[Cite as State v. Cline, 2014-Ohio-241.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA7
:
vs. :
: DECISION AND JUDGMENT
LESLIE G. CLINE, : ENTRY
:
Defendant-Appellant. : Released: 01/21/14
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Melissa M. Prendergast,
Assistant State Public Defender, Columbus, Ohio, for Appellant.
Judy C. Wolford, Pickaway County Prosecutor, and Jayme Hartley Fountain,
Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Leslie Cline appeals his conviction and sentence in the
Pickaway County Court of Common Pleas imposed after he pled guilty to
one count of trafficking in heroin, a felony of the fifth degree. On appeal,
Appellant raises three assignments of error contending that 1) he was
deprived of state and federal right to due process when the trial court
accepted an unknowing, unintelligent, and involuntary guilty plea; 2) the
trial court erred as a matter of law when it sentenced him to consecutive
prison terms without making the findings necessary to impose consecutive
Pickaway App. No. 13CA7 2
prison terms; and 3) trial counsel provided ineffective assistance when he
failed to object to the trial court’s insufficient plea colloquy and erroneous
imposition of consecutive sentences.
{¶2} Because we find that the trial court failed to strictly comply with
Crim.R. 11(C)(2)(c) when accepting Appellant’s plea, Appellant’s first
assignment of error is sustained. As such, we find that Appellant’s plea is
invalid and must be vacated. In light of our disposition of Appellant’s first
assignment of error, Appellant’s second and third assignments of error have
been rendered moot and we do not address them. Accordingly, Appellant’s
plea, conviction and sentence are vacated, and this matter is remanded to the
trial court for further proceedings consistent with this opinion.
FACTS
{¶3} This matter comes to us on appeal after the Pickaway County
Court of Common Pleas convicted and sentenced Appellant, Leslie Cline, on
one fifth degree felony count of trafficking in heroin, after he pled guilty to
that charge on December 19, 2012. The facts are as follows, as agreed upon
by the parties on appeal:
“A Pickaway County Grand Jury indicted Mr. Cline on one
count of trafficking in heroin, in violation of R.C. 2925.03(C),
based on the allegation that he sold four balls of heroin for $80.
Pickaway App. No. 13CA7 3
On December 19, 2012, the trial court held a plea hearing.
Prior to accepting Mr. Cline’s guilty plea to the sole count of
trafficking in heroin, a fifth-degree felony, the following
exchange occurred between the trial court and Mr. Cline:
‘THE COURT: You understand by pleading guilty,
you’re giving up your right to have a jury trial and your
right to make the State of Ohio provide [sic] you guilty
beyond a reasonable doubt, twelve people from Pickaway
County. If you plead guilty, you’re admitting the truth of
the allegations contained in this charge, and as a result of
your conviction and sentence upon your release from
prison, you’re subject to the possibility of post release
control for three years, which is like what we used to call
parole. It’s not mandatory in this case, but it’s possible.
If that happens there will be rules and regulations
concerning your conduct, you’ll have a parole officer
monitoring you, if you violate those rules and
regulations, they can make you go back to prison for up
to nine months on each violation. Legally, the violations
can total up to one-half of the original sentence I give to
Pickaway App. No. 13CA7 4
you, which even if I gave you the maximum would be
half of twelve is six. That’s not a big deal. More
importantly is, if you get convicted of a new felony while
on post release control, you can be made to return to
prison under this case to serve the greater of one year or
time remaining on post release control, which could be
up to three years. And, by law, that has to be served
consecutive, which means back-to-back with any
sentence you receive due to that new felony conviction.
THE DEFENDANT: I understand, Your Honor.
THE COURT: Any questions about your rights?
THE DEFENDANT: Not about my rights. No, Your
Honor.’
Following this exchange, the trial court accepted Mr. Cline’s
guilty plea to the sole count of trafficking in heroin.
The trial court held Mr. Cline’s sentencing hearing on
March 13, 2013. The State recommended that the court
sentence Mr. Cline to eight-months incarceration. Through his
defense attorney, Mr. Cline requested that the court order any
prison sentence imposed in this case to run concurrently to the
Pickaway App. No. 13CA7 5
nine-month prison sentence Mr. Cline received in Shelby
County Case No. 12CR000002.1 In response, the trial court
stated ‘There’s no way. I don’t even know how to spell
concurrent.’ Mr. Cline pointed out that despite his criminal
history, he had never before served a prison sentence, to which
the court replied:
‘Well, you’re lucky. Because people probably kept
doing what you’re asking me to do, have pity on you or
whatever. Well, you’re getting a little bit old for this too.
You’re younger than I am, but at 53 years of age I’d
think you’d knock this off.
For this offense it will be the order of the court that you
stand committed to the correction reception center for a
period of nine months, pay the court costs, your driver’s
license suspended six months, and that sentence is
consecutive to the one you’re currently serving from
Shelby County. That’s all.’ ”
{¶4} The trial court filed an entry of sentence and advisement of
discretionary post release control on March 15, 2013. Appellant filed a pro
1
Mr. Cline pleaded guilty to one fifth degree felony count of possession of criminal tools, in violation of
R.C. 2923.24, and on January 16, 2013, was sentenced to twelve months in prison. Jan. 16, 2013 Judgment
Entry on Community Control, Shelby Co. Case No. 12CR000002.
Pickaway App. No. 13CA7 6
se motion for leave to file a delayed appeal on May 14, 2013, which this
Court granted. Thus, this matter is now properly before us on review,
Appellant having raised three assignments of error as follows.
ASSIGNMENTS OF ERROR
“I. MR. CLINE WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS
UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND SECTION 10, ARTICLE I OF
THE OHIO CONSTITUTION WHEN THE TRIAL COURT
ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND
INVOLUNTARY GUILTY PLEA.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
SENTENCED MR. CLINE TO CONSECUTIVE PRISON TERMS
WITHOUT MAKING THE FINDINGS NECESSARY TO IMPOSE
CONSECUTIVE PRISON TERMS UNDER R.C. 2929.14.
III. TRIAL COUNSEL PROVIDED CONSTITUTIONALLY
INEFFECTIVE ASSISTANCE WHEN HE FAILED TO OBJECT
TO THE TRIAL COURT’S INSUFFICIENT PLEA COLLOQUY
AND ERRONEOUS IMPOSITION OF CONSECUTIVE
SENTENCES.”
ASSIGNMENT OF ERROR I
{¶5} In his first assignment of error, Appellant contends that he was
deprived of his right to due process under both the federal and state
constitutions when the trial court accepted an unknowing, unintelligent, and
involuntary guilty plea. The State candidly concedes in its brief that the trial
court failed to advise Appellant that by pleading guilty he was waiving his
Pickaway App. No. 13CA7 7
constitutional rights to confront his accusers, compulsory process to obtain
witnesses, and his privilege against self incrimination.
{¶6} The ultimate inquiry when reviewing a trial court's acceptance
of a guilty plea is whether the defendant entered the plea in a knowing,
intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 7; citing State v. Engle, 74 Ohio St.3d
525, 527, 660 N.E.2d 450 (1996). A defendant enters a plea in a knowing,
intelligent, and voluntary manner when the trial court fully advises the
defendant of all the constitutional and procedural protections set forth in
Crim.R. 11(C) that a guilty plea waives. See State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; citing Engle at 527; State v.
Eckler, 4th Dist. Adams No. 09CA878, 2009-Ohio-7064, ¶ 48. Thus, when a
court reviews a trial court's acceptance of a guilty plea, it must
independently review the record to ensure that the trial court followed the
dictates of Crim.R. 11(C). See State v. Kelley, 57 Ohio St.3d 127, 128, 566
N.E.2d 658 (1991) (“When a trial court or appellate court is reviewing a plea
submitted by a defendant, its focus should be on whether the dictates of
Crim.R. 11(C) have been followed.”); Eckler at ¶ 48 (noting that standard of
review is de novo); State v. Hamilton, 4th Dist. Hocking No. 05CA4, 2005-
Pickaway App. No. 13CA7 8
Ohio-5450, ¶ 9; see, also, State v. Gilmore, 8th Dist. Cuyahoga Nos. 92106-
92109, 2009-Ohio-4230, ¶ 12.
{¶7} Crim.R. 11(C)(2)(a)-(c) sets forth the process a trial court must
follow before accepting a guilty plea. The rule prohibits a trial court from
accepting a guilty plea unless the court personally addresses the defendant
and (1) determines “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[;]” (2) informs “the defendant of and determin[es] 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[;]”
and (3) informs “the defendant and determin[es] 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} When a trial court engages in a plea colloquy with the
defendant, it must strictly comply with Crim.R. 11(C)(2)(c), which sets forth
Pickaway App. No. 13CA7 9
the constitutional rights a guilty plea waives. Thus, the trial court must
explain to the defendant, either literally or in a reasonably intelligible
manner, that a guilty 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. Veney at
syllabus and ¶¶ 18, 27 (stating that trial court must literally comply with
Crim.R. 11(C)(2)(c), but its failure to do so will not invalidate a plea when
the trial court adequately conveys the information to the defendant in a
reasonably intelligible manner). Failure to do so renders the plea invalid. Id.
at syllabus.
{¶9} “The best way to ensure that pleas are entered knowingly and
voluntarily is to simply follow the requirements of Crim.R. 11 when
deciding whether to accept a plea * * *.” Clark at ¶ 29; see, also, State v.
Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981) (stating that “the
best method of informing a defendant of his constitutional rights is to use the
language contained in Crim.R. 11(C), stopping after each right and asking
the defendant whether he understands the right and knows that he is waiving
it by pleading guilty”). Thus, “ ‘[l]iteral compliance with Crim.R. 11, in all
respects, remains preferable to inexact plea hearing recitations.’ ” Clark at ¶
Pickaway App. No. 13CA7 10
29; quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814
N.E.2d 51, ¶ 19, fn.2.
{¶10} However, “a rote recitation of Crim.R. 11(C) is not required,
and failure to use the exact language of the rule is not fatal to the plea.”
Ballard at 480. Instead, the trial court need only “explain[ ] or refer[ ]” to
the Crim.R. 11(C) protections “in a manner reasonably intelligible to that
defendant.” Id.; see, also, Veney at ¶ 27 (stating that “a trial court can still
convey the requisite information on constitutional rights to the defendant
even when the court does not provide a word-for-word recitation of the
criminal rule, so long as the trial court actually explains the rights to the
defendant”). Thus, a reviewing court should not invalidate a plea merely
because a trial court did not engage in a “formalistic litany of constitutional
rights.” Ballard at 480.
{¶11} The case sub judice is not one which involves the question of
whether the specific language used by the trial court adequately conveyed to
Appellant the rights in which he was waiving by pleading guilty. Rather, as
argued by Appellant and conceded by the State, this case involves a situation
where the trial court completely failed to inform Appellant of certain
constitutional rights during the on-the-record colloquy, which is required by
Crim.R. 11(C)(2)(c). As set forth above, the trial court’s advisement of the
Pickaway App. No. 13CA7 11
constitutional rights Appellant was waiving during the colloquy consisted of
the following:
“You understand by pleading guilty, you’re giving up your
right to have a jury trial and your right to make the State of
Ohio provide [sic] you guilty beyond a reasonable doubt,
twelve people from Pickaway County.”
Thus, the trial court completely failed to inform Appellant that he was
waiving his constitutional rights to confront his accusers, compulsory
process to obtain witnesses, and his privilege against self incrimination.
{¶12} As set forth above, strict compliance with the requirements of
Crim.R. 11(C)(2)(c) is required. State v. Veney at ¶ 18. As such, the trial
court was required to advise Appellant of the right to a jury trial, the right to
confront his accusers, the privilege against compulsory self incrimination,
the right to compulsory process to obtain witnesses, and the right to require
the State to prove his guilt beyond a reasonable doubt. Id. The Supreme
Court of Ohio in Veney found that the failure to mention one of these rights
results in the plea being “constitutionally infirm” and thus “presumptively
invalid.” Id. at ¶¶ 26, 29; see, also State v. Pigge, 4th Dist. Ross No.
09CA3136, 2010-Ohio-6541, ¶ 18.
Pickaway App. No. 13CA7 12
{¶13} Because the trial court failed to advise Appellant that he was
waiving his constitutional rights to confront his accusers, compulsory
process to obtain witnesses, and his privilege against self incrimination,
upon accepting his plea of guilt, Appellant’s plea is constitutionally infirm
and, as a result, presumptively invalid. Thus, Appellant’s first assignment of
error is sustained. Accordingly, Appellant’s plea must be vacated and this
matter is remanded to the trial court for further proceedings consistent with
this opinion.
ASSIGNMENTS OF ERROR II AND III
{¶14} In light of our disposition of Appellant’s first assignment of
error, which vacated Appellant’s plea and remanded this matter to the trial
court for further proceedings, the arguments raised under Appellant’s second
and third assignments of error have been rendered moot. Thus, we do not
address them.
JUDGMENT VACATED
AND REMANDED.
Pickaway App. No. 13CA7 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE VACATED AND REMANDED and
Appellant recover costs from Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
State v. Cline
Combined Opinion