Opinion
Trial No. B-9905543, Appeal No. C-990838.
Decided March 7, 2001.
JUDGMENT ENTRY.
This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).We overrule the first assignment of error upon our determination that the appellant knowingly, voluntarily and intelligently entered no-contest pleas to charges of menacing by stalking and telecommunications harassment. The court below, in its Crim.R. 11(C) colloquy with the appellant at the hearing on the pleas, understated the maximum penalty to which the appellant was subject for each offense. But, prior to the plea hearing, the appellant had executed a written plea form that reflected the correct maximum possible sentences, and, during the hearing, he affirmed his understanding of the form's contents. Moreover, the court's misstatement of the maximum possible sentences and its ultimate imposition of sentences of confinement exceeding the misstated maximum sentences evoked neither an expression of surprise nor an objection by the appellant or his counsel. We conclude that the appellant knowingly, voluntarily and intelligently entered his pleas, when the record demonstrates that the common pleas court, despite its misstatement of the maximum possible sentences, substantially complied with Crim.R. 11(C) in accepting the pleas, and that the appellant was not thereby prejudiced. See State v. Stewart (1977), 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163, 1166-1167; accord State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476-477 (citing Stewart to hold that "[s]ubstantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving," and that "[t]he test [for prejudice] is whether the plea would have otherwise been made"); see, also, State v. Mills (Mar. 17, 1982), Hamilton App. Nos. C-810336 and C-810343, unreported (holding that reversal is not required when the record shows "substantial compliance with Crim. R. 11(C) coupled with a correct, informative, written plea[,] signed and understood by [the appellant,] and a lack of demonstrable prejudice").
We also overrule the second assignment of error, in which the appellant challenges the legal sufficiency of the "evidence" supporting his convictions and the imposition of consecutive terms of incarceration. The appellant's convictions for menacing by stalking in violation of R.C. 2903.211(A) and telecommunications harassment in violation of 2917.21(B) were supported by legally sufficient evidence, when the appellant, by his no-contest pleas, "admi[tted] * * * the truth of the facts alleged in the indictment," Crim.R. 11(B)(2), and the facts alleged in the indictment established each element of the offenses charged. Furthermore, the appellant could, consistent with R.C. 2941.25(A), be charged with, found guilty of, and sentenced for both offenses, because the statutory elements of the offenses, viewed in the abstract, did not correspond to such a degree that the commission of one offense necessarily resulted in the commission of the other offense, and, therefore, the offenses were not allied offenses of similar import. See State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699.
Finally, we overrule the appellant's third and fourth assignments of error, because the appellant waived, by failing to offer in the proceedings below, the challenges that he presents on appeal to the constitutionality of the statutes under which he was convicted. See In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus; State v. Awan (1980), 22 Ohio St.3d 120, 489 N.E.2d 277, paragraph one of the syllabus.
We, therefore, affirm the judgment of the court below.
Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
Sundermann and Shannon, JJ., concur.
Painter, P.J., concurring separately.
Raymond E. Shannon, retired, from the First Appellate District, sitting by assignment.
Generally, the failure to properly inform a defendant of the possible maximum term of imprisonment applicable to his offense and the subsequent imposition of the maximum term is reversible error. This maxim, however, is inapplicable to the unique facts of this case. The trial court did not impose the maximum sentence and, during its Crim.R. 11 colloquy with Wilson, the trial court explicitly informed Wilson that it would not do so.
See State v. Caplinger (1995), 105 Ohio App.3d 567, 664 N.E.2d 959.
Wilson argues that because he was not informed of the maximum possible term, his plea was involuntary. Failure for a trial court to comply with Crim.R. 11(C)(2) does not make a plea ipso fact involuntary. Because knowledge of the possible maximum term is not constitutionally required, the trial court had only to substantially comply with the dictates of Crim.R. 11(C)(2)(a). Under the substantial compliance test, we must look to the totality of the circumstances to determine whether Wilson subjectively understood his rights and, because he challenges the voluntariness of his plea, whether Wilson demonstrated that he was prejudiced. Therefore, the issue before us is whether the trial court's misstatement induced Wilson's plea of no contest or, in other words, whether Wilson would have entered the no contest plea had he had been advised of the maximum sentence.
Accord State v. Johnson (1988), 40 Ohio St.3d 130, 532 N.E.2d 1295.
See State v. Johnson (1988), 40 Ohio St.3d at 133, 532 N.E.2d at 1298.
See State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474.
See State v. Caplinger at 572, 664 N.E.2d at 962.
Wilson made no objection during the colloquy or when trial court accepted his plea. After acceptance of Wilson's plea, the trial court had authority to impose any sentence provided by law. In the record before us there is nothing to indicate that, had Wilson been informed of the maximum time during his colloquy with the trial court, he would have chosen to go to trial and risk conviction. Thus, Wilson failed to demonstrate the prejudicial effect of the failure of the trial court to specify the possible maximum term for his offense.
See State v. Martin (Nov. 27, 2000), Jackson App. No. 99CA846, unreported.
In this case, where the record demonstrates substantial compliance with the Crim.R. 11 and where Wilson failed to make any objection to the acceptance of his plea, any challenge Wilson had to the trial court's acceptance should have been addressed in a motion to withdraw his plea. In that procedure, Wilson would have the opportunity to put in the record evidence demonstrating that he would not have entered his plea had he known the maximum sentence. There is no such evidence in this case, nor could Wilson place such evidence before this court in his direct appeal. Thus, I concur with the majority's determination.
Accord State v. Martin, supra.
See State v. Johnson, supra.