Opinion
2022 CAA 08 0061
07-24-2023
STATE OF OHIO, Plaintiff - Appellee v. VILLARDIA PIERRE, Defendant-Appellant
For Plaintiff-Appellee DANIEL E. COGLEY For Defendant-Appellant APRIL F. CAMPBELL Campbell Law, LLC.
Appeal from the Delaware County Court of Common Pleas, Case No. 22 CRI 05 0278
For Plaintiff-Appellee DANIEL E. COGLEY
For Defendant-Appellant APRIL F. CAMPBELL Campbell Law, LLC.
Hon. John W. Wise, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
OPINION
NUNC PRO TUNC
Baldwin, J.
{¶1} The appellant, who pleaded guilty to one count of aggravated vehicular assault, appeals her sentence. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On or about January 30, 2022, the appellant visited a bar located in Delaware County, Ohio, where she consumed alcohol. Upon leaving the bar, she operated her motor vehicle the wrong way on State Route 23, resulting in a head-on collision with the vehicle operated by the victim and causing serious injuries. The appellant's blood alcohol level at the time of the collision was 0.231, nearly three times the legal limit.
{¶3} The appellee issued a Bill of Particulars on May 5, 2022, alleging that the appellant violated R.C. 4511.19(A), R.C. 2903.08(A)(1)(a), and 2903.08(B)(1), aggravated vehicular assault, a felony of the third degree. A summons regarding the Bill of Particulars was issued the same day, and on May 11, 2022, trial counsel entered an appearance on behalf of the appellant.
{¶4} A hearing took place on July 1, 2022, at which the appellant appeared with counsel. The appellant waived indictment, and the matter proceeded to arraignment. The appellant's trial counsel advised the trial court that the appellant "would like to enter into the Bill of Information and plead guilty to the agreed-upon charge." Defense counsel had been speaking with the appellee "quite frequently" about the matter prior to the hearing, and an agreement was reached in which the appellant would plead guilty to the charge contained in the Bill of Information, one count of aggravated vehicular assault, a felony of the third degree, and the matter would be set for presentence investigation. The appellee agreed to defer to the trial court regarding sentencing.
{¶5} In light of the appellant's plea, trial court proceeded with the Crim. R. 11(C) colloquy, first inquiring as to the appellant's background. The appellant stated that she had a Master's degree and was working on a Ph.D., and when asked if she could read and write English responded "very much so." The trial court specifically advised the appellant of her right to a jury trial, her right to confront her accusers, her right to subpoena witnesses to testify on her behalf, her right to remain silent at a trial and that her silence cannot be used against her for any purpose, and her right to require the appellee to prove her guilt beyond a reasonable doubt. The trial court then read the offense with which the appellant was charged aloud in open court and asked the appellant if she fully understood the nature of the charge against her. She replied that she understood.
{¶6} The trial court further advised the appellant that the charge she was facing was punishable by a maximum sentence of sixty (60) months and a fine of up to $10,000.00, as well as a mandatory driver's license suspension of two to ten years. The trial court stated that the appellant needed to understand that if she was sentenced to a term of imprisonment she may be subject to a period of up to two years of post-release control by the parole board.
{¶7} A Written Text of Criminal Rule 11(F) Agreement form was completed which provided that the appellant agreed to plead guilty to the Bill of Information; that the appellee would recommend a presentence investigation be conducted; that the appellant agreed to pay restitution in the amount of $661.00 to the victim; and, that the appellant waived her rights to appeal, including but not limited to the grounds listed in R.C. 2953.08. In addition, the Written Agreement stated:
Defendant's acknowledgment: I understand that this Agreement is a binding contract between me and the State of Ohio. I have reviewed this Agreement with my lawyer, understand what it says, and agree to it.(Emphasis original.)
{¶8} Finally, the appellant also signed a Written Plea of Guilty to the Information and Judgment Entry on Guilty Plea which outlined the plea agreement, charges, and possible sentence, and stated in pertinent part:
I also understand that, as to the crime of Aggravated Vehicular Assault charged in the Information, I shall be sentenced to a definite prison term of twelve (12) months, eighteen (18) months, twenty-four (24) months, thirty (30) months, thirty-six (36) months, forty-two (42) months, forty-eight (48) months, fifty-four (54) months, or sixty (60) months, and further, that a fine may be imposed, the same not to exceed Ten Thousand Dollars ($10,000.00).
{¶9} The trial court specifically discussed the Written Plea of Guilty to the Information document with the appellant, confirming that she had read it, reviewed it with her counsel, understood it, and signed it. The appellant thereafter pleaded guilty in open court. The trial court accepted the appellant's guilty plea as knowingly, intelligently and voluntarily entered, and referred the matter to the adult probation department for preparation of a presentence investigation.
{¶10} A sentencing hearing proceeded on August 8, 2022. The trial court took into account the appellant's lack of criminal history, her genuine remorse, and the serious harm caused to the victim, and imposed a prison term of thirty-six (36) months upon the appellant.
{¶11} The appellant filed a timely appeal in which she sets forth the following sole assignment of error:
{¶12} "I. PIERRE'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT COULD NOT ACCEPT PIERRE'S GUILTY PLEAS [SIC] UNDER CRIM.R. 11(C), AND HER PLEAS [SIC] ARE NOT KNOWING, VOLUNTARY, AND INTELLIGENT."
{¶13} The appellant argues that the trial court failed to advise her that community control was not an option during the Crim. R. 11(C) colloquy, and as a result her guilty plea was not knowingly, voluntarily and intelligently made and her conviction must be reversed. We disagree.
STANDARD OF REVIEW
{¶14} Crim. R. 11 requires that guilty pleas to be made knowingly, intelligently, and voluntarily. While literal compliance with Crim. R. 11 is preferred, the trial court need only "substantially comply" with the rule when dealing with the non-constitutional rights set forth in Crim. R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977).
{¶15} The constitutional rights of which a defendant must be informed are referenced in Crim. R. 11(C)(2)(c), and are as follows: (1) a jury trial; (2) confrontation of witnesses against her; (3) the compulsory process for obtaining witnesses in her favor; (4) that the state must prove the defendant's guilt beyond a reasonable doubt at trial; and (5) that the defendant cannot be compelled to testify against herself. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with the Crim. R. 11(C) requirements relative to these particular constitutional rights, the defendant's plea is invalid. Id. at ¶ 31.
{¶16} The non-constitutional rights of which a defendant must be informed of are: (1) the nature of the charges; (2) the maximum penalty involved, which includes, if applicable, an advisement on post-release control; (3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions; and, (4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing. Crim. R. 11(C)(2)(a) and (b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 423 N.E.2d 1224, ¶ 19-26, (post release control is a nonconstitutional advisement).
{¶17} With regard to non-constitutional rights, the trial court need only substantially comply with the mandates of Crim. R. 11. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "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." Veney at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the basis that the advisement for the non-constitutional rights did not substantially comply with Crim. R. 11(C)(2)(a) and (b) must also show a prejudicial effect, meaning that the plea would not have been otherwise entered. Veney at ¶ 15; State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163(1977).
{¶18} A plea's compliance with Crim. R. 11(C) is reviewed based upon a de novo standard of review. State v. Nero, 56 Ohio St.3d 106, 108-109, 564 N.E.2d 474(1990); State v. Lebron, 8th Dist. Cuyahoga No. 108825, 2020-Ohio-1507, ¶9; State v. Groves, 5th Dist. Fairfield Nos. 2019 CA 00032, 2019 CA 00033, 2019-Ohio-5025, ¶7.
ANALYSIS
{¶19} Crim. R. 11(C)(2)(c) provides that before accepting a plea of guilty, the trial court must address the defendant and determine that she "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." In this case, the record establishes that the trial court specifically advised the appellant of her right to a jury trial, her right to confront her accusers, her right to subpoena witnesses to testify on her behalf, her right to remain silent at a trial and that her silence cannot be used against her for any purpose, and her right to require the appellee to prove her guilt beyond a reasonable doubt. As such, we find that the trial court strictly complied with Crim. R. 11(C)(2)(c).
{¶20} Crim. R. 11(C)(2)(a) and (b) provide that before accepting a plea of guilty, the trial court must determine "that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing," and inform the defendant of and determine that the defendant "understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence." The trial court is required to substantially comply with the requirements of this section. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of her plea and the rights she is waiving.
{¶21} Upon the trial court's inquiry, the appellant stated that she had a Master's degree and was working on a Ph.D., and when asked if she could read and write English responded "very much so." The trial court then read the offense with which the appellant was charged aloud in open court and asked the appellant if she fully understood the nature of the charge against her. She replied that she understood.
{¶22} The trial court next reviewed with the appellant her Written Plea of Guilty to the Information and Judgment Entry on Guilty Plea, which outlined the plea agreement, charges, and possible sentence, and stated in pertinent part:
I also understand that, as to the crime of Aggravated Vehicular Assault charged in the Information, I shall be sentenced to a definite prison term of twelve (12) months, eighteen (18) months, twenty-four (24) months, thirty (30) months, thirty-six (36) months, forty-two (42) months, forty-eight (48) months, fifty-four (54) months, or sixty (60) months, and further, that a fine may be imposed, the same not to exceed Ten Thousand Dollars ($10,000.00).
{¶23} The appellant acknowledged her Written Plea of Guilty to the Information, and confirmed that she read it and reviewed it with her counsel, understood it, and signed it. Nowhere does the Written Plea of Guilty provide that the appellant might be sentenced to community control; rather, it clearly states that the appellant understood that she "shall" be sentenced to a definite prison term of anywhere between twelve (12) and sixty (60) months. The fact that the trial court mentioned that if she was sentenced to a term of imprisonment she may be subject to a period of up to two years of post-release control by the parole board does not vitiate the clear language of the appellant's Written Plea of Guilty or her acknowledgement of the same in open court, particularly under a totality of the circumstances analysis. Furthermore, there is no evidence that the appellant has suffered prejudice, particularly in light of the fact that she received only thirty-six (36) months out of a possible sixty (60) month sentence. The argument that she believed that community control was an option, and would not have accepted the plea agreement had she known community control was not an option, is at odds with her acknowledgement of and signature on the Written Plea of Guilty which clearly sets forth that she "shall" be sentenced to a term of twelve (12) to sixty (60) months.
{¶24} Based upon the totality of the circumstances herein, we find that the appellant subjectively understood the implications of her plea and the rights she was waiving, including the fact that community control was not an option for the third-degree felony with which she was charged and to which she pleaded guilty. The appellant's Written Plea of Guilty to the Information, and her acknowledgement in open court that she had read it, reviewed it with her counsel, understood it, and signed it, clearly establishes the fact that she "shall" be sentenced to a definite term of between twelve to sixty months. The trial court substantially complied with Crim. R. 11(C)(2)(a) and (b), and the appellant's assignment of error is not well taken.
CONCLUSION
{¶25} The record in this case supports the conclusion that the trial court engaged in a proper plea colloquy, and properly accepted the appellant's plea. Accordingly, the appellant's assignment of error is overruled, and the judgment of the Delaware County Court of Common Pleas is hereby affirmed.
Baldwin, J., Wise, John, P.J. and Delaney, J. concur.