State v. Phillips

[Cite as State v. Phillips, 2020-Ohio-2785.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-19-43

v.

NEELY R. PHILLIPS, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR 2018 0121

Judgment Affirmed

Date of Decision: May 4, 2020

APPEARANCES:

Donald Gallick for Appellant

Jana E. Emerick for Appellee
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PRESTON, J.

{¶1} Defendant-appellant, Neely R. Phillips (“Phillips”), appeals the August

20, 2018 judgment of sentence of the Allen County Court of Common Pleas. For

the reasons that follow, we affirm.

{¶2} On May 17, 2018, the Allen County Grand Jury indicted Phillips on

seven counts: Counts One, Two, Three, and Six of aggravated trafficking in drugs

in violation of R.C. 2925.03(A)(1), (C)(1)(d), second-degree felonies; Counts Four

and Five of aggravated possession of drugs in violation of R.C. 2925.11(A),

(C)(1)(b), third-degree felonies; and Count Seven of aggravated possession of drugs

in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 4). On

May 25, 2018, Phillips appeared for arraignment and entered pleas of not guilty to

the counts in the indictment. (Doc. No. 10).

{¶3} On July 2, 2018, under a negotiated plea agreement, Phillips withdrew

her pleas of not guilty and entered guilty pleas to Counts One, Two, Four, and Five.

(Doc. Nos. 23, 24). In exchange, the State agreed to dismiss Counts Three, Six, and

Seven. (Id.). The trial court accepted Phillips’s guilty pleas, found her guilty, and

ordered a presentence investigation. (Doc. No. 24). The trial court also dismissed

Counts Three, Six, and Seven. (Id.).

{¶4} On August 20, 2018, the trial court sentenced Phillips to 6 years in

prison on Count One, 5 years in prison on Count Two, 24 months in prison on Count

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Four, and 24 months in prison on Count Five. (Doc. No. 29). The trial court ordered

that the prison terms imposed in Counts One, Two, Four, and Five be served

consecutively to one another for an aggregate term of 15 years’ imprisonment. (Id.).

{¶5} Phillips filed her notice of appeal on July 5, 2019.1 (Doc. No. 35). She

raises two assignments of error.

Assignment of Error No. I

The plea violated Criminal Rule 11 as the trial court failed to
inform Appellant on the record that she had the Constitutional
right to testify and if she chose to remain silent the State could not
comment on her silence as required by the Fifth, Sixth, and
Fourteenth Amendments.

{¶6} In her first assignment of error, Phillips argues that the trial court erred

by failing to adhere to the requirements of Crim.R. 11 at her change-of-plea hearing.

Specifically, Phillips argues that the trial court failed to inform her at the time of her

change of plea that she had the right to testify on her own behalf at trial and that if

she chose to remain silent, the State could not comment on the fact that she did not

testify. Phillips contends that as a result of the aforementioned omissions, her plea

is rendered invalid.

{¶7} “All guilty pleas must be made knowingly, voluntarily, and

intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-

1
On July 5, 2019, Phillips filed a motion for leave to file a delayed appeal. (Appellate Doc. No. 2). On
August 14, 2019, this court granted Phillips’s motion for leave to file a delayed appeal. (Appellate Doc. No.
4).

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Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “‘Crim.R.

11(C) is intended to ensure that guilty pleas are entered knowingly, intelligently,

and voluntarily.’” Id., quoting State v. Cortez, 3d Dist. Hancock Nos. 5-07-06 and

5-07-07, 2007-Ohio-6150, ¶ 16, citing State v. Windle, 4th Dist. Hocking No.

03CA16, 2004-Ohio-6827, ¶ 7. “‘Failure to ensure that a plea is entered knowingly,

intelligently, and voluntarily renders its enforcement unconstitutional.’” State v.

Howard, 3d Dist. Logan Nos. 8-17-01 and 8-17-09, 2017-Ohio-8020, ¶ 19, quoting

State v. Phillips, 3d Dist. Van Wert No. 15-12-02, 2012-Ohio-5950, ¶ 24, citing

Engle at 527. “‘Prejudice is presumed if the court fails to inform the defendant of

the constitutional rights listed in Crim.R. 11(C)(2)(c).’” Id. at ¶ 20, quoting State v.

Thomas, 3d Dist. Mercer No. 10-10-17, 2011-Ohio-4337, ¶ 20. Crim.R. 11(C)

provides:

(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:

(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

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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 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.

Crim.R. 11(C)(2)(a)-(c).

{¶8} The advisements under Crim.R. 11(C)(2) can be divided into the

constitutional requirements found in Crim.R. 11(C)(2)(c) and the nonconstitutional

requirements found in Crim.R. 11(C)(2)(a) and (b). Howard at ¶ 20, citing State v.

Scarnati, 11th Dist. Portage No. 2001-P-0063, 2002 WL 255502, *3 (Feb. 22,

2002). “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally

advise a defendant before accepting a felony plea that the plea waives the

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defendant’s constitutional rights.” State v. Montgomery, 3d Dist. Putnam No. 12-

13-11, 2014-Ohio-1789, ¶ 11, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, ¶ 31. “[T]he failure to strictly comply with Crim.R. 11(C)(2)(c) invalidates a

guilty plea.” Howard at ¶ 20, citing Scarnati at *3. “To that end, the preferred

method of informing a criminal defendant of his constitutional rights is to use the

language contained in Crim.R. 11(C)(2)(c).” State v. Hayward, 6th Dist. Wood No.

WD-17-010, 2017-Ohio-8611, ¶ 6, citing Veney at ¶ 18. “The failure to recite the

language of the rule word-for-word will not invalidate a plea agreement, however,

so long as ‘the record demonstrates that the trial court explained the constitutional

right[s] in a manner reasonably intelligible to that defendant.’” Id., citing Veney at

¶ 27, quoting State v. Ballard, 66 Ohio St.2d 473, 480 (1981) and State v. Barker,

129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 15.

{¶9} At the change-of-plea hearing, the trial court engaged in the following

exchange with Phillips:

[Trial Court]: If you plead guilty you’re going to give up some

very important rights. You have the right to have a

trial. You can have a jury trial or a trial to a Judge.

But, if you plead guilty and admit to these four

counts you give up your right to have a trial. Do you

understand that?

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[Phillips]: Yes, sir.

[Trial Court]: If you plead guilty you give up your right to confront

the witnesses that the State would have testify

against you – police agents, undercover Officers, the

chemist, or if there was a confidential informant.

They don’t have to bring those people in and you

don’t have a chance to ask those people questions

and cross examine them. Do you understand?

[Phillips]: Yes, sir.

[Trial Court]: On the other side of that coin is if you plead guilty

you give up your right to present your own witnesses

and evidence that’s favorable to you or to ask the

Court to subpoena witnesses [ ] to come in and

testify for you. You give that up. Understood?

[Phillips]: Yes, sir.

[Trial Court]: By entering the plea you’re giving up your right to

require the Prosecutor’s Office to prove all of these

allegations with proof beyond a reasonable doubt.

In other words, they don’t have to prove it if you

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plead guilty because you’re admitting it. Do you

understand that?

[Phillips]: Yes, sir.

[Trial Court]: If you plead guilty you give up your right to remain

silent at a trial where you cannot be forced to testify

against yourself. Do you understand that?

[Phillips]: Yes, sir.

[Trial Court]: Are you willing to give up those rights?

[Phillips]: Yes, sir.

[Trial Court]: Do you have any question about any of that?

[Phillips]: No, sir.

(July 2, 2018 Tr. at 13-15). Thus, the trial court advised Phillips of her constitutional

rights to a jury trial, to confront the witnesses against her, to use compulsory process

to obtain witnesses in her favor, to have the State prove her guilt beyond a

reasonable doubt at trial, and the privilege against self-incrimination.

{¶10} However, Phillips argues that the trial court failed to adequately

inform her of her constitutional rights at her change of plea hearing because the trial

court failed to inform her that (1) she has the constitutional right not to allow anyone

to comment on her decision to not testify at trial and (2) she has the constitutional

right to take the witness stand in her own defense. (Appellant’s Brief at 5).

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{¶11} In support of her position, Phillips cites several cases from the Seventh

and Eighth District Court of Appeals that included the “right not to testify” as a

constitutional right explained during the plea colloquy. See State v. Adams, 7th Dist.

Mahoning No. 12 MA 9, 2012-Ohio-5979, ¶ 22 (“Adams was informed and

indicated that he understood that by pleading guilty he was waiving his right to a

jury trial, his right to confront witnesses against him, his right to subpoena witnesses

in his favor, his right to have the state prove at trial each and every element of the

offense of rape by proof beyond a reasonable doubt and his right to not testify at

trial or any other proceeding.”); State v. Stroughter, 7th Dist. Mahoning No. 11 MA

86, 2012-Ohio-1504, ¶ 14 (stating that the trial court’s advisement on the

Defendant’s constitutional rights “strictly complied” with Crim.R. 11(C)(2)(c)

where the Defendant “was informed that by pleading guilty he was waiving his right

to a jury trial, his right to confront witnesses against him, his right to subpoena

witnesses in his favor, his right to have the state prove at trial each and every element

of the offense of possession of heroin by proof beyond a reasonable doubt and his

right to not testify at trial or any other proceeding”); State v. Williams, 8th Dist.

Cuyahoga No. 95853, 2011-Ohio-2551, ¶ 18 (noting that the trial court “strictly

complied” with Crim.R. 11(C)(2)(c) when it advised Williams that “he would be

waiving or giving up his constitutional right to have a trial by jury or before a judge,

his right to subpoena witnesses to appear and testify, his right to cross-examine

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witnesses, the right to have the State prove his guilt beyond a reasonable doubt, and

the right to not testify, nor be compelled to testify, at trial”). Phillips also cites a

case in which the Tenth District Court of Appeals referenced the right to testify on

one’s own behalf as “a constitutional right that is not listed in Crim.R. 11(C)(2)(c).”

State v. Troiano, 10th Dist. Franklin No. 09AP-862, 2010-Ohio-3019, ¶ 8, rev’d on

other grounds, State v. Troiano, 130 Ohio St.3d 316, 2011-Ohio-5217.

{¶12} However, the cases Phillips cites are not controlling on this court.

Furthermore, Crim.R. 11(C)(2)(c) does not include a “catchall” provision indicating

that the trial court is obligated to inform the defendant of other constitutional rights

waived. State v. Stewart, 11th Dist. Ashtabula No. 2010-A-0026, 2011-Ohio-2582,

¶ 20. Rather, the language of the Crim.R. 11(C)(2)(c) “supports the conclusion that

the list of cited rights was intended to be exclusive.” Id. Additionally, Ohio courts

have specifically found that the trial court does not need to advise a defendant of the

right to testify on their own behalf for a plea colloquy to satisfy the requirements of

Crim.R. 11. See State v. Vialva, 8th Dist. Cuyahoga No. 104199, 2017-Ohio-1279,

¶ 11 (“[T]he advisement of a defendant’s right to testify is not necessary to ensure

the validity of a defendant’s guilty plea.”); Stewart at ¶ 21 (“[I]t is not necessary for

a trial court to expressly address the right to testify in order for a guilty plea to be

made knowingly and intelligently.”). Moreover, this court has stated that in order

to comply with Crim.R. 11(C)(2)(c), the trial court must inform the defendant that

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he or she is waiving “(1) the Fifth Amendment privilege against self-incrimination,

(2) the right to a jury trial, (3) the right to confront accusers, (4) the right to the

compulsory process of witness, and (5) the right to be proven guilty beyond a

reasonable doubt.” Howard, 2017-Ohio-8020, at ¶ 20, citing Scarnati, 2002 WL

255502, at *3, citing State v. Gruber, 11th Dist. Lake No. 2000-L-031, 2001 WL

1401943, *4 (Nov. 9, 2001), citing State v. Nero, 56 Ohio St.3d 106, 107-108

(1990).

{¶13} Here, the trial court advised Phillips of each of the constitutional rights

enumerated in Crim.R. 11(C)(2)(c), and thus, it strictly complied with the criminal

rule and properly advised Phillips of the constitutional rights she was waiving by

pleading guilty. Additionally, our review of the entirety of the record indicates that

Phillips also had an understanding of the charges to which she was pleading guilty

and the maximum penalties involved. Thus, we find that Phillips entered her plea

knowingly, intelligently, and voluntarily.

{¶14} Accordingly, Phillips’s first assignment of error is overruled.

Assignment of Error No. II

The August 20, 2018 sentencing entry is deficient because it fails
to include all of the findings for consecutive sentencing required
by Ohio Revised Code § 2929.14(C), et seq. and the sentences
should be modified to concurrent sentences, or in the alternative
the sentencing entry vacated and remanded.

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{¶15} In her second assignment of error, Phillips argues that the trial court

erred by failing to include consecutive-sentencing findings in its judgment entry of

sentence. We disagree.

{¶16} “Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

‘only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.’” State v. Nienberg, 3d Dist. Putnam Nos. 12-16-15 and

12-16-16, 2017-Ohio-2920, ¶ 8, quoting State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. “Clear and convincing evidence is that ‘“which will produce

in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.”’” Id., quoting Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio

St. 469 (1954), paragraph three of the syllabus.

{¶17} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently with

any other prison term, jail term, or sentence of imprisonment imposed by a court of

this state, another state, or the United States.” R.C. 2929.41(A). R.C. 2929.14(C)

provides:

(4) * * * [T]he 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

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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:

(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.

(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.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶18} R.C. 2929.14(C)(4) requires a trial court to make specific findings on

the record when imposing consecutive sentences. State v. Hites, 3d Dist. Hardin

No. 6-11-07, 2012-Ohio-1892, ¶ 11; State v. Peddicord, 3d Dist. Henry No. 7-12-

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24, 2013-Ohio-3398, ¶ 33. Specifically, the trial court must find: (1) consecutive

sentences are necessary to either protect the public or punish the offender; (2) the

sentences would not be disproportionate to the offense committed; and (3) one of

the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies. Id.; Id.

{¶19} The trial court must state the required findings at the sentencing

hearing prior to imposing consecutive sentences and incorporate those findings into

its sentencing entry. State v. Sharp, 3d Dist. Putnam No. 12-13-01, 2014-Ohio-

4140, ¶ 50, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 29. A

trial court “has no obligation to state reasons to support its findings” and is not

“required to give a talismanic incantation of the words of the statute, provided that

the necessary findings can be found in the record and are incorporated into the

sentencing entry.” Bonnell at ¶ 37.

{¶20} R.C. 2953.08(A) provides specific grounds for a defendant to appeal

a sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 10. However,

under R.C. 2953.08(D)(1), “A sentence imposed upon a defendant is not subject to

review under this section 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.” “In discussing jointly recommended sentences,

the Ohio Supreme Court has recognized that ‘[t]he General Assembly intended a

jointly agreed-upon sentence to be protected from review precisely because the

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parties agreed that the sentence is appropriate.’” State v. Morris, 3d Dist. Hardin

No. 6-12-17, 2013-Ohio-1736, ¶ 11, quoting State v. Porterfield, 106 Ohio St.3d 5,

2005-Ohio-3095, ¶ 25.

{¶21} Here, the record is clear that the trial court, the State, Phillips, and

Phillips’s trial counsel came to a meeting of the minds regarding a jointly

recommended sentence for Phillips. At the change of plea hearing, the State

indicated as follows:

[T]he parties have stipulated to the following sentence. The defendant

would receive six years O.D.R.C. on Count One, which would be

mandatory prison time; five years O.D.R.C. on Count Two, again

which would be mandatory prison time; twenty-four months [in

prison] on Count Four; and twenty-four months [in prison] on Count

Five. All counts would run consecutive to one another for a total of

fifteen years O.D.R.C. with eleven of those years being mandatory

prison time and four non-mandatory.

(July 2, 2018 Tr. at 2). Phillips’s trial counsel then agreed that what the State

represented was what the parties negotiated. (Id. at 2-3). Phillips indicated that she

understood what had been represented. (Id. at 3). Further, the trial court engaged

in the following dialogue with Phillips:

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[Trial Court]: It’s been represented here [that] you’re agreeing to a

six year mandatory term on Count One and a five

year mandatory term on Count Two. Is that correct?

[Phillips]: Yes, sir.

***

[Trial Court]: It’s been represented here that you’re agreeing to

twenty-four months, or two years, on each of

[Counts Four and Five]. Is that correct?

[Phillips]: Yes, sir.

[Trial Court]: That would be non-mandatory. But, the total, * * *

that you’re going to agree to [is] a total of fifteen

years, eleven of which is mandatory. Is that correct?

[Phillips]: Yes, sir.

(Id. at 6-7).

{¶22} Moreover, Phillips’s written negotiated plea of guilty states that the

parties stipulate to the following sentence: “6 years mandatory prison on Count 1,

5 [years] mandatory [imprisonment] on Count 2[,] 24 [months] (non-mandatory) on

Count 4 and 24 months [non-mandatory] on Count 5 – ALL CONSECUTIVE for

15 years total[.]” (Emphasis sic.) (Doc. No. 23). Furthermore, the trial court, the

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State, Phillips, and Phillips’s trial counsel all signed the negotiated plea of guilty.

(Id.).

{¶23} Therefore, we find that the record clearly demonstrates that the parties

had a stipulation regarding Phillips’s sentence. See State v. Herald, 3d Dist.

Defiance No. 4-16-09, 2016-Ohio-7733, ¶ 51-52. Finding that a jointly-

recommended sentence existed, we next determine whether the trial court imposed

the jointly-recommended sentence.

{¶24} At the sentencing hearing, the trial court sentenced Phillips to 6 years’

mandatory imprisonment as to Count One, 5 years’ mandatory imprisonment as to

Count Two, 24 months’ imprisonment as to Count Four, and 24 months’

imprisonment as to Count Five. (Aug. 20, 2018 Tr. at 7). Further, the trial court

ordered that the prison terms imposed for each of the sentences be served

consecutively to one another for a total of 15 years’ imprisonment. (Id.). The

judgment entry of sentence reflects the sentence pronounced at the sentencing

hearing. (Doc. No. 29).

{¶25} As the sentence announced at the sentencing hearing and

memorialized in the judgment entry of sentence was consistent with the agreement

reached between the parties, we find that the trial court imposed the jointly-

recommended sentence. See State v. Wardlow, 12th Dist. Butler No. CA2014-01-

011, 2014-Ohio-5740, ¶ 9, 11.

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{¶26} Finally, we consider whether Phillips’s sentence is authorized by law.

“‘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.’”

State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, ¶ 26, quoting Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, at paragraph two of the syllabus. Phillips entered

guilty pleas to two second-degree felonies and two third-degree felonies. R.C.

2929.14(A)(2) authorizes a prison term between two and eight years for a second-

degree felony. R.C. 2929.14(A)(2) (Oct. 17, 2017) (current version at R.C.

2929.14(A)(2)(b) (Mar. 22, 2019)). R.C. 2929.14(A)(3)(b) authorizes a prison term

of 9 to 36 months for a third-degree felony. R.C. 2929.14(A)(3)(b)(Oct. 17, 2017)

(current version at R.C. 2929.14(A)(3)(b) (Mar. 22, 2019)). Thus, the 5 and 6-year

sentences as to Counts One and Two, respectively, and the 24-month sentences as

to Counts Four and Five are authorized by R.C. 2929.14(A)(3) and 2929.14(A)(2).

{¶27} As trial courts are permitted, but not required, under R.C.

2929.14(C)(4) to impose consecutive sentences, Phillips’s consecutive sentences

imposed under R.C. 2929.14(C)(4) are not mandatory. The Supreme Court of Ohio

has held that “in the context of a jointly recommended sentence that includes

nonmandatory consecutive sentences, a trial court is not required to make the

consecutive-sentence findings set out in R.C. 2929.14(C)(4).” Sergent at ¶ 43.

“Accordingly, when a trial judge imposes such an agreed sentence without making

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those findings, the sentence is nevertheless ‘authorized by law’ and not reviewable

on appeal pursuant to R.C. 2953.08(D)(1).” Id. “‘Once a defendant stipulates that

a particular sentence is justified, the sentencing judge need not independently justify

the sentence.’” Morris, 2013-Ohio-1736, at ¶ 11, quoting Porterfield, 106 Ohio

St.3d 5, 2005-Ohio-3095, at ¶ 25. As we have found that Phillips’s sentence was

imposed pursuant to a joint recommendation, we need not discuss whether the trial

court made consecutive-sentence findings to conclude that Phillips’s consecutive

sentences are authorized by law. Consequently, Phillips’s sentence is authorized by

law.

{¶28} Accordingly, Phillips’s second assignment of error is overruled.

{¶29} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr

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