STATE OF OHIO, Plaintiff-Appellee, v. CHRISTOPHER GALVAN, Defendant-Appellant.
No. 108658
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
April 2, 2020
[Cite as State v. Galvan, 2020-Ohio-1285.]
MARY J. BOYLE, P.J.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628213-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Theodore Parran, III, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and Carli R. Young, for appellant.
MARY J. BOYLE, P.J.:
1 Defendant-appellant, Christopher Galvan, appeals his convictions. He raises two assignments of error for our review:
The trial court erred by failing to comply with the requirements of Crim.R. 11 .- Trial counsel‘s representation fell below a reasonable standard of care when counsel argued that appellant would be eligible for judicial release.
2 Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
3 On May 24, 2018, Galvan was indicted for two counts of aggravated robbery in violation of
4 During the plea hearing, the trial court informed Galvan that he would be giving up his constitutional rights by pleading guilty, including the rights to a jury and/or bench trial, to confront witnesses, to compel witnesses, to have the state prove his guilt beyond a reasonable doubt, and to remain silent and not to testify. The trial court asked Galvan if he understood that he was giving up those constitutional rights, and Galvan responded that he understood.
5 The trial court explained to Galvan the charges against him and the maximum penalties he would face. It informed Galvan that his sentences would not merge because the two offenses were committed separately, with separate victims and on different days: he took money from a tanning salon on April 15, 2018, and from a convenient store on April 17, 2018. The trial court asked Galvan if he
COURT: Also, my understanding is that this would be a plea to include a one-year mandatory firearm specification that will be served prior to and consecutive to the actual charge; so you understand that you will be serving prison time when you come back here for sentencing?
GALVAN: Yes, sir.
6 Galvan confirmed that no threats or promises had been made to induce him to enter into the plea, that he was not taking medications, and that he had not consumed drugs or alcohol. The trial court informed Galvan and determined that he understood that by pleading guilty he would be accepting the amended allegations and relieving the state of its burden of proof. Galvan told the court that he was satisfied with his attorney‘s representation. Defense counsel stated that he was satisfied that the trial court had complied with
8 The trial court sentenced Galvan to an aggregate of six years in prison: for Count 1, five years for aggravated robbery and one year for the firearm specification, to run prior and consecutive to the five years for aggravated robbery; and for Count 2, five years for robbery, to run concurrent to the six years for Count 1. The trial court gave Galvan credit for the 12 days in jail he had already served. The trial court also imposed five years of mandatory postrelease control for aggravated robbery and three years of mandatory postrelease control for robbery. The trial court informed Galvan about the consequences he would face if he were to violate postrelease control. The trial court also imposed court costs and ordered that Galvan pay restitution: $104 to the tanning salon and $1,000 to the convenience store.
9 It is from this judgment that Galvan now appeals.
II. Crim.R. 11(C)(2)(a) and Judicial Release
10 In his first assignment of error, Galvan alleges that “[t]he trial court erred by failing to comply with the requirements of
11 A defendant‘s plea must be entered knowingly, intelligently, and voluntarily for the plea to be constitutional under the United States and Ohio Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Ohio
12 We review whether the trial court complied with
13 Specifically,
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, 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.
14 Trial courts must strictly comply with the provisions concerning the constitutional rights set forth in
15 Moreover, a defendant who challenges his or her plea on the basis that it was not knowingly, intelligently, and voluntarily entered must demonstrate prejudice. Nero at 108. A “failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.” Griggs at ¶ 12. The test for prejudice is “whether the plea would have otherwise been made.” Id., citing Nero at 108.
16
17 As the Eleventh District explained in State v. Mitchell, 11th Dist. Trumbull No. 2004-T-0139, 2006-Ohio-618, ¶ 14:
Judicial release, as with the former availability early release through parole, “is distinct from sentencing because it operates to reduce a prison term the court has imposed.” State v. White, 2nd Dist. No. 04CA120, 2005-Ohio-5906, at ¶ 22. Thus, it is not the sort of “effect of the plea” of which a defendant must be informed before entering a plea. As the Ohio Supreme Court has recognized, “a defendant who bases a plea decision on parole eligibility will often be relying on a factor beyond the prediction of defense counsel, and beyond the actual control of a defendant.” State v. Xie (1992), 62 Ohio St.3d 521, 524-525, 584 N.E.2d 715.
18 In this case, judicial release was not part of Galvan‘s plea. Therefore, the trial court did not violate
19 Galvan further contends that his plea was invalid due to erroneous statements that his defense counsel made about judicial release at the sentencing hearing. At the beginning of Galvan‘s sentencing hearing in December 2018, defense counsel stated:
I think because prison is mandatory in this case that a three-year sentence, obviously consecutive to the one-year gun spec, would punish the offender and protect the public. He understands that if he has any chance at judicial release he‘s going to have to be a model prisoner, do some positive things while in the institution.
20 Galvan pleaded guilty to aggravated robbery, a first-degree felony, in violation of
Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of the Revised Code and except as specifically provided in section 2929.20, divisions (C) to (I) of section 2967.19, or section 2967.191 of the Revised Code or when parole is authorized for the offense under section 2967.13 of the Revised Code shall not reduce the term or terms pursuant to section 2929.20, section 2967.19, section 2967.193, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code for any of the following offenses:
* * *
Any offense, other than a violation of section 2923.12 of the Revised Code, that is a felony, if the offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm
21 A mandatory sentence renders a defendant ineligible for judicial release.
22 While erroneous statements about judicial release made at the plea hearing may invalidate a plea, defense counsel made the erroneous statements at Galvan‘s sentencing hearing. See Robinson, 8th Dist. Cuyahoga Nos. 106676 and 106980, 2018-Ohio-4863, at ¶ 24, quoting Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, ¶ 14 (“It is well settled, however, that where
23 Based upon the record before us, we find that the trial court complied with
III. Ineffective Assistance of Counsel
24 In his second assignment of error, Galvan argues that he received ineffective assistance of counsel because defense counsel‘s reference to judicial release at the sentencing hearing indicates that Galvan received erroneous advice “in multiple conversations and discussions” that he would be eligible for judicial release.
26 In the context of a guilty plea, the standard of review for ineffective assistance of counsel is whether: (1) counsel‘s performance was deficient; and (2) the defendant was prejudiced by the deficient performance, which means there is a reasonable probability that, but for counsel‘s error, the defendant would not have pleaded guilty. State v. Madeline, 11th Dist. Trumbull No. 2000-T-0156, 2002 Ohio App. LEXIS 1348, 9 (Mar. 22, 2002), citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
28 Although defense counsel made an erroneous statement about judicial release at the sentencing hearing, Galvan does not meet his burden of establishing that he was prejudiced by the misstatement. In fact, Galvan does not even assert, let alone prove, that he would not have pleaded guilty if his counsel had not made the misstatements. Galvan was facing two counts of aggravated robbery with one- and three-year firearm specifications, which amounted to a possible sentence of 28 years in prison. His counsel negotiated a plea on his behalf where the state agreed to reduce one of the aggravated robbery counts to second-degree felony robbery, removed the three-year firearm specifications on the remaining first-degree aggravated robbery, and removed both specifications on the second-degree robbery. The trial court then sentenced Galvan to an aggregate sentence of six years in prison. The record simply does not support Galvan‘s claim that he was prejudiced.
29 We therefore overrule Galvan‘s second assignment of error.
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.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and MARY EILEEN KILBANE, J., CONCUR