appeals from her guilty
pleas in two cases. Allen assigns the following error for our review:
[Allen’s] guilty plea was not entered knowingly, intelligently and
voluntarily as the trial court misinformed her that the charged offense
included mandatory time, resulting in the appellant accepting a plea to a
lesser offense which did not require a mandatory term of incarceration.
{¶2} Having reviewed the record and pertinent law, we affirm. The apposite
facts follow.
{¶3} On October 23, 2015, Allen was indicted in Case No. CR-15-600080 for one
count of escape in violation of R.C. 2921.34(A)(3) for failing to report as required under
the terms of postrelease control ordered in Case No. CR-11-548831. On July 12, 2016,
Allen and two codefendants were also indicted in Case No. CR-16-607905. As is
relevant herein, Allen was charged with four counts of trafficking in persons in violation
of R.C. 2905.32 (Counts 1, 4, 9 and 17), three counts of compelling prostitution in
violation of R.C. 2907.21(A)(2)(A) (Counts 2, 10, and 18), five counts of kidnapping in
violation of R.C. 2905.01(A)(2) (Counts 3, 6, 11, 16, and 19), one count of promoting
prostitution in violation of R.C. 2907.22(A)(2) (Count 5), one count of rape in violation
of R.C. 2907.02(A)(2) (Count 13), and one count of robbery in violation of R.C.
2911.02(A)(2) (Count 15).
{¶4} Allen subsequently entered into a plea agreement with the state whereby
she pled guilty to the escape charge in Case No. CR-15-600080, and one count of
trafficking in persons in Case No. CR-16-607905, that was amended from a first-degree
felony to a second-degree felony (reduced Count 1). All remaining charges were
dismissed.
{¶5} Allen was subsequently sentenced to a six-month term for escape, to be
served consecutively to an eight-year term for attempted trafficking in persons.
Guilty Plea
{¶6} In her sole assigned error, Allen argues that her guilty plea was not
knowingly and voluntarily made because the trial court improperly informed Allen that as
originally charged, first-degree felony trafficking in persons carried a mandatory term of
incarceration, and that by pleading to a lesser included offense that did not require a
mandatory sentence, she could also avail herself of programs in the prison and possibly
judicial release.
{¶7} With regard to the procedural law, we note that if a guilty plea is not made
knowingly, intelligently, and voluntarily, then it is unconstitutional under both the United
States Constitution and the Ohio Constitution. State v. Engle, 74 Ohio St.3d 525, 527,
1996-Ohio-179, 660 N.E.2d 450. Under Crim.R. 11(C)(2), the trial court shall not
accept a guilty plea in a felony case without personally addressing the defendant and:
(a) Determining 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.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to a jury
trial, to confront witnesses against him or her, to have compulsory process
for obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶8} In determining whether a plea was entered knowingly, intelligently, and
voluntarily, “an appellate court examines the totality of the circumstances through a de
novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No. 99950,
2014-Ohio-606, ¶ 7; see also State v. Petitto, 8th Dist. Cuyahoga No. 95276,
2011-Ohio-2391, ¶ 4.
{¶9} The trial court must strictly comply with those provisions of Crim.R. 11(C)
that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473, 423
N.E.2d 115 (1981), at paragraph one of the syllabus.
{¶10} As to the nonconstitutional rights, substantial compliance is sufficient.
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v.
Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-4673, ¶ 12; Veney at ¶ 14.
“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, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If
it “appears from the record that the defendant appreciated the effect of his plea and his
waiver of rights in spite of the trial court’s error, there is still substantial compliance.”
State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995), citing
Nero at 108-109.
{¶11} The nonconstitutional rights listed in Crim.R. 11 include the defendant’s
right to be informed of the “maximum penalty involved.” State v. Tutt,
2015-Ohio-5145, 54 N.E.3d 619, ¶ 19 (8th Dist.). Therefore, where a defendant faces a
mandatory prison sentence as a result of a guilty or no contest plea, the trial court must
determine, prior to accepting a plea, that the defendant understands that he or she is
subject to a mandatory prison sentence and that as a result of the mandatory prison
sentence, he or she is not eligible for probation or community control sanctions. Id. at
¶ 19.
{¶12} In this matter, Allen was originally indicted for trafficking in persons in
violation of R.C. 2905.32(A)(1), a first-degree felony. R.C. 2905.32(E).
{¶13} Under R.C. 2905.32:
Whoever violates this section is guilty of trafficking in persons, a felony of
the first-degree. Notwithstanding division (A)(1) of section 2929.14 of the
Revised Code [setting forth the range of prison terms for first-degree
felonies], the court shall sentence the offender to a definite prison term of
ten, eleven, twelve, thirteen, fourteen, or fifteen years. (Emphasis added.)
{¶14} The Ohio Legislative Service states:
[H.B. 262] raises the level of offense for trafficking in persons from a
felony of the second degree to a felony of the first degree. A prison term is
not mandatory for a first or second degree felony unless a statute expressly
requires one. Normally, a prison term, if one is imposed, is for a definite
number of years ranging from 2 to 8 for a second degree felony and from 3
to 11 for a first degree felony. Under the act, a sentencing court must
impose a mandatory prison term of 10, 11, 12, 13, 14, or 15 years on a
person convicted of trafficking in persons.
See https://www.lsc.ohio.gov/analyses 129/12-hb262-129.pdf (accessed January 2018).
Id., citing to R.C. 2905.32 and 2929.13(F)(4).
{¶15} R.C. 2929.13(F) in turn states:
Notwithstanding divisions (A) to (E) of this section, the court shall impose
a prison term or terms under * * *:
(4) A felony violation of section * * * 2905.32.
{¶16} As explained by the Ohio State Bar Association:
In June 2012, the Ohio Legislature passed House Bill 262, Ohio’s Safe
Harbor Law, to strengthen the trafficking in persons statute. This new
statute raised the penalty for trafficking in persons from a second degree to
a first degree felony with a mandatory prison term of 10 to 15 years.
See https://www.ohiobar.org/OhioLawyer/Pages/ Human-trafficking-in- Ohio (accessed
January 2018).
{¶17} In accordance with the foregoing, this record demonstrates that Allen was
subject to mandatory imprisonment under Count 1 as originally charged, because it
alleged first-degree felony trafficking in persons. However, after the amendment of this
count, Allen was charged with attempted trafficking in persons. By operation of the
attempt statute, R.C. 2923.02(E), the charge became an offense of the next lower degree,
i.e., a second-degree felony. R.C. 2923.02(E).
{¶18} Prior to entering her guilty plea, the trial court advised Allen as follows:
THE COURT: That is a second degree felony. So let’s talk about
punishment. First of all, second degree felonies carry a presumption that
you are going to prison. And so it’s not a mandatory prison sentence, but
the courts are expected to hand out a prison sentence unless you can
shoulder your burden to prove that seriousness factors are outweighed by
factors indicating less serious conduct and factors indicating likely to
commit crime in the future are outweighed by factors indicating you are less
likely to commit crime in the future. Understood?
THE DEFENDANT: Yes.
{¶19} In accordance with the foregoing, we conclude that the trial court did not err
when it advised Allen that she had been subject to mandatory imprisonment under Count
1 as originally charged, but the amendment of this count to attempted trafficking
subjected her to the ordinary penalties imposed on a second-degree felony. Therefore,
we conclude that the trial court substantially complied with its duty to advise Allen of the
maximum penalty she faced. There is no basis upon which to conclude that the guilty
plea was not made knowingly, intelligently, and voluntarily.
{¶20} The assigned error is not well-taken.
{¶21} Judgment affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR