State v. Underwood , 2012 Ohio 4263 ( 2012 )

[Cite as State v. Underwood, 2012-Ohio-4263.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 MA 170
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MELISSA UNDERWOOD, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10 CR 1283.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Megan Graff
Harrington, Hoppe & Mitchell
26 Market Street, Suite 1200
P.O. Box 6077
Youngstown, OH 44501
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 11, 2012
[Cite as State v. Underwood, 2012-Ohio-4263.]
DeGenaro, J.
{¶1} Defendant-Appellant, Melissa Underwood, appeals the decision of the
Mahoning County Court of Common Pleas that accepted her guilty plea to two counts of
aggravated assault. On appeal, Underwood argues that the trial court did not comply with
Crim.R. 11 when accepting her plea and therefore her plea was invalid. Upon review, the
sole assignment of error is meritless. A review of the plea colloquy reveals that the trial
court did comply with Crim.R. 11 and properly advised Underwood of her constitutional
rights. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On December 9, 2010, Underwood was indicted by the Mahoning County
Grand Jury on two counts of felonious assault (R.C. 2903.11(A)(2)(D)/(A)(1)(D)), both
second-degree felonies. These charges stemmed from an incident where Underwood
struck her ex-boyfriend with a vehicle following an argument between the two of them.
Underwood initially pled not guilty to these charges and the court appointed counsel.
{¶3} On June 23, 2011, the State and Underwood entered into a Crim.R. 11 plea
agreement. Underwood withdrew her previous plea of not guilty and agreed to plead
guilty to two amended counts of aggravated assault (R.C. 2903.12(A)(1)(B)/(A)(2)(B)),
fourth-degree felonies which would merge upon sentencing. The State agreed to adopt
the recommendation in the pre-sentence investigation and recommend anger
management. The State also recommended that if there is a claim for restitution, it be
ordered. At a plea hearing that same day, the trial court accepted Underwood's guilty
plea and granted the State's motion to amend the charges.
{¶4} Following a sentencing hearing, the trial court issued a judgment entry on
August 26, 2011, sentencing Underwood to two years of community control and requiring
her to complete programs at the Community Corrections Association.
{¶5} Underwood sent a pro-se letter of appeal to the trial court on September 15,
2011. This letter was filed by the Clerk of Courts on September 28, 2011. That same
day, the trial court overruled Underwood's request to withdraw her guilty plea.
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Compliance with Crim.R. 11
{¶6} In her sole assignment of error, Underwood argues:
{¶7} "The trial court erred by failing to comply with Crim.R. 11 when it did not
properly inform Appellant that the State would have to prove her guilt beyond a
reasonable doubt."
{¶8} Underwood contends that the language the trial court used during the plea
hearing did not properly inform her that she was waiving the right to have the State prove
her guilt beyond a reasonable doubt. Thus, she contends that her guilty plea was invalid
and urges this court to reverse and remand the case.
{¶9} The due process clause in both the United States and Ohio Constitutions
require pleas of guilty or no contest be knowing, intelligent, and voluntary. Parke v.
Raley, 506 U.S. 20, 28-30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); State v. Buchanan, 43
Ohio App.2d 93, 96, 334 N.E.2d 503 (8th Dist.1974). When determining the
voluntariness of a plea, courts must consider all of the relevant circumstances
surrounding it. State v. Johnson, 7th Dist. No. 07-MA-8, 2008-Ohio-1065, ¶8; Brady v.
United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). If the plea is
not knowing, intelligent, and voluntary, it has been obtained in violation of due process
and is void. State v. Martinez, 7th Dist. No. 03-MA-196, 2004-Ohio-6806, ¶11, citing
Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{¶10} Crim.R. 11(C)(2) describes the procedure a trial court must use when
accepting a guilty plea in a felony case. Crim.R. 11(C)(2)(c) requires that the trial court
advise the defendant of the constitutional rights against self-incrimination, to a jury trial, to
confront one's accusers, to compel witnesses to testify by compulsory process, and to
have the state prove the defendant's guilt beyond a reasonable doubt. State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶19-21. With respect to these
constitutional rights, strict compliance with the rule is required. Id. at ¶31; State v.
Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 (1981). "Strict compliance" does not
require a rote recitation of the exact language of the rule. Rather, a reviewing court
should focus on whether the "record shows that the judge explained these rights in a
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manner reasonably intelligible to the defendant." Id. at paragraph two of the syllabus.
{¶11} During the plea colloquy, the trial court addressed Underwood as follows:
You have a right to a jury trial where all 12 people have to find you guilty
beyond a reasonable doubt of these two counts of aggravated assault. You
give up that right. You give up the right to make Mr. Desmond [the
prosecutor] prove all the elements that it takes to make up this charge. The
car, in Mahoning County, he got hurt, et cetera, et cetera. Each element
has to be proved.
***
***
You also have the right to at trial, if it was a jury or even me, to make a
statement and testify. You have a right not to. It's called a right against
self-incrimination. You could say, hey, Mr. Desmond, you brought this
case, you prove it. I'm not gonna help you. * * *
{¶12} The plea colloquy demonstrates the trial court did comply with Crim.R. 11.
The trial court explained to Underwood her right to a jury trial where the jury would have
to find her guilty beyond a reasonable doubt and the State would have the burden of
proof in proving the elements of the offense. Although the trial court did not literally recite
the language of Crim.R. 11(C)(2)(c), it was not required to do so. The trial court
explained the right to have the State prove Underwood's guilt beyond a reasonable doubt
"in a manner reasonably intelligible" to her. Ballard at paragraph two of the syllabus.
{¶13} Underwood further cites to State v. Elmore, 7th Dist. No. 08-JE-36, 2009-
Ohio-6400, to argue that the trial court erred by failing to inform Underwood that the jury
would need to be convinced by the evidence the State presented. However, Underwood
misconstrues the holding of that case. In Elmore, the trial court addressed the defendant
as follows: "Had this case gone to trial * * * you would have a number of trial rights but by
your plea of guilty you're waiving or giving up * * * your right to trial by jury and in this case
that means that there would have been 12 jurors who could not convict you unless they
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were unanimously convinced beyond a reasonable doubt of each element of this
offense." Id. at ¶ 13. The defendant argued that his plea was invalid because the trial
court failed to specifically mention the State had the burden of proof. However, we
determined that the trial court complied with Crim.R. 11 because it referenced convincing
the jury, and the only other party to convince the jury would be the State. Id. at ¶ 14-15.
{¶14} Here, the trial court indicated the State bore the burden of proof, by saying
that the prosecutor, the State's representative, would need to prove the elements of the
offense. Notwithstanding Underwood's argument, Elmore does not require that the trial
court specifically state that the jury must be "convinced" of the defendant's guilt beyond a
reasonable doubt. Moreover, Crim.R. 11(C)(2)(c) does not appear to require that the
court inform the defendant that the jury need be "convinced" of the defendant's guilt or
that the State must prove guilt beyond a reasonable doubt "with evidence".
{¶15} Because the trial court strictly complied with Crim.R. 11 and Underwood's
plea was entered knowingly, voluntarily, and intelligently, this sole assignment of error is
meritless. Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.