STATE OF OHIO v. JOSE M. GONZALEZ
No. 100848
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 26, 2015
[Cite as State v. Gonzalez, 2015-Ohio-673.]
BEFORE: Kilbane, P.J., Stewart, J., and Boyle, J.
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-575397-A
RELEASED AND JOURNALIZED: February 26, 2015
ATTORNEY FOR APPELLANT
Edward M. Graham
Edward M. Graham Co., L.P.A.
13363 Madison Avenue
Lakewood, Ohio 44107
Timothy J. McGinty
Cuyahoga County Prosecutor
Margaret A. Troia
Brian R. Radigan
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶2} In July 2013, Gonzalez was charged in a three-count indictment. Count 1 charged him with the rape of his seven-year-old granddaughter, in violation of
{¶3} Pursuant to a plea agreement, Gonzalez pled guilty to GSI and an amended count of rape. The rape count was amended by deleting the furthermore specification and changing the violation to
{¶4} Gonzalez now appeals, raising the following single assignment of error for review.
Assignment of Error
The court committed plain error in violation of [Gonzalez‘s] constitutional rights by accepting the plea of [Gonzalez] that was not made knowingly, intelligently, and voluntarily.
{¶6}
{¶7} A trial court must strictly comply with the
{¶8} With respect to nonconstitutional rights, which are set forth in
{¶10} Gonzalez argues the trial court failed to advise him: (1) that a violation of postrelease control may result in additional prison time; (2) of the Tier III reporting obligations; and (3) of the correct penalty for failing to comply with the Tier III reporting requirements.
{¶11} We note that the trial court must provide the defendant information pertaining to postrelease control during the plea hearing. Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 44, citing Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171, 733 N.E.2d 1103, paragraph two of the syllabus. In cases involving a mandatory period of postrelease control, postrelease control is part “of the maximum penalty involved in an offense for which a prison term will be imposed.” State v. Perry, 8th Dist. Cuyahoga No. 82085, 2003-Ohio-6344, ¶ 10, citing State v. Jones, 8th Dist. Cuyahoga No. 77657, 2001 Ohio App. LEXIS 2330 (May 24, 2001). We further note that the advisement regarding the sexual offender classification and requirements are also part of the “maximum penalty involved.” State v. Allen, 8th Dist. Cuyahoga No. 97820, 2013-Ohio-258, ¶ 12, citing State v. Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627. The advisement about the maximum penalty involved is a nonconstitutional right. State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and 100399, 2014-Ohio-2275, ¶ 7, citing State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333,
{¶12} In the instant case, the trial court advised Gonzalez as follows:
THE COURT: [The prosecutor] ask[ed] the court to amend Count 1 to reflect a violation of
Do you understand?
THE DEFENDANT: I understand, your Honor.
THE COURT: And that charge is punishable by a possible term of incarceration of 3 to 11 years in yearly increments.
Do you understand?
THE DEFENDANT: I understand, your Honor.
THE COURT: It is a probational offense, but it does carry a presumption in favor of prison.
Do you understand?
THE DEFENDANT: I understand, your Honor.
THE COURT: In addition to which there‘s a mandatory period of 5 years of post-release control and reporting requirements and you‘ll be labeled as a Tier 3 sex offender with reporting requirements every 90 days of your residence, place of employment and education for the rest of your life.
Do you understand?
THE DEFENDANT: Yes, your Honor.
THE COURT: And failure to adhere to or abide by those reporting requirements could result in additional consequences, up to and including re-indictment on another felony charge.
Do you understand?
THE DEFENDANT: I understand, your Honor.
Do you understand?
THE DEFENDANT: I understand, your Honor.
{¶13} With respect to postrelease control, the trial court advised Gonzalez that there is a mandatory period of five years of postrelease control, which carried reporting requirements. The court also advised that the failure to abide by the postrelease control reporting requirements could result in additional consequences, up to and including reindictment on another felony charge. In response, Gonzalez stated that he understood. Because the trial court did not specifically inform Gonzalez that a postrelease control violation may result in a prison term of up to one-half of his original sentence, the trial court only partially complied in informing Gonzalez of the maximum possible penalty that could be imposed. State v. White, 8th Dist. Cuyahoga No. 95098, 2011-Ohio-1562, ¶ 21. Thus, we must determine if Gonzalez demonstrated whether his plea would have otherwise been made.
{¶14} In the instant case, we find no evidence that Gonzalez was prejudiced when the trial court did not explicitly state that a postrelease control violation may result in a prison term of up to one-half of his original sentence. Gonzalez received a large reduction in his sentence by virtue of his plea. He faced life in prison with his initial charges, but instead was sentenced to 11 years in prison. Furthermore, Gonzalez has presented no evidence or even an argument that he would not have entered his plea and would have insisted on going to trial if he knew of the ramifications associated with postrelease control. Soltis, 2009-Ohio-6636. See also State v. Clark, 11th Dist. Ashtabula No. 2006-A-0004, 2008-Ohio-6768 (where on remand from the Ohio Supreme Court, the Eleventh District Court of Appeals refused to vacate defendant‘s guilty plea
{¶15} Based on the foregoing, we find that the trial court substantially complied with
{¶16} With respect to the Tier III notification and requirements, the trial court advised Gonzalez that he will be labeled a Tier III sex offender, which carried reporting requirements of every 90 days of his residence, place of employment, and education for the rest of his life. The court also advised that he is precluded from residing within a 1000 feet of a school or a daycare center having visible signage or any establishment having to do with the housing of children. Gonzalez indicated that he understood these requirements.
{¶17} We note that the “[t]he trial court is not ‘required to review each of the numerous individual restrictions set forth in R.C. Chapter 2950’ in order to substantially comply with
{¶18} In this case, we find that under the totality of the circumstances, Gonzalez subjectively understood that by pleading guilty to rape and GSI, he would be subject to certain restrictions as a Tier III sex offender. Additionally, the trial court asked Gonzalez if he had any questions about the plea and the possible consequences. Gonzalez responded, “no.” Therefore, the record demonstrates that the trial court substantially complied in advising Gonzalez that he would be classified a Tier III offender.
{¶19} Accordingly, the sole assignment of error is overruled
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.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and MARY J. BOYLE, J., CONCUR