Opinion
No. 15 MA 0111.
09-21-2016
STATE of Ohio, Plaintiff–Appellee, v. Wendy FRY–McMURRAY, Defendant–Appellant.
Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, Youngstown, OH, for plaintiff-appellee. Edward Czopur, Youngstown, OH, for defendant-appellant.
Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, Youngstown, OH, for plaintiff-appellee.
Edward Czopur, Youngstown, OH, for defendant-appellant.
GENE DONOFRIO, P.J., CHERYL L. WAITE, MARY DeGENARO, JJ.
OPINION
DONOFRIO, P.J.
{¶ 1} Defendant-appellant, Wendy A. Fry–McMurray, appeals from a Mahoning County Common Pleas Court sentencing judgment entry filed June 8, 2015.
{¶ 2} Appellant was indicted on July 12, 2012, for aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a)(B)(1)(2), a felony of the third degree; driving under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(ii), a misdemeanor of the first degree; driving under the influence of alcohol in violation of R.C. 4511.19(A)(1)(d)(G)(1)(a)(ii), a misdemeanor of the first degree; and failure to yield the right of way in violation of R.C. 4511.42(A), a minor misdemeanor.
{¶ 3} As a result of a plea agreement, the aggravated vehicular assault charge was reduced to eliminate mandatory jail time and one of the driving under the influence charges was dismissed. On March 10, 2015, Appellant plead guilty to the reduced charges of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b)(C)(2), a fourth degree felony; operating a vehicle while impaired in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(ii), a first degree misdemeanor; and failure to yield the right of way in violation of R.C. 4511.42(A), a minor misdemeanor.
{¶ 4} Appellant was sentenced to six months in the Mahoning County Justice Center with all but 10 days suspended and three years of community control to be monitored by the Adult Parole Authority. Appellant was ordered to obtain an alcohol assessment, follow treatment recommendations, engage a sponsor and home group, not drink alcohol, and perform 200 hours of community service. Appellant's driver's license was suspended for five years.
{¶ 5} Appellant filed a timely notice of appeal on July 8, 2015.
{¶ 6} Appellant's sole assignment of error states:
APPELLANT WAS DENIED DUE PROCESS OF LAW, AS GUARANTEED BY BOTH THE UNITED STATES AND OHIO CONSTITUTIONS, BECAUSE HER GUILTY PLEA WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY DUE TO THE TRIAL COURT'S ERROR IN FAILING TO ADVISE AS TO A DRIVER'S LICENSE SUSPENSION.
{¶ 7} Appellant complains that the trial court's failure to orally explain to her at her plea hearing the driver's license suspension caused her plea to be not knowingly, intelligently, and voluntarily entered even though the plea agreement Appellant signed reflects that her license could be suspended for six months to 10 years.
When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.
Failure on any of those points renders the enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.
State v. Elmore, 7th Dist. No. 08–JE–36, 2009-Ohio-6400, 2009 WL 4547924, ¶ 8 quoting State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450.
{¶ 8} The United States Supreme Court explained "that in order for a reviewing court to determine whether a guilty plea was voluntary, the United States Constitution requires the record to show that the defendant voluntarily and knowingly waived his constitutional rights." State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990) citing Boykin v. Alabama, 395 U.S. 238, 242–243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{¶ 9} Crim.R.11(C)"was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review. State v. Stone (1975), 43 Ohio St.2d 163, 167–168, 72 O.O.2d 91, 94, 331 N.E.2d 411, 414 ; State v. Stewart (1977), 51 Ohio St.2d 86, 92–93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167 ; and State v. Scott (1974), Ohio App.2d 139, 144, 69 O.O.2d 152, 155, 318 N.E.2d 416, 420." Nero at 107, 564 N.E.2d 474.
{¶ 10} There is a distinction between constitutional rights and non-constitutional rights when one enters a Crim.R.11 plea. The first time the Supreme Court had the opportunity to speak to Crim.R. 11(C) was in State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 601 (1976). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981). The Ohio Supreme Court explained in Ballard that Caudill said that trial courts must "adhere scrupulously" to the provisions of Crim.R.11(C)(2). Ballard, 475, 423 N.E.2d 115. In Ballard, the Supreme Court explained that this standard was short-lived because the Supreme Court subsequently held in Stewart that a trial court only need substantially comply with the provisions of Crim.R.11(C)(2) that involve non-constitutional rights. Thus, there is a distinction in Crim.R.11 between constitutional and non-constitutional rights and what is required for each when a plea is made under Crim.R.11. Nero; Elmore.
{¶ 11} Crim.R.11(C)(2)(c) sets forth the constitutional rights a defendant waives by entering a guilty plea. With regard to those rights, this Court has explained:
A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant's plea is invalid. (Crim.R.11(C)(2)(c), applied.)
Elmore ¶ 9 quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus.
{¶ 12} In addition to constitutional rights, Crim.R.11(C)(2) is concerned with non-constitutional rights. Crim.R.11(C)(2) provides, in pertinent part:
{¶ 13} 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.
{¶ 14} Appellant does not assert that the trial court failed to comply with the mandates of Crim.R.11 regarding Appellant's constitutional rights. Rather, Appellant asserts that the trial court's failure to orally warn her of the possibility of a driver's license suspension is a violation of the Crim.R.11(C)(2)(a) requirement that Appellant understand the maximum penalty involved.
{¶ 15} Appellant does not deny that she signed a written plea agreement on March 10, 2015, which stated, in pertinent part, that Appellant recognized that among the penalties that could be imposed was "IN THIS CASE A DRIVERS LICENSE SUSPENSION FROM 6 MONTHS TO FIVE YEARS." Also, on March 10, 2015, during the plea hearing, the following exchange took place:
THE COURT: You've gone over this plea form with Attorney Betras? THE
DEFENDANT: I have.
THE COURT: Any questions about anything in here?
THE DEFENDANT: No.
(Plea Hearing, 8–9).
{¶ 16} However, at no point during the plea hearing did the trial court orally advise Appellant that part of the sentence could include the suspension of her driver's license. Appellant now complains that the failure by the trial court to orally explain the driver's license suspension was a violation of her due process rights as it caused her guilty plea to be not knowing, intelligent and voluntary.
{¶ 17} With regard to what is required when addressing the non-constitutional rights under Crim.R.11, the Ohio Supreme Court has explained:
Literal compliance with Crim.R.11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance.
Nero at 108, 564 N.E.2d 474. The Supreme Court continued:
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.
Nero at 108, 564 N.E.2d 474.
{¶ 18} Where a trial court has not substantially complied, a reviewing court must decide if there was a complete failure to comply or only a partial failure to comply. Where there has been a partial failure, then the plea should only be vacated if defendant demonstrates a prejudicial effect:
When 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. If the trial judge 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. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A) ; see also [State v. ] Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is "whether the plea would have otherwise been made." Nero at 108, 564 N.E.2d 474, citing Stewart, id. If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease
control, the plea must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph two of the syllabus. "A complete failure to comply with the rule does not implicate an analysis of prejudice." Id. at ¶ 22.
State v. Clark, 893 N.E.2d 462, 119 Ohio St.3d 239, 2008-Ohio-3748 (Ohio 2008) ¶ 32. (Emphasis in original). (In Clark, the court provided an incorrect recitation of the law to defendant with regard to postrelease control).
{¶ 19} There is a difference between a complete failure to mention something like postrelease control and when there is some mention of it. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 23. Some compliance "prompts a substantial-compliance analysis and the corresponding ‘prejudice’ analysis." Id. ¶ 23.
{¶ 20} Appellant relies heavily upon State v. Walz, 2nd Dist. No. C.A.23783, 2012-Ohio-4627, 2012 WL 4762080. In Walz, the defendant faced a mandatory three year to lifetime driver's license suspension with regard to each of two separate counts, Counts II and IV. With regard to Count II, defendant was not apprised orally nor pursuant to the plea form of the mandatory suspension. With regard to Count II, the Walz court concluded that the conviction must be reversed. Walz ¶ 13, 14. With regard to Count IV, however, defendant was not orally informed but did sign a plea form which informed him that he faced a mandatory license suspension. The Walz court observed:
It follows that he was ostensibly on notice of the impending suspension and he could not later claim that he was unaware for the purposes of a motion to vacate his plea for that charge.
Walz ¶ 15. Significantly, however, despite what defendant acknowledged in the signed plea form, during the oral exchange between the trial court and the defendant the trial court stated to defendant, after orally failing to advise of the mandatory driver's license suspension, "those are all of the potential penalties. " Id. ¶ 16. (emphasis in original). As a result, the Walz court reversed the sentence for Count IV as well explaining:
The trial court provided Walz misinformation when it advised him that "those are all of the penalties." In fact, they were not all of the penalties. The fact that the plea form for Count IV contained the correct information only served further to render the plea less than knowing and involuntary [sic] because it directly contradicted the oral information Walz was provided by the trial court.
Id. ¶ 17. Here, the trial court made no such misleading statement.
{¶ 21} Appellant also cites State v. Greene, 2nd Dist. No. 2005 CA 26, 2006-Ohio-480, 2006 WL 267144. In Greene, the defendant was not informed orally of the mandatory license suspension. However, the plea form signed by defendant did indicate he would be subject to a license suspension ranging from six months to five years. Greene's driver's license was suspended for life. The Greene court explained that the plea form referred to a driver's license suspension for a drug offense and was not applicable to the defendant:
In fact, the only mention of a suspension of driving privileges in the plea form signed by Greene indicated he would be subject to license suspension ranging from six months to five years for a drug related offense which was clearly not applicable given the nature of Greene's offenses.
Id. ¶ 11. The Greene court set aside the plea reasoning that the defendant would not have pled guilty if aware that he could receive a lifetime driving suspension. Id. ¶ 12.
{¶ 22} The State relies upon State v. Schultz, 2013-Ohio-2218, 993 N.E.2d 410. There, defendant was not informed of the lifetime suspension of her driver's license until after the acceptance of her plea. Id. ¶ 49. However, the defendant did sign a plea form containing a statement that she understood there was a mandatory lifetime suspension of her driver's license. The court explained:
In the case sub judice, appellant signed a document titled "Waiver upon Plea of Guilty or No Contest." [citations omitted]. This document stated, inter alia, that appellant understood the maximum penalties for aggravated vehicular homicide, and the document informed appellant that the penalties included "a mandatory lifetime suspension of my Ohio Driver's License or ability to obtain one."
Id. ¶ 50.
{¶ 23} The Schultz court relied, in part, on the Tenth District's prior decision in State v. Green, 10th Dist. No. 10AP–934, 2011-Ohio-6451, 2011 WL 6294484. There, as in Schultz and here, the trial court failed to orally advise the defendant that he was subject to a lifetime driver's license suspension, but the signed plea agreement did inform him of this possibility. The Green court concluded:
Appellant claims that the trial court possibly violated Crim.R.11 because it failed to inform him that he was subject to a lifetime driver's license suspension, a possible consequence of his guilty plea. Although the trial court did not personally inform appellant that his convictions subjected him to a possible lifetime driver's license suspension, the plea agreement appellant signed before entering his guilty plea did inform him of this possibility. Therefore, appellant was aware that a lifetime driver's license suspension was a possible consequence of his guilty plea. Accordingly, the trial court substantially complied with Crim.R.11.
Green ¶ 11. The court noted that defendant also failed to show and, in fact, conceded, that there was no reason to believe he would not have entered his guilty plea otherwise. The Schultz court extended the reasoning in Green and determined that the plea was valid. Schultz ¶ 51.
{¶ 24} The Sixth, Third, and Tenth Districts have addressed issues similar to the one at issue here and in Schultz and Green , in cases not discussed by the parties here. In State v. Minton, 6th Dist. Nos. OT–13–030, OT–13–031, 2014-Ohio-2218, 2014 WL 2170355, the court was similarly faced with the situation where the trial court failed to orally inform defendant of the possible driver's license suspension but the possible suspension was included in the written plea agreement. Minton concluded that this constituted substantial compliance.Id. ¶ 11.
{¶ 25} Similarly, in State v. Billenstein, 3d Dist. No. 10–13–10, 2014-Ohio-255, 2014 WL 295850, the trial court informed defendant that his driver's license "could" be revoked for life but "must" be revoked for two to ten years. The written plea agreement failed to clarify the mandatory minimum suspension and, according to the court of appeals, actually made the sentence more ambiguous by stating the maximum but not the mandatory suspension. Distinguishing Schultz and Green , the Third District concluded that the trial court did not substantially comply. However, the court found no prejudice to defendant because defendant was aware of the possible suspension and must have contemplated it. Billenstein ¶ 61–65.
{¶ 26} In State v. Small, 10th Dist. 14AP–659, 663, 660, 661, 2015-Ohio-3640, 2015 WL 5209324, defendant was incorrectly informed of the length of the driver's license suspension he faced. The court concluded that the trial court thus did not substantially comply with the mandates of Crim.R.11. However, the court determined that defendant was not prejudiced because it would not be credible for him to claim he would have not entered his plea when he did not object at the sentencing, had two charges dismissed, and the state agreed not to comment at the sentencing.
{¶ 27} At the plea hearing here it was clear that part of the agreement was a reduction of the aggravated vehicular assault charge to specifically remove possible mandatory prison time. (Plea Hearing, 2). This was reiterated at the sentencing hearing. (Sentencing Hearing, 3). In addition, one charge was dismissed. (Plea Hearing, 2). As noted above, Appellant signed a plea agreement that specifically set forth the possible range of a driver's license suspension. Appellant told the trial court that she had gone over that document with her counsel and that she had no questions about anything in the agreement.
{¶ 28} At the sentencing hearing there was no objection or other reaction from Appellant when the trial judge imposed a five year driver's license suspension. (Sentencing Hearing, 11–12). The trial judge concluded that a prison sentence was unnecessary and Appellant was placed on community control and ordered to perform community service. (Sentencing Hearing, 12). Appellant was ordered to secure a sponsor and actively engage in AA. (Sentencing Hearing, 13).
{¶ 29} This case is most akin to Schultz, Green , and Minton . Considering those cases and what occurred at both the plea and sentencing hearings, we conclude that the trial court substantially complied with the requirements of Crim.R.11 and that Appellant's plea was entered knowingly, intelligently, and voluntarily.
{¶ 30} Furthermore, there is no indication from the record that appellant would not have pled as she did if the trial court would have advised her orally of the possible driver's license suspension. Thus, no prejudice was shown.
{¶ 31} Appellant's assignment of error is without merit and is overruled.
{¶ 32} For the reasons stated above, the trial court's judgment is hereby affirmed.
WAITE, and DeGENARO, JJ., concur.