State v. Cummings

[Cite as State v. Cummings, 2018-Ohio-3994.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 106262, 106263,
106264, and 106268

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

KENSHAWN CUMMINGS
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeals from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-607464-B, CR-16-608613-A,
CR-16-610231-A, and CR-17-617167-A

BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.

RELEASED AND JOURNALIZED: September 27, 2018
[Cite as State v. Cummings, 2018-Ohio-3994.]
ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Andrea N. Isabella
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Cummings, 2018-Ohio-3994.]
MARY J. BOYLE, J.:

{¶1} Defendant-appellant, Kenshawn Cummings, appeals the voluntariness of

his guilty pleas.1 He raises one assignment of error for our review:

The trial court failed to ascertain that appellant voluntarily entered into his
plea agreements by failing to determine (after asking the question) whether
anyone had threatened or promised anything (other than what was set forth
in the record) that [would] cause appellant to change his plea.

{¶2} Finding no merit to his assignment of error, we affirm.

I. Procedural History and Factual Background

{¶3} A Cuyahoga County Grand Jury indicted Cummings in the following cases

for the following charges:

Cuyahoga C.P. No. CR-16-607464-B: one count of aggravated menacing,
one count of drug possession, one count of falsification, and one count of
illegal conveyance into detention facility;2

Cuyahoga C.P. No. CR-16-607962-A: one count of aggravated robbery, one
count of robbery, one count of felonious assault, and one count of petty
theft;

Cuyahoga C.P. No. CR-16-608613-A: one count of burglary and one
count of criminal damaging;

Cuyahoga C.P. No. CR-16-608614-A: one count of attempted murder,
two counts of felonious assault, two counts of aggravated robbery, one
count of kidnapping, one count of discharging a firearm on or near
prohibited premises, and two counts of having weapons while under
disability;

1
This appeal is a companion case to the appeal in State v. Cummings, 8th Dist. Cuyahoga
Nos. 106261 and 106265.
2
Cummings was indicted alongside codefendant Brandon E. Cleveland.
 Cuyahoga C.P. No. CR-16-610231-A: one count of burglary and one
count of aggravated theft;

Cuyahoga C.P. No. CR-17-617167-A: two counts of burglary, one count of
breaking and entering, and one count of aggravated theft.

{¶4} In March 2017, the trial court granted the state’s request to join Case Nos.

CR-16-608614-A and CR-16-607962-A, and those cases proceeded to a jury trial. In

March 2017, a jury found Cummings guilty of two counts of felonious assault with

firearm specifications, two counts of aggravated robbery with firearm specifications,

kidnapping with firearm specifications, discharging a firearm on or near prohibited

premises with firearm specification, and having a weapon while under disability in Case

No. CR-16-608614-A. As to Case No. CR-16-607962-A, the jury found Cummings

guilty of aggravated robbery, robbery, felonious assault, and petty theft. Based on

Cummings’s remaining cases, the trial court did not sentence him for those convictions

until August 2017.

{¶5} In August 2017, Cummings agreed to a “packaged” plea agreement for his

remaining cases, under which the following occurred:

Case No. CR-16-607464-B: Pleaded guilty to drug possession, a
fifth-degree felony, in violation of R.C. 2925.11(A); and falsification, a
first-degree misdemeanor, in violation of R.C. 2921.13(A)(3). He also
agreed to forfeit $417 and three cell phones. The state nolled the remaining
counts.

Case No. CR-17-617167-A: Pleaded guilty to burglary, a third-degree
felony, in violation of R.C. 2911.12(A)(3). The state nolled the remaining
counts.
 Case No. CR-16-608613-A: Pleaded guilty to an amended count of
burglary, a third-degree felony, in violation of R.C. 2911.12(A)(3). The
state nolled the remaining count.

Case No. CR-16-610231-A: Pleaded guilty to an amended count of
burglary, a third-degree felony, in violation of R.C. 2911.12(A)(3). The
state nolled the remaining count.

{¶6} When explaining the proposed plea agreement, the state described the

penalties for third-degree and fifth-degree felonies and first-degree misdemeanors. The

state said, “No promises, threats, or representations have been made in order to induce

said plea[.]”

{¶7} The trial court then asked if Cummings understood the terms of the plea

agreement (which Cummings said he did), inquired as to his level of education and

reading and writing skills (to which Cummings replied that he had problems with reading

and writing, but that his “lawyer broke everything down to [his] understanding”), asked

whether he was under the influence of drugs or alcohol (which Cummings said he was

not), explained the consequences of Cummings currently being on probation while

committing these offenses, and explained the constitutional rights that Cummings was

waiving. When asked, Cummings stated that he was satisfied with his representation

and understood the offenses to which he was pleading as well as the punishment for those

offenses.

{¶8} The following exchange then occurred:

COURT: Has anyone threatened you or promised you anything
to force you to change your plea, other than what I’ve
talked to your attorney about and [the prosecutor], that
 if you agree to accept responsibility in these cases, that
I would run the terms, any terms in these cases
concurrent with any time that would be imposed for the
trial cases, 608614 and 607962. Is that your
understanding?

[DEFENSE
COUNSEL]: Your Honor, just maybe for clarification purposes, I’ve
indicated to him that we had an in-chambers
conversation with the prosecutor present, that any
imposition of prison on the plea cases, meaning the
three F3 burglaries, the F5 drug possession, and the
falsification M1, that the court indicated to the parties
that he would get a concurrent sentence on those four
cases and that that sentence would be concurrent to his
two trial cases, irrespective of what the sentence was
on the trial cases. That’s what I’ve explained to him,
and he wants to make sure that he’s clear on that.

{¶9} The court, state, and defense counsel then engaged in a lengthy discussion

about whether Cummings’s sentences for the charges under his plea deal would run

concurrent to one another as well as to the sentences from his trial. Ultimately, the

parties agreed, and the court stated that the sentences for the charges under the plea

agreement would run concurrent to each other and to the sentences imposed in the other

two cases for which Cummings went to trial. The court then asked Cummings whether

he understood “that there’s no promise of any particular sentence in this matter; the court

could proceed with judgment, I could sentence you immediately after I accept your

plea[,]” to which Cummings responded that he understood.

{¶10} Cummings then pleaded guilty to the charges under the plea agreement.

The court found that Cummings “knowingly and voluntarily, with a full understanding of
his rights entered [into the] guilty pleas.” The court asked the state and defense counsel

whether he complied with Crim.R. 11, to which they both answered yes.

{¶11} On August 30, 2017, the court sentenced Cummings as follows:

Case No. CR-15-595919-B (probation violation): 12 months for vandalism
and 6 months for tampering with a coin operated machine to run concurrent
to one another.

Case No. CR-16-607464-B: 12 months for drug possession and 6 months
for falsification to run concurrent to one another.

Case No. CR-16-607962-A: 11 years total — 11 years for aggravated
robbery, 8 years for felonious assault, and 6 months for petty theft to run
consecutive to his sentence in Case No. CR-16-608614-A.

Case No. CR-16-608613-A: 36 months for burglary.

Case No. CR-16-608614-A: 14 years total — 8 years for felonious assault
and a 3-year consecutive firearm specification; 11 years for aggravated
robbery and a 3-year consecutive firearm specification; 36 months for
discharging a firearm at or near prohibited premises; and 36 months for
heaving a weapon while under disability, all of which were to run
concurrent to one another, but consecutive to his sentence in Case No.
CR-16-607962-A.

Case No. CR-16-610231-A: 36 months for burglary.

Case No. CR-17-617167-A: 36 months for burglary.

{¶12} The court ordered that the sentences in Case Nos. CR-15-595919-B,

CR-16-607464-B, CR-16-608613-A, CR-16-610231-A, and CR-17-617167-A run

concurrent to the sentences in Case Nos. CR-16-608614-A and CR-16-607962-A, giving

Cummings a total of 25 years incarceration.

{¶13} It is from this judgment that Cummings now appeals.
II. Law and Analysis

{¶14} In his sole assignment of error, Cummings argues that he did not knowingly,

intelligently, or voluntarily enter into his guilty plea because the trial court failed to

determine whether anyone had threatened or promised him anything in exchange for his

plea.

{¶15} We review whether the trial court accepted Cummings’s plea in compliance

with Crim.R. 11(C) de novo. State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th

Dist.), citing State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606. A

defendant must enter into a plea knowingly, intelligently, and voluntarily for it to be

constitutional under the United States and Ohio Constitutions. State v. Engle, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996), citing Kercheval v. United States, 274 U.S. 220,

47 S.Ct. 582, 71 L.Ed. 1009 (1927). To ensure the constitutionality of pleas, Crim.R.

11(C) sets forth specific procedures that trial courts must follow when accepting guilty

pleas, covering the waiver of constitutional rights and the explanation of

nonconstitutional rights. See State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474

(1990) (“Ohio Crim.R. 11(C) was adopted in order to facilitate a more accurate

determination of the voluntariness of a defendant’s plea by ensuring an adequate record

for review.”).

{¶16} Before a defendant waives his constitutional rights, “a ‘trial court must

inform the defendant that he is waiving his privilege against compulsory

self-incrimination, his right to jury trial [sic], his right to confront his accusers, and his
right of compulsory process of witnesses.’” State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, ¶ 12, quoting State v. Ballard, 66 Ohio St.2d 473, 423

N.E.2d 115 (1981). “When a trial court fails to strictly comply with this duty, the

defendant’s plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, syllabus.

{¶17} A trial court must also make findings and disclosures concerning a

defendant’s nonconstitutional rights. Specifically, a trial court must

[d]etermin[e] 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 [and] [inform] the defendant of and determin[e] 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.

Crim.R. 11(C)(2)(a) and (b). A trial court must only substantially comply with Crim.R.

11’s requirements when advising a defendant of his nonconstitutional rights. Veney at ¶

14. ‘“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. Mitchell, 8th Dist. Cuyahoga No. 103364, 2016-Ohio-4956, ¶ 10,

quoting Nero. ‘“If it appears from the record that the defendant appreciated the effect of

his plea and his waiver of rights in spite of the trial court’s error, there is still substantial

compliance.’” Id., quoting State v. Caplinger, 105 Ohio App.3d 567, 664 N.E.2d 959

(4th Dist.1995).
 {¶18} In addition to showing noncompliance, “a defendant must show prejudice

before a plea will be vacated for a trial court’s error involving Crim.R. 11(C) procedure

when nonconstitutional aspects of the plea colloquy are at issue.” State v. Owens, 8th

Dist. Cuyahoga Nos. 100398 and 100399, 2014-Ohio-2275, ¶ 12, citing Veney. To

establish prejudice, a defendant must show that, had the trial court substantially complied

with Crim.R. 11(C)’s requirements, he would not have entered into the plea. State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero, 56 Ohio

St.3d at 108, 564 N.E.2d 474.

{¶19} In support of his assignment of error, Cummings points to Fed.R.Crim.P. 11,

which explicitly requires the trial court to “determine that the plea is voluntary and did

not result from force, threats, or promises (other than promises in a plea agreement)”

before accepting a guilty plea. While Cummings’s recitation of Fed.R.Crim.P. 11 is

correct, Ohio’s Crim.R. 11 does not contain the same language. Crim.R. 11(C) requires

a trial court to do all of the following before accepting a guilty plea:

(a) Determin[e] 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) [Inform] the defendant of and determin[e] 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) [Inform] the defendant and determin[e] 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.

Unlike Fed.R.Crim.P. 11, Ohio’s Crim.R. 11 does not explicitly require the trial court to

determine that the defendant’s guilty plea did not result from force, threats, or promises

not included in the plea agreement. See State v. Staten, 7th Dist. Mahoning No. 03 MA

187, 2005-Ohio-1350, ¶ 31 (noting that Crim.R. 11 “does not explicitly” require a trial

court to ask whether any promises or threats were made before accepting a guilty plea,

unlike Fed.R.Crim.P. 11(b)(2)).

{¶20} Cummings also argues that Crim.R. 11(C)’s requirement that the trial court

determine “that the defendant is making the plea voluntarily” creates a duty “to ascertain

whether it has been induced by any promises or threats other than those set forth in the

record.”

{¶21} “A guilty plea, if induced by promises or threats which deprive it of the

character of a voluntary act, is void.” Machibroda v. United States, 368 U.S. 487, 493,

82 S.Ct. 510, 7 L.Ed.2d 473 (1962). “It must be pointed out[, however that] the primary

means for a trial court to ascertain that a plea is being made voluntarily is to uncover

whether the defendant understands the nature of the charges and the constitutional rights

that are being waived by pleading guilty[.]” Staten at ¶ 43.

{¶22} In Staten, the court found that the appellant’s guilty plea was voluntary

because the trial court reviewed the charges against the defendant, explained the possible

penalties, and recited the constitutional rights that the defendant was waiving. Staten,
7th Dist. Mahoning No. 03 MA 187, 2005-Ohio-1350, at ¶ 38. The court also noted that

the trial court reviewed the defendant’s written guilty plea in which the defendant stated

that he was not coerced or induced by any threats or promises. Id. at ¶ 34. The court

found that “[a]lthough the trial judge never specifically used the word ‘voluntary’ in its

lengthy colloquy with Appellant, the colloquy as a whole was the trial court’s method of

ascertaining whether the plea was being made voluntary.” Id. at ¶ 40.

{¶23} In this case, the trial court also engaged in a lengthy colloquy with

Cummings, during which it explained the charges against him, listed the possible

penalties — including a lengthy discussion about whether the sentences for each of

Cummings’s convictions would be concurrent, and reviewed the constitutional rights that

Cummings was waiving. Thus, while the trial court did not get an explicit answer to its

question about whether Cummings’s plea was the result of promises or threats not

included in the plea agreement, it did ensure that Cummings understood the charges

against him and the constitutional rights that he was waiving by entering into a plea

agreement. At no point during the plea hearing did Cummings express that he did not

want to plea or that he was even hesitant about pleading guilty. In fact, Cummings

stated that his attorney “broke everything down to [him]” and that he understood the plea

agreement. The state also said during the plea hearing that “[n]o promises, threats, or

representations have been made in order to induce said plea[.]” Based on the above, we

find that Cummings voluntarily entered into his plea.
 {¶24} Finally, Cummings has not shown that he was prejudiced, which he must do

before we vacate a plea based on a trial court’s error as to nonconstitutional aspects of a

plea colloquy. As a result, we overrule his assignment of error.

{¶25} Judgment affirmed.

It is ordered that appellee recover from appellant 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 convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
[Cite as State v. Cummings, 2018-Ohio-3994.]
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR