STATE OF OHIO, Appellee, -vs- JAMES PATRICK ROGERS aka JAMES P. RODGERS, Appellant.
CASE NO. CA2019-11-194
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/17/2020
2020-Ohio-4102
M. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS, Case No. CRI2019-08-1199
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael T. Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, OH 45011, for appellee
Michele Temmel, 6 South Second Street, Suite 305, Hamilton, OH, 45011, for appellant
{1} Appellant, James Patrick Rogers, appeals his conviction and sentence in the Butler County Court of Common Pleas following his guilty plea to aggravated drug trafficking, having weapons while under disability, and cocaine possession.
{2} Rogers was indicted in August 2019 on six felony offenses, including three felony drug offenses, and one misdemeanor offense. All three felony drug offenses were accompanied by firearm and forfeiture specifications.
{3} On October 31, 2019, pursuant to plea negotiations, Rogers agreed to plead guilty to one count of aggravated drug trafficking, a second-degree felony, along with a forfeiture specification (Count 2), one count of having weapons while under
{4} During the plea hearing, the trial court engaged Rogers in a
{5} The trial court next reviewed the guilty plea and jury waiver form with Rogers. Specifically, the trial court asked Rogers whether he had signed the plea form, whether he had read it before signing it, and whether he understood it. Rogers replied affirmatively each time. The trial court then informed Rogers of the constitutional rights set forth in
{6} The matter proceeded immediately to sentencing. At the beginning of the sentencing hearing, defense counsel advised the trial court that he had filed a motion to waive the $7,500 mandatory fine on Count 2 on the ground Rogers was indigent and unable to pay. The record shows that the motion was filed on October 31, 2019, the day of the plea and sentencing hearings. The trial court sentenced Rogers to prison on all three counts and imposed a mandatory fine of $7,500 on Count 2. The trial court did not impose a license suspension.
{7} Rogers now appeals, raising two assignments of error.
{8} Assignment of Error No. 1:
{9} MR. ROGERS[‘] PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE.
{10} Rogers argues that he did not knowingly, intelligently, or voluntarily enter his guilty plea because the trial court failed to comply with
{11} When a defendant enters a guilty plea in a felony criminal case, the plea must
*** be knowingly, intelligently, and voluntarily made. State v. Smith, 12th Dist. Warren Nos. CA2019-10-113 and CA2019-11-121, 2020-Ohio-3074, ¶ 7. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States and Ohio Constitutions. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶ 22. To ensure that a defendant‘s guilty plea is knowingly, intelligently, and voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to{12} As pertinent here is
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:
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.
(Emphasis added.)
{13} The term “maximum penalty” refers to “[t]he heaviest punishment permitted by law.” Black‘s Law Dictionary 1314 (10th Ed.2014). “Accordingly, the plea is the defendant‘s response to a charge filed alleging an offense, and the maximum penalty is the heaviest punishment prescribed by statute for that offense.” Bishop, 2018-Ohio-5132 at ¶ 42 (Kennedy, J., dissenting). ”
{14} Pursuant to
{15} We note that Rogers and the state both discuss whether the trial court substantially complied with
{16} In Dangler, the supreme court once again addressed a trial court‘s compliance with
{17} Noting that its caselaw has “muddled” the analysis that should apply when reviewing a defendant‘s guilty or no contest plea “by suggesting different tiers of compliance with the rule” such as “partial” or “substantial” compliance, the supreme court then set forth the following “inquiry“: “Properly understood, the questions to be answered are simply: (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?” Dangler, 2020-Ohio-2765 at ¶ 17.
{18} We recently addressed what constitutes a trial court‘s “complete failure to comply” with
It is plain that a complete failure to comply with
Crim.R. 11(C) may involve something less than a failure to advise of all the notifications enumerated inCrim. R. 11(C)(2)(a) . Sarkozy
makes this clear
as the supreme court found a complete failure to comply even though the trial court did advise about the prison terms involved. The Sarkozy holding of a complete failure to comply was founded upon the trial court‘s failure to provide any advice concerning a distinct component of the maximum penalty, i.e., postrelease control, during the plea colloquy. The supreme court hinted that Sarkozy might have been decided differently if the trial court had provided at least some advice concerning postrelease control during the plea colloquy: “The trial court did not merely misinform Sarkozy about the length of his term of postrelease control. Nor did the court merely misinform him as to whether postrelease control was mandatory or discretionary. Rather, the court failed to mention postrelease control at all during the plea colloquy.” By contrast, Dangler found there was not a complete failure to comply where a trial court provided incomplete advice concerning a distinct component of the maximum penalty (i.e., sex offender registration and notification requirements and duties).
Fabian at ¶ 19, quoting Sarkozy, 2008-Ohio-509 at ¶ 4.
{19} A criminal sentence consists of several distinct components, including a prison sentence, a fine, sex offender registration and notification requirements and duties, and postrelease control.2 “The upshot of Sarkozy and Dangler is that a trial court‘s total failure to inform a defendant of a distinct component of the maximum penalty during a plea colloquy constitutes a complete failure to comply with
{20} At issue is whether the trial court complied with
{21} As stated above, the $7,500 fine was a mandatory element of Rogers’ sentence on Count 2 and a component of the maximum penalty pursuant to
{22} Because “[t]he maximum-penalty advisement is not a constitutional requirement,” the second question asks us to determine whether the trial court‘s failure to advise Rogers of the mandatory fine under
{24} Having answered the second question of Dangler in the affirmative, no showing of prejudice is required and we therefore do not reach the third question. Considering the favorable plea deal Rogers negotiated, his motion to waive the mandatory fine filed on the day of the plea and sentencing hearings, and defense counsel informing the trial court of the filing of the motion at the beginning of the sentencing hearing, the record does not suggest that Rogers was prejudiced by the trial court‘s failure to advise him of the mandatory fine during the plea colloquy, in the sense he would not otherwise have entered the plea. Nevertheless, the three-question inquiry adopted by the Ohio Supreme Court in Dangler does not allow a reviewing court to address whether a defendant was prejudiced when a trial court either fails to explain the constitutional rights set forth in
{25} The record further suggests that Rogers was aware he faced a mandatory $7,500 fine based upon the plea form he signed which plainly indicated a mandatory fine of $7,500 on Count 2. However, while “[a] written acknowledgment of a guilty plea and a waiver of trial rights executed by an accused can, in some circumstances, reconcile ambiguities in the oral colloquy that
{26} In light of all of the foregoing, we find that the trial court completely failed to comply with
{27} Assignment of Error No. 2:
{29} Following his guilty plea, Rogers was sentenced to prison pursuant to
{30} Rogers’ conviction and sentence for aggravated drug trafficking and the accompanying forfeiture specification, having weapons while under disability, and cocaine possession are hereby reversed and his plea to those offenses is vacated. This matter is remanded to the trial court for further proceedings consistent with law and in accordance with this opinion.
HENDRICKSON, P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{31} A trial court‘s lack of explaining the existence of a fine (Rogers already knew about) when addressing the maximum penalty does not represent a complete failure. Rogers referenced the fine in a motion filed prior to his plea, and again acknowledged the fine in his plea form. Additionally, Rogers has not demonstrated any prejudice. Therefore, I must respectfully dissent from the opinion of my colleagues.
{32} As I recently noted in a similar dissent in State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926 (Piper, J., dissenting), the Dangler court was clear that a defendant is not entitled to have his or her plea vacated unless the defendant can demonstrate prejudice by a failure of the trial court to comply with the provisions of
{33} The Dangler Court simplified appellate review of guilty pleas by elucidating that prior caselaw quantifying the degree of error was problematic and unnecessary. “Unfortunately, our caselaw has muddled [the] analysis by suggesting different tiers of compliance with the rule.” Id. at ¶ 17. The exceptions to the prejudice component in the criminal-plea context are limited. Id. at ¶ 14, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, syllabus.
{34} The Dangler Court addressed the purpose of
{35} Keeping the focus on whether the facts and circumstances of a particular plea demonstrate that the plea was voluntarily made, the court posed three specific questions that an appellate court should ask and answer when reviewing a plea. “The questions to be answered are simply: (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? Id. at ¶ 17.
{36} The majority opinion suggests that any lack of a complete explanation by the trial court during its plea colloquy --no matter how inconsequential or even if demonstratively already known by the defendant -- results in a “complete failure.” Such precedent muddles the simplicity offered to reviewing courts by Dangler and would require a reversal of pleas that would not have been reversed using pre-Dangler jurisprudence. See State v. Mohr, 3d Dist. Van Wert No. 15-98-05, 1999 Ohio App. LEXIS 4299 (Sept. 1, 1999) (finding substantial compliance with
{37} Prior to Dangler, if the only error were the lack of referencing a fine, the colloquy could still have been considered in “substantial compliance” with
{38} The instructions set forth in Dangler do not render a guilty plea involuntary upon the slightest mistake or omission of the trial court. The Dangler Court made the analysis straightforward. Dangler highlighted the need for an appellant to demonstrate that he or she was prejudiced by an error of the trial court in accepting the plea. The test for prejudice is whether the trial court‘s error was of a nature that absent the error, the defendant would not have entered his or her plea. Dangler requires prejudice as a rule unless one of the two exceptions apply.
{39} The exceptions to the requirement of prejudice are two limited, very narrow, well-defined instances. Either exception, if applicable, would render a plea involuntary. First, if a defendant was not informed of a specific constitutional right, then that right could not have been voluntarily waived. Secondly, if a trial court
{40} In Dangler, the Ohio Supreme Court reversed a decision of the appellate court that had determined the trial court completely failed to address the maximum penalty when it failed to fully address sexual offender classification requirements. Dangler pled no contest to sexual battery and the trial court explained during its plea colloquy that Dangler would be classified as a Tier III sex offender and would be required to register for the rest of his life. The trial court, however, omitted discussion of additional requirements of the classification, including “(1) the registration requirements that went with his classification (verifying his address in-person every 90 days for the rest of his life with the sheriff of any county in which he resides, works, or attends school), (2) the residency restrictions applicable to his classification, and (3) the community-notification process by which members of the public would be made aware of his status as a sex offender.” Id. at ¶ 6.
{41} On appeal, Dangler argued the omissions were significant. The appellate court agreed and concluded that the registration and in-person verification requirements, community-notification provisions, and residency restrictions were punitive sanctions, each constituting a separate penalty. The appellate court determined that the trial court was required to address each requirement in order to comply with
{42} The Dangler Court disagreed and reversed the appellate court‘s decision, finding that the trial court‘s colloquy, even when omitting portions of the maximum sentence, was not a complete failure. While the court recognized that the trial court could have done more, it did not find that all omissions constituted a complete failure.
The trial court could have gone further than it did and reviewed with Dangler the entirety of his obligations and burdens under the sex-offender-classification scheme. And we encourage trial courts to be thorough in reviewing consequences of a defendant‘s decision to enter a plea, including those stemming from classification as a sex offender: the duty to register and provide in-person verification, the community-notification provisions, and the residency restrictions.
But the trial court did not completely fail to comply with
Crim.R. 11(C)(2)(a) , and there is nothing in the record to support a
conclusion that Dangler would not have entered his plea had the trial court been more detailed in its explanation.
Id. at ¶ 25-26.
{43} The same principles apply to the case sub judice. While the trial court did not address the required fine during its colloquy, it did make a determination according to
{44} The trial court should have mentioned the monetary sanction, yet Rogers is only entitled to have his conviction vacated if he can demonstrate prejudice; that he would not have entered the plea but for the incomplete explanation. Upon a review of the record, no such prejudice can be demonstrated. In exchange for Rogers’ guilty plea, the state dismissed three felony offenses, the misdemeanor offense, and the firearm specifications and amended some charges, thus very significantly reducing Rogers’ potential maximum sentence. The trial court explained Rogers’ maximum prison sentence and Rogers expressed no confusion or lack of understanding regarding the possible maximum sentence. The entirety of the record demonstrates Rogers was aware of the mandatory fine, as he addressed the fine himself in a motion filed with the court prior to his plea, and the plea form also references the mandatory fine. Thus, there is no indication in the record that Rogers would not have pled guilty had the trial court explained the $7,500 fine.
{45} I would answer the Ohio Supreme Court‘s three questions specifically given us in Dangler at ¶ 17 as such: (1) the trial court did not fully comply with
{46} I would find Rogers’ second assignment of error, in which he challenges the constitutionality of indeterminate sentencing, meritless. Rogers challenges the trial court‘s presumption at sentencing that the statute was constitutional. However, a court rightfully presumes the constitutionality of a statute unless the opponent can prove the statute‘s unconstitutionality beyond a reasonable doubt. Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367. Moreover, this court has already determined that the sentencing statute is constitutional. State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. Thus, I would overrule Rogers’ second assignment of error.
{47} Based on my inability to join my colleagues in sustaining Rogers’ first assignment of error, I dissent in the disposition of this case.