State v. Hamer

2021 Ohio 2737

• Court: Ohio Court of Appeals
• Decided: August 10, 2021
• Docket: 2020CA00030
• Status: Published

Opinion

[Cite as State v. Hamer, 2021-Ohio-2737.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JESSICA HAMER : Case No. 2020CA00030 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2020CR0122

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 10, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

R. KYLE WITT JAMES A. ANZELMO CHRISTOPHER A. REAMER 446 Howland Drive 239 West Main Street Gahanna, OH 43230 Suite 101 Fairfield County, Case No. 2020CA00030 2

Lancaster, OH 43130 Wise, Earle, J.

{¶ 1} Defendant-Appellant Jessica M. Hamer appeals the May 13, 2020 judgment

of conviction and sentence of the Fairfield County Court of Common Pleas. Plaintiff-

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} A recitation of the underlying facts is unnecessary for our resolution of this

appeal. On March 4, 2020, the Fairfield County Grand Jury returned a nine-count

indictment charging Appellant as follows:

{¶ 3} Count one -- obstructing official business with two firearm specifications;

{¶ 4} Count two – possession of heroin with two fire arm specifications;

{¶ 5} Count three – selling, purchasing, distributing, or delivering dangerous

drugs, with two firearm specifications;

{¶ 6} Count four – selling, purchasing, distributing, or delivering dangerous drugs,

with two firearm specifications;

{¶ 7} Count five – possessing drug abuse instruments;

{¶ 8} Count six – illegal use or possession of drug paraphernalia;

{¶ 9} Count seven – having weapons under disability with a firearm specification;

{¶ 10} Count eight – carrying a concealed weapon with a firearm specification;

{¶ 11} Count nine – falsification.

{¶ 12} On May 13, 2020, Appellant entered pleas of guilty to count one, obstructing

official business, a felony of the fifth degree and the attendant firearm specifications;

count two, possession of heroin, a felony of the fifth degree and the attendant firearm

specifications; and count seven, having weapons under disability, a felony of the third Fairfield County, Case No. 2020CA00030 3

degree. The state moved to dismiss the balance of the charges. The parties jointly

recommended a four-year aggregate prison term, but the trial court rejected the joint

recommendation and sentenced Appellant to an aggregate 5-year prison term.

{¶ 13} At the time she committed the instant offenses, Appellant was on

community control in case number 2018-CR-73. The trial court tolled Appellant's

community control while she serves the five-year-sentence imposed in the instant matter,

and ordered Appellant to resume community control in case number 2018-CR-73

subsequent to her release from prison.

{¶ 14} Appellant filed an appeal and the matter is now before this court for

consideration. She raises three assignments of error for our review as follow:

I

{¶ 15} "JESSICA HAMER DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY ENTER HER GUILTY PLEAS, IN VIOLATION OF HER DUE PROCESS

RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO

CONSTITUTION."

II

{¶ 16} "THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ACCEPTING

HAMER'S JOINTLY RECOMMENDED SENTENCE."

III

{¶ 17} "THE TRIAL COURT ERRED BY ORDERING JESSICA HAMER TO

SERVE HER PRISON SENTENCE CONSECUTIVE TO HER COMMUNITY CONTROL

SENTENCE, IN VIOLATION OF HER RIGHTS TO DUE PROCESS UNDER THE FIFTH Fairfield County, Case No. 2020CA00030 4

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

{¶ 18} In her first assignment of error, Appellant argues her pleas were not

knowingly, intelligently or voluntarily entered because the trial court failed to ensure she

understood the nature of the charges against her. We disagree.

{¶ 19} Crim.R. 11(C)(2) sets forth a trial court's duties during a felony plea hearing

to address the defendant personally, to convey certain information to the defendant, and

prohibits acceptance of a guilty plea or no contest without performing these duties. State

v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶ 10. The rule specifically

provides:

In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally either in-person or

by remote contemporaneous video in conformity with Crim.R. 43(A)

and doing all of the following:

(a) Determining 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. Fairfield County, Case No. 2020CA00030 5

(b) Informing the defendant of and determining 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.

(c) Informing the defendant and determining that the defendant

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.

{¶ 20} Crim.R. 11(C)(2) contains both constitutional advisements with which a trial

court must strictly comply and non-constitutional advisements with which a trial court must

substantially comply. In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124

N.E.3d 766 (2018) the Supreme Court of Ohio stated at paragraph 19:

A trial court need only substantially comply with the nonconstitutional

advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. But "[w]hen the trial judge does

not substantially comply with Crim.R. 11 in regard to a nonconstitutional

right, reviewing courts must determine whether the trial court partially

complied or failed to comply with the rule." (Emphasis sic.) Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. "If the trial judge Fairfield County, Case No. 2020CA00030 6

partially complied, e.g., by mentioning mandatory postrelease control

without explaining it, the plea may be vacated only if the defendant

demonstrates a prejudicial effect." Id. But if the trial court completely failed

to comply with the rule, the plea must be vacated. Id. Complete failure " 'to

comply with the rule does not implicate an analysis of prejudice.' " Id.,

quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, ¶ 22.

{¶ 21} Here, Appellant argues the trial court failed to ensure she understood the

nature of the charges because it failed to ask her if she understood the nature of the

charges. This is a non-constitutional right contained in Crim.R. 11(C)(2)(a). Appellant

further argues the trial court failed to direct the state to recite the facts of the offenses.

{¶ 22} Appellant fails to provide transcript references to support her arguments.

Our review of the record, however, reveals the trial court specifically advised Appellant of

the nature of each of the charges to which she pled guilty and further outlined the potential

penalties for each charge including maximum potential prison terms, fines, operator's

license suspension, forfeiture, and post-release control. Appellant indicated she

understood the charges against her each time the trial court inquired. Transcript of plea

and sentencing hearing, March 11, 2020, 13-17.

{¶ 23} As for Appellant's argument that the trial court failed to direct the state to

recite the facts of each offense, pleas of guilty or no contest in felony cases are governed

by Crim.R. 11(C)(2) which does not require a recitation of the facts before a trial court

may accept a plea of guilty or no contest. Fairfield County, Case No. 2020CA00030 7

{¶ 24} We conclude the trial court substantially complied with the non-

constitutional requirements of Crim.R. 11(C)(2)(a). The first assignment of error is

overruled.

{¶ 25} In her second assignment of error, Appellant argues the trial court abused

its discretion when it rejected the jointly recommended sentence of four years. We

disagree.

{¶ 26} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 27} Appellant argues the trial court abused its discretion by not accepting the

jointly recommended sentence because her actions were mitigated by her untreated

mental illness, post-traumatic stress syndrome, and the fact that she accepted

responsibility by pleading guilty.

{¶ 28} As the state points out, Appellant does not claim her sentence is contrary

to law, that the trial court failed to make the appropriate findings, was in anyway involved

in the negotiations between the state and counsel for appellant, had made any

guarantees as to what Appellant's sentence would be, or had failed to consider

Appellant's mental illness. We would note Appellant's signed plea agreement specifically

states Appellant understood that while her counsel and the state had made sentencing

recommendations to the trial court, "* * *these are recommendations, not promises as to Fairfield County, Case No. 2020CA00030 8

what the Court will order." Waiver Upon Plea of Guilty, May 12, 2020. Currently, trial

courts may reject plea agreements and are not bound by a jointly recommended

sentence. See State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831

N.E.2d 430, ¶ 6.

{¶ 29} Because the trial court was not bound by the sentencing suggestions of the

state and counsel for Appellant, we find no abuse of discretion. The second assignment

of error is overruled.

{¶ 30} In her final assignment of error, Appellant argues her sentence in case

number 2018-CR-00073 is contrary to law. The trial court ordered Appellant's community

control tolled while Appellant serves the sentence in the instant case.

{¶ 31} We note Appellant has not included case number 2018 CR 00073 in the

current appeal. No judgment entry or record has been provided to this court in that matter.

Case number 2018-CR-00073 is therefore not properly before this court.

{¶ 32} The third assignment of error is overruled. Fairfield County, Case No. 2020CA00030 9

{¶ 33} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By Wise, Earle, J.

Wise, J., P.J. and

Delaney, J. concur.

EEW/rw