STATE OF OHIO, Plaintiff-Appellee, v. BRUCE COBBLEDICK, Defendant-Appellant.
No. 108959
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 1, 2020
[Cite as State v. Cobbledick, 2020-Ohio-4744.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-633929-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 1, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Jeffrey Schnatter and Christine Vacha, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Aaron T. Baker, Assistant Public Defender, for appellant.
{¶ 1} Bruce Cobbledick appeals his convictions that were in part based on a jury verdict and in part based on his pleading guilty to counts upon which the jury was unable to reach a verdict. The convictions are based on Cobbledick‘s conduct in sexually abusing two children between 2002 and 2006.1 We affirm.
{¶ 2} After a jury found Cobbledick guilty of dissemination of matter harmful to juveniles, gross sexual imposition, and endangering children, with a mistrial being declared on several other counts, Cobbledick pleaded guilty to three additional counts each of gross sexual imposition against multiple victims or based on separate conduct. The guilty plea was entered in exchange for dismissal of several other counts for which retrial was necessary. The trial court imposed a 17-year aggregate term of imprisonment through consecutive service of the individual, four-year terms imposed on the four gross-sexual-imposition counts and the one-year term imposed upon the disseminating matter harmful to juveniles count. The prison sentences imposed upon the misdemeanor, endangering children counts were imposed to be served concurrently.
{¶ 3} In this appeal, Cobbledick claims that the trial court failed to substantially comply with
{¶ 4} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was knowing, intelligent, and voluntary within the meaning of
{¶ 5} “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. When challenging a guilty plea based on the trial court‘s lack of substantial compliance, a defendant must also show a prejudicial effect — that the plea would not have been otherwise entered but for the error. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero at 108. When consecutive sentences are mandatory, as opposed to discretionary, the trial court must advise the defendant of that mandatory sentence in order to achieve substantial compliance with
{¶ 6} In this case, the trial court had discretion to impose the sentences to be consecutively served. Consecutive service of the individual sentences was not mandated by law, and accordingly, there is no requirement to advise a defendant of the possibility of consecutive service. It has long been held that the “[f]ailure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of
{¶ 7} Furthermore, Cobbledick has not demonstrated, let alone argued, that he was prejudiced by the trial court‘s allegedly incomplete advisement
{¶ 8} With respect to the strict compliance standard,
{¶ 9} Cobbledick complains that the trial court‘s advisement that “no one could force you to testify against yourself” fails to satisfy the strict compliance requirement because the trial court failed to mention that the state cannot comment on a defendant‘s silence. The distinction Cobbledick is attempting to draw with respect to the compulsory process argument is one without a difference, and more
{¶ 10} In addition, it is conceded that the trial court advised Cobbledick of his right to summon witnesses by means of a subpoena for the purpose of explaining his right to compulsory process. Instead, Cobbledick claims that the advisement was deficient because “compulsory process does not merely constitute a subpoena or summons to testify – it also encompasses a trial court‘s power to physically compel the presence of an individual who does not wish to testify.” In other words, according to Cobbledick, the trial court failed to expressly define the term “subpoena” while explaining the defendant‘s right to compulsory process.
{¶ 11} The trial court orally advised Cobbledick in a reasonably intelligent manner of his right to compel a witness to testify, and Cobbledick expressly acknowledged that he understood the right as explained. This satisfied
{¶ 12} And finally with respect to the first assignment of error, Cobbledick argues that his plea to one of the gross-sexual-imposition counts (Count 2) was not valid because the trial court did not expressly ask him “how he pleads” at the conclusion of the colloquy. There is no merit to the final aspect of the first assigned error. Individual statements within a plea colloquy, or the lack thereof, are not considered in a vacuum.
{¶ 13} The appellate inquiry is focused on the totality of the circumstances, in other words whether the offender‘s guilty plea “was made knowingly, intelligently, and voluntarily.” Engle, 74 Ohio St.3d at 527, 1996-Ohio-179, 660 N.E.2d 450. During the change-of-plea colloquy, the trial court asked the defendant if anything had been promised for Cobbledick‘s agreeing to plead guilty to the counts at issue, which expressly included Count 2, as referenced throughout the hearing. Further, Cobbledick expressly acknowledged that his guilty plea would result in adding three felony convictions (including Count 2) to the two that were based on the jury verdict. In referencing the maximum penalty for each count to which a guilty plea was anticipated, the trial court stated that “Counts 2, 7, and 12 are all charged the same thing, they‘re all felonies of the 3rd Degree punishable by one, two, three, four, or five 5 years in prison and a possible $10,000 fine.” Following that exchange, Cobbledick expressly stated his understanding that he would be sentenced on three third-degree felony offenses (Counts 2, 7, and 12 as discussed throughout the
THE DEFENDANT: If that‘s one of the four that‘s agreed, then yes, that‘s correct, sir, yes.
THE COURT: That was one of the four that was agreed, correct?
[ASSISTANT PROSECUTING ATTORNEY]: Correct.
THE DEFENDANT: Yes.
In short, nothing in the record demonstrates anything other than Cobbledick‘s intention to plead guilty to Count 2. Again, although an ideal colloquy would have had the defendant expressly “plead guilty” to the offense, we cannot conclude that reversible error occurred based on the record presented.
{¶ 14} The totality of the colloquy demonstrates that Cobbledick understood and intended to plead guilty to several counts including Count 2, despite the fact he did not expressly state that he “pleaded guilty” to Count 2 following the conclusion of the advisements. See, e.g., State v. Vincent, 8th Dist. Cuyahoga No. 38942, 1979 Ohio App. LEXIS 9658, 9 (May 17, 1979) (no reversible error occurred because appellant failed to demonstrate prejudice from the trial court‘s failure to specifically ask him how he pleaded); State v. Alridge, 6th Dist. Sandusky No. S-15-001, 2015-Ohio-4064, ¶ 15 (considering the totality of the change-of-plea hearing, the failure to expressly ask the defendant “how do you plea” was not reversible error). Further, Cobbledick did not object at sentencing to the trial court‘s statement that Cobbledick
{¶ 15} In the second assignment of error, Cobbledick claims that the consecutive sentence findings are not supported by the record because he is a first-time offender at the age of 56 and concurrent service of the sentences would have sufficed.
{¶ 16} Felony sentences are reviewed under the standard provided in
{¶ 17} In this case, Cobbledick is challenging whether consecutive service is necessary to protect the public from future crime or to punish the offender under
{¶ 18} Cobbledick is essentially asking this court to review the imposition of consecutive sentences de novo, without deference to the findings made by the trial court or the record that supports those findings. This form of review is beyond the scope provided under
{¶ 19} We affirm the convictions.
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 convictions having been affirmed, any bail pending 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, JUDGE
MARY J. BOYLE, P.J., and RAYMOND C. HEADEN, J., CONCUR