STATE OF OHIO v. MICHAEL H. RUSU
C.A. No. 25597
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: June 13, 2012
[Cite as State v. Rusu, 2012-Ohio-2613.]
COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CR 09 12 3596(B)
WHITMORE, Presiding Judge.
{1} Defendant-Appellant, Michael Rusu, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{2} Rusu entered into a written plea of guilt after he and another man stole a trailеr and, in the course of their conduct, proximately caused the death of Michael Hall. Rusu pleaded guilty to three charges: (1) vehicular homicide, a first-degree misdemeanor in violation of
{3} Rusu now appeals from his convictions and raises seven assignments of errоr for our review. For ease of analysis, we combine and reorder several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY FINDING THAT RUSU‘S PLEA WAS MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WHEN THE COURT DID NOT PROPERLY OUTLINE THE PUNISHMENTS THAT WERE POSSIBLE.
Assignment of Error Number Two
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL‘S (sic) COURT‘S ACCEPTANCE OF RUSU‘S PLEA WAS DEFECTIVE.
{4} In his first two assignments of error, Rusu argues that he did not knowingly, voluntarily, and intelligently enter his guilty plea because he entered it with thе understanding that the maximum period for which his license could be suspended was three years when, in fact, it was five. He further argues that his trial counsel was ineffective because he failed to object to his plea on the fоregoing basis.
{5} “In order for a plea to be constitutionally enforceable, it must be entered knowingly, voluntarily, and intelligently.” State v. Dowdell, 9th Dist. No. 25930, 2012-Ohio-1326, ¶ 7. “A trial court‘s obligations in accepting a plea depend upon the level of offense to which the defendant is pleading.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 6.
{6} A defendant‘s right to be informed of his maximum possible penalty in a felony case is a non-constitutional right, so a substantial compliance standard applies. State v. Hubbard, 9th Dist. No. 25141, 2011-Ohio-2770, ¶ 7. “Substantial compliance means that under the totаlity 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 (1990). “When the trial judge does not substantially comply with
{7} The record reflects that the trial court failed to inform Rusu of the maximum possible penаlty for his vehicular homicide offense when it accepted his plea. Specifically, the court informed Rusu he could receive up to a three year license suspension when, in fact, he could receive up to five years. See
{8} The State acknowledges the trial court‘s error in the plea colloquy, but argues that the error was harmless because the court was not required to inform Rusu of the maximum possible penalty for his petty offense. See
{9} The trial court partially complied with
{10} In a related assignment of error, Rusu аrgues that he received ineffective assistance of counsel because his counsel did not object when the trial court failed to properly inform him of his maximum possible sentence. An ineffective assistance сlaim requires a defendant to prove that his counsel‘s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, “defendant must demonstrate that there is a reasonable probability that, but for his counsеl‘s error, he would not have pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-3545, ¶ 4. As we have already determined that Rusu has not proven prejudice as a result of his plea, we reject his ineffective assistance of cоunsel argument. Rusu‘s first and second assignments of error are overruled.
Assignment of Error Number Three
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST RUSU WITHOUT COMPLYING WITH
Assignment of Error Number Four
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT‘S IMPOSITION OF COURT COSTS UNDER
Assignment of Error Number Seven
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT COMPLYING WITH
{11} In his third and seventh assignments of error, Rusu argues that the court erred by imposing costs and attorney fees against him. In his fourth assignment of error, Rusu argues that his trial counsel was ineffective for failing to object to the court‘s imposition of costs.
{12} ”
{13} The record reflects that the trial court imposed costs and attorney fees upon Rusu in its sentencing entry, but did not orally inform him of his obligation to pay costs or inform him that he would be responsible for his attorney fees at the time of sentencing. Rusu, therefore, did not have the opportunity to claim an inability to pay based on his indigency. His third and
{14} In light of our resolution of Rusu‘s third and seventh assignments of error, his argument that his trial counsel was ineffective for failing to object to the imposition of costs is moot. State v. Ross, 9th Dist. No. 25778, 2012-Ohio-1389, ¶ 29-30. Therefore, we decline to address his fourth assignment of error.
Assignment of Error Number Five
THE COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING RUSU ON CHARGES TO WHICH HE WAS NOT CHARGED AND TO WHICH HE DID NOT PLEAD.
Assignment of Error Number Six
RUSU WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT WAS SENTENCING RUSU FOR CHARGES TO WHICH HE WAS NOT CHARGED AND TO WHICH HE DID NOT PLEAD.
{15} In his fifth assignment of error, Rusu argues that the court improperly sentenced him in connection with an offense for which he was never indicted. As such, Rusu argues, he did not have notice of the charges against him. In his sixth assignment of error, Rusu argues that his trial counsel was ineffective for failing to object to the improper sentence.
{16} The portiоn of the sentencing entry Rusu challenges reads:
IT IS FURTHER ORDERED that pursuant to Ohio Revised Code Section 2925.11(E)(2), the Defendant‘s driver‘s license and all driving privileges be SUSPENDED for a period of 4 years, which is mandatory and required by statute.
{17}
III
{18} Rusu‘s third, fifth, and seventh assignments of error are sustainеd for the reasons set forth above. His fourth and sixth assignments of error are moot, and his remaining assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with the foregoing opinion.
There were reasonable grounds for this appeal.
Judgment affirmed in part, reversed in part, and cause remanded.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
BETH WHITMORE FOR THE COURT
MOORE, J. CONCURS IN JUDGMENT ONLY.
CARR, J. CONCURRING IN JUDGMENT ONLY.
{19} I concur in judgment only. In regard to the first assignment of error, I concur in the majority‘s judgment solely on the basis that Rusu has not demonstrated that the error in the license suspension would have caused him not to plead guilty.
APPEARANCES:
DENISE E. FERGUSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.