State v. GreenState v. Green
{¶1} Defеndant-appellant, Daniel Green, appeals following his conviction and sentence on one count of sexual battery. For the reasons that follow, we affirm.
{¶2} Defendant was charged with the following offenses: two counts of rape in violation of
{¶3} On February 28, 2011, the trial court held a hearing where the state reviewed the charges and specifications, potential penalties for each, and the plea offer. The trial judge advised defendant “[i]f you‘d like to have a trial, I am happy to do that. That is your right and if you would like to exercise that right, I certainly will go ahead with the trial.” The trial court explained its reason for reviewing the charges, potential penalties, and plea offers on the record was “to give [defendant] the oppоrtunity to hear what you‘re facing as charged and what you‘re facing should you enter the plea bargain.” The court explained that defendant had “to decide what‘s best for [him] * * * like a cost benefits analysis or risk benefit analysis * * * what [his] risk is if [he] should have a trial and what [his] risk or
{¶4} Defendant was advised of the potential penalties he faced if convicted of all counts and specifications in the indictment. He was informed that he faced a potential sentence of at least sixty years. Defendant was further informed that if he was convicted of the sexually violent predator specifications, the parole board would have discretion to deny him parole for life. Defendant indicated that he understood.
{¶5} The trial court advised, “I have no idea what the evidence is, how it would come out, whether you would be found guilty or not guilty. That‘s something for the jury to decide.”
{¶6} The state proceeded to place the plea offer on the record. The state was willing to accept a guilty plea on one count of sexual battery without any specifications. In exchange, all rеmaining counts and specifications would be dismissed.
{¶7} The trial court explained that the plea offer reduced defendant‘s potential penalty to a probationable third degree felony. Defendant was advised that he would no longer face a potential additional ten years or thе life tail with the parole board because the sexual violent predator specification would be removed. Defendant was told his potential penalty under the plea agreement “would be anywhere from a probationable offense, one to five years in prison” with “a tier three registration.”1
{¶8}
{¶9} Another hearing was held on April 4, 2011 where defendant expressed his desire to enter a guilty plea. Defendant pled guilty to one count of sexual battery, a third degree felony, and all other specifications and charges were dismissed.
{¶10} Defendant subsequently filed a motion to withdraw his guilty plea thаt the trial court denied after holding a hearing. Defendant also filed a motion to disqualify his counsel that was also denied after a hearing. The trial court held a sentencing hearing and ordered defendant to serve a four year prison sentence. Defendant was advised of additional penalties and consequences including postrelease control as well as registration and reporting requirements implicated by his conviction.
{¶11} Defendant assigns five errors for our review.
{¶12} “Assignment of Error No. I: The trial court‘s participation in the plea bargain process rendered the proceedings fundamentally unfair as to deny Appellаnt due process of law.”
{¶13} “A trial judge‘s participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant‘s plea.” State v. Byrd, 63 Ohio St.2d 288, 407 N.E.2d 1384 (1980) syllabus.
{¶14}
{¶15} In this case, the trial court never expressed an attitude about defendant‘s guilt prior to him entering a guilty plea. Quite the opposite, the trial court noted that defendant could be found not guilty at trial. The court stated “I have no idea what the evidence is, how it would come out, whether you would be found guilty or not guilty. That‘s something for the jury to decide.”
{¶16}
{¶17} Defendant‘s claims of coercion are further undermined by the fact he, in fact, rejected the plea offer on the record. The trial court aсcepted defendant‘s decision and began preparations for trial. Although the February 28, 2011 transcript of proceedings indicated that the plea offer was to expire that day, defendant was apparently still able to enter the same guilty plea in April of that year.
{¶18} The trial court did not take an active role in the plea bargain at all. The transcript reflects that the trial court merely had the state place the terms of the plea offer on the record. The court explained its reasons for doing so was to ensure that defendant made an informed decision to proceed to trial.
{¶19} This is not only permissible but a good practice in light of recent authority that recognizes the critical role plea negotiations play in criminal proceedings. See Missouri v. Frye, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2012 WL 932020 (U.S. 2012) (counsel was deficient in failing to communicate to defendant written plea offer before it expirеd). In Frye, the United States Supreme Court observed that
{¶20} The transcript reflects that the trial court made thе state‘s formal plea offer part of the record and nothing more. Accordingly, this assignment of error is overruled.
{¶21} “Assignment of Error No. II: The Appellee engaged in intentional misconduct calculated to goad Appellant into entering his initial guilty plea.”
{¶22} “Assignment of Error No. III: Appellant was denied the effective assistance of counsel in violation of his Sixth Amendment Right to counsel and his Fourteenth Amendment Right to due process.”
{¶23} Defendant contends that the indictment improperly charged him with sexually violent predator specifications when he had no prior conviction for a sexually violent of оffense. He contends this constituted both intentional misconduct on the part of the state as a means of leveraging him into a guilty plea and that his counsel was deficient by allowing him to enter a guilty plea without challenging it.
{¶24} Defendant relies on State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, in support of his position. In Smith, the court held that a “conviction of a sexually violent offense cannot suрport the specification that the offender is a sexually violent predator as defined in
{¶25} Given the revisions to the statute and the General Assembly‘s explicit purposes in enacting them, defendant‘s reliance on Smith is misplaced. The present law allows for the inclusion of a sexually violent predator specification in the indictment of one being charged for the first time with a sexually violent offense. Accordingly, the state did not engage in any intentional misconduct concerning the inclusion of the sexually violent predator specifications in defendant‘s indictment nor did defense counsel render
{¶26} “Assignment of Error IV: The trial court erred resulting in prejudice to Appellant by accepting his pleа without first addressing him personally and informing him a guilty plea is a complete admission of guilt.”
{¶27} Defendant alleges that he did not understand his guilty plea was a complete admission of guilt. This relates to a non-constitutional right, which implicates a standard of review as to whether the trial court substantially complied with
Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice. [Nero, 56 Ohio St.3d], at 108, 564 N.E.2d 474. The test for prejudice is “whether the plea would have otherwise been made.” Id. Under the substantial-compliance standard, we review the totality of circumstances surrounding [defendant‘s] plea and determine whether he subjectively understood that a guilty plea is a complete admission of guilt. Id.
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. The record here indicates that defendant understood his guilty plea was a complete admission of guilt.
{¶28} The court reviewed the various constitutional rights that defendant was giving up by entering the guilty plea, including his right to counsel, to subpoena and cross-examine witnesses, to have the state prove his guilt beyond a reasonable doubt, аnd the right to remain silent and not testify.
{¶29}
{¶30} One who enters a guilty plea without asserting actual innocence is presumed to understand he has completely admitted his guilt. Id. at ¶ 19. At no time during the guilty plea proceedings did the defendant assert actual innocence. The record demonstrates that defendant understood that by entering his guilty plea, he was admitting to committing sexual battery. This assignment of error is overruled.
{¶31} “Assignment of Error V: The trial court erred resulting in prejudice to Appellant when it imposed four years near the maximum sentence for a first time offender in violation of due process clause to the State and Federal Constitutions.”
{¶32} Defendant asserts that his four year prison term is contrary to law because he is a first-time offender and the sentence is at the high end of the sentencing range for his conviction. Defendant generally asserts that amendments to Ohio‘s sentencing law, which took effect on September 30, 2011, render his sentence contrary to law. They do not. The current version of the law provides that the sentencing range for felonies of the third degree includes a prison term anywhere from “twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.” See
{¶33} 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 Rulе 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR