[Cite as State v. Brown, 2012-Ohio-199.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
C.A. CASE NOS. 24520
Plaintiff-Appellee : 24705
vs. : T.C. CASE NO. 2010-CR-3205
DAVID D. BROWN : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 20th day of January, 2012.
. . . . . . . . .
Timothy J. Cole, Assistant Prosecuting Attorney, Atty. Reg. No.
0084117, P.O. Box 972, 301 West Third Street, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Scott N. Blauvelt, Atty. Reg. No. 0068177, 246 High Street,
Hamilton, OH 45011
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This appeal consolidates the issues in two separate
appeals filed by Defendant David D. Brown.
{¶ 2} Defendant entered a plea of guilty to unlawful sexual
conduct with a minor, R.C. 2907.04(A). Defendant also executed
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a form waiving his right to trial and acknowledging his guilty
plea. Defendant was sentenced pursuant to law. A judgment of
conviction was journalized on February 11, 2011.
{¶ 3} On February 17, 2011, Defendant filed a pro se motion
to withdraw his guilty plea. The motion states, in pertinent part:
“I would like to take my charge to trial and be appointed a new
public defender so that I may have the opportunity to a fair trail
[sic] in an effort to prove that my charge is inaccurate.” (Dkt.
20.)
{¶ 4} The trial court had not ruled on his motion to withdraw
his guilty plea when, on March 7, 2011, Defendant filed a notice
of appeal from the February 11, 2007 judgment of conviction. That
appeal was docketed as Case No. 24520.
{¶ 5} Defendant filed a motion in Case No. 24520, asking that
it be remanded for the limited purpose of allowing the trial court
to rule on his motion to withdraw his guilty plea. Defendant’s
motion was granted.
{¶ 6} The trial court held a hearing to determine Defendant’s
motion to withdraw his plea. Defendant argued that he is innocent
of the charge to which he pled guilty and, when he entered his
plea, believed he would be given probation instead of the five-year
prison term the court had imposed.
{¶ 7} The trial court overruled Defendant’s motion to withdraw
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his guilty plea on May 25, 2011. Defendant filed a notice of appeal
form that final order, which was docketed as Case No. 24705.
{¶ 8} Case Nos. 24520 and 24705 have been consolidated for
purposes of our appellate review.
FIRST ASSIGNMENT OF ERROR
{¶ 9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT DAVID
D. BROWN IN ACCEPTING A GUILTY PLEA THAT WAS NOT KNOWING,
INTELLIGENT AND VOLUNTARY.”
{¶ 10} Before the court accepted Defendant’s guilty plea, the
court advised Defendant that “the court could also sentence you
to a prison term of one, two, three, four, or five years, plus
a mandatory period of post-release control for a period of five
years.” (Tr. 5.) When the court asked Defendant whether he
understood that and other potential punishments the court had
explained, Defendant responded: “Yes, ma’am.” (Tr. 6.)
{¶ 11} The “Waivers and Plea” form Defendant executed contains
a blank space regarding any mandatory postrelease control that
will be imposed for the particular offense or offenses concerned.
In the form Defendant signed (Dkt. 13), the numeral “3" was
inserted to indicate the number of years of mandatory postrelease
control to which Defendant would be subject. At the outset of
the plea hearing, when the court asked Defendant whether he was
“able to read and understand that plea form,” Defendant replied:
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“Yes, ma’am.” (Tr. 4.)
{¶ 12} Defendant contends that the variance between the five
years of postrelease control which the court pronounced, which
was correct, and the three years of postrelease control stated
in the “Waivers and Plea” form he signed is a defect that prevents
his plea of guilty to unlawful sexual conduct with a minor from
being knowing, intelligent, and voluntary.
{¶ 13} In determining whether to accept a guilty plea, the trial
court must determine whether the defendant knowingly,
intelligently, and voluntarily entered the plea. State v. Johnson
(1988), 40 Ohio St.3d 130, at syllabus. If a defendant’s guilty
plea is not knowing and voluntary, it has been obtained in violation
of due process and is void. Boykin v. Alabama (1969), 395 U.S.
238, 243, 89 S.Ct. 1709. In order for a plea to be given knowingly
and voluntarily, the trial court must follow the mandates of Crim.R.
11(C).
{¶ 14} Crim.R. 11(C)(2) provides:
{¶ 15} “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:
{¶ 16} “(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
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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.
{¶ 17} “(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.
{¶ 18} “(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.”
{¶ 19} The constitutional rights that are waived by a
defendant’s plea of guilty or no contest are the right to confront
his accusers, the privilege against self-incrimination, and the
right to a jury trial. State v. Ballard (1981), 66 Ohio St.2d
473. In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, at
¶31-32, the Supreme Court explained the effects of failing to comply
with Crim.R. 11(C):
{¶ 20} “When a trial judge fails to explain the constitutional
rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest
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plea is invalid ‘under a presumption that it was entered
involuntarily and unknowingly.’ Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12; see also Nero, 56 Ohio St.3d at
107, 564 N.E.2d 474, citing Boykin, 395 U.S. at 242–243, 89 S.Ct.
1709, 23 L.Ed.2d 274. However, if the trial judge imperfectly
explained nonconstitutional rights such as the right to be informed
of the maximum possible penalty and the effect of the plea, a
substantial-compliance rule applies. Id. Under this standard,
a slight deviation from the text of the rule is permissible; so
long as the totality of the circumstances indicates that ‘the
defendant subjectively understands the implications of his plea
and the rights he is waiving,’ the plea may be upheld. Nero, 56
Ohio St.3d at 108, 564 N.E.2d 474.
{¶ 21} “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
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23.
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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.”
{¶ 22} The facts of the present case constitute a situation
in which the trial court partially complied with Crim.R. 11 with
regard to a nonconstitutional right. Clark. It is undisputed
that the trial court correctly notified Defendant of the
mandatory, five-year period of post-release control during the
plea colloquy. What the trial court failed to do, however, is
reconcile its correct verbal pronouncement with the erroneous
three-year period of post-release control stated on the plea form.
{¶ 23} The plea form used by the trial court is not mandated
by Crim.R. 11 or the statutes governing post-release control.
While the error contained on the form cannot be ignored, we believe
that the trial court’s correct oral explanation of the five-year
period of post-release control during the plea colloquy makes this
situation one of partial compliance with Crim.R. 11 with regard
to a nonconstitutional right rather than one of complete failure
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to comply with Crim.R. 11 regarding that right. Therefore, in
order to succeed on his claim that his plea was not voluntary,
knowing, and intelligent, Defendant must demonstrate that he was
prejudiced by the trial court’s failure to correct the
misinformation on the plea form. Clark.
{¶ 24} Defendant has at no time claimed that he would not have
otherwise pled guilty if he had been made fully aware that the
three-year period of post-release control noted on the plea form
was incorrect. Therefore, Defendant has not shown that he was
prejudiced by the trial court’s failure to reconcile the plea form
with the plea colloquy. Clark; Nero.
{¶ 25} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR WHEN IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS GUILTY
PLEA.”
{¶ 27} Defendant argues that the trial court erred in denying
his motion to withdraw his guilty plea when his guilty plea was
not knowing and voluntary, because the plea form noted a mandatory
three-year period of post-release control that was less than the
mandatory five-year period of post-release control to which he
was subject and ultimately sentenced. Defendant concedes that
he failed to raise this error in the trial court. The grounds
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for his motion to withdraw his guilty plea were, instead, that
he was innocent.
{¶ 28} “An appellate court need not consider an error which
a party complaining of the trial court's judgment could have called,
but did not call, to the trial court's attention at a time when
such error could have been avoided or corrected by the trial court.”
State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of
the syllabus. Defendant forfeited all but plain error by failing
to raise this argument before the trial court. State v. Payne,
114 Ohio St.3d 502, 873 N.E.2d 306, 2007-Ohio-4642, at ¶23.
{¶ 29} Rule 52(B) of the Ohio Rules of Criminal Procedure
permits appellate courts to take notice of plain errors, but such
notice is to be taken “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804
(1978). Based on our review of the record, we conclude Defendant
has not established the necessary exceptional circumstances and
manifest miscarriage of justice.
{¶ 30} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 31} “APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL PURSUANT TO THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION.”
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{¶ 32} Counsel’s performance will not be deemed ineffective
unless and until counsel’s performance is proved to have fallen
below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel’s performance.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674. To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for
counsel’s errors, the result of the trial would have been different.
Id.; State v. Bradley (1989), 42 Ohio St.3d 136. Further, the
threshold inquiry should be whether a defendant was prejudiced,
not whether counsel’s performance was deficient. Strickland.
{¶ 33} As explained above, Defendant has failed to show that
he was prejudiced by the trial court’s failure to correct the error
on the plea form regarding the applicable period of mandatory
post-release control. Similarly, Defendant has failed to show
that he was prejudiced by his trial counsel’s failure to raise
the inconsistency to the trial court. Defendant nowhere alleged
that he would not otherwise have pled guilty had the plea form
stated a mandatory five-year period of post-release control rather
than a three-year period, or had his attorney or the trial court
brought the mistake to Defendant’s attention prior to his entry
of a guilty plea.
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{¶ 34} Defendant argues that the trial court would have granted
his motion to withdraw his guilty plea had Defendant’s trial counsel
raised the error in the plea form at the May 20, 2011, hearing
on his motion. As explained in our discussion of the first
assignment of error, however, the inconsistency between the plea
form and the plea colloquy in this case would not have required
the trial court to grant Defendant’s motion to withdraw his guilty
plea. Clark, 2008-Ohio-3748, at ¶31-32.
{¶ 35} Defendant also argues that his trial counsel’s failure
to raise this error at the hearing on his motion to withdraw his
guilty plea prejudiced him at the appellate level by causing his
second assignment of error to be judged under a stricter, plain
error standard.
{¶ 36} Defendant did not file his motion to withdraw his guilty
plea until after he was sentenced. Consequently, the trial court
was not required to grant the motion unless Defendant could show
that the motion should be granted to correct a manifest injustice.
Crim.R. 32.1. Defendant has failed to show a manifest injustice.
{¶ 37} Without a showing of prejudice resulting from
deficiencies on the part of his trial counsel, Defendant cannot
succeed on his ineffective assistance of counsel claim. The third
assignment of error is overruled. The judgment of the trial
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court will be affirmed.
FROELICH, J., And HALL, J., concur.
Copies mailed to:
Timothy J. Cole, Esq.
Scott N. Blauvelt, Esq.
Hon. Mary K. Huffman