State v. Phillips

[Cite as State v. Phillips, 2012-Ohio-5950.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 15-12-02

v.

CHAD D. PHILLIPS, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court
Trial Court No. CR11-05-071

Judgment Affirmed

Date of Decision: December 17, 2012

APPEARANCES:

Kenneth J. Rexford for Appellant

Eva J. Yarger for Appellee
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ROGERS, J.

{¶1} Defendant-Appellant, Chad Phillips, challenges the judgment of the

Court of Common Pleas of Van Wert County convicting him of aggravated

murder and sentencing him to a term of life imprisonment with the possibility of

parole after 30 years. On appeal, Phillips essentially argues that the trial court

committed the following reversible errors: (1) sentencing him to a life term with

the possibility of parole after 30 years; (2) applying unconstitutional and

ambiguous sentencing laws that lack objective standards; and (3) accepting

Phillips’ guilty plea, which was not knowing, voluntary, and intelligent. For the

reasons that follow, we affirm the trial court’s judgment.

{¶2} On May 20, 2011, the Van Wert County Grand Jury indicted Phillips

on the following four counts: (1) aggravated murder in violation of R.C.

2903.01(A), an unspecified felony; (2) attempted murder in violation of R.C.

2903.02(A), 2923.02(A), a felony of the first degree; (3) aggravated burglary in

violation of R.C. 2911.11(A)(1), a felony of the first degree; and (4) felonious

assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. The

indictment did not allege the applicability of an aggravating circumstance

enumerated in R.C. 2929.04(A).

{¶3} The indictment arose out of a May 12, 2011 incident in which Phillips

fatally shot Christopher McMillen. At the time of the shooting, Phillips’ previous

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girlfriend was romantically involved with McMillen. After drinking a copious

amount of alcohol, Phillips traveled to confront McMillen at the girlfriend’s

house. Shortly after Phillips arrived and with the girlfriend’s children and brother

present, he shot McMillen in the leg. McMillen then crawled into a bathroom and

closed the door behind him. Phillips followed him, reloaded, and shot several

times through the door. McMillen died later that evening from the wounds he

sustained.

{¶4} On August 4, 2011, Phillips entered a written plea of not guilty by

reason of insanity. He also moved for the court to determine his competency to

stand trial. After receiving expert testimony and conducting a competency

hearing, the trial court found that Phillips was competent to stand trial on October

21, 2011.

{¶5} On November 10, 2011, Phillips changed his plea to guilty for the

aggravated murder count of the indictment. The change of plea was made in

conjunction with a negotiated plea agreement in which the State agreed to drop the

remaining three counts of the indictment. The trial court conducted an extensive

colloquy with Phillips to determine the voluntary and knowing nature of his

change of plea. The colloquy started with the following:

THE COURT: Mr. Phillips, before accepting plea I am obligated to
ask you some questions to determine if you know and understand the
rights that you are giving up, the consequences of a guilty plea and

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that you are changing your plea of your own free will. Please state
your full and correct name for the record.

CHAD D. PHILLIPS: Chad Dewayne Phillips.

THE COURT: How old are you?

CHAD D. PHILLIPS: Thirty-two (32).

THE COURT: And what schooling have you had?

CHAD D. PHILLIPS: Eleventh grade, got my GED.

THE COURT: Do you read, write, and understand the English
language?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: The offense to which you are pleading states that no
person shall purposely and with prior calculation or design cause the
death of another. Have you read the petition to enter the guilty plea?

CHAD D. PHILLIPS: Yes I have, sir.

THE COURT: Did you understand everything in that petition?

CHAD D. PHILLIPS: Yes, I have.

THE COURT: Do you understand the nature of the charge against
you?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: Do you understand that a plea of guilty is a complete
admission of guilt?

CHAD D. PHILLIPS: Yep.

THE COURT: Do you understand that by pleading guilty you waive,
that is, give up your right to have jury or court trial on your plea of

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not guilty and not guilty by reason of insanity[?] A trial in which the
prosecution must prove your guilt beyond a reasonable doubt; the
right to require your accusers to appear before you and confront you
with the evidence they have; the right to cross examine accusers and
ask them questions that are proper; the right to have the court
compel witnesses to appear and testify in your behalf and in your
defense; the right to testify if you want to or refuse to testify if you
do not want to and your refusal would have no bearing on your guilt
or innocence; and the right to appeal the judgment of the trial court
should it[s] ruling or verdict be against you[?] Do you waive these
rights and your right to jury trial and freely elect to have this court
accept your plea of guilty, here and now?

CHAD D. PHILLIPS: Yes, sir. Change of Plea Hearing Tr., p. 3-6.

{¶6} After the State presented the facts of the case regarding the aggravated

murder count, the colloquy continued as follows:

THE COURT: Is this the offense to which you are pleading guilty?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: Have you discussed the matter of the plea and the
present charges fully and completely with your attorneys, Mr.
Camera and Mr. Christman?

CHAD D. PHILLIPS: Yes I have, sir.

THE COURT: Are you satisfied with the service and advice of your
attorneys up to the present time?

CHAD D. PHILLIPS: Yes.

THE COURT: Do you understand that no one can compel you to
plead guilty?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: Are you changing your plea freely and voluntarily?

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CHAD D. PHILLIPS: Yes, I am.

THE COURT: Do you understand that in the event that I accept your
plea the only thing that remains to be is to pass sentence and that
includes a sentence of years to a state penal institution[?] In this
case that could be a maximum sentence of life imprisonment without
parole, or life imprisonment with parole eligibility after serving
twenty (20) years of imprisonment; or life imprisonment with parole
eligibility after serving twenty-five (25) year full years of
imprisonment; or life imprisonment with parole eligibility after
serving thirty (30) full years of imprisonment and addition[ally] the
Court may impose a maximum fine of twenty-five thousand dollars
($25,000). Do you understand these possible sentences?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: Do you understand that irrespective of any statement
made to you by any person regarding the sentence you may receive,
the sentence that you do receive is solely a matter within the
discretion of the trial court, do you understand that?

CHAD D. PHILLIPS: Yes, sir.

THE COURT: Are you a citizen of the United States?

CHAD D. PHILLIPS: Yes, I am.

THE COURT: Are you presently on probation, parole, post-release
supervision or community control for any other offense?

CHAD D. PHILLIPS: No, sir.

THE COURT: Have you been induced to plead guilty by any threats,
promises, or offers of reward?

CHAD D. PHILLIPS: No, I haven’t.

THE COURT: Are you in good health mentally and physically?

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CHAD D. PHILLIPS: Yes, sir.

THE COURT: Are you under the care of a doctor for any recent
accident, illness, or mental disorder?

CHAD D. PHILLIPS: No, sir.

THE COURT: You are taking some kind of medication for some
condition. Is there anything about that you have or the medication
you are taking, or the treatment that you are receiving that would
cause you not to understand the consequences of what you are doing
here today?

CHAD D. PHILLIPS: No. Id. at 6-9.

{¶7} The trial court then asked Phillips’ attorneys whether they believed

Phillips understood the nature of the proceedings. One of the attorneys responded

by stating, “Yes, Your Honor, we have spoken with him and he certainly

understands the nature of today’s proceedings.” Id. at 9. The colloquy then

concluded as follows:

THE COURT: Are you pleading guilty, because you are guilty as
charged?

CHAD D. PHILLIPS: Yes, sir.

** *

THE COURT: The Court finds your plea is freely, voluntarily and
understandably made and let the record show that the Defendant
withdraws his pleas of not guilty and enters a plea of guilty to Count
One, Aggravated Murder and unspecified felony as charged in the
indictment without the specification. Id. at 9-10.

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{¶8} The matter then proceeded to the sentencing phase. The trial court

conducted a sentencing hearing on December 15, 2011, where it heard statements

from Phillips and several family members of the victim. After hearing these

statements, considering the arguments of Phillips’ counsel, and receiving the

presentence investigation report, which revealed that Phillips had no previous

felony convictions, the trial court made the following statement:

The Court having considered the information presented at the
sentencing hearing and the record and the factors pertaining to the
seriousness of the offense and the likelihood [of] recidivism and the
factors contained in Revised Code Section 2929.12 and 2929.13(B),
the Court now being fully informed of the circumstances
surrounding the charge and finding no cause which would preclude
the pronouncement of sentence. It is now the sentence of the law
and the judgment of this Court that the Defendant be sentenced to a
term of life imprisonment with parole eligibility after serving thirty
(30) full years which shall be served in the custody of the Director of
the Department of Rehabilitation and Correction. Sentencing
Hearing Tr., p. 24.

The trial court journalized its sentence on December 16, 2011. The judgment

entry repeats that the trial court considered the factors of R.C. 2929.12,

2929.13(B), the likelihood of recidivism, and the seriousness of the offense when

pronouncing sentence.

{¶9} Phillips filed this timely appeal, presenting the following assignments

of error for our review.

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Assignment of Error No. I

AS MR. PHILLIPS WAS NOT ALLEGED TO HAVE
COMMITTED HIS CONDUCT WITH ANY AGGRAVATING
CIRCUMSTANCE FROM R.C. §2929.04(A) APPLICABLE,
DUE PROCESS AND THE EQUAL PROTECTION CLAUSE
OF THE OHIO CONSTITUTION AND THE UNITED
STATES CONSTITUTION COMPEL A SENTENCE OF 20
TO LIFE.

Assignment of Error No. II

THE OHIO LEGISLATURE VIOLATED THE SEPARATION
OF POWERS DOCTRINE BY IMPROPERLY DELEGATING
TO THE JUDICIARY THE POWER TO DETERMINE
PAROLE ELIGIBILITY WITH NO REASONABLE
STANDARDS FOR SO DETERMINING.

Assignment of Error No. III

THE LACK OF STANDARDS FOR DETERMINING PAROLE
ELIGIBILITY AT SENTENCING VIOLATED MR.
PHILLIPS’ DUE PROCESS RIGHTS.

Assignment of Error No. IV

THE LACK OF STANDARDS FOR DETERMINING PAROLE
ELIGIBILITY AT SENTENCING DEPRIVED MR. PHILLIPS
OF THE EFFECTIVE ASSISTANCE OF COUNSEL, AS
COUNSEL CANNOT ADEQUATELY DEFEND HIS CLIENT
IN THE CONTEXT OF A HEARING THAT IS RESOLVED
ARBITRARILY.

Assignment of Error No. V

THE LACK OF STANDARDS FOR DETERMINING PAROLE
ELIGIBILITY AT SENTENCING RESULTED IN A
SENTENCE THAT AMOUNTS TO CRUEL AND UNUSUAL
PUNISHMENT, AS RANDOM SENTENCING IS CRUEL AND
UNUSUAL.

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Assignment of Error No. VI

THE LACK OF STANDARDS FOR DETERMINING PAROLE
ELIGIBILITY DEPRIVES THE ACCUSED OF A
MEANINGFUL APPEAL OF SENTENCING, AS
SENTENCING IMPOSED WITHOUT STANDARDS IS BY
LAW RANDOM AND HENCE NOT SUBJECT TO
MEANINGFUL APPEAL.

Assignment of Error No. VII

OHIO LAW UNCONSTITUTIONALLY DELEGATES TO
THE EXECUTIVE BRANCH THE ABILITY TO
DETERMINE SENTENCING RANGE BY ALLEGING OR
NOT ALLEGING R.C. §2929.04 AGGRAVATING
CIRCUMSTANCES.

Assignment of Error No. VIII

OHIO SENTENCING LAW AMOUNTS TO AN EQUAL
PROTECTION VIOLATION, AS A PERSON ALLEGED
FALSELY OF AN AGGRAVATING CIRCUMSTANCE
FACES A LESSER SENTENCE THAN A PERSON NOT
ALLEGED TO HAVE COMMITTED HIS OFFENSE WITH
ANY AGGRAVATING CIRCUMSTANCE PRESENT.

Assignment of Error No. IX

THE PLEA IN THIS CASE WAS NOT KNOWING,
VOLUNTARY, AND INTELLIGENT, IN VIOLATION OF
CRIMINAL RULE 11.

Assignment of Error No. X

THE PLEA IN THIS CASE WAS NOT KNOWING,
VOLUNTARY, AND INTELLIGENT, IN VIOLATION OF
THE OHIO CONSTITUTION AND THE UNITED STATES
CONSTITUTION.

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Assignment of Error No. XI

THE PLEA IN THIS CASE WAS NOT KNOWING,
VOLUNTARY, AND INTELLIGENT, IN VIOLATION OF
THE OHIO CONSTITUTION AND THE UNITED STATES
CONSTITUTION BECAUSE THE TRIAL COURT DID NOT
DISCUSS THE AFFIRMATIVE DEFENSE OF SANITY AT
THE TIME OF THE ACT.

Due to the nature of the second, third, fourth, fifth, sixth, seventh, and eighth

assignments of error, we elect to address them together. Further, due to the nature

of the ninth, tenth, and eleventh assignments of error we elect to address them

together.

Assignment of Error No. I

{¶10} In his first assignment of error, Phillips argues that the trial court

erroneously handed down a sentence of life imprisonment with the possibility of

parole after 30 years. Specifically, he claims that the trial court improperly used

R.C. 2929.03(A)(1) in pronouncing its sentence. Phillips contends that R.C.

2929.022(B)(1), R.C. 2929.03(A)(1), and R.C. 2929.03(C)(1), when read in

concert, are ambiguous. Consequently, under the due process and equal protection

clauses, the statutes should be construed to only allow a life sentence with the

possibility of parole after 20 years unless the state alleges and proves an

aggravating circumstance beyond a reasonable doubt. We disagree.

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Applicable Statutes

{¶11} R.C. 2929.022(B), in relevant part, states the following:

At the sentencing hearing, the panel of judges, if the defendant was
tried by a panel of three judges, or the trial judge, if the defendant
was tried by jury, shall, when required pursuant to division (A)(2) of
this section, first determine if the specification of the aggravating
circumstance of a prior conviction listed in division (A)(5) of section
2929.04 of the Revised Code is proven beyond a reasonable doubt. If
the panel of judges or the trial judge determines that the specification
of the aggravating circumstance of a prior conviction listed in
division (A)(5) of section 2929.04 of the Revised Code is proven
beyond a reasonable doubt or if they do not determine that the
specification is proven beyond a reasonable doubt but the defendant
at trial was convicted of a specification of any other aggravating
circumstance listed in division (A) of section 2929.04 of the Revised
Code, the panel of judges or the trial judge and trial jury shall
impose sentence on the offender pursuant to division (D) of section
2929.03 and section 2929.04 of the Revised Code. If the panel of
judges or the trial judge does not determine that the specification of
the aggravating circumstance of a prior conviction listed in division
(A)(5) of section 2929.04 of the Revised Code is proven beyond a
reasonable doubt and the defendant at trial was not convicted of any
other specification of an aggravating circumstance listed in division
(A) of section 2929.04 of the Revised Code, the panel of judges or
the trial judge shall terminate the sentencing hearing and impose
sentence on the offender as follows:

(1) Subject to division (B)(2) of this section, the panel or judge
shall impose a sentence of life imprisonment with parole eligibility
after serving twenty years of imprisonment on the offender.

R.C. 2929.03, in relevant part, provides the following:

(A) If the indictment or count in the indictment charging
aggravated murder does not contain one or more specification of
aggravating circumstances listed in division (A) of section 2929.04
of the Revised Code, then, following a verdict of guilty of the charge

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of aggravated murder, the trial court shall impose sentence on the
offender as follows:

(1) Except as provided in division (A)(2) of this section, the trial
court shall impose one of the following sentences on the offender:

(a) Life imprisonment without parole;
(b) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving twenty years of imprisonment;
(c) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving twenty-five full years of
imprisonment; [and]
(d) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving thirty full years of imprisonment.

** *

(C)(1) If the indictment or count in the indictment charging
aggravated murder contains one or more specifications of
aggravating circumstances listed in division (A) of section 2929.04
of the Revised Code, then, following a verdict of guilty of the charge
but not guilty of the each of the specifications, and regardless
whether the offender raised the matter of age pursuant to section
2929.023 of the Revised Code, the trial court shall imposes sentence
on the offender as follows:

(a) Except as provided in division (C)(1)(b) of this section, the trial
court shall impose one of the following sentences on the offender:

(i) Life imprisonment without parole;
(ii) Subject to division (C)(1)(a)(v) of this section, life
imprisonment with parole eligibility after serving twenty years of
imprisonment;
(iii) Subject to division (C)(1)(a)(v) of this section, life
imprisonment with parole eligibility after serving twenty-five full
years of imprisonment;
(iv) Subject to division (C)(1)(a)(v) of this section, life
imprisonment with parole eligibility after serving thirty full years of
imprisonment.

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Statutory Interpretation Principles

{¶12} It is axiomatic that if the language of a statute is plain and

unambiguous, and conveys a clear and definite meaning, there is no need for a

court to apply further rules of statutory interpretation. State v. Siferd, 151 Ohio

App.3d 103, 2002-Ohio-6801, ¶ 33 (3d Dist.). Words and phrases must be read in

context and given their usual, normal, and customary meanings. R.C. 1.42;

Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, ¶ 12. However,

“[i]t is an axiom of judicial interpretation that statutes be construed to avoid

unreasonable or absurd consequences.” State ex rel. Cook v. Seneca Cty. Bd. Of

Commrs., 175 Ohio App.3d 721, 2008-Ohio-736, ¶ 28 (3d Dist.), quoting State ex

rel. Dispatch Printing Co v. Wells, 18 Ohio St.3d 382, 384 (1985).

{¶13} However, where the meaning of a statute is ambiguous, a court may

examine legislative history or examine the statute in pari materia to ascertain its

meaning. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, ¶ 34; State ex

rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph two of the syllabus. “In

determining legislative intent when faced with an ambiguous statute, the court

may consider several factors, including the object sought to be obtained,

circumstances under which the statute was enacted, the legislative history, and the

consequences of a particular construction.” Bailey v. Republic Engineered Steels,

Inc., 91 Ohio St.3d 38, 40 (2001). Additionally, “‘a court cannot pick out one

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sentence and disassociate it from the context, but must look to the four corners of

the enactment to determine the intent of the enacting body.’” Jackson at ¶ 34,

quoting State v. Wilson, 77 Ohio St.3d 334, 336 (1997). Further, a court is

permitted to consider laws concerning the same or similar subjects to discern

legislative intent. R.C. 1.49(D). “‘Statutes relating to the same matter or subject *

* * are in pari materia and should be read together to ascertain and effectuate if

possible the legislative intent.’” D.A.B.E., Inc. v. Toledo–Lucas Cty. Bd. of Health,

96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 20, quoting Weygandt at paragraph two of

the syllabus.

R.C. 2929.022 and R.C. 2929.03(A)(1)

{¶14} When reviewing the statutes listed above, we find no fatal ambiguity.

R.C. 2929.022 is replete with references that it applies only where the State has

alleged the aggravating circumstance specification of a previous conviction. See

R.C. 2929.022(A), (A)(1), (A)(2), (A)(2)(b), (A)(2)(b)(i)-(ii), (B). Conversely,

R.C. 2929.03(A) states that if there is no allegation of a specified aggravating

circumstance in the indictment, then the trial court may hand down a life sentence

without parole, a life sentence with the possibility of parole after 20 years, a life

sentence with the possibility of parole after 25 years, or a life sentence with the

possibility of parole after 30 years. In light of these plain terms, R.C. 2929.022

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does not conflict with R.C. 2929.03(A) since they apply to entirely different types

of prosecutions.

{¶15} Here, the State did not allege that Phillips had a previous conviction.

Thus, none of the provisions of R.C. 2929.022 apply to this matter. Further, the

State did not allege any aggravating circumstance specification in the indictment.

As such, the trial court properly applied R.C. 2929.03(A)(1) when sentencing

Phillips.

{¶16} Even if we were to determine that the two statutes were inconsistent

and ambiguous, we would still reach the same result. The legislative history

plainly shows that the General Assembly’s intent in enacting the current version of

R.C. 2929.03(A) was to ensure that trial court judges had discretion to choose

among the four options listed above when sentencing those convicted of

aggravated murder. The Ohio Legislative Service Commission’s final analysis of

Sub. H.B. 184, which amended R.C. 2929.03(A) in 2004, includes the following

summary of the bill:

In addition to the existing sentence of life imprisonment with parole
eligibility after serving 20 years of imprisonment, [the bill] permits
the court to impose a sentence of life imprisonment without parole,
life imprisonment with parole eligibility after serving 25 full years of
imprisonment, or life imprisonment with parole eligibility after
serving 30 full years of imprisonment upon an offender who is
convicted of or pleads guilty to aggravated murder and who either is
not charged with or is charged with but is not convicted of and does
not plead guilty to a specification of an aggravating circumstance.
LSC Bill Analyses, Sub. H.B. 184 (as passed by the General

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Assembly), 2003-2004 LSC Bill Analyses, 125th General Assembly,
available at:
http://lsc.state.oh.us/analyses/Analysis125.nsf/All%20Bills%20and
%20Resolutions/DEF43D854A58F77785256F930062A04C.

In his appellate brief, Phillips even admits that this was the legislative intent

behind the current form of R.C. 2929.03(A). In light of this intent, even if there

were an ambiguity in the statute, we would find that R.C. 2929.03(A) applied to

this matter and would find no error in the trial court’s judgment on this basis.

R.C. 2929.022 and R.C. 2929.03(C)(1)

{¶17} R.C. 2929.03(C)(1) plainly states that it only applies when the State

has alleged an aggravating circumstance specification. As such, it does not apply

to this matter in which the State failed to bring such a specification.

Consequently, we decline addressing any incongruity between R.C. 2929.022,

which also does not apply here, and R.C. 2929.03(C)(1).

Equal Protection and Due Process

{¶18} Based on our finding that the trial court properly applied R.C.

2929.03(A) and that the statute is not ambiguous, we need not address Phillips’

arguments that the application of the statute violated equal protection and due

process. See App.R. 12(A)(2).

{¶19} In sum, R.C. 2929.03(A) is not in conflict with R.C. 2929.022 or

R.C. 2929.03(C)(1), neither of which apply here because the State did not allege

an aggravating circumstance specification. As such, the trial court properly

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sentenced Phillips under R.C. 2929.03(A) to a life prison term with parole

eligibility after 30 years.

{¶20} Accordingly, we overrule Phillips’ first assignment of error.

Assignments of Error Nos. II, III, IV, V, VI, VII, & VIII

{¶21} In his second through eighth assignments of error, Phillips again

challenges the trial court’s imposition of parole eligibility after 30 years and bases

his challenge on various constitutional grounds. Specifically, he contends that

R.C. 2929.03(A)’s delegation of parole determinations to the executive branch, the

lack of standards governing trial courts’ decisions regarding parole eligibility, and

production of different sentences for offenders render the statute unconstitutional.

The essential import of these arguments is that R.C. 2929.03(A) is unconstitutional

and we should instruct the trial court to pronounce a sentence of life imprisonment

with parole eligibility after 20 years. We note that Phillips did not raise issues of

constitutionality in the trial court. When a party fails to raise such issues, they are

waived. See, e.g., Erwin v. Erwin, 3d Dist. No. 9-08-15, 2009-Ohio-407, ¶ 17.

{¶22} Accordingly, Phillips’ second, third, fourth, fifth, sixth, seventh, and

eighth assignments of error are overruled.

Assignments of Error Nos. IX, X, & XI

{¶23} In his ninth, tenth, and eleventh assignments of error, Phillips claims

that his change of plea was not knowing, voluntary, and intelligent, as required

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under Crim.R. 11, the Ohio Constitution, and the United States Constitution.

Specifically, Phillips asserts that it was erroneous for the trial court to accept his

change of plea without informing him of his lack of eligibility for probation and

community control sanctions and without discussing the insanity defense. We

disagree.

Crim.R. 11(C)(2)

{¶24} Crim.R. 11(C)(2) instructs trial courts that in felony cases they can

accept a plea of guilty or no contest only after addressing the defendant in a

colloquy for the purpose of doing the following:

(a) Determining that the defendant is making the plea voluntarily
with understanding of the nature of the charges and 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 of 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. Crim.R. 11(C)(2).

The rule is intended to ensure that guilty pleas are entered knowingly,

intelligently, and voluntarily. State v. Windle, 4th Dist. No. 03CA16, 2004-Ohio-

6827, ¶ 7. “Criminal Rule 11(C)(2) clearly and distinctly mandates that the trial

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judge, before accepting a guilty plea in a felony case, inform the defendant of his

rights as expressed in the rule and determine that he understands these rights and

that he is making his guilty plea voluntarily.” State v. Stewart, 51 Ohio St.2d 86,

88 (1977), quoting State v. Younger, 46 Ohio App.2d 269 (8th Dist. 1975),

syllabus. Failure to ensure that a plea is entered knowingly, intelligently, and

voluntarily renders its enforcement unconstitutional. State v. Engle, 74 Ohio St.3d

525, 527 (1996).

{¶25} Our review of a trial court’s Crim.R. 11(C)(2) colloquy depends on

whether the defendant complains of a failure to inform him of constitutional rights

or a failure to inform him of non-constitutional rights. State v. Thomas, 3d Dist.

No. 10-10-17, 2011-Ohio-4337, ¶ 20-21. If the appeal implicates the defendant’s

constitutional rights, then we review the colloquy to ensure that the trial court

strictly complied with Crim.R. 11(C)(2)’s dictates. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, ¶ 18. Conversely, if the appeal implicates non-

constitutional matters, then we only review the colloquy to ensure that the trial

court substantially complied with Crim.R. 11(C)(2). State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, ¶ 11-12. “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 (1990).

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{¶26} Here, Phillips complains of the trial court’s failure to inform him of

his lack of eligibility for parole and community control sanctions. He also

complains of the trial court’s purported failure to discuss the insanity defense.

Neither of these complaints implicates the constitutional rights enumerated in

Crim.R. 11(C)(2). See Veney at ¶¶ 19-21 (identifying the following constitutional

rights as requiring strict compliance with Crim.R. 11(C)(2): right to jury trial; right

to confront witnesses; privilege against self-crimination; and right to require state

to prove guilt beyond a reasonable doubt). As such, we review the trial court’s

colloquy with Phillips only to ensure that the trial court substantially complied

with Crim.R. 11(C)(2). See Stewart at syllabus (applying substantial compliance

analysis to trial court’s failure to inform the defendant of community control

sanction).

Eligibility for Probation and Community Control Sanctions

{¶27} State v. Brown, 11th Dist. No. 2003-G-2504, 2004-Ohio-1843, is

instructive here. In Brown, the defendant was charged with a first degree felony

under R.C. 2907.02(A)(1)(b). The felony carried a prison sentence of three to 10

years. After the defendant pleaded guilty and the trial court handed down a 10-

year sentence, the defendant questioned the voluntariness of his plea because the

trial court failed to inform him that he was ineligible for community control

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sanctions. Id. at ¶ 1-3. In finding that this failure did not constitute reversible

error, the court declared the following:

It is well-established * * * that a trial court substantially complies
with the requirement of Crim[.]R. 11(C)(2)(a) when the court
informs a defendant that a mandatory prison sentence will be
imposed and the defendant subjectively understands that his
sentence must include prison time. The reasoning is that a defendant
who understands that actual incarceration is mandatory necessarily
understands that he is ineligible for probation or community control
sanctions and, therefore, cannot demonstrate prejudice as a result of
the court's failure to comply literally with the rule. Id. at ¶ 13.

{¶28} We find the Brown court’s reasoning to be persuasive and apply it to

the factually similar scenario present in this matter. Here, Phillips was charged

with aggravated murder under R.C. 2903.01(A) without an aggravating

circumstance specification and R.C. 2929.03(A)(1) governed his sentencing. R.C.

2929.03(A)(1) provides that a defendant convicted of aggravated murder must be

sentenced to a term of life imprisonment and that parole eligibility may be denied

altogether or allowed after 20, 25, or 30 years of prison service.

{¶29} During the plea colloquy, the following exchange occurred between

the trial court and Phillips:

THE COURT: Do you understand that in the event that I accept your
plea the only thing that remains to be is to pass sentence and that
includes a sentence of years to a state penal institution[?] In this
case that could be a maximum sentence of life imprisonment without
parole, or life imprisonment with parole eligibility after serving
twenty (20) years of imprisonment; or life imprisonment with parole
eligibility after serving twenty-five (25) year fully years of
imprisonment; or life imprisonment with parole eligibility after

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serving thirty (30) full years of imprisonment and addition[ally] the
Court may impose a maximum fine of twenty-five thousand dollars
($25,000). Do you understand these possible sentences?

CHAD D. PHILLIPS: Yes, sir. Change of Plea Hearing Tr., p. 7.

This exchange plainly shows that Phillips was aware that his guilty plea

necessitated that he serve a term of life imprisonment. Under Brown’s guidance,

Phillips’ knowledge of his mandatory prison term also created an understanding

that he was ineligible for community control sanctions. Brown, 2004-Ohio-1843

at ¶ 13; see also State v. Thomas, 8th Dist. No. 94788, 2011-Ohio-214, ¶ 25

(finding no prejudicial error for trial court’s failure to inform the defendant of

community control sanctions because the trial court discussed maximum penalty

for offense); State v. Byrd, 178 Ohio App.3d 646, 2008-Ohio-5515, ¶ 30 (2d Dist.)

(finding that the trial court does not have to inform the defendant of lack of

eligibility for judicial release unless there is a misstatement or misrepresentation

that puts the trial court on notice that the defendant does not understand this fact).

{¶30} Since the trial court informed Phillips that he had to serve a life

prison term, we find that Phillips was aware that he was ineligible for community

control sanctions and probation and that the trial court substantially complied with

the dictates of Crim.R. 11(C)(2). Consequently, the trial court’s failure to

explicitly inform Phillips of his lack of eligibility does not constitute reversible

error.

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Insanity Defense

{¶31} It is well-settled that there is no requirement under Crim.R. 11(C)(2)

that trial courts apprise defendants of available defenses when accepting a change

of plea. See, e.g., State v. Reynolds, 40 Ohio St.3d 334 (1988), syllabus (finding

that trial court did not have to inform criminal defendant of statutorily enumerated

affirmative defenses); State v. Ingram, 7th Dist. No. 09MA98, 2010-Ohio-1093, ¶

22 (finding that trial court did not err when failing to inform defendant of insanity

defense). Phillips seeks for us to disregard this well-settled law and erroneously

relies on State v. Dickey, 15 Ohio App.3d 151 (8th Dist. 1984), to support his

contention. There, the Eighth District Court of Appeals reversed a concealed

weapon conviction because the trial court failed to inform the defendant of the

affirmative defenses provided for in R.C. 2923.12(C). Id. at syllabus and 152.

{¶32} However, the Ohio Supreme Court’s ruling in Reynolds directly

contradicts Dickey. In Reynolds, the Court found that trial courts had no duty to

inform defendants of the affirmative defenses included in R.C. 2923.12(C).

Reynolds at syllabus. Based on Reynolds, the holding in Dickey is no longer good

law and we consequently reject Phillips’ argument that a trial court must inform a

defendant of the insanity defense. As such, we follow Reynolds and find that the

trial court did not err when it failed to inform Phillips of the insanity defense.

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{¶33} We also note that it appears from the record that the trial court did at

least cursorily discuss the affirmative defense of insanity during the plea colloquy.

The colloquy includes the following exchange:

THE COURT: Do you understand that by pleading guilty you waive,
that is, give up your right to have jury or court trial on your plea of
not guilty and not guilty by reason of insanity[?]

***

CHAD D. PHILLIPS: Yes, sir. Change of Plea Hearing Tr., p. 5.

This exchange displays that Phillips understood that he had entered a plea of not

guilty by reason of insanity and that he knowingly, intelligently, and voluntarily

withdrew this plea in favor of a guilty plea.

{¶34} Accordingly, Phillips’ ninth, tenth, and eleventh assignments of error

are overruled.

{¶35} Having found no error prejudicial to Phillips, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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