[Cite as State v. Bell, 2015-Ohio-218.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-P-0017
- vs - :
RYAN NICHOLAS BELL, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR
0464.
Judgment: Affirmed in part, reversed in part, and remanded.
Victor Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Joel A. Holt, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River Street, Suite A,
Kent, OH 44240 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This delayed appeal is from the Portage County Court of Common Pleas.
Appellant Ryan Bell pleaded guilty to one count of rape, a first degree felony, in
violation of R.C. 2907.02(A)(1)(b) & 2971.03; and two counts of importuning, a felony of
the third degree, in violation of 2907.07(A) & (F)(1)(2). The state and Bell jointly
recommended an indefinite prison term of 10 years to life imprisonment for the rape
count and 36 months and 24 months for the two importuning counts all of which is to be
served consecutively. The trial court accepted Bell’s plea and sentenced Bell
according to the joint recommendation. On appeal, Bell argues that the trial court failed
to provide necessary findings for imposing consecutive sentences, failed to
meaningfully inform Bell of various rights he waived by pleading guilty, and the
maximum penalty.
{¶2} On August 2, 2013, a grand jury indicted Bell on three counts of rape,
three counts of importuning and one count of pandering sexually oriented matter
involving a minor. Eventually, Bell entered into a plea agreement to the previously
mentioned offenses and the remaining charges were dismissed. The trial court
sentenced Bell and he did not initially appeal his conviction. Bell eventually moved to
file a delayed appeal, which this court granted.
{¶3} As his first assignment, Bell asserts:
{¶4} “The trial court failed to make the statutory findings required by R.C.
2929.14(C)(4) prior to imposing consecutive sentences and accordingly, Mr. Bell’s
sentence is contrary to law and must be vacated.”
{¶5} At oral argument, the state conceded the first assignment has merit.
Therefore, it will only be addressed briefly.
{¶6} Although the trial court imposed the jointly recommended sentence, Bell
claims the trial court still could not impose that sentence without first making the
statutorily required findings for imposing consecutive sentences. Thus, the issue is
whether the trial court must make the statutory findings for imposing consecutive
sentences when a defendant and the state jointly recommend consecutive sentences.
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{¶7} We no longer utilize the test adopted in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912 in reviewing felony sentences; rather, R.C. 2953.08(G)(2) provides our
standard of review. State v. Long, 11th Dist. Lake No. 2013-L-102, 2014-Ohio-4416,
¶71. Under that standard, as it is pertinent to this case, we will reverse a felony
sentence if we find clear and convincing evidence that the sentence is contrary to law.
R.C. 2953.08(G)(2)(b). R.C. 2929.14(C)(4), the statute governing consecutive
sentences, provides:
{¶8} “If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of the following:
{¶9} “(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶10} “(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness
of the offender's conduct.
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{¶11} “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶12} R.C. 2953.08(D)(1) provides in pertinent part that “a sentence imposed
upon a defendant is not subject to review * * * if the sentence is authorized by law, has
been recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” (Emphasis added.) However, because “a sentence
is only authorized by law if it comports with all mandatory sentencing provisions[,]” this
court and the Ohio Supreme Court have held that an agreed sentence between the
state and the defendant does not relieve the trial court of its obligation to make the
statutorily required findings to impose consecutive sentences. State v. McFarland,
11th Dist. Lake No. 2013-L-061, 2014-Ohio-2883, ¶13-14, quoting State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, ¶19-22.
{¶13} The Underwood court explained:
{¶14} “Several courts of appeals have held that a sentence is authorized by law
within the meaning of the statute simply if the sentence falls within the statutory range
for the offense. State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d
715, ¶ 70; State v. Bristow (Jan. 29, 1999), 3d Dist. No. 3-98-21, 1999 Ohio App.
LEXIS 941, 1999 WL 84868, *3; State v. Jackson, 8th Dist. No. 86506, 2006-Ohio-
3165, ¶ 49; State v. Henderson (Sept. 27, 1999), 12th Dist. No. CA99-01-002, 1999
Ohio App. LEXIS 4597, 1999 WL 761002, *2.
{¶15} “We do not agree with such a narrow interpretation of ‘authorized by law.’
Adopting this reasoning would mean that jointly recommended sentences imposed
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within the statutory range but missing mandatory provisions, such as postrelease
control (R.C. 2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)),
would be unreviewable. Our recent cases illustrate that sentences that do not comport
with mandatory provisions are subject to total resentencing. See, e.g., State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 11. Nor can agreement to
such sentences insulate them from appellate review, for they are not authorized by law.
We hold that a sentence is ‘authorized by law’ and is not appealable within the
meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
provisions. A trial court does not have the discretion to exercise jurisdiction in a
manner that ignores mandatory statutory provisions. See State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 27 (‘Every judge has a duty to impose
lawful sentences’).”
{¶16} Consequently, because even in the context of a jointly recommended
consecutive sentence, a trial court is required to make the statutory findings, the first
assignment has merit.
{¶17} As to the second assignment, Bell asserts:
{¶18} “The trial court failed to adhere to the requirements of Crim.R. 11(C) and
Ohio law during Mr. Bell’s sentencing hearing, and accordingly, Mr. Bell’s guilty plea
was not made knowingly, intelligently and voluntarily and must be vacated.”
{¶19} Within this assignment, Bell argues that the trial court failed to
meaningfully inform him of his right to a jury trial, to have the state prove its case
beyond a reasonable doubt for each count of the indictment, and the consequences of
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pleading guilty. The state contends that the totality of the record establishes Bell
understood the consequences of and rights waived by pleading guilty.
{¶20} “Crim.R. 11(C)(2) * * * provides the trial court with the various rights that
must be discussed with a defendant prior to the acceptance of a guilty plea. Crim.R.
11(C)(2) states:
{¶21} “‘(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:
{¶22} “‘(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.
{¶23} “‘(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.
{¶24} “‘(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the right 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.’
{¶25} “Crim.R. 11(C)(2) creates two separate sets of rights that the trial court is
required to discuss with a defendant prior to its acceptance of a guilty plea. The first
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set addresses constitutional rights; the second set addresses non-constitutional rights.
See, e.g., State v. Lavender, 11th Dist. No. 2000-L-049, at 10, 2001-Ohio-8790.
Ultimately, ‘the basis of Crim.R. 11 is to assure that the defendant is informed, and thus
enable the judge to determine that the defendant understands that his plea waives his
constitutional right to a trial. And, within that general purpose is contained the further
provision which would inform the defendant of other rights and incidents of a trial.’
State v. Ballard (1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115.
{¶26} “On appeal, the issue becomes whether the record demonstrates that the
defendant was informed of the relevant constitutional rights and incidents of a trial to
warrant the conclusion that he or she understands what a trial is and that a guilty plea
represents a knowing and voluntary forfeiture of those rights stemming from a trial. Id.
Thus, ‘a rote recitation of Crim.R. 11(C) is not required and failure to use the exact
language of the rule is not fatal to the plea. Rather, the focus, upon review, is whether
the record shows that the trial court explained or referred to the right in a manner
reasonably intelligible to that defendant.’ Id. at 480.
{¶27} “Crim.R. 11(C)(2)(c) specifically addresses the various constitutional rights
that the trial court must discuss with the defendant prior to the acceptance of a guilty
plea. These constitutional rights originated from Boykin v. Alabama (1969), 395 U.S.
238, 23 L. Ed. 2d 274, 89 S. Ct. 1709. In Boykin, the United States Supreme Court
held that because a defendant's guilty plea waives several constitutional rights, the
record on appeal must demonstrate that a defendant is fully informed of such waiver for
his or her guilty plea to be considered voluntary and knowing. Id. at 242. Therefore, to
conform with these constitutional requirements, the trial court must explain to the
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defendant that he or she is waiving: (1) the Fifth Amendment privilege against self-
incrimination; (2) the right to a trial by jury; (3) the right to confront one's accusers; (4)
the right to compulsory process of witnesses; and (5) the right to require the state to
prove guilt beyond a reasonable doubt. See, generally, Boykin at 243. See, also, State
v. Singh (2000), 141 Ohio App. 3d 137, 750 N.E.2d 598. ‘The court must strictly
comply with these requirements, and the failure to strictly comply invalidates a guilty
plea.’ Lavender at 11. Therefore, the failure ‘to meaningfully inform’ the defendant of
one or more constitutional rights contained in Crim.R. 11(C) is plain error requiring
reversal. Ballard at 480.
{¶28} “The remaining requirements of Crim.R. 11(C) pertain to non-constitutional
rights. Unlike the previously stated constitutional rights, which necessitate strict
compliance, non-constitutional rights require that the trial court demonstrate substantial
compliance. State v. Nero, (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474. Initially,
the Supreme Court of Ohio required a trial court to ‘scrupulously adhere’ to these non-
constitutional rights, but that rule has since been modified and has evolved so that
substantial compliance is sufficient. State v. Stewart (1977), 51 Ohio St.2d 86, 364
N.E.2d 1163. See, also, Nero at 108 (holding that ‘literal compliance with Crim.R. 11 is
certainly the preferred practice, but the fact that the trial judge did not do so does not
require vacation of the defendant's guilty plea if the reviewing court determines that
there was substantial compliance.’)
{¶29} “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 at 108. In other words, the failure to otherwise inform
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the defendant of these non-constitutional rights may not be reversible error if the
reviewing court determines, upon evaluation of the totality of the circumstances, that
the defendant was aware of the consequences of his or her guilty plea with respect to
these rights.
{¶30} “In addition, if the trial court fails to substantially comply with Crim.R.
11(C), the defendant must also demonstrate that he or she was prejudiced by this lack
of compliance. State v. Johnson (1988), 40 Ohio St.3d 130, 134, 532 N.E.2d 1295.
See, also, Crim.R. 52(A) and 33(E). The test of prejudice queries whether the plea
would have been made despite the trial court's failure to substantially comply with the
prerequisites of Crim.R. 11(C).” State v. Porterfield, 11th Dist. Trumbull No. 2002-T-
0045, 2004-Ohio-520, ¶16-26.
{¶31} First, Bell asserts he was not meaningfully informed of his right to a jury
trial because of his confusion as to whether he signed a jury trial waiver form. Bell
directs our attention to the following exchange:
{¶32} “THE COURT: Sir, do you understand you do have a right to a trial in this
matter either to the Court or to a jury.
{¶33} “THE DEFENDANT: Yes, I do.
{¶34} “THE COURT: Okay. Are you waiving that right today, sir?
{¶35} “THE DEFENDANT: Yeah, I do.
{¶36} “THE COURT: And, sir, did you sign this written Waiver of Right to a Jury
Trial?
{¶37} “THE DEFENDANT: No. Did I?
{¶38} “THE COURT: Is that your signature? Did you sign this document?
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{¶39} “THE DEFENDANT: Yeah, I did.
{¶40} “THE COURT: Do you understand that’s waiving your right to a jury trial?
{¶41} “THE DEFENDANT: Yeah.
{¶42} “THE COURT: Okay. And you are waiving your right to a jury trial?
{¶43} “THE DEFENDANT: Yes.”
{¶44} Based upon this exchange, Bell’s confusion stemmed from whether he
signed a particular document waiving his right to a jury trial, rather than his confusion
as to the nature of the right. Furthermore, the exchange demonstrates the trial court
meaningfully informed Bell of his right to a jury trial and his waiver.
{¶45} Next, Bell claims that he was not informed of his right to have the
prosecutor prove his guilt beyond a reasonable doubt on all charges of his multiple
count plea because the trial court did not use the words “on all charges” after
explaining that the state is required to prove his guilt beyond a reasonable doubt. The
following exchange took place between Bell and the trial court:
{¶46} “THE COURT: And, sir, do you understand it is the obligation of the
prosecutor’s office to prove your guilt beyond a reasonable doubt? Are you waiving
that right?
{¶47} “THE DEFENDANT: Yes.”
{¶48} The trial court clearly informed Bell of the burden of proof. While the trial
court did not say on “all charges” it also did not limit the explanation to only some of the
charges and it is difficult to imagine how this would leave Bell uninformed on the issue
particularly when nowhere else in the colloquy did the trial court discuss any other
burdens of proof. The trial court fully complied with Crim.R. 11(C) and Boykin.
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{¶49} Alternatively, even if the exchange were considered to be ambiguous, Bell
has still not shown reversible error. Ambiguity in the colloquy does not demonstrate
error if other parts of the record, including the written plea agreement, show the
defendant was fully informed of the right at issue. State v. Barker, 129 Ohio St.3d 472,
2011-Ohio-4130, ¶24. The written plea agreement provides in pertinent part that “I
[Bell] understand that at the trial the State of Ohio (Prosecutor) has the burden
(obligation) to prove my guilt beyond a reasonable doubt to each and every element of
each crime of which I am charged.” Thus, even assuming the colloquy was
ambiguous, this portion of the written plea agreement shows Bell was informed of his
right to have the state prove his guilty beyond a reasonable doubt on every element of
every charge.
{¶50} Next, Bell claims, without any further elaboration, that the trial court failed
to meaningfully inform him of his other constitutional rights. This argument is without
merit as nothing reveals the explanation of Bell’s remaining constitutional rights was
insufficient.
{¶51} Last, Bell argues he thought parole was a near certainty after serving 15
years of his sentence when in fact there is no such guarantee of parole after serving 15
years. Thus, Bell argues he did not understand that his maximum punishment is life
rather than 15 years. The state contends that the record is ambiguous but that the
totality of the record establishes Bell understood the maximum penalty.
{¶52} At one point in the colloquy, the trial court explicitly informed Bell that his
maximum punishment was life. Specifically, the trial court asked:
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{¶53} “THE COURT: Do you understand the Rape charge may bring with it a
prison term – an indefinite prison term of ten years to life in prison; * * *?
{¶54} “THE DEFENDANT: Yes, ma’am.”
{¶55} Moreover, earlier the following exchange took place between the trial court
and Bell after the plea agreement was read into the record:
{¶56} “THE COURT: Mr. Bell, I saw you going over [the plea agreement] with
your attorney while [the prosecutor] was reading that into the record. Is that your
understanding of the agreement?
{¶57} “THE DEFENDANT: Yes.
{¶58} “THE COURT: Okay.
{¶59} “THE DEFENDANT: So fifteen years and then I can go for parole?
{¶60} “THE COURT: You’re eligible.
{¶61} “THE DEFENDANT: I’m eligible.
{¶62} “THE COURT: It’s up to the parole board. Do you understand that?
{¶63} “THE DEFENDANT: Now that’s eligible for, no fighting or anything like
that?
{¶64} “THE COURT: Do you want to explain it to him?”
{¶65} The first exchange shows Bell was told that the sentence had the potential
for life which in anyone’s mind is the greatest of all the sentences.
{¶66} The second exchange is nevertheless relied upon to argue Bell’s
functional understanding of the maximum penalty was 15 years because the trial court
perceived confusion on his part.
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{¶67} The exchange however does not demonstrate confusion. Bell did not say
that in 15 years he is going to be released. Instead, he asked “so 15 years and then I
can go for parole?” That question although laconic demonstrates that he knew he
would serve a minimum of 15 years before he could even “go” for parole. Thereafter,
the court explained he is eligible for parole in 15 years. Eligibility does not however
mean automatic release. Thereafter, the trial court explained it is up to the parole
board indicating further that parole is anything but automatic. Bell followed with
repeating that 15 years provides him with eligibility and that his release would be at
least in part a function of his future conduct again demonstrating that parole in 15 years
is anything but automatic. Accordingly, the trial court fulfilled its responsibility of
informing Bell of his maximum sentence.
{¶68} Alternatively, even if the colloquy were construed as ambiguous, the
written plea agreement cures that ambiguity as it explained that the decision to grant
parole would be left up to the discretion of the parole board. Therefore, Bell
understood that the maximum sentence is life. The second assignment of error is
without merit.
{¶69} The judgment of the Portage County Court of Common Pleas is affirmed
in part, reversed in part, and we remand for further proceedings.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.
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