State v. Schultz

[Cite as State v. Schultz, 2013-Ohio-2218.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 CA 24
ANGELA K. SCHULTZ
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12 CR 44
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX THOMAS R. ELWING
PROSECUTING ATTORNEY 60 West Columbus Street
JOCELYN S. KELLY Pickerington, Ohio 43147
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12 CA 24 2
Wise, J.
{¶1} Appellant Angela K. Schultz appeals her conviction, in the Fairfield County
Court of Common Pleas, following her plea of guilty to one count of aggravated
vehicular homicide. Appellee is the State of Ohio. The relevant facts leading to this
appeal are as follows.
{¶2} On October 4, 2011, appellant drove from a bar with a blood alcohol level
that was almost triple the per se legal limit. At the time, appellant had three prior OVI
convictions, one conviction of physical control under the influence, and a suspended
driver’s license. Her vehicle ultimately collided with a car driven by Sara Renko, a
twenty-two year-old mother. Sara was killed in the crash. Sentencing Tr. at 6-10.
{¶3} On January 31, 2012, appellant was charged with one count of
aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1), a felony of the
second degree. The bill of information also charged a specification under R.C.
2941.1415, alleging appellant had been convicted or had pleaded guilty to three or more
violations of division (A) or (B) of R.C. 4511.19, or an equivalent offense.
{¶4} On March 28, 2012, appellant entered a plea of guilty to both the offense
of aggravated vehicular homicide and the accompanying specification.
{¶5} On April 4, 2012, appellant appeared before the trial court for a contested
sentencing hearing. At the hearing, the State argued the trial court should impose the
maximum term of eleven years for the offense plus the specification. Counsel for
appellant argued for the minimum sentence of five years. The trial court imposed the
maximum penalty of three years for the R.C. 2941.1415 specification, consecutive to
eight years in prison for the offense of aggravated vehicular homicide, for a total of
Fairfield County, Case No. 12 CA 24 3
eleven years in prison. The court also imposed a lifetime suspension of appellant's
driver's license under R.C. 2903.06(B)(2)(d).
{¶6} Appellant filed a notice of appeal on April 25, 2012. She herein raises the
following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED IN ACCEPTING MS. SHULTZ’S [SIC]
GUILTY PLEAS WHICH WERE NOT MADE KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY IN VIOLATION OF THE RIGHT TO DUE PROCESS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
I.
{¶8} In her sole assignment of error, appellant challenges the trial court’s
acceptance of her plea of guilty to the charge of aggravated vehicular homicide and the
accompanying specification.
{¶9} Ohio Criminal Rule 11(C) addresses pleas of guilty and no contest in
felony cases. It reads, in pertinent part:
{¶10} “* * *
{¶11} "(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:
{¶12} "(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.
Fairfield County, Case No. 12 CA 24 4
{¶13} "(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.
{¶14} "(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.
{¶15} "* * *”
{¶16} In regard to the specific constitutional rights referenced in Crim.R.
11(C)(2)(c), supra, the Ohio Supreme Court has set forth the following rule of law: “A
trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant
before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the
right to confront one's accusers, (3) the right to compulsory process to obtain witnesses,
(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the
privilege against compulsory self-incrimination. When a trial court fails to strictly comply
with this duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897
N.E.2d 621, 2008–Ohio–5200, syllabus.
{¶17} However, generally, in accepting a guilty plea, a trial court must
“substantially comply” with Crim.R. 11(C), which we review based on the totality of the
circumstances. See State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474;
State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In other words, “[f]or
Fairfield County, Case No. 12 CA 24 5
nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required; the trial
court must substantially comply, provided no prejudicial effect occurs before a guilty
plea is accepted.” State v. Osley, Lucas App.No. L–11–1236, 2013-Ohio-1267, ¶ 17,
citing State v. Stewart, (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.
{¶18} In the case sub judice, appellant asserts the trial court misinformed her
concerning the mandatory nature of her sentence, the availability and aspects of
community control, the possibility of judicial release, the nature of post-release control,
and the possibility of jail time credit. Appellant further asserts the trial court erred in
failing to inform appellant of the lifetime suspension of her driver's license before the
acceptance of her plea.
{¶19} We note the following colloquy occurred on the record during the March
28, 2012 plea hearing:
{¶20} “THE COURT: All right. Do you understand that in the event that the
Court orders a prison term to be served here, that even after completing that prison
term, you may be subject to a period of post-release control for a period of three years
after completion of that prison term?
{¶21} “If, during that period of supervision, you violate any one or more of the
terms and conditions of post-release control, the Court has the authority to send you to
prison to serve out the balance of your sentence. Also, if you would commit any new
offense, felony offense, and be convicted of that offense during the period of post-
release control, you could be ordered to serve that sentence consecutively to any other
term of imprisonment which results from violating post-release control.
{¶22} “Do you understand that?
Fairfield County, Case No. 12 CA 24 6
{¶23} “THE DEFENDANT: Yes, Your Honor.
{¶24} “The Court: Unless the Court is not permitted by law to do so, you could
be placed on community control, at least with regard to the underlying offense. And the
Court could suspend the further execution of that sentence and place you under the
supervision of the Court for up to a five-year period of time under certain terms and
conditions. But if you violate any one or more of the terms and conditions of community
control, the Court has the authority to send you to prison to serve out the balance of that
sentence. This provision with regard to community control would only apply to the
extent that you would be eligible for release on judicial release.
{¶25} “Do you understand that?
{¶26} “THE DEFENDANT: Yes, Your Honor.
{¶27} “The Court: In the event that the Court orders you to go to prison and
serve out a prison term, you may be eligible to earn days of credit toward that prison
term through participation in an education program, vocational training, employment in
prison industries, treatment for substance abuse, or any other constructive program
developed by the Department of Rehabilitation and Corrections. These days of credit
may not exceed eight percent of any prison term. And these credits are not
automatically earned, but are subject to administrative review by the Department of
Rehabilitations and Corrections, and can be taken away for certain rule violations.”
{¶28} Plea Tr. at 8-10.
{¶29} Following the trial court's acceptance of appellant's plea, the following
exchange also occurred on the record:
Fairfield County, Case No. 12 CA 24 7
{¶30} “[ASSISTANT PROSECUTOR] MR. MEADE: Yes, Your Honor, three
matters. This may be overkill, but three matters I’d ask the Court to place on record as
having notified Ms. Schultz, so as to protect the record.
{¶31} “First off, the Court, of course, did advise Ms. Schultz of the mandatory
nature and the maximum of both the specification and whatever sentence is imposed on
the underlying aggravated vehicular homicide charge, and did advise the maximum
possible penalty that the court may impose for the underlying vehicular homicide
charge.
{¶32} “However, I’d ask the court to also advise Ms. Schultz of the minimum
mandatory. Of course, since this is a mandatory period of incarceration for a second-
degree felony on the charge, as opposed to the specification, the charge alone, of
course, the minimum sentence would be two years for a - - plus, of course, whatever
the specification.
{¶33} “Secondly, Your Honor, I’d ask the Court advise Mr. [sic.] Schultz that it
appears that a PRC, post-release control, for a conviction on a second-degree felony in
this matter would actually be mandatory, I believe, for a period of three years, as
opposed to optional.
{¶34} “And finally, from my review of the statute, it would appear that, at least at
this point in time - - the law may be changed in the interim, but at this point, a felony
violation of Section 2903.06, if the section requires an imposition of a prison term, as it
does in this case, would not qualify Ms. Renko [sic] for potential days of credit.
{¶35} “* * *
Fairfield County, Case No. 12 CA 24 8
{¶36} "THE COURT: All right. Ms. Schultz, the Court would advise you that the
minimal penalty that applies to the offense of aggravated vehicular homicide is a period
of two years of actual mandatory incarceration. The maximum period of mandatory
incarceration is eight years.
{¶37} “The Court will also advise you that as far as the matter of earned credit,
that this is a matter that is, at this point, under some study by the Department of
Rehabilitations and Corrections, and you will be granted such earned prison credit as is
authorized by law.
{¶38} “And with regard to the second point, Mr. Meade, what was that?
{¶39} “MR. MEADE: That PRC, I believe, would be mandatory.
{¶40} “THE COURT: The Court would also advise you the post-release control is
for a mandatory three-year period of time after completion of the prison term.
{¶41} “Do you understand all those matters?
{¶42} “THE DEFENDANT: Yes, Your Honor.
{¶43} “THE COURT: All right. With understanding that, do you still wish to enter
your plea of guilty?
{¶44} “THE DEFENDANT: Yes.
{¶45} “THE COURT: All right. For the reasons already stated, the Court accepts
your plea of guilty and finds that it was knowingly, voluntarily and intelligently made in
this matter.”
{¶46} Plea Tr. at 14-15; 16-17 (emphases added).
{¶47} We also note the trial court explained that a period of "actual mandatory
incarceration" meant appellant would not be eligible, during such period of incarceration,
Fairfield County, Case No. 12 CA 24 9
to be placed on community control, to be granted release pursuant to an order of judicial
release, or otherwise be released from incarceration. See Plea Tr. 7-8, 16.
{¶48} Upon review, although some of the court’s initial recitations may have
caused some confusion via its references to, inter alia, the possibility of community
control sanctions and judicial release, we find the trial court sufficiently corrected these
concerns and substantially complied with the pertinent aspects of Crim.R. 11(C),
particularly by advising appellant of the mandatory terms and conditions pertaining to
her guilty plea.
{¶49} Finally, although the trial court failed to inform appellant of the lifetime
suspension of her driver’s license until after the acceptance of her plea, we do not find
vacation of appellant’s plea is warranted on that basis. In State v. Harris, 132 Ohio St.3d
318, 2012-Ohio-1908, the Ohio Supreme Court held that “[w]hen a trial court fails to
include a mandatory driver's license suspension as part of an offender's sentence, that
part of the sentence void, [and] [r]esentencing of the offender is limited to the imposition
of the mandatory driver's license suspension.” Id., at paragraph one of the syllabus.
Thus, had the trial court in the case sub judice failed to include appellant’s mandatory
lifetime license suspension in her sentence, reversal would be warranted for
resentencing. However, in regard to the propriety of appellant’s plea itself, we note in
State v. Green, Franklin App.No. 10AP-934, 2011-Ohio-6451, the Tenth District Court of
Appeals determined that even where a trial court did not personally inform a defendant
that his convictions for two counts of aggravated vehicular homicide (felonies of the third
degree) subjected him to a possible lifetime driver's license suspension, the trial court
nonetheless substantially complied with Crim.R. 11 where the defendant had signed a
Fairfield County, Case No. 12 CA 24 10
plea agreement before entering his guilty plea informing him of such a possibility. Id. at
¶11.
{¶50} In the case sub judice, appellant signed a document titled "Waiver upon
Plea of Guilty or No Contest." See Plea Tr. at 13. This document stated, inter alia, that
appellant understood the maximum penalties for aggravated vehicular homicide, and
the document informed appellant that the penalties included "a mandatory lifetime
suspension of my Ohio Driver's License or ability to obtain one." It was signed by
appellant and witnessed by her counsel and counsel for the State. Appellant also told
the trial court that she had no questions about the document. See id.
{¶51} We therefore extend the rationale of Green in this matter and hold that
appellant’s plea was valid even though the court did not inform her, during the plea
hearing, regarding the lifetime license suspension penalty.
{¶52} Accordingly, appellant's sole Assignment of Error is overruled.
{¶53} For the foregoing reasons, the judgment of the Court of Common Pleas of
Fairfield County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
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JUDGES
JWW/d 0429
Fairfield County, Case No. 12 CA 24 11
Hoffman, J., concurring in part and dissenting in part
{¶54} I concur in the majority’s analysis of Appellant’s assigned error as it
pertains to the sufficiency of the trial court’s colloquy concerning community control,
post release control and judicial release. However, I respectfully dissent from the
majority’s conclusion regarding the sufficiency of the trial court’s colloquy concerning
the mandatory lifetime driver’s license suspension.
{¶55} I find the majority’s reliance on State v. Harris 132 Ohio St.3d 318, 2012-
Ohio-1908, misplaced. The issue in Harris concerned the illegality of the sentence
imposed; not the sufficiency of the Crim.R. 11 plea colloquy.
{¶56} The record herein does not reflect Appellant was orally advised by the trial
court prior to the plea about the possibility of any license suspension, let alone a
mandatory lifetime license suspension. I find such failure does not constitute
substantial compliance with the rule. I disagree with the result reached by the Tenth
District in State v. Green, Franklin App. No. 10AP-934, 2011-Ohio-6451.
________________________________
HON. WILLIAM B. HOFFMAN
Fairfield County, Case No. 12 CA 24 12
Fairfield County, Case No. 12 CA 24 13
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANGELA K. SCHULTZ :
:
Defendant-Appellant : Case No. 12 CA 24
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES