State v. Lake

2023 Ohio 4181

Opinion

[Cite as State v. Lake, 2023-Ohio-4181.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. CT2023-0030 ALBERT LAKE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No CR2023-0103

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 17, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RONALD WELCH CHRIS BRIGDON Prosecuting Attorney 8138 Somerset Road BY: JOHN CONNOR DEVER Thornville, OH 43076 Assistant Prosecutor 27 North Fifth St., P.O. Box 189 Zanesville, OH 43702 Muskingum County, Case No. CT2023-0030 2

Gwin, P.J.

{¶1} Appellant Albert L. Lake, Jr. appeals his convictions after entering guilty

pleas in the Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On February 9, 2023, the Muskingum County Grand Jury indicted appellant

on the following counts: robbery, a felony of the second degree, two counts of domestic

violence, both misdemeanors of the first degree, petty theft, a misdemeanor of the first

degree, criminal damaging or endangering, a misdemeanor of the second degree, and

four counts of menacing by stalking, each felonies of the fourth degree.

{¶3} Appellant was arraigned on February 21, 2023, and entered pleas of not

guilty to the charges. The charges stemmed from incidents in January of 2023, at which

time appellant and his now ex-wife, the victim, were going through a divorce. Appellant

went to Wal-Mart, demanded to have the victim’s cell phone, and demanded that she

come with him. When the victim refused, appellant smacked the victim on the side of the

face, took her wallet, and refused to give it back until she gave him the cell phone. The

two went out to the parking lot, where the victim obtained appellant’s car keys, and tried

to barter the keys back for her wallet.

{¶4} The victim got her wallet back and returned to the store. Appellant followed

her into the store, pushed her against a bin, and took her wallet again. At 4:00 a.m. the

next morning, appellant pounded on the victim’s door and demanded she come outside.

Appellant left when the victim’s boyfriend stated he was going to call the police. When

the victim went out to her car that morning, someone had scratched the word “whore” into

the side of her car and had taken her cell phone and cash out of the car. Appellant Muskingum County, Case No. CT2023-0030 3

admitted to police that he went to the house and stole the victim’s cell phone and $100 in

cash.

{¶5} On March 20, 2023, appellant and his counsel executed a “plea of guilty

form.” The form provides that appellant understood the maximum penalty for each

offense, including prison terms, understood the plea agreement, and waived certain

constitutional rights, such as the right to a jury trial and the right to confront witnesses.

{¶6} Appellant also appeared for a change of plea hearing on March 20, 2023.

The trial court detailed the charges and the maximum penalty for each charge. Counsel

for appellee detailed the plea agreement, i.e., that appellant would plead guilty to four

charges (robbery, one count of domestic violence, criminal damaging, and one count of

menacing by stalking) in exchange for appellee making no recommendation as to

sentencing, and dismissal of the remaining five charges.

{¶7} When asked if his attorney told appellant that the robbery charge is subject

“to the non-life felony indefinite period sentence,” appellant stated, “yes, sir.” Further, the

court informed appellant there is “a minimum prison term of – with regard to this count

[robbery] of two through eight years, in one-year increments, a maximum fine of $15,000.

There’s an indefinite maximum term of up to 12 years * * *, and asked appellant if he

understood the charge and possible penalties. Appellant responded, “yes, sir.” The court

went through the possible penalties on each count. Appellant confirmed that he

understood.

{¶8} Appellant confirmed he was satisfied with the advice of his counsel. He

further confirmed no promises had been made in exchange for his plea, and no one

threatened him with regard to the plea. Appellant stated he understood the plea Muskingum County, Case No. CT2023-0030 4

agreement. Appellant pled guilty to robbery, one count of domestic violence, criminal

damaging, and one count of menacing by stalking. Appellant signed the plea of guilty

form, and confirmed to the court at the hearing that he understood the rights he was giving

up upon his guilty plea. The court issued an entry on March 22, 2023, accepting

appellant’s plea of guilty, and finding the plea was a knowing, intelligent, and voluntary

waiver of appellant’s rights. Further, the court ordered a pre-sentence investigation.

{¶9} The court conducted a sentencing hearing on May 1, 2023. At the

sentencing hearing, appellant apologized for his actions and stated he was “hoping I can

get a chance at community control. I know it’s not likely. But I was just, you know, hoping

to get a shot at that.” Counsel for appellee advocated for a five-year prison sentence.

The court imposed an aggregate minimum prison sentence of five (5) years and an

indefinite maximum prison sentence of seven-and-one-half (7.5) years. The trial court

issued a judgment entry of sentence on May 4, 2023.

{¶10} Appellant appeals his convictions, and assigns the following as error:

{¶11} “I. THE APPELLANT’S PLEA OF GUILTY WAS NOT KNOWINGLY,

VOLUNTARILY, AND INTELLIGENTLY TAKEN.”

I.

{¶12} In his assignment of error, appellant contends his pleas of guilty were not

knowingly, voluntarily, and intelligently made. Specifically, appellant argues that he was

under the impression from discussions with his attorney that he would receive probation

at sentencing, and, due to the advice he received from trial counsel, he subjectively

believed he was entering a plea of guilty to receive probation. Muskingum County, Case No. CT2023-0030 5

{¶13} Criminal Rule 11 requires guilty pleas to be made knowingly, intelligently,

and voluntarily. Although literal compliance with Criminal Rule 11 is preferred, the trial

court need only “substantially comply” with the rule when dealing with the non-

constitutional elements of Criminal Rule 11(C). State v. Ballard, 66 Ohio St.2d 473, 423

N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

{¶14} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses

against him; (3) the compulsory process for obtaining witnesses in his favor; (4) the state

must prove the defendant’s guilt beyond a reasonable doubt at trial; and (5) the defendant

cannot be compelled to testify against himself. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621. If the trial court fails to strictly comply with these

requirements, the defendant’s plea is invalid. Id.

{¶15} The non-constitutional rights that the 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. Criminal Rule 11(C)(2)(a)(b); State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621; State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 423

N.E.2d 1224.

{¶16} For the non-constitutional rights, the trial court must substantially comply

with Criminal Rule 11’s mandates. State v. Nero, 56 Ohio St.3d 106, 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 Muskingum County, Case No. CT2023-0030 6

waiving.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

Furthermore, a defendant who challenges his guilty plea on the basis that the advisement

for the non-constitutional rights did not substantially comply with Criminal Rule

11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have been

otherwise entered. Id.

{¶17} When reviewing a plea’s compliance with Criminal Rule 11(C), we apply a

de novo standard of review. State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

{¶18} Appellant does not argue that the trial court failed to comply with Criminal

Rule 11’s strict or substantial compliance requirements before accepting his guilty pleas.

Rather, appellant contends his pleas were not knowing, intelligent, or voluntary because

he had the subjective belief that he would only receive probation for pleading guilty

because of his trial counsel’s representation, and that his pleas of guilty were not knowing,

intelligent, or voluntary because he actually received a prison sentence.

{¶19} Appellant contends the representations by his counsel and his subjective

belief as to his sentence prevented his pleas from being knowing, intelligent, or voluntary.

However, these arguments depend on evidence outside the record. A claim requiring

proof that exists outside the record cannot appropriately be considered on a direct appeal.

State v. Winters, 5th Dist. Muskingum No. CT2015-0029, 2016-Ohio-622; State v.

Hendricks, 5th Dist. Muskingum No. CT016-0010, 2017-Ohio-259.

{¶20} Further, the record demonstrates the trial court thoroughly reviewed the

maximum penalty for each charge with appellant, including potential prison terms.

Appellant stated he understood each of these potential penalties. The potential penalties,

including prison terms, were also specifically listed in the “plea of guilty” form appellant Muskingum County, Case No. CT2023-0030 7

signed on March 20, 2023, in which appellant confirmed he understood the maximum

penalty for each offense, including prison terms.

{¶21} Appellant informed the court that he understood the plea offer. He told the

trial court no threats or promises had been made to him with regards to the plea.

Appellant told the trial judge he was satisfied with the advice of his counsel. The court

continued the colloquy by explaining appellant’s constitutional rights. Appellant

expressed no hesitation, confusion, or reluctance when asked how he wished to plea to

each charge. Additionally, appellant’s own words at the sentencing hearing contradict his

argument. He specifically stated he “hoped” he could get a chance at community control,

but acknowledged, “it’s not likely.” We find appellant’s suggestion that he did not

understand the maximum penalty, or that his plea was involuntary, to be unsupported by

the record.

{¶22} We have reviewed the transcript of the hearing at which the trial court

conducted the plea colloquy required by Criminal Rule 11 and determined that the court

substantially complied with Criminal Rule 11(C)(2)(a) and (b) and strictly complied with

Criminal Rule 11(C)(2)(c). Muskingum County, Case No. CT2023-0030 8

{¶23} Based on the foregoing, appellant’s assignment of error is overruled.

{¶24} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur [Cite as State v. Lake, 2023-Ohio-4181.]