[Cite as State v. Smith, 2014-Ohio-2990.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
ROY G. SMITH : Case No. 13-CA-44
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12 CR 00142
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: July 2, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRACY F. VAN WINKLE WILLIAM T. CRAMER
20 South Second Street 470 Olde Worthington Road
4th Floor Suite 200
Newark, OH 43055 Westerville, OH 43082
Licking County, Case No. 13-CA-44 2
Farmer, J.
{¶1} On March 16, 2012, the Licking County Grand Jury indicted appellant, Roy
Smith, on four counts of rape in violation of R.C. 2907.02(A)(1)(b) as the victim was less
than thirteen years of age. On August 9, 2012, appellant pled no contest to four counts
of forcible rape in violation of R.C. 2907.02(A)(2). The trial court found appellant guilty.
By judgment entry filed August 9, 2012, the trial court sentenced appellant to an
aggregate term of fourteen years in prison.
{¶2} Appellant filed a motion for leave to file a delayed appeal which was
granted, and this matter is now before this court for consideration. Assignments of error
are as follows:
I
{¶3} "THE TRIAL COURT VIOLATED R.C. 2929.19(B)(2)(a) BY FAILING TO
NOTIFY APPELLANT DURING THE SENTENCING HEARING THAT THE PRISON
TERMS WERE MANDATORY."
II
{¶4} "THE TRIAL COURT VIOLATED APPELLANT'S STATE AND FEDERAL
CONSTITUTIONAL RIGHTS, AND CRIM.R. 11(C)(2)(a), BY FAILING TO ENSURE
THAT APPELLANT UNDERSTOOD THAT HIS ENTIRE SENTENCE WOULD BE
MANDATORY WHEN HE ENTERED A NO-CONTEST PLEA."
I, II
{¶5} Appellant claims the trial court failed to notify him that the prison terms
were mandatory and as a result, his plea was not made knowingly, intelligently, and
voluntarily. We agree.
Licking County, Case No. 13-CA-44 3
{¶6} Crim.R. 11 governs the process of entering a plea. Subsection (C)
provides the following in pertinent part:
(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:
(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.
{¶7} In accepting a no contest plea, a trial court must substantially comply with
Crim.R. 11. State v. Nero, 56 Ohio St.3d 106 (1990). Under substantial compliance, a
"slight deviation" 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.' " State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31, quoting
Nero, supra, at 108. Substantial compliance with Crim.R. 11(C) is determined upon a
review of the totality of the circumstances. State v. Carter, 60 Ohio St.2d 34 (1979). In
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12, the Supreme Court of Ohio
explained the following:
Licking County, Case No. 13-CA-44 4
The right to be informed that a guilty plea is a complete admission
of guilt is nonconstitutional and therefore is subject to review under a
standard of substantial compliance. State v. Nero, 56 Ohio St.3d at 107,
564 N.E.2d 474. Though failure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a presumption that
it was entered involuntarily and unknowingly, failure to comply with
nonconstitutional rights will not invalidate a plea unless the defendant
thereby suffered prejudice. Id. at 108, 564 N.E.2d 474. The test for
prejudice is "whether the plea would have otherwise been made." Id.
{¶8} R.C. 2929.19 governs sentencing hearings. Subsection (B)(2)(a) states:
"Subject to division (B)(3) of this section, if the sentencing court determines at the
sentencing hearing that a prison term is necessary or required, the court
shall***[i]mpose a stated prison term and, if the court imposes a mandatory prison term,
notify the offender that the prison term is a mandatory prison term."
{¶9} During the Crim.R. 11 colloquy, the following exchange occurred between
the trial court and appellant (T. at 12-14):
Q. Do you understand, Mr. Smith, that should the Court permit you
to change your pleas and should the Court then enter guilty findings,
generally all that would remain to be done is to proceed with sentencing;
and the maximum sentence for these four counts, as amended, would
consist of a term of 40 years in the state penitentiary, an $80,000 fine, five
Licking County, Case No. 13-CA-44 5
years of mandatory post-release control, and classification as a Tier III
sexual offender, which I believe would require your registration for the rest
of your life for every 90 days? Do you understand that?
A. Yes, sir.
Q. Do you understand that's the maximum possible penalty you
could receive in this case?
A. Yes, sir.
Q. Do you understand that's the maximum amount of time you
could be required to serve at a state penitentiary without any type of credit
for good behavior?
A. Yes, sir.
Q. Do you understand, Mr. Smith, that if you were to be sentenced
to the penitentiary, released early pursuant to judicial release and placed
on community control, that if you were to violate the terms of community
control you'd be subject to being returned to the penitentiary for the
balance of your sentence?
A. Yes, sir.
Q. Do you understand that this offense carries a term of mandatory
incarceration, as a result of which, both, you're not eligible for judicial
release during any mandatory period of incarceration and you could not be
sentenced to community control directly? Do you understand that?
A. Yes, sir.
Licking County, Case No. 13-CA-44 6
{¶10} In the plea form filed August 9, 2012, it states: "I understand the
MAXIMUM sentence is a basic prison term of 40 years of which 3 yrs is mandatory. I
am not eligible for judicial release during the mandatory imprisonment." Also, "I
understand that based on this charge I am not eligible for community control or judicial
release. If I am eligible for it and am sentenced to community control and if I violate any
of the conditions imposed, I can be given a longer period under court control, greater
restrictions or a prison term of 5 years."
{¶11} While the trial court informed appellant that "this offense carries a term of
mandatory incarceration," the trial court did not notify appellant of the number of years
that were mandatory. Pursuant to the plea form, appellant was informed that only three
years of the potential forty year sentence were mandatory, thereby precluding judicial
release during those three years. However, all fourteen years of appellant's sentence
are mandatory. R.C. 2929.13(F)(2). Moreover, the notifications as to judicial release
and community control were confusing. While the plea form indicated appellant was not
eligible for either, the form goes on to explain the consequences for violating community
control "[i]f I am eligible for it and am sentenced to community control." During the plea
colloquy, the trial court informed appellant that "if you were to be sentenced to the
penitentiary, released early pursuant to judicial release and placed on community
control, that if you were to violate the terms of community control you'd be subject to
being returned to the penitentiary for the balance of your sentence." T. at 13. It is
plausible that appellant could have subjectively understood that three years were
mandatory, after which he could be released on judicial release and placed on
community control.
Licking County, Case No. 13-CA-44 7
{¶12} Based upon the totality of the circumstances, at the time appellant pled no
contest, he was unaware of the amount of mandatory prison time, and that he would be
ineligible for judicial release or community control for the entire fourteen year term. Had
appellant known, he may not have pled no contest to the four counts.
{¶13} Upon review, we find appellant's no contest pleas were not made
knowingly, intelligently, and voluntarily, and prejudicial error occurred in accepting said
pleas.
{¶14} Assignments of Error I and II are granted.
{¶15} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby reversed, and the matter is remanded to said court for further proceedings.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/sg 612
[Cite as State v. Smith, 2014-Ohio-2990.]