[Cite as State v. Richardson, 2014-Ohio-2984.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100838
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BERNARD RICHARDSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-570825-A
BEFORE: Boyle, A.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jesse Canonico
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44115
Also listed:
Bernard Richardson
Inmate No. A650955
Marion Correctional Institution
940 Williamsport Road, E.
Marion, Ohio 43302
MARY J. BOYLE, A.J.:
{¶1} Defendant-appellant, Bernard Richardson, appeals from a judgment
convicting him of involuntary manslaughter and aggravated robbery and sentencing him
to 20 years in prison. Richardson’s appointed appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and requested
leave to withdraw as counsel.
{¶2} In Anders, the United States Supreme Court held that if appointed counsel,
after a conscientious examination of the case, determines the appeal to be wholly
frivolous, he or she should advise the court of that fact and request permission to
withdraw. Anders at 744. This request, however, must be accompanied by a brief
identifying anything in the record that could arguably support the appeal. Id. Further,
counsel must also furnish the client with a copy of the brief, and allow the client
sufficient time to file his or her own brief. Id. In this case, appointed counsel fully
complied with the requirements of Anders.
{¶3} On April 8, 2014, this court ordered appointed counsel’s motion be held in
abeyance pending our independent review of the case. We further notified Richardson
that he had until May 23, 2014, to file his own appellate brief, but Richardson did not do
so.
{¶4} Richardson’s appointed counsel states in his Anders brief that he
extensively reviewed the record, including the transcript of the proceedings, and
concluded that there are no meritorious arguments that he could make on Richardson’s
behalf. In compliance with Anders, appointed counsel has submitted the following
potential assignment of error:
The trial court abused its discretion in failing to inform appellant of the
consequences of his plea pursuant to Crim.R. 11.
{¶5} After conducting an independent review of Richardson’s case, we affirm
the trial court’s judgment and grant appointed counsel’s motion to withdraw.
Procedural History and Factual Background
{¶6} In January 2013, Richardson and an accomplice went into a store with the
intent to rob it. During the robbery, the store owner was shot and killed. An employee
of the store, who witnessed the robbery, later identified Richardson as the person who
“provided cover for the shooter as the robbery was taking place.” Although Richardson
was not the actual shooter, he later admitted that he planned the robbery.
{¶7} Richardson was indicted on eights counts, including two counts of
aggravated murder, and one count each of aggravated robbery, kidnapping, murder,
robbery, felonious assault, and having a weapon while under a disability. All of the
counts (except the weapon disability count) carried one- and three-year firearm
specifications. Richardson pleaded not guilty to all charges.
{¶8} On day two of Richardson’s jury trial, in the middle of jury selection, the
state brought a matter to the trial court’s attention. After proceedings had been
completed the previous day, Richardson made a phone call to his wife from jail. The
phone call was recorded. The state indicated to the trial court that it had reviewed the
recording, and provided a copy of it to Richardson’s defense counsel. The state
explained that in the recording, Richardson told his wife that one of the state’s witnesses
would be harmful to his case. Richardson asked his wife to prevent this witness from
appearing in court and testifying against him. The state indicated that it would introduce
the recording at trial. Defense counsel objected to the state’s introduction of the
recording based on spousal immunity.
{¶9} The trial court ruled that the recording would not be barred by spousal
immunity because it would not be introduced through Richardson’s wife’s testimony, but
through a police officer authenticating the recording. The trial court further indicated
that the recording was not hearsay because Richardson’s statements on the recording were
statements against his own interest. Thus, the trial court stated that it would overrule
defense counsel’s objection at trial and allow the recording to be played for the jury.
{¶10} At that point, the state and defense counsel informed the trial court that a
plea agreement had been reached. Richardson withdrew his former plea of not guilty and
pleaded guilty to amended Count 1 of involuntary manslaughter and Count 3, aggravated
robbery, as well as the one- and three-year firearm specifications attached to each count.
The remaining counts against Richardson were nolled.
{¶11} At the plea hearing, the state informed the court that all of the firearm
specifications would merge. The state also informed the court that as part of the plea,
Richardson agreed that the involuntary manslaughter and aggravated robbery counts were
not allied offenses of similar import and, thus, would not merge for purposes of
sentencing. The state further indicated that as part of the plea negotiation, it would not
pursue additional charges against Richardson or his wife for potential witness tampering.
{¶12} During the trial court’s plea colloquy with Richardson, Richardson indicated
that he was 24 years old, attended high school until 11th grade, was not under the
influence of any substance that would cause him to not understand the proceedings, and
that he was an American citizen. Richardson also told the court that no threats or
promises had been made to him to get him to change his plea.
{¶13} The trial court then asked Richardson if he was presently on community
control sanctions or probation for another case. Richardson informed the court that he
was; defense counsel explained that it was for federal court. The trial court stated:
Now, do you understand that by entering the plea here today, that may have
some impact on your probation with the federal charges but I don’t have
any control of that. I just want to make sure that you understand that there
may be some ramifications to the federal case as a result of entering the
plea. Do you understand that?
{¶14} Richardson stated that he understood. Richardson further stated that he was
not on probation or parole for any other case, that he discussed the facts of his case with
his defense counsel, and that he was satisfied with his counsel’s representation. The trial
court then informed Richardson of his constitutional rights that he was waiving by
entering into the plea and ensured that Richardson understood each right and that he was
waiving that right.
{¶15} Finally, the trial court informed Richardson of the nature of the charges
against him, and the maximum penalty he faced for each charge and specification. The
trial court also informed Richardson that he would be subject to a mandatory term of five
years of postrelease control upon his release from prison, and informed him of the
consequences that he would face if he violated the terms of his postrelease control.
{¶16} At the conclusion of the plea hearing, the trial court accepted Richardson’s
guilty pleas, finding them to be knowingly, intelligently, and voluntarily made. The trial
court then found Richardson guilty of involuntary manslaughter and aggravated robbery
with the firearm specifications attached to each charge.
{¶17} The trial court held a sentencing hearing at a later date so that a presentence
investigation report could be completed. At the sentencing hearing, the trial court heard
from the state, the victim’s family members, defense counsel, Richardson, and
Richardson’s family members. The trial court also reviewed Richardson’s adult and
juvenile criminal history.
{¶18} The trial court sentenced Richardson to a total of 20 years in prison: three
years for the firearm specifications to be served prior to and consecutive to all other
terms, seven years for involuntary manslaughter, and ten years for aggravated robbery,
with the aggravated robbery count to be served consecutive to the involuntary
manslaughter count. In sentencing Richardson to consecutive sentences, the trial court
fully complied with R.C. 2929.14(C)(4). The trial court further advised Richardson that
he would be subject to five years of postrelease control upon his release from prison and
informed Richardson of the consequences of violating the conditions of his postrelease
control. It is from this judgment that Richardson now appeals.
Crim.R. 11
{¶19} In the sole potential assignment of error, appointed counsel maintains that it
could be argued that because the trial court did not give Richardson the full consequences
of his guilty plea as it relates to his federal probation, that Richardson did not enter into
his plea knowingly, intelligently, or voluntarily.
{¶20} In a felony case, under Crim.R. 11(C)(2):
[T]he 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.
(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 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.
{¶21} A trial court must strictly comply with the Crim.R. 11(C)(2) requirements
regarding the waiver of constitutional rights, which means that the court must actually
inform the defendant of the constitutional rights he is waiving and make sure the
defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 18, 27.
{¶22} For nonconstitutional rights, such as the right to be informed of the
maximum possible penalty, “substantial compliance” is sufficient. Id. at ¶ 14, citing
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶23} 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. State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). Further, a
defendant who challenges his guilty plea on the basis that it was not knowingly,
intelligently, and voluntarily made must show a prejudicial effect. Stewart at 93;
Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id.
{¶24} A reviewing court will not vacate a guilty plea if it determines that the trial
court substantially complied with Crim.R. 11(C). State v. Harris, 8th Dist. Cuyahoga
No. 71897, 1997 Ohio App. LEXIS 5539 (Dec. 11, 1997).
{¶25} Appointed counsel maintains that it could be argued that the trial court did
not fully explain to Richardson the effect of his plea because he did not specifically tell
him what the exact consequences of violating his federal probation would be. Informing
a defendant of the effect of his or her plea is a nonconstitutional right and, therefore, is
subject to review for substantial compliance rather than strict compliance. State v.
Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11-12.
{¶26} Here, the trial court asked Richardson if he was presently on community
control sanctions or probation for another case. After Richardson said that he was,
defense counsel explained that it was for federal court. The trial court then asked
Richardson if he understood that by entering the plea, it may have some impact on his
federal probation. The trial court explained to Richardson that it had no control over his
federal probation, and told Richardson again, “there may be some ramifications to the
federal case as a result of entering the plea.” The trial court asked Richardson again if he
understood that; Richardson replied that he did.
{¶27} We find that the trial court’s advisement was sufficient to adequately inform
Richardson that by his entering into the guilty plea, that it could adversely affect his
federal probation. The trial court substantially complied with Crim.R. 11. Accordingly,
we agree with appointed counsel that this argument lacks merit.
{¶28} Further, we have independently examined the record as required by Anders,
and have found no error prejudicial to Richardson. We therefore conclude that this
appeal is wholly frivolous and grant appointed counsel’s motion to withdraw.
{¶29} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
State v. Richardson
Combined Opinion