State v. Cave

[Cite as State v. Cave, 2013-Ohio-2054.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NOS. CA2012-07-011
CA2013-05-002
:
- vs - OPINION
: 5/20/2013

ROBERT G. CAVE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case Nos. 12-CR-010850 and 12-CR-010903

Martin P. Votel, Preble County Prosecuting Attorney, Eric E. Marit, 101 East Main Street,
Eaton, Ohio 45320, for plaintiff-appellee

Tamara S. Sack, 9435 Waterstone Blvd., Suite 140, Cincinnati, Ohio 45249, for defendant-
appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Robert G. Cave, appeals from his convictions in the

Preble County Court of Common Pleas, arguing that the trial court improperly accepted his

guilty pleas. For the reasons discussed below, we affirm appellant's convictions.

{¶ 2} On February 6, 2012, appellant was indicted in Case No. 12-CR-010850 on the

following charges: burglary in violation of R.C. 2911.12(A)(3) (count 1); theft in violation of
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R.C. 2913.02(A)(1) (count two); two counts of violating a protection order in violation of R.C.

2919.27(A)(1) (counts three and four); carrying a concealed weapon in violation of R.C.

2923.12(A)(2) (count five); and improperly handling firearms in a motor vehicle in violation of

R.C. 2923.16(B) (count six).

{¶ 3} Subsequently, on April 13, 2012, appellant was charged pursuant to a Bill of

Information with the following offenses in Case No. 12-CR-010903: identity fraud in violation

of R.C. 2913.49(B)(1) (count one); theft in violation of R.C. 2913.02(A) (count two); and

misuse of credit cards in violation of R.C. 2913.21(B)(2) (count three).1

{¶ 4} On April 13, 2012, appellant entered guilty pleas in both criminal cases. With

respect to Case No. 12-CR-010850, appellant pleaded guilty to counts one, two, four, and

six, and the remaining counts were dismissed by the state. With respect to Case No. 12-CR-

010903, appellant entered a guilty plea as to all three counts charged. Thereafter, appellant

was sentenced to a total of 54 months in prison.

{¶ 5} Appellant now appeals his convictions, raising the following assignment of error:

{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT ACCEPTED HIS PLEA WITHOUT CONDUCTING A CRIMINAL

RULE 11 COLLOQUY AND WITHOUT MAKING A DETERMINATION THAT THE PLEA

WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE.

{¶ 7} In his sole assignment of error, appellant contends that the trial court erred in

accepting his guilty pleas in Case Nos. 12-CR-010850 and 12-CR-010903 as his pleas were

not knowingly, intelligently and voluntarily made. Specifically, appellant contends that his

pleas could not have been knowingly, intelligently, and voluntarily made as he was not

1. On May 13, 2013, this court granted appellant's motion for delayed appeal of Case No. 12-CR-010903 and
consolidated that appeal with his appeal of Case No. 12-CR-010850.
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properly advised under Crim.R. 11(C) of the rights he was waiving by pleading guilty. The

state, on the other hand, contends appellant was advised pursuant to Crim.R. 11(C), and

further, appellant's pleas were properly accepted by the trial court in accordance with the

Supreme Court's holding in State v. Billups, 57 Ohio St.2d 31 (1979).

{¶ 8} A plea of guilty is a complete admission of the defendant's guilt. Crim.R. 11(B).

"When a defendant enters a plea in a criminal case, the plea must be made knowingly,

intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea

unconstitutional under both the United States Constitution and the Ohio Constitution." State

v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7; State v. Engle, 74 Ohio St.3d 525, 527

(1996). Crim.R. 11(C) governs the process that a trial court must use before accepting a

felony plea of guilty or no contest, and it provides in relevant part the following:

(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.

(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.

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"Before accepting a guilty plea * * * the court must make the determinations and give the

warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the

constitutional rights listed in Crim.R. 11(C)(2)(c)." Veney at ¶ 13.

{¶ 9} The record reflects that all defendants who were scheduled to enter a change

of plea on April 13, 2012, including appellant, were apprised at the same time of the rights

they would surrender by entering pleas of guilty, to wit: the right to a jury trial, to confront

one's accusers, to compulsory process to obtain witnesses, to require the state to prove guilt

beyond a reasonable doubt, and to the privilege against compulsory self-incrimination.

Specifically, the trial court advised appellant and the other defendants as follows:

You are entering a plea of guilty. Apparently others, who are set
for today, will also be entering a plea or pleas of guilty. You all
need to understand that when you do that, you are waiving
certain rights. First, when you plead guilty, you are admitting
your guilt. Secondly, when you plead guilty, you waiver [sic]
certain rights. You waive your right not to testify against
yourself, your right to a trial by a jury or to the Court, your right to
call witnesses to appear on your behalf and to use the authority
of the Court to get those witnesses to Court. You waive your
right to face and cross examine witnesses that would appear to
testify against you. And you waive your right to require the State
to prove your alleged guilt beyond a reasonable doubt at a trial
at which you cannot be compelled to testify against yourself, and
during which your failure to testify can't be used against you.

All of you will be entering pleas of guilty, most likely, to what
would be felonies. I will explain the penalties to you, but in Ohio,
if you are sent to prison, then when you are released, you may
be released on what is called a period of post release control.

In some cases, post release control would be mandatory, and
you will be advised of that if you're pleading to an offense that
requires a mandatory post release control.

In other cases, it is not mandatory, meaning somebody can
exercise discretion to either place you on post release control or
not. But post release control is control after you have served a
prison sentence.

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If you don't comply with the conditions of post release control,
you can be sent back to prison to serve more time in increments
of up to nine months for each violation, but subject to a
maximum of one-half of whatever the sentence was that was
ordered by the Court.

So if you are ordered to serve 12 months in the custody of the
Department of Corrections, and when you are released you are
released on post release control, and then you mess up, you
don't comply with the conditions, you can be required to actually
serve an additional six months. Even though the Court ordered
a 12 month sentence, the result could be 18 months.

{¶ 10} Thereafter, once appellant's cases were called to the docket, the trial court

engaged in the following dialogue with appellant:

THE COURT: All right, now, you've heard me indicate to the
others that when you plead guilty, this is on all of these charges,
now, you are admitting your guilt. Do you understand?

[APPELLANT]: Yes.

THE COURT: You heard me indicate the rights you waive. Do
you understand those rights?

[APPELLANT]: Yes.

THE COURT: I also indicated that if you enter these pleas of
guilty, I would have the authority to proceed immediately with
judgment and sentence. Do you understand that?

[APPELLANT]: Yes, sir.

THE COURT: Do you understand the concept of post release
control?

[APPELLANT]: Yes.

The trial court then proceeded to discuss the seven charges, four from Case No. 12-CR-

010850, and three from Case No. 12-CR-010903, to which appellant was intending to plead

guilty. With respect to each offense, the trial court advised appellant of the maximum

possible punishment and associated fine, as well as whether there was any mandatory or

optional post release control, prior to asking appellant whether he understood "the nature of

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that charge and the maximum penalty" and asking appellant how he pleaded. The trial court

also had appellant execute, in open court with his defense counsel present, a written

document which discussed the rights set forth in Crim.R. 11(C)(2) and specified that the

rights were being waived.2 Thereafter, the trial court found appellant's pleas to be knowingly,

intelligently, and voluntarily made and it accepted his pleas.

{¶ 11} We find no error in the trial court's method of accepting appellant's guilty pleas.

Appellant, who was represented by counsel, was properly informed under Crim.R. 11(C)(2) of

the rights he was waiving, the nature of the charges to which he was pleading guilty, and the

court's ability to proceed with the judgment and sentence immediately. Additionally, the

method in which appellant's pleas were accepted by the trial court is similar to the method in

which a defendant's pleas were accepted in State v. Billups, 57 Ohio St.2d 31 (1979).

{¶ 12} In Billups, the defendant pleaded guilty to two counts of aggravated burglary

and two counts of grand theft. Before accepting Billup's guilty plea, the trial court offered to

engage Billup in a formal colloquy intended to inform him of all his rights. Id. at 32. Billup,

who had been present in the courtroom when the trial court conducted the same colloquy

with a previous defendant, rejected the offer, stating that he understood what had previously

transpired. Id. Billup, with his defense counsel present, then executed in open court a

written waiver, which encompassed each of the rights set forth in Crim.R. 11(C)(2) and

specified that such rights were being waived. Id. The trial court accepted Billup's plea, and

the Fourth District Court of Appeals affirmed his conviction. Id. On appeal to the Supreme

Court, Billup argued that the trial court erred when it accepted his guilty plea without first

2. The trial court instructed appellant as follows regarding the execution of the written waivers:

THE COURT: Now, there are two waivers. If you want the Court to accept
these pleas, sign each waiver. When you signed the waivers, you are simply
confirming in writing everything you have just done orally.
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orally and personally advising him of each of his constitutional and other rights pursuant to

Crim.R. 11(C)(2). Id. at 33. The Supreme Court overruled Billup's argument, finding:

A trial court does not commit prejudicial error under Crim.R.
11(C)(2) by entering a judgment of conviction upon a plea of
guilty where the record of the guilty plea proceeding affirmatively
demonstrates that: (1) the defendant was represented
throughout the proceedings by counsel; (2) the trial court
conducted a discussion with the defendant, apprising him of the
nature of the charges and the minimum and maximum
sentences for each offense, and determining the voluntariness
of the submitted plea; (3) the trial court did not orally inform the
defendant of each of his rights because the defendant
acknowledged that he heard and understood the court's earlier
colloquy with a previous defendant and did not desire his own
recitation; (4) the defendant read and executed in open court, in
the presence of defense counsel, a written document which
clearly explained defendant's rights and stated that defendant
was waiving them by entering his plea of guilty; and (5) the
defendant was literate and had obtained a ninth grade
education.

Id. at syllabus.

{¶ 13} In the present case, the record of the guilty plea proceeding demonstrates: (1)

appellant was represented by counsel; (2) the court conducted a discussion with appellant,

apprising him of the nature of the charges and the potential maximum sentence for each

offense, and determining the voluntariness of the submitted plea; (3) the trial court did not

orally inform appellant of each of his rights because appellant acknowledged that he heard

and understood the court's earlier colloquy, which had been directed at all defendants,

including appellant, who were scheduled to enter a change of plea on April 13, 2012; and (4)

appellant read and executed in open court, in the presence of his defense counsel, a written

document which clearly explained his rights and stated that the rights were being waived by

his plea of guilty. Although there is no evidence in the record detailing appellant's formal

education, appellant does not argue, nor is there anything to indicate, that he was illiterate or

otherwise incapable of comprehending the trial court's colloquy or the written waiver he

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executed. As such, we find that the trial court did not err in accepting appellant's guilty pleas

and entering a judgment of conviction in Case No. 12-CR-010850 and Case No. 12-CR-

010903.

{¶ 14} Appellant's sole assignment of error is overruled.

{¶ 15} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

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