State v. Wilkerson

[Cite as State v. Wilkerson, 2014-Ohio-3919.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 100865

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

DIONE WILKERSON
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573942-A

BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.

RELEASED AND JOURNALIZED: September 11, 2014
 -i-

ATTORNEYS FOR APPELLANT

David L. Doughten
David L. Doughten Company, L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103

Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Andrew J. Santoli
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:

{¶1} Appellant Dione Wilkerson appeals his conviction and assigns the

following error for our review:

The trial court abused its discretion by accepting the appellant’s invalid
plea. The trial court erred by sentencing the appellant to serve consecutive
sentences.1

{¶2} Having reviewed the record and pertinent law, we affirm Wilkerson’s

conviction. The apposite facts follow.

{¶3} On May 13, 2013, the Cuyahoga County Grand Jury indicted Wilkerson on

one count of rape, one count of gross sexual imposition with sexually violent predator

specification attached, and one count of kidnapping with a sexual motivation

specification attached. At his arraignment on June 6, 2013, Wilkerson pleaded not guilty

to the charges.

{¶4} On November 14, 2013, pursuant to a plea agreement with the state,

Wilkerson pleaded guilty to Count 2, gross sexual imposition, without the sexually violent

predator specification. Wilkerson also pleaded guilty to one count of abduction, Count 3

was reduced from kidnapping, without the sexual motivation specification. In exchange

1
Within this assigned error, Wilkerson alleges that the trial court erred by imposing
consecutive sentences, but fails to develop this argument. However, the record reveals that
Wilkerson pleaded guilty to two counts that merged for sentencing purposes and the state elected to
have him sentenced on the higher tiered count. As such, the trial court only imposed a sentence on
one count. Consequently, we will disregard Wilkerson’s allegations that the trial court imposed
consecutive sentences.
for Wilkerson’s guilty pleas to the two amended charges, the state dismissed Count 1,

rape.

{¶5} At the sentencing hearing on December 12, 2013, the parties acknowledged

that Counts 2 and 3 merged for sentencing purposes and the state elected to proceed on

Count 2, gross sexual imposition. Thereafter, the trial court sentenced Wilkerson to

prison for 24 months. The trial court also advised Wilkerson of his sexual offender’s

registration requirement. Wilkerson now appeals.

Criminal Rule 11

{¶6} In the sole assigned error, Wilkerson argues the trial court abused its

discretion by accepting his guilty pleas.

{¶7} Before accepting a guilty plea, the trial court must determine whether the

defendant has knowingly, intelligently, and voluntarily entered the plea. State v. Lee, 8th

Dist. Cuyahoga No. 99795, 2014-Ohio-1421; Crim.R. 11(C). In considering whether a

guilty plea was entered knowingly, intelligently, and voluntarily, an appellate court

examines the totality of the circumstances through a de novo review. State v. Boyd, 8th

Dist. Cuyahoga No. 100225, 2014-Ohio-1081, citing State v. Siler, 11th Dist. Ashtabula

No. 2010-A-0025, 2011-Ohio-2326, ¶ 12.

{¶8} Crim.R. 11(C)(2) governs guilty pleas and provides:

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 a 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.

{¶9} In order to determine whether a criminal defendant knowingly, intelligently,

and voluntarily entered a plea, we review the record to determine whether the trial court

adequately advised the defendant of his constitutional and nonconstitutional rights set

forth in Crim.R. 11(C). State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

{¶10} The trial court must strictly comply with those provisions of Crim.R. 11(C)

that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Stewart, 51 Ohio St.2d 86, 88-89,

364 N.E.2d 1163 (1977); State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), at

paragraph one of the syllabus. “Strict compliance” does not require an exact recitation of

the precise language of the rule, but instead focuses on whether the trial court explained

or referred to the right in a manner reasonably intelligible to that defendant. Id.

{¶11} Also with regard to the trial court’s duty to explain the defendant’s

constitutional rights, the court must require that the defendant be advised of the right to a

jury trial, the right to confront one’s accusers, the privilege against compulsory
self-incrimination, the right to compulsory process to obtain witnesses, and the right to

require the state to prove guilt beyond a reasonable doubt. Veney at ¶ 18. The court must

determine that the defendant understands that by the plea the defendant is waiving the

rights to a jury trial and to confront witnesses. Id. Further, in order for the plea to be

invalidated, the defendant must demonstrate prejudice, which requires a showing that the

plea would not otherwise have been entered. State v. Griggs, 103 Ohio St.3d 85,

2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

{¶12} In this matter, the trial court’s colloquy provided:

The Court: Mr. Wilkerson, even though your lawyer has
already explained your rights to you, I must be
satisfied that you understand all of your
constitutional rights, so I’m going to ask you a
series of questions that I need you to answer out
loud and on the record. Okay?

Defendant: Okay, Your Honor.

The Court: Do you understand that you are presumed
innocent and that by entering a plea of
guilty, you admit the truth of the facts
and to your full guilt?

Defendant: Yes.

The Court: Do you understand you have the right to
a trial, your choice of either a jury trial or
a trial to this Court, at which time the
State must prove your guilt and that
you’re giving up that right?

Defendant: Yes, Your Honor.

The Court: Do you understand that you have the
right to confront and cross-examine
 witnesses that the State must bring forth
at such trial and that you are giving up
that right?

Defendant: Yes, Your Honor.

The Court: Do you understand that you have the
right to subpoena witnesses to testify in
your favor at a trial and that you are
giving up that right?

Defendant: Yes, Your Honor.

The Court: Do you understand that you have the
right to have the State prove your guilt
beyond a reasonable doubt at trial and
that you are giving up that right?

Defendant: Yes, Your Honor.

The Court: Do you understand that you have the
right not to testify at the time of trial
which no one may use against you and
that you’re giving up that right?

Defendant: Yes, Your Honor.

Tr. 10-11.
{¶13} From the foregoing, the record clearly indicates that the court tracked the

language of Crim.R. 11(C), using words reasonably intelligible to Wilkerson, and that

Wilkerson repeatedly indicated that he understood his rights. The record therefore

demonstrates that the trial court met its duty of strict compliance as it properly explained

Wilkerson’s constitutional rights and that Wilkerson understood the rights that he was

waiving.
 {¶14} With respect to the other requirements of Crim.R. 11(C)(2)(a) and (b)

regarding nonconstitutional rights, reviewing courts consider whether the trial court

substantially complied with the rule. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115

(1981). “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.” Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

{¶15} A review of the record herein reveals that the trial court thoroughly

explained the nonconstitutional rights Wilkerson would be waiving by entering a plea of

guilty. In that regard, the trial court reviewed the nature of the offenses and the potential

penalties involved; advised Wilkerson that his plea was a complete admission of guilt;

and advised Wilkerson that the trial court could proceed with judgment and sentence

immediately after accepting his pleas. Wilkerson expressed his understanding of those

rights. In addition, Wilkerson’s trial attorney stated on the record that he had explained

the plea bargain, possible penalties, and the constitutional rights regarding the agreement.

{¶16} We conclude that the trial court strictly complied with the constitutional

requirements of Crim.R. 11 and also gave a textbook rendition of the nonconstitutional

requirements. Therefore, we find that Wilkerson subjectively understood the

consequences of pleading guilty and his pleas were knowingly, voluntarily, and

intelligently made.
 {¶17} Nonetheless, Wilkerson now argues that he “flat-out denied his guilt” at the

sentencing hearing and that he made what amounts to an Alford plea. An Alford plea

results when a defendant pleads guilty yet maintains actual innocence of the crime

charged. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

{¶18} Preliminarily, we note, during the plea hearing, when the trial court

reviewed the nature of the charged offenses and possible penalties, Wilkerson never

asserted or maintained actual innocence. Rather, when the trial court advised Wilkerson

that by entering a plea of guilty, he would be admitting the charged offenses, Wilkerson

expressed that he understood.

{¶19} The record reveals that at the sentencing hearing while Wilkerson was

making an impassioned plea that the trial court impose community control sanctions

instead of a prison sentence, the following exchange took place:

The Court: The problem I have with the case is that
the victim was 12. That’s bad. How do
you get around that?

Defendant: I mean, it was — it was — it was not —
it was like something that wasn’t
supposed to happen like.

The Court: I know.

Defendant: It was not supposed to happen. It was —

The Court: Unfortunately, you know, here we are, and —

[Defense Counsel]:Excuse me, Your Honor, but there was this big
delay. Supposedly, this happened in —

The Court: I understand.
[Defense Counsel]: There’s a big delay. It happened in February
and Counsel nothing was said until July of
that year, even though the report shows that
her father came home, and she said nothing
even to her father that day, the next day, or
the following day that anything unusual
happened.

The Court: So are you blaming the victim for not
telling on him?

[Defense Counsel]:No. I’m not blaming the victim.

Defendant: If it really did happen, why didn’t she
explain it when it really did happen? If
it really did happen, I don’t understand
why she didn’t say nothing when it
happened.

The Court: So you’re saying it didn’t happen, but
you just pled guilty to the GSI and the
abduction?

Defendant: If it really happened, why wasn’t it
explained when it happened if her father
already put me in a coma?

***

The Court: Well, she said you threatened her that
you would hurt her. That’s what the
police report says, that you threatened
her, and that’s why she didn’t tell; and
that when she tried to call — you talked
about a couple days later, and when she
tried to call, she said , I’m going to tell
my mom, that you pulled the phone out
of the jack, out of the wall, and she
couldn’t call; and that you followed the
phone — the defendant broke the phone
in the victim’s hand, and he repeatedly
 — he repeated his threat to kill her if she
told. So you’re asking, why didn’t she
do this and why didn’t she do that? First
of all, she’s 12.

Defendant: I tried to call her father and she —

The Court: Well, I mean, the problem with pleading
guilty to GSI and abduction, it’s kind of
hard for you to come at sentencing and
then say, oh, this didn’t happen, because
you’ve admitted to the truth of the facts.
So, again, my difficulty with this case,
sir, is that this is a 12-year-old and you
were an adult at the time.
Tr. 38-41.

{¶20} Here, as opposed to Wilkerson’s present assertion that he “flat-out” denied

his guilt at the sentencing hearing, in the beginning of the above excerpt, Wilkerson

admitted the allegations by stating: “I mean, it was — it was — it was not — it was like

something that wasn’t supposed to happen like.” Later, when the trial court asked

Wilkerson if he was denying the allegations, Wilkerson never answered the question,

instead he deflected the question and began to question why the 12-year-old did not report

any misconduct at the time that it happened. When the trial court explained that the

12-year-old did not immediately report the crime because he had threatened to kill her,

Wilkerson never denied it or protested his innocence.

{¶21} Most importantly, prior to the trial court imposing the sentence, Wilkerson

never attempted to withdraw his guilty pleas. Wilkerson made no effort to withdraw his

guilty pleas, despite the trial court opening the door when it stated: “So you’re saying it

didn’t happen, but you just pled guilty to the GSI and the abduction?” That would have
been the opportune time to orally move to withdraw his guilty pleas, but Wilkerson chose

not to avail himself of the opportunity.

{¶22} Finally, under the totality of the circumstances presented herein, Wilkerson

subjectively understood the consequences of pleading guilty, the trial court adhered to the

strictures of Crim.R. 11, and his pleas were knowingly, voluntarily, and intelligently

made. Accordingly, we overrule the sole assigned error.

{¶23} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

PATRICIA ANN BLACKMON, PRESIDING JUDGE

TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR