State v. Mincik

[Cite as State v. Mincik, 2020-Ohio-1385.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108625
v. :
DAVID A. MINCIK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 9, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-633404-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marcus Henry, Assistant Prosecuting
Attorney, for appellee.
Thomas A. Rein, for appellant.
RAYMOND C. HEADEN, J.:
Defendant-appellant David A. Mincik (“Mincik”) appeals from his
conviction and sentence following a guilty plea. For the reasons that follow, we
affirm.
Procedural and Substantive History
On November 1, 2018, the Cuyahoga County Grand Jury indicted
Mincik on four counts of gross sexual imposition in violation of R.C. 2907.05(A)(4)
with sexually violent predator specifications, two counts of disseminating matter
harmful to juveniles in violation of R.C. 2907.31(A)(3) with furthermore clauses, and
three counts of rape in violation of R.C. 2907.02(A)(1)(b) with furthermore clauses
and sexually violent predator specifications.
On March 26, 2019, Mincik pleaded guilty to two amended counts of
gross sexual imposition with the sexually violent predator specifications deleted, an
amended count of attempted rape with a sexually violent predator specification, and
one count of disseminating matter harmful to juveniles. The remaining counts and
specifications were nolled.
The court referred Mincik to the probation department for
preparation of a presentence-investigation report (“PSI”). On May 6, 2019, the court
held a sentencing hearing. The court heard from the prosecutor, defense counsel,
Mincik, and the victims’ sister. Further, the court stated that it reviewed the
sentencing memorandum, victim-impact statements, and PSI. Finally, the court
stated that it considered the principles and purposes of felony sentencing. The court
sentenced Mincik to five years on each count of gross sexual imposition and 18
months on the count of disseminating matter harmful to juveniles, to run
concurrent. The court also sentenced Mincik to eight years on the count of
attempted rape, to run consecutive, for a total sentence of 13 years with five years of
mandatory postrelease control. The court also imposed court costs on Mincik.
Mincik appeals, presenting three assignments of error for our review.
Law and Analysis
I. Guilty Plea
In his first assignment of error, Mincik argues that his guilty plea was
not knowingly, intelligently, or voluntarily entered because the trial court failed to
inform him of the maximum potential penalties he faced. Specifically, Mincik
argues that the trial court failed to inform him that he was subject to five years of
mandatory postrelease control.
The underlying purpose of Crim.R. 11 is to convey certain information
to a defendant so that they can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d
115 (1981). “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. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51
Ohio St.2d 86, 364 N.E.2d 1163 (1977).
In order to ensure that a defendant enters a plea knowingly,
voluntarily, and intelligently, a trial court must engage in an oral dialogue with the
defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996). Crim.R. 11(C) outlines the trial court’s duties in accepting
guilty pleas:
(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:
(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 doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.
With respect to the nonconstitutional aspects of Crim.R. 11(C), including an
understanding of the nature of the charges and the maximum penalty involved, the
trial court must substantially comply with the rule. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14.
Substantial compliance means that under the totality of the
circumstances, the defendant subjectively understands the implication of his plea
and the rights he is waiving. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474(1990). In cases involving a mandatory period of postrelease control, the postrelease
control is part of the maximum penalty involved. State v. Perry, 8th Dist. Cuyahoga
No. 82085, 2003-Ohio-6344, ¶ 10. Therefore, we review for substantial compliance.
Here, it is undisputed that the trial court made no reference to
mandatory postrelease control when it was outlining the maximum potential
penalties Mincik faced at the plea hearing. The prosecutor, however, properly
advised Mincik regarding mandatory postrelease control when it outlined the terms
of his plea agreement. Defense counsel subsequently confirmed that the
prosecutor’s recitation of the plea was accurate.
We are mindful that it is the best practice for the trial court to advise
the defendant of the maximum sentence he or she faces, including postrelease
control. Crim.R. 11 outlines a trial court’s duties and specifically requires the court
to address the defendant and advise the defendant of his or her constitutional and
nonconstitutional rights prior to accepting a guilty plea, and deviating from the rule
creates “an appearance that the trial court is abdicating its duties to the prosecutor
when accepting a defendant’s guilty plea.” State v. Evans, 8th Dist. Cuyahoga
No. 100151, 2014-Ohio-3584, ¶ 9.
Although the trial court in this case strayed from this best practice,
this court has consistently found substantial compliance where a defendant is
advised of nonconstitutional rights by a prosecutor of defense counsel and has failed
to show prejudice. Id., citing State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and
100399, 2014-Ohio-2275; 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.
Mincik argues that he is not required to show prejudice because the
court failed to comply at all with Crim.R. 11. We disagree. Crim.R. 11(C)(2)(a)
requires that the trial court “determine” that the defendant has an “understanding
of the nature of the charges and of the maximum penalty involved.” While other
parts of the rule, including Crim.R. 11(C)(2)(b) and (c), clearly place a burden on the
court to inform the defendant of certain rights, the plain language of the rule creates
no such burden with respect to the maximum potential penalty. In addition, our
review of the record shows nothing that would indicate Mincik was prejudiced when
he was advised of postrelease control by the state and not the trial court. Because
we conclude that the trial court substantially complied with Crim.R. 11 and Mincik
has failed to demonstrate prejudice, we overrule his first assignment of error.
II. Consecutive Sentences
In his second assignment of error, Mincik argues that the trial court
erred by ordering him to serve consecutive sentences without making the required
findings pursuant to R.C. 2929.14.
Pursuant to R.C. 2953.08, a reviewing court may overturn the
imposition of consecutive sentences where it clearly and convincingly finds that the
trial court failed to make the required findings under R.C. 2929.14(C)(4), or that the
record does not support the sentencing court’s findings under R.C. 2929.14(C)(4),
or the sentence is otherwise contrary to law.
R.C. 2929.14(C)(4) requires a sentencing court to make certain
findings before imposing consecutive sentences. First, the trial court must find that
consecutive sentences are necessary to protect the public from future crime or to
punish the offender. R.C. 2929.14(C)(4). The court must also find that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public. Id. Finally, the court must find any
one of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4). Beyond making these findings on the record, the court must
also incorporate the findings into its sentencing entry. State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.
A trial court is not required to recite the statutory language exactly,
but it must be clear from the record that the court actually made the findings
required by statute. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 14, 17 (8th
Dist.).
Here, the trial court stated that consecutive sentences were necessary
to protect the community and to punish the offender and were not disproportionate
to the seriousness of the offender’s conduct. The court also found that Mincik
pleaded guilty to multiple acts over a period of several years, and these acts created
serious harm. Finally, the court stated that consecutive sentences were necessary
because the harm was so great or unusual that a single term would not adequately
reflect the seriousness of Mincik’s conduct. These findings satisfied the
requirements of R.C. 2929.14. It is clear from the record that the court made the
required findings under R.C. 2929.14. Therefore, Mincik’s second assignment of
error is overruled.
III. Court Costs
In his third assignment of error, Mincik argues that the imposition of
court costs infringed upon his due process rights. Specifically, Mincik argues that
because the court had previously found him indigent, the court should not have
imposed a financial sanction in the form of court costs. We disagree.
R.C. 2947.23(A)(1)(a) provides that in all criminal cases, the judge
“shall include in the sentence the costs of prosecution, including any costs under
section 2947.231 of the Revised Code, and render a judgment against the defendant
for such costs.” In ordering a defendant to pay court costs, the court is not required
to consider the defendant’s ability to pay. State v. Jones, 8th Dist. Cuyahoga
No. 105719, 2018-Ohio-847, ¶ 19.
Mincik submits that court costs are a financial sanction, and
therefore, the court was required to consider his ability to pay. Pursuant to
R.C. 2929.19(B)(5), a court is required to consider a defendant’s ability to pay before
imposing a financial sanction, such as restitution. This court has consistently held
that court costs, however, are not such a financial sanction that imposes a similar
burden on trial courts. Id., citing State v. Dawson, 2017-Ohio-965, 86 N.E.3d 672,
¶ 42 (8th Dist.). Therefore, we overrule Mincik’s third assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial 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.
RAYMOND C. HEADEN, JUDGE
EILEEN T. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR