STATE OF OHIO, Appellee v. LAMONT BATTLE, Appellant
C.A. No. 27549
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
May 11, 2016
[Cite as State v. Battle, 2016-Ohio-2917.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2005-07-2434 (A)
CARR, Judge.
{¶1} Defendant-Appellant, Lamont Battle, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands for further proceedings.
I.
{¶2} Following certain events that occurred in July 2005, a grand jury indicted Battle on two counts of aggravated murder, one count of kidnapping, one count of arson, two counts of tampering with evidence, and six firearm specifications. Battle ultimately pleaded guilty to the amended charge of murder and a single firearm specification in exchange for the dismissal of his five remaining counts and firearm specifications. The court sentenced him to 18 years to life in prison. Battle did not initially appeal from the court‘s judgment.
{¶3} In 2009, Battle filed a motion to withdraw his plеa on the basis that he had not knowingly, intelligently, and voluntarily entered into it. The State opposed the motion, and the
{¶4} In 2014, Battle filed another motion for delayed appeal, this time seeking to appeal from his original judgment of conviction. Battle alleged that he could not have filed his appeal at an earlier date because, until recently, he was unaware of his right to appeal from a guilty plea. This Court granted Battle‘s motion and allowed the case to proceed as a delayed appeal. See State v. Battle, 9th Dist. Summit No. 27549 (Dec. 5, 2014).
{¶5} Battle now appeals from his judgment of conviction and raises four assignments of error for our review. For ease of analysis, we consolidate several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT FAILED TO STRICTLY COMPLY WITH RULE 11‘S CONSTITUTIONAL REQUIREMENTS WHEN TAKING MR. BATTLE‘S PLEA[.]
ASSIGNMENT OF ERROR II
THE TRIAL COURT DID NOT MINIMALLY COMPLY WITH RULE 11‘S NON-CONSTITUTIONAL REQUIREMENTS WHEN TAKING MR. BATTLE‘S PLEA[.]
{¶6} In his first and second assignments of error, Battle argues that his guilty plea was not knowing, intelligent, and voluntary because, during his plea colloquy, the trial court failed to comply with various provisions of
{¶7} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea uncоnstitutional under both the United States Constitution and the Ohio Constitution.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). “To determine whether a plea is being made knowingly, intelligently, and voluntarily, the court must conduct a colloquy with the defendant before accepting a guilty plea in a felony case.” State v. Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, ¶ 5.
{¶8}
{¶9} Battle first argues that the trial court failed to strictly comply with
THE COURT: All right. Now, if you enter a plea of guilty, you waive or give up your right to trial to the court or a jury where you must be proven guilty beyond a reasonable doubt. Do you understand that you‘re giving up that right?
[BATTLE]: Yes, Your Honor.
Thus, the court discussed with Battle his right tо have the charges against him proven beyond a reasonable doubt. The only point that the court omitted was that the State would be the one to prove those charges. See
{¶10} Next, Battle argues that the trial court failed to substantially comply with several provisions of
{¶11} At the start of Battle‘s plea hearing, the prosecutor informed the court that the parties had reached a negotiated plea, whereby Battle would plead guilty to one count of murder and one firearm specification and testify in an upcoming trial in exchange for the State dismissing the remainder of his charges. The prosecutor further noted that, as part of the plea agreement, the State would submit a letter to the parole board, requesting Battle‘s release once he finished serving his 3-year firearm sentence and 15-year murder sentence for a combined total of 18 years. After defense counsel noted his approval of the prosecutor‘s recitation of the plea agreement, the trial court personally addressed Battle.
{¶12} The court askеd Battle whether he understood that count one of his amended indictment charged him with murder, “a special felony * * * that calls for a penalty of life imprisonment for 15 years to the board for parole purposes.” Battle indicated that he understood. The court then asked Battle whether he understood that the firearm specification linked to that count called
for three years which would be consecutive to the 15 to life sentence and prior to. That means your sentence would be for a total of life imprisonment of 18 years to the board for parole.
Battle indicated that he understood. He further indicated at the conclusion of the plea colloquy that he did not have any questions. The trial court ultimately sentenced him to 15 years on the
{¶13} Even assuming that the trial court failed to substantially comply with cеrtain portions of
ASSIGNMENT OF ERROR III
THE TRIAL COURT FAILED TO SENTENCE MR. BATTLE IN COMPLIANCE WITH ORC § 2929.19[.]
{¶14} In his third assignment of error, Battle argues that the trial court failed to comply with various provisions of Former
{¶15} In reviewing a felоny sentence, “[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion.”
{¶16} Former
if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
(a) Impose a stated prison term;
(b) Notify the offender that, as part of the sentence, the parole board may extend the stated prison term for certain violations of prison rules for up to one-half оf the stated prison term;
* * *
(f) Require that the offender not ingest or be injected with a drug of abuse and submit to random drug testing as provided in section 341.26, 753.33, or 5120.63 of the Revised Code, whichever is applicable to the offender who is serving a prison term, and require that the results of the drug test administered under any of those sections indicate that the offender did not ingest or was not injected with a drug of abuse.
Former
{¶17} First, Battle claims that the court erred when it sentenced him without “inform[ing] [him] of the * * * finding of the court” or affording him his right to allocution. Former
{¶18} Second, Battle argues that the court failed to “[i]mpose a stated prison term” upon him because it did not tell him what his actual term of imprisonment would be. Former
{¶19} Third, Battle argues that the trial court erred when it sentenced him in the absence of a notification that, “as part of his sentence, the parole board [could] extend [his] stated prison term for certain violations of prison rules for up to one-half of [his] stated prison term.” Former
{¶20} Finally, Battle argues that the trial court erred when it failed to comply with Former
were not intended to benefit a defendant, but to facilitate drug testing of prisoners in state institutions by discouraging defendants who are sentenced to prison from using drugs. * * * Because the statute creates no substantive rights, a trial court‘s failure to cоmply with its terms results in no prejudice to a defendant and constitutes harmless error.
(Internal citations and quotations omitted.) State v. Culgan, 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 18. As such, any error on the part of the trial court in not complying with Former
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AND COSTS AGAINST [MR. BATTLE] WITHOUT INFORMING [HIM] AT HIS
{¶21} In his fourth assignment of error, Battle argues that the trial court erred when it ordered him to pay his attorney fees and court costs without first making an ability to pay determination. He further argues that the court erred by imposing costs against him in the absence of the community service notifications set forth in Former
{¶22} Initially, we note that the trial court did not order Battle to pay his attorney fees. The court only ordered him “to pay all prоsecution costs, including any fees permitted pursuant to
{¶23} First, Battle argues that the court erred by ordering him to pay costs without first assessing his ability to pay them. “Unlike financial sanctions issued pursuant to
{¶24} Second, Battle argues that the court erred by imposing costs against him in the absence of the community service notifications set forth in Former
[i]n all criminal cases, * * * the judge * * * shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. At the time the judge * * * imposes sentence, the judge * * * shall notify the defendant of both of the following:
(a) If the defendant fails to pay that judgment or fails to timely make payments towards that judgment under a payment schedule approved by the court, the court may order the defendant to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court is satisfied that the defendant is in compliance with the аpproved payment schedule.
(b) If the court orders the defendant to perform the community service, the defendant will receive credit upon the judgment at the specified hourly credit rate per hour of community service performed, and each hour of community service performed will reduce the judgment by that amount.
The statute “required trial courts to аdvise defendants of the foregoing community service notifications at their sentencing hearings.” State v. Eader, 9th Dist. Summit No. 26762, 2013-Ohio-3709, ¶ 19. A court‘s failure to comply with the statute resulted in reversible error. Id. Accord State v. Beach, 9th Dist. Summit Nos. 26021 & 27124, 2015-Ohio-3445, ¶ 51.
{¶25} Battle argues that this matter must be remanded on the issue of costs, and the State concedes that a remand is necessary. The transcript from Battle‘s sentencing hearing evidences the fact that the trial сourt failed to comply with Former
III.
{¶26} Battle‘s fourth assignment of error is sustained. His remaining assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is аffirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
ANDREA L. WHITAKER and WILLIAM T. WHITAKER, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.