State v. Richardson

2014 Ohio 2984

Opinion

[Cite as State v. Richardson, 2014-Ohio-2984.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100838

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

BERNARD RICHARDSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-570825-A

BEFORE: Boyle, A.J., Keough, J., and Stewart, J.

RELEASED AND JOURNALIZED: July 3, 2014 ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Jesse Canonico Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44115

Also listed:

Bernard Richardson Inmate No. A650955 Marion Correctional Institution 940 Williamsport Road, E. Marion, Ohio 43302 MARY J. BOYLE, A.J.:

{¶1} Defendant-appellant, Bernard Richardson, appeals from a judgment

convicting him of involuntary manslaughter and aggravated robbery and sentencing him

to 20 years in prison. Richardson’s appointed appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested

leave to withdraw as counsel.

{¶2} In Anders, the United States Supreme Court held that if appointed counsel,

after a conscientious examination of the case, determines the appeal to be wholly

frivolous, he or she should advise the court of that fact and request permission to

withdraw. Anders at 744. This request, however, must be accompanied by a brief

identifying anything in the record that could arguably support the appeal. Id. Further,

counsel must also furnish the client with a copy of the brief, and allow the client

sufficient time to file his or her own brief. Id. In this case, appointed counsel fully

complied with the requirements of Anders.

{¶3} On April 8, 2014, this court ordered appointed counsel’s motion be held in

abeyance pending our independent review of the case. We further notified Richardson

that he had until May 23, 2014, to file his own appellate brief, but Richardson did not do

so.

{¶4} Richardson’s appointed counsel states in his Anders brief that he

extensively reviewed the record, including the transcript of the proceedings, and

concluded that there are no meritorious arguments that he could make on Richardson’s behalf. In compliance with Anders, appointed counsel has submitted the following

potential assignment of error:

The trial court abused its discretion in failing to inform appellant of the

consequences of his plea pursuant to Crim.R. 11.

{¶5} After conducting an independent review of Richardson’s case, we affirm

the trial court’s judgment and grant appointed counsel’s motion to withdraw.

Procedural History and Factual Background

{¶6} In January 2013, Richardson and an accomplice went into a store with the

intent to rob it. During the robbery, the store owner was shot and killed. An employee

of the store, who witnessed the robbery, later identified Richardson as the person who

“provided cover for the shooter as the robbery was taking place.” Although Richardson

was not the actual shooter, he later admitted that he planned the robbery.

{¶7} Richardson was indicted on eights counts, including two counts of

aggravated murder, and one count each of aggravated robbery, kidnapping, murder,

robbery, felonious assault, and having a weapon while under a disability. All of the

counts (except the weapon disability count) carried one- and three-year firearm

specifications. Richardson pleaded not guilty to all charges.

{¶8} On day two of Richardson’s jury trial, in the middle of jury selection, the

state brought a matter to the trial court’s attention. After proceedings had been

completed the previous day, Richardson made a phone call to his wife from jail. The

phone call was recorded. The state indicated to the trial court that it had reviewed the recording, and provided a copy of it to Richardson’s defense counsel. The state

explained that in the recording, Richardson told his wife that one of the state’s witnesses

would be harmful to his case. Richardson asked his wife to prevent this witness from

appearing in court and testifying against him. The state indicated that it would introduce

the recording at trial. Defense counsel objected to the state’s introduction of the

recording based on spousal immunity.

{¶9} The trial court ruled that the recording would not be barred by spousal

immunity because it would not be introduced through Richardson’s wife’s testimony, but

through a police officer authenticating the recording. The trial court further indicated

that the recording was not hearsay because Richardson’s statements on the recording were

statements against his own interest. Thus, the trial court stated that it would overrule

defense counsel’s objection at trial and allow the recording to be played for the jury.

{¶10} At that point, the state and defense counsel informed the trial court that a

plea agreement had been reached. Richardson withdrew his former plea of not guilty and

pleaded guilty to amended Count 1 of involuntary manslaughter and Count 3, aggravated

robbery, as well as the one- and three-year firearm specifications attached to each count.

The remaining counts against Richardson were nolled.

{¶11} At the plea hearing, the state informed the court that all of the firearm

specifications would merge. The state also informed the court that as part of the plea,

Richardson agreed that the involuntary manslaughter and aggravated robbery counts were

not allied offenses of similar import and, thus, would not merge for purposes of sentencing. The state further indicated that as part of the plea negotiation, it would not

pursue additional charges against Richardson or his wife for potential witness tampering.

{¶12} During the trial court’s plea colloquy with Richardson, Richardson indicated

that he was 24 years old, attended high school until 11th grade, was not under the

influence of any substance that would cause him to not understand the proceedings, and

that he was an American citizen. Richardson also told the court that no threats or

promises had been made to him to get him to change his plea.

{¶13} The trial court then asked Richardson if he was presently on community

control sanctions or probation for another case. Richardson informed the court that he

was; defense counsel explained that it was for federal court. The trial court stated:

Now, do you understand that by entering the plea here today, that may have some impact on your probation with the federal charges but I don’t have any control of that. I just want to make sure that you understand that there may be some ramifications to the federal case as a result of entering the plea. Do you understand that?

{¶14} Richardson stated that he understood. Richardson further stated that he was

not on probation or parole for any other case, that he discussed the facts of his case with

his defense counsel, and that he was satisfied with his counsel’s representation. The trial

court then informed Richardson of his constitutional rights that he was waiving by

entering into the plea and ensured that Richardson understood each right and that he was

waiving that right.

{¶15} Finally, the trial court informed Richardson of the nature of the charges

against him, and the maximum penalty he faced for each charge and specification. The trial court also informed Richardson that he would be subject to a mandatory term of five

years of postrelease control upon his release from prison, and informed him of the

consequences that he would face if he violated the terms of his postrelease control.

{¶16} At the conclusion of the plea hearing, the trial court accepted Richardson’s

guilty pleas, finding them to be knowingly, intelligently, and voluntarily made. The trial

court then found Richardson guilty of involuntary manslaughter and aggravated robbery

with the firearm specifications attached to each charge.

{¶17} The trial court held a sentencing hearing at a later date so that a presentence

investigation report could be completed. At the sentencing hearing, the trial court heard

from the state, the victim’s family members, defense counsel, Richardson, and

Richardson’s family members. The trial court also reviewed Richardson’s adult and

juvenile criminal history.

{¶18} The trial court sentenced Richardson to a total of 20 years in prison: three

years for the firearm specifications to be served prior to and consecutive to all other

terms, seven years for involuntary manslaughter, and ten years for aggravated robbery,

with the aggravated robbery count to be served consecutive to the involuntary

manslaughter count. In sentencing Richardson to consecutive sentences, the trial court

fully complied with R.C. 2929.14(C)(4). The trial court further advised Richardson that

he would be subject to five years of postrelease control upon his release from prison and

informed Richardson of the consequences of violating the conditions of his postrelease

control. It is from this judgment that Richardson now appeals. Crim.R. 11

{¶19} In the sole potential assignment of error, appointed counsel maintains that it

could be argued that because the trial court did not give Richardson the full consequences

of his guilty plea as it relates to his federal probation, that Richardson did not enter into

his plea knowingly, intelligently, or voluntarily.

{¶20} In a felony case, under Crim.R. 11(C)(2):

[T]he 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.

{¶21} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements

regarding the waiver of constitutional rights, which means that the court must actually

inform the defendant of the constitutional rights he is waiving and make sure the

defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 18, 27. {¶22} For nonconstitutional rights, such as the right to be informed of the

maximum possible penalty, “substantial compliance” is sufficient. Id. at ¶ 14, citing

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

{¶23} Substantial compliance means that under the totality of the circumstances

the defendant subjectively understands the implications of his plea and the rights he is

waiving. State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). Further, a

defendant who challenges his guilty plea on the basis that it was not knowingly,

intelligently, and voluntarily made must show a prejudicial effect. Stewart at 93;

Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id.

{¶24} A reviewing court will not vacate a guilty plea if it determines that the trial

court substantially complied with Crim.R. 11(C). State v. Harris, 8th Dist. Cuyahoga

No. 71897, 1997 Ohio App. LEXIS 5539 (Dec. 11, 1997).

{¶25} Appointed counsel maintains that it could be argued that the trial court did

not fully explain to Richardson the effect of his plea because he did not specifically tell

him what the exact consequences of violating his federal probation would be. Informing

a defendant of the effect of his or her plea is a nonconstitutional right and, therefore, is

subject to review for substantial compliance rather than strict compliance. State v.

Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11-12.

{¶26} Here, the trial court asked Richardson if he was presently on community

control sanctions or probation for another case. After Richardson said that he was,

defense counsel explained that it was for federal court. The trial court then asked Richardson if he understood that by entering the plea, it may have some impact on his

federal probation. The trial court explained to Richardson that it had no control over his

federal probation, and told Richardson again, “there may be some ramifications to the

federal case as a result of entering the plea.” The trial court asked Richardson again if he

understood that; Richardson replied that he did.

{¶27} We find that the trial court’s advisement was sufficient to adequately inform

Richardson that by his entering into the guilty plea, that it could adversely affect his

federal probation. The trial court substantially complied with Crim.R. 11. Accordingly,

we agree with appointed counsel that this argument lacks merit.

{¶28} Further, we have independently examined the record as required by Anders,

and have found no error prejudicial to Richardson. We therefore conclude that this

appeal is wholly frivolous and grant appointed counsel’s motion to withdraw.

{¶29} Judgment affirmed.

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

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 conviction 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. MARY J. BOYLE, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and MELODY J. STEWART, J., CONCUR