STATE OF OHIO v. JAMES MICHAEL HOWARD
CASE NO. 8-17-01, CASE NO. 8-17-09
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
October 2, 2017
2017-Ohio-8020
Trial Court No. CR 16 01 0011
Judgments Affirmed
APPEARANCES:
Joseph C. Patituce for Appellant
Eric C. Stewart for Appellee
{¶1} This matter comes before us upon two consolidated appeals. Defendant-Appellant, James Michael Howard (“Howard“), brings these appeals from the Logan County Common Pleas Court judgments convicting him of two counts of Unlawful Sexual Conduct with a Minor and denying his motion to withdraw his plea. On appeal, Howard asserts that the trial court erred: (1) when it failed to instruct Howard of the maximum penalties of the charges to which he pled; (2) when it accepted Howard‘s guilty plea аfter improperly instructing Howard on sex offender registration requirements; (3) when it failed to instruct Howard of his Sixth Amendment right to a jury trial; and (4) when it denied Howard‘s motion to withdraw his plea. For the reasons that follow, we affirm the judgments of the Logan County Common Pleas Court.
Factual Background
{¶2} On December 17, 2015, Detective Mike Brugler (“Det. Brugler“), of the Logan County Sheriff‘s Office was contacted by Hardin County Sheriff Sergeant Scott Holbrook regarding sexual assaults that occurred in Logan County. (11/01/2016 Tr., Vol. II, at 194). Det. Brugler met with K.J., the alleged victim of the sеxual assaults, the day following receipt of the report. (Id.). K.J. told Det. Brugler that Howard, her great uncle, had sexually assaulted her multiple times in the past. (Id.). According to K.J., the sexual assaults began when she was thirteen
{¶3} K.J. further told Det. Brugler that Howard‘s sexual assaults of her escalated as she aged, with Howard forcing her to perform oral sex on him when she was fourteen (14), and by forcibly digitally penetrating her vagina at age fifteen (15). (Id. at 129-30). Further, K.J. reported that Howard forced her to have vaginal intercourse with him at age sixteen (16). (Id. at 132). K.J. also reported that at age eighteen (18), Howard forced K.J. to engage in sex with Howard and аnother person. (Id. at 133). K.J. reported that Howard stopped sexually abusing her when she moved from Ohio to attend college. (Id. at 138).
{¶4} At trial, K.J. testified that many years after the abuse ended, she decided to contact law enforcement to report Howard‘s abuse because the prior sexual abuse was ruining her marriage. (Id. at 140).
{¶5} K.J. met a second time with Det. Brugler on December 21, 2015. At this meeting Det. Brugler instructed K.J. to contact Howard by phone. (Id. at 195). She did so and the call was recorded by Det. Brugler. (Id.). During the call, Howard
Procedural History
{¶6} On January 12, 2016, the Logan County Grand Jury indicted Howard on nine felony counts pertaining to sexually abusing K.J. Specifically, Howard was indicted on the following charges: Count I, Rape, a felony of the first degree, in violаtion of
{¶8} On November 1, 2016 Howard‘s charges proceeded to a jury trial. However, at the close of the State‘s case-in-chief on November 2, 2016, a plea agreement was reached between the State and Howard. Howard‘s plea agreement with the State consisted of Counts I and II being amended to Unlawful Sеxual Conduct with a Minor, in violation of
{¶9} Because Unlawful Sexual Conduct with a Minor is not a lesser included offense of Rape, Howard executed a Waiver of Indictment along with a Petition to Enter a Plea of Guilty or No Contest, and pled guilty to the two counts of Unlawful Sexual Conduct with a Minor. (Doc. No. 71; 72; 11/02/2016 Tr., Vol. II, at 296).
{¶10} When he changed his plea, the trial court advised Howard that he would have to register as a Tier II sex offender, biannually for a period of 25 years.1 (Id. at 292). The trial court further advised Howard that he would be subject to a mandatory period of five years of post-release control. (Id. at 291-92). The trial court journalized the change of plea proceedings through its judgment entry filed November 14, 2016. (Doc. No. 79).
{¶12} On January 3, 2017, Howard filed a motion to withdraw his plea and a notice of appeal. (Doc. Nos. 104; 106). The appeal was stayed pending the trial court‘s ruling on Howard‘s motion to withdraw his plea. Further, the State filed a motion with the trial court to reclassify Howard as a sex offender on February 16, 2017, so the trial court withheld its ruling on Howard‘s motion to withdraw plea until the completion of the reclassification hearing. (Doc. No. 116).
{¶13} On April 3, 2017, over Howard‘s objection, a reclassification hearing occurred in the trial court. The trial cоurt re-classified Howard under Megan‘s law as a sexual offender on the two charges, wherein Howard received a ten-year registration requirement, as opposed to the twenty-five year registration period previously imposed.
{¶15} From these judgments Howard timely appeals, and presents the following assignments of error for our review:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT‘S GUILTY PLEA AFTER FAILING TO INSTRUCT ON THE MAXIMUM PENALTIES ASSOCIATED WITH SAID PLEA DURING THE CRIMINAL RULE 11 PLEA COLLOQUY.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT‘S GUILTY PLEA AFTER IMPROPERLY INSTRUCTING ON SEX OFFENDER REGISTRATION REQUIREMENTS DURING THE CRIMINAL RULE 11 PLEA COLLOQUY.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED IN DENYING MR. HOWARD‘S MOTION TO WITHDRAW PLEA.
{¶17} On appeal, Howard presents the following issues for our review: (1) whether the trial court committed reversible error when it accepted Appellant‘s guilty pleа after failing to advise him of the maximum penalties that could be imposed in the event that he violated post release control; (2) whether the trial court committed reversible error when it accepted Appellant‘s guilty plea after improperly advising him of the sex offender registration requirements during the Criminal Rule 11 plea colloquy; (3) whether the trial court committed reversible error when it failed to instruct Appellant of his Sixth Amendment right to a trial by jury; and (4) whether the trial court erred when it denied Howard‘s request to withdraw his plea. Because assignments of error I, II, and III all pertain to alleged deficiencies with Howard‘s
First, Second, and Third Assignments of Error
Crim.R. 11(C)(2) Standard of Review
{¶18} ”
(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.
{¶19} “‘The rule is intended to ensure that guilty pleas are entered knowingly, intelligently, and voluntarily.‘” Gaspareno, at ¶ 49 quoting State v. Phillips, 3rd Dist. Van Wert No. 15-12-02, 2012-Ohio-5950, ¶ 24. “‘Criminal Rule 11(C)(2) clearly and distinctly mandates that the trial judge, before accepting a guilty plea in a felony case, inform the defendant of his rights as expressed in the rule аnd determine that he understands these rights and that he is making his guilty pleas voluntarily.‘” Id. quoting State v. Stewart, 51 Ohio St.2d 86, 88, 364 N.E.2d 1163 (1977) quoting State v. Younger, 46 Ohio App.2d 269, 349 N.E.2d 322 (8th Dist.1975), paragraph two of the syllabus. “Failure to ensure that a plea is entered
{¶20} The advisements under
{¶21} “Pursuant to
Criminal Rule 11(C)(2)(a)
{¶22} In his first assignment of error, Howard asserts that the trial court erred when, prior to accepting his guilty plea, it failed to advise Howard of the maximum penalties that could be imposed if he violated his post release control. We disagree.
{¶23}
Prior to accepting a guilty plea or a plea of no contest to an indictment, information, or complaint that charges a felony, the court shall infоrm the defendant personally, that, if the defendant pleads guilty or no contest to the felony so charged or any other felony, if the court imposes a prison term upon the defendant for the felony, and if the offender violates the conditions of a post release control sanction imposed by the parole board upon the completion of the stated prison term, the parole board may impose upon the offender a residential sanction that includes a new prison term of up to nine months.
{¶24} “The statutory right to receive the plea notification of post-release control, under
{¶25} The record reveals the following colloquy that took place between the trial court and Howard at his plea hearing regarding the issue of post-release control penalties:
Trial Court: The charge is then amended to two counts of unlawful sexual conduct with a minor, felonies of the third degree. On this offense, the maximum prison sentence is five years on each count. There‘s a maximum fine of $10,000. After your prison sentence, you would be required to be on post-rеlease control, what we used to call parole, under the supervision of the Adult Parole Authority for five years. * * * Do you understand those maximum penalties and requirements of law?
Howard: Yes.
(11/2/2016 Tr., Vol. III, at 292-93).
{¶26} Additionally, Howard signed and delivered to the trial court a “Petition To Enter A Plea of Guilty or No Contest” prior to formally pleading to the amended charges. (Doc. No. 71). The petition specifically advised Howard that he was subject to a mandatory period of five (5) years of PRC for a felony sex offense conviction pursuant to the following language:
I understand that if I violate the terms and conditions of post-release control, the Adult Parole Authority may impose a more restrictive sanction, increase the term of post-release control up to the maximum term, or impose a prison term upon me as a sanction, not to exceed nine months at a time, with the total cumulative prison sanctions in increments of nine months, not to exceed 50% of the stated prisоn term originally imposed as part of the sentence. I further understand
that if I commit a new felony while under post-release control, I may receive a prison sentence for both the new felony and any post-release control violation, which shall be served consecutively.
(Id. at ¶ 19). And, the plea colloquy between the trial court and Howard reveals that Howard read the petition, understood it, and reviewed it with his attorney prior to pleading. (11/02/2016 Tr., Vol. III, at 287-88). Specificаlly, the following exchange was held on the record between the trial court and Howard:
Trial Court: You‘ve gone over this plea petition with your attorney, Mr. Triplett?
Howard: Yes.
Trial Court: And do you have any questions about anything that‘s in that plea petition?
Howard: No.
(Id.).
{¶27} In State v. Montgomery, the Ohio Supreme Court acknowledged that “when a trial court engages in a full
{¶28} We find that the trial court substantially complied with
{¶29} Accordingly, we overrule Howard‘s first assignment of error.
Sex Offender Registration Requirement Analysis
{¶30} In his second assignment of error, Howard asserts that the trial court erred when it accepted Howard‘s guilty plea after it improperly instructed Howard on his sex offender registration requirements. Specifically, Howard contends that the trial court erroneously informed him of his registration requirements under the Adam Walsh Act, instead of registration requirements under Megan‘s Law. Howard argues that because all parties were acting on an erroneous understanding of the applicable law at the time of the plea, his plea is invalid and must be vacated.
{¶32} In support of his proposition that his plea was invalid and must be vacated, Howard directs us to our decision in State v. Bush, in which we determined that the defendant‘s guilty pleas were not entered knowingly or intelligently, and thus, the defendant was entitled to a post-sentence withdrawal of his guilty pleas. State v. Bush, 3rd Dist. Union No. 14-2000-44, 2002-Ohio-6146, ¶ 1. Relying on the Ohio Supreme Court‘s decision in State v. Engle, we found that “when a
{¶33} However, unlike the defendant in Bush, Howard has suffered no prejudice from the trial court‘s original sex offender advisement. In Bush, the defendant was informed that he would be eligible to apply for judicial release after serving thirty (30) days in prison only to discover that, due to the length of the sentence imposed, he was not eligible for judicial release until after completing five years of the sentence imposed. Id. Hence, the defendant in Bush suffered actual prejudice from the trial court‘s еrroneous explanation of the law. Howard, on the other hand, has suffered no prejudice because his corrected sex offender classification involved a registration period significantly less in time than what he originally was told. As such, Howard has not demonstrated the prejudicial effect upon him in challenging that his guilty plea was not knowingly, intelligently, and voluntarily made. Scarnati, supra, at *4.
{¶34} Furthermore, in State v. Williams, the Ohio Supreme Court analyzed enhanced sex offender classification requirements imposed by a trial сourt retroactively. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 20.
{¶35} Accordingly, we overrule Howard‘s second assignment of error.
Right to a Jury Trial Analysis
{¶36} In his third assignment of error, Howаrd asserts that the trial court erred when it failed to instruct him of his Sixth Amendment right to a trial by jury. Specifically, Howard asserts that the trial court failed to strictly comply with
{¶37} Unlike the previous assignments of error, Howard‘s third assignment of error involves a constitutional right. Scarnati, supra, at *3. Since this assignment of error involves a constitutional right, the trial court must strictly comply with the requirements of
{¶38} A review of the record reveals that the following exchange took place between Howard and the trial court prior to Howard entering his guilty pleas:
Trial Court: That, when you plead guilty, the balance of the trial would not go forward and any additional rights that you may have had today are waived or given uр. That‘s your right to confront the witnesses, your right to subpoena witnesses, your right to testify on your on [sic] behalf, your right not to testify and the prosecutor can‘t comment on that fact to the jury. As we‘ve stated several times here, in this situation, the State has to prove all the elements of the offense beyond a reasonable doubt. Do you have any additional question about your rights here?
Howard: No.
Trial Court: Do you understand that the balance of the trial will not go forward and the Court can sentence yоu as if the jury had convicted you of these two charges?
Howard: Yes.
(11/02/2016 Tr., Vol. III, at 293). The record is clear that when Howard entered his guilty pleas to the amended charges, he was in the middle of a jury trial. (Id. at 286). And, in the trial court‘s advisement (to Howard) “[t]hat when you plead guilty, the balance of the trial would not go forward” is a clear and unambiguous reference to Howard of his constitutional right to a jury trial.
{¶40} Accordingly, we overrule Howard‘s third assignment of error.
{¶41} For the aforementioned reasons, Howard‘s first, second, and third assignments of error are accordingly overruled and we affirm the judgment of the Logan County Common Pleas Court in Appellate Case Number 8-17-01.
Fourth Assignment of Error
{¶42} In his fourth assignment of error, Howard contends that the trial court erred when it denied his Motion to Withdraw Plea. Specifically, Howard argues that he should have been permitted to withdraw his pleas because: (1) at the time of the plea and sentencing the trial court misinformed him of his sex offender registration requirements; (2) Howard was not properly advised of the maximum
Standard of Review
{¶43} “A motion to withdraw a guilty plea is governed by
{¶44} “Although no precise definition of ‘manifest injustice’ exits, in general, ‘manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.‘” State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, 854 N.E.2d 583, ¶ 5 (10th Dist.), quoting State v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10. “Under this standard, a post-sentence withdrawal motion is allowable only in extraordinary cases.” Id.
{¶45} “Additiоnally, when a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” Bush, at ¶ 10 citing State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. If a
Analysis
{¶46} Under this assignment, Howard reiterates the arguments presented in his first three assignments of error. As we have held above, the trial court substantially and/or strictly complied with the requirements of
{¶47} For the aforementioned reasons, Howard‘s fourth assignment of error is overruled and we affirm the judgment of the Logan County Common Pleas Court in Appellate Case Number 8-17-09.
Judgments Affirmed
PRESTON, P.J. and SHAW, J., concur.
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