State v. Jackson , 2016 Ohio 7891 ( 2016 )

[Cite as State v. Jackson, 2016-Ohio-7891.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104108
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JIMMIE M. JACKSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-596651-A
BEFORE: Laster Mays, J., Keough, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: November 23, 2016
-i-
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy McGinty
County Prosecutor
By: Denise J. Salerno
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Jimmie M. Jackson (“Jackson”), appeals his conviction
and asks this court to vacate his sentence and remand to the trial court for new
proceedings. We affirm.
{¶2} Jackson was indicted on eight counts. The first four counts are related to
victim one, and Counts 5 through 8 are related to victim two. They are as follows:
Counts 1 and 2: Rape, a first-degree felony, in violation of
R.C. 2907.02(A)(2) with sexually violent predator
specification under R.C. 2941.148(A);
Count 3: Aggravated Burglary, a first-degree felony, in violation
of R.C. 2911.11(A)(1);
Count 4: Aggravated Burglary, a first-degree felony, in violation
of R.C.2911.11(A)(2);
Count 5: Kidnapping, a first-degree felony, in violation of R.C.
2905.01(A)(4);
Count 6: Rape, a first-degree felony, in violation of
R.C. 2907.02(A)(2) with sexually violent predator
specification under R.C. 2941.148(A);
Count 7: Aggravated Burglary, a first-degree felony, in violation
of R.C. 2911.11(A)(1); and
Count 8 : Kidnapping, a first-degree felony, in violation of R.C.
2905.01(A)(4).
{¶3} As part of a plea agreement, Jackson pleaded guilty to Counts 1 and 6.
During this proceeding, the trial court informed Jackson of his constitutional rights and
the minimum and maximum sentence he could receive. At sentencing, the court
sentenced Jackson to 41-years-to-life imprisonment. As a result, Jackson has filed this
timely appeal assigning one error for our review:
I. The trial court committed plain error in failing to inform appellant of
the possible maximum term of imprisonment in compliance with
Crim.R. 11(C)(2)(a).
I. Standard of Review
{¶4} “An appellate court reviews de novo whether the trial court accepted a plea in
compliance with Crim.R. 11(C).” State v. Hinton, 8th Dist. Cuyahoga No. 102710,
2015-Ohio-4907, ¶ 20, quoting State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 6. “We are required to review the totality of the circumstances and
determine whether the plea hearing was in compliance with Crim.R. 11(C).” Id.“Crim.R. 11(C) governs the process by which a trial court must inform a defendant of
certain constitutional and nonconstitutional rights before accepting a felony plea of guilty
or no contest.” Id. “The underlying purpose of Crim.R. 11(C) is to convey certain
information to a defendant so that he can make a voluntary and intelligent decision
regarding whether to plead guilty.” Id.II. Law and Analysis
{¶5} In Jackson’s sole assignment of error, he argues that the trial court committed
plain error in failing to inform him of the possible maximum term of imprisonment in
compliance with Crim.R. 11(C)(2)(a).
Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case, the
trial court must conduct an oral dialogue with the defendant to ensure that
the plea is voluntary, that the defendant understands the nature of the
charges and the maximum penalty involved, and that the defendant
understands the constitutional right[s] he or she waives by pleading guilty,
including 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.
Id. at ¶ 21.
{¶6} Jackson argues that his nonconstitutional right to have the judge explain the
maximum penalty involved was violated.
When the appellant raises a violation of a nonconstitutional right found in
Crim.R. 11(C)(2)(a) and (b), however, we look for substantial compliance.
Under this standard, a slight deviation from the text of the rule is
permissible; so long as the totality of the circumstances indicates that the
defendant subjectively understands the implications of his plea and the
rights he is waiving, the plea may be upheld.
Id. at ¶ 23.
When the trial court does not substantially comply with Crim.R. 11 with
regard to a nonconstitutional right, reviewing courts must determine
whether the trial court partially complied or completely failed to comply
with the rule. If the trial court partially complied, the plea may be vacated
only if the defendant demonstrates a prejudicial effect. Prejudice in this
context requires that the defendant demonstrate that but for the error, there
is a reasonable probability that he or she would not have pleaded guilty.
Id. at ¶ 24.
{¶7} Crim.R. 11(C)(2)(a) and (b), which outline the nonconstitutional
notifications, state:
In felony cases the court may refuse to accept a plea of guilty or a plea of no
contest, and shall not accept such plea 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 charge and of the maximum penalty
involved, and, if applicable, that the defendant is not eligible for probation *
* *.
(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.
{¶8} The trial court informed Jackson of the maximum penalty involved with
pleading guilty.
COURT: Based upon the statements of the prosecuting attorney as
well as your lawyer I believe it’s your intention for you to
plead guilty to the amended Count 1, rape, with a sexually
violent predator specification attached, that is a felony of the
first-degree in violation of 2907.02(A)(2) and
2941.14(A)(8)(a). That carries a possible time from ten
years in prison up to life in prison; do you understand that?
JACKSON: Yes.
COURT: And a fine of up to $20,000. I also believe it’s your
intention to plead guilty to Count 6, the amended Count 6
rape, that is a felony of the first-degree in violation of
2907.02(A)(2). That carries a possible penalty from three
to 11 years in prison and a fine of up to $20,000. Do you
understand that?
JACKSON: Yes.
COURT: If I were to run these counts one after the other or
consecutively, you are looking at anywhere from 21 years
— I’m sorry — anywhere from 13 years — hold on. Let
me say that again. Just make sure. Anywhere from 13
years up to life, and a fine, again, of up to $40,000; do you
understand that?
JACKSON: Yes.
COURT: If this court imposes a prison term upon the completion of
your prison term the State of Ohio Adult Parole Authority
and not this court shall have a mandatory five-year
supervision under what is called postrelease control. * * *
(Tr. 15-17.)
{¶9} The court sentenced Jackson to 41 years in prison. As shown previously, the
court informed Jackson that he could receive 13 years to life. “The defendant’s right to
be informed of the maximum possible penalty is a nonconstitutional right. Therefore, a
substantial-compliance rule applies.” State v. Thomas, 197 Ohio App.3d 176,
2011-Ohio-6073, 966 N.E.2d 939, ¶ 33 (8th Dist.).
If the trial judge partially complied with its duty to inform the defendant of
the maximum penalty involved, the plea may be vacated only if the
defendant demonstrates a prejudicial effect. Prejudicial effect is established
if the defendant can demonstrate that he would not have entered the plea
had the trial court literally complied with Crim.R. 11(C)(2).
Id. at ¶ 34.
{¶10} However, the trial judge fully complied with the law by stating clearly the
maximum penalty Jackson could receive. So there is no prejudicial effect. His
sentence of 41 years falls within the range of 13 years to life. See State v. Scott, 8th
Dist. Cuyahoga No. 103696, 2016-Ohio-5929, ¶ 6 (“a sentence is authorized by law if it is
within the statutory range of available sentences.”) Therefore, Jackson’s sole
assignment of error is overruled.
{¶11} Judgment is affirmed.
It is ordered that the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR