State v. Shough

[Cite as State v. Shough, 2013-Ohio-3329.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
BENNIE SHOUGH : Case No. 13-CA-3
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
12 CR 00296
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 29, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER
Licking County Prosecutor 470 Olde Worthington Rd., Ste. 200
Westerville, OH 43082
By: JUSTIN T. RADIC
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 13-CA-3 2
Baldwin, J.
{¶1} Defendant-appellant Bennie Shough appeals his sentence from the
Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 4, 2012, the Licking County Grand Jury indicted appellant on
one count of aggravated possession of drugs (methamphetamine) in violation of R.C.
2925.11(A)(C)(1)(a), a felony of the fifth degree, one count of possession of cocaine in
violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth degree, and one count of
possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of
the fourth degree. At his arraignment on July 31, 2012, appellant entered a plea of not
guilty to the charges.
{¶3} Subsequently, on December 13, 2012, appellant withdrew his former not
guilty plea and entered a plea of no contest to the charges contained in the indictment.
The trial court found appellant guilty of the charges. Appellee recommended that
appellant’s total sentence not exceed nine (9) months on all counts. Pursuant to a
Judgment Entry filed on December 14, 2012, the trial court sentenced appellant to an
aggregate prison sentence of eighteen (18) months. The trial court also ordered that
appellant’s sentence run consecutively with any sentence imposed in Case No. 12 CR
00469. The trial court, in its Judgment Entry, also sentenced appellant to a period of
three (3) years of post-release control and denied appellant’s post-sentence oral motion
to withdraw his plea. Appellant had made such motion on the basis that he did not
receive the recommended sentence.
{¶4} Appellant now raises the following assignments of error on appeal:
Licking County, Case No. 13-CA-3 3
{¶5} THE TRIAL COURT RENDERED APPELLANT’S NO CONTEST PLEA
INVOLUNTARY AND VIOLATED APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS BY IMPOSING A SENTENCE THAT EXCEEDED THE
AGREED-UPON SENTENCING RECOMMENDATION.
{¶6} THE TRIAL COURT VIOLATED APPELLANT’S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS, CRIM.R. 11, AND R.C. 2943.032, WHEN IT FAILED TO
EXPLAIN THE MAXIMUM PENALTY DURING THE PLEA COLLOQUY BY OMITTING
THE PENALTY FOR VIOLATING POST-RELEASE CONTROL.
I
{¶7} Appellant, in his first assignment of error, argues that his no contest plea
was not voluntary because the trial court imposed a sentence that exceeded the agreed
upon sentencing recommendation. We disagree.
{¶8} Crim.R. 11(C)(2) reads as follows:
{¶9} “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:
{¶10} “(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.
{¶11} “(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.
Licking County, Case No. 13-CA-3 4
{¶12} “(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.”
{¶13} In accepting a plea, a trial court must substantially comply with Crim.R. 11.
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Substantial compliance
with Crim.R. 11(C) is determined upon a review of the totality of the circumstances.
State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). Furthermore, it is well
established that a trial court is not bound to accept a sentence recommendation
proposed by the prosecution. See, e.g., Akron v. Ragsdale, 61 Ohio App.2d 107, 109,
399 N.E.2d 119 (9th Dist. 1978).
{¶14} A trial court does not err by imposing a sentence greater than “that
forming the inducement for the defendant to plead guilty when the trial court forewarns
the defendant of the applicable penalties, including the possibility of imposing a greater
sentence than what is recommended by the prosecutor.” State v. Buchanan, 154 Ohio
App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, paragraph 13, citing State v. Pettiford,
12th Dist. Fayette No. CA2001–08–014, at 3, 2002 WL 652371 (Apr. 22, 2002). Crim.R.
11 “does not contemplate that punishment will be a subject of plea bargaining, this
being a matter either determined expressly by statute or lying with the sound discretion
of the trial court.” State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d 539 (10th Dist.
1982).
Licking County, Case No. 13-CA-3 5
{¶15} In the case sub judice, the following colloquy took place on the record:
{¶16} Q. Do you agree with those facts that have been set forth by the state,
Mr. Shough?
{¶17} A. Yes, sir.
{¶18} Q. Have you discussed the facts and circumstances of your case,
along with all of your possible defenses or affirmative defenses, fully and completely
with your attorney?
{¶19} A. Yes, sir.
{¶20} Q. Are you satisfied with the advice your attorney has given you today
and throughout the course of these proceedings?
{¶21} A. Yes, sir.
{¶22} Q. Do you understand, Mr. Shough, nobody can make you change
your plea here today?
{¶23} A. Yes, sir.
{¶24} Q. Are you changing your plea freely and voluntarily, knowing what
your rights are?
{¶25} A. Yes, sir.
{¶26} Q. Have there been any threats or promises or anything offered to you
or given to you today to make you do this?
{¶27} A. No, sir.
{¶28} Q. Do you understand, Mr. Shough, that should the court permit you to
change your plea here today, should the Court then enter a guilty finding, generally all
that would remain to be done is to proceed with sentencing, and that sentence could
Licking County, Case No. 13-CA-3 6
consist of a term of two years at a state penitentiary, a fine of $5,250, a suspension of
your driver’s license, and three years of post-release control?
{¶29} A. Yes, sir.
{¶30} Q. Do you understand that’s the maximum possible entire sentence?
Do you understand that?
{¶31} A. Yes, sir.
{¶32} Transcript at 11-14.
{¶33} Upon review of the record and the totality of the circumstances
surrounding the plea in this case, we find that the trial court sufficiently explained the
potential incarceration period, and we hold that the trial court did not err in finding
appellant entered a voluntary, knowing, and intelligent plea. See State. v Deresse, 5th
Dist. Licking No. 09 CA 11, 2009-Ohio-6725.
{¶34} Appellant’s first assignment of error is, therefore, overruled.
II
{¶35} Appellant, in his second assignment of error, argues that the trial court
erred by failing to inform him, at the plea hearing, of the penalty for violating post-
release control. We disagree.
{¶36} Post-release control constitutes a portion of the maximum penalty. State v.
Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011–Ohio–1202. In State v. Sarkozy,
117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the Ohio Supreme Court held in
paragraph 25 as follows:
“ * * * if a trial court fails during a plea colloquy to advise a defendant that
the sentence will include a mandatory term of postrelease control, the defendant
Licking County, Case No. 13-CA-3 7
may dispute the knowing, intelligent, and voluntary nature of the plea either by
filing a motion to withdraw the plea or upon direct appeal. Further, we hold that if
the trial court fails during the plea colloquy to advise a defendant that the
sentence will include a mandatory term of postrelease control, the court fails to
comply with Crim.R. 11 and the reviewing court must vacate the plea and
remand the cause.”
{¶37} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only “substantially comply’ with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Dunham, 5th Dist. Richland No.2011–CA–121,
2012–Ohio–2957, citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v.
Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, paragraph 12, the Ohio
Supreme Court noted the following test for determining substantial compliance with
Crim.R. 11:
{¶38} “Though failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption that it was entered involuntarily
and unknowingly, failure to comply with non constitutional rights will not invalidate a plea
unless the defendant thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d
106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have
otherwise been made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant's] plea and determine whether he
subjectively understood [the effect of his plea]”.
Licking County, Case No. 13-CA-3 8
{¶39} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d
462. The trial court must strictly comply with those provisions of Crim.R. 11(C) that
relate to the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244. In
Clark, supra, decided after Sarkozy, the Ohio Supreme Court concluded that:
{¶40} “[I]f the trial judge [ in conducting a plea colloquy] imperfectly explained
non-constitutional 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 governing rule is permissible, and 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.” Id. at ¶ 31.
{¶41} Thus, in Clark, the Ohio Supreme Court concluded that the right to be
informed of the maximum possible penalty and the effect of the plea are subject to the
substantial compliance test. 119 Ohio St.3d at 244, ¶ 31. (Citations omitted).
{¶42} The present case involves the notification of post-release control during a
plea colloquy. As such, we review the trial court's plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to
be informed of the maximum penalty. Under the substantial-compliance standard, we
analyze the totality of circumstances surrounding appellant’s plea and determine
whether he subjectively understood the effect of his plea.
Licking County, Case No. 13-CA-3 9
{¶43} In the case sub judice, the trial court, at the plea hearing, advised
appellant that if he violated the terms of post-release control, “you’re subject to being
returned to the penitentiary for more incarceration even though you’ve served out your
entire sentence.” Transcript at 13-14. The plea form signed by appellant on December
13, 2012 states, in relevant part, as follows: “If I violate conditions of supervision while
under post release control, the Parole Board could return me to prison for up to nine
months for each violation, for repeated violations up to ½ of my originally stated prison
term. If the violation is a new felony, I could receive a prison term of the greater of one
year or the time remaining on post release control, which would be consecutive to any
other prison term imposed for the new offense.”
{¶44} As conceded by appellant, this Court, under similar circumstances, has
found substantial compliance with Crim.R. 11(C). See State v. Alexander, 5th Dist.
Stark No. 2012CA00115, 2012-Ohio-4843. See also State v. Harris, 5th Dist. Licking
No. 12 CA 82, 2013-Ohio-2056.
{¶45} Based on the foregoing, we find that, under the totality of circumstances,
the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) at the
plea hearing.
{¶46} Appellant’s second assignment of error is, therefore, overruled.
Licking County, Case No. 13-CA-3 10
{¶47} Accordingly, the judgment of the Licking County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P. J. and
Farmer, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
CRB/dr
[Cite as State v. Shough, 2013-Ohio-3329.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
BENNIE SHOUGH :
:
Defendant - Appellant : CASE NO. 13-CA-3
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Cost
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER