Opinion
No. 107032
03-26-2019
STATE OF OHIO PLAINTIFF-APPELLEE v. CHRISTOPHER L. NAVE DEFENDANT-APPELLANT
FOR APPELLANT Christopher Nave, pro se Inmate No. A682975 Lorain Correctional Institution 2075 South Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Anthony T. Miranda Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case Nos. CR-16-600628-C and CR-15-601090-B
Application for Reopening
Motion No. 525969
FOR APPELLANT
Christopher Nave, pro se
Inmate No. A682975
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Anthony T. Miranda
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Applicant, Christopher Nave, pursuant to App.R. 26(B), timely seeks to reopen his appeal in State v. Nave, 8th Dist. Cuyahoga 107032, 2019-Ohio-348. He claims that appellate counsel was ineffective for not raising and arguing that Nave entered his plea less than knowingly, intelligently, and voluntarily because the trial court did not properly inform Nave of the maximum penalties involved. We deny the application.
{¶2} Nave pleaded guilty to several charges in two criminal cases related to separate burglary incidents. He received five-year sentences in each case and the trial court ordered those sentences to be served consecutively, for a total ten-year sentence.
{¶3} Nave appealed. This court overruled Nave's assigned errors and affirmed his convictions and sentences. Id. Then, Nave timely filed an application for reopening.
{¶4} App.R. 26(B) provides a criminal defendant with a limited means of reopening an appeal by asserting that counsel on appeal provided ineffective assistance. In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Therefore, Nave must show that appellate counsel was deficient for failing to raise an issue, and there was a reasonable probability of success had the issue been asserted in the direct appeal.
{¶5} App.R. 26(B)(2)(c) requires the application to contain "[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation[.]" Here, Nave advances one proposed assignment of error: "Appellant's trial counsel provided ineffective assistance of counsel when it failed to argue that Nave's plea was not made knowingly, intelligently and voluntarily when the trial court failed to advised [sic] him of the maximum penalty(s) he was pleading guilty to."
{¶6} Crim.R. 11(C) governs the procedure for accepting the guilty pleas Nave entered in the lower cases. Under this rule,
prior to accepting a guilty plea to a felony charge, the trial court must personally address the defendant and engage in an "oral dialogue" with the defendant to (1) determine that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty involved; (2) inform the defendant of and determine that the defendant understands the effect of the guilty plea and that the court, upon acceptance of the plea, may proceed with judgment
and sentence; and (3) inform the defendant of and determine that the defendant understands the constitutional rights he or she waives by pleading guilty * * *.State v. Scott, 8th Dist. Cuyahoga No. 100668, 2014-Ohio-3500, ¶ 7, citing Crim.R. 11(C). An explanation of the maximum penalty is a nonconstitutional right that is subject to review for substantial compliance. State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 (1981).
{¶7} Nave contends the trial court failed to properly inform him of the maximum penalty involved because the court did not include an advisement about the possibility of consecutive sentences.
{¶8} After explaining the constitutional rights Nave was giving up by pleading guilty, the trial court explained the range of punishment applicable to the levels of felonies to which Nave was expected to plead guilty. The trial court set forth the appropriate sentencing ranges that could be imposed for each offense. The court did not include an advisement about the potential for consecutive sentence under R.C. 2929.14(C)(4).
{¶9} Nave seizes on this as a failure of the trial court to explain the maximum penalties as required by Crim.R. 11(C)(2)(a). However, such an advisement is not required by Crim.R. 11 in this case. State v. Johnson, 40 Ohio St.3d 130, 134, 532 N.E.2d 1295 (1988). "Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary." Id. at the syllabus.
{¶10} This court has followed Johnson on numerous occasions and concluded that Crim.R.11(C)(2)(a) does not require a trial court to advise a defendant of the potential for discretionary consecutive sentencing. State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 24 (8th Dist.), citing, among others, State v. Dansby-East, 2016-Ohio-202, 57 N.E.3d 450, ¶ 16-17 (8th Dist.), and State v. Dotson, 8th Dist. Cuyahoga No. 101911, 2015-Ohio-2392, ¶ 12. In State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, this court found that where a trial court is required to impose a sentence consecutively, the failure to advise the defendant of that fact constituted a failure to substantially explain the maximum penalty. Id. at ___ 13. See also State v. Abernathy, 8th Dist. Cuyahoga No. 107123, 2018-Ohio-4414, ___ 4. However, where the decision to impose consecutive sentences arises purely from the trial court's discretion under R.C. 2929.14(C)(4), such an advisement is not required. See Johnson at the syllabus; Vinson at ___ 24-26.
{¶11} The Ohio Supreme Court recently examined the decision in Johnson, but did not overrule it. State v. Bishop, Slip Opinion No. 2018-Ohio-5132. There, the court held that a trial court failed to explain the maximum penalty involved when it did not inform the defendant that if the trial court, in its discretion, imposed a prison term for a violation of postrelease control, that term, by operation of law, was required to be imposed consecutive to any other potential prison term. Id. at ___ 21.
{¶12} When a consecutive sentence is discretionary under R.C. 2929.14(C)(4), however, the failure to inform a criminal defendant that a prison term may be run consecutive to another is not a violation of Crim.R. 11(C)(2)(a). The Ohio Supreme Court's decision in Bishop did not disturb this holding in Johnson. Existing law does not support Nave's claim that appellate counsel was ineffective for failing to argue this issue. Therefore, Nave did not raise a colorable claim of ineffective assistance of appellate counsel for failing to raise and argue this issue.
{¶13} Application denied. /s/_________ SEAN C. GALLAGHER, JUDGE MARY EILEEN KILBANE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR