State v. Robinson

2021 Ohio 97

• Court: Ohio Court of Appeals
• Decided: January 19, 2021
• Docket: 8-20-16
• Status: Published

Opinion

[Cite as State v. Robinson, 2021-Ohio-97.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-20-16

v.

RAYNELL ROBINSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 19 04 0120

Judgment Affirmed

Date of Decision: January 19, 2021

APPEARANCES:

William T. Cramer for Appellant

Alice Robinson-Bond for Appellee Case No. 8-20-16

SHAW, J.

{¶1} Defendant-appellant, Raynell Robinson (“Robinson”), brings this

appeal from the April 14, 2020 judgment of the Logan County Common Pleas Court

sentencing him to five years of community control after Robinson was convicted of

Attempted Felonious Assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1),

a felony of the third degree. On appeal, Robinson argues that his Alford plea was

not knowing, intelligent, and voluntary because the trial court did not inform him

during the plea colloquy that potential violations of post-release control could result

in him serving nine-month prison terms up to a cumulative maximum of one-half of

his original stated prison term.1

Background

{¶2} On April 9, 2019, Robinson was indicted for Felonious Assault in

violation of R.C. 2903.11(A)(1), a felony of the second degree, Domestic Violence

in violation of R.C. 2919.25(A), a misdemeanor of the first degree, Disrupting

Public Services in violation of R.C. 2909.04(A)(3), a felony of the fourth degree,

and Abduction in violation of R.C. 2905.02(A)(1), a felony of the third degree.

Robinson originally pled not guilty to the charges.

1 An Alford plea refers to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), wherein the Supreme Court of the United States held, “An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt.” Alford at syllabus.

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{¶3} On February 11, 2020, a change-of-plea hearing was held wherein

Robinson agreed to enter an “Alford” plea to the reduced, amended charge of

Attempted Felonious Assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1),

a felony of the third degree, and to Domestic Violence in violation of R.C.

2919.25(A), a misdemeanor of the first degree. In exchange the State agreed to

dismiss the remaining charges. Further, the parties agreed to a joint sentencing

recommendation of community control. The agreement was reduced to writing and

signed by Robinson and his attorney. The trial court conducted a Crim.R. 11

dialogue with Robinson and determined that his plea was knowing, intelligent, and

voluntary. Robinson’s Alford plea was accepted, and he was found guilty of the

amended charge of Attempted Felonious Assault and of Domestic Violence.

{¶4} On April 14, 2020, the case proceeded to sentencing. The Attempted

Felonious Assault charge and Domestic Violence charge were merged. Robinson

was then sentenced to five years of community control on the Attempted Felonious

Assault conviction, per the joint sentencing recommendation. A judgment entry

memorializing that sentence was filed the same day. It is from this judgment that

Robinson appeals, asserting the following assignment of error for our review.

Assignment of Error Appellant’s Due Process rights were violated by an Alford plea that was not entered knowingly, intelligently, or voluntarily due to the trial court’s failure to fully advise on the consequences of violating post-release control.

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{¶5} In his assignment of error, Robinson argues that his Alford plea was not

entered knowingly, intelligently, and voluntarily because the trial court did not

advise him that potential violations of post-release control could lead to prison terms

of up to nine months. Robinson argues that this omission during the Crim.R. 11

plea colloquy was fatal, and that he would not have entered into his plea if he was

properly notified.

Relevant Authority

{¶6} The Supreme Court of Ohio has recently addressed “Compliance with

Crim.R. 11” in State v. Dangler, --- Ohio St.3d ---, 2020-Ohio-2765. In Dangler,

the Supreme Court of Ohio held, “Because a no-contest or guilty plea involves a

waiver of constitutional rights, a defendant’s decision to enter a plea must be

knowing, intelligent, and voluntary.” Dangler at ¶ 10, citing Parke v. Raley, 506

U.S. 20, 28-29, 113 S.Ct. 517 (1992); State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, ¶ 25; see State v. Engle, 74 Ohio St.3d 525, 527 (1996). “If the plea

was not made knowingly, intelligently, and voluntarily, enforcement of that plea is

unconstitutional.” Dangler at ¶ 10.

{¶7} Criminal Rule 11(C)(2) outlines the procedures for trial courts to follow

when accepting pleas in felony cases. It reads as follows.

(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:

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(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.

{¶8} Criminal Rule 11 “ ‘ensures an adequate record on review by requiring

the trial court to personally inform the defendant of his rights and the consequences

of his plea and determine if the plea is understandingly and voluntarily made.’ ”

Dangler at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168 (1975). The

Supreme Court of Ohio has recently reaffirmed that “our focus in reviewing pleas

has not been on whether the trial judge has ‘[incanted] the precise verbiage’ of the

rule, State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977), but on whether

the dialogue between the court and the defendant demonstrates that the defendant

understood the consequences of his plea[.]” Dangler at ¶ 12 citing State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, ¶¶ 15-16.

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{¶9} “When a criminal defendant seeks to have his conviction reversed on

appeal, the traditional rule is that he must establish that an error occurred in the trial-

court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13 citing

State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶¶ 14-15; Crim.R. 52.

Generally, to demonstrate prejudice, a defendant would have to establish that “that

his plea would not have otherwise been made.” Dangler at ¶ 24.

{¶10} There are limited exceptions to the prejudice requirement in the

criminal-plea context. “When a trial court fails to explain the constitutional rights

that a defendant waives by pleading guilty or no contest, we presume that the plea

was entered involuntarily and unknowingly, and no showing of prejudice is

required.” Dangler at ¶ 14 citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, at ¶ 31; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at syllabus. The

“constitutional” rights are set forth in Crim.R. 11(C)(2)(c) above. See Dangler at ¶

14. When a trial court fails to fully cover “nonconstitutional” rights in Crim.R. 11,

“a defendant must affirmatively show prejudice to invalidate a plea.” Dangler at ¶

14, citing Clark at ¶ 17.

{¶11} The Supreme Court of Ohio recognized one other exception to the

prejudice requirement: “a trial court’s complete failure to comply with a portion

of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis

sic.) Dangler at ¶ 15, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,

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¶ 22. In Sarkozy the Supreme Court of Ohio found that failure to mention at all that

the defendant was subject to a mandatory five years of post-release control during

the plea colloquy violated a trial court’s duty to explain the nonconstitutional

maximum penalty requirement under Crim.R. 11(C)(2)(a).

{¶12} “Aside from these two exceptions, the traditional rule continues to

apply: a defendant is not entitled to have his plea vacated unless he demonstrates he

was prejudiced by a failure of the trial court to comply with the provisions of

Crim.R. 11(C).” Dangler at ¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108

(1990). “The test for prejudice is ‘whether the plea would have otherwise been

made.’ ” Dangler at ¶ 16, citing Nero.

Analysis

{¶13} In this case, Robinson argues that the trial court failed to comply with

Crim.R. 11(C)(2)(a) in this matter by not informing him that if Robinson violated

post-release control he could be sent to prison for up to nine months for each

violation of post-release control. However, Robinson acknowledges that the trial

court provided some advisements regarding post-release control. Similarly

Robinson does not seem to contest that the trial court complied with the

“constitutional” requirements in Crim.R. 11(C)(2)(c) during the plea colloquy.

Nevertheless, Robinson argues that the trial court’s partial failure to advise him

regarding post-release control was prejudicial in this matter. He contends that

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because he made an Alford plea, maintaining his factual innocence, any factor that

threatened to shorten his time in the community would have impacted his decision

to enter his plea.

{¶14} As Robinson acknowledges, the record reflects that the trial court did

inform him at the plea hearing that if Robinson was sentenced to prison, after his

release he would be subject to a mandatory term of three years of post-release

control. The trial court explained “It’s like probation except after prison.” (Feb.

11, 2020, Tr. at 19). The trial court also explained that if Robinson violated his

post-release control, the APA could return him to prison “without coming back to

this court for up to half of your stated prison sentence in this case.” (Id. at 20). The

trial court further explained that if Robinson committed a felony while on post-

release control “the sentencing judge in your new felony case must return you to

prison in this case – again, without coming back to this court – for one year or

whatever time you have remaining on your post-release control, whichever is

longer.” (Id.) Finally, Robinson was notified that if he was returned to prison it

would be served consecutively to any penalty from a new felony. Robinson

indicated that he understood all of these issues.

{¶15} Robinson argues on appeal that although the trial court mentioned

various post-release control issues in the Crim.R. 11 colloquy, the trial court did not

mention a specific portion of R.C. 2967.28(F)(3), which reads as follows.

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Unless a releasee’s stated prison term was reduced pursuant to section 5120.032 of the Revised Code, the period of a prison term that is imposed as a post-release control sanction under this division shall not exceed nine months, and the maximum cumulative prison term for all violations under this division shall not exceed one-half of the definite prison term that was the stated prison term originally imposed upon the offender as part of this sentence[.]

Robinson maintains that the trial court did not specifically state that prison terms

imposed under a post-release control sanction should not exceed nine months, even

though the trial court did clearly state that any cumulative term could not exceed

one-half of his prison term.

{¶16} As a trial court is not required to use specific talismanic words, we do

not find the trial court’s statements during the plea colloquy to constitute a complete

failure to comply with Crim.R. 11(C)(2)(a)’s maximum penalty requirement.

Robinson was notified of the maximum amount of time he could receive in prison

for a violation, or for violations, of post-release control—that being up to one-half

of his stated prison term. Thus this case is wholly unlike State v. Sarkozy, 117 Ohio

St.3d 86, 2008-Ohio-509, wherein the trial court did not mention a mandatory period

of post-release control at all. Moreover, we have already found challenges similar

to Robinson’s to be unavailing. See State v. Billenstein, 3d Dist. Mercer No. 10-13-

10, 2014-Ohio-255; see also State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-

4819.

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{¶17} Even if we did find that the trial court’s colloquy was not in

compliance with Crim.R. 11(C)(2)(a)’s nonconstitutional maximum penalty

provision, Robinson is unable to demonstrate prejudice. Robinson signed a written

plea agreement that contained the “nine months” post-release control provision, and

all of the other relevant post-release control information. During the plea colloquy

he acknowledged having read the written plea agreement, that he discussed it with

his attorney, and that he understood it. Thus Robinson cannot say he was not

apprised of the requisite post-release control provision he now complains was

omitted in his colloquy.2 State v. Billenstein, 3d Dist. No. 10-13-10, 2014-Ohio-

255, ¶ 55; see also State v. Brown, 8th Dist. Cuyahoga No. 109007, 2020-Ohio-

4474. Robinson is unable to demonstrate any prejudice based on the record before

us. For all of these reasons, Robinson’s assignment of error is overruled.

Conclusion

{¶18} For the foregoing reasons Robinson’s assignment of error is overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

2 Although not directly relevant to a determination of whether Robinson would have otherwise entered his plea, Robinson received a substantial benefit from his plea agreement and the trial court even followed the joint sentencing recommendation of community control. Notably, if Robinson’s plea was vacated he would be back in the position he was in before the plea, facing multiple felony charges, including a second degree felony.

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