State v. McDaniel , 2010 Ohio 5215 ( 2010 )

[Cite as State v. McDaniel, 2010-Ohio-5215.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
State of Ohio, :
:
Plaintiff-Appellee, : Case No: 09CA677
:
v. :
: DECISION AND
Shaune A. McDaniel, : JUDGMENT ENTRY
:
Defendant-Appellant. : File-stamped date: 10-22-10
APPEARANCES:
Katherine A. Szudy, Columbus, Ohio, for the Appellant.
Austin B. Campbell, Vinton County Prosecutor, McArthur, Ohio, for the Appellee.
Kline, J.:
{¶1} Shaune A. McDaniel appeals from the judgment of the Vinton County
Common Pleas Court. McDaniel pleaded guilty to aggravated robbery. On appeal,
McDaniel contends that, during his change of plea hearing, the trial court failed to
adequately inform him of his right to compulsory process and of the maximum potential
sentence. As such, McDaniel maintains that the trial court failed to ensure that his plea
was a knowing, intelligent, and voluntary one. But we hold that the language used by
the trial court reasonably apprised McDaniel of his right to compulsory process and that
Vinton App. No. 09CA677 2
the trial court was not obliged to mention the imposition of court costs, as part of his
maximum potential sentence, when considering McDaniel’s plea.
{¶2} McDaniel next contends that the trial court erred by failing to orally announce
the imposition of court costs during his sentencing hearing. But we find that the
transcript of the hearing indicates that the trial court did, in fact, orally impose court
costs at the sentencing hearing. Accordingly, we affirm the judgment of the trial court.
I.
{¶3} On March 4, 2009, the Vinton County grand jury returned a three-count
indictment against McDaniel. The indictment alleged that McDaniel had engaged in
conduct that constituted (1) aggravated robbery in violation of R.C. 2911.01(A)(3); (2)
felonious assault in violation of R.C. 2903.11(A)(1); and (3) criminal conspiracy in
violation of R.C. 2923.01(A).
{¶4} On November 6, 2009, McDaniel changed his plea from not guilty to guilty.
At this hearing, McDaniel entered a plea of guilty to aggravated robbery, and the State,
in return for this plea, dismissed counts two and three. During the plea colloquy, the
trial court informed McDaniel of the constitutional rights he was waiving by entering this
plea. During the trial court’s explanation of McDaniel’s rights, the trial court stated the
following: “Also, you’re waiving your right to bring in your own witnesses to subpoena
those witnesses if necessary, to come in as a part of your defense. Do you understand
you are waiving that right?” Transcript of November 5, 2009 Hearing at 6.
{¶5} The trial court made no mention of court costs when considering whether to
accept McDaniel’s guilty plea. The trial court also made no mention that it was
empowered to order McDaniel to perform community service in the event that he was
Vinton App. No. 09CA677 3
unable to pay the court costs. Immediately after accepting McDaniel’s plea of guilty, the
trial court held a sentencing hearing and sentenced McDaniel to a nine-year sentence
for his aggravated robbery conviction. During the sentencing phase of the hearing, the
trial court stated: “[McDaniel] is further ordered to pay all court costs for which execution
is awarded in accordance with Revised Code 2947.23[.]” Transcript of November 5,
2009 hearing at 10.
{¶6} McDaniel appeals the judgment of the trial court and assigns the following
errors for our review: I. “[McDaniel] was deprived of his right to due process under the
Fourteenth Amendment to the United States Constitution and Section 10, Article I of the
Ohio Constitution when the trial court accepted an unknowing, unintelligent, and
involuntary guilty plea. (Plea and Sentencing Hearing Transcript, pp. 3-11).” And, II.
“The trial court erred when it failed to address the imposition of court costs in open
court, and then included such costs in [McDaniel’s] sentencing entry. (November 5,
2009 Guilty Plea and Judgment Entry of Conviction and Sentence; Plea and Sentencing
Hearing Transcript, pp. 1-14).”
II.
{¶7} McDaniel first contends that the trial court failed to ensure that his guilty plea
was a knowing, intelligent, and voluntary waiver of his constitutional rights. Specifically,
McDaniel contends that the trial court both failed to adequately explain his right to
compulsory process and failed to explain the maximum potential sentence.
{¶8} In determining whether to accept a guilty plea, the trial court must determine
whether the defendant’s plea was made knowingly, intelligently, and voluntarily. See
State v. Johnson (1988), 40 Ohio St. 3d 130, at syllabus; Crim.R. 11(C). “In considering
Vinton App. No. 09CA677 4
whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate
court examines the totality of the circumstances through a de novo review of the record
to ensure that the trial court complied with constitutional and procedural safeguards.”
State v. Eckler, Adams App. No. 09CA878, 2009-Ohio-7064, at ¶48 (quotations
omitted). Before accepting a guilty plea, the trial court should engage in a dialogue with
the defendant as described in Crim.R. 11(C). See State v. Morrison, Adams App. No.
07CA854, 2008-Ohio-4913, at ¶9.
{¶9} In part, Crim.R. 11(C)(2) provides: “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:
{¶10} “(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved[.]
{¶11} “* * *
{¶12} “(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 doubt at a trial at which the defendant cannot be compelled to testify against
himself or herself.”
{¶13} “Substantial compliance with the provisions of Crim.R. 11(C)(2)(a) and (b) is
sufficient to establish a valid plea.” State v. Vinson, Franklin App. No. 08AP-903, 2009-
Ohio-3240, at ¶6, citing State v. Mulhollen (1997), 119 Ohio App. 3d 560, 563; see, also,
State v. Nutt, Ross App. No. 06CA2927, 2007-Ohio-3032, at ¶12. “Substantial
Vinton App. No. 09CA677 5
compliance means that, under the totality of the circumstances, appellant subjectively
understood the implications of his plea and the rights he waived.” Vinson at ¶6, citing
State v. Carter (1979), 60 Ohio St. 2d 34, 38; see, also, Morrison at ¶9. However, “[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 (1) the right to a jury trial, (2) the
right to confront one’s accusers, (3) the right to compulsory process to obtain witnesses,
(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the
privilege against compulsory self-incrimination. When a trial court fails to strictly comply
with this duty, the defendant’s plea is invalid.” State v. Veney, 120 Ohio St. 3d 176,
2008-Ohio-5200, syllabus. See, also, State v. Ballard (1981), 66 Ohio St. 2d 473, at
paragraph one of the syllabus. “Appellant need not be advised of those rights in the
exact language of Crim.R. 11(C), but he must be informed of them in a reasonably
intelligible manner.” Vinson at ¶6, citing Ballard, at paragraph two of the syllabus.
{¶14} A defendant who challenges his guilty plea on the basis that it was not
knowingly, intelligently, and voluntarily made must show a prejudicial effect. See State
v. Stewart (1977), 51 Ohio St. 2d 86, 93; Crim.R. 52(A). “The test is whether the plea
would have otherwise been made.” State v. Nero (1990), 56 Ohio St. 3d 106, 108; State
v. Corbin, 141 Ohio App. 3d 381, 386, 2001-Ohio-4140.
{¶15} McDaniel contends that two errors on the part of the trial court indicate that
the trial court failed to comply with the requirements of Crim.R. 11.
{¶16} First, McDaniel claims that the trial court failed to adequately explain
McDaniel’s right to compulsory process. As noted above, the trial court is obliged to
use words that reasonably explain the constitutional rights that a defendant’s guilty plea
Vinton App. No. 09CA677 6
waives. At the hearing, the trial court characterized McDaniel’s right to compulsory
process as follows: “you’re waiving your right to bring in your own witnesses to
subpoena those witnesses if necessary, to come in as a part of your defense. Do you
understand you are waiving that right?”
{¶17} The gist of McDaniel’s argument seems to be that this question did not
sufficiently inform him that he could compel witnesses to testify. McDaniel cites no
cases directly on point for his contention that the above passage does not reasonably
inform a defendant of his right to compulsory process. And our review of Ohio cases
indicates that other courts have found similar statements sufficient. State v. Ward,
Montgomery App. No. 21044, 2006-Ohio-832, at ¶12 (court’s statement that the
defendant was giving up his right to have his own witnesses come and testify was
“adequate, if less than ideal.”); State v. Anderson (1995), 108 Ohio App. 3d 5, 11-12
(finding that “[y]ou are giving up your right to call witnesses on your own behalf”
informed the defendant in a reasonably intelligible manner); State v. Thomas, Franklin
App. No. 04AP-866, 2005-Ohio-2389, at ¶9 (finding that “right to have your witnesses,
should you have any, subpoenaed to the courtroom” informed the defendant in a
reasonably intelligible manner).
{¶18} Some districts in Ohio have required the trial court to specifically inform the
defendant of the power to compel the attendance of witnesses. State v. Gardner,
Lorain App. No. 08CA009520, 2009-Ohio-6505, at ¶9 (court failed to reasonably apprise
defendant of his right because it did not inform him that he could use the court’s
subpoena power to compel witnesses’ attendance); State v. Wilson, Cuyahoga App. No.
82770, 2004-Ohio-499, at ¶16 (“The trial court must inform a defendant that it has the
Vinton App. No. 09CA677 7
power to force, compel, subpoena, or otherwise cause a witness to appear and testify
on the defendant’s behalf. Otherwise, the logical import of the court’s notice is that the
defendant could present such witnesses as he could only secure through his own
efforts.”) (emphasis sic); State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, at
¶17 (“This court has held that the use of the word ‘subpoena’ adequately informs the
defendant of his right to compulsory process.”).
{¶19} Here, we note that even under the more restrictive cases, the trial court’s
statement is satisfactory because the statement indicates that McDaniel could have had
the court issue subpoenas to ensure the presence of witnesses. The gist of the trial
court’s statement was that McDaniel had the right to subpoena witnesses to testify at
any potential trial. We find that this would reasonably apprise an individual of the nature
of his constitutional right to compulsory process.
{¶20} Second, McDaniel contends that his plea was invalid because the trial court
failed to substantially comply with the requirement that the trial court inform the accused
of the maximum potential penalty for his offense. Crim.R. 11(C)(2)(a). Here, McDaniel
contends that the trial court failed to inform him that he would be obliged to pay court
costs and that if he failed to pay court costs, the trial court could order him to perform
community service. McDaniel analogizes the failure to mention costs to the failure to
advise a defendant of a mandatory term of post release control. McDaniel therefore
cites a case from the Supreme Court of Ohio for the principle that his plea is invalid.
See State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509.
{¶21} However, the Supreme Court of Ohio has recently stated that court “costs are
distinct from criminal punishment. ‘[A]lthough costs in criminal cases are assessed at
Vinton App. No. 09CA677 8
sentencing and are included in the sentencing entry, costs are not punishment, but are
more akin to a civil judgment for money.’” State v. Joseph, 125 Ohio St. 3d 76, 2010-
Ohio-954, at ¶20, quoting State v. Threatt, 108 Ohio St. 3d 277, 2006-Ohio-905, at ¶15.
Court costs are not punishment and therefore are not part of the “penalty” that the trial
court needs to describe under Crim.R. 11(C)(2)(a). Therefore, McDaniel fails to
establish that the trial court failed to substantially comply with the requirements of
Crim.R. 11(C)(2)(a).
{¶22} Accordingly, we overrule McDaniel’s first assignment of error.
III.
{¶23} In his second assignment of error, McDaniel contends that the trial court erred
by failing to orally impose court costs during the sentencing phase of the hearing. The
State agrees, and admits that this Court should reverse and remand the matter to the
trial court in order for the trial court to consider a waiver of costs due to indigency
pursuant to Joseph. In Joseph, the Supreme Court of Ohio held that the trial court erred
by failing to orally impose court costs at the defendant’s hearing. Joseph at ¶1. The
Court then remanded for the limited purpose of allowing the defendant “to move the
court for a waiver of the payment of court costs.” Id. at ¶23.
{¶24} We find this admission from the State anomalous because, during the
sentencing portion of the hearing, the trial court stated that “[McDaniel] is further
ordered to pay all court costs for which execution is awarded in accordance with
Revised Code 2947.23[.]” R.C. 2947.23(A) is the section that mandates the imposition
of court costs in all criminal cases.
Vinton App. No. 09CA677 9
{¶25} We find this case distinguishable from Joseph because the trial court orally
imposed court costs with specific reference to the relevant section of the Ohio Revised
Code.
{¶26} Accordingly, we overrule McDaniel’s second assignment of error.
IV.
{¶27} Having overruled both of McDaniel’s assignments of error, we affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Vinton App. No. 09CA677 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the 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 Vinton
County Court of Common Pleas 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. Exceptions.
McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.