State v. Storey

[Cite as State v. Storey, 2019-Ohio-3515.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107932
v. :

ARTHUR STOREY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
RELEASED AND JOURNALIZED: August 29, 2019

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-622531-A and CR-18-627189-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Janna R. Steinruck, Assistant Prosecuting
Attorney, for appellee.

Stephen L. Miles, for appellant.

RAYMOND C. HEADEN, J.:

I. Statement of the Facts

Appellant Arthur Storey (“Storey”) appeals from the trial court’s

conviction, entered after guilty pleas, sentencing him to four years’ incarceration.
Storey contends his counsel was ineffective and his pleas were not knowingly,

voluntarily, or intelligently made in violation of Crim.R. 11. For the reasons that

follow, we affirm in part, vacate in part, and remand to the trial court.

On November 6, 2017, Storey was indicted in Cuyahoga C.P.

No. CR-17-622531-A for burglarizing an elderly woman’s home. On April 11, 2018,

Storey was indicted in Cuyahoga C.P. No. CR-18-627189-A for breaking and

entering and vandalizing a business. Storey pleaded not guilty to the indictments

under CR-17-622531-A and CR-18-627189-A on March 28, 2018, and April 16, 2018,

respectively.

On June 25, 2018, Storey withdrew his previously entered not guilty

plea under CR-17-622531-A and pleaded guilty to an amended Count 1 of burglary

in violation of R.C. 2911.12(A)(1). In exchange for his guilty plea, the state agreed to

remove the notice of prior conviction specification and repeat violent offender

specification under R.C. 2941.149 and nolled Count 2. On the same date, Storey

withdrew his previously entered not guilty plea under CR-18-627189-A and pleaded

guilty to breaking and entering, in violation of R.C. 2911.13(A), Count 1, and to

vandalism, in violation of R.C. 2909.05(B)(1)(a), Count 2. In exchange for his guilty

pleas under CR-18-627189-A, the state nolled Counts 3, 4, and 5. The court accepted

Storey’s pleas and found him guilty. The court scheduled a sentencing hearing on

August 13, 2018.

During the sentencing hearing, the court imposed a four-year

sentence — four years on CR-17-622531-A, amended Count 1, burglary, to be served
concurrently with two 12-month sentences on CR-18-627189-A, Count 1, breaking

and entering, and Count 2, vandalism.

Storey now appeals, raising two assignments of error for our review.

II. Law and Analysis

A. Ineffective Assistance of Counsel

The Ohio Supreme Court has provided this standard for reviewing

claims of ineffective assistance of counsel:

Reversal of convictions for ineffective assistance of counsel requires
that the defendant show, first, that counsel’s performance was deficient
and, second, that the deficient performance prejudiced the defense so
as to deprive the defendant of a fair trial. Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

State v. Linder, 8th Dist. Cuyahoga No. 106600, 2018-Ohio-3951, ¶ 35, quoting

State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109. To

establish deficient performance, “a defendant must demonstrate that counsel’s

performance fell below an objective standard of reasonable representation.”

(Citations omitted.) State v. Bell, 8th Dist. Cuyahoga No. 105000, 2017-Ohio-7168,

¶ 23. Further, prejudice is found where “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland at 694.

The reviewing court should not, in hindsight, consider what may have

been a more appropriate course of action by trial counsel. Linder at ¶ 37. Instead,

a reviewing court “must be highly deferential.” Strickland at 689. According to the

Strickland court, a reviewing court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Id.

quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

In his first assignment of error, Storey argues that his counsel was

ineffective for failing to request the case be transferred to either the mental health

docket or inpatient drug treatment.

Cases are eligible for the mental health docket where the accused has

“a confirmed severe mental illness with a psychotic feature.” Loc.R. 30.1 of the Court

of Common Pleas of Cuyahoga County, General Division. A review of the record

does not indicate that Storey has a confirmed severe mental illness with a psychotic

feature.

Additionally, the record shows Storey, rather than his defense

counsel, informed the trial judge about his mental health. Storey stated he had a

history of suicide — Storey tried to hang himself and the week before sentencing he

also tried to kill himself “with his own arm.” (Tr. 12.) Through his own statements,

Storey informed the trial judge of the relevant information pertaining to his alleged

mental status. A motion by defense counsel requesting a transfer of the case to the

mental health docket would have simply reiterated these same facts. Whether

Storey’s case was transferred to the mental health docket was at the discretion of the

trial judge. State v. Jones, 8th Dist. Cuyahoga No. 99703, 2014-Ohio-1634, ¶ 3.

Absent evidence that Storey suffered from a confirmed severe mental illness with a
psychotic feature, his case was not eligible for such an assignment. Counsel’s failure

to file a motion to transfer Storey’s case to the mental health docket does not fall

below an objective standard of reasonable representation.

Likewise, defense counsel did not exhibit ineffective assistance of

counsel when he did not request Storey be referred to an inpatient drug treatment

program. Storey told the court he believed that he had a drug habit and he desired

to seek drug rehabilitation: “I have a drug habit. I begged these people to give me

rehab. I begged them and begged, please give me rehab. Please put me in rehab.

Prison [isn’t] working evidently. Prison [is] not working. I begged these people to

give me rehab. They don’t want to give me rehab.” (Tr. 11.) Storey subsequently

commented:

Four more years? Just finished 6 and 13, [not] including a year here,
six months there. It’s been all my life.

I [am] tired of jail. I [am] sick of jail. I’m sick of jail. I’m sick of jail.
All that I am asking is give me a chance. Give me a chance. Let me
prove that I can do this on the street.

Put me in the rehab. No. Everybody want[s] to send me to prison. I
asked them, begged them to put me in rehab before my record got this
bad. I begged. Please. I can’t afford rehab myself. I begged them to
put me in rehab. No. You [are] goin[g] to prison. You [are] goin[g] to
prison. I don’t know. I don’t know.

(Tr. 12.) When the trial court judge agreed to send Storey for drug treatment in

prison, Storey responded “I’m not goin[g]. Why would I do that in prison? It

do[es]n’t help me in prison. I’m in there with a bunch of drug addicts.” (Tr. 15.)
 Through Storey’s comments, the trial judge was presented with

sufficient testimony to understand Storey wanted to be referred for drug treatment

in lieu of prison. The trial judge stated he considered Storey’s oral statements made

during the sentencing hearing in determining an appropriate sentence. (Tr. 13-14.)

Again, a motion made by defense counsel in support of inpatient drug treatment

would have presented the same information that Storey relayed to the trial judge. It

was in the trial judge’s discretion to send Storey to drug treatment but he found a

prison sentence appropriate. The record does not support a claim that defense

counsel was ineffective.

Assuming arguendo that the failure of Storey’s counsel to file a

motion to transfer the case to the mental health docket or inpatient drug treatment

was deficient, Storey cannot establish that he was prejudiced by the alleged errors.

The trial judge considered Storey’s oral statements regarding his mental health and

request for drug treatment but did not opt for a transfer to the mental health docket

or inpatient drug treatment. Based upon the fact that Storey already provided the

court with information regarding his mental health and his desire to receive drug

treatment, Storey has not established how a motion by defense counsel requesting

the same transfers would create a reasonable probability of a different outcome.

State v. Woods, 8th Dist. Cuyahoga No. 88363, 2007-Ohio-2229, ¶ 16.

Based on the foregoing, we cannot say Storey’s defense counsel

rendered ineffective assistance and we overrule Storey’s first assignment of error.
 B. Crim.R. 11 Compliance

In his second assignment of error, Storey contends his guilty pleas

were not knowingly, intelligently, and voluntarily entered and, therefore, were

invalid because they did not comply with Crim.R. 11. Specifically, Storey argues the

trial court failed to identify the maximum penalties for all of the offenses on which

he entered guilty pleas.

The purpose of Crim.R. 11(C) is to provide the defendant with relevant

information so that he can make a voluntary and intelligent decision whether to

plead guilty. State v. Ballard, 66 Ohio St.2d 473, 480, 423 N.E.2d 115 (1981). In

determining whether a guilty plea was entered knowingly, intelligently, and

voluntarily, an appellate court analyzes the totality of the circumstances through a

de novo review of the record. State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-

Ohio-606, ¶ 7. The appellate court evaluates whether the trial court fulfilled the

duties of Crim.R. 11(C)(2) to inform the defendant of the constitutional and

nonconstitutional rights he waives when he enters a guilty plea.

A trial court must strictly comply with the Crim.R. 11(C)(2)(c)

requirements that relate to the waiver of constitutional rights. State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Before accepting a guilty

plea, the trial court must advise the defendant that his plea waives these

constitutional rights: (1) the right to a jury trial, (2) the right to confront one’s

accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to
require the state to prove guilt beyond a reasonable doubt, and (5) the privilege

against compulsory self-incrimination. Id. at ¶ 31.

With respect to the nonconstitutional requirements of Crim.R. 11, set

forth in Crim.R. 11(C)(2)(a) and (b), trial courts must show only substantial

compliance with the rule. State v. Hill, 8th Dist. Cuyahoga No. 106542, 2018-Ohio-

4327, ¶ 8. “‘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.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108,

564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

Even where a trial court errs in attempting to comply with Crim.R. 11(C)(2)(a),

substantial compliance occurs if it appears from the record, despite the trial court’s

error, that the defendant understood the effect of his plea and the waiver of his

rights. State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 15 (8th Dist.).

In evaluating substantial compliance with the nonconstitutional

requirements of Crim.R. 11(C)(2)(a), the court determines whether the trial court

“partially complied” or “completely failed” to comply with the requirement. Id. at

¶ 16. Where partial compliance occurs, the plea may be vacated where the defendant

shows a prejudicial effect. Id. A defendant establishes prejudice where he shows he

would not have entered into the plea if the trial court had substantially complied

with the requirements of Crim.R. 11(C). State v. Moore, 8th Dist. Cuyahoga No.

105240, 2017-Ohio-8483, ¶ 17. Where the trial court completely failed to comply,

no analysis of prejudice is required, and the plea will be vacated. Tutt at ¶ 16.
 Storey argues his pleas under both criminal cases CR-17-622531-A

and CR-18-627189-A do not comply with Crim.R. 11(C)(2) and are invalid. We will

address each criminal case separately.

Case No. CR-17-622531-A — Burglary

Under CR-17-622531-A, Storey pleaded guilty to burglary. Storey

argues that the trial court violated his nonconstitutional rights when it did not

explain the maximum penalties related to the offense of burglary. The state argues

the trial court substantially complied with the Crim.R. 11(C)(2) requirements and,

assuming arguendo substantial compliance was not met, there was no prejudicial

effect to Storey. We agree with the state.

When informing a defendant about nonconstitutional rights in

compliance with Crim.R. 11(C)(2), “‘the court may properly determine that the

defendant understands those other matters from the totality of the circumstances,

without informing him about them directly.’” State v. Chandler, 8th Dist. Cuyahoga

Nos. 93664 and 93665, 2011-Ohio-590, ¶ 99, quoting State v. Gibson, 34 Ohio

App.3d 146, 147, 517 N.E.2d 990 (8th Dist.1986), citing State v. Rainey, 3 Ohio

App.3d 441, 442, 446 N.E.2d 188 (10th Dist.1982); Stewart, 51 Ohio St.2d 86 at 93,

364 N.E.2d 1163. The trial court must satisfy itself that the defendant knows the

applicable maximum penalty involved. Id. The defendant may learn about the

nonconstitutional rights, including the applicable maximum penalties, from the trial

court or other sources such as the prosecutor or defense attorney. State v. Crespo-

Negron, 8th Dist. Cuyahoga No. 107386, 2019-Ohio-1450, ¶ 21. If the prosecutor,
rather than the trial court, communicates in open the court the maximum penalty

and the court confirms the defendant understood the prosecutor’s statements, the

court has substantially complied with Crim.R. 11(C)(2).

At Storey’s plea hearing, the prosecutor identified the plea agreement

the parties had agreed to and stated the maximum penalty involved:

In case number 622531, it’s the State’s understanding the defendant
will be entering a change of plea and entering a guilty plea to an
amended Count One of the indictment, amended to reflect the violation
of 2911.12(A)(1), felony in the second degree, burglary, which is
punishable by a possible term of incarceration of two to eight years and
a maximum fine of $15,000.

(Tr. 3.) The court added that “in the event the Court were to sentence Mr. Storey to

a term of imprisonment, he’d be subject to a mandatory period of post-release

control * * *.” (Tr. 4.) Mr. Storey indicated he understood all the information

provided by the prosecutor and his counsel. The court then identified the

constitutional rights Storey would waive when entering a guilty plea. At the

conclusion of the hearing, the court found Storey knowingly, intelligently, and

voluntarily made his plea and his counsel stated he was satisfied the court complied

with Crim.R. 11.

The trial court satisfied itself that based upon the totality of the

circumstances, Storey subjectively understood the maximum penalty applicable and

the rights he was waiving where (1) the prosecutor explained the plea agreement

including the maximum penalty involved and (2) Storey responded to the court that

he understood everything stated by the prosecutor and his attorney. Storey’s plea to
the burglary offense under CR-17-622531-A was knowingly, intelligently, and

voluntarily made and the court’s acceptance of the plea was valid.

Accordingly, Storey’s second assignment of error is overruled as to

the guilty plea for burglary charged in CR-17-622531-A.

Case No. CR-18-627189-A — Breaking and Entering and Vandalism

Storey argues his guilty plea under CR-18-627189-A to the offenses of

breaking and entering and vandalism was not knowingly, intelligently, or voluntarily

provided because the court did not identify the maximum penalties associated with

the offenses. The state conceded the court showed zero compliance with

Crim.R. 11(C)(2)(a). Neither the court nor the prosecutor recited the maximum

penalties involved with these offenses. A failure to inform the defendant about the

maximum penalty involved is a failure to comply with Crim.R. 11(C)(2)(a). Tutt,

2015-Ohio-5145, 54 N.E.3d 619, at ¶ 31 (8th Dist.). Under such a scenario, we do

not analyze whether the defendant was prejudiced, or would not have otherwise

entered the plea, but vacate the plea. Id. at ¶ 16.

Because the record reflects Storey was unaware of the maximum

penalty involved with his guilty pleas entered on breaking and entering and

vandalism under CR-18-627189-A, we find Storey did not knowingly, intelligently,

or voluntarily enter his pleas to those charges.

Storey’s second assignment of error is sustained as to his pleas for

breaking and entering and vandalism charged in CR-18-627189-A.
 Accordingly, we vacate Storey’s guilty pleas and reverse his

convictions on breaking and entering and vandalism under CR-18-627189-A. Case

is remanded to the trial court on the charges of breaking and entering and vandalism

under CR-18-627189-A for further proceedings consistent with this opinion.

Storey’s conviction for burglary under CR-17-622531-A is affirmed.

Judgment affirmed in part, vacated in part, and remanded to the trial

court for further proceedings consistent with this opinion.

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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

RAYMOND C. HEADEN, JUDGE

MARY EILEEN KILBANE, A.J., and
LARRY A. JONES, SR., J., CONCUR