State v. Mincik

2020 Ohio 1385

• Court: Ohio Court of Appeals
• Decided: April 9, 2020
• Docket: 108625
• Status: Published

Opinion

[Cite as State v. Mincik, 2020-Ohio-1385.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108625 v. :

DAVID A. MINCIK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 9, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633404-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Marcus Henry, Assistant Prosecuting Attorney, for appellee.

Thomas A. Rein, for appellant.

RAYMOND C. HEADEN, J.:

Defendant-appellant David A. Mincik (“Mincik”) appeals from his

conviction and sentence following a guilty plea. For the reasons that follow, we

affirm. Procedural and Substantive History

On November 1, 2018, the Cuyahoga County Grand Jury indicted

Mincik on four counts of gross sexual imposition in violation of R.C. 2907.05(A)(4)

with sexually violent predator specifications, two counts of disseminating matter

harmful to juveniles in violation of R.C. 2907.31(A)(3) with furthermore clauses, and

three counts of rape in violation of R.C. 2907.02(A)(1)(b) with furthermore clauses

and sexually violent predator specifications.

On March 26, 2019, Mincik pleaded guilty to two amended counts of

gross sexual imposition with the sexually violent predator specifications deleted, an

amended count of attempted rape with a sexually violent predator specification, and

one count of disseminating matter harmful to juveniles. The remaining counts and

specifications were nolled.

The court referred Mincik to the probation department for

preparation of a presentence-investigation report (“PSI”). On May 6, 2019, the court

held a sentencing hearing. The court heard from the prosecutor, defense counsel,

Mincik, and the victims’ sister. Further, the court stated that it reviewed the

sentencing memorandum, victim-impact statements, and PSI. Finally, the court

stated that it considered the principles and purposes of felony sentencing. The court

sentenced Mincik to five years on each count of gross sexual imposition and 18

months on the count of disseminating matter harmful to juveniles, to run

concurrent. The court also sentenced Mincik to eight years on the count of attempted rape, to run consecutive, for a total sentence of 13 years with five years of

mandatory postrelease control. The court also imposed court costs on Mincik.

Mincik appeals, presenting three assignments of error for our review.

Law and Analysis

I. Guilty Plea

In his first assignment of error, Mincik argues that his guilty plea was

not knowingly, intelligently, or voluntarily entered because the trial court failed to

inform him of the maximum potential penalties he faced. Specifically, Mincik

argues that the trial court failed to inform him that he was subject to five years of

mandatory postrelease control.

The underlying purpose of Crim.R. 11 is to convey certain information

to a defendant so that they can make a voluntary and intelligent decision regarding

whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d

115 (1981). “The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell,

8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51

Ohio St.2d 86, 364 N.E.2d 1163 (1977).

In order to ensure that a defendant enters a plea knowingly,

voluntarily, and intelligently, a trial court must engage in an oral dialogue with the

defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527,

660 N.E.2d 450 (1996). Crim.R. 11(C) outlines the trial court’s duties in accepting

guilty pleas: (2) 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 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.

(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.

With respect to the nonconstitutional aspects of Crim.R. 11(C), including an

understanding of the nature of the charges and the maximum penalty involved, the

trial court must substantially comply with the rule. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14.

Substantial compliance means that under the totality of the

circumstances, the defendant subjectively understands the implication of his plea

and the rights he is waiving. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990). In cases involving a mandatory period of postrelease control, the postrelease

control is part of the maximum penalty involved. State v. Perry, 8th Dist. Cuyahoga

No. 82085, 2003-Ohio-6344, ¶ 10. Therefore, we review for substantial compliance. Here, it is undisputed that the trial court made no reference to

mandatory postrelease control when it was outlining the maximum potential

penalties Mincik faced at the plea hearing. The prosecutor, however, properly

advised Mincik regarding mandatory postrelease control when it outlined the terms

of his plea agreement. Defense counsel subsequently confirmed that the

prosecutor’s recitation of the plea was accurate.

We are mindful that it is the best practice for the trial court to advise

the defendant of the maximum sentence he or she faces, including postrelease

control. Crim.R. 11 outlines a trial court’s duties and specifically requires the court

to address the defendant and advise the defendant of his or her constitutional and

nonconstitutional rights prior to accepting a guilty plea, and deviating from the rule

creates “an appearance that the trial court is abdicating its duties to the prosecutor

when accepting a defendant’s guilty plea.” State v. Evans, 8th Dist. Cuyahoga

No. 100151, 2014-Ohio-3584, ¶ 9.

Although the trial court in this case strayed from this best practice,

this court has consistently found substantial compliance where a defendant is

advised of nonconstitutional rights by a prosecutor of defense counsel and has failed

to show prejudice. Id., citing State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and

100399, 2014-Ohio-2275; State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and

92333, 2010-Ohio-62, ¶ 17; State v. Sims, 8th Dist. Cuyahoga No. 95979, 2011-Ohio-

4819, ¶ 33-34; State v. Chaney, 8th Dist. Cuyahoga No. 97872, 2012-Ohio-4933. Mincik argues that he is not required to show prejudice because the

court failed to comply at all with Crim.R. 11. We disagree. Crim.R. 11(C)(2)(a)

requires that the trial court “determine” that the defendant has an “understanding

of the nature of the charges and of the maximum penalty involved.” While other

parts of the rule, including Crim.R. 11(C)(2)(b) and (c), clearly place a burden on the

court to inform the defendant of certain rights, the plain language of the rule creates

no such burden with respect to the maximum potential penalty. In addition, our

review of the record shows nothing that would indicate Mincik was prejudiced when

he was advised of postrelease control by the state and not the trial court. Because

we conclude that the trial court substantially complied with Crim.R. 11 and Mincik

has failed to demonstrate prejudice, we overrule his first assignment of error.

II. Consecutive Sentences

In his second assignment of error, Mincik argues that the trial court

erred by ordering him to serve consecutive sentences without making the required

findings pursuant to R.C. 2929.14.

Pursuant to R.C. 2953.08, a reviewing court may overturn the

imposition of consecutive sentences where it clearly and convincingly finds that the

trial court failed to make the required findings under R.C. 2929.14(C)(4), or that the

record does not support the sentencing court’s findings under R.C. 2929.14(C)(4),

or the sentence is otherwise contrary to law.

R.C. 2929.14(C)(4) requires a sentencing court to make certain

findings before imposing consecutive sentences. First, the trial court must find that consecutive sentences are necessary to protect the public from future crime or to

punish the offender. R.C. 2929.14(C)(4). The court must also find that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and

to the danger the offender poses to the public. Id. Finally, the court must find any

one of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under postrelease control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4). Beyond making these findings on the record, the court must

also incorporate the findings into its sentencing entry. State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 1.

A trial court is not required to recite the statutory language exactly,

but it must be clear from the record that the court actually made the findings

required by statute. State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 14, 17 (8th

Dist.).

Here, the trial court stated that consecutive sentences were necessary

to protect the community and to punish the offender and were not disproportionate to the seriousness of the offender’s conduct. The court also found that Mincik

pleaded guilty to multiple acts over a period of several years, and these acts created

serious harm. Finally, the court stated that consecutive sentences were necessary

because the harm was so great or unusual that a single term would not adequately

reflect the seriousness of Mincik’s conduct. These findings satisfied the

requirements of R.C. 2929.14. It is clear from the record that the court made the

required findings under R.C. 2929.14. Therefore, Mincik’s second assignment of

error is overruled.

III. Court Costs

In his third assignment of error, Mincik argues that the imposition of

court costs infringed upon his due process rights. Specifically, Mincik argues that

because the court had previously found him indigent, the court should not have

imposed a financial sanction in the form of court costs. We disagree.

R.C. 2947.23(A)(1)(a) provides that in all criminal cases, the judge

“shall include in the sentence the costs of prosecution, including any costs under

section 2947.231 of the Revised Code, and render a judgment against the defendant

for such costs.” In ordering a defendant to pay court costs, the court is not required

to consider the defendant’s ability to pay. State v. Jones, 8th Dist. Cuyahoga

No. 105719, 2018-Ohio-847, ¶ 19.

Mincik submits that court costs are a financial sanction, and

therefore, the court was required to consider his ability to pay. Pursuant to

R.C. 2929.19(B)(5), a court is required to consider a defendant’s ability to pay before imposing a financial sanction, such as restitution. This court has consistently held

that court costs, however, are not such a financial sanction that imposes a similar

burden on trial courts. Id., citing State v. Dawson, 2017-Ohio-965, 86 N.E.3d 672,

¶ 42 (8th Dist.). Therefore, we overrule Mincik’s third assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

EILEEN T. GALLAGHER, A.J., and PATRICIA ANN BLACKMON, J., CONCUR