[Cite as State v. Carrisales, 2018-Ohio-520.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-17-007
Appellee Trial Court No. 16 CR 070
v.
Jordan Carrisales DECISION AND JUDGMENT
Appellant Decided: February 9, 2018
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.
Loretta A. Riddle, for appellant.
*****
JENSEN, J.
{¶ 1} Appellant, Jordan Carrisales, appeals the February 10, 2017 judgment of the
Ottawa County Court of Common Pleas sentencing him to 17 months in prison. For the
following reasons, we affirm.
I. Background
{¶ 2} On July 12, 2016, Carrisales was charged with one count of sexual battery in
violation of R.C. 2907.03(A)(2), a third-degree felony. On October 13, 2016, Carrisales
pleaded guilty to the amended count of gross sexual imposition in violation of R.C.
2907.05(A)(5), a fourth-degree felony.
{¶ 3} During the plea hearing, the court explained the consequences of
Carrisales’s plea of guilty to the gross sexual imposition charge. It addressed the
maximum prison term and fine; the mandatory three-year term of postrelease control that
would be imposed if he served a prison term and penalties for violating postrelease
control; and Carrisales’s Tier I sex offender status and registration requirements.
Carrisales responded affirmatively each time the judge asked him if he understood a term
of his guilty plea.
{¶ 4} While reviewing the plea agreement, the court asked Carrisales if he had
read the plea agreement and understood what it said. Carrisales said that he did. When
the court addressed Carrisales’s understanding of the gross sexual imposition charge, the
following exchange occurred:
[Court:] What is it you are intending to plead guilty to today?
[Carrisales:] F-4 gross sexual imposition.
[Court:] Do you understand what the State would need to prove to
show that you are guilty of the offense?
[Carrisales:] No, sir.
2.
[Court:] Okay. Do you know what you are alleged to have done?
[Carrisales:] Yeah.
[Court:] [Defense counsel], have you had the opportunity to explain
to Jordan what this offense is?
[Defense Counsel:] Yes. Prior to today, I visited Jordan. We went
over obviously the offense. It was a sexual battery. We went over what the
offense—what the elements of the offense were that the State would need
to prove, so we would waive reading of that at this time.
{¶ 5} The court went on to explain that Carrisales was giving up his right to a trial
by jury, right to confront witnesses, right to compulsory process, and right against self-
incrimination by pleading guilty. The court explained each right before asking Carrisales
if he understood the rights he was giving up. Carrisales replied “yes” to each question.
{¶ 6} Finally, the court asked Carrisales about the facts of the offense:
[Court:] So tell me what happened.
[Carrisales:] I was found guilty—
[Court:] —What did you do?
[Carrisales:] Well, I woke up and saw her and the dude that was
with me having sex, and then I ended up having sex with her, too, and I
knew she was under the influence.
[Court:] She was under the influence?
[Defense counsel:] And she was a minor.
3.
[Court:] And a minor. How old?
[Defense counsel:] 17.
[Carrisales:] 17.
[Court:] Is that right?
[Carrisales:] Yes, sir.
The court did not elicit any information about the circumstances of the offense from the
state.
{¶ 7} At the conclusion of the hearing, the court found that Carrisales knowingly,
intelligently, and voluntarily entered a guilty plea, accepted Carrisales’s plea, and set a
sentencing hearing.
{¶ 8} On December 12, 2016, the parties appeared for the scheduled sentencing
hearing. Counsel explained to the court that some of the information in the plea
agreement was incorrect, so the court had incorrectly informed Carrisales about the
consequences of his plea. The parties submitted an amended plea agreement that
Carrisales signed. The court reviewed the amended maximum fine ($5,000) and the
correct term of postrelease control (a mandatory five years) with Carrisales. Carrisales
confirmed to the court that he understood the amended terms and still wanted to plead
guilty. The court accepted Carrisales’s guilty plea based on the amended plea agreement.
The parties agreed to reschedule the sentencing.
4.
{¶ 9} The trial court held Carrisales’s sentencing hearing on February 10, 2017.
At the hearing, the trial court first reviewed with Carrisales the terms of his Tier I sex
offender classification, including the registration requirements and residential restrictions.
{¶ 10} Next, the state addressed the court. The prosecutor noted that Carrisales
had very little prior criminal history; that, although Carrisales, the victim, and others were
drinking on the night of the offense, intoxication did not eliminate Carrisales’s culpability
for a “violent and predatory” offense; and that Carrisales was given the benefit of
pleading guilty to a reduced charge.
{¶ 11} Carrisales’s attorney then addressed the court. He said that Carrisales took
responsibility for his actions on the night of the offense and was aware that his behavior
was wrong; he recognized that he could not take advantage of intoxicated, sleeping
women. Counsel asked the court to place Carrisales on community control.
{¶ 12} Following his attorney’s statement, Carrisales briefly addressed the court.
He said that he understood and acknowledged his mistakes, accepted full responsibility
for his actions, apologized for his behavior, and asked the court to “help me find the
proper treatment needed to better myself.”
{¶ 13} After hearing from counsel and Carrisales, the court reviewed the record.
The judge noted that Carrisales had committed a serious offense that was reduced to a
fourth-degree felony. He also noted that Carrisales was initially dishonest with the police
officers who investigated the case. He said that the assessments Carrisales completed
prior to sentencing showed that Carrisales needed treatment.
5.
{¶ 14} The court stated that it considered the principles and purposes of sentencing
under R.C. 2929.11, the seriousness and recidivism factors under R.C. 2929.12, and the
felony sentencing guidance factors under R.C. 2929.13. The court found that the factors
in R.C. 2929.12 showing that Carrisales was more likely to reoffend outweighed those
showing that he was less likely to reoffend. Thereafter, the court sentenced Carrisales to
17 months in prison.
{¶ 15} Carrisales now appeals the trial court’s decision, raising three assignments
of error:
ASSIGNMENT OF ERROR NO. I. THE TRIAL COURT
COMMITTED PLAIN ERROR WHEN IT ACCEPTED DEFENDANT’S
PLEA, FOUND DEFENDANT GUILTY AND SENTENCED
DEFENDANT TO GROSS SEXUAL IMPOSITION IN VIOLAITON [sic]
OF R.C. 2907.05(A)(5) WHEN DEFENDANT’S RECITATION OF THE
ACTS HE COMMITTED DID NOT MEET THE ELEMENTS OF GROSS
SEXUAL IMPOSITION.
ASSIGNMENT OF ERROR NO. II. THE TRIAL COURT
COMMITTED PREJUDICIAL AND PLAIN ERROR BY FAILING TO
EINSURE [sic] THAT APPELLANT ENTERED INTO A PLEA “WITH
UNDERSTANDING OF THE NATURE OF THE CHARGE”.
ASSIGNMENT OF ERROR NO. III. THE TRIAL COURT’S
IMPOSITION OF NEARLY THE MAXIMUM SENTENCE IS
6.
CONTRARY TO LAW AND NOT SUPPORTED BY THE RECORD.
HENCE IT VIOLATED MR. CARRISALES’ RIGHTS UNDER R.C.
2929.14(C) AND 2929.19, AND UNDER THE DUE PROCESS
CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS.
Law and Analysis
A. Carrisales was not Required to Admit to Facts Supporting the Charge
{¶ 16} In his first assignment of error, Carrisales argues that the trial court
committed plain error when it accepted his plea without a factual basis to support a
charge of gross sexual imposition. The state counters that this failure did not affect
Carrisales’s understanding of the nature of the charge against him.
{¶ 17} “‘A plea of guilty, from an early period in the history of criminal
procedure, * * * has been regarded as an admission of every material fact well pleaded in
the indictment, dispensing with the necessity of proving them, and authorizing the court
to proceed to judgment.’” State v. Blevins, 6th Dist. Ottawa No. OT-16-013, 2016-Ohio-
8382, ¶ 18, quoting Craig v. State, 49 Ohio St. 415, 418, 30 N.E. 1120 (1892).
(Emphasis sic.) Moreover, Crim.R. 11 does not require that a factual basis for a guilty
plea be placed on the record. Id., citing State v. Post, 32 Ohio St.3d 380, 387, 513 N.E.2d
754 (1987).
{¶ 18} Despite Carrisales’s belief to the contrary, the record need not contain a
factual basis for the charge to which he pleaded guilty; his choice to enter a guilty plea is
a complete admission of his guilt and “dispenses with the necessity of” the state having to
7.
prove every element of the offense. Therefore, we find that the trial court did not err by
accepting Carrisales’s guilty plea without putting a factual basis for the plea on the
record. Carrisales’s first assignment of error is not well-taken.
B. Carrisales Understood the Nature of the Charge Against Him
{¶ 19} In his second assignment of error, Carrisales claims that his guilty plea is
invalid because he entered it without an understanding of the nature of the charge against
him. The state contends that Carrisales understood the charge against him and, even if he
did not, he has not demonstrated that he was prejudiced by the trial court accepting his
plea.
{¶ 20} Under both the United States and Ohio Constitutions, a guilty plea must be
made knowingly, intelligently, and voluntarily to be valid. Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996). Therefore, before accepting a defendant’s guilty plea, the trial court
must address the defendant personally to inform him that he waives certain constitutional
rights by pleading guilty and to determine that he understands the nature of the charges
against him, the maximum penalty he is facing, and the effects of his plea. State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41; Crim.R.
11(C)(2). The underlying purpose of Crim.R. 11(C) is to ensure that the information a
defendant needs to make a voluntary and intelligent decision about pleading guilty is
conveyed to him. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).
8.
{¶ 21} There are two levels of compliance with Crim.R. 11(C): strict and
substantial. The court must strictly comply with the rule when explaining the defendant’s
constitutional rights or the plea is invalid under the presumption that it was not
knowingly and voluntarily entered. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,
893 N.E.2d 462, ¶ 31; State v. Rinehart, 6th Dist. Wood No. WD-11-030, 2013-Ohio-
3372, ¶ 17.
{¶ 22} For non-constitutional rights, on the other hand, substantial compliance is
sufficient. Clark at ¶ 31; Rinehart at ¶ 18; State v. Ragusa, 6th Dist. Lucas No.
L-15-1244, 2016-Ohio-3373, ¶ 4. “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474
(1990).
{¶ 23} Under Crim.R. 11(C), the trial court is required to determine whether the
defendant is entering a voluntary plea in light of an understanding of the key facts; the
rule does not require that the court personally notify the defendant of these facts. State v.
Acosta, 6th Dist. Wood No. WD-15-066, 2016-Ohio-5698, ¶ 10. Compliance with the
rule generally does not require the trial court to recite each element of the charges against
the defendant. State v. Gallant, 6th Dist. Erie No. E-12-033, 2013-Ohio-3953, ¶ 9, citing
State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 57.
{¶ 24} Here, the transcript of the plea hearing establishes that the trial court
engaged in a full and complete colloquy with Carrisales concerning his plea, as required
9.
by Crim.R. 11(C). The trial court strictly complied with Crim.R. 11(C)(2)(c) by
providing explanations of each of the constitutional rights Carrisales waived by entering a
plea, and Carrisales unequivocally indicated that he understood each right and understood
that he was waiving those rights by pleading guilty.
{¶ 25} The trial court also substantially complied with Crim.R. 11(C)(2)(a) and
(b). The court ensured that Carrisales knew the degree of the offense, the maximum
penalty and fine for the offense, the sex offender classification attached to the offense,
and the consequences of being classified as a sex offender. Additionally, Carrisales
signed plea papers that contained the statement “I understand the nature of these charges
and the possible defenses I might have,” and he told the trial court that he understood the
plea papers. Although Carrisales said that he did not know the elements of gross sexual
imposition (and the trial court did not tell him the elements of gross sexual imposition),
Carrisales knew the conduct he was accused of, defense counsel indicated that he had
discussed the charge and its elements with Carrisales prior to the plea hearing, and
counsel expressly told the court that Carrisales waived reading of the elements of gross
sexual imposition. This is sufficient to show that, under the totality of the circumstances,
Carrisales understood the implications of pleading guilty to a charge of gross sexual
imposition.
{¶ 26} The record demonstrates that the trial court complied with the requirements
of Crim.R. 11(C)(2) and that, based on the totality of the circumstances, Carrisales
understood the implications of his plea and the rights he waived. We find, therefore, that
10.
Carrisales’s plea of guilty was made voluntarily, knowingly, and intelligently.
Accordingly, Carrisales’s second assignment of error is not well-taken.
C. Carrisales’s Sentence is not Contrary to Law
{¶ 27} Carrisales’s third assignment of error asserts that his sentence is contrary to
law. He claims that the trial court erred by sentencing him to “nearly the maximum
sentence.” The state counters that Carrisales was not sentenced to the maximum sentence
for fourth-degree gross sexual imposition, so Carrisales’s arguments are inapplicable to
his sentence.
{¶ 28} We review sentencing challenges under R.C. 2953.08(G)(2). The statute
allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate
the sentence and remand the matter for resentencing only if it clearly and convincingly
finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. R.C.
2953.08(G)(2).
An appellate court may not review a trial court’s sentence for an abuse of discretion.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10.
11.
{¶ 29} As we recognized in State v. Tammerine, 6th Dist. Lucas No. L-13-1081,
2014-Ohio-425, ¶ 16, we still use State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124, in determining whether a sentence is clearly and convincingly contrary
to law. In Kalish, the Supreme Court of Ohio held that a sentence is not clearly and
convincingly contrary to law where the trial court has considered the purposes and
principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors
under R.C. 2929.12, properly applied postrelease control, and imposed a sentence within
the statutory range. Kalish at ¶ 18.
{¶ 30} Despite Carrisales’s claim that his sentence is contrary to law, the
substance of his argument is that the trial court abused its discretion by imposing a “near
maximum” sentence. We cannot consider whether a sentence term is an abuse of the trial
court’s discretion. Marcum at ¶ 10.
{¶ 31} When we consider Carrisales’s sentence under R.C. 2953.08(G)(2), his
argument that his sentence is contrary to law fails. Carrisales does not argue that the trial
court failed to consider the purposes and principles of sentencing under R.C. 2929.11, the
seriousness and recidivism factors under R.C. 2929.12, or the sentencing guidance factors
under R.C. 2929.13; improperly applied postrelease control; imposed a sentence outside
the statutory range; or made unsupported findings under any of the statutory sections
listed in R.C. 2953.08(G)(2)(a).
{¶ 32} On the contrary, the record shows that the trial court stated at the
sentencing hearing and in its judgment entry of conviction and sentence that it considered
12.
the principles and purposes of sentencing, the seriousness and recidivism factors, and the
sentencing guidance factors. It specifically found that the more-likely-to-reoffend factors
outweighed the less-likely-to-reoffend factors. It also informed Carrisales about the
terms and conditions of the mandatory five years of postrelease control he will be subject
to when he is released from prison. The 17-month sentence is within the range for
fourth-degree felonies. R.C. 2929.14(A)(4) (the range of sentences that a trial court may
impose for a fourth-degree felony is “six, seven, eight, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen, seventeen, or eighteen months.”).
{¶ 33} The record shows that the trial court complied with all applicable
sentencing statutes when it sentenced Carrisales to prison. We therefore find that
Carrisales’s sentence is not clearly and convincingly contrary to law under R.C.
2953.08(G)(2). Accordingly, Carrisales’s third assignment of error is not well-taken.
III. Conclusion
{¶ 34} Based on the foregoing, the February 10, 2017 judgment of the Ottawa
County Court of Common Pleas is affirmed. Carrisales is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
13.
State v. Carrisales
C.A. No. OT-17-007
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
14.