State v. Williams , 2013 Ohio 1988 ( 2013 )

[Cite as State v. Williams, 2013-Ohio-1988.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98778
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARC A. WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-549272
BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 16, 2013
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Fallon Radigan
Blaise D. Thomas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant, Marc A. Williams, appeals from his guilty plea and
the sentence imposed in the Cuyahoga County Court of Common Pleas. Williams
argues that the trial court violated his Sixth Amendment Constitutional rights when it
imposed more than the minimum sentence and that the trial court failed to properly
inform him of the mandatory prison term prior to his guilty plea. Finding no merit to
the instant appeal, we affirm the decision of the trial court.
{¶2} On April 25, 2011, the Cuyahoga County Grand Jury indicted Williams for
three counts of kidnapping with sexual motivation specifications (Counts 1, 3 and 9),
four counts of rape (Counts 2, 4, 10 and 11), four counts of unlawful sexual conduct with
a minor (Counts 5 thru 8), one count of felonious assault (Count 12) and one count of
compelling prostitution (Count 13). After initially pleading not guilty, Williams
entered into a plea agreement. In exchange for amending Count 1 to abduction without
the sexual motivation specification and deleting the sexual motivation specifications
from the charge of rape in Count 10, Williams pleaded guilty. The state dismissed the
remaining ten charges.
{¶3} On August 3, 2012, the state sentenced Williams to 24 months on Count 1
and 8 years on Count 10 to run concurrent. Williams appeals, raising two assignments
of error.
Assignment of Error I
Defendant was denied his rights under the Sixth Amendment when the
court imposed more than a minimum sentence based upon judicial
factfinding.
Assignment of Error II
Defendant was denied due process of law when the court did not inform
the defendant that any sentence for rape was entirely mandatory and not
probationable.1
{¶4} In his first assignment of error, Williams argues that the trial court erred
because it sentenced him to more than the minimum sentence after conducting
impermissible judicial factfinding. We disagree.
{¶5} Specifically, Williams contends that the statements of the trial court judge
at the sentencing hearing constituted prejudicial, judicial fact-finding. He focuses on
the following statements of the court, made after the court imposed a prison sentence of
eight years for the charge of rape and 24 months on the charge of abduction to run
concurrently:
I have rarely seen a more serious case involving a long pattern of abuse,
and a very serious crime occurring a number of years ago with a young
woman that should not have happened.
{¶6} In addition, the court found that Williams “forced yourself upon her and it
Williams limits this assigned error to the charge of rape, as such, we will not address
1
Williams’ sentence for abduction.
has caused her extreme harm.”
{¶7} Williams argues that the imposed prison sentence, despite the fact that it is
within the statutory range for the offenses, violates State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, because the trial court participated in judicial
fact-finding when making the above statements.
{¶8} The Ohio Supreme Court held in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus, that “[t]rial courts
have full discretion to impose a prison sentence within the statutory range and are no
longer required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.”2 Trial courts must still consider the
statutes applicable to felony cases, including R.C. 2929.11, regarding the purposes of
sentencing, and R.C. 2929.12, delineating factors relating to the seriousness of the
offense and the offender’s likelihood of recidivism. State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶9} After Foster, the Ohio Supreme Court, in a plurality opinion, developed a
two-step analysis for reviewing sentences. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124. The Kalish court held:
First, [appellate courts] must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
H.B. 86 “revives” judicial fact-finding prior to imposing consecutive sentences, set forth in
2
R.C. 2929.14(C)(4). See State v. Du, 2d Dist. No. 2010-CA-27, 2011-Ohio-6306.
sentence is clearly and convincingly contrary to law. If this first prong is
satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion
standard.
{¶10} In State v. Smith, 8th Dist. No. 91346, 2009-Ohio-1610, this court dealt with a
similar factual scenario. Smith argued that the imposed sentence violated his constitutional
rights because the trial court participated in judicial fact-finding when it imposed its sentence.
This court found that Smith incorrectly argued that the effect of Foster was to prohibit a trial
court from making any findings whatsoever. In Smith, we concluded that the Foster decision
in no way precluded judicial determinations at sentencing hearings, as incorrectly argued by
Smith. We agree with the rationale in Smith and apply it equally to the present case.
{¶11} Williams’ imposed sentence is not contrary to law. The trial court considered
R.C. 2929.11 and 2929.12, found the prison term to be consistent with the purpose of R.C.
2929.11 and imposed a sentence within the statutory range. Thus, the trial court’s sentence
was not clearly and convincingly contrary to law.
{¶12} We next review the trial court’s sentencing of Williams under the “abuse of
discretion standard.” An abuse of discretion is “more than an error of law or judgment; it
implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} The sentencing transcript and journal entry of the court reveals that the trial
court considered the relevant statutory considerations set forth in R.C. 2929.11, 2929.12 and
2929.13 in sentencing Williams. The court also considered the presentence investigation
report, the statements of victim Nikeeta Stanley and her parents Donna and Nathaniel Stanley,
and the emotional harm suffered by the victim. There is nothing in the record to suggest that
the trial court’s sentencing decision was unreasonable, arbitrary or unconscionable.
{¶14} As in Smith, we find Williams’ argument that his constitutional rights were
violated by prejudicial, judicial fact-finding to be unfounded. His sentence was not judicially
increased and the imposed sentence fell within the permissible statutory range.
{¶15} Williams’ first assignment of error is overruled.
{¶16} In his second assigned error, Williams, in particular, claims that the trial court
explained that only the minimum sentence of three years was non-probationable and thus, he
was unaware of the effect of his plea at the time of its entry. We disagree with Williams’
argument.
{¶17} In support of his assigned error, Williams cites to State v. Pettito, 8th Dist. No.
95276, 2011-Ohio-2391, where this court determined that the trial court erred when it did not
inform a defendant of the maximum penalty for each offense and used misleading language
regarding multiple offenses that ambiguously referred to a single maximum penalty.
{¶18} As stated by this court in Pettito,
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. It requires an appellate
court to review the totality of the circumstances and determine whether the plea
hearing was in compliance with Crim.R. 11(C).
When accepting a plea of guilty in a felony case, the trial court is required to
inform the defendant of the effect of the plea. Crim.R. 11(C)(2)(b).
Crim.R.11(B) defines a guilty plea as, “a complete admission of the defendant’s
guilt.”
The trial court’s duty to inform the defendant of the effect of the plea is a
nonconstitutional requirement of Crim.R. 11. With respect to the
nonconstitutional requirements of Crim.R. 11, as set forth in Crim.R. 11(C)(2)(a)
and (b), reviewing courts shall consider whether there was substantial
compliance with the rule. 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.
Furthermore, 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.) Pettito, 8th Dist. No.
95276, 2011-Ohio-2391, at ¶ 4-7.
{¶19} In Pettito, the court informed the defendant that a sentence on multiple
sentences would be between one and five years. This court held that Pettito “could not
have understood the implications of his plea because the trial court’s ambiguous
reference to potential ‘prison term of anywhere from one to five years’ failed to convey
that the potential maximum prison term for each offense was five years.” Pettito, 8th
Dist. No. 95276, 2011-Ohio-2391, at ¶ 13.
{¶20} Unlike Pettito, the trial court in this case clearly explained the potential
minimum and maximum sentence for the charge of rape. In particular, the court
engaged in the following colloquy:
Court: Do you understand that as amended this remains a felony of the
first degree, carries with it the potential of a sentence of imprisonment of
three years up to ten years in one-year increments or steps but it’s a
mandatory minimum of at least three years? It’s nonprobationable in
other words. So you have to serve at least three years. Is that clear?
Williams: Yes.
Court: The maximum in one-year increments would be ten years under
the old law. Is that clear?
Williams: I’m under the old law?
Court: For that count.
Williams: For that count. Okay.
Court: The new law has a higher maximum.
Williams: But it’s more favorable for the other one.
Court: Yes. Under the old law for this particular count it’s more
favorable.
Williams: Okay.
Court: So, the three to ten years in one-year increments and the $25,000
fine. Is that clear?
Williams: Yes, sir.
{¶21} In Williams’ brief, he focuses on the court’s language “So you have to
serve at least three years.” However, the short brief ignores the court’s continued
dialogue wherein the court explains to Williams that the maximum in one-year
increments would be ten years and where Williams states that he understands. Thus,
under the totality of the circumstances, we find that Williams understood the maximum
penalty for the charge of rape. Further, Williams offers no argument as to how he was
prejudiced in any way by an alleged failure on the part of the trial court.
{¶22} We find this case distinguishable from Pettito. Here the trial court
informed Williams of the potential minimum and maximum penalties for the charge of
rape and Williams admitted to the court that he understood. We find no error with the
court’s plea colloquy and overrule Williams’ second assigned error.
{¶23} The judgment of the trial court 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 be sent to said lower court to carry this
judgment into execution. The defendant’s conviction having been affirmed, any bail
pending appeal is terminated. The case is 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.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR