State v. Brown

[Cite as State v. Brown, 2023-Ohio-2537.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : CASE NO. 23CA1161
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
SIMON BROWN, :
Defendant-Appellant. : RELEASED 7/19/2023
___________________________________________________________________
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Austin Ervin, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for
appellee.
___________________________________________________________________
HESS, J.
{¶1} Simon Brown appeals his conviction for domestic violence. For his sole
assignment of error, Brown contends that the trial court erred by accepting his guilty plea
when it was not made knowingly, voluntarily, and intelligently. He argues that the trial court
failed to inform him that a plea of guilty to domestic violence could be used later to enhance
the penalty in a future conviction of domestic violence. However, a trial court has no duty to
inform a defendant pleading guilty of the possible enhancement of sentences resulting from
future crimes. We overrule Brown’s assignment of error and sustain the trial court’s
judgment.
I. PROCEDURAL HISTORY
{¶2} In October 2022, an Adams County Grand Jury returned an indictment that
charged Brown with one count of felonious assault in violation of R.C. 2903.11(A)(1), a
Adams App. No. 23CA1161 2
second-degree felony, and one count of domestic violence in violation of R.C. 2919.25(A),
charged as a fourth-degree felony because of a prior misdemeanor conviction. Brown
pleaded guilty to domestic violence and the state dismissed the felonious assault count. The
trial court sentenced Brown to three years of community control and 160 hours of community
service, ordered him to attend weekly substance abuse prevention meetings, and prohibited
him from consuming alcohol, being around others consuming alcohol, or frequenting
businesses whose primary source of income is the sale of alcohol. Brown appealed.
II. ASSIGNMENT OF ERROR
{¶3} Brown assigns this error for review:
I. The trial court erred to the prejudice of Mr. Brown by accepting
a plea of guilty that was not made knowingly, voluntarily, and
intelligently.
III. LEGAL ANALYSIS
{¶4} “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. Shifflet, 2015-
Ohio-4250, 44 N.E.3d 966, ¶ 13 (4th Dist.). When reviewing a defendant's constitutional
rights (right to a jury trial, right to call witnesses, etc.), a trial court must strictly comply with
Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
¶ 18. However, “strict compliance does not mean literal compliance.” State v. Adams, 4th
Dist. Washington No. 15CA44, 2016-Ohio-2757, ¶ 11. A court does not need to engage in “a
word-for-word recitation of the criminal rule, so long as the trial court actually explains the
rights to the defendant.” Id. at ¶ 12, citing State v. Veney at ¶ 27. However, “when reviewing
a defendant's non-constitutional rights (maximum penalty involved, understanding effect of
Adams App. No. 23CA1161 3
plea, etc.), a trial court must substantially comply with Crim.R. 11(C)(2)(a) and (b).” State v.
Tolle, 2022-Ohio-2839, 194 N.E.3d 410, ¶ 11 (4th Dist.). Substantial compliance means that
under the totality of the circumstances the defendant subjectively understands the
implications of the plea and the rights being waived. Id. “[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.”
(Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476 (1990).
{¶5} Brown argues that he did not enter his plea knowingly, voluntarily, and
intelligently because the trial court did not inform him that his conviction for domestic violence
could be used to enhance the penalty for future convictions of domestic violence. Domestic
violence under R.C. 2919.25(A) is a first-degree misdemeanor, but a prior conviction
enhances that to a fourth-degree felony under R.C. 2919.25(D)(4). Thus, he contends that
the trial court failed to substantially comply with Crim.R. 11.
{¶6} Brown concedes that our court and other Ohio appellate courts have held that
a trial court is not required to advise a defendant of the potential for future enhanced
penalties. However, he urges us to reconsider our precedent and find that trial courts do have
a duty to advise of the potential future enhancements. Brown does not give a rationale for
why we should revisit our precedent other than urging that it should be done “without
question” because eventually, with enough domestic violence convictions, a mandatory
prison term will be the penalty.
{¶7} We see no reason to depart from our well-established precedent or the
rationale that supports it:
There appears to be no duty in Ohio to inform a defendant pleading guilty of
the possible enhancement of sentences resulting from future crimes, nor can
Adams App. No. 23CA1161 4
this court see why there should be such a duty. A trial court judge should not
be required to anticipate recidivist behavior by a defendant who enters a guilty
plea in that court. To be sure, a defendant is entitled to be advised of the effect
of his guilty plea so that it can be shown that the plea was knowingly and
voluntarily made. But it begs the question to argue that a defendant who pleads
guilty would not be aware that if he gets convicted of the same offense again it
is going to go harder on him the second time around.
State v. Southers, 4th Dist. Pickaway No. 88CA10, 1988 WL 125024, *2 (Nov. 23, 1988).
The Ninth District Court of Appeals addressed this same issue nearly 50 years ago and we
continue to find its rationale persuasive:
The only possible way that a defendant can be subject to additional criminal
liability under a repeat offender statute is to be convicted of committing a
subsequent crime. At the time of his conviction for the first offense, a defendant
is not subject to this criminal liability. Therefore, information about the
‘maximum penalty’ or the ‘effect of his guilty plea’ need not include advice that
a subsequent conviction for similar offenses will subject a defendant to
additional criminal liability.
State v. Porter, 49 Ohio App.2d 227, 229, 360 N.E.2d 759, 761 (9th Dist.1976); State v.
Firestone, 4th Dist. Vinton No. 00CA542, 2001-Ohio-2506, *5 (quoting Porter, supra). A
number of other Ohio appellate districts have adopted this rationale. See Cleveland v. Martin,
8th Dist. Cuyahoga No. 111495, 2023-Ohio-448, ¶ 5-6 (quoting Southers, supra); State v.
Rice, 5th Dist. Delaware No. 20CAA010002, 2021-Ohio-988, ¶ 47 (quoting Southers, supra);
State v. Lewis, 11th Dist. Lake No. 2009-L-138, 2010-Ohio-4288, ¶ 42-44 (quoting Porter
and Southers, supra); In re Spann, 10th Dist. Franklin No. 98AP-839, 1999 WL 355886, *6
(June 3, 1999) (same holding in juvenile context, quoting Porter, supra).
{¶8} The trial court had no duty to advise Brown that he was pleading guilty to an
offense that could be used to enhance his penalty for a future offense. Thus we find that the
trial court substantially complied with the provisions in Crim.R. 11. Moreover, even if we were
to revisit our long-standing and widely-accepted precedent, Brown has failed to allege or
Adams App. No. 23CA1161 5
show any prejudicial effect. Thus, his argument fails for this reason as well.
IV. CONCLUSION
{¶9} We overrule Brown’s assignment of error and affirm the trial court judgment.
JUDGMENT AFFIRMED.
.
Adams App. No. 23CA1161 6
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellant to pay the 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 Adams County
Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted
by the trial court or this court, it is temporarily continued for a period not to exceed 60 days
upon the bail previously posted. The purpose of a continued stay is to allow appellant to file
with the Supreme Court of Ohio an application for a stay during the pendency of the
proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of
the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal
with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the
Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.