State v. BurstonState v. Burston
Robert Tobik
Chief Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Also listed:
Rico O. Burston
Inmate No. 560-164
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, A.J.:
{¶ 1} Appellant, Rico O. Burston, appeals from his convictions and sentences in three underlying criminal cases.1 For the reasons stated herein,
{¶ 2} Because the initial sentencing entries did not address the forfeiture specifications, there was no final appealable order. See State v. Byrd, Cuyahoga App. No. 91090, 2009-Ohio-1876. As a result, Burston moved to correct the entries to comply with
{¶ 3} Burston timely filed this appeal from the corrected sentencing entries. He raises seven assignments of error for our review.
{¶ 4} Under his first assignment of error, Burston argues that the trial court erred by accepting his guilty plea without properly advising him of his right against self-incrimination. More specifically, Burston asserts that the trial court failed to inform him of his right not to be compelled to testify against himself.
{¶ 5}
{¶ 6} Although a trial court must strictly comply with the mandates of
{¶ 7} In this case, the trial court asked Burston: “Do you understand that you are giving up your right in each case to remain silent and not testify[?]” Burston responded affirmatively.
{¶ 8} This court has upheld the use of similar language sufficient to comply with the mandates of
{¶ 9} Under his second assignment of error, Burston contends the trial court failed to substantially comply with
{¶ 10} During the plea hearing, the trial court explained to Burston that, upon his release from prison, he would be on three years of postrelease control and that for violating postrelease control, he could be returned to prison for up to one-half of the total sentence and subject to other consequences. Although Burston was not separately advised of postrelease control as to each offense, he was subject to a three-year mandatory postrelease control term that would run concurrent to any discretionary terms imposed. Further, at sentencing the trial court again advised Burston of postrelease control. Because a
{¶ 11} Under his third assignment of error, Burston claims his conviction on Count 4 in Case No. CR-512011 is void and must be vacated because the trial court dismissed that count. Our review of the record reflects that the trial court‘s reference to the dismissal of this count was a mere misstatement on the record. Burston pled guilty and was sentenced on this charge. The trial court‘s journal entry reflects the same and accurately reflects that only Counts 2, 3, and 5 were nolled. Accordingly, Burston‘s third assignment of error is overruled.
{¶ 12} Under his fourth assignment of error, Burston argues the trial court did not enter judgment in accordance with the plea agreement. Burtson
{¶ 13} A review of the transcript shows that at the commencement of proceedings, the prosecutor expressed his understanding of the charges to which Burston was to plead guilty. In reviewing these charges, the prosecutor referenced Count 2, drug trafficking, in CR-512011. However, Burston, who pled in accordance with the plea agreement, entered a plea of guilty on Count 1 in CR-512011, for possession of drugs.
{¶ 14} In discussing the charges to which Burston was to plead guilty, the court referenced Count 1, a felony of the second degree. Further, Count 2 was among the counts the court nolled pursuant to the state‘s motion to dismiss. At the time of sentencing, the court reiterated the charges to which Burston pled guilty and clarified that Count 1 in CR-512011 was a possession charge. At no time did Burston claim that his plea or conviction was not in conformity with the plea agreement. Because Burston has not established a breach of the plea agreement, we overrule Burston‘s fourth assignment of error.
{¶ 16} Under his sixth assignment of error, Burston argues the trial court erred by sentencing him to consecutive sentences without submitting findings pursuant to
{¶ 17} Under his seventh assignment of error, Burston claims the trial court‘s failure to honor the plea agreement with regard to the sentence rendered his plea unknowing and involuntary. Burston argues that his guilty plea was based on a promise of a four-year prison term, but the trial court imposed an aggregate six-year prison sentence.
{¶ 18} A review of the record reflects that the trial court reviewed the potential prison terms for Burston‘s offenses, as well as the possibility for concurrent and consecutive sentences. The court advised Burston before he entered his plea that “you‘re going to prison for at least 2 years to a maximum of 21 years.” The court also advised Burston that he was subject to three years’ postrelease control. Before entering his plea, Burston expressed his understanding of the potential sentence that could be imposed and that no threats or promises had been made with regard to his plea.
{¶ 19} After Burston pled guilty to the charges, the court indicated that it would “probably” impose the four-year sentence recommended by the state, but warned Burston to show up on the sentencing date. Burston failed to
{¶ 20} Under Ohio law, trial courts may reject plea agreements and are not bound by a jointly recommended sentence. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 28. During the plea hearing in this case, the trial court advised Burston of the sentence that could be imposed. The court was not bound to impose the recommended sentence and clearly forewarned Burston to show up on the sentencing date. Our review reflects that Burston‘s plea was knowing, voluntary, and intelligent. Accordingly, Burston‘s seventh assignment of error is overruled.
{¶ 21} For the foregoing reasons, we overrule all of Burston‘s assignments of error and affirm the judgment of the trial court.
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 common pleas 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
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
JAMES J. SWEENEY, J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS (WITH SEPARATE OPINION)
KENNETH A. ROCCO, J., DISSENTING:
{¶ 22} I disagree with the majority‘s determination that the trial court sufficiently advised appellant that he was waiving his privilege against self-incrimination when it asked the appellant if he understood “that you are giving up your right in each case to remain silent and not testify.” In my opinion, the “right to remain silent” is an inadequate description of the constitutional right not to be compelled to incriminate oneself.
{¶ 23} The trial court must strictly comply with
{¶ 24} In my opinion, to advise a defendant that he has the “right to remain silent” is not a reasonably intelligible description of the right not to be compelled to testify against oneself at trial. The United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, formulated the now-ubiquitous phrase “the right to remain silent” to inform a suspect of his constitutional right against compelled self-incrimination before the police may conduct a custodial interrogation. This fifth amendment right is, however, primarily a trial right: “nor shall [any person] be compelled in any criminal case to be a witness against himself.” The Miranda warnings were thus intended to offset the compulsion inherent in a custodial setting to ensure that any statements the suspect made were voluntary before they could be used at trial.
{¶ 25} The fifth amendment right not to be compelled to incriminate oneself has its origins as a protest to the inquisitorial methods used by the Star Chamber. ” ‘So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.’ ” Miranda, at 443, quoting Brown v. Walker (1896), 161 U.S. 591, 596-597, 16 S.Ct. 644, 40 L.Ed. 819.
{¶ 27} The trial court‘s colloquy with appellant here falls somewhere between the insufficient language used by the court in State v. Singh (2000), 141 Ohio App.3d 137, 750 N.E.2d 598 ( “You could testify but you need not testify if you desire not to * * *“) and the sufficient language used by the court in State v. Madaris, 156 Ohio App.3d 211, 2004-Ohio-653, 805 N.E.2d 150 (“Do you understand that by pleading you are giving up your right to a trial at which you cannot be made to testify against yourself?“). These cases demonstrate that, in informing the defendant of his right against compulsory self-incrimination, the court must make it clear that the defendant not only has the choice whether to testify, but that no force or compulsion may be used to sway the defendant‘s decision whether or not to testify in his own defense.
{¶ 28} We have previously found that the trial court strictly complied with
{¶ 29} I would reverse the judgment of conviction, vacate the plea entered in this case, and remand for further proceedings. Accordingly, I dissent.