State v. DrakeState v. Drake
BEFORE: Keough, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: May 16, 2013
John W. Hawkins
Parkhill Professional Building
35104 Euclid Avenue, Suite 101
Willoughby, Ohio 44094
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Carl Sullivan
Adam M. Chaloupka
Assistant County Prosecutors
1200 Ontario Street
Justice Center - 8th Floor
Cleveland, Ohio 44113
{¶1} In this appeal, defendant-appellant, Tim E. Drake, challenges his guilty plea. For the reasons that follow, we affirm.
{¶2} In December 2011, Drake was charged with theft in violation of
{¶3} Drake appeals, contending in his sole assignment of error that he was materially prejudiced by the trial court‘s failure to comply with
{¶4} Under
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *
(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶5} Courts have divided
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. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show prejudicial effect.
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing Stewart at 92-93. The test for prejudice is whether the plea would have otherwise been made. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
{¶6} In this case, Drake is challenging the trial court‘s compliance with respect to the nonconstitutional rights under
{¶7} Drake first contends that the trial court failed to advise him that a guilty plea is a complete admission of guilt. In State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, the Ohio Supreme Court addressed this precise issue and stated, “* * * we hold that a defendant who has entered a guilty plea without asserting actual innocence is presumed to understand that he has completely admitted his guilt. In such circumstances,
{¶8} In this case, although the trial court did not specifically tell Drake that his guilty plea constituted a complete admission of guilt, this court does not find that the omission constitutes error. Drake had no questions for the court and made no claims that he was innocent prior to entering his plea of guilty to the theft charge as indicted. “The word ‘guilty’ implies an acknowledgment of guilt.” State v. Rogers, 8th Dist. Nos. 97093 and 97094, 2012-Ohio-2496, ¶ 19, citing State v. Rodgers, 8th Dist. No. 95560, 2011-Ohio-2535. Drake‘s assurances and the appropriateness of his responses during the colloquy demonstrated that, under the totality of the circumstances, he understood the implications of his plea.
{¶9} Drake also argues that his plea was invalid because the trial court failed to set forth any factual basis for the theft offense and failed to state the elements of theft on the record.
{¶10} A trial court is not required pursuant to
{¶12} The totality of the circumstances indicates that Drake understood the charge against him. The record reflects that after the court questioned Drake about his ability to understand and enter his plea, the court advised him of his constitutional rights, the charge against him, and the consequences and penalties associated with his plea. Drake indicated he understood the foregoing and that he had no questions. There is no indication in the record that Drake did not understand the nature of the theft charge against him. Moreover, Drake pled to the indictment as charged; therefore, the elements of the offense he pled guilty to never changed during the course of the proceedings.
{¶13} Finally, because the rights contained in
{¶14} The trial court specifically asked during the plea hearing if the change of plea would be to “guilty or no contest.” Both the prosecutor and defense counsel agreed
{¶15} Accordingly, we find that the trial court substantially complied with
{¶16} 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
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR