State v. FaulknerState v. Faulkner
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Julia R. Bates, Lucas County Prosecuting Attorney, and J. Christopher Anderson, Assistant Prosecuting Attorney, for appellee.
Patricia Horner, for appellant.
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HANDWORK, J.
{¶ 1} This appeal is taken from a judgment issued by the Lucas County Court of Common Pleas, following appellant‘s no contest plea to burglary with a firearm specification. Because we conclude that the trial court substantially complied with
{¶ 2} Appellant, Joshua Faulkner, was indicted on and initially pled not guilty to one count of aggravated burglary, a violation of
{¶ 3} After reviewing a presentence investigation report, the court sentenced appellant to four years incarceration as to the burglary conviction, and an additional mandatory one year as to the firearm specification, to be served consecutively and prior to the burglary sentence. Appellant was also given notice of three to five years postrelease control that could be imposed upon his release from prison. Appellant was also found to be “ineligible for shock incarceration under
{¶ 4} Appellant now appeals from that judgment, arguing the following three assignments of error:
{¶ 6} “II. The trial court committed reversible error in ordering defendant to pay his court appointed attorney fees.
{¶ 7} “III. Vagueness of the phrase ‘costs of case’ requires strict construction against the state.”
I.
{¶ 8} We will address appellant‘s assignments of error out of order. In his second assignment of error, appellant claims that the court erred in ordering him to pay court-appointed attorney fees. We disagree.
{¶ 9}
{¶ 11} In this case, the court found, on the record, appellant is “to have or reasonably be expected to have the means to pay all applicable costs of supervision, confinement, assigned counsel, and prosecution as authorized by law and * * * [is] ordered to reimburse the State of Ohio and Lucas County for such costs.” (Emphasis added.) During the plea hearing, at the court‘s inquiry, appellant responded that he was 26 years old and had a GED with a vocational degree in small engine repair. Consequently, from this information, the court could infer that appellant would have the ability to find gainful employment to pay costs and attorney fees, after his release.
{¶ 12} Accordingly, appellant‘s second assignment of error is not well-taken.
II.
{¶ 13} We will now address appellant‘s first and third assignments of error together. In his first assignment of error, appellant contends that his no contest plea was not voluntarily, knowingly, or intelligently made because the written plea agreement did not specify that the trial court could order him to pay his court-appointed counsel‘s fees. In his third assignment of error, appellant argues that the phrase “costs of case”1 in the plea agreement is vague, must be construed against the state, and should not include court-appointed attorney fees.
{¶ 14} Crim.R. 11(C)(2) requires, prior to accepting a plea of guilty or no contest, the court to personally address the defendant, determine that the plea is voluntary and that the defendant understands the charges and potential penalties. The court must also advise the defendant of the rights he is waiving by entering such a plea. Crim.R. 11(C)(2)(a)
and (c). Additionally, the court must inform the defendant of and determine that the
{¶ 15} When considering if a plea was entered knowingly, intelligently and voluntarily, an appellate court‘s examination of the totality of the circumstances requires a “de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.” State v. Kelly (1991), 57 Ohio St.3d 127, 129. Strict compliance with Crim.R. 11 is required with respect to a defendant‘s waiver of constitutional rights. State v. Gibson, 8th Dist. No. 93878, 2010-Ohio-3509, ¶ 13, citing Boykin v. Alabama (1969), 395 U.S. 238, 243.
{¶ 16} When the rights involved are not constitutional, however, substantial compliance with the rule is sufficient. State v. Nero (1990), 56 Ohio St.3d 106, 108. “Substantial compliance means that, under the totality of the circumstances, appellant subjectively understood the implications of his plea and the rights he waived.” State v. Vinson, 10th Dist. No. 08AP-903, 2009-Ohio-3240, ¶ 6.
{¶ 17} The rights to be informed of the maximum possible penalty and the effect of the plea are nonconstitutional rights that are reviewed for substantial compliance. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31. As we noted previously, however, costs of prosecution and payment of court-appointed attorney fees are not considered penalties or sanctions. Joseph, supra, at ¶ 20, and Threatt, supra, at ¶ 15. “Consequently, since court costs are not punishment, they are not part of the ‘penalty’ that the trial court needs to describe under Crim.R. 11(C)(2)(a).” McDaniel, supra, at ¶ 21.
{¶ 18} In this case, contrary to appellant‘s contention, the order to pay costs of his court-appointed counsel is not punishment or sanction, and the strict compliance requirement of Crim.R. 11(C)(2)(a) does not apply. Consequently, only substantial compliance by the trial court is required. The plea agreement signed by appellant refers to “other financial costs,” which we do not find to be “vague.” Rather, it is an all-inclusive, descriptive term, which, under its plain meaning, is meant to include any other fees that court might impose, including the cost of prosecution, court costs, and court-appointed attorney fees. During the plea hearing, the court asked appellant if he “had a chance to review this plea form?” Appellant responded that he had. The court then asked, “Do you have any questions about what‘s set forth in this document?” Appellant responded in the negative.
{¶ 19} Further, as noted previously, the court specifically found during sentencing that appellant would have the means to pay the costs of “assigned counsel.” Since appellant indicated he understood the written plea agreement, and the court clearly included court-appointed attorney fees as “other financial costs” during the sentencing hearing, without objection, we conclude that, under the totality of the circumstances appellant was subjectively aware of the effect and implications of his plea. Therefore,
{¶ 20} Accordingly, appellant‘s first and third assignments of error are not well-taken.
{¶ 21} The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.