State v. Boyd ( 2013 )

[Cite as State v. Boyd, 2013-Ohio-30.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98342
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ANTHONY BOYD
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-551449 and CR-557349
BEFORE: E.A. Gallagher, J., Stewart, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: January 10, 2013
ATTORNEY FOR APPELLANT
Jerome Emoff
55 Public Square
Suite 950
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Milko Cecez
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Anthony Boyd appeals from his guilty pleas and
criminal sentencing in the Cuyahoga County Court of Common Pleas. For the following
reasons we affirm, in part, and reverse, in part, and remand.
{¶2} In this case, appellant is contesting his pleas and sentence stemming from
two separate indictments. In CR-551449, appellant was indicted on June 22, 2011, with
one count of grand theft in violation of R.C. 2913.02(A)(1). In CR-557349, appellant
was indicted on December 30, 2011, with two counts of trafficking in violation of R.C.
2925.03(A)(1) and (2), and drug possession in violation of R.C. 2925.11(A).
{¶3} In two separate hearings, appellant entered guilty pleas in the above cases
as well as a third case that is not part of the present appeal.1 On November 28, 2011,
appellant pled guilty in CR-551449 to grand theft as charged in the indictment. At the
close of the hearing, the trial court referred appellant for a presentence investigation and
report. On February 29, 2012, appellant pled guilty in CR-557349 to one count of
trafficking in violation of R.C. 2925.03(A)(1) and the state agreed to nolle the remaining
counts. The trial court referred appellant for the completion of a “probation report.”
1
Appellant’s notice of appeal in the present case included only CR-551449 and CR-557349.
To the extent that appellant’s assignments of error at times reference CR-552387,
appellant’s arguments as to that case are disregarded as beyond the scope of the
present appeal.
{¶4} On April 11, 2012, the trial court sentenced appellant in CR-551449 to a
prison term of 18 months, a fine of $250 and court costs. In CR-557349, appellant was
sentenced to 12 months imprisonment, a fine of $250 plus costs and a six month driver’s
license suspension. Appellant was also sentenced to three years of postrelease control.
The trial court ordered that the prison sentences in the two cases be served consecutively.
{¶5} Appellant appeals his pleas and sentences asserting the following four
assignments of error:
Assignment of Error I
The trial court erred in failing to sufficiently provide appellant with the
right of allocution. Crim.R. 32(A)(1) provides that at the time of imposing
sentence the court shall:
“[a]fford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a
statement in his or her own behalf or present any information in mitigation
of punishment.”
Assignment of Error II
In case numbers CR-551449/552387 [sic], the trial court failed to advise
appellant that upon acceptance of his plea, the court may proceed with
judgment and sentence.2
Assignment of Error III
The trial court failed to determine that appellant understood the nature of
the charges.
Assignment of Error IV
The trial court erred by failing to sufficiently announce findings for the
imposition of consecutive sentences.
As previously discussed appellant has not appealed his conviction in CR-552387.
2
{¶6} Regarding the first assignment of error, the right of allocution guaranteed
in Crim.R. 32(A)(1) is derived from the common-law right of allocution, and provides
the defendant with his or her final chance to address the court and express remorse.
Garfield Hts. v. J.P., 8th Dist. No. 87166, 2006-Ohio-4590, ¶ 7, citing Green v. United
States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed. 2d 670 (1961). The Ohio Supreme
Court has stated that trial courts must “painstakingly adhere” to the allocution
requirement of Crim.R. 32(A)(1) and treat it as more than an “empty ritual.” State v.
Green, 90 Ohio St.3d 352, 359-560, 738 N.E.2d 1208 (6th Dist.2000).
{¶7} At appellant’s sentencing hearing on April 11, 2012, the trial court
addressed appellant and asked, “Mr. Boyd, is there anything that you’d like to say?”
Appellant argues that this general query is not specific enough to satisfy the trial court’s
responsibility under Crim.R. 32(A)(1). We disagree. While the trial court’s adherence
to Crim.R. 32(A)(1) must be “painstaking,” it is not required to invoke the exact words
of the rule when posing the question to the defendant. Numerous courts have upheld the
use of language similar to that employed by the trial court here. See, e.g., State v.
Muntaser, 8th Dist. No. 81915, 2003-Ohio-5809, ¶ 57; State v. Massey, 5th Dist. No.
2006-CA-00370, 2007-Ohio-3637, ¶ 30-31; State v. Crable, 7th Dist. No. 04 BE 17,
2004-Ohio-6812, ¶ 20; State v. McClendon, 7th Dist. No. 11 MA 15, 2012-Ohio-1410,
¶ 13.
{¶8} Appellant’s first assignment of error is overruled.
{¶9} Regarding appellant’s second assignment of error, under Crim.R. 11(C),
prior to accepting a guilty plea in a felony case, a court must conduct an oral dialogue
with the defendant to determine that the plea is voluntary, that the defendant understands
the nature of the charges and the maximum penalty involved and to personally inform the
defendant of the constitutional provisions that he is waiving by pleading guilty.
{¶10} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished constitutional and
nonconstitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶18. The trial court must strictly comply with those provisions of Crim.R.
11(C) that relate to the waiver of constitutional rights. State v. Stewart, 51 Ohio St.2d
86, 88-89, 364 N.E.2d 1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115(1981), paragraph one of the syllabus.
{¶11} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not
required and “substantial compliance” is sufficient. State v. Stewart, 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977); State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 31. “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶12} Crim.R. 11(C)(2)(b) provides that prior to accepting a guilty plea, a trial
court shall inform the defendant “ * * * that the court, upon acceptance of the plea, may
proceed with judgment and sentence.” As this requirement is a nonconstitutional right
we review for substantial compliance by the trial court. State v. Steele, 8th Dist. No.
85901, 2005-Ohio-5541, ¶ 15. Additionally, a defendant who claims that his or her plea
was not knowingly, intelligently, or voluntarily made must show a prejudicial effect.
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51
Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977).
{¶13} In the case sub judice, the trial court did not inform appellant prior to
accepting his guilty plea in CR-551449 that upon acceptance of the plea the court may
proceed with judgment and sentence. However, the record reflects that appellant
suffered no prejudice as a result of the trial court’s failure to so advise him as the trial
court did not, in fact, proceed to sentencing but rather referred appellant for a
presentence investigation report. Where a trial court does not proceed immediately to
sentencing upon accepting a guilty plea, the defendant is not prejudiced by the court’s
failure to warn that it could have done so. State v. Carey, 8th Dist. No. 97444,
2012-Ohio-3359, ¶ 11, citing State v. Johnson, 11th Dist. No. 2002-L-024,
2004-Ohio-331, ¶ 20; State v. O’Neal, 9th Dist. No. 19255, 1999 Ohio App. LEXIS
4515, *4 (Sept. 29, 1999).
{¶14} Appellant’s second assignment of error is overruled.
{¶15} Regarding appellant’s third assignment of error, appellant argues that his
guilty pleas in CR-551449 and CR-557349 are invalid because the trial court failed to
adequately inform him of the nature of the charges against him. Because this
assignment of error relates to nonconstitutional rights contained in Crim.R. 11(C)(2)(a),
we will review the trial court’s conduct for substantial compliance.
{¶16} Appellant asserts that the court must provide a “recitation or discussion” of
the elements of an offense in order to find that the defendant knowingly, voluntarily, and
intelligently entered his or her plea. We disagree. This court has consistently held that
courts are not required to explain the elements of each offense, or to
specifically ask the defendant whether he understands the charges, unless
the totality of the circumstances shows that the defendant does not
understand the charges.
State v. Whitfield, 8th Dist. No. 81247, 2003-Ohio-1504, ¶ 14, quoting State v. Cobb, 8th
Dist. No. 76950, 2001-Ohio-4132; State v. Carpenter, 8th Dist. No. 81571,
2003-Ohio-3019, ¶ 2; State v. Clay, 8th Dist. No. 89763, 2008-Ohio-1415, ¶ 14; State v.
Lomax, 8th Dist. No. 98125, 2012-Ohio-4167, ¶ 14.
{¶17} Our review of the record indicates no basis for appellant’s claim that he did
not understand the charges to which he pled guilty. At both the November 28, 2011 and
the February 29, 2012 plea hearings, the trial court informed appellant of the charges to
which he would be pleading guilty along with the corresponding felony degrees and
potential penalties and the appellant indicated that he understood this information. In
addition, appellant has failed to demonstrate that he was prejudiced in any way by his
pleas. He does not claim that he would not have pleaded guilty if the trial court had
defined each element of the offenses. Without a showing of prejudice, appellant’s
argument fails. Clay at ¶ 15.
{¶18} Appellant’s third assignment of error is overruled.
{¶19} Regarding appellant’s fourth assignment of error, this assignment of error
requires us to review a felony sentence and we employ the two-part test adopted by the
Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 14. First, we must determine whether a sentence is contrary to law. Id. Then, if
the sentence was not contrary to law, we review to determine whether the trial court
abused its discretion in selecting sentences within the range permitted by statute. Id. at ¶
17.
{¶20} The first prong of the Kalish test requires us to examine whether the trial
court met the statutory requirements for imposing consecutive sentences, which are
contained in R.C. 2929.14(C)(4). Am. Sub. H.B. No. 86, which became effective on
September 30, 2011, “revive[d]” R.C. 2929.14(C)(4) and reinstated the requirement that
trial courts make factual findings on specified issues before imposing consecutive
sentences. State v. Matthews, 8th Dist. No. 97916, 2012-Ohio-5174, ¶ 45.
{¶21} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶22} Appellant argues that the trial court failed to make the requisite findings
under R.C. 2929.14(C)(4) prior to imposing consecutive sentences for his grand theft and
trafficking convictions.
{¶23} Initially, the trial court in the present instance did not specify whether the
sentences were to run consecutively or concurrently. Only after the sentences had been
announced did the trial court, in response to a request for clarification by the state, note
that the prison terms were to be served consecutively. The trial court thereafter stated,
“[h]e measures out to 13 on the risk assessment. There’s been numerous probations and
numerous violations.”
{¶24} In State v. Wilson, 8th Dist. No. 97827, 2012-Ohio-4159, the trial court did
not make specific statements, on the record, that the imposition of consecutive sentences
“were necessary to protect the public from future crime or to punish Wilson, and not
disproportionate to the seriousness of Wilson’s conduct and to the danger he poses to the
public, and that one of the factors in R.C. 2929.14(C)(4)(a) through (c) applied to
Wilson.” Id. at ¶ 12. The state argued that “a review of the entire record” indicated
that the judge had made statements implying such findings earlier in the case and that
those findings had been incorporated by reference at the beginning of the sentencing
hearing. We rejected that argument and held that the record was insufficient to meet the
specific requirements of R.C. 2929.14(C)(4). Id. at ¶ 13. While courts are not required
to use “talismanic words” in order to comply with R.C. 2929.14(C)(4), they must make
the required findings “on the record at sentencing prior to imposing consecutive
sentences.” Id. at ¶ 13, citing State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶
22.
{¶25} In this case, the trial court’s after-the-fact vague reference to a risk
assessment score and “numerous probations and numerous violations” failed to satisfy
the requirements of R.C. 2929.14(C)(4). Although information from appellant’s
presentence investigation was referenced by the trial court at a prior plea hearing, this did
not relieve the court from complying with R.C. 2929.14(C)(4).
{¶26} Appellant’s fourth assignment of error is sustained.
{¶27} Appellant’s sentence is reversed. Case remanded to the lower court for
resentencing.
It is ordered that appellant recover of said appellee 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
lower 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.
EILEEN A. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
MARY EILEEN KILBANE, J., CONCUR