STATE OF OHIO, Plaintiff-Appellee, - vs - RYAN NICHOLAS BELL, Defendant-Appellant.
CASE NO. 2014-P-0017
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
January 20, 2015
[Cite as State v. Bell, 2015-Ohio-218.]
THOMAS R. WRIGHT, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR 0464. Judgment: Affirmed in part, reversed in part, and remanded.
Joel A. Holt, Williams, Welser, Kratcoski & Can, L.L.C., 11 South River Street, Suite A, Kent, OH 44240 (For Defendant-Appellant).
O P I N I O N
THOMAS R. WRIGHT, J.
{¶1} This delayed appeal is from the Portage County Court of Common Pleas. Appellant Ryan Bell pleaded guilty to one count of rape, a first degree felony, in violation of
{¶2} On August 2, 2013, a grand jury indicted Bell on three counts of rape, three counts of importuning and one count of pandering sexually oriented matter involving a minor. Eventually, Bell entered into a plea agreement tо the previously mentioned offenses and the remaining charges were dismissed. The trial court sentenced Bell and he did not initially appeal his conviction. Bell eventually moved to file a delayed appeal, which this court granted.
{¶3} As his first assignment, Bell asserts:
{¶4} “The trial court failed to make the statutory findings required by
{¶5} At oral argument, the state conceded the first assignment has merit. Therefore, it will only be addressed briefly.
{¶6} Although the trial court imposed the jointly recommended sentence, Bell claims the trial court still could not impose that sentence without first making the statutorily required findings for imposing consecutive sentences. Thus, the issue is whether the trial court must make the statutory findings for imposing consecutive sentences when a defendant and the state jointly recommend consecutive sentences.
{¶8} “If multiple prison terms are imposed on an offender for convictions of multiple offenses, the 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 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:
{¶9} “(a) The offender committed one or more of the multiple offensеs while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
{¶10} “(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by twо 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.
{¶12}
{¶13} The Underwood court explained:
{¶14} “Several courts of appeals have held that a sentence is authorized by law within the meaning of the statute simply if the sentence falls within the statutory range for the offense. State v. Sawyer, 183 Ohio App.3d 65, 2009-Ohio-3097, 915 N.E.2d 715, ¶ 70; State v. Bristow (Jan. 29, 1999), 3d Dist. No. 3-98-21, 1999 Ohio App. LEXIS 941, 1999 WL 84868, *3; State v. Jackson, 8th Dist. No. 86506, 2006-Ohio-3165, ¶ 49; State v. Henderson (Sept. 27, 1999), 12th Dist. No. CA99-01-002, 1999 Ohio App. LEXIS 4597, 1999 WL 761002, *2.
{¶15} “We do not agree with such a narrow interpretatiоn of ‘authorized by law.’ Adopting this reasoning would mean that jointly recommended sentences imposed
{¶16} Consequently, because even in the context of a jointly recommended consecutive sentence, a trial court is required to make the statutory findings, the first assignment has merit.
{¶17} As to the second assignment, Bell asserts:
{¶18} “The trial court failed to adhere to the requirements of
{¶19} Within this assignment, Bell argues that the trial court failed to meaningfully inform him of his right to a jury trial, to have the state prove its case beyond a reasonable doubt for each count of the indictment, and the consequences of
{¶20} ”
{¶21} “‘(2) In felony cases the court may refuse to accept a plеa 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:
{¶22} “‘(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 for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶23} “‘(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.
{¶24} “‘(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right 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.’
{¶25} ”
{¶26} “On appeal, the issue becomes whether the recоrd demonstrates that the defendant was informed of the relevant constitutional rights and incidents of a trial to warrant the conclusion that he or she understands what a trial is and that a guilty plea represents a knowing and voluntary forfeiture of those rights stemming from a trial. Id. Thus, ‘a rote recitation of
{¶27} ”
{¶28} “The remaining requirements of
{¶29} “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.’ Nero at 108. In other words, the failure to otherwise inform
{¶30} “In addition, if the trial court fails to substantially comply with
{¶31} First, Bell asserts he was not meaningfully informed of his right to a jury trial because of his cоnfusion as to whether he signed a jury trial waiver form. Bell directs our attention to the following exchange:
{¶32} “THE COURT: Sir, do you understand you do have a right to a trial in this matter either to the Court or to a jury.
{¶33} “THE DEFENDANT: Yes, I do.
{¶34} “THE COURT: Okay. Are you waiving that right today, sir?
{¶35} “THE DEFENDANT: Yeah, I do.
{¶36} “THE COURT: And, sir, did you sign this written Waiver of Right to a Jury Trial?
{¶37} “THE DEFENDANT: No. Did I?
{¶38} “THE COURT: Is that your signature? Did you sign this document?
{¶40} “THE COURT: Do you understand that‘s waiving your right to a jury trial?
{¶41} “THE DEFENDANT: Yeah.
{¶42} “THE COURT: Okay. And you are waiving your right to a jury trial?
{¶43} “THE DEFENDANT: Yes.”
{¶44} Based upon this exchange, Bell‘s confusion stemmed from whether he signed a particular document waiving his right to a jury trial, rather than his confusion as to the nature of the right. Furthermore, the exchange demonstrates the trial court meaningfully informed Bell of his right to a jury trial and his waiver.
{¶45} Next, Bell claims that he was not informed of his right to have the proseсutor prove his guilt beyond a reasonable doubt on all charges of his multiple count plea because the trial court did not use the words “on all charges” after explaining that the state is required to prove his guilt beyond a reasonable doubt. The following exchange took place between Bell and the trial court:
{¶46} “THE COURT: And, sir, do you understand it is the оbligation of the prosecutor‘s office to prove your guilt beyond a reasonable doubt? Are you waiving that right?
{¶47} “THE DEFENDANT: Yes.”
{¶48} The trial court clearly informed Bell of the burden of proof. While the trial court did not say on “all charges” it also did not limit the explanation to only some of the charges and it is difficult to imagine how this would leave Bell uninformed оn the issue particularly when nowhere else in the colloquy did the trial court discuss any other burdens of proof. The trial court fully complied with
{¶50} Next, Bell claims, without any further elaboration, that the trial court failed to meaningfully inform him of his other constitutional rights. This argument is without merit as nothing reveals the explanation of Bell‘s remaining constitutional rights was insufficient.
{¶51} Last, Bell argues he thought parole was a near certainty after serving 15 years of his sentence when in fact there is no such guarantee of parole after serving 15 years. Thus, Bell argues he did not understand that his maximum punishment is life rather than 15 yеars. The state contends that the record is ambiguous but that the totality of the record establishes Bell understood the maximum penalty.
{¶52} At one point in the colloquy, the trial court explicitly informed Bell that his maximum punishment was life. Specifically, the trial court asked:
{¶54} “THE DEFENDANT: Yes, ma‘am.”
{¶55} Moreover, earlier the following exchange took place between the trial court and Bell after the plea agreement was read into the record:
{¶56} “THE COURT: Mr. Bell, I saw you going over [the plea agreement] with your attorney while [the prosecutor] was reading that into the record. Is thаt your understanding of the agreement?
{¶57} “THE DEFENDANT: Yes.
{¶58} “THE COURT: Okay.
{¶59} “THE DEFENDANT: So fifteen years and then I can go for parole?
{¶60} “THE COURT: You‘re eligible.
{¶61} “THE DEFENDANT: I‘m eligible.
{¶62} “THE COURT: It‘s up to the parole board. Do you understand that?
{¶63} “THE DEFENDANT: Now that‘s eligible for, no fighting or anything like that?
{¶64} “THE COURT: Do you want to explain it to him?”
{¶65} The first exchange shows Bell was told that the sentence had the potential for life which in anyone‘s mind is the greatest of all the sentences.
{¶66} The second exchange is nevertheless relied upon to argue Bell‘s functional understanding of the maximum penalty was 15 years because the trial court perceived confusion on his part.
{¶68} Alternatively, even if the colloquy were construed as ambiguous, the written plea agreement cures that ambiguity as it explained that the decision to grant parole would be left up to the discretion of the parole board. Therefore, Bell understood that the maximum sentence is life. The second assignment of error is without merit.
{¶69} The judgment of the Portage County Court of Common Pleas is affirmed in part, reversed in part, and we remand for further proceedings.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., concur.