State v. Short , 2019 Ohio 3322 ( 2019 )

[Cite as State v. Short, 2019-Ohio-3322.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-19-19
v.
BRADLEY SCOTT SHORT, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 17 10 0337
Judgment Affirmed
Date of Decision: August 19, 2019
APPEARANCES:
Samantha L. Berkhofer for Appellant
Alice Robinson-Bond for Appellee
Case No. 8-19-19
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Bradley Scott Short (“Short”), appeals the
February 26, 2019 judgment entry of sentence of the Logan County Court of
Common Pleas. We affirm.
{¶2} On October 10, 2017, the Logan County Grand Jury indicted Short on
Count One of rape in violation of R.C. 2907.02(A)(2), a first-degree felony, and
Count Two of gross sexual imposition in violation of R.C. 2907.05(A)(4), a third-
degree felony. (Doc. No. 1). On January 16, 2018, Short appeared for arraignment
and entered pleas of not guilty. (Doc. No. 15). On March 13, 2018, under a
superseding indictment, the Logan County Grand Jury indicted Short on a sexually
violent predator specification under R.C. 2941.148(A) as to Count One, with Count
Two remaining unchanged. (Doc. No. 28). On March 16, 2018, Short appeared for
arraignment and entered pleas of not guilty to the new indictment. (Doc. No. 52).
{¶3} On May 15, 2018, Short withdrew his pleas of not guilty and entered a
guilty plea, under a written plea agreement, to an amended Count One. (Doc. No.
101). In exchange for his change of plea, the State agreed to amend Count One to
attempted rape in violation of R.C. 2923.02, 2907.02(A)(2), a second-degree felony,
and dismiss Count Two. (Id.). The trial court accepted Short’s guilty plea and
dismissed Count Two. (Id.). However, the trial court did not dispose of the sexually
violent predator specification.
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{¶4} Ultimately, the trial court sentenced Short to eight years in prison and
classified Short as a Tier III sex offender. (Doc. Nos. 102, 103). Short appealed the
trial court’s judgment entry of sentence, and we dismissed Short’s appeal after
concluding that we did not have jurisdiction to hear the matter. (Doc. Nos. 109,
110, 111, 112, 113). On remand, the trial court filed its nun pro tunc judgment entry
dismissing the sexually violent predator specification under R.C. 2941.148(A) as to
Count One in the superseding indictment, and confirmed Short’s sentence of eight
years in prison and sex offender classification. (Doc. Nos. 123, 127).
{¶5} Short filed a notice of appeal on April 12, 2019, and raises two
assignments of error for our review. (Doc. No. 129). For ease of discussion, we
will discuss Short’s assignments of error together.
Assignment of Error No. I
Whether the trial court abused its discretion by failing to accept
defendants [sic] Alford Plea?
Assignment of Error No. II
Whether the Trial Court abused its discretion when defendant’s
change of plea to Guilty following a denial of an Alford plea was
knowingly, intelligently, and voluntarily made?
{¶6} In his assignments of error, Short argues that his guilty plea was not
knowing, intelligent, or voluntary. In particular, he contends that his guilty plea was
not knowing, intelligent, or voluntary because the trial court erred by refusing to
accept his Alford plea.
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Standard of Review
{¶7} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St. 3d 525, 527 (1996). “‘“Failure on
any of those points renders enforcement of the plea unconstitutional under both the
United States Constitution and the Ohio Constitution.”’” State v. Montgomery, 3d
Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527. Crim.R. 11(C)(2), which
governs guilty pleas for felony-level offenses, provides, in its pertinent parts:
(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest
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 charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(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.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving 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
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doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.
(Emphasis added.) Crim.R. 11(C)(2).
{¶8} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
advise a defendant before accepting a felony plea that the plea waives the
defendant’s constitutional rights.” Montgomery at ¶ 11, citing Veney at ¶ 31.
“‘When a trial court fails to strictly comply with this duty, the defendant’s plea is
invalid.’” Id., quoting Veney at ¶ 31. “A trial court, however, is required to only
substantially comply with the non-constitutional notifications in Crim.R.
11(C)(2)(a) and (b).” Id., citing Veney at ¶ 14-17.
{¶9} An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived. Id. at ¶ 12, citing State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-
509, ¶ 20. “‘Furthermore, 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.’” Id., quoting State v. Nero, 56 Ohio St. 3d 106, 108 (1990).
Analysis
{¶10} In support of his argument that his guilty plea was not knowingly,
intelligently, or voluntarily made, Short points to an exchange that occurred during
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the change-of-plea hearing. Explicitly, Short points us to his failed attempt to enter
an Alford plea as the basis for why his guilty plea was not made knowingly,
intelligently, and voluntarily. In other words, Short is challenging the trial court’s
compliance with Crim.R. 11(C)(2).
“Alford” pleas, generally
An “Alford plea” is a specialized type of guilty plea when the
defendant, although pleading guilty, continues to deny his or her guilt
but enters the guilty plea because the defendant believes that the
offered sentence is better than what the outcome of a trial is likely to
be.
State v. Carey, 3d Dist. Union No. 14-10-25, 2011-Ohio-1998, ¶ 6, citing State v.
Schmidt, 3d Dist. Mercer No. 10-10-04, 2010-Ohio-4809, ¶ 13 and State v. Piacella,
27 Ohio St. 2d 92 (1971).
The term “Alford plea” originated with the United States Supreme
Court’s decision in North Carolina v. Alford, wherein the Supreme
Court held that guilty pleas linked with claims of innocence may be
accepted provided the “defendant intelligently concludes that his
interests require entry of a guilty plea and the record before the judge
contains strong evidence of actual guilt.”
(Emphasis added.) Id., quoting North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct.
160 (1970). “Although an Alford plea allows a defendant to maintain his factual
innocence, the plea has the same legal effect as a guilty plea.” Id., citing State v.
Vogelsong, 3d Dist. Hancock No. 5-06-60, 2007-Ohio-4935, ¶ 15.
{¶11} “All pleas, including an Alford plea, must meet the general
requirement that the defendant knowingly, voluntarily, and intelligently waived his
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or her right to trial.” Id. at ¶ 7, citing State v. Padgett, 67 Ohio App. 3d 332, 337-338
(2d Dist.1990), construing Crim.R. 11(C).
Where the defendant interjects protestations of innocence into the
plea proceedings, and fails to recant those protestations of innocence,
the trial court must determine that the defendant has made a rational
calculation to plead guilty notwithstanding his belief that he is
innocent. This requires, at a minimum, inquiry of the defendant
concerning his reasons for deciding to plead guilty notwithstanding
his protestations of innocence; it may require, in addition, inquiry
concerning the state’s evidence in order to determine that the
likelihood of the defendant’s being convicted of offenses of equal or
greater magnitude than the offenses to which he is pleading guilty is
great enough to warrant an intelligent decision to plead guilty.
(Emphasis added.) Padgett at 338-339.
{¶12} “A criminal defendant does not have an absolute right under the
United States Constitution to have his or her guilty plea accepted by the court.”
Carey at ¶ 12 citing Alford, 400 U.S. at 38, n. 11.
In Alford, the court did not determine that [] offenders have a
constitutional right to enter a guilty plea and simultaneously maintain
innocence; rather the opinion merely states that courts may, in certain
circumstances, accept guilty pleas of defendants who maintain their
innocence.
Id., citing In re Kirby, 101 Ohio St. 3d 312, 2004-Ohio-970, ¶ 13. The holding in
Alford “does not mean that a trial judge must accept every constitutionally valid
guilty plea merely because a defendant wishes so to plead.” Id., citing Kirby at ¶
17, quoting Alford at 38 n. 11.
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Short’s change-of-plea hearing
{¶13} At the change-of-plea hearing, Short informed the trial court that he
intended to plead guilty under North Carolina v. Alford. After the trial court refused
to accept Short’s Alford plea, no further discussion regarding Short’s purported
Alford plea occurred during the hearing. Importantly, the record reveals that Short
never made a protestation of his innocence in open court. See State v. Jackson, 3d
Dist. Wyandot No. 9-99-50, 2000 WL 376424, *3-4 (Apr. 13, 2000) (Shaw, J.,
concurring in judgment only) (stating that it was unclear and undeterminable from
the record whether Jackson’s purported Alford plea contained a “‘protestation of
innocence that is the general hallmark of such a plea’”)). Compare Carey at ¶ 5, 8
(concluding Carey’s statements to the trial court “I’m going to plea to it, but I
didn’t—commit those acts. But I’m going to plea, Yes. I admit” constituted a denial
of guilt); State v. Swoveland, 3d Dist. Van Wert No. 15-17-14, 2018-Ohio-2875, ¶
15, 18 (concluding Swoveland’s statement to the trial court “that he is ‘really not
guilty of what [he is] being accused of’” was a protestation of innocence)). See
also State v. Hayes, 101 Ohio App. 3d 73, 76 (3d Dist.1995) (concluding that an
Alford plea “consists of a guilty plea linked with an on-the-record claim of
innocence” and noting it would have been more clear that the defendant was
entering an Alford plea if she “had interjected an indication to the court of some
additional protestation of innocence”) citing Alford, 400 U.S. at 38.
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{¶14} Nevertheless, even if we assume without deciding that Short’s oral
request to enter an Alford plea alone constitutes a protestation of innocence, after
the trial court refused to accept an Alford plea, Short conferred with his trial counsel
who then informed the trial court that Short wanted to plead guilty to the amended
charge. (May 15, 2018 Tr. at 9). (See also Doc. No. 101). See Swoveland at ¶ 18
(concluding that Swoveland did not enter an Alford plea because he recanted his
protestation of innocence), citing Carey at ¶ 8 (“Carey made one, tenuous denial as
to her participation in the events but, thereafter, she fully acknowledged her guilt.”).
Moreover, trial counsel did not object to or challenge the trial court’s refusal to
accept an Alford plea. Therefore, because Short withdrew his Alford plea request
by informing the trial court that he would plead guilty to the amended charge, any
argument that the trial court failed to accept Short’s Alford plea is without merit.
Trial Court’s Crim.R. 11 colloquy
{¶15} Because Short informed the trial court that he wanted to plead guilty,
the trial court proceeded to conduct a comprehensive and detailed Crim.R. 11
colloquy during which Short acknowledged his guilt throughout the remainder of
the proceeding. The record supports that trial court substantially complied with the
requirements of Crim.R. 11(C)(2)(a) by informing Short of the nature of the charges,
the maximum penalty, and that Short was ineligible probation or the imposition of
community control sanctions. (May 15, 2018 Tr. at 12-17, 23-25). (Doc. No. 101).
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See State v. Balibid, 2d Dist. Montgomery No. 25411, 2012-Ohio-1406, ¶ 10, citing
Crim.R. 11(C)(2)(a); State v. Byrd, 178 Ohio App. 3d 646, 2008-Ohio-5515, ¶ 30
(2d Dist.); State v. Miller, 2d Dist. Clark No. 08 CA 90, 2010-Ohio-4760, ¶ 12; and
State v. Howard, 2d Dist. Champaign No. 06-CA-29, 2008-Ohio-419.
{¶16} The record further supports that the trial court also substantially
complied with the requirements of Crim.R. 11(C)(2)(b). “Crim.R. 11(C)(2)(b)
requires the trial court to inform the defendant of the effect of his guilty or no-
contest plea and to determine whether he understands that effect.” State v. Jones,
2d Dist. Montgomery No. 25688, 2014-Ohio-5574, ¶ 7, citing State v. Jones, 116
Ohio St. 3d 211, 2007-Ohio-6093, ¶ 12 and State v. Griggs, 103 Ohio St. 3d 85, 2004-
Ohio-4415, ¶ 10-12. See also Crim.R. 11(B). “To satisfy the effect-of-plea
requirement under Crim.R. 11(C)(2)(b), a trial court must inform the defendant,
either orally or in writing, of the appropriate language in Crim.R. 11(B).” Id. at ¶
8, citing Jones at ¶ 25, 51. Specifically, under Crim.R. 11(B), the trial court was
required to inform Short that “[t]he plea of guilty is a complete admission of [his]
guilt.” Crim.R. 11(B)(1). Here, the trial court informed Short that a guilty plea was
“a complete admission of guilt” which Short acknowledged in open court. (May
15, 2018 Tr. at 21).
{¶17} Finally, the record supports that the trial court strictly complied with
Crim.R. 11(C)(2)(c) during its colloquy with Short at the change-of-plea hearing.
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(Id. at 23). Compare Montgomery, 2014-Ohio-1789, at ¶ 13 (concluding that “the
trial court strictly complied with Crim.R. 11(C)(2)(c) at the change-of-plea
hearing”). Short advised the trial court that he understood the rights that he was
waiving by pleading guilty. (May 15, 2018 Tr. at 26-27). See Montgomery at ¶ 13.
Accordingly, we are not persuaded that the trial court erred by accepting Short’s
guilty plea. Montgomery at ¶ 13. Stated another way, despite the trial court’s
rejection of entertaining an Alford plea, Short’s guilty plea was rendered knowing,
intelligent, and voluntary. Moreover, Short failed to establish prejudice in this case,
i.e. that he would not have pled guilty but for the trial court’s alleged errors. Id.,
citing Nero, 56 Ohio St.3d at 108.
{¶18} Accordingly, we conclude that Short entered his guilty plea
knowingly, intelligently, and voluntarily and his assignments of error are overruled.
{¶19} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/jlr
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