State v. DobbsState v. Dobbs
Rendered on the 6th day of August, 2010.
STEPHANIE R. HAYDEN, Atty. Reg. No. 0082881, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 3946 Kettering Blvd., Suite 202, Kettering, Ohio 45439
Attorney for Defendant-Appellant
FROELICH, J.
{¶ 1} Gary W. Dobbs, Jr. pled no contest to nine counts of rape and two counts of unlawful sexual conduct with a minor after the Greene County Court of Common Pleas overruled his motion to suppress evidence. The court found him guilty and sentеnced him to an aggregate term of ten years to life. Dobbs was designated a Tier III sex offender.
I
{¶ 3} On July 10, 2009, Dobbs was indicted for nine counts of rape, in violation of
{¶ 4} Dobbs subsequently moved to suppress statements that he made to the police when he was interrogated at the Xenia Police Department. He claimed that the police “made implied and improper representations to Defendant that if Defendant would admit certain crimes, police would obtain leniency (probation and treatment) for him.” The trial court held a hearing on the motion on September 14, 2009, during which Dеtective Clay testified for the State and Dobbs testified on his own behalf. A copy of the pre-interview Miranda rights form and a DVD of the interview were admitted as evidence. The court took the matter under advisement.
{¶ 5} On September 21, 2009, the morning of Dobbs‘s scheduled jury trial, the trial court orally overruled the motion to suppress. The court found that Dobbs had knowingly, intelligently, and voluntаrily waived his Miranda rights and that the detective‘s statements to Dobbs about her informing the court of Dobbs‘s cooperation and remorse or lack thereof fell “in the category of admonishing the Defendant to tell the truth, which case law upholds as a valid
{¶ 6} After the trial court‘s oral ruling, Dobbs informed the court that he wished to arrange a plea with the State “in order to save the victim the embarrassment of testifying.” After a short recess, Dobbs entered a plea of no contest to the nine counts of rape and the two counts of unlawful sexual conduct with a minor. As part of an extensive plea colloquy, the court discussed the charges with Dobbs, as follows:
{¶ 7} “THE COURT: Have you and your Counsel discussed together the nature of the charges that you are facing in this case?
{¶ 8} “THE DEFENDANT: Yes.
{¶ 9} “THE COURT: Do you understand what each of these offenses accuse you of doing?
{¶ 10} “THE DEFENDANT: Yes.
{¶ 11} “THE COURT: Have you reviewed the evidence the State has provided in discovery in this case that sets forth the facts, the basis of each of these charges?
{¶ 12} “THE DEFENDANT: Yes.
{¶ 13} “THE COURT: Have you and your Counsel discussed the possibility of legal defenses, if any, in this case?
{¶ 14} “THE DEFENDANT: Yes.
{¶ 15} “***
{¶ 16} “THE COURT: Okay. And do you understand that a no contest plea is
{¶ 17} “THE DEFENDANT: Yes, sir.
{¶ 18} “THE COURT: Okay. Now, I have a Rule 11 Notification and Waiver fоrm. It appears to have your signature. Is that your signature on here?
{¶ 19} “THE DEFENDANT: Yes.
{¶ 20} “THE COURT: Have you gone over this with Mr. Wilmes?
{¶ 21} “THE DEFENDANT: Yes.
{¶ 22} “THE COURT: And you understand everything on here?
{¶ 23} “THE DEFENDANT: Yes.
{¶ 24} “THE COURT: Now, this indicates you will be entering a no contest plea to nine counts of Rape, a felony of the first degree, and two counts of Unlawful Sexual Conduct With a Minor, both felonies of the third degree. Is that your understanding?
{¶ 25} “THE DEFENDANT: Yes.
{¶ 26} “***
{¶ 27} “THE COURT: *** Is the State satisfied with the record regarding the plea at this point?
{¶ 28} “MRS. BURKE: Yes.
{¶ 29} “THE COURT: Counsel?
{¶ 31} “THE COURT: Mr. Dobbs, as tо the charges we‘ve previously discussed how do you wish to plead at this time?
{¶ 32} “THE DEFENDANT: No contest.”
{¶ 33} The court found that Dobbs‘s plea was entered knowingly, intelligently, and voluntarily, and that it had complied with
{¶ 34} Dobbs appeals from the judgment, raising two assignments of error.
II
{¶ 35} Dobbs‘s first assignment of error states:
{¶ 36} “THE APPELLANT SHOULD BE ACQUITTED BECAUSE THE APPELLEE FAILED TO PROVIDE AN EXPLANATION OF THE CIRCUMSTANCE SUPPORTING THE CHARGES HE PLED NO CONTEST TO.”
{¶ 37} In his first assignment of error, Dobbs claims that the trial court erred in finding him guilty on his no contest plea without an explanation of thе facts and circumstances involved. Citing Chagrin Falls v. Katelanos (1988), 54 Ohio App.3d 157, and Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, Dobbs asserts that, where the State‘s statement of facts fails to establish all of the elements of the offense, a defendant who pleads no contest must be acquitted of the offense.
{¶ 39} The requirements for a no contest plea in felony cases differ from those for a no contest plea in misdemeanor cases. Pursuant to
{¶ 40}
{¶ 41} Dobbs was convicted of nine first-degree felonies and two third-degree felonies. Neither
{¶ 42} ”
{¶ 44} We have reviewed the transcript of the plea hearing and find nothing to support a contention that Dobbs‘s pleas were not made knowingly, intelligently, and voluntarily. The court asked Dobbs if he had reviewed the nature of the charges with his attorney, whether he understood the charges, whether he had reviewed the State‘s discovery, and whether he had discussed any potential legal defenses with his attorney; Dobbs responded affirmatively to each question. The court orally identified the charges to which Dobbs would be pleading and confirmed that Dobbs had signed a plea form. That form indicated, among other things, that Dobbs was pleading no contest to Counts One through Nine, which charged rape in violation of
{¶ 45} The trial court further explained to Dobbs the effect of a no contest plea, including the fact that he retained the right to appeal the denial of his motion to suppress and the fact that his pleas did not constitute admissions of guilt. The court
{¶ 46} The trial court concluded that it had complied with
{¶ 47} Although it is the better practice, nothing in
{¶ 48} The first assignment of error is overruled.
{¶ 49} Dobbs‘s second assignment of error states:
{¶ 50} “THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION TO SUPPRESS THE APPELLANT‘S CONFESSION.”
{¶ 51} In his second assignment of error, Dobbs claims that his confession was involuntary, because Detective Clay implied that she would speak to the trial court on his behalf if he confessed.
{¶ 52} The State‘s evidence at the suppression hearing established the following facts:
{¶ 53} On July 1, 2009, Detectives Clay and Meadows of the Xenia Police Department arrested Dobbs at his place of employment upon an arrest warrant. The detectives transported Dobbs to the police station and placed him in an interview room in the Detective‘s Section of the station. The interview, which was digitally recorded (both video and audio), began shortly before 2:30 p.m. and was conducted by Detective Clay. During the interview, Dobbs apрeared to be healthy, and he did not appear to be under the influence of medicine, illegal drugs or alcohol. Detective Clay wore her firearm throughout the conversation.
{¶ 54} At the beginning of the interview, Detective Clay presented a “Constitutional Rights Pre-Interview Form” to Dobbs, which informed him of his Miranda rights. Dobbs wrote his name, his address, his years of schooling, and the date, time and place of the interview on the form. The detective read each of the rights aloud, asked Dobbs to mark “yes” or “no” with his initials where it asked “Do you understand?”
{¶ 55} At the suppression hearing, Detective Clay testified that Dobbs did not ever ask to stop the interview or for a lawyer. She denied promising anything to Dobbs or threatening him. Detective Clay indicated that she mentioned cooperation to Dobbs, but she always informs suspects that sentencing is beyond her control. Detective Clay indicated that her exact words would be reflected on the DVD of the interview, which was admitted аs State‘s Exhibit 2.
{¶ 56} The DVD reflects that, after Dobbs waived his Miranda rights, Detective Clay encouraged Dobbs to cooperate. She told him that the “truth is the best way to go” and that, when he goes before a judge, the judge will want to know if Dobbs had been cooperative, remorseful, and if there was a possibility of getting him help. Detective Clay told Dobbs that she could not tell him what he “can get out of this,” but it would be best for him to “work with” her. Detective Clay emphasized the importance of cooperation and stated that before she could give a good report to a court about him, she would need information and details from him. Throughout the interview, Detective Clay encouraged Dobbs to tell the truth.
{¶ 57} Dobbs testified that Detective Clay twice told him before presenting the
{¶ 58} As stated above, after hearing the testimony and reviewing the State‘s exhibits, the trial court оrally overruled the motion to suppress. The court found that Dobbs had knowingly, intelligently, and voluntarily waived his Miranda rights and that Detective Clay‘s statements did not constitute unlawful inducements so as to render his statements involuntary.
{¶ 59} On appeal, Dobbs does not challenge the trial court‘s conclusion that he knowingly, intelligently, and voluntarily waived his Miranda rights. He claims only that his statements were made involuntarily due to unlawful inducements by Detective Clay.
{¶ 60} In ruling on a motion to suppress, the trial court assumes the role of the trier of fact; the court must determine the credibility of the witnesses and weigh the evidence presented at the suppression hearing. State v. Morgan, Montgomery App. No. 18985, 2002-Ohio-268, citing State v. Curry (1994), 95 Ohio App.3d 93, 96. In reviewing the trial court‘s ruling, this Court must accept the findings of fact made by the trial court if they are supрorted by competent, credible evidence. Id. However, “the reviewing court must independently determine, as a matter of law, whether the facts
{¶ 61} A defendant‘s statement to police is voluntary absent evidence that his will was overborne and his capacity for self-determination was critically impaired due to coercive police conduct. Colorado v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954; State v. Otte, 74 Ohio St.3d 555, 562, 1996-Ohio-108. “In deciding whether a defendant‘s confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.” State v. Edwards (1976), 49 Ohio St.2d 31, at paragraph two of the syllabus, overruled on other grounds, (1978), 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155. See, also, State v. Brewer (1990), 48 Ohio St.3d 50, 58; State v. Marks, Montgomery App. No. 19629, 2003-Ohio-4205. The State has the burden to show by a preponderance of the evidence that a defendant‘s confession was voluntarily given. State v. Melchior (1978), 56 Ohio St.2d 15.
{¶ 62} “Admonitions to tell the truth are considered to be neither threats nor promises and are permissible.” State v. Loza (1994), 71 Ohio St.3d 61, 67, overruled on other grounds. A police officer‘s “[p]romises that a defendant‘s cooperation would be considered in the disposition of the case, or that a confession would be helpful, does not invalidate an otherwise legal confession.” Id., citing Edwards, 49 Ohio St.2d at 40-41.
{¶ 63} Detective Clay‘s statements to Dobbs were not unlawful promises of leniency. Although Detective Clay repeatedly encouraged Dobbs to cooperate and to
{¶ 64} Dobbs has not argued that his statements to Detective Clay were involuntary due to other coercive police conduct, and we find no basis to conclude that any coercive police conduct occurred.
{¶ 65} The second assignment of error is overruled.
IV
{¶ 66} The trial court‘s judgment will be affirmed.
. . . . . . . . . .
BROGAN, J. and FAIN, J., concur.
Copies mailed to:
Stephanie R. Hayden
William O. Cass, Jr.
Hon. Stephen A. Wolaver