Parma v. BenedictParma v. Benedict
Joseph C. Patituce
Megan M. Patituce
Jennifer Scott
Patituce & Scott, L.L.C.
26777 Lorain Road
Suite 708
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Law Director and Chief Prosecutor
City of Parma
By: John J. Spellacy
Assistant Prosecutor
5555 Powers Boulevard
Parma, Ohio 44129
{¶1} Appellant, Kevin Benedict, appeals from his conviction in the Parma Municipal Court for operating a vehicle while intoxicated (“OVI“). He argues that the trial court impermissibly applied provisions of the law that had changed from the time of his criminal conduct to the time of his sentence. He also argues he received ineffective assistance of counsel. After a thorough review of the record and law, we affirm appellant‘s conviction and sentence.
I. Factual and Procedural History
{¶2} On December 24, 2011, at approximately 12:53 a.m., appellant was issued two citations following a traffic accident that resulted in property damage. Appellant‘s blood was drawn that night in order to test his blood alcohol level. On December 27, 2011, appellant was charged in the Parma Municipal Court with violations of
{¶3} After several pretrials, appellant changed his plea on July 30, 2012, from not guilty to no contest on one count of OVI in violation of
I. The Trial Court erred when it failed to sentence [appellant] pursuant to the law in effect at the time of [his] arrest.
II. The Trial Court erred when it failed to comply with
Criminal Rule 11 by failing to advise [appellant] that a conviction would result in the suspension of his commercial driver‘s license.III. [Appellant] was deprived of effective assistance of counsel when his attorney failed to advise [him] that [his] commercial driver‘s license would be subject to suspension.
II. Law and Analysis
A. Commercial Driver‘s License Suspension
{¶4} Appellant‘s first assignment of error complains that the trial court did not sentence him under the law that existed at the time of his criminal violation. He claims the trial court applied sentencing law that was amended with an effective date of January 27, 2012. See 2012 H.B. No. 337. However, the commercial driver‘s license suspension that is the subject of this complaint was not imposed by the trial court. The license suspension imposed by the trial court was pursuant to
{¶5} Appellant‘s first assignment of error is therefore overruled.
B. Crim.R. 11 Plea Colloquy
{¶6} Appellant next argues that the trial court did not fully comply with
{¶7} “A trial court‘s obligations in accepting a plea depend upon the level of offense to which the defendant is pleading.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 6, citing State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. Appellant was convicted of a petty misdemeanor because
{¶8} “[I]f trial courts fail to comply with
{¶9} The Ohio Supreme Court has addressed
{¶10} This court recently issued an opinion that held, even for petty misdemeanor offenses, a trial court must comply with
{¶11} Hughes relies on a 1998 Eighth District case, Cleveland v. Wanzo, 129 Ohio App.3d 664, 718 N.E.2d 982 (8th Dist.1998). In Wanzo, this court required a plea colloquy substantially complying with
Where a defendant charged with a petty offense changes his plea of not guilty to a plea of guilty or no contest, does the trial court comply with
Traf.R. 10(D) andCrim.R. 11(E) by informing the Defendant of the information contained inTraf.R. 10(B) orCrim.R. 11(B) or must the trial court engage in a colloquy with the defendant that is substantially equivalent to that required byCrim.R. 11(C) in felony cases?
State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 9. The court answered the question in the negative. It determined that
{¶12} The Supreme Court further clarified the trial court‘s duties under
{¶14} Here, the trial court advised appellant, “[d]o you understand that the plea of no contest is not an admission of your guilt but it is an admission of the truth of the facts alleged in the complaint. Your plea cannot be used against you at any subsequent civil or criminal proceeding; do you understand that?” Appellant responded, “Yes.”
{¶15} This advisement is the same as that provided in
C. Ineffective Assistance of Counsel
{¶16} Finally, appellant argues that his trial counsel was constitutionally ineffective because counsel failed to advise him of the mandatory nature of the administrative suspension that would be imposed by the Ohio Bureau of Motor Vehicles.
{¶17} To prevail on a claim of ineffective assistance of counsel, one must show that counsel‘s performance was deficient and that he was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. “Deficient performance” means performance falling below an objective standard of reasonable representation. “Prejudice,” in this context, means a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. Strickland at 687-688, 694. Further, the Supreme Court has set forth that an appellant must show “a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), paragraph three of the syllabus.
{¶18} Appellant‘s entire argument in his brief consists of the following:
In the present case counsel was aware that [appellant] possessed a commercial driver‘s license. Counsel was aware that there might be an issue wherein the amendment to
R.C. 4506.16 might impact [him]. However, counsel was not aware of how [appellant] might be impacted,was not aware if [appellant‘s] commercial driver‘s license would be revoked. The trial court proceeded as described above and as a result of counsel‘s failure to discover the answer, [appellant] was grievously prejudiced by counsel‘s failure.
{¶19} Trial counsel should inform clients of the consequences that might befall them based on a criminal conviction. In cases involving adverse immigration consequences, which are required to be disclosed, the Supreme Court has cautioned that inaccurate advice about such consequences can lead to withdrawal of a guilty plea where prejudice has been shown. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), at the syllabus. The court recognized that deportation is not a criminal penalty, but is “a particularly severe ‘penalty,‘” and dispensed with segregating direct and collateral consequences of a plea in the immigration context because the “penalty” was so closely tied with the criminal process. Id. at 1481. As the court explained, several other courts have held that a constitutional right to counsel existed only to direct consequences of a plea, i.e. those matters within the sentencing authority of the state trial court. Id. at 1481.
{¶20} Here, appellant was informed that his driver‘s license would be suspended from six months to three years. The one-year suspension imposed by the registrar of motor vehicles was within this period. Appellant complains he was not informed of the mandatory nature of the suspension of his CDL for one year under
{¶21} Further, where consequences are unclear, trial counsel‘s obligation was only to advise appellant of the possible risk of CDL suspension. Padilla at 1483 (“a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences“). It is apparent in the record that counsel did this. It is clear that appellant was aware of the possibility that suspension of his CDL could result from his conviction based on the discussion trial counsel had with the court about the ALS and from the court‘s advisement that appellant‘s license could be suspended for up to three years. Therefore, trial counsel was not constitutionally ineffective.
III. Conclusion
{¶22} The trial court properly sentenced appellant. The law that changed in the interim between appellant‘s criminal conduct and his sentence was not a sentencing statute, but a civil, administrative statute affecting a commercial driver‘s license. The trial court did not impose sentence under this newly amended statute and, therefore, could not have committed the error of which appellant complains. The trial court also did not fail to fulfill its duties under
{¶23} Judgment affirmed.
It is ordered that appellee recover from appellant 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 Parma Municipal Court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR