State v. Carter

2014 Ohio 4856

Ohio Court of Appeals·Decided October 31, 2014·No. 2013-CA-115·Published·Cited by 3 cases

Opinion

[Cite as State v. Carter, 2014-Ohio-4856.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2013 CA 115

v. : T.C. NO. 12CR112

DEE CARTER : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

..........

OPINION

Rendered on the 31st day of October , 2014.

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

DANIEL A. PERRY, Atty. Reg. No. 0087548, 123 Boggs Lane, Cincinnati, Ohio 45246 Attorney for Defendant-Appellant

FROELICH, P.J. 2

{¶ 1} Dee Carter pled guilty in the Clark County Court of Common Pleas to

one count of gross sexual imposition, a fourth-degree felony, in exchange for which the State

dismissed one count of rape. The parties agreed to an eleven-month sentence and that

Carter would receive credit for time served in jail while the case was pending (348 days),

which exceeded eleven months. The trial court imposed the agreed eleven-month sentence,

informed Carter that he would be subject to five years of post-release control, and ordered

him to pay court costs. Carter was designated a Tier III sex offender.

{¶ 2} Carter appeals from his conviction, claiming that the trial court erred in

accepting his guilty plea and that his counsel rendered ineffective assistance. For the

following reasons, the trial court’s judgment will be affirmed.

I. Defendant’s Guilty Plea

{¶ 3} Carter’s first assignment of error states:

The trial court erred by failing to properly inform and ensure that the

defendant-appellant understood his constitutional rights prior to accepting

defendant-appellant’s waiver and guilty plea, and continuing to accept

defendant-appellant’s guilty plea after defendant-appellant made known that

he was not aware of the possible penalties, was not guilty of the criminal

offense of which he was pleading guilty, and did not desire to enter a plea of

guilty.

{¶ 4} An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was made knowingly, intelligently, and voluntarily.

State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7. “If a defendant’s 3

guilty plea is not knowing and voluntary, it has been obtained in violation of due process and

is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012-Ohio-199, ¶

13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In

order for a plea to be given knowingly and voluntarily, the trial court must follow the

mandates of Crim.R. 11(C). Brown at ¶ 13.

{¶ 5} Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty, and, if applicable, that the defendant is not eligible for probation or for

the imposition of community control sanctions; (b) inform the defendant of and determine

that the defendant understands the effect of the plea of guilty and that the court, upon

acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the

defendant and determine that he understands that, by entering the plea, the defendant is

waiving the rights to a jury trial, to confront witnesses against him, to have compulsory

process for obtaining witnesses, 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. State

v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

{¶ 6} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., 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 4

plea and the rights he is waiving.” Id. In contrast, the trial court must strictly comply with

Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶

31.

{¶ 7} Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15.

{¶ 8} Carter argues that the trial court failed to comply with Crim.R. 11 and failed

to ensure that he understood the rights he was waiving. Carter emphasizes that he

repeatedly stated at the plea hearing that he was “slow” and he did not believe it was in his

best interest to enter the plea. Carter also states that he was not aware of several penalties

that would result from his plea and he “felt forced” to accept the plea deal. Carter argues,

“It is evident from the trial court record that [he] did not want to change his plea, believed

that he was not guilty of the criminal offense, and believed that he was being forced into a

plea deal that he did not want.”

{¶ 9} During the plea hearing, the prosecutor stated that the parties agreed that

Carter would pled guilty to gross sexual imposition and that he would receive an

eleven-month sentence; a rape charge would be dismissed. Carter asked the court to explain

to him that he would get “time served” and that he would not have to go to the penitentiary,

and the court did so. The court then inquired if Carter was making his plea voluntarily, as

follows: 5

THE COURT: Have there been any other promises made to you to get

you to plead guilty that I’m not aware of or are those the only two promises

that have been made to you?

THE DEFENDANT: Just what [the prosecutor] said and what my

attorney said, I just have – I guess I understand. I just wanted to know in

simple words because I really don’t know that much, I guess. I just want to

know how it will work.

I mean, I plead guilty to it and I’m trying to see if I understand it, and

I’m getting the felony four and he’s dismissed a felony one thing, but then I

gotta register for life and then I was promised to leave today, but I got a

felony four. But I got – it’s called gross sexual something, whatever it is on

my record and like he said, you’ll be free to leave today, but you gotta register

for life now. So is that what that means?

THE COURT: That’s what that means.

THE DEFENDANT: Yes, sir.

THE COURT: Has anybody threatened you to get you to plead guilty?

Is anybody forcing you to do this or threatening you that if you don’t do this,

something bad would happen to you or are you doing this because it’s what

you believe is in your best interests?

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