State v. Milite

[Cite as State v. Milite, 2020-Ohio-5384.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-L-061
- vs - :
NICHOLE MILITE, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR
001290.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel and Rachael E.
Wood, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Nichole Milite, appeals the March 17, 2020 judgment of the
Lake County Court of Common Pleas, sentencing her to community control and 192
days in jail, among other sanctions, following her plea of guilty to two counts of
Aggravated Possession of Drugs. For the reasons discussed herein, the judgment of
the trial court is affirmed.
{¶2} Ms. Milite was indicted on one count Illegal Conveyance of Drugs of
Abuse Onto the Grounds of a Specified Government Facility, in violation of R.C.
2921.36(A)(2), a felony of the third degree, and two counts of Aggravated Possession of
Drugs, in violation of R.C. 2925.11, felonies of the fifth degree; all three counts included
a forfeiture specification. Ms. Milite waived her right to be present at her arraignment
and pleas of “not guilty” were entered on her behalf.
{¶3} At the pre-trial hearing, on January 16, 2020, the state made a plea offer
and a “tentative change of plea hearing” was set. In the meantime, Ms. Milite, through
counsel, filed a motion to suppress evidence and a hearing was set for February 20,
2020. At the change of plea hearing, Ms. Milite pleaded guilty to two counts Aggravated
Possession of Drugs with a forfeiture specification. After sentencing, the court briefly
went off the record, then returned to the record to ask Ms. Milite, through counsel, if she
was withdrawing the motion to suppress. Counsel replied in the affirmative and the
hearing was adjourned.
{¶4} The sentencing hearing was held in March 2020. The state recommended
community-control sanctions, and the remaining count was dismissed. The court
sentenced Ms. Milite to two concurrent two-year terms of community control, 192 days
in Lake County Jail, with 102 days of jail time credit, and to enter and complete a drug
rehabilitation program, among other requirements.
{¶5} Ms. Milite now appeals, assigning two errors for our review, which are
interrelated and will be addressed together. They state:
{¶6} [1.] Ms. Milite’s plea was not made knowingly, intelligently, and
voluntarily because she did not understand at the time of her plea
that if she was granted community control she could still be
sentenced to a period of incarceration in the Lake County Jail.
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{¶7} [2.] Ms. Milite’s plea was not made knowingly, intelligently, and
voluntarily because she did not understand at the time of her plea
that with her plea of guilty the Trial Court would not be ruling on her
Motion to Suppress.
{¶8} The state asserts that because Ms. Milite did not move to withdraw her
guilty plea in the lower court, she is precluded from making these arguments for the first
time on appeal. “However, Ohio courts permit a defendant to appeal his guilty plea as
involuntary even when he did not move to withdraw the plea in the trial court.” State v.
Gonzales, 11th Dist. Ashtabula No. 2013-A-0070, 2014-Ohio-4289, ¶9, citing State v.
Dietrich, 3d Dist. Allen No. 1-10-76, 2011-Ohio-4347, ¶18; State v. Miller, 8th Dist.
Cuyahoga No. 94790, 2011-Ohio-928, ¶17. Therefore, appellant review of this case is
appropriate.
{¶9} “‘An appellate court determining whether a guilty plea was entered
knowingly, intelligently, and voluntarily conducts a de novo review of the record to
ensure that the trial court complied with the constitutional and procedural safeguards.’”
State v. Hull, 11th Dist. Lake No. 2016-L-035, 2017-Ohio-157, ¶45, quoting State v.
Shifflet, 4th Dist. Athens No. 13CA23, 2015-Ohio-4250.
{¶10} Ms. Milite first argues her guilty plea was not knowingly, intelligently, and
voluntarily made because she did not know the trial court could sentence her to local jail
time as part of her community control sentence. However, it is apparent from the record
that Ms. Milite was aware the court could sentence her to prison, jail, or community
control, and that the court did not have to abide by the recommendation of the
prosecution or her attorney for community control:
{¶11} THE COURT: Do you understand that by pleaded guilty to a felony
offense you are voluntarily giving up your freedom for whatever
period of time under the law that I sentence you to prison, jail, or
community control?
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{¶12} MS. MILITE: Yes, Your Honor.
{¶13} * * *
{¶14} THE COURT: The crime of aggravated possession of drugs is a
felony of the fifth degree and carries a maximum prison term of
twelve months and a maximum fine of $2500; do you understand
that?
{¶15} MS. MILITE: Yes, Your Honor.
{¶16} * * *
{¶17} THE COURT: Do you understand that I do not have to follow the
recommendation of the prosecutor, your attorney, or even a joint
recommendation between the prosecutor and your attorney at the
time of your sentencing?
{¶18} MS. MILITE: Yes, I understand that.
{¶19} While the court did not wholly accept the prosecutor’s recommendation of
community control, Ms. Milite acknowledged she was aware the court was under no
obligation to do so. Moreover, she was aware the court had the discretion to sentence
her to up to twelve months in prison on each of the two counts. Thus, Ms. Milite’s
argument on appeal is essentially that she is not pleased she was sentenced to jail time
in addition to community control. However, “[a] trial court’s selection of a particular
sentence within the statutory range does not have an effect on the knowing, voluntary
and intelligent nature of a guilty plea, as a sentencing decision is made subsequent to
the entry of a plea. See [State v. Johnson, 40 Ohio St.3d 130, 133-134 (1988)] (“Crim.R.
11 applies only to the entry and acceptance of the plea. It has no relevance to the
exercise of the trial court’s sentencing discretion at that stage * * *.”) At the pleading
stage, a defendant must know the possible ramifications of his plea, not the future
sentencing decision of the trial court.” State v. Reed, 7th Dist. Mahoning No. 09 MA 53,
2010-Ohio-1096, ¶24.
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{¶20} Ms. Milite acknowledged her understanding that the court could sentence
her to up to 12-months imprisonment on each count, and that it need not accept the
prosecution’s recommendations. Accordingly, the imposition of community control plus
jail time did not render Ms. Milite’s plea not knowingly, intelligently, and voluntarily
made.
{¶21} Accordingly, Ms. Milite’s first assignment of error is without merit.
{¶22} Second, Ms. Milite argues that her plea was not knowing, intelligent, and
voluntary because she did not know the court would not rule on her motion to suppress
after she entered her guilty plea.
{¶23} However, this court has previously acknowledged “that the trial court was
not required to inform appellant of any possible suppression issues during the plea
hearing.” State v. Pough, 11th Dist. Trumbull No. 2000-T-0151, 2002-Ohio-6927, ¶45,
citing State v. Taylor, 2nd Dist. Montgomery No. 12570, 1992 WL 103698, and State v.
Drawdy, 8th Dist. Cuyahoga No. 52154, 1988 WL 87584.
{¶24} Moreover, it was because she entered a guilty plea that the motion to
suppress was withdrawn, as evidenced by defense counsel:
{¶25} THE COURT: [Defense counsel], are you withdrawing your motion
to suppress?
{¶26} [DEFENSE COUNSEL]: Yes, Your Honor. Thank you. Yes, as a
result of the negotiations that we have taken here and Ms. Milite’s
plea, we do withdraw the previously filed motion to suppress.
(Emphasis added.)
{¶27} Indeed, Ms. Milite acknowledged she had opportunity to fully discuss the
matter with her attorney before pleading guilty and that she had all her questions
answered and that she was satisfied with the advice and counsel of her attorney.
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{¶28} Finally, by pleading guilty before the court ruled on her motion to
suppress, Ms. Milite demonstrated that she was willing to plead guilty regardless of
whether the court would grant or deny the motion. Thus, her argument that she would
not have pleaded guilty if she knew the court would not rule on the motion is
inconsequent.
{¶29} Accordingly, Ms. Milite’s second assignment of error is without merit.
{¶30} In light of the foregoing, the judgment of the Lake County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MARY JANE TRAPP, J.,
concur.
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