State v. OwensState v. Owens
- Reporters:
- ,
- Before:
- Patricia Ann Blackmon, Kathleen Ann Keough, Mary Eileen Kilbane
Appellant‘s guilty plea was not knowingly, intelligently, or voluntarily entered when the trial court failed to address the sentencing implications of the firearm specifications during its plea colloquy.
{¶2} Having reviewed the record and pertinent law, we affirm Owens‘s convictions. The apposite facts follow.
{¶3} Owens was indicted in two separate cases. On February 4, 2013, the Cuyahoga County Grand Jury indicted Owens in Case No. CR-13-571326 for two counts of drug possession and two counts of drug trafficking. On March 5, 2013, the Cuyahoga County Grand Jury indicted Owens in Case No. CR-13-572136-A for one count each for murder, involuntary manslaughter, felonious assault and discharging a firearm on or near a prohibited premises, all with one-and three-year firearm specifications. He was also indicted in the second case for drug trafficking with a schoolyard specification and tampering with evidence.
{¶4} On August 5, 2013, Owens pleaded guilty in both cases. In CR-13-571326, Owens pleaded guilty to one count each for drug possession and possession of criminal tools. In CR-13-572136-A, he pleaded guilty to one count each for involuntary manslaughter with the accompanying one- and three-year firearm specifications, and tampering with evidence. He also pleaded guilty to one count of drug trafficking with the accompanying schoolyard specification.
Guilty Plea
{¶6} In his sole assigned error, Owens argues that his guilty plea was not voluntarily, knowingly, or intelligently entered because the trial court failed to explain to him the maximum penalty. Specifically, he argues that the trial court failed to explain the amount of time he could serve on the firearm specifications, that the firearm specifications carried a mandatory prison time, and that the specifications had to be served consecutively.
{¶7} Under
{¶8} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “[I]f it appears from the record that the defendant appreciated the effect of his plea and his waiver of rights in spite of the trial court‘s error, there is still substantial compliance.” State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).
{¶9} In the instant case, the trial court failed to advise Owens regarding the terms that would be imposed for the firearm specifications. However, prior to the court taking the plea, the prosecutor outlined the plea deal and stated as follows regarding the involuntary manslaughter count with the firearm specifications:
On this case, your Honor, count 2, the involuntary manslaughter is a felony of the first degree. It carries with it a possible prison sentence of 3 to 11 years in yearly increments. The firearm specifications that are attached to it, the one-and three-year firearm specifications, obviously one-year will merge into three-year. That three-year firearm specification must be served prior to and consecutive with any underlying sentence that this Court gives this defendant. So basically, your Honor, that makes this count 2 a minimum sentence of six to 12 years, up to a maximum of 14 years.
COURT: Thank you. Mr. Morgan, on behalf of your client, has the prosecutor correctly stated all of the terms and conditions of the pleas in these two cases?
MR. MORGAN: Yes, Judge.
THE COURT: Mr. Owens, you‘ve heard from the prosecutor, you‘ve heard from your attorney. Do you understand the plea that‘s being proposed here today?
DEFENDANT: Yes, I do.
Tr. 173.
{¶10} Although it is better practice for the trial court to advise the defendant of the maximum sentence, we have found substantial compliance when the prosecutor has done so instead. See State v. McKissic, 8th Dist. Cuyahoga Nos. 92332 and 92333, 2010-Ohio-62, ¶ 17; State v. Sims, 8th Dist. Cuyahoga No. 95979, 2011-Ohio-4819, ¶ 33-34; State v. Chaney, 8th Dist. Cuyahoga No. 97872, 2012-Ohio-4933. Here, although the trial court failed to include the firearm specifications when discussing the maximum sentence, the prosecutor set forth the correct maximum sentence, including the firearm specifications. Owen‘s attorney stated that the prosecutor correctly set forth the terms and conditions of the plea, and Owen stated he understood the plea as explained by the prosecutor and his attorney. Reviewing the matter under the totality of the circumstances, as we are required to do, we conclude that Owen subjectively understood the terms and conditions of his plea.
{¶12} Further, a defendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{¶13} Judgment is affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. Case remanded to the Cuyahoga County Common Pleas Court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR