State v. ConnerState v. Conner
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-521352-A
RELEASED AND JOURNALIZED: September 16, 2010
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103-1125
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Matthew Waters
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶ 1} Appellant, Andre Conner (“Conner“), appeals his guilty plea to two counts of attempted murder, a first degree felony, in violation of
Facts and Procedural History
{¶ 2} On October 11, 2008, Conner was driving a white SUV in a parking lot near East 135th Street and Miles Avenue in Cleveland, Ohio, when he apparently hit a Chevrolet Malibu and then fought with the driver of
{¶ 3} On February 25, 2009, a Cuyahoga County Grand Jury charged Conner in a seven-count indictment. Counts 1 and 2 charged attempted murder, first degree felonies, in violation of
{¶ 4} Counts 3 and 4 charged felonious assault, a second degree felony, in violation of
{¶ 5} On May 14, 2009, Conner pled guilty to attempted murder in Counts 1 and 2 with five-year firearm specifications. In exchange, the State deleted the one- and three-year firearm specifications from Counts 1 and 2
“Trial Court: Amended count 1 attempted murder with a five-year gun specification, that bears possible penalty of incarceration from three to ten years in one-year increments plus an additional five years to be served prior to and consecutive to the underlying sentence.
So as the prosecutor said the very minimum would be a mandatory eight years, plus a fine of up to $20,000 and that would be a mandatory five years post-release control. Do you understand?
Conner: Yes, ma‘am.
Trial Court: And also to amend Count 1, attempted murder, a felony of the first degree with the five-year gun spec, how do you plead?
Conner: Guilty.
Trial Court: Amended count 2 is also an attempted murder, a felony of the first degree, with the same five-year gun specification, again possibility of three to ten years in one-year increments, plus the additional five years prior to and consecutive with the underlying sentence, fine of up to $20,000 plus there would be a mandatory five-years post-release control. Do you understand?
Conner: Yes, ma‘am.
Trial Court: Knowing all these things, how do you plead to Count 2, attempted murder, amended count 2, attempted murder?
Conner: Guilty.” (Tr. 7-8.)
{¶ 6} On June 19, 2009, Conner was sentenced to 12 years of incarceration: seven years on Counts 1 and 2, to be served concurrently with one another, and five years on the underlying firearm specifications, to be served consecutively to the underlying charges.
{¶ 7} On September 21, 2009, Conner filed a notice of appeal and motion for delayed appeal, which was granted by this court. This appeal followed.
{¶ 8} Conner asserts one assignment of error for our review:
“The trial court failed to comply with the mandatory requirements of Ohio Revised Code §2943.032 and denied Appellant due process of law by accepting Appellant‘s guilty plea without first fully informing him of the terms and conditions of post-release control. Ohio Revised Code §2943.032; Crim.R. 11(C)(2)(a) and (b); Fourteenth Amendment, Constitution of the United States; Article I, Section 16, Ohio Constitution.” (Emphasis sic.)
{¶ 9} Both the Ohio and the United States Constitutions require that a defendant entering a guilty plea must do so knowingly, intelligently, and voluntarily. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450.
{¶ 10} In determining whether the trial court has satisfied its duties under
{¶ 11} For nonconstitutional rights, scrupulous adherence to
{¶ 12} If the trial judge imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial compliance rule applies. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.
{¶ 13} In the instant case, Conner argues that his plea was not knowingly, voluntarily, and intelligently made because the court did not inform Conner that he could be administratively subject to up to one-half of his stated prison term if he violated the terms and conditions of his postrelease control. In support of this contention, he cites State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, for the proposition that a
{¶ 14} Conner does not argue that he would not have pled guilty if the court had advised him of this statutory provision, which is the key test under Veney. While the record is clear that the trial court did not inform Conner of the possibility that his sentence could be administratively extended if he violated postrelease control, the record also shows that the trial court sufficiently apprised him of the mandatory nature of postrelease control. Any administrative extensions, including additional prison time, are by no means a certainty in Conner‘s sentence.
{¶ 15} In this case, Conner must show that he was prejudiced by the trial court‘s failure to inform him that his sentence could be administratively extended pursuant to
{¶ 17} Since Conner cannot show he was prejudiced by the trial court‘s failure to inform him that he could be administratively subject to imprisonment for up to one-half of his stated prison term if he violated the terms and conditions of his postrelease control, we will not vacate his plea on this basis. Id. The trial court substantially complied with
{¶ 18} Accordingly, Conner‘s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
MARY J. BOYLE, J., CONCUR