State v. Adams

[Cite as State v. Adams, 2011-Ohio-2662.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95439
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LOWELL ADAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED
AND REMANDED IN PART
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-529961
BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.
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RELEASED AND JOURNALIZED: June 2, 2011
ATTORNEY FOR APPELLANT
Terrence K. Scott
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215-2998
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Lowell Adams (“Appellant”), appeals his convictions from the
Cuyahoga County Court of Common Pleas. Appellant argues that the trial
court erred by not informing him that his failure to pay court costs may
result in court ordered community service, that his trial counsel provided
ineffective assistance for failing to object to this omission, and that his guilty
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plea was not knowing, voluntary and intelligent because the court
inadequately informed him of his right to compulsory process. For the
following reasons we affirm, in part, and reverse, in part.
{¶ 2} Appellant was indicted on October 20, 2009. Appellant’s five
count indictment included charges of kidnapping (Count 1), rape (Count 2),
felonious assault (Count 3), domestic violence (Count 4), and endangering
children (Count 5). Appellant initially pled not guilty to the indictment.
On May 26, 2010, pursuant to a plea agreement between the State and
appellant, the State moved to amend count 2 (rape) to gross sexual
imposition pursuant to R.C. 2907.05(A)(4) and count 3 (felonious assault) to
child endangering pursuant to R.C. 2919.22(B)(2). Under the plea
agreement, appellant would plead guilty to the two amended counts and all
other remaining counts would be dismissed. Appellant entered a guilty plea
pursuant to this agreement and was sentenced on June 28, 2010 to
consecutive terms of five years on Count 2 and two years on Count 3.
Appellant was advised of a mandatory five year period of postrelease control.
Finally, the trial court ordered appellant to pay court costs. Appellant
subsequently appealed raising the three assignments of error contained in
the appendix of this opinion.
{¶ 3} In his first assignment of error, appellant argues that the trial
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court committed plain error when it failed to notify him that his failure to
pay court costs could result in his being ordered to perform community
service. R.C. 2947.23(A)(1) requires that at the time the trial court imposes
sentence, the court “shall” notify the defendant that if he fails to pay, or
make timely payments against, the judgment of court costs rendered against
him, the court “may order the defendant to perform community service * * *.
” The trial court did not provide this required notification to appellant. We
recently held in State v. Cardamone, Cuyahoga App. No. 94405,
2011-Ohio-818, that the appropriate remedy where a trial court fails to
provide the notice required pursuant to R.C. 2947.23(A)(1), is for the portion
of the trial court’s entry relative to court costs to be vacated and the case
remanded to the trial court for resentencing as to the issue of court costs.
Thus, appellant’s first assignment of error is sustained.
{¶ 4} In his second assignment of error, appellant argues that his trial
counsel provided ineffective assistance by failing to object when the trial
court imposed costs without notifiying him that the failure to pay such costs
could result in the court ordering him to perform community service. In
light of our ruling on appellant’s first assignment of error, we find that
appellant’s second assignment of error is moot and is hereby disregarded
pursuant to App.R. 12(A)(1)(c). State v. Burns, Gallia App. Nos. 08CA1,
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08CA2, 08CA3, 2009-Ohio-878, at ¶13.
{¶ 5} Appellant argues in his third assignment of error that his guilty
plea must be vacated due to the fact that it was not knowing, voluntary, and
intelligent because the trial court failed to correctly explain his right to
compulsory process and failed to apprise him of the maximum sentence he
faced.
{¶ 6} 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.
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. “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).” Id.{¶ 7} Crim.R. 11(C) sets forth a trial court’s duties in accepting guilty
pleas and states as follows:
{¶ 8} “(2) In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following:
{¶ 9} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the
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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.
{¶ 10} “(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.
{¶ 11} “(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to 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.”
{¶ 12} The trial court must strictly comply with its duties of notifying
the defendant of his constitutional rights and 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 (1981), 66 Ohio St.2d 473, 423 N.E.2d 115, at
paragraph one of the syllabus. “Strict compliance” does not require an exact
recitation of the precise language of the rule but instead focuses on whether
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the trial court explained or referred to the right in a manner reasonably
intelligible to that defendant. Ballard, at paragraph two of the syllabus.
{¶ 13} With regard to notification of the constitutional right of
compulsory process, we have previously stated that, “[a]lthough a trial court
need not specifically tell a defendant that he has the right to ‘compulsory
process,’ it must nonetheless ‘inform a defendant that it has the power to
force, compel, subpoena, or otherwise cause a witness to appear and testify
on the defendant’s behalf.’” State v. Cummings, Cuyahoga App. No. 83759,
2004-Ohio-4470, quoting State v. Wilson, Cuyahoga App. No. 82770,
2004-Ohio-499, at ¶16, appeal not allowed, 102 Ohio St.3d 1484,
2004-Ohio-3069, 810 N.E.2d 968.
{¶ 14} Prior to accepting appellant’s guilty plea in this case, the trial
court informed appellant, “Sir, if you had a trial, counsel would be with you.
He’d have a right to ask questions and challenge the case against you. You
have a right to call witnesses. You could subpoena them for trial. * * * ”
(Emphasis added.) (Tr. 27.)
{¶ 15} We have previously held that the use of the word “subpoena”
adequately informs the defendant of his right to compulsory process. State
v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, appeal not allowed by
110 Ohio St.3d 1443, 2006-Ohio-3862, 852 N.E.2d 190; State v. Senich,
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Cuyahoga App. No. 82581, 2003-Ohio-5082; State v. Gurley (June 5, 1997),
Cuyahoga App. No. 70586. In State v. Moulton, Cuyahoga App. No. 93726,
2010-Ohio-4484, we held that the trial court’s statement that the defendant
had a right to “subpoena and call witnesses” clearly informed her at the time
of her plea of her right to compulsory process. Id. at ¶12.
{¶ 16} In the present case, we find the trial court’s statements that,
“[y]ou have a right to call witnesses. You could subpoena them for trial”
adequately informed appellant at the time of his plea of his right to
compulsory process. We find that the trial court strictly complied with the
requirements of Crim.R. 11(C) in accepting appellant’s waiver of his right to
compulsory process.
{¶ 17} Finally, appellant argues that the trial court failed to inform him
of maximum potential penalty for his offenses because it failed to inform him
that in the event that he fails to pay court costs, he may be ordered to
perform community service.
{¶ 18} The trial court’s duty to inform the defendant of the maximum
potential penalty for each offense is a nonconstitutional requirement of
Crim.R. 11(C)(2)(a). State v. Scott, Cuyahoga App. Nos. 84381, 84382,
84383, 84384, 84389, 2005-Ohio-3690, citing State v. Griggs, 103 Ohio St.3d
85, 87, 2004-Ohio-4415, 814 N.E.2d 51.
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{¶ 19} 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 substantial compliance with the rule. Veney, at ¶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.
{¶ 20} 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.
{¶ 21} Though appellant presents this argument only in passing and
provides no legal support for his position, we note that the Ohio Supreme
Court has stated that, “[A]lthough costs in criminal cases are assessed at
sentencing and are included in the sentencing entry, costs are not
punishment, but are more akin to a civil judgment for money.” State v.
Joseph, 125 Ohio St.3d 76, 79, 2010-Ohio-954, 926 N.E.2d 278, 281, quoting
State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶15.
{¶ 22} In State v. McDaniel, Vinton App. No. 09CA677, 2010-Ohio-5215,
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¶ 20-21, the Fourth District Court of Appeals, citing Joseph and Threatt,
held that “[c]ourt costs are not punishment and therefore are not part of the
‘penalty’ that the trial court needs to describe under Crim.R. 11(C)(2)(a).”
The Twelfth District Court of Appeals reached the same conclusion in State
v. Smith, Warren App. No. CA2010-06-057, 2011-Ohio-1188.
{¶ 23} We agree with the reasoning of the Fourth and Twelfth Districts
and hold that court costs are not punishment, and thus are not part of the
“maximum penalty involved” for purposes of Crim.R. 11(C)(2)(a). Therefore,
the trial court did not need to inform appellant that his failure to pay court
costs could potentially subject him to community service in order to inform
him of the “maximum penalty involved,” as required by Crim.R. 11(C)(2)(a).
Appellant’s third assignment of error is overruled.
{¶ 24} The judgment of the trial court is affirmed in part and reversed
and remanded in part. On remand, a hearing shall be held for only the
proper notification of the penalty for a failure to pay court costs.
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.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
JAMES J. SWEENEY, P.J., and
KATHLEEN A. KEOUGH, J., CONCUR
Appendix
Assignment of Error No. 1:
“The trial court committed plain error by imposing court costs without
notifying Mr. Adams that his failure to pay such costs may result in
the court’s ordering him to perform community service.”
Assignment of Error No. 2:
“Trial counsel provided ineffective assistance, in violation of the Sixth
and Fourteenth Amendments to the United States Constitution and
Section 10, Article I of the Ohio Constitution, for failing to object to the
trial court’s imposition of court costs, as the trial court did not notify
Mr. Adams that his failure to pay court costs may result in the court’s
ordering him to perform community service.”
Assignment of Error No. 3:
“Lowell Adams was deprived of his right to due process under the
Fourteenth Amendment to the United States Constitution and Section
10, Article I of the Ohio Constitution when the trial court accepted an
unknowing, unintelligent, and involuntary guilty plea.”
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