State v. MurphyState v. Murphy
HENDRICKSON, J.
{¶ 1} Appellant, Maston L. Murphy, appeals from his conviction and sentence in the Butler County Court of Common Pleas following his guilty plea to aggravated arson. For the reasons discussed below, we affirm in part, reverse in part, and remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.
{¶ 2} On February 10, 2021, appellant was indicted on four counts of aggravated
{¶ 3} Appellant initially pled not guilty to the offenses. However, on March 24, 2021, following plea negotiations, appellant pled guilty to one count of aggravated arson, as it related to his wife, in exchange for the state dismissing the remaining charges. The trial court engaged appellant in a
{¶ 4} Appellant now appeals from his conviction and sentence, raising five assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE GUILTY-PLEA COLLOQUY VIOLATED RULE 11(C)(2).
{¶ 7} In his first assignment of error, appellant argues his guilty plea was not knowingly, intelligently, and voluntarily entered because he did not understand the nature of the charge to which he pled guilty.
{¶ 8} “‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement
{¶ 9} Specifically,
(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.
{¶ 10} In State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, “the Ohio Supreme
(1) has the trial court complied with the relevant provision of the rule? (2) if the trial court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?
{¶ 11} Appellant contends the trial court failed to comply with
{¶ 12} In Fitzpatrick, the defendant pled guilty to two counts of aggravated murder and one count of aggravated murder of a child and was sentenced to death Id. at ¶ 30, 32. He appealed to the Ohio Supreme Court, arguing that his guilty plea was not knowing and intelligent because the court failed to comply with
{¶ 13} The court noted that “[i]n determining whether a defendant understood the charge, a court should examine the totality of the circumstances.” Id. at ¶ 56, citing Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253 (1976). In Fitzpatrick, the record contained a representation by defense counsel that counsel had explained the charges to the defendant. Id. at ¶ 58. Specifically, at the end of the defendant‘s written guilty plea form, which was signed by defense counsel, counsel attested: “We have explained to the defendant, STANLEY L. FITZPATRICK, prior to his signing this plea, the charge(s) in the indictment, the penalties therefore [sic] and his constitutional rights in this case.” Id.
Fitzpatrick asserted that he had graduated from high school and could read without any problem. He also agreed that he had talked to his attorneys about the case for “many, many hours.” The written plea states: “I understand the nature of the charges against me in the Indictment and the possible defenses I might have,” and “I understand the nature of the charges to which I plead guilty.” During the colloquy, the presiding judge asked: “[D]o you understand the charges against you?” Fitzpatrick said, “Yes.” The judge asked: “Do you want all or any part of any of the charges against you explained in any way?” Fitzpatrick said, “No.”
Id. As the record of the plea hearing contained express representations by the defendant and his counsel that the nature of the charges had been explained to him and that he understood them, the trial court found no merit to appellant‘s claim that his plea had not been knowingly or intelligently entered. Id. at ¶ 62.
{¶ 14} The present case is similar to Fitzpatrick, in that the totality of the circumstances demonstrate the nature of the aggravated arson charge had been explained to appellant and that he understood the charge. Like the defendant in Fitzpatrick, appellant indicated at the plea hearing that he had graduated from high school and was able to read and understand the English language. When asked by the court, appellant indicated he read the front and back pages of the Guilty Plea and Jury Waiver form, that he had gone over the form carefully with his defense counsel, and that his defense counsel answered all the questions he had before he signed the form. The plea form contains a provision wherein appellant attests, “I understand the nature of these charges and the possible defenses I might have. I am satisfied with my attorney‘s advice and competence.” This form was signed by both appellant and his defense counsel.
{¶ 15} During the plea hearing, the trial court discussed its understanding of the plea
{¶ 16} Appellant never expressed any confusion about the aggravated arson offense he was pleading guilty to and never made any statements denying any of the elements of the charge.1 Based on the totality of the circumstances, it is apparent that appellant, like the defendant in Fitzpatrick, understood the nature of the charge to which he pled guilty.
{¶ 17} In light of the supreme court‘s decision in Fitzpatrick, we answer the first question posed by Dangler – has the trial court complied with the relevant portion of the rule – in the affirmative. The record indicates the trial court fully complied with
{¶ 18} However, even if the trial court had not fully complied with
{¶ 19} “The test for prejudice is whether the plea would have otherwise been made.” Dangler, 2020-Ohio-2765 at ¶ 16. “Prejudice must be established ‘on the face of the record.‘” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 26. Therefore, for appellant to demonstrate prejudice, he must show, based on the face of the record, that he would not have entered a guilty plea to aggravated arson if he had been more fully advised of the nature of the charge.
{¶ 20} Appellant has not set forth any argument in his appellate brief as to prejudice. From the face of the record, we see no indication that appellant would not have entered a
{¶ 21} Appellant‘s first assignment of error is, therefore, overruled.
{¶ 22} Assignment of Error No. 2:
{¶ 23} THE TRIAL COURT FAILED TO IDENTIFY AND APPLY THE PRINCIPLES AND PURPOSES OF FELONY SENTENCING, THE AGGRAVATING AND MITIGATING FACTORS, AND THE RECIDIVISM FACTORS.
{¶ 24} In his second assignment of error, appellant argues his sentence is contrary to law as the trial court “failed to say its sentence would be guided by the principles and purposes of felony sentencing under
{¶ 25}
{¶ 26} When reviewing a felony sentence, “[n]othing in
{¶ 27} Appellant contends that the record does not reflect the trial court‘s consideration of
[t]he Court has considered the record, the charges, the defendant‘s Guilty Plea, and findings as set forth on the record and herein, oral statements, any victim impact statement and pre-sentence report, as well as the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and has balanced the seriousness and recidivism factors of Ohio Revised Code Section 2929.12 and whether or not community control is appropriate pursuant to Ohio Revised Code Section 2929.13, and finds that the defendant is not amenable to an available community control sanction.
{¶ 28} Accordingly, despite appellant‘s claims otherwise, the trial court did not err in imposing an indefinite prison term of 10 to 15 years on appellant‘s aggravated arson conviction. The record reflects that the trial court considered the principles and purposes of sentencing as set forth in
{¶ 29} Assignment of Error No. 3:
{¶ 30} [APPELLANT‘S] AGGRAVATED ARSON CONVICTION DID NOT CARRY A MANDATORY PRISON SENTENCE.
{¶ 31} In his third assignment of error, appellant argues the trial court erred by sentencing him to a mandatory prison sentence for aggravated arson. The state has conceded this error occurred and requests the error be fixed with the issuance of a nunc pro tunc entry.
{¶ 32} As previously stated, appellant was sentenced to an indefinite prison term of 10 to 15 years for his aggravated arson conviction. The trial court listed appellant‘s sentence as “mandatory” in its sentencing entry. However, appellant‘s conviction for aggravated arson was a felony of the first degree that carried a presumption of prison.
{¶ 33} Though the trial court‘s sentencing entry imposed an indefinite mandatory prison term 10 to 15 years, during the sentencing hearing, the trial court did not classify the
{¶ 34} Appellant‘s third assignment of error is sustained and the matter is remanded to the trial court for the sole purpose of issuing a nunc pro tunc entry to remove the world “mandatory” from the court‘s sentence on appellant‘s aggravated arson conviction.
{¶ 35} Assignment of Error No 4:
{¶ 36} THE REAGAN TOKES SENTENCE IS UNCONSTITUTIONAL.
{¶ 37} In his fourth assignment of error, appellant seeks to challenge the constitutionality of Ohio‘s indefinite sentencing structure, commonly known as the Reagan Tokes Law, as set forth in
{¶ 38} It is undisputed that appellant did not raise a challenge to the constitutionality of the Reagan Tokes Law with the trial court. As this court has repeatedly held, “arguments challenging the constitutionality of the Reagan Tokes Law are forfeited and will not be heard for the first time on appeal in cases where the appellant did not first raise the issue with the trial court.” State v. Blaylock, 12th Dist. Butler No. CA2020-11-113, 2021-Ohio-2631, ¶ 7, citing State v. Hodgkin, 12th Dist. Warren No. CA2020-08-048, 2021-Ohio-1353, ¶ 11; State v. Teasley, 12th Dist. Butler No. CA2020-01-001, 2020-Ohio-4626, ¶ 9; and State v. Alexander, 12th Dist. Butler No. CA2019-12-204, 2020-Ohio-3838, ¶ 8-9.
{¶ 39} Assignment of Error No. 5:
{¶ 40} [APPELLANT] WAS SENTENCED TO CONFINEMENT AND NOT SUPERVISION. SO THE TRIAL COURT‘S ORDER FOR PAYMENT OF SUPERVISION COSTS WAS UNLAWFUL.
{¶ 41} In his final assignment of error, appellant contends the trial court erred by ordering that he pay the costs of supervision and any supervision fees permitted under
{¶ 42} We recently addressed an identical argument in State v. Patterson, 12th Dist. Butler No. CA2021-01-004, 2021-Ohio-3959, ¶ 15, and ultimately found that supervision costs were authorized under
[u]nder
R.C. 2929.18(A) , the court imposing sentence upon a felony offender may sentence the offender to “any financial sanction or combination of financial sanctions authorized under this section * * *.” Included among those authorized financial sanctions is “any or all of the costs of sanctions incurred by the government.” (Emphasis added.)R.C. 2929.18(A)(5)(a) . The statute goes on to list some examples of such sanctions, including the costs of implementing any community control sanction, including a supervision fee, the costs of confinement, and the costs related to an immobilizing device.R.C. 2929.18(A)(5)(a)(i) ,(ii) , and(iii) . However, as stated, these are
examples. The language in the statute does not preclude a court from imposing other costs of sanctions incurred by the government. Supervision fees related to postrelease control are within the ambit of “any or all of the costs of sanctions incurred by the government.”
R.C. 2929.18(A) .
{¶ 43} For the reasons expressed in Patterson, we find that the trial court did not err in imposing supervision costs. Appellant‘s fifth assignment of error is, therefore, overruled.
{¶ 44} Judgment affirmed in part, reversed in part, and the matter remanded to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.
S. POWELL, P.J., and BYRNE, J., concur.