State v. PoageState v. Poage
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 17, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Christine M. Vacha, Assistant Prosecuting Attorney, for appellee.
Fred D. Middleton, for appellant.
MARY EILEEN KILBANE, J.:
{1} Defendant-appellant Damon D. Poage (“Poage“) appeals from his convictions for sexual battery and intimidation following a guilty plea. Specifically, Poage argues that his guilty plea was not knowingly, intelligently, and voluntarily
Factual and Procedural History
{2} On June 9, 2020, a Cuyahoga County Grand Jury indicted Poage on one count of rape in violation of
{3} Poage initially pleaded not guilty to these charges. On September 1, 2020, Poage filed a pro se motion for replacement of counsel. On September 14, 2020, the court held a change-of-plea hearing. Poage made an oral motion to withdraw his September 1 motion for replacement of counsel. The prosecutor informed the court that the parties had negotiated a plea deal and then went on to outline the charges to which Poage was agreeing to plead guilty as follows: Count 1 was amended to sexual battery in violation of
{4} The court then engaged Poage in a
THE COURT: Counsel, are you satisfied the Court has complied with Criminal Rule 11?
PROSECUTOR: Your Honor, I am satisfied, but the State does need to make a correction on the record as to the penalty for the sexual battery.
I did want to verify because it is a sex offense the penalty is not under the normal nine to 36 months.
THE COURT: Oh, it‘s a high tier.
PROSECUTOR: It‘s under the one to five years indefinite term. If it‘s imposed it‘s under definite terms of 12, 18, 24, 30, 36, 42, 48, 54 or 60 months which essentially is a definite term of one to five years in prison if imposed under the facts.
Count 2 would still be the regular nine to 36 months but I wanted that correction before the defendant entered his plea to be made on the record and the Court readvised him of that potential penalty just for Count 1.
THE COURT: That‘s right. I apologize. Because the nature of the offense, the sexual battery, this is a high tier, which means that the potential penalty that you face is 12 months, 18 months, 24 months, 32 months,1 42 months, 54 months or 60 months. If I‘ve got that right.
So 12 to 60 months time of incarceration on amended Count 1. Do you understand that?
POAGE: Yes, ma‘am.
The court then confirmed that both the state and defense counsel were satisfied that it had complied with
{5} On October 14, 2020, the court reconvened. Due to a misunderstanding, neither party had filed a sentencing memoranda, so the court continued sentencing. On January 19, 2021, the court held a video sentencing hearing. The court stated that it had reviewed the sentencing memoranda submitted by both parties, as well as the presentence investigation. The court then heard from the assistant prosecuting attorney, defense counsel, and Poage. The assistant prosecuting attorney requested that the court impose the maximum consecutive sentence and informed the court that the victim‘s family also requested the maximum sentence. The court reiterated the registration requirements based on Poage‘s status as a Tier III sexual offender. The court stated that it considered the purposes and principles of felony sentencing and ultimately imposed a sentence of 54 months on Count 1 and 24 months on Count 2. The court ordered these sentences to be served consecutively for a total sentence of 78 months. The court did not impose any fine and waived court costs.
{6} One week after sentencing, on January 27, 2021, after being informed by Poage that he had trouble hearing the video sentencing hearing, defense counsel diligently filed a motion to reopen sentencing. The court granted this motion and immediately reconvened on January 28, 2021 for a resentencing hearing. Poage was present in court for the resentencing hearing, at which the court heard from the
{7} On May 3, 2021, Poage filed a notice of appeal. On May 13, 2021, this court dismissed the appeal as untimely. On June 9, 2021, Poage filed a motion for delayed appeal. On June 15, 2021, this court granted Poage‘s motion for delayed appeal and appointed counsel. Poage presents one assignment of error for our review.
Legal Analysis
{8} In his sole assignment of error, Poage argues that his plea was not entered knowingly and intelligently with a full understanding of the possible sentences to be imposed in violation of
{9} The underlying purpose of
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(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.
{11} When a trial court fails to explain the constitutional rights outlined in
(1) has the trial court complied with the relevant provision of the rule?
(2) if the 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?
{12} After a thorough review of the plea hearing, we conclude that the trial court complied with the nonconstitutional requirements of
{13} While we acknowledge that the record contains an error as to the maximum potential penalties Poage faced, the record also clearly shows that this
{14} Because the trial court did not completely fail to comply with
{15} 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 is terminated. Case remanded to the trial court for execution of sentence.
MARY EILEEN KILBANE, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
MARY J. BOYLE, J., CONCUR