State v. Summit

[Cite as State v. Summit, 2021-Ohio-4562.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-21-06
v.
CATHERINE E. SUMMIT, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 2021 2007
Judgment Affirmed
Date of Decision: December 27, 2021
APPEARANCES:
Michael B. Kelley for Appellant
Andrew R. Tudor for Appellee
Case No. 6-21-06
ZIMMERMAN, J.
{¶1} Defendant-appellant, Catherine E. Summit (“Summit”), appeals the
May 21, 2021 judgment entry of sentence of the Hardin County Court of Common
Pleas. We affirm.
{¶2} On January 14, 2021, the Hardin County Grand Jury indicted Summit
on Count One of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a),
(B)(1), a third-degree felony, Count Two of vehicular assault in violation of R.C.
2903.08(A)(2)(b), (C)(2), a fourth-degree felony, Count Three of aggravated
vehicular homicide in violation of R.C. 2903.06(A)(1)(a), (B)(2)(a), a second-
degree felony, and Count Four of aggravated vehicular homicide in violation of R.C.
2903.06(A)(2)(a), (B)(3), a third-degree felony. (Doc. No. 1). On February 1, 2021,
Summit appeared for arraignment and entered pleas of not guilty. (Doc. No. 11).
{¶3} On February 10, 2021, under a superseding indictment, the Hardin
County Grand Jury indicted Summit on one additional count: Count Five of
operating a motor vehicle while under the influence of alcohol or drugs of abuse
(“OVI”) in violation of R.C. 4511.19(A)(1)(j)(i), (G)(1)(a), a first-degree
misdemeanor. (Doc. No. 15). On March 16, 2021, Summit filed a written plea of
not guilty to the superseding indictment. (Doc. No. 21).
{¶4} On April 8, 2021, Summit withdrew her pleas of not guilty and entered
guilty pleas, under a written plea agreement, to Counts One, Three, and Five of the
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superseding indictment. (Doc. No. 29). In exchange for her change of pleas, the
State agreed to recommend that the trial court impose a sentence of 30 months in
prison on Count One, a minimum term of four years in prison to a maximum term
of six years in prison on Count Three, and 6 months in prison on Count Five. (Apr.
8, 2021 Tr. at 5, 7). Further, as part of the agreement, the State agreed to recommend
that the trial court order the sentences to be served consecutively for an aggregate
minimum term of seven years in prison to a maximum term of nine years in prison.
The trial court accepted Summit’s guilty pleas, found her guilty of Counts One,
Three, and Five, and ordered a pre-sentence investigation. (Doc. No. 30).
{¶5} On May 21, 2021, the trial court imposed the joint-sentencing
recommendation and dismissed Counts Two and Four. (Doc. No. 37).
{¶6} On June 16, 2021, Summit filed a notice of appeal. (Doc. No. 42). She
raises two assignments of error for our review.
Assignment of Error No. I
The trial court erred when it accepted the Appellant’s guilty plea
as that plea was not knowingly, intelligently, and voluntarily
given.
{¶7} In her first assignment of error, Summit argues that her guilty pleas
were not made knowingly, intelligently, and voluntarily.1
1
To the extent that the State suggests that Summit’s argument that her guilty pleas were not made knowingly,
intelligently, and voluntarily is not subject to appellate review under R.C. 2953.08(D)(1) since Summit’s
sentence was jointly recommended and imposed by the trial court, the State’s argument is without merit.
Accord State v. Jones, 3d Dist. Crawford No. 3-19-11, 2020-Ohio-3919, ¶ 6.
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Standard of Review
{¶8} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “‘“Failure on
any of those points renders enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.”’” State v. Montgomery, 3d
Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527. Crim.R. 11(C)(2), which
governs guilty pleas for felony-level offenses, provides:
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:
(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 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
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doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶9} “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 the
defendant’s constitutional rights.” Montgomery at ¶ 11, citing Veney at ¶ 31.
“‘When a trial court fails to strictly comply with this duty, the defendant’s plea is
invalid.’” Id., quoting Veney at ¶ 31. “A trial court, however, is required to only
substantially comply with the non-constitutional notifications in Crim.R.
11(C)(2)(a) and (b).” Id., citing Veney at ¶ 14-17.
{¶10} “An appellate court reviews the substantial-compliance standard
based upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived.” Id. at ¶ 12, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-
Ohio-509, ¶ 20. “‘Furthermore, a defendant who challenges his guilty plea on the
basis that it was not knowingly, intelligently, and voluntarily made must show a
prejudicial effect. * * * The test is whether the plea would have otherwise been
made.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).
Analysis
{¶11} On appeal, Summit argues that her guilty pleas were not knowing,
intelligent, or voluntary because the trial court did not comply with the notifications
required by Crim.R. 11(C)(2). Since Summit argues only that her guilty pleas were
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not knowing, intelligent, or voluntary because the trial court failed to comply with
the notifications required by Crim.R. 11(C), we are assuming that Summit is
challenging only her guilty pleas to the felony-level offenses. See Crim.R. 11(E).
See also State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, paragraph one of the
syllabus. Accordingly, we will address only whether her guilty pleas to the
aggravated-vehicular-assault and aggravated-vehicular-homicide charges were
knowing, intelligent, and voluntary.
{¶12} Based on our review of the record, the trial court complied with the
notifications required by Crim.R. 11(C)(2)—that is, the trial court strictly complied
with the notifications required by Crim.R. 11(C)(2)(c) and substantially complied
with the notifications required by Crim.R. 11(C)(2)(a) and (b) when accepting
Summit’s guilty pleas for her felony-level offenses.
{¶13} Because Summit informed the trial court that she wanted to plead
guilty, the trial court conducted a comprehensive and detailed Crim.R. 11 colloquy
during which Summit acknowledged her guilt. Specifically, the record supports that
trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) by
informing Summit of the nature of the charges, the maximum penalty, and that
Summit was ineligible probation or the imposition of community-control sanctions.
(Apr. 8, 2021 Tr. at 20-34, 42-45). (Doc. No. 29). Accord State v. Short, 3d Dist.
Logan No. 8-19-19, 2019-Ohio-3322, ¶ 15.
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{¶14} The record further supports that the trial court substantially complied
with the requirements of Crim.R. 11(C)(2)(b). “Crim.R. 11(C)(2)(b) requires the
trial court to inform the defendant of the effect of his guilty or no-contest plea and
to determine whether he understands that effect.” State v. Jones, 2d Dist.
Montgomery No. 25688, 2014-Ohio-5574, ¶ 7, citing Jones, 116 Ohio St.3d 211,
2007-Ohio-6093, at ¶ 12 and State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,
¶ 10-12. See also Crim.R. 11(B). “To satisfy the effect-of-plea requirement under
Crim.R. 11(C)(2)(b), a trial court must inform the defendant, either orally or in
writing, of the appropriate language in Crim.R. 11(B).” Id. at ¶ 8, citing Jones at ¶
25, 51. Specifically, under Crim.R. 11(B), the trial court was required to inform
Summit that “[t]he plea of guilty is a complete admission of [her] guilt.” Crim.R.
11(B)(1). Here, the trial court informed Summit of the effect of her guilty plea and
informed her that it could proceed with judgment and sentence upon acceptance of
her plea, which Summit acknowledged in open court. (Apr. 8, 2021 Tr. at 12).
{¶15} Finally, the record supports that the trial court strictly complied with
Crim.R. 11(C)(2)(c) during its colloquy with Summit at the change-of-plea hearing.
(Id. at 13-20). Accord Short at ¶ 17. Specifically, Summit advised the trial court
that she understood the rights that she was waiving by pleading guilty. (Apr. 8,
2021 Tr. at 13-20). Moreover, Summit did not provide this court with any
argument—much less establish—that she was prejudiced by the trial court’s
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acceptance of her guilty pleas in this case. That is, that she would not have pleaded
guilty but for the trial court’s alleged errors. See Montgomery, 2014-Ohio-1789, at
¶ 13. Consequently, we are not persuaded that the trial court erred by accepting
Summit’s guilty pleas. Accord Short at ¶ 17.
{¶16} For these reasons, Summit’s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred when sentencing Appellant as the record
does not support the sentencing court’s findings, and/or the
sentence is contrary to law.
{¶17} In her second assignment of error, Summit challenges the sentences
imposed by the trial court and challenges the trial court’s order that she serve the
sentences consecutively.2 Specifically, Summit argues that “consecutive sentences
or any sentence greater than the minimums” are unsupported by the record and are
contrary to law.
Standard of Review
{¶18} R.C. 2953.08(A) provides specific grounds for a defendant to appeal
a sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10. Under
R.C. 2953.08(G)(2), an appellate court will reverse a sentence “only if it determines
by clear and convincing evidence that the record does not support the trial court’s
2
Because Summit’s arguments relate to only Ohio’s felony-sentencing scheme, we are assuming that Summit
is challenging only her felony sentences. Accordingly, we will address only the sentences imposed as to her
aggravated-vehicular-assault and aggravated-vehicular-homicide convictions.
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findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing
evidence is that “‘which will produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.’” Id. at ¶ 22, quoting Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
Analysis
{¶19} However, under R.C. 2953.08(D)(1), “[a] sentence imposed upon a
defendant is not subject to review under this section if the sentence is authorized by
law, has been recommended jointly by the defendant and the prosecution in the case,
and is imposed by a sentencing judge.” “[A] sentence is ‘authorized by law’ and is
not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with
all sentencing provisions.” Underwood at ¶ 20. “[W]hen a sentence fails to include
a mandatory provision, it may be appealed because such a sentence is ‘contrary to
law’ and is also not ‘authorized by law.’” Id. at ¶ 21.
{¶20} Here, there is no dispute that that Summit’s sentence was jointly
recommended by the parties and imposed by the trial court. Moreover, Summit’s
sentence is authorized by law and is not contrary to law.
{¶21} “‘[T]rial courts have full discretion to impose any sentence within the
statutory range.’” State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225,
¶ 10, quoting State v. Noble, 3d Dist. Logan No. 8-14-06, 2014-Ohio-5485, ¶ 9,
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citing State v. Saldana, 3d Dist. Putnam No. 12-12-09, 2013-Ohio-1122, ¶ 20. In
this case, aggravated vehicular assault, as a third-degree felony, carries a mandatory
sanction of 12-to-60 months in prison and aggravated vehicular homicide as a
second-degree felony, carries a mandatory sanction of two-years to eight-years of
imprisonment. R.C. 2903.08(B)(1); 2903.06(B)(2)(a), (E)(1); 2929.13(F)(4);
2929.14(A)(2)(b), (3)(a). Because the trial court sentenced Summit to 30 months in
prison on Count One and to a minimum term of four years in prison to a maximum
term of six years in prison on Count Three, the trial court’s sentence falls within the
statutory range.
{¶22} Nevertheless, Summit argues that her sentence is not supported by the
record because the trial court did not properly weigh the R.C. 2929.12 factors.
Likewise, Summit argues that the trial court erred by imposing consecutive
sentences without considering whether the record supports the factors under R.C.
2929.14(C). However, because Summit’s sentence was jointly recommended by
the parties and was followed by the trial court, we need not review Summit’s
arguments. That is,
R.C. 2953.08(D)(1) [bars] appeals that would otherwise challenge [a
trial] court’s discretion in imposing a sentence, such as whether the
trial court complied with statutory provisions like R.C. 2929.11 (the
overriding purposes of felony sentencing), 2929.12 (the seriousness
and recidivism factors), [or] 2929.13(A) through (D) (the sanctions
relevant to the felony degree) or whether consecutive or maximum
sentences were appropriate under certain circumstances.
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Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, at ¶ 22. See also State v. Sergent,
148 Ohio St.3d 94, 2016-Ohio-2696, ¶ 43 (holding that “a trial court is not required
to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4)” and that
“when a trial judge imposes such an agreed sentence without making those findings,
the sentence is nevertheless ‘authorized by law’ and not reviewable on appeal
pursuant to R.C. 2953.08(D)(1)”). Consequently, Summit’s sentence is authorized
by law and is not contrary to law.
{¶23} Therefore, Summit’s second assignment of error is overruled.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/jlr
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