STATE OF OHIO v. DESHAWN RODGERS
No. 95560
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 26, 2011
2011-Ohio-2535
Rocco, J., Celebrezze, P.J., and Cooney, J.
Case No. CR-534862. RELEASED AND JOURNALIZED: May 26, 2011
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} After entering guilty pleas to charges of attempted felonious assault and theft of a motor vehicle, defendant-appellant Deshawn Rodgers appeals from his convictions and sentence.
{¶ 3} Upon a review of the record, this court finds no reversible error occurred with respect to Rodgers‘s guilty pleas. However, the trial court erred when it included the imposition of court costs in the judgment entry of sentence, since the court did not afford Rodgers the opportunity to claim indigency. In all other respects, the sentence is affirmed. This case, therefore, is remanded for proceedings consistent with this opinion.
{¶ 4} Rodgers originally was indicted in this case on seven counts. He was charged with four counts of felonious assault, one count of theft of a motor vehicle, one count of criminal damaging or endangering, and one count of falsification. After the parties exchanged discovery, the state notified the trial court that a plea agreement had been reached.
{¶ 6} The trial court conducted a colloquy with Rodgers. The court informed him of the constitutional rights he was waiving, the maximum penalties involved, and cautioned him that his sentence would be imposed by the assigned judge. Rodgers indicated his understanding, and entered guilty pleas to the two counts. The trial court accepted his pleas, dismissed the other five counts, and referred him for a presentence report.
{¶ 7} When Rodgers‘s case was called for sentencing, the assigned judge listened to the statements of one of the named victims, Rodgers‘s defense counsel, and Rodgers himself before proceeding to describe the circumstances that surrounded the incident that led to Rodgers‘s convictions in this case. The trial court further outlined Rodgers‘s entire criminal record, which included many instances of drug possession, “moving violations,” and driving without a valid license.
{¶ 9} A week later, Rodgers filed a motion to “vacate” his plea. In his affidavit attached to his motion, Rodgers asserted his defense attorney had “promised” that he would “receive probation.” The trial court denied Rodgers‘s motion without opinion.
{¶ 10} Rodgers‘s assignments of error are set forth as follows:
{¶ 11} “I. Defendant was denied due process of law when the court did not properly inform the defendant concerning post-release [sic] control.
{¶ 12} “II. Defendant was denied due process of law when the court summarily overruled his motion to vacate and withdraw his plea without conducting a hearing.
{¶ 13} “III. Defendant was denied due process of law when the court did not inform him of the effect of his plea of guilty.
{¶ 14} “IV. Defendant was denied due process of law when the court failed to determine that defendant understood the nature of the offense [sic] to which he was entering a plea of guilty.
{¶ 16} “VI. Defendant was denied due process of law when the court assessed court costs when there was no pronouncement of court costs.
{¶ 17} “VII. Defendant was denied due process of law when the court did not waive his right to be sentenced by the same judge who took his plea.”
{¶ 18} Rodgers‘s first, third, and fourth assignments of error all present challenges to the propriety of the trial court‘s actions at his plea hearing; therefore, they will be addressed together. Rodgers argues that, prior to accepting his guilty pleas, the visiting judge did not adequately either inform him concerning postrelease control, describe the effect his pleas would have, or ensure he understood the nature of the offenses to which he was entering pleas.
{¶ 19}
{¶ 20} “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:
{¶ 22} “(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.
{¶ 23} “(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.”
{¶ 24} In determining whether the trial court has satisfied its duties under
{¶ 25} For nonconstitutional rights, the trial court must “substantially comply” with the rule‘s requirements. Stewart. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implication of his plea and the rights he is waiving.” State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.
{¶ 26} Moreover, a defendant who challenges his guilty plea on the basis that it was not knowingly, voluntarily, and intelligently entered must show a prejudicial effect. State v. Moulton, Cuyahoga App. No. 93726, 2010-Ohio-4484. The test for prejudice is whether the plea would have otherwise been made. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
{¶ 27} In this case, the record reflects the trial court complied literally with
{¶ 28} The trial court did not specifically tell Rodgers that his guilty plea constituted a complete admission of his guilt. Nevertheless, this court does not find the omission constituted reversible error. Rodgers had no questions for the court, made no protest that he was innocent, and did not give any indication that he was unaware of this consequence. State v. Taylor, Cuyahoga App. No. 94569, 2010-Ohio-5607, ¶5.
{¶ 29} The trial court also neither discussed the “nature of the offenses,” nor correctly informed Rodgers that a conviction for a third-degree felony in which there was a risk of physical harm carries a mandatory three-year term of postrelease control.
{¶ 30} The question thus becomes whether this additional omission and the misstatement caused Rodgers‘s plea to be invalid. The record in this case reflects Rodgers had the assistance of an experienced defense attorney. Moreover, prior to commencing the colloquy, the trial court invited Rodgers to
{¶ 31} Rodgers did not ask the trial court to explain the charges to him. State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 399. Furthermore, the record contains no indication “that postrelease control was of particular concern or import” to Rodgers. State v. Lang, Cuyahoga App. No. 92099, 2010-Ohio-433, ¶14. Indeed, Rodgers did not raise any of the issues he raises in his first, third, and fourth assignments of error in his motion to withdraw his plea. It must also be noted that, in accepting the state‘s offer, Rodgers obtained a significant reduction in the charges against him.
{¶ 32} From the foregoing, this court concludes Rodgers waived these arguments for purposes of appeal, and cannot demonstrate any prejudicial effect resulted from the trial court‘s inexactness.
{¶ 33} Rodgers‘s first, third, and fourth assignments of error, accordingly, are overruled.
{¶ 34} Rodgers argues in his second assignment of error that the trial court erred in overruling his motion to withdraw his plea without conducting a hearing. Since Rodgers never requested a hearing on his motion, he has
{¶ 35} Moreover, even were this court to consider Rodgers‘s argument that his attorney “promised” he would receive probation, the record demonstrates otherwise. See State v. Steimle (Dec. 7, 2000), Cuyahoga App. Nos. 77005, 77303, 77006, and 77302. When Rodgers made this declaration at the plea hearing, his attorney clarified what his client had been told. Defense counsel stated that he told Rodgers “probation is possible,” because the prosecutor indicated the victim was “not seeking any jail time,” however, the matter would be presented to the assigned judge.
{¶ 36} Rodgers‘s second assignment of error, therefore, also is overruled.
{¶ 37} In his fifth assignment of error, Rodgers argues that the trial court violated his Sixth Amendment rights during the sentencing hearing. He claims the trial court‘s description of the circumstances that led to his convictions, as gleaned from the presentence report, was prohibited by the United States Supreme Court‘s decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed2d 403. This court disagrees.
{¶ 38}
{¶ 39} The trial court acted within its discretion; therefore, Rodgers‘s fifth assignment of error also is overruled.
{¶ 40} Rodgers asserts in his sixth assignment of error that, since the trial court failed to impose court costs during the sentencing hearing, it could not properly include them in its judgment entry of sentence. This assignment of error has merit.
{¶ 41} Pursuant to
{¶ 42} The argument Rodgers raises has been addressed by the Ohio Supreme Court in State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278. Joseph held that a trial court may not impose court costs in its
{¶ 43} Rodgers‘s sixth assignment of error is sustained.
{¶ 44} Rodgers argues in his seventh assignment of error that the assigned trial judge erred in failing to obtain his waiver before sentencing him. He contends that, because a visiting judge accepted his plea, that same judge should have sentenced him.
{¶ 45} Rodgers never raised this issue in the trial court, hence, it is waived for purposes of appeal. State v. Sizemore, Butler App. No. CA2005-03-081, 2006-Ohio-1434. Rodgers‘s seventh assignment of error, accordingly, is overruled.
{¶ 46} Rodgers‘s convictions are affirmed. His sentence is affirmed in part, reversed and vacated in part, and this case is remanded for the limited purpose of notifying him of the imposition of court costs, thus providing him the opportunity to claim indigency.
It is ordered that appellant and appellee share costs herein taxed.
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 convictions 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 Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR