[Cite as State v. Jones, 2017-Ohio-7722.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105282
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MILTON J. JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-604475-C and CR-16-604781-A
BEFORE: Boyle, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEY FOR APPELLANT
Sarah R. Cofta
P.O. Box 16425
Cleveland, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: John D. Kirkland
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Milton J. Jones, appeals his sentence. He raises two
assignments of error for our review:
1. The trial court erred to the prejudice of Appellant, who did not
knowingly, intelligently, and voluntarily enter into his guilty plea.
2. The trial court erred when it failed to properly notify Appellant of
postrelease control during his sentencing.
{¶2} Finding merit to his second assignment of error, we remand to the trial
court to properly impose Jones’s sentence with respect to his terms of postrelease
control.
I. Procedural History and Factual Background
{¶3} In March 2016, a Cuyahoga County Grand Jury indicted Jones with one
count of receiving stolen property in Cuyahoga C.P. No. CR-16-604475-C. In April
2016, a Cuyahoga County Grand Jury indicted Jones for the following 15 counts in
Cuyahoga C.P. No. CR-16-604781-A: two counts of aggravated robbery, three counts
of robbery, four counts of felonious assault, three counts of kidnapping, one count of
carrying a concealed weapon, one count of discharge of a firearm on or near prohibited
premises, and one count of criminal damaging or endangering. Based on discussions
with the state’s prosecutor, Jones eventually agreed to withdraw his not guilty pleas and
plead to an amended indictment for both cases. Specifically, in Case No.
CR-16-604475-C, Jones pleaded guilty to the indictment, as charged, and in Case No.
CR-16-604781-A, Jones pleaded guilty to one count of aggravated robbery, with a
one-year firearm specification, and one count of felonious assault. At the state’s
request, the trial court nolled the remaining counts in Case No. CR-16-604781-A. At
the plea hearing, the trial court informed Jones that he faced a potential three-year term
of postrelease control for pleading to receiving stolen property, a felony of the fourth
degree, as well as a mandatory five-year term of postrelease control for pleading to
aggravated robbery, a felony of the first degree.
{¶4} At sentencing, the trial court held a sentencing hearing on both cases,
sentencing Jones to a total prison term of four years and nine months. In Case No.
CR-16-604475-C, the trial court imposed a nine-month sentence, to be served
consecutively to his sentence for his other case. In Case No. CR-16-604781-A, the trial
court imposed a four-year sentence: one year for his firearm specification, three years for
the underlying count of aggravated robbery, and four years for the count of felonious
assault, which was to run concurrent with the other two counts. In addition to his terms
of incarceration, the trial court also instructed Jones that he faced “up to five years,
mandatory” of postrelease control for his aggravated robbery conviction.
{¶5} It is from this judgment that Jones appeals.
II. Jones’s Guilty Plea
{¶6} In his first assignment of error, Jones claims that he did not knowingly,
intelligently, and voluntarily plead guilty to the amended charges and that the trial
court’s acceptance of his plea prejudiced him. We disagree.
{¶7} We review whether the trial court accepted Jones’s plea in compliance
with Crim.R. 11(C) de novo. State v. McGinnis, 8th Dist. Cuyahoga No. 99918,
2014-Ohio-2385, ¶ 11, citing State v. Cardwell, 8th Dist. Cuyahoga No. 92796,
2009-Ohio-6827. “In other words, this court will conduct our own independent review
of the record without any deference to the trial court.” State v. Avery, 4th Dist. Scioto
No. 14CA3613, 2015-Ohio-4251, ¶ 5.
{¶8} “The underlying purpose of Crim.R. 11(C) is to convey certain information
to a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty.” State v. Chiles, 8th Dist. Cuyahoga No. 103179,
2016-Ohio-1225, ¶ 8. To satisfy the rule, a trial court must ensure that a defendant
knowingly, intelligently, and voluntarily enters a plea of guilty and fully understands its
consequences. State v. Bowen, 52 Ohio St.2d 27, 28, 368 N.E.2d 843 (1977). If a
plea is not made knowingly, intelligently, and voluntarily, it is unconstitutional to
enforce that plea under both the United States and Ohio Constitutions. State v. Engle,
74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The record must reflect that the trial
court satisfied Crim.R. 11’s requirements through oral dialogue with the defendant at the
plea hearing. Chiles at ¶ 9; State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601,
2010-Ohio-244, ¶ 5. Specifically, Crim.R. 11(C)(2) states:
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 guilty beyond a reasonable doubt at a trial at which
the defendant cannot be compelled to testify against himself or herself.
{¶9} While a court must strictly comply with the provisions concerning
constitutional rights set forth in Crim.R. 11(C)(2)(c), a court must only substantially
comply with the provisions concerning nonconstitutional rights set forth in Crim.R.
11(C)(2)(a) and (b). State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d
462, ¶ 31; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.
Under the substantial-compliance test, “a slight deviation from the text of the rule is
permissible; so long as the totality of the circumstances indicates that ‘the defendant
subjectively understands the implications of his plea and the rights he is waiving,’ the
plea may be upheld.” Clark at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 564
N.E.2d 474 (1990); see also State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d
959 (4th Dist.1995), citing Nero (“In other words, if it appears from the record that the
defendant appreciated the effect of his plea and waiver of rights in spite of the trial
court’s error, there is still substantial compliance.”).
{¶10} In addition to showing that the trial court failed to substantially comply
with Crim.R. 11(C)(2)(a) and (b)’s requirements, “a defendant who challenges his guilty
plea on the basis that it was not knowingly, intelligently, and voluntarily made must
show a prejudicial effect.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 15, quoting Nero. To show prejudice, a defendant must establish that he
would not have plead guilty had the court substantially complied with Crim.R. 11(C)’s
requirements. Nero at 108.
{¶11} Jones first claims that the record does not clearly demonstrate the trial court
substantially complied with Crim.R. 11(C)(2)(a) because he answered “No” when asked
if he discussed his case’s facts with his attorney. We disagree.
{¶12} In Avery, 4th Dist. Scioto No. 14CA3613, 2015-Ohio-4251, the appellant
argued that the trial court erred in accepting her guilty plea because she did not
knowingly, intelligently, and voluntarily plead guilty. At trial, the court asked the
appellant if she was satisfied with her attorney’s performance at the plea hearing, to
which the appellant replied, “Not really.” Id. at ¶ 6. After the court informed the
appellant that it was halting the proceeding and determined that it could not accept the
guilty plea, the appellant’s attorney informed the court that the appellant had
misunderstood its question, which the appellant confirmed. As a result, the court
proceeded with the hearing, and, when asked again if she was satisfied with her
attorney’s efforts, the appellant replied in the affirmative. On appeal, the Fourth
District Court of Appeals rejected the appellant’s argument, noting that the trial court
properly waited to go forward with the hearing until the appellant and her attorney
assured the court that she simply misunderstood the question and corrected her earlier
answer. Id. at ¶ 13.
{¶13} Similarly, in State v. Wilson, 10th Dist. Franklin No. 04AP-1013,
2005-Ohio-4673, the appellant argued that he did not knowingly, intelligently, and
voluntarily enter into his plea after expressing reservations about his attorney’s
performance during the plea hearing. When the appellant indicated that he was “not
sure what to say” about his attorney’s performance during the plea hearing, the court
informed the appellant that it was going to call up the jury and stop the plea deal. Id. at
¶ 5. After a short discussion with his attorney, both the appellant and his attorney
explained to the court that he was willing to go forward with the plea and retracted his
earlier statements concerning his attorney’s performance. On appeal, the Tenth District
Court of Appeals rejected the appellant’s argument, noting that it was “directly
contradicted by his testimony during his plea hearing.” Id. at ¶ 12. The court
specifically noted that, after conferring with his attorney, the appellant “told the trial
court that he was satisfied with his attorney’s advice, counsel, and competence, and that
he was pleading of his own free will and to the best of his own judgment.” Id.
{¶14} Here, comparable to both Avery and Wilson, the record demonstrates that
the trial court substantially complied with its obligations under Crim.R. 11(C). At the
plea hearing, the trial court spoke with Jones about his level of education, whether he
was under the influence of drugs or alcohol, and whether he was currently on community
control sanctions or postrelease control. The following exchange took place:
THE COURT: Have you discussed with your attorney the facts of
your case and listened to his advice, or her [advice]?
JONES: No.
THE COURT: Yes?
JONES: Yes.
[DEFENSE
ATTORNEY]: Have you talked with us?
JONES: Yes.
THE COURT: Are you satisfied with the representations you have
received from your attorneys?
JONES: Yes.
Similar to Avery, the court did not continue with the plea until Jones’s counsel clarified
the question and Jones affirmed that he spoke with his attorneys. Similar to Wilson,
Jones stated that he was satisfied with his attorneys’ representations. Moreover,
subsequent to that exchange, the court explained each of the constitutional rights that
Jones was waiving as well as the potential punishments for each conviction, and when
asked if he had any questions about his cases, Jones stated, “No.” In fact, at no point
during the hearing — including the above-mentioned exchange — did Jones or his
attorneys express concern over his understanding of the offenses or his attorneys’
performances. Therefore, contrary to Jones’s claim, we find that the record clearly
reflects that he knowingly, intelligently, and voluntarily pleaded guilty.
{¶15} Jones additionally argues that, considering his low intelligence, the totality
of the circumstances show that he did not understand the consequences of his guilty plea.
Again, we disagree.
{¶16} In State v. Beckwith, 8th Dist. Cuyahoga No. 75927, 2000 Ohio App.
LEXIS 3162 (July 13, 2000), the defendant raised a similar argument, claiming that his
plea was not knowingly, intelligently, or voluntarily made because of his “limited
intelligence.” Id. at *5. The court rejected the defendant’s argument, noting that the
first time he raised his intelligence issue was at sentencing for mitigation purposes and
that there was nothing in the record to support that he was unable to understand the
implications of his plea. Id. at *6. In concluding its opinion, the court stated:
The proceedings in this case were not so subtle that an eighteen-year-old
with a ninth grade education would have had any trouble understanding.
* * * Nothing that defendant said or did gave any indication to the trial
court that he failed to understand the guilty plea proceedings, nor does
defendant now provide any support for this belated claim.
Id. at *8.
{¶17} Jones’s totality-of-the-circumstances argument also fails. First, similar to
Beckwith, concerns over Jones’s mental abilities were raised only at sentencing,
apparently in an effort to mitigate his convictions. Those comments made by Jones’s
attorney have no bearing on his subjective understanding at the plea hearing, especially
considering the absence of any evidence that Jones was confused or unwilling to enter
the plea deal. Besides Jones’s single innocent misunderstanding to the trial court’s
question concerning his counsel — which he subsequently corrected upon further
explanation by his attorney, Jones indicated that he understood exactly what he was
agreeing to. Jones neither asked the court any questions nor expressed any
reservations about pleading guilty. In addition, Jones was 19 years old at the time he
pleaded guilty and previously obtained his GED. While the court psychiatric clinic
placed Jones in the “‘low average’ range of intellectual functioning[,]” the Clinic noted
that he does not suffer from mental illness. Jones has offered no proof besides his own
attorney’s mitigating statements at sentencing to establish any confusion or
misunderstanding. See Avery, 4th Dist. Scioto No. 14CA3613, 2015-Ohio-4251, ¶ 13
(“If appellant continued to be confused, or if she misunderstood the proceedings in
general, there must be some onus on her part to make that fact known.”). Contrary to
his assertions, the totality of the circumstances reflects that Jones understood what he
was doing and that the court substantially complied with Crim.R. 11.
{¶18} Furthermore, Jones fails to demonstrate how the court’s alleged Crim.R. 11
violation prejudiced him. Jones’s mere allegation that he “was prejudiced because his
pleas would not have otherwise been made, if the court had fully complied with Crim.R.
11” is completely refuted by the record. In addition to the fact that, in return for his
guilty plea, Jones avoided going to trial on the remaining 13 counts in Case No.
CR-16-604781-A, the record shows that Jones had every intent to plead guilty to the
amended charges. Therefore, in addition to the fact that he failed to show that the trial
court did not substantially comply with Crim.R. 11, Jones also failed to demonstrate
prejudice.
{¶19} Jones’s first assignment of error is overruled.
III. Postrelease Control
{¶20} In his second assignment of error, Jones argues that the trial court erred by
improperly notifying him of postrelease control during sentencing. The state concedes
this error and does not oppose remanding the issue to correct the imposition of
postrelease control. We agree.
{¶21} When applicable, a sentencing court’s failure to impose a mandatory term
of postrelease control and notify a defendant of the terms of postrelease control renders
that portion of the sentence void, and it must be set aside. State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26; State v. Mitchell, 8th Dist. Cuyahoga
No. 103364, 2016-Ohio-4956, ¶ 16, citing Fischer. When the postrelease control
portion of a sentence is void, a defendant is only entitled to a hearing limited to the
“proper imposition of postrelease control[,]” not an entirely new sentencing hearing.
Fischer at ¶ 29. We have addressed this issue many times before, and this case is no
different. See State v. Palmer, 8th Dist. Cuyahoga No. 95140, 2011-Ohio-1244, ¶ 19
(“[I]t is insufficient for the court to inform the defendant at sentencing that he ‘may be’
subject to postrelease control when postrelease control is mandatory.”); State v. Jones,
8th Dist. Cuyahoga No. 94216, 2010-Ohio-4136, ¶ 5 (vacating the defendant’s sentence
because the court did not impose the mandatory term of postrelease control when it told
the defendant that he was subject to “up to” five years of postrelease control).
{¶22} R.C. 2967.28 sets forth the time periods of postrelease control. The
statute says, in relevant part:
Each sentence to a prison term for a felony of the first degree * * * shall
include a requirement that the offender be subject to a period of postrelease
control imposed by the parole board after the offender’s release from
imprisonment. * * * [A] period of postrelease control required by this
division for an offender shall be one of the following periods: (1) For a
felony of the first degree * * *, five years[.]
R.C. 2967.28(B)(1). If the offense does not fall under section (B) of the statute, then an
offender is “subject to a period of postrelease control of up to three years after the
offender’s release from imprisonment, if the parole board * * * determines that a period
of postrelease control is necessary for that offender.” R.C. 2967.28(C).
{¶23} Here, Jones pleaded guilty to aggravated robbery and felonious assault,
felonies of the first and second degree, in Case No. CR-16-604781-A and receiving
stolen property, a felony of the fourth degree, in Case No. CR-16-604475-C. As a
result, Jones was subject to a mandatory five-year term of postrelease control in Case
No. CR-16-604781-A and a three-year discretionary term of postrelease control in Case
No. CR-16-604475-C. At the sentencing hearing, however, the court did not impose
the three-year discretionary term. In addition, concerning Case No. CR-16-604781-A,
the court informed Jones that he “must be on postrelease control for a period of time of
up to five years, mandatory.”1
{¶24} Both Jones and the state acknowledge the trial court’s error. We agree
with the state that the proper remedy is to remand the case for a limited resentencing
hearing to correct Jones’s sentence concerning his terms of postrelease control.
1
Despite the court’s statements at sentencing, its journal entries for both cases properly
indicated the statutory terms of postrelease control, including that the term for Jones’s conviction in
Case No. CR-16-604781-A was a mandatory five years.
{¶25} Jones’s second assignment of error is sustained.
{¶26} Judgment affirmed in part and reversed in part. We remand for the trial
court to resentence Jones in accordance with R.C. 2967.28.
It is ordered that appellant and appellee share the 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 in part, any bail pending appeal is terminated. Case remanded to the trial
court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
State v. Jones
Combined Opinion