State v. Simmons , 2013 Ohio 5026 ( 2013 )

[Cite as State v. Simmons, 2013-Ohio-5026.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 99513 and 100552
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LANELL SIMMONS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-564223 and CR-565125
BEFORE: S. Gallagher, P.J., Keough, J., and Kilbane, J.
RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jennifer L. O’Malley
Brian M. McDonough
Assistant Prosecuting Attorneys
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Lanell Simmons, appeals his conviction, rendered upon
his guilty plea, in Cuyahoga C.P. Nos. CR-565125 and CR-564223. For the following
reasons, we affirm Simmons’s conviction.
{¶2} Simmons pleaded guilty to attempted felonious assault, failure to comply, and
drug possession in case No. CR-565125, felonies of the second, third, and fifth degree
respectively. In case No. CR-564223, Simmons pleaded guilty to receiving stolen
property (“RSP”), a fifth-degree felony. The trial court sentenced Simmons to an
aggregate term of eight years in prison, imposed the mandatory three-year term for
postrelease control based on the felonious assault conviction, and waived all costs and
fines.
{¶3} Simmons timely appeals, claiming, in two assigned errors, that his plea was
not voluntarily, intelligently, or knowingly entered because the trial court failed to inform
him of the court costs or fines that could have been imposed for each respective crime,
and failed to inform him that a discretionary three-year term of postrelease control could
be imposed for the RSP count. Simmons’s assignments of error are without merit.
{¶4} Before accepting a guilty plea, a trial court must address the defendant
personally and determine that he is making the plea voluntarily “with understanding of
the nature of the charges and the maximum penalty involved.” Crim.R. 11(C)(2)(a).
Postrelease control, fines, and costs all constitute a portion of the maximum penalty
involved in an offense for which a prison term is imposed. State v. McKissic, 8th Dist.
Cuyahoga Nos. 92332 and 92333, 2010-Ohio-62, ¶ 6, citing State v. Crosswhite, 8th Dist.
Cuyahoga Nos. 86345 and 86346, 2006-Ohio-1081 (postrelease control); State v. Flagg,
8th Dist. Cuyahoga Nos. 93248 and 93279, 2010-Ohio-4247, ¶ 33 (fines and costs).
Thus, if a trial court fails to advise a defendant during a plea colloquy that the sentence
will include a term of postrelease control or the imposition of a fine or costs, the
defendant may dispute the knowing, intelligent, and voluntary nature of his plea on direct
appeal. McKissic at ¶ 6, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881
N.E.2d 1224, ¶ 25.
{¶5} Generally,
[a] trial court must strictly comply with the Crim.R. 11(C)(2)
requirements regarding the waiver of constitutional rights. With respect to
the other requirements of Crim.R. 11(C)(2) regarding nonconstitutional
rights, reviewing courts consider whether there was substantial compliance
with the rule. [The right to be informed at the plea hearing of the
maximum possible penalty that could be imposed upon conviction is a
nonconstitutional right] and therefore subject to the substantial-compliance
standard.
“Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of
his plea and the rights he is waiving.” “[I]f it appears from the record that
the defendant appreciated the effect of his plea and his waiver of rights in
spite of the trial court’s error, there is still substantial compliance.”
Further, a defendant must show prejudice before a plea will be vacated for a
trial court’s error involving Crim.R. 11(C) procedure when
nonconstitutional aspects of the colloquy are at issue. The test for
prejudice is whether the plea would have otherwise been made.
(Citations omitted.) McKissic at ¶ 11-13.
{¶6} Simmons complains that the trial court failed to inform him of the possible
fines he faced upon his felony conviction and that, for one count of his multi-count plea,
the court failed to inform him that he could be subject to a discretionary three-year term
of postrelease control. The state concedes the trial court’s omissions. Simmons,
however, otherwise agreed that the trial court fulfilled its obligations pursuant to Crim.R.
11 to advise him to make his plea knowingly, voluntarily, and intelligently. Further, it is
not disputed that the trial court advised Simmons of the maximum penalty he faced other
than fines and court costs and the discretionary postrelease control term for the RSP
count. Simmons cannot show prejudice or that he would not have entered the plea
knowing that fines and court costs were possible. The trial court did not impose any
fines, waived all court costs for Simmons at sentencing, and actually imposed a
mandatory three-year term of postrelease control for Simmons’s guilty plea to the
felonious assault charge.
{¶7} With respect to the trial court’s omission to notify Simmons of the possible
fines and court costs, because the trial court never actually imposed the fines or court
costs, Simmons cannot show that he would not have entered the plea. Simmons received
the incarceration penalty within the range of what the trial court informed him was
possible at sentencing, including the mandatory three-year term of postrelease control on
the felonious assault count. Further, this court has consistently held that a trial court’s
failure to inform the defendant of the maximum penalty aside from the fines and costs
satisfies the court’s obligation pursuant to Crim.R. 11(C)(2) when the court does not
impose any monetary punishments. Flagg, 8th Dist. Cuyahoga Nos. 93248 and 93279,
2010-Ohio-4247, ¶ 33; State v. Smith, 8th Dist. Cuyahoga No. 36588, 1977 Ohio App.
LEXIS 8585, *3 (Dec. 8, 1977).
{¶8} Likewise, Simmons cannot show prejudice on his claim that the trial court
erred in failing to inform him of the possibility of postrelease control for the RSP count.
The trial court partially informed him of the maximum penalties in all other respects.
Further, the trial court is not permitted to impose multiple terms of postrelease control for
each felony sentence. State v. Simpson, 8th Dist. Cuyahoga No. 88301, 2007-Ohio-4301,
¶ 109. Simmons was subject to a mandatory three-year term of postrelease control on his
felonious assault guilty plea. The trial court, therefore, was statutorily required to
impose a three-year term on the felonious assault count. The trial court informed
Simmons of the mandatory three-year term of postrelease control. Simmons, therefore,
cannot show prejudice with regard to his plea to the RSP count; the prison term was run
concurrent with the felonious assault count.
{¶9} Simmons pleaded guilty knowing the mandatory three-year term of
postrelease control would be imposed, and he cannot now demonstrate that he would not
have entered the plea knowing a discretionary three-year term of postrelease control could
be imposed on a lesser charge if not for the felonious assault count. Further, the trial
court could only impose one term of postrelease control, in this case being the mandatory
term, not the discretionary term Simmons complains of on appeal.1
We note that Simmons is not appealing his sentence; he solely challenged
1
the voluntariness of his plea in light of the plea colloquy, and the scope of our
review is accordingly restrained to the issues raised in Simmons’s assignments of
{¶10} In light of the foregoing, Simmons cannot show he was prejudiced by the
trial court’s minor omissions in informing him of his nonconstitutional rights. The trial
court substantially complied with its obligations to inform Simmons of such rights, and
Simmons’s guilty plea was otherwise entered knowingly, voluntarily, and intelligently.
{¶11} Simmons’s conviction is 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 conviction 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR
error.