[Cite as State v. Green, 2012-Ohio-1941.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96966
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DANIEL GREEN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545667
BEFORE: Sweeney, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: May 3, 2012
FOR APPELLANT
Daniel Green, Pro Se
No. 601-874
North Central Correctional Institution
P.O. Box 1812
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Brent C. Kirvel, Esq.
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant, Daniel Green, appeals following his conviction and
sentence on one count of sexual battery. For the reasons that follow, we affirm.
{¶2} Defendant was charged with the following offenses: two counts of rape in
violation of R.C. 2907.02(A)(2); two counts of sexual battery in violation of R.C.
2907.029(A)(2); two counts of sexual battery in violation of R.C. 2907.03(A)(1); two
counts of sexual battery in violation of R.C. 2907.03(A)(9); two counts of gross sexual
imposition in violation of R.C. 2907.05(A)(1); and two counts of kidnapping in violation
of R.C. 2905.01(A)(4). Every count contained either a sexually violent predator
specification or a sexual motivation specification.
{¶3} On February 28, 2011, the trial court held a hearing where the state reviewed
the charges and specifications, potential penalties for each, and the plea offer. The trial
judge advised defendant “[i]f you’d like to have a trial, I am happy to do that. That is your
right and if you would like to exercise that right, I certainly will go ahead with the trial.”
The trial court explained its reason for reviewing the charges, potential penalties, and plea
offers on the record was “to give [defendant] the opportunity to hear what you’re facing as
charged and what you’re facing should you enter the plea bargain.” The court explained
that defendant had “to decide what’s best for [him] * * * like a cost benefits analysis or
risk benefit analysis * * * what [his] risk is if [he] should have a trial and what [his] risk or
exposure is if [he] should enter a plea.” The court acknowledged that defendant could be
found not guilty at trial.
{¶4} Defendant was advised of the potential penalties he faced if convicted of all
counts and specifications in the indictment. He was informed that he faced a potential
sentence of at least sixty years. Defendant was further informed that if he was convicted
of the sexually violent predator specifications, the parole board would have discretion to
deny him parole for life. Defendant indicated that he understood.
{¶5} The trial court advised, “I have no idea what the evidence is, how it would
come out, whether you would be found guilty or not guilty. That’s something for the jury
to decide.”
{¶6} The state proceeded to place the plea offer on the record. The state was
willing to accept a guilty plea on one count of sexual battery without any specifications. In
exchange, all remaining counts and specifications would be dismissed.
{¶7} The trial court explained that the plea offer reduced defendant’s potential
penalty to a probationable third degree felony. Defendant was advised that he would no
longer face a potential additional ten years or the life tail with the parole board because the
sexual violent predator specification would be removed. Defendant was told his potential
penalty under the plea agreement “would be anywhere from a probationable offense, one
to five years in prison” with “a tier three registration.”1
The tier three registration related the statutory registration and reporting
1
requirements involved with a sexual offense conviction.
{¶8} On February 28, 2011, defendant indicated his desire to proceed with a trial
with the explicit understanding that above-referenced plea offer would no longer be
available to him. At that point, the trial court addressed defendant’s speedy trial rights.
Defendant executed a waiver of speedy trial through May 4, 2011.
{¶9} Another hearing was held on April 4, 2011 where defendant expressed his
desire to enter a guilty plea. Defendant pled guilty to one count of sexual battery, a third
degree felony, and all other specifications and charges were dismissed.
{¶10} Defendant subsequently filed a motion to withdraw his guilty plea that the
trial court denied after holding a hearing. Defendant also filed a motion to disqualify his
counsel that was also denied after a hearing. The trial court held a sentencing hearing and
ordered defendant to serve a four year prison sentence. Defendant was advised of
additional penalties and consequences including postrelease control as well as registration
and reporting requirements implicated by his conviction.
{¶11} Defendant assigns five errors for our review.
{¶12} “Assignment of Error No. I: The trial court’s participation in the plea
bargain process rendered the proceedings fundamentally unfair as to deny Appellant due
process of law.”
{¶13} “A trial judge’s participation in the plea bargaining process will be
carefully scrutinized to determine if it affected the voluntariness of the defendant’s plea.”
State v. Byrd, 63 Ohio St.2d 288, 407 N.E.2d 1384 (1980) syllabus.
{¶14} The Ohio Supreme Court determined from the record facts in Byrd that “the
judge’s conduct in all probability led appellant to believe he could not get a fair trial.” Id.
at 294. In Byrd, the judge solicited private meetings with the defendant’s mother and
sister and encouraged them to pressure Byrd to enter a guilty plea. The mother and sister
said that the judge told them defendant would most likely get “the chair” if he went to
trial. After speaking with his relatives, Byrd met with the judge in chambers and without
legal representation where he was further pressured to enter a guilty plea by the judge.
“The judge took a very active role in arranging the plea bargain. In essence, he negotiated
with the assistant prosecuting attorney.” Id. at 290. The judge told Byrd he thought the
plea was “a pretty good deal.” Id. “[T]he judge enlisted Lt. Coney’s aid in his efforts to
persuade Byrd to enter a plea. Coney was admittedly a friend of Byrd’s family. It is
apparent from the transcript that Coney, on the judge’s request, had pressured Byrd to
enter a plea prior to the meeting as well.” Id. In addition, Byrd suffered from a
methadone addiction and he was not given an opportunity to discuss the judge’s remarks
with counsel. The Ohio Supreme Court found both factors exacerbated the coercive effect
of the judge’s involvement. Id.
{¶15} In this case, the trial court never expressed an attitude about defendant’s
guilt prior to him entering a guilty plea. Quite the opposite, the trial court noted that
defendant could be found not guilty at trial. The court stated “I have no idea what the
evidence is, how it would come out, whether you would be found guilty or not guilty.
That’s something for the jury to decide.”
{¶16} Defendant cites to portions of the record where the trial court explained the
potential penalties that he faced on the various counts of the indictment. The trial court
inquired if defendant understood them. Defendant maintains this colloquy led him to
believe he could not receive a fair trial. The transcript, however, does not support this
view. Defendant was informed of the significant time he faced if convicted, which he
agreed was “in essence a life sentence.” Defendant does not indicate that this advice was
inaccurate or wrong.
{¶17} Defendant’s claims of coercion are further undermined by the fact he, in
fact, rejected the plea offer on the record. The trial court accepted defendant’s decision
and began preparations for trial. Although the February 28, 2011 transcript of
proceedings indicated that the plea offer was to expire that day, defendant was apparently
still able to enter the same guilty plea in April of that year.
{¶18} The trial court did not take an active role in the plea bargain at all. The
transcript reflects that the trial court merely had the state place the terms of the plea offer
on the record. The court explained its reasons for doing so was to ensure that defendant
made an informed decision to proceed to trial.
{¶19} This is not only permissible but a good practice in light of recent authority
that recognizes the critical role plea negotiations play in criminal proceedings. See
Missouri v. Frye, U.S. , S.Ct. , L.Ed.2d , 2012 WL
932020 (U.S. 2012) (counsel was deficient in failing to communicate to defendant written
plea offer before it expired). In Frye, the United States Supreme Court observed that
“formal offers can be made part of the record at any subsequent plea proceeding or before
a trial on the merits, all to ensure that a defendant has been fully advised before those
further proceedings commence.” Id.
{¶20} The transcript reflects that the trial court made the state’s formal plea offer
part of the record and nothing more. Accordingly, this assignment of error is overruled.
{¶21} “Assignment of Error No. II: The Appellee engaged in intentional
misconduct calculated to goad Appellant into entering his initial guilty plea.”
{¶22} “Assignment of Error No. III: Appellant was denied the effective assistance
of counsel in violation of his Sixth Amendment Right to counsel and his Fourteenth
Amendment Right to due process.”
{¶23} Defendant contends that the indictment improperly charged him with
sexually violent predator specifications when he had no prior conviction for a sexually
violent of offense. He contends this constituted both intentional misconduct on the part of
the state as a means of leveraging him into a guilty plea and that his counsel was deficient
by allowing him to enter a guilty plea without challenging it.
{¶24} Defendant relies on State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238,
818 N.E.2d 283, in support of his position. In Smith, the court held that a “conviction of a
sexually violent offense cannot support the specification that the offender is a sexually
violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction
and the sexually violent predator specification are charged in the same indictment.” Id. at
syllabus. However, in reaching this conclusion the court was interpreting a prior version
of R.C. 2971.01(H)(1).2 The General Assembly subsequently amended the statute with
the purpose of clarifying “‘that the Sexually Violent Predator Sentencing Law does not
require that an offender have a prior conviction of a sexually violent offense in order to be
sentenced under that law.’” State v. Wagers, 12th Dist. No. CA2009-06-018,
2010-Ohio-2311, ¶ 30, quoting, 2004 Ohio Laws File 163 (Am.Sub.H.B. 473); see also
State v. Hardges, 9th Dist. No. 24175, 2008-Ohio-5567, ¶ 50. Courts have construed the
present version of the law to supersede Smith and permit the specification to apply to
first-time offenders being charged with a sexually violent offense in the same indictment.
Id.
{¶25} Given the revisions to the statute and the General Assembly’s explicit
purposes in enacting them, defendant’s reliance on Smith is misplaced. The present law
allows for the inclusion of a sexually violent predator specification in the indictment of
one being charged for the first time with a sexually violent offense. Accordingly, the state
did not engage in any intentional misconduct concerning the inclusion of the sexually
violent predator specifications in defendant’s indictment nor did defense counsel render
2
“Prior to April 29, 2005, R.C. 2971[.01](H)(1), defined a sexually violent
predator as ‘a person who has been convicted of or pleaded guilty to committing, on
or after January 1, 1997, a sexually violent offense and is likely to engage in the
future in one or more sexually violent offenses.’” State v. Wagers, 12th Dist. No.
CA2009-06-018, 2010-Ohio-2311, ¶ 28. The current version of the statute provides:
“‘Sexually violent predator’ means a person who, on or after January 1, 1997,
commits a sexually violent offense and is likely to engage in the future in one or
more sexually violent offenses.” R.C. 2971.01(H)(1), emphasis added.
ineffective assistance of counsel regarding them. These assignments of error are
overruled.
{¶26} “Assignment of Error IV: The trial court erred resulting in prejudice to
Appellant by accepting his plea without first addressing him personally and informing him
a guilty plea is a complete admission of guilt.”
{¶27} Defendant alleges that he did not understand his guilty plea was a complete
admission of guilt. This relates to a non-constitutional right, which implicates a standard
of review as to whether the trial court substantially complied with Crim.R. 11. State v.
Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990).
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. [Nero, 56 Ohio St.3d], at 108, 564 N.E.2d 474. The test for
prejudice is “whether the plea would have otherwise been made.” Id. Under
the substantial-compliance standard, we review the totality of circumstances
surrounding [defendant’s] plea and determine whether he subjectively
understood that a guilty plea is a complete admission of guilt. Id.
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. The record here
indicates that defendant understood his guilty plea was a complete admission of guilt.
{¶28} The court reviewed the various constitutional rights that defendant was
giving up by entering the guilty plea, including his right to counsel, to subpoena and
cross-examine witnesses, to have the state prove his guilt beyond a reasonable doubt, and
the right to remain silent and not testify.
{¶29} The discovery produced to the defense included video surveillance
showing defendant and the fourteen year old victim entering a room in the municipal
recreation center together where they stayed for a period of time. Scientific testing
identified the presence of defendant’s and the victim’s seminal fluid. Further, the record
indicates that defendant voluntarily submitted to a lie detector test, which he failed.
{¶30} One who enters a guilty plea without asserting actual innocence is
presumed to understand he has completely admitted his guilt. Id. at ¶ 19. At no time
during the guilty plea proceedings did the defendant assert actual innocence. The record
demonstrates that defendant understood that by entering his guilty plea, he was admitting
to committing sexual battery. This assignment of error is overruled.
{¶31} “Assignment of Error V: The trial court erred resulting in prejudice to
Appellant when it imposed four years near the maximum sentence for a first time offender
in violation of due process clause to the State and Federal Constitutions.”
{¶32} Defendant asserts that his four year prison term is contrary to law because
he is a first-time offender and the sentence is at the high end of the sentencing range for
his conviction. Defendant generally asserts that amendments to Ohio’s sentencing law,
which took effect on September 30, 2011, render his sentence contrary to law. They do
not. The current version of the law provides that the sentencing range for felonies of the
third degree includes a prison term anywhere from “twelve, eighteen, twenty-four, thirty,
thirty-six, forty-two, forty-eight, fifty-four, or sixty months.” See R.C. 2929.14(A)(3)(a).
Defendant’s four year prison term is within the permissible range and there is no present
requirement that the trial court make any explicit statutory findings before imposing a
prison sentence on a first-time offender. Accordingly, defendant’s assertions to the
contrary are incorrect and this assignment of error is overruled.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR