State v. Owens

[Cite as State v. Owens, 2014-Ohio-2275.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100398 and 100399
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DONOVAN OWENS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-13-571326 and CR-13-572136-A
BEFORE: Blackmon, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 29, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Donovan Owens appeals his guilty plea and assigns the following
error for our review:
Appellant’s guilty plea was not knowingly, intelligently, or voluntarily
entered when the trial court failed to address the sentencing implications of
the firearm specifications during its plea colloquy.
{¶2} Having reviewed the record and pertinent law, we affirm Owens’s
convictions. The apposite facts follow.
{¶3} Owens was indicted in two separate cases. On February 4, 2013, the
Cuyahoga County Grand Jury indicted Owens in Case No. CR-13-571326 for two counts
of drug possession and two counts of drug trafficking. On March 5, 2013, the Cuyahoga
County Grand Jury indicted Owens in Case No. CR-13-572136-A for one count each for
murder, involuntary manslaughter, felonious assault and discharging a firearm on or near
a prohibited premises, all with one-and three-year firearm specifications. He was also
indicted in the second case for drug trafficking with a schoolyard specification and
tampering with evidence.
{¶4} On August 5, 2013, Owens pleaded guilty in both cases. In
CR-13-571326, Owens pleaded guilty to one count each for drug possession and
possession of criminal tools. In CR-13-572136-A, he pleaded guilty to one count each
for involuntary manslaughter with the accompanying one- and three-year firearm
specifications, and tampering with evidence. He also pleaded guilty to one count of drug
trafficking with the accompanying schoolyard specification.
{¶5} On August 15, 2013, the trial court sentenced Owens in CR-13-571326 to
two years in prison for drug possession and 12 months for the possession of criminal tools
to be served concurrently. In CR-13-572136-A, the trial court sentenced Owens to seven
years for the involuntary manslaughter with an additional three years for the firearm
specification. He was sentenced to 12 months each on the tampering with evidence and
drug trafficking charges. With the exception of the firearm specification, the convictions
were ordered served concurrently with each other and concurrently with the sentence in
CR-13-571326. Thus, the trial court sentenced him to a total of ten years in prison.
Guilty Plea
{¶6} In his sole assigned error, Owens argues that his guilty plea was not
voluntarily, knowingly, or intelligently entered because the trial court failed to explain to
him the maximum penalty. Specifically, he argues that the trial court failed to explain
the amount of time he could serve on the firearm specifications, that the firearm
specifications carried a mandatory prison time, and that the specifications had to be
served consecutively.
{¶7} Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial court must
address the defendant personally and determine that he is making the plea voluntarily
“with understanding of the nature of the charges and the maximum penalty involved.” A
trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the
waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,
897 N.E.2d 621. Regarding the nonconstitutional notifications required by Crim.R.
11(C)(2)(a) and 11(C)(2)(b), substantial compliance is sufficient. State v. Stewart, 51
Ohio St.2d 86, 364 N.E.2d 1163 (1977). Advising a defendant of the maximum
sentence has been determined to be a nonconstitutional right. State v. McKissic, 8th Dist.
Cuyahoga Nos. 92332 and 92333, 2010-Ohio-62, ¶ 13, citing State v. Stewart, 51 Ohio
St.3d 86, 93, 364 N.E.2d 1163 (1977). We, therefore, review the matter for substantial
compliance.
{¶8} “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, 564 N.E.2d 474 (1990). “[I]f 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).
{¶9} In the instant case, the trial court failed to advise Owens regarding the terms
that would be imposed for the firearm specifications. However, prior to the court taking
the plea, the prosecutor outlined the plea deal and stated as follows regarding the
involuntary manslaughter count with the firearm specifications:
On this case, your Honor, count 2, the involuntary manslaughter is a felony
of the first degree. It carries with it a possible prison sentence of 3 to 11
years in yearly increments. The firearm specifications that are attached to
it, the one-and three-year firearm specifications, obviously one-year will
merge into three-year. That three-year firearm specification must be served
prior to and consecutive with any underlying sentence that this Court gives
this defendant. So basically, your Honor, that makes this count 2 a
minimum sentence of six to 12 years, up to a maximum of 14 years.
Tr. 166-167. After the prosecutor finished explaining the plea deal, Owens and his
counsel both stated that the prosecutor explained the plea and sentence correctly.
COURT: Thank you. Mr. Morgan, on behalf of your client, has the
prosecutor correctly stated all of the terms and conditions of the pleas in
these two cases?
MR. MORGAN: Yes, Judge.
THE COURT: Mr. Owens, you've heard from the prosecutor, you’ve
heard from your attorney. Do you understand the plea that’s being proposed
here today?
DEFENDANT: Yes, I do.
Tr. 173.
{¶10} Although it is better practice for the trial court to advise the defendant of the
maximum sentence, we have found substantial compliance when the prosecutor has done
so instead. See State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333,
2010-Ohio-62, ¶ 17; State v. Sims, 8th Dist. Cuyahoga No. 95979, 2011-Ohio-4819, ¶
33-34; State v. Chaney, 8th Dist. Cuyahoga No. 97872, 2012-Ohio-4933. Here, although
the trial court failed to include the firearm specifications when discussing the maximum
sentence, the prosecutor set forth the correct maximum sentence, including the firearm
specifications. Owen’s attorney stated that the prosecutor correctly set forth the terms
and conditions of the plea, and Owen stated he understood the plea as explained by the
prosecutor and his attorney. Reviewing the matter under the totality of the
circumstances, as we are required to do, we conclude that Owen subjectively understood
the terms and conditions of his plea.
{¶11} Owens cites to this court’s decisions in State v. Douglas, 8th Dist. Cuyahoga
No. 87952, 2007-Ohio-714, and State v. Williams, 65 Ohio App.3d 70, 582 N.E.2d 1044(8th Dist.1989), to support his argument that the trial court’s failure to advise on the
firearm specifications invalidated his plea. However, in those cases, there is no evidence
that the prosecutor explained the firearm specifications on the record. Therefore, the
firearm specifications were never explained to the defendant. Additionally, unlike the
defendants in Douglas and Williams, Owens stated on the record that he understood the
plea as set forth by the prosecutor, which explanation included the firearm specifications.
{¶12} Further, 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 plea colloquy are at issue. Veney at ¶ 17. The test for prejudice is whether the plea
would have otherwise been made. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 32. Here, the trial court informed Owens that the maximum sentence
on the manslaughter charge would be 11 years instead of the correct sentence of 14 years.
However, even including the three-year firearm specification, Owens was sentenced to
10 years in prison, which is less than the maximum that was incorrectly stated by the trial
court and less than the correct maximum time of 14 years. Thus, Owens was not
prejudiced by the trial court’s failure to include the firearm specification in discussing the
maximum sentence for the involuntary manslaughter charge. Accordingly, Owens’s sole
assigned error is overruled.
{¶13} Judgment is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. Case remanded to the Cuyahoga County Common Pleas Court for execution
of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR