Summary
holding that disclosure of possible consecutive sentences is not required
Summary of this case from State v. DodsonOpinion
No. 88-232
Submitted October 5, 1988 —
Decided December 28, 1988.
Criminal law — Plea of guilty not involuntary, when — Defendant not informed that sentences may be imposed consecutively — Crim. R. 11(C)(2) not violated.
O.Jur 3d Criminal Law §§ 819, 820.
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.
CERTIFIED by the Court of Appeals for Montgomery County, No. 10377.
On January 2, 1987, Roger Johnson, defendant-appellee herein, was charged by indictment with one count of aggravated robbery which included a firearm specification, and unlawful possession of dangerous ordnance. A plea of not guilty was entered. On February 9, 1987, appellee was additionally charged by a bill of information with one count each of robbery and forgery. On the same day, he appeared in open court with counsel and, as a result of plea negotiations, pled guilty as charged to robbery, forgery and aggravated robbery. In exchange for these guilty pleas, the state agreed to dismiss the second count of the indictment which charged unlawful possession of dangerous ordnance, to delete all reference to the firearm in count one, and to dismiss the firearm specification to that count.
The trial court, prior to accepting the guilty plea and pronouncing sentence, personally addressed appellee, setting forth his constitutional and statutory rights which he was waiving by entering a plea. Appellee, who had completed twelve years of schooling, repeatedly expressed an understanding of the implications of each plea. Further, the trial court, upon the record, ascertained that appellee understood the nature of the charges against him, all in accordance with Crim. R. 11(C), and concerning which appellee herein stated no disagreement. Also, the trial court explained to appellee the maximum penalty involved for each of the offenses to which he had entered his plea of guilty, doing so in the following colloquy:
"THE COURT: Aggravated felony one, no prior. Is that the first one?
"MR. COUGHLIN: Yes. Aggravated robbery without a firearm is an aggravated felony of the first degree.
"THE COURT: Sir, that carries a possible penalty of five, six, seven, eight, nine, ten to twenty-five years and a possible fine. Do you understand that?
"THE DEFENDANT: Yes, sir.
"MR. COUGHLIN: The robbery charge is an aggravated felony of the second degree.
"THE COURT: And sir, that carries a possible penalty of three, four, five, six, seven, eight, to fifteen years.
"MR. COUGHLIN: And the forgery charge is a felony of the fourth degree.
"THE COURT: And that, sir, carries a possible penalty of six months, one year, one and one-half years, possible fine. Do you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you understand all the possible penalties — and I presume that these are now probationary.
"MR. COUGHLIN: That's correct.
"THE COURT: All right, sir. Let the record show that the Court is of the opinion that the defendant understands the possible penalties involved."
After informing the defendant of his constitutional rights that he would be foregoing, the trial court stated as follows:
"[THE COURT]: Now, there's a plea form that Mr. Rife has in his hand. I notice that you were going over them a minute ago. Please look them over and if you have any questions, why you should ask them.
"(Whereupon, the defendant affixed his signature to the appropriate forms.)
"THE COURT: Any questions, sir?
"THE DEFENDANT: No, sir.
"THE COURT: The record should reflect that the defendant and his counsel have signed the three separate entries of waiver and plea, two on the information and one on the indictment. The Court is now signing the forms.
"Now, sir, what is your plea to these three separate charges?
"THE DEFENDANT: Guilty.
"THE COURT: The Court will accept the pleas of guilty and refer the cases to the Adult Probation Department of this county for a pre-sentence investigation and report."
Neither the appellee nor his counsel objected at this point to any informative commentary by the trial court. Following receipt of the presentence report, the court pronounced sentence upon appellee, imposing a term of incarceration of one year for the forgery count, an indefinite term of five to fifteen years' imprisonment for the robbery count, and a term of eight to twenty-five years for the aggravated robbery count. All three sentences were ordered to be served consecutively. There also was no objection at that time to the sentences given.
Appellee appealed the convictions to the Court of Appeals for Montgomery County assigning as errors that the trial court had erred in failing to address him personally pursuant to Crim. R. 11(C), and had particularly failed to advise him of the maximum sentence possible as required by Crim. R. 11(C)(2)(a).
The court of appeals reversed the convictions. It found that although the trial court had properly personally addressed appellee on the other mandates of Crim. R. 11(C), nevertheless, in that court's view, appellee had not been advised as to the maximum sentence possible for such violations because the trial court failed to inform him that the sentences may be imposed to run consecutively, rather than concurrently. The appellate court held that "without some explanation of the difference between consecutive and concurrent sentences, he would have no means of ascertaining the maximum penalty, within given limits, that might be anticipated."
The court of appeals, finding its decision in this respect to be in conflict with the decisions in State v. Van Horn (Dec. 4, 1981), Hamilton App. No. C-800042, unreported, and State v. Reisinger (June 27, 1984), Hamilton App. No. C-830673, unreported, certified the record of the case to this court for review and final determination.
Lee C. Falke, prosecuting attorney, and Carley J. Ingram, for appellant.
J. Allen Wilmes, for appellee.
The basic question presented to this court upon appeal is whether the criminal defendant, appellee herein, in entering his bargained plea of guilty to crimes charged, has done so with all protections made available to him by way of constitutional provisions or Criminal Rule. Most particularly involved here is whether the sentencing information given to appellee allowed him to make an informed plea of guilty.
As previously stated, at the sentencing hearing, neither appellee nor his counsel objected to the manner in which sentencing was pronounced. Neither expressed to the judge any misunderstanding which appellee may have had as to the total maximum sentence that the law provided. There was no assertion made that the plea of guilty was not "knowingly" given as to all sentencing possibilities. At that point in time, if the appellee felt that he had been misinformed or not fully informed of his rights in the sentencing process, he could have, through counsel, availed himself of Crim. R. 32.1 and sought to withdraw his plea after sentencing, and such should be granted where manifest injustice is shown. However, even though not brought to the attention of the trial court, appellate courts will notice and rectify plain errors affecting substantial rights, particularly claimed denials of constitutional rights. See, e.g., State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d 581, and In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, paragraph one of the syllabus.
In Boykin v. Alabama (1969), 395 U.S. 238, the United States Supreme Court held that the Constitution requires that in order for a reviewing court to determine that a guilty plea was voluntarily made, the record must show that the defendant voluntarily and knowingly waived three rights: the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, the right to trial by jury, and the right to confront one's accusers.
These constitutional guarantees, along with other requirements, are set forth in Ohio's Crim. R. 11(C)(2). This rule instructs the trial court that before accepting a plea of guilty or a plea of no contest, the court must do the following:
"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.
"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
"(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."
We have previously determined that this rule fully encompasses those procedural requirements established by the United States Constitution upon this issue. State v. Stewart (1977), 51 Ohio St.2d 86, 88, 5 O.O. 3d 52, 54, 364 N.E.2d 1163, 1165. As stated previously, the constitutional requirements for acceptance of a voluntary guilty plea have been set forth in Boykin v. Alabama, supra. We have stated in this regard that the knowledge of the maximum and minimum sentences is not constitutionally required. State v. Stewart, supra. Similarly, in Barbee v. Ruth (C.A. 5, 1982), 678 F.2d 634, 635, it was held that:
"`The Constitution does not require that, in order to understand the consequences of a plea of guilty, the accused must be informed by the trial court, or must otherwise know, whether or not sentences imposed for separate crimes will run consecutively or concurrently.'"
We conclude that neither the United States Constitution nor the Ohio Constitution requires that in order for a guilty plea to be voluntary a defendant must be told the maximum total of the sentences he faces, or that the sentence could be imposed consecutively. Therefore, even though the trial court here did not specifically state that such sentences could run consecutively, but did explain the maximum sentences possible, there was no deprivation of appellee's constitutional rights.
Although there has been no violation of the appellee's constitutional rights here, we must determine whether there has been prejudicial error committed by the trial court regarding the mandates of Crim. R. 11(C). We begin our analysis by considering the text of the rule itself. A review of such rule, as set forth above, indicates that it requires the trial court to explain before it accepts "the plea," " the nature of the charge and of the maximum penalty involved." (Emphasis added.) Crim. R. 11(C)(2)(a). Upon its face the rule speaks in the singular. The term "the charge" indicates a single and individual criminal charge. So, too, does "the plea" refer to "a plea" which the court "shall not accept" until the dictates of the rule have been observed. Consequently, the term "the maximum penalty" which is required to be explained is also to be understood as referring to a single penalty. In the context of "the plea" to "the charge," the reasonable interpretation of the text is that "the maximum penalty" is for the single crime for which "the plea" is offered. It would seem to be beyond a reasonable interpretation to suggest that the rule refers cumulatively to the total of all sentences received for all charges which a criminal defendant may answer in a single proceeding.
Finally, the decision of whether the criminal defendant is to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing discretion, the exercise of which is committed to the trial court. The exercise of such discretion can only occur after the defendant has been found guilty, whether by jury trial or by entry and acceptance of a plea. In the ordinary course of the proceedings, a trial court will refer the case to the probation department for a presentence report, which is then relied upon by the trial court in imposing sentence. This appears to have occurred in the present case. We note that Crim. R. 11 applies only to the entry and acceptance of the plea. It has no relevance to the exercise of the trial court's sentencing discretion at that stage other than directing the court to proceed with or impose sentencing. Thus, it can hardly be said that the rule imposes upon a trial judge a duty to explain what particular matters he may, at a later date, determine are significant to the exercise of his discretion. Moreover, explaining definitions of basic terms and calculating potential sentences are matters which are within the purview of legal representation, and of which even minimally competent trial counsel are capable.
Accordingly, we hold that there has not been such prejudicial error. In fact, there was no error by the trial court here because it carried out the specific mandate of Crim. R. 11(C) by stating to the defendant the exact maximum sentence for each of the crimes as provided by law. There is no specific requirement in such rule that an explanation be made that any sentences as given may run consecutively, or only concurrently, as might benefit the defendant. We shall not at this time implant verbiage that is not presently in the rule.
Further, appellee has failed to demonstrate that he was specifically prejudiced by such explanations of the trial court. Crim. R. 52(A) states that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Crim. R. 33(E)(5) provides that no judgment of conviction may be reversed in any court due to any cause unless it affirmatively appears from the record that the defendant was prejudiced thereby, or was prevented from having a fair trial. In this case, the test of prejudice is not whether appellee had knowledge of a maximum sentence involved, but the test of prejudice is whether the plea would otherwise have been made. State v. Stewart, supra; State v. Waddell (1985), 26 Ohio App.3d 33, 26 OBR 202, 498 N.E.2d 195.
Appellee did not argue in the trial court that had he known that he was subject to consecutive sentences, he would not have pled guilty. On appeal, in his brief, his argument was not that he was unaware of the consequences of his plea and that had he been aware he would not have pled guilty; instead, his argument was that the court did not comply with Crim. R. 11(C)(2) and so the plea was ipso facto involuntary. In response to the state's allegation of lack of prejudice, appellee filed in the court of appeals an affidavit wherein he claimed that he was unaware of the possibility of consecutive sentences, and that had he known, he would not have pled guilty. This declaration of prejudice was meant to supply evidence otherwise lacking on appeal, but is not part of the record and so does not serve to establish prejudice. App. R. 9 and 12(A).
In addition to appellee's failure to show prejudice, the record suggests that he was not at all prejudiced. The state deleted all references to firearms in both the indictment and the bill of information and obtained dismissal of the count of unlawful possession of dangerous ordnance, all of which was in exchange for appellee's guilty pleas. This arrangement was advantageous to appellee in that it removed from sentencing consideration a fourth degree felony and a firearm specification. The latter, by itself, would have resulted in three additional years of actual incarceration upon conviction, and would have made the remaining offenses non-probationable. See R.C. 2929.71 and 2951.02.
In conclusion, we hold that there was no prejudicial error shown here. The judgment of the court of appeals is reversed and the cause is remanded to the trial court for reinstatement of appellee's convictions.
Judgment reversed.
MOYER, C.J., LOCHER, DOUGLAS and H. BROWN, JJ., concur.
SWEENEY and WRIGHT, JJ., dissent.
I join in the judgment, syllabus, and the opinion of the majority insofar as it goes. However, I believe that Justice Wright, in his dissent, identifies an important point of fairness. Though it does not rise to the level of constitutional error and though there has been a technical compliance with Crim. R. 11(C)(2), the preferred practice would be for the trial judge to inform a defendant that sentences may be imposed consecutively before accepting a guilty plea to multiple offenses. Further, I believe the trial judge should tell the defendant what the maximum possible punishment for all offenses may be and not leave that mathematical computation to the defendant.
In this particular case the trial judge carefully advised appellee of the possible minimum and maximum penalties for each of the three offenses to which Johnson ultimately entered a guilty plea. Likewise, the trial court noted that the offenses were probationable and even referred this matter to the probation department for a presentence investigation before ultimately rendering consecutive sentences on all three offenses. However, no reference whatsoever was made to the possible maximum penalty for all the offenses and, as stated by the court of appeals, "* * * more importantly, no advice was offered as to whether the defendant was eligible for consecutive or concurrent sentences." It would appear to me that the majority has become preoccupied with form and is ignoring what happens in a real live courtroom. As the court of appeals so aptly put it, "* * * a defendant is probably more concerned with the prospects of `doing time' than with constitutional rights or legal niceties." I think it incumbent on any trial judge who renders any real degree of adherence to the letter and spirit of Crim. R. 11 to explain the difference between consecutive and concurrent sentences. We should do likewise.
To me it is most regrettable that in large measure we are parting company with the general philosophy as contained in State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O. 3d 52, 364 N.E.2d 1163, and State v. Griffey (1973), 35 Ohio St.2d 101, 64 O.O. 2d 62, 298 N.E.2d 603. In Stewart we held that "substantial compliance" with Crim. R. 11 was enough, rejecting in some measure the rigid application of the rule found in Griffey. But where is the "substantial compliance" when the trial judge fails to give the defendant even a reasonable idea of the possible maximum period of future incarceration? In point of fact, the "maximum penalty involved" is as the court of appeals stated the most coercive and compelling deterrent in the entire plea process. I would most certainly accept the rule adopted in State v. Ricks (1977), 53 Ohio App.2d 244, 7 O.O. 3d 299, 372 N.E.2d 1369, where paragraph one of the syllabus provides as follows:
"Before accepting a plea of guilty, the trial court must inquire and determine that the defendant understands the maximum penalty involved. As part of this process, the defendant must be informed whether he is eligible for consecutive or concurrent sentences. Crim. R. 11(C)(2)(a)."
The rule, as construed aforesaid, places no substantial burden on the trial judge, is a proposition that involves only elemental fairness to the defendant, and meets both the letter and the spirit of the case law construing same prior to today's pronouncement.
Accordingly, I would affirm the court of appeals and respectfully dissent from the reasoning and result achieved in this case.
SWEENEY, J., concurs in the foregoing dissenting opinion.