STATE OF OHIO, Plaintiff-Appellee, - vs - ALFONSO W. CHIONCHIO, Defendant-Appellant.
CASE NO. 2012-P-0057
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
September 16, 2013
2013-Ohio-4296
THOMAS R. WRIGHT, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0004. Judgment: Affirmed.
Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{1} Appellant, Alfonso W. Chionchio, appeals his conviction from the Portage County Court of Common Pleas on one count of felonious assault pursuant to
{2} The record is limited as to the facts surrounding appellant‘s felonious assault conviction. The three victims were walking on a sidewalk when they
{3} In January 2012, appellant was indicted by the Portage County Grand Jury on two counts of felonious assault,
{4} “[1.] The Trial Court committed reversible and plain error when it accepted Chionchio‘s guilty plea when it failed to substantially comply with
{5} “[2.] The Trial Court committed reversible and plain error in failing to provide Chionchio with his right to allocution prior to the imposition of his prison sentence in violation of
{6} “[3.] The Trial Court committed reversible and plain error in imposing court costs against Chionchio without complying with
{7} “[4.] The Trial Court committed reversible and plain error by ordering Chionchio to pay an ‘assessment and recoupment fee.’
{9} “[6.] The cumulative effect of the Trial Court‘s errors denied Chionchio a fair trial.”
{10} Appellant failed to object during the plea and sentencing hearing regarding any of the matters he raises on appeal. Thus, this court‘s determination will be limited to a plain error analysis. Generally, the failure to raise an issue or argument at the trial court level that is apparent at the time constitutes a waiver of such issue. State v Awan, 22 Ohio St.3d. 120, syllabus (1986). Plain error exists only where, but for the error, the outcome would have been different. State v. Bennett, 11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-1567, ¶56. “In the context of a criminal case, a court of review should invoke the plain error doctrine with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d. 804, paragraph three of the syllabus.” State v. Oliver, 11th Dist. Portage No. 2010-P-0017, 2012-Ohio-122, ¶36.
{11} Plain error requires appellant to establish: (1) there was an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e. there was an “obvious” defect in the trial proceedings; and (3) the error affected substantial rights, i.e. affected the outcome. Bennett, at ¶56.
{12} Turning to appellant‘s first assignment, he argues that his guilty plea was not knowingly, intelligently, and voluntarily made because the trial court failed to either substantially or partially notify him, both on the record and in its journal entry, that he
{13} “‘In considering whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.‘” (Citations omitted) State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025, 2011-Ohio-2326, ¶12.
{14} “‘The exchange of certainty for some of the most fundamental protections in the criminal justice system will not be permitted unless the defendant is fully informed of the consequences of his or her plea. Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.‘” Id. at ¶13, citing State v. Clark, 119 Ohio St.3d 234, 2008-Ohio-3748, ¶25. “‘To ensure that pleas conform to these high standards, the trial judge must engage the defendant in a colloquy before accepting his or her plea.‘” Id. at ¶14, quoting State v. Ballard, 66 Ohio St.2d 473, paragraph one of the syllabus (1981).
{15}
{16} “(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:
{18} Pursuant to State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, when the trial court fails to advise a defendant that the sentence will include a mandatory term of post release control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea and the reviewing court must vacate the plea. Id. at ¶25.
{19} In the instant case, the court advised appellant as follows at the plea hearing:
{20} “THE COURT: Sir, do you understand if you are imprisoned, that after your release, you will be subject to Post Release Control pursuant to
{21} “DEFENDANT: Yes, ma‘am.
{22} “DEFENDANT: Sir, do you understand that if you violate the terms of your prison sentence, I could impose an additional prison term not [to] exceed fifty percent of your original prison term?
{23} “DEFENDANT: Yes, ma‘am.
{24} “THE COURT: Do you understand [in] this particular case, Post Release Control period is a mandatory period of three years and your potential penalty could be up to two and a half years with the agreed sentence, do you understand that?
{25} “DEFENDANT: Yes.
{27} “DEFENDANT: Yes.
{28} Based on the foregoing colloquy, the trial court thoroughly notified appellant of the mandatory nature and duration of post-release control. Furthermore, the written plea agreement, signed by appellant, shows a check-mark in the box which states that “I understand that if I am imprisoned, after my release from prison I WILL be supervised under post-release control (
{29} With respect to appellant‘s second issue, he contends that
{30} “(A) Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless
{31} “(1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.” (Emphasis added.)
{32} Appellant acknowledges that the appellate courts in Ohio that have addressed this question have all held that trial courts are not required to inform a defendant at the plea hearing of the possibility that it could impose a prison term for committing a new felony while on post-release control. He merely contends in his brief that he “respectfully disagrees with the holdings of those courts” and asks this court to adopt a different view of the law. See State v. Lamb, 156 Ohio App.3d 128, 2004-Ohio-474 (6th Dist.) (imposition of a prison term for commission of a new felony during a mandatory post-release control period is a matter within the court‘s discretion and a trial court is not required to inform a defendant of this possibility at the time of a guilty plea in order to comply with
{33} Appellant has not cited any authority or otherwise persuaded this court that there is a reason to adopt a different holding from the courts cited above. See
{34} Appellant also maintains that he was prejudiced by the trial court‘s failure to inform him how much time he would receive from the parole board for violating his post release control from his earlier conviction for having a weapon under disability. Specifically, he argues that the trial court‘s failure to inform him how much time the parole board would give him for his post release control violation renders his plea not knowingly, intelligently or voluntarily made. He supports his argument with the following exchange that took place during the plea hearing between the court, appellant, and his counsel:
{35} “DEFENDANT: I‘m on parole also.
{37} “DEFENDANT: I‘ve been on parole for a year already. I had two years hanging over my head. It‘s half of the original sentence. You gave me four, so I had two years over my head. And I‘ve been on parole for a year right now. So what can they give me?
{38} “THE COURT: They can, if it‘s a mandatory period - if it‘s optional, it‘s up to them.
{39} “MR. REEVES: I stated to him it would be up to the Parole Board to decide.
{40} “THE COURT: What was the charge? I don‘t remember.
{41} “MR. REEVES: Weapons under Disability. I told him being that it‘s a lengthy prison sentence, I don‘t know if they would merge that or add another year.
{42} “THE COURT: I don‘t know the answer to that.
{43} “DEFENDANT: I‘d like to know that. I‘d like to know my circumstances, you know what I‘m saying?
{44} Appellant has failed to persuade us that any prejudice exists. The trial court is not responsible for informing appellant of what actions the parole board may take regarding his post release control violation in order for the current plea to be valid.
{45} Accordingly, based on the foregoing, appellant‘s first assignment of error is not well-taken and does not have merit.
{46} With respect to appellant‘s second assignment of error, appellant alleges that the trial court‘s failure to provide him with his right to allocution warrants a remand to the trial court for resentencing.
{47} The record of the sentencing hearing reveals that the trial court did not inform appellant of his right to allocution pursuant to
{48} In his third assignment of error, appellant contends that the trial court committed reversible error when it assessed costs of the proceedings without complying with
{49} “In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs. At the time the judge or magistrate imposes sentence, the judge or magistrate shall notify the defendant of both of the following:
{50} “(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
{51} “(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.”
{52} Appellant contends that the trial court did not state that he could be ordered to perform community service in an amount of not more than forty hours per month until the judgment is paid or until the court was satisfied that he was in compliance with the approved payment schedule. Furthermore, he argues that the court failed to state appellant would work until the judgment was paid off or until the court was satisfied that he was in compliance with the approved payment schedule. Finally, appellant contends that the court did not inform him he would receive credit upon the judgment at the specified hourly credit rate. We disagree.
{53} This court has recently addressed this issue in the case of State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶71:
{54} “The Supreme Court of Ohio, in a recent decision, State v. Smith, 131 Ohio St.3d 297, * * * held that a sentencing court‘s failure to inform an offender, as required by
{56} “A sentencing court‘s failure to inform an offender, as required by
{57} The trial court stated as follows during appellant‘s sentencing:
{58} “[Appellant] will be assessed a fine of $300 and Court costs as well as any assessment and recoupment fee. I will allow him six years to pay. If he is unable to pay, he may do community work service at $8.00 per hour to work off the fines and court costs.”
{59} In its judgment entry, the trial court also stated:
{60} “It is further ordered that [appellant] is assessed a $300 fine, the costs of these proceedings and the indigent assessment and recoupment fee. If you fail to pay the judgment for fines or court costs or fail to follow your payment schedule the court may order you 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 you are in compliance with the approved payment schedule.”
{62} While appellant takes issue with the trial judge specifying an hourly credit rate of $8 per hour, we note that
{63} Accordingly, based on the foregoing, we fail to find any basis for appellant‘s assertions. Appellant‘s third assignment of error is wholly without merit and not well-taken.
{64} Appellant‘s fourth and fifth assignments of error are substantially similar. Thus, we will consider them together. Under appellant‘s fourth assignment of error, he asserts that the trial court committed plain error by ordering him to pay an “assessment and recoupment” fee. Specifically, he argues that there is no specific statutory authority permitting the trial court to order him to pay those fees. In his fifth assignment of error,
{65} We acknowledge that during sentencing and in its judgment entry the trial court ordered the imposition of “the indigent assessment and recoupment fee.” Again noting that we are employing a plain error analysis, with respect to those fees, they are not defined either in the record or by the parties in their merit briefs. Furthermore appellant has failed to demonstrate through record evidence that any such assessment or recoupment fees were actually assessed against him. Nor has he cited to any legal authorities supporting his position that such imposition is prohibited.
{66} With respect to the fine and costs, the record shows that the trial court ordered appellant to pay a $300 fine and the costs of the proceedings. Regarding the $300 fine, this court has recently stated in State v. Taylor, 11th Dist. Portage No. 2011-P-0090, 2012-Ohio-3890 that:
{67} ”
{68} Similarly, here, the trial court stated in its judgment entry that it “considered the evidence presented by counsel, oral statements, any victim impact statement, the Pre-Sentence Report and the defendant‘s statement.” (Emphasis added.). As previously noted, the trial court also stated on the record during sentencing that “I will allow [appellant] six years to pay” with respect to the fine, court costs, and any assessment and recoupment fee. Based on the foregoing statements by the trial court, it can be inferred that it gave consideration to appellant‘s circumstances in determining the level of fine imposed. See Taylor at ¶49.
{69} Moreover, the $300 fine was relatively minimal, and the trial court gave appellant a reasonable amount of time to work it off through “sweat equity” if necessary. There is no evidence in the record to indicate that appellant is not an able-bodied person capable of physical labor.
{70} In Taylor, we also clarified that “court costs are not financial sanctions” and that a court does not need to consider a defendant‘s ability to pay when imposing costs. Id. at ¶48. “Indeed, pursuant to
{71} In appellant‘s sixth assignment of error, appellant argues that the trial court committed multiple errors which, cumulatively, deprived him of his constitutional
{72} Appellant correctly states the rule of law set forth in State v. DeMarco, 31 Ohio St.3d 191, 196-197 (1987) that pursuant to the doctrine of cumulative error, a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal. In order to consider whether cumulative error is present, this court has to first find that multiple errors were committed. State v. Moore, 11th Dist. Ashtabula No. 2009-A-0024, 2010-Ohio-2407, ¶65.
{73} However, none of appellant‘s remaining assignments of error have merit. Therefore, we cannot agree that he was denied his constitutional right to a fair hearing under the cumulative error doctrine. Accordingly, appellant‘s sixth assignment of error is not well-taken and does not have merit.
{74} For the reasons stated in this opinion of this court, it is the judgment and order of this court that the judgment of the trial court is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.