Opinion
No. 75503.
Date of Announcement of Decision October 21, 1999.
Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-339972.
Judgment: Affirmed.
Appearances:
WILLIAM D. MASON, Cuyahoga County Prosecutor, L. CHRISTOPHER FREY, Assistant Prosecuting Attorney, for Plaintiff-Appellee.
JOHN L. REULBACH, JR., ESQ., for Defendant-Appellant.
This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 11.1.
Defendant-appellant Richard Collins appeals from his conviction following a guilty plea to two counts of felonious assault (R.C. 2903.11) with firearm and aggravated felony specifications. Defendant contends that his plea was not knowingly and intelligently entered pursuant to Crim.R. 11(C)(2) because the trial court failed to inform him the offenses were not probationable. We find no reversible error and affirm.
On April 16, 1996, defendant shot Edward Jordan and Christopher Lockette. He put Lockette in the trunk of his car and drove around for two hours before dropping him off at Saint Vincent Charity Hospital. Both Mr. Jordan and Mr. Lockette survived. Lockette, however, is paralyzed from the hips down and is consequently confined permanently to a wheelchair.
Defendant was indicted on two counts of attempted murder (R.C. 2923.02 and R.C. 2903.02), each count with a firearm specification and an aggravated felony specification, which reflects a prior conviction for voluntary manslaughter. He was also indicted on one count of kidnapping (R.C. 2905.01) and one count of having a weapon while under disability (R.C. 2923.13), each with firearm and aggravated felony specifications.
After withdrawing his initial plea of not guilty, defendant pled guilty to two counts of felonious assault, both counts with an aggravated felony specification, and one count with a firearm specification. The kidnapping and having a weapon while under disability charges were nolled. Defendant was consequently sentenced to two terms of twelve to fifteen years imprisonment, to run concurrently, with an additional consecutive sentence of three years for the firearm specification. Pursuant to R.C. 2951.02(F), defendant was ineligible for probation or a suspended sentence under R.C. 2929.51(D)(2) because he was armed with a firearm, an offense which requires actual incarceration pursuant to R.C. 2929.71. Furthermore, defendant pled guilty to felonious assault with a firearm, which is an aggravated felony of the second degree and, as such, requires actual incarceration pursuant to R.C. 2929.11(B)(2)(b).
Defendant's sole assignment of error states as follows:
I. FAILURE TO ADVISE THE DEFENDANT THAT THE CHARGES TO WHICH HE PLED GUILTY WERE NON-PROBATIONABLE AND WHERE FURTHER, THE CIRCUMSTANCES SURROUNDING THE PLEA ACTUALLY SUPPORTED THE CONTRARY, PLAIN ERROR THEREFORE RESULTED IN PREJUDICE TO THE DEFENDANT AND VACATION OF HIS PLEAS IS NECESSITATED.
Defendant contends that because the trial court failed to explicitly inform him before he pled guilty that he was ineligible for probation, the trial court did not comply with the requirements of Crim.R. 11 and his plea should be vacated. We find no merit to this argument.
Crim.R. 11(C) states in pertinent part:
(2) 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 or community sanctions.
* * *
The taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim.R. 11. As held in State v. Stewart (1977), 51 Ohio St.2d 86, syllabus:
Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim. R. 11. * * *.
"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 (1990), 56 Ohio St.3d 106, 108. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Id.
We find that defendant's plea in this case was made knowingly, voluntarily and intelligently as the trial court expressly found. (Tr. 16). The court below noted defendant's previous 1982 aggravated felony conviction for voluntary manslaughter. Then, before accepting defendant's plea, the court informed defendant of the consequences of pleading guilty to the firearm specification:
COURT: Now, this plea would carry a possible sentence itself, or in addition to count one, of eight, nine, ten, 11, 12 up to 15 years, plus a three-year gun specification. The three-year gun specification would have to be served first before any sentence would begin. Do you understand all that?
DEFENDANT: Yes, sir.
(Tr. 14). By advising the defendant that the "three year gun specification would have to be served first" the trial court made clear that defendant was going to prison. We have no doubt defendant understood that because at no point did the suggestion of probation ever arise. This is all the more evident when the court recited the sentences for the underlying crimes.
The following discussion between the court and defendant demonstrates that the trial court explicitly discussed the minimum and maximum terms of imprisonment with defendant.
COURT: So the total time here could be as little as 11 to 15 years or as much as 27 to 30 * * *. If both were run eight to 15 concurrent, plus three, that would be 11 to 15, which would be the minimum possible time he could possibly be sentenced to. The maximum possible time could be 24, if you add 12 to 15 to 12 to 15, and the three, and that would be 27 to 30 years. Do you understand all that, Mr. Collins?
DEFENDANT: Yes, sir.
(Tr. 8). Here, the trial court was plainly talking about the time defendant would serve in prison — not on probation. This defendant, a prior convicted felon, had no reason to expect probation in the face of these substantial sentences.
This Court recently found that Crim.R. 11(C)(2)(a) was satisfied when defendant was advised of his actual incarceration in State v. Beamon (March 25, 1999), Cuyahoga App. No. 73813, unreported at 4:
Here, the facts showed the trial court substantially complied with Crim.R. 11 when Beamon entered his guilty plea. The trial court then enumerated the potential terms of incarceration. When a trial court refers to actual incarceration, it substantially complies with Crim.R. 11. State v. Williams (Oct. 23, 1997), Cuyahoga App. Nos. 71151, 71152, 71153, 71154, unreported. Furthermore, the trial court explained to Beamon that due to changes made by Senate Bill II, he could also be subject to post-release control. The court then explained the circumstances surrounding post-release control. Beamon acknowledged that he understood the sentencing possibilities.
Although the trial court did not specifically tell Beamon he was not eligible for probation, its compliance with Crim.R. 11 was nevertheless substantial. Thus, Beamon's guilty plea need not be vacated solely for this reason. State v. Nero (1990), 56 Ohio St.3d 106. See, also, State v. Hyatt (1996), 116 Ohio App.3d 418. Accordingly, we conclude the trial court substantially complied with Crim.R. 11. Beamon's third assignment of error is overruled.
Similarly, the Supreme Court held in State v. Nero (1990), 56 Ohio St.3d 106, syllabus:
Where the circumstances indicate that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim.R. 11(C)(2)(a), the trial court's acceptance of the defendant's guilty plea to the nonprobational crime of rape without personally advising the defendant that he was not eligible for probation constitutes substantial compliance with Crim.R. 11. ( State v. Stewart [1977], 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163, followed.)
Accordingly, we find from the totality of the circumstances that the trial court substantially complied with Crim.R. 11(C)(2)(a) when it informed defendant that the three-year sentence for the gun violation would have to be served first, before his minimum prison term of eight to fifteen years even began. Although the dissent has reservations about the effectiveness of this language, this defendant had no reason to expect probation in the face of his heinous crimes. No reasonable person would conclude that the trial court did not mean what it said — defendant was headed to prison. In addition, defendant never requested or raised probation at his plea or sentencing hearing, indicating his understanding he was not eligible.
Furthermore, defendant asserts that the trial court's use of the phrase "possible sentence" implied that he was eligible for probation. Defendant correctly states that the trial court expressed that he would be sentenced to a "possible sentence" of eight, nine, ten, eleven, twelve and as much as fifteen years on each count. However, it is evident from the record that the court's use of the word "possible" referred to the potential length of defendant's sentence, not the sentence itself.
In conclusion, Crim.R. 11(C) does not require that the court specifically inform a defendant about probation eligibility as long as the court determines that defendant understands that he is not eligible for probation. The record reflects that by informing defendant of his twelve to fifteen year minimum sentence, after first serving three years on the gun specification, the trial court informed defendant, a repeat offender, in a manner reasonably intelligible to him that he would be sentenced to a term of actual imprisonment and not eligible for probation.
Defendant's sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
O'DONNELL, J., CONCURS. (SEE CONCURRING OPINION ATTACHED.) KARPINSKI, J., DISSENTS. (SEE DISSENTING OPINION ATTACHED.)
_________________________________ JAMES M. PORTER ADMINISTRATIVE JUDGE
In the instant case, Collins challenges his plea claiming that the trial court committed plain error in failing to advise him that the offenses to which he pled were non-probationable.
This contention is strikingly similar to the proposition of law presented to the court in State v. Stewart (1977), 51 Ohio St.2d 86, where the court set forth Stewart's position at 87, "* * *. Appellant's specific complaint alleges that the trial court failed to advise him that in pleading guilty to murder (R.C. 2903.02), he would not be eligible for probation."
The syllabus in Stewart reads as follows:
Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim. R. 11 * * *.
The final paragraph of the court's opinion is also instructive on this limited issue:
The trial court substantially complied with the requirements in Crim.R. 11, and the failure to personally advise appellant that in entering a plea of guilty to murder he would not be eligible for probation does not rise to the status of prejudicial error.
In applying the law of Stewart to this case, I believe the doctrine of stare decisis compels us to affirm. Accordingly, I would affirm the judgment of the trial court.
I respectfully dissent. Crim.R. 11(C)(2)(a) expressly provides that a trial court "shall not accept" a guilty plea without first determining that the defendant is making the plea with the understanding "that he is not eligible for probation."
Crim.R. 11(C)(2)(a) provides as follows:
(2) 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:
(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved and, if applicable, that he is not eligible for probation.
Unfortunately, the trial court did not comply with this requirement in the case at bar.
Despite this defect, my colleagues affirm the trial court's judgment, but do not agree on a consistent rationale. I am unable to join them because doing so requires going beyond the cited caselaw and because the case at bar simply involves too many shortcuts and irregularities to reach such a conclusion with any confidence.
We all agree that these were not model proceedings. The trial court's journal entry does not even correctly impose the sentence mandated by law. Affirming such a sentence, in fact, may lead to defendant serving less than his lawful sentence. Ironically, to affirm, one must conclude that defendant understood the correct terms of his sentence, even when the record leaves doubt about whether the trial judge explaining it to him did. What makes the conclusion that defendant understood his sentence even more dubious is that the prosecution's brief on appeal also reflects an erroneous understanding of the sentence in this case.
There are two reasons why defendant was ineligible for probation in this case. The first reason is that he pleaded to, and was found guilty of, two offenses with accompanying prior aggravated felony specifications. Such offenses are categorically non-probationable by statute. R.C. 2929.11(B)(2)(b) expressly provides that "the minimum term shall be imposed as a term of actual incarceration of eight, nine, ten, eleven, or twelve years, and the maximum term shall be fifteen years." "Actual incarceration," by definition, means imprisonment for the term without probation or release of any kind. R.C. 2929.01(C)
The prosecution's brief on appeal incorrectly states the effect of a prior aggravated felony specification, when it states: "Furthermore, Appellant plead [sic] guilty to felonious assault with a firearm, which is an aggravated felony of the second degree and, as such, requires actual incarceration pursuant to R.C. 2929.11 (A)(2)(b)." (Brief at p. 3.) This sentence culminates in a non-sequitur. The phrase "as such" refers to aggravated felonies of the second degree. Such felonies, per se, do not require actual incarceration, however.
R.C. 2929.01(C) provides as follows: "`Actual incarceration' means that an offender is required to be imprisoned for the stated period of time to which he is sentenced that is specified as a term of actual incarceration. If a person is sentenced to a term of actual incarceration, the court shall not suspend his term of actual incarceration, and shall not grant him probation * * *".
R.C. 2951.02 (F)(5) likewise provides in pertinent part as follows: "(F) An offender shall not be placed on probation * * * when * * * (5) [t] he offender * * * is sentenced to a term of actual incarceration."
The trial court's sentencing entry does not specify actual incarceration on this or any element of his sentence. It provides as follows:
IT IS THEREFORE, ORDERED AND ADJUDGED BY THE COURT THAT SAID DEFENDANT, RICHARD COLLINS, IS SENTENCED TO LORAIN CORRECTIONAL INSTITUTION FOR A TERM OF TWELVE (12) TO FIFTEEN (15) YEARS ON EACH COUNT ONE AND TWO, COUNTS CONCURRENT AND THREE (3) YEARS ADDITIONAL ON GUN SPECIFICATIONS [SIC] CONSECUTIVE TO COUNT TWO.
Failure to specify the minimum term of twelve years actual incarceration on each offense in the journal entry leaves in doubt whether defendant could be released before serving the entire twelve-year-minimum term on each underlying offense.
An independent reason that defendant was ineligible for probation is that he used a firearm in the commission of the offenses. R.C. 2929.71 specifically provides that, on the firearm specification, trial courts "shall impose a term of actual incarceration of three years in addition to * * * an indefinite term of imprisonment" on the underlying offense. R.C. 2951.02(F)(3) provides further that the trial court cannot grant probation on either the firearm specification or an underlying felony committed with a firearm.
R.C. 2951.02(F)(3) provides that "[a] n offender shall not be placed on probation * * * when * * * [t] he offense was committed while the offender was armed with a firearm."
Not only did the trial court fail to mention these terms, but its sentencing entry does not correctly specify that (1) the three-year term for the firearm specification requires actual incarceration, or (2) the "three-year term of actual incarceration * * * shall be served consecutively with, and prior to, the * * * indefinite term of imprisonment." R.C. 2929.71(A)(3). Failure to specify these terms leaves in doubt whether defendant could be released before serving a total statutory minimum period of fifteen years of actual incarceration. In light of all the shortcuts and muddled statements at the plea hearing, as well as the subsequent omissions in the court's journal entry, it takes quite a stretch to conclude that defendant was adequately informed about the terms of his sentence and knew he was going to jail without probation.
The record in the case at bar unambiguously shows that the trial court (1) did not inform defendant that he was ineligible for probation, (2) did not inform defendant that he was subject to any term of actual incarceration, and (3) did not make a finding that defendant otherwise understood he was ineligible for probation.
The main opinion argues that the totality of circumstances shows "substantial compliance." In State v. Nero (1990), 56 Ohio St.3d 106, 108, the Supreme Court of Ohio stated:
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. (Emphasis added.)
In support of its claim of substantial compliance, the main opinion points to two circumstances: (1) the trial court informed defendant of the minimum and maximum terms of his sentence, and (2) the trial court stated that "the gun specification would have to be served first."
The prosecutor's brief offered the following string of non-sequiturs to support this argument:
From the discussion between the trial court and defendant, it is clear that the court, by informing him that there would be a minimum term of incarceration, informed him that he would be sentenced to a term of actual incarceration and, as such, would consequently be ineligible for probation or super-shock probation.
Id. at p. 6; Brief at p. 5.
Informing the defendant of the minimum and maximum is not inconsistent with probation. When imposing an indefinite sentence, a trial court must always state the minimum and maximum term of imprisonment. Stating these terms, or stating that one of multiple sentences must "be served first," reveals nothing whatsoever about probation because, in appropriate cases, the court may, after imposing such sentence, suspend execution of the sentences of imprisonment imposed and place the offender on probation. R.C. 2929.51(A)
Nothing in the transcript quoted in the main opinion is inconsistent with probation. The main opinion argues, however, that the trial court's statement that the "gun specification would have to be served first" revealed to defendant that he was going to jail. However, by its own terms, this statement does not specify actual incarceration or non-probationability on either the firearm or the accompanying charge. It merely indicates the order in which one sentence follows another.
The relevant question is whether the offender was informed or otherwise knew that he was ineligible for probation, not whether he knew the minimum, maximum, or sequence of his potential sentences. In other words, if there is no evidence that the court expressly informed him of his ineligibility for probation, this court may consider whether there is evidence that he otherwise knew. There is nothing in the record, however, to indicate defendant otherwise knew.
Instead, the main opinion argues that no "reasonable person" in defendant's position would believe he was eligible for probation. (Ante at p. 8.) This argument, however, improperly substitutes an objective standard — what a reasonable person would understand — for the subjective standard — what this particular defendant understood — required by Crim.R. 11(C)(2)(a) and the Supreme Court in Nero.
This court previously misstated this subjective standard as an objective one. In State v. Scott (1996), 113 Ohio App.3d 401, 403, this court misquoted the Supreme Court in Nero as follows:
"Substantial compliance means that under the totality of the circumstances the defendant objectively [sic] understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. (Emphasis added).
Actually, the Supreme Court wrote "the defendant subjectively understands." This erroneous statement of law in Scott should be repudiated.
There is a critical distinction between objective and subjective standards. The difference goes to the issue of whether we may deem or impute knowledge.
The main opinion also asserts that because of his "heinous crime" defendant had no reason to expect probation. Such an exception is not found in Criminal Rule 11 or anywhere else. A case might be made for a crime clearly carrying a death penalty, but it would be difficult to determine expectations on a rhetorical classification such as "heinous crime."
Finally, the unreported case of State v. Beamon (Mar. 25, 1999), Cuyahoga App. No. 73813. unreported, cited in the main opinion, is factually distinguishable because it provided the information missing here. The trial court specifically informed defendant of "actual incarceration" and "post-release control." Id. at pp. 3-4. Other cases of this court have also relied upon similar information missing from the case at bar. E.g., State v. Williams (Oct. 23, 1997), Cuyahoga App. Nos. 71152, 71153 and 71154, in which the trial court used the terms "mandatory sentence" and "actual sentence." Id. at p. 2. See also State v. Benjamin (Sept. 3, 1998), Cuyahoga App. No. 73017, in which the trial court used the word "nonprobationable" and repeatedly used other words in plain English that informed defendant he was going to prison. Id. at pp. 9-11.
In the case at bar, on the other hand, the trial court did not use the words "mandatory," "actual incarceration," "nonprobationable" or inform defendant that he was going to prison. While I agree that the trial court is not required to use these or any other specific words, it must, nevertheless, either convey the information or determine that defendant otherwise subjectively understands that he is not eligible for probation. The trial court in the case at bar did not inform defendant or make such a finding, and one must resort to legal fiction to conclude on this record that defendant subjectively knew he was ineligible for probation. State v. Meyers (Oct. 13, 1994), Cuyahoga App. No. 66912, unreported at p. 2, citing State v. Calvillo (1991), 76 Ohio App.3d 714[, 719].
The separate concurring opinion in the case at bar ignores the Supreme Court's most recent pronouncement on this issue in Nero. The concurring opinion concedes error, but contends no prejudice occurred in this case and, in support, also quotes the syllabus of State v. Stewart (1977), 51 Ohio St.2d 86. The syllabus of Stewart provides as follows:
Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim. R. 11. (Paragraph one of the syllabus in State v. Caudill, 48 Ohio St.2d 342, modified.)
It is well established that the syllabus of a Supreme Court decision must be read in light of the facts and circumstances of the particular case upon which it is premised. S.Ct.R.Rep.Op. 1(B); Fenner v. Parkinson (1990), 69 Ohio App.3d 210, 214. This would appear to be particularly true when the syllabus involves a fact-bound determination such as the presence or absence of prejudice in any particular case.
The case at bar has numerous obvious factual differences from those of Stewart. In Stewart the charged offense was aggravated murder, which carried a death penalty, and defendant pleaded guilty to murder, which carried a maximum life sentence. By pleading to less than the worst possible offense under the criminal code of capital murder, defendant avoided the death penalty, but not jail entirely. Not only was defendant in the case at bar not charged with such a grave offense, but he pleaded guilty to the less serious charge of felonious assault.
More importantly, however, the defendant in Stewart executed a written document stating that "no officer or agent of any branch of government (Federal, State or local) nor any other person, has made a promise * * * that I would receive * * * probation * * *. Id. at 91. Because the record in Stewart revealed that the parties discussed the subject of probation, rather than omitted any discussion of it entirely as in the case at bar, there was a much stronger basis to infer that defendant had already been advised he was ineligible for probation so that no prejudice could result from the court's failure to tell him a second time of the same matter.
Further distinguishing the two cases is the Supreme Court's emphasis that the matter in Stewart was never referred for a presentence report, which is necessary when granting probation. Id. at 92; Crim.R. 32.2. The case at bar was referred, however, for such a presentence report. Under these different factual circumstances, the argument concerning the lack of prejudice ignores the central issue and is unpersuasive.
Because the trial court failed to make the necessary findings and its language does not meet the mark in more than one way, and because my colleagues have not pointed to any circumstances in the record indicating that defendant subjectively knew he was ineligible for probation, I am unable to conclude (1) that the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a), or (2) that no prejudice resulted from its failure to do so. For these reasons, I respectfully dissent.