STATE OF OHIO, Plaintiff-Appellee, v. RONALD D. GIBSON, Defendant-Appellant.
Case No. 17 MA 0029
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
November 5, 2018
2018-Ohio-4725
BEFORE: Carol Ann Robb, Cheryl L. Waite, Kathleen Bartlett, Judges.
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 1061
JUDGMENT:
Affirmed.
Atty. John P. Laczko LLC, 3685 Stutz Drive, Suite. 100, Canfield, Ohio 44406 for Appellant and
Atty. Paul Gains, Prosecutor, Atty Ralph Rivera, Assistant Prosecutor, Mahoning County Prosecutor‘s Office, 21 West Boardman St., Youngstown, Ohio 44503 for Appellee.
{¶1} Defendant-Appellant Ronald Gibson appeals from his convictions entered in Mahoning County Common Pleas Court for voyeurism, gross sexual imposition, and sexual battery. The issues in this appeal are whether the Alford plea was entered into knowingly, intelligently, and voluntarily; and whether the sentences imposed, including the consecutive sentence, were contrary to law. For the reasons expressed below, the convictions are affirmed.
Statement of the Case
{¶2} Appellant was indicted for one count of voyeurism in violation of
{¶3} Appellant requested discovery and waived his right to a speedy trial. 11/4/15 Request for Discovery; 12/2/15 Waive Speedy Trial. Appellant then moved for severance of the crimes based on the victims. 2/29/16 Motion. He argued the trying of all crimes together would destroy the presumption of innocence. 2/29/16 Motion. He asserted the acts alleged against him were not connected, they were not based on the same act or transaction, and there was no allegation the offenses were committed with the same modus operandi. 2/29/16 Motion. The state opposed the motion arguing the evidence was simple and direct, and the jury could determine what allegations went to what charges. 3/22/16 Motion. Agreeing with the state‘s argument, the trial court denied the motion to sever. 3/31/16 J.E.
{¶4} Plea negotiations occurred between the state and Appellant. The state moved to amend one of the rape charges to sexual battery and moved tо dismiss the
{¶5} After hearing victim impact statements and considering felony sentencing statutes, the trial court sentenced Appellant to an aggregate 72 month sentence. 12/30/16 J.E. He received 8 months for voyeurism, 36 months for gross sexual imposition, and 36 months for sexual battery. 12/30/16 J.E. The sentences for voyeurism and gross sexual imposition were ordered to be served concurrently. 12/30/16 J.E. The sexual battery sentence was ordered to be served consecutive to the voyeurism/gross sexual imposition sentence. 12/30/16 J.E. Appellant was designated a Tier III sex offender and advised he was subject to five years of postrelease control. 12/30/16 J.E.
{¶6} Appellant filed a motion for delayed appeal. 2/13/17 Motion. We granted the motion on the basis that counsel was not appointed until after the expiration of the time to file an appeal. 3/24/17 J.E.
First Assignment of Error
The trial court erred by аccepting Appellant‘s Alford Plea when that plea was not entered knowingly, intelligently and voluntarily and therefore Appellant‘s conviction and sentence must be vacated.
{¶7} Appellant contends statements made by counsel during the plea hearing indicate Appellant‘s Alford plea was not entered into knowingly, intelligently, and voluntarily. The state disagrees.
{¶8} An Alford plea is a guilty plea made in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), whereby the defendant pleads guilty but maintains that he did not commit the crime thаt he is pleading to. An Alford plea is merely a species of guilty plea and is procedurally indistinguishable from a guilty plea. State v. Phelps, 7th Dist. No. 14 BE 17, 2015-Ohio-5288, ¶ 10. When an Alford plea is asserted, a more detailed
{¶9} Our analysis begins with a review of the
{¶10} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses against him; 3) the compulsory process for obtaining witnesses in his favor; 4) the state must prove the defendant‘s guilt beyond a reasonable doubt at trial; and 5) the defendant cannot be compelled to testify against himself.
{¶11} The nonconstitutional advisements are: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on postrelease control; 3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions; and 4) after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.
{¶12} The record indicates the trial court‘s advisement on the constitutional rights strictly complied with
{¶13} As to the nonconstitutional rights, the trial court‘s advisement substantially complied with
{¶14} As for the additional Alford plea requirements, the record also indicates those requirements were met. Appellant informed the court his plea was not made under threat and his reason for entering the plea was to limit his possible penalty. 10/31/16 Tr. 6, 12. Originally, Appellant was indicted for two counts of first-degree felony rape, three counts of gross sexual imposition, which were third and fourth degree felonies, and voyeurism, a fifth-degree felony. He pled to sexual battery, a third-degree felony; gross sexual imposition, a third-degree felony; and voyeurism, a fifth-degree felony. This case involved alleged sexual misconduct with three minors. It is clear from the record Appellant understood the charges and the allegations against him. At the outset of the plea hearing, Appellant, through counsel, stipulated there were sufficient facts to satisfy the elements of each pled to crime. 10/21/16 Tr. 4-5. Counsel‘s advice was competent in light of the circumstances surrounding the indictment and plea
{¶15} Despite meeting the above requirements, Appellant contends the plea was not intelligently, voluntarily, and knowingly made because he did not understand the effect of the Alford plea. Appellant asserts neither he nor counsel understood what issues could be appealed after an Alford plea was entered. He cites the following statement by counsel:
In an Alford plea of guilty in this case, Your Honor, the defendant understands that the legal sufficiency of the plea is exactly the same as if it were a complete admission of the factual basis. It, A, results in a finding of guilt; it, B, results in an eventual sentencing hearing where the Court will impose the sentencing it deems appropriate; and, C, it results in a complete forfeiture of any right to appeal, except two possibilities; one, ineffective аssistance of counsel; and two, mistakes at sentencing.
10/31/16 Plea Tr. 6-7.
{¶16} An Alford plea is a species of a guilty plea, which, in effect, waives a defendant‘s right to raise most issues on appeal. State v. Gilmer, 6th Dist. No. L-12-1079, 2013-Ohio-3055, ¶ 6, quoting State v. Ware, 6th Dist. No. L-08-1050, 2008-Ohio-6944, ¶ 12. See also State v. Darks, 10th Dist. No. 05AP-982, 2006-Ohio-3144, ¶ 14, quoting State v. Carter, 124 Ohio App.3d 423, 429 (2d Dist.1997). Appellant is correct, a guilty plea waives the right to allege ineffective assistance of counsel except to the extent Appellant asserts that his plea was not knowing and voluntary. State v. Kelly, 7th Dist. No. 08CO23, 2009-Ohio-1509, ¶ 11. The statement made by counsel does not demonstrаte a misunderstanding of this proposition of law. While counsel might not have stated the nuances for the rule when there is a guilty plea, counsel‘s statement does not indicate he was unaware of the nuances.
{¶17} As for Appellant‘s understanding of the effect of an Alford plea, he seems to assert he was not aware he would not be able to appeal the severance ruling.
{¶18} A guilty plea does waive the right to challenge the dеnial of
{¶19} Possibly, Appellant is attempting to argue he was unaware of his inability to appeal the severance ruling and counsel was ineffective for not tеlling him this prior to him entering the plea and had he known he would not have entered an Alford plea. In order to establish a claim of ineffective assistance of counsel Appellant must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of counsel rеlates to a guilty plea, a defendant must show there is a reasonable probability that but for counsel‘s deficient or unreasonable performance the defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985). Appellant cannot satisfy these elements.
{¶20} An appellant claiming error in the trial court‘s refusal to allow separate trial under
{¶21} There are two ways the state can rebut a claim of prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). First, it can show that evidence of the
{¶22} In this instance, the state admitted it could not meet the other acts standard. Instead it argued the evidence was simple and direct. The trial court agreed. That decision does not appear to be an abuse of discretion. The Ohio Supreme Court has repeatedly stated that the jury is believed capable of segregating the proof on multiple charges when the evidence of each of the charges is uncomplicated. State v. Brooks, 44 Ohio St.3d 185, 193, 542 N.E.2d 636 (1989). Evidence is simрle and direct when it is apparent that the jury is not confused as to which evidence proved which act. State v. Harris, 7th Dist. No. 13 MA 37, 2015-Ohio-2686, ¶ 30, citing State v. Coley, 93 Ohio St.3d 253, 259, 754 N.E.2d 1129 (2001).
{¶23} Here, there were three victims. Victim 3 was the victim of four of the charges in the original indictment. It was alleged Appellant encouraged her to use intoxicating substances and when she was intoxicated that is when the alleged sexual misconduct occurred. The other two victims did not claim the involvement of intoxicating substances. The viсtim of the voyeurism, Victim 1, was recorded going to the bathroom. Victim 2 was touched inappropriately over her clothing. The instances as explained by the prosecutor are simple and direct. A jury would be able to segregate the evidence for each of the charges and victims.
{¶24} Therefore, the trial court‘s ruling was correct. Accordingly, given the plea deal and the unlikelihood of successfully arguing that the trial court decided the severance issue incorrectly, advising Appellant to enter into an Alford plea did not constitute deficient performance. Furthermore, there is nothing in the record to suggest Appellant would not have entered the plea had it been crystal clear the severance issue could not be appealed.
{¶25} This assignment of error is meritless.
Second Assignment of Error
The trial court erred in sentencing Appellant and imposing consecutive terms of incarceration pursuant to Alford Pleas without making the statutorily required findings.
{¶27} In arguing the sentence is contrary to law, Appellаnt discussed both the sentence imposed and the imposition of a consecutive sentence.
{¶28} Starting with the sentences imposed, Appellant received thirty-six months for the sexual battery and the gross sexual imposition convictions. Both are third-degree felonies and these are not the maximum sentences for these crimes.
{¶30} The findings supporting consecutive sentences must be made both at the sentencing hearing and in the entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. But a trial court is not rеquired to state reasons supporting its findings or use magic or talismanic words, so long as it is apparent the court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014-Ohio-2248, ¶ 6; see also Bonnell at ¶ 37. We may liberally review the entire sentencing transcript to discern whether the trial court made the requisite findings. Bonnell at ¶ 29.
{¶31} At sentencing, the trial court stated:
The court finds consecutive sentences are necessary to protect the defendant and that they are not disproportionate to the seriousness of the conduсt and the danger that the defendant poses. The court also finds that the harm was so great or unusual that the single term does not adequately reflect the seriousness of the conduct.
12/29/16 Tr. 25.
{¶32} In the first sentence, the trial court does state consecutive sentences are necessary to protect the defendant instead of stating consecutive sentences are necessary to protect the public. Considering the entire reсord, this appears to be a mere misstatement and that the trial court really meant to state the sentence was necessary to protect the public. The judgment entry uses the correct language and the statements made prior to the statement about a prison sentence being necessary and
{¶33} The second sentence of the trial court‘s analysis quoted above does not use the phrase course of conduct. As aforementioned course of conduct is part subsection (b) of one of the potential findings required for the third finding under
{¶34} The trial court also made the required findings in the judgment entry:
The Court finds in this matter consecutive sentences are necessary to protect the public from future crime and to punish the offender and; that consecutive sentences are not disproportionate to the seriousness of the Defendant‘s conduct and to the danger the Defendant poses to the public and; that the offenses committed by the Defendant were part of a course of conduct that no single prison term for any of the offenses committed as part of the course оf conduct adequately reflects the seriousness of Defendant‘s conduct.
12/30/16 J.E.
{¶35} Counsel does admit the trial court made the statutory findings in the judgment entry. However, counsel creatively argues the trial court‘s bare bones use of the statutorily required language is not sufficient to comply with
{¶36} Given the record, the arguments lack merit. This assignment of error is meritless.
Conclusion
{¶37} Both assignments of error lack merit. The convictions are affirmed.
Waite, J., concurs.
Bartlett, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to
NOTICE TO COUNSEL
This document constitutes a final judgment entry.