STATE OF OHIO, Appellee, v. JIMMY RAY SMITH, JR., Appellant.
CASE NOS. CA2019-10-113, CA2019-11-121
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
May 26, 2020
2020-Ohio-3074
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 19CR35314
David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Johnna M. Shia, P.O. Box 145, Springboro, Ohio 45066, for appellant
S. POWELL, J.
{¶ 1} Appellant, Jimmy Ray Smith, Jr., appeals his conviction in the Warren County Court of Common Pleas after he pled guilty to one count of rape, two counts of gross sexual imposition, two counts of illegal use of a minor in nudity oriented material or performance, one count of endangering children, and one count pandering sexual oriented material involving a minor. For the reasons outlined below, we affirm.
{¶ 3} On October 10, 2019, the trial court held the previously scheduled sentencing hearing. During this hearing, and without any objection from Smith, the state set forth the underlying facts for each of the seven offenses to which Smith had pled guilty. Although in slightly less detail, these facts were the same facts as provided to the trial court in the PSI. Noting that it had considered the PSI, which included Smith‘s statements to police admitting to the charged conduct, the trial court merged the two offenses relating to the four-year-old victim as allied offenses of similar import. The trial court then sentenced Smith to a total aggregate term of 25 years to life in prison, classified Smith as a Tier III sex offender, and notified Smith that he would be subject to a mandatory five-year postrelease control term should he ever be released from prison. Smith now appeals his conviction, raising three assignments of error for review.
Assignment of Error No. 1:
THE TRIAL COURT FAILED TO FOLLOW THE MANDATES OF CRIM.R. 11
{¶ 6} In his first assignment of error, Smith argues his guilty plea was involuntarily entered since the trial court failed to properly advise him of the nature of the charges and the maximum penalties involved for each offense prior to him entering his guilty plea as required by
{¶ 7} When a defendant enters a guilty plea in a felony criminal case, the plea must be knowingly, intelligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No. CA2014-12-142, 2015-Ohio-3108, ¶ 6. “Failure on any of those points ‘renders enforcement of the plea unconstitutional under both the
{¶ 8} To that end, pursuant to
(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.
{¶ 9} As recently explained by the Ohio Supreme Court, “[w]hen a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is that he must establish that an error occurred in the trial-court proceedings and that he was prejudiced by that error.” State v. Dangler, Slip Opinion No. 2020-Ohio-2765, ¶ 13. There are two limited exceptions, however, where no showing of prejudice is required in the criminal-plea context. Id. at ¶ 14.
{¶ 10} The first exception to the prejudice requirement occurs “[w]hen a trial court fails to explain the constitutional rights that a defendant waives by pleading guilty or no contest[.]” Id. When this occurs, “we presume that the plea was entered involuntarily and unknowingly, and no showing of prejudice is required.” Id., citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31. The constitutional rights that the trial court must explain to a defendant are set forth in
{¶ 11} The second exception to the prejudice requirement occurs as a result of “a trial court‘s complete failure to comply with a portion of
{¶ 12} “Aside from these two exceptions, the traditional rule continues to apply: a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 13} Noting that its caselaw has “muddled” the analysis that should apply when reviewing a defendant‘s plea of guilty or no contest “by suggesting different tiers of compliance with the rule,” the Ohio Supreme Court has set forth what it believes “should be a fairly straightforward inquiry.” Id. at ¶ 17. Therefore, rather than reviewing a defendant‘s plea of guilty or no contest to determine whether the trial court substantially complied, partially complied, or completely failed to comply with the requirements set forth in
{¶ 14} Answering the first question in the affirmative, the record firmly establishes that the trial court complied with the relevant provision of the rule,
{¶ 15} At the trial court‘s request, the state then explained each of the registration requirements Smith faced as a Tier III sex offender. Upon being notified of these requirements, the trial court addressed Smith and stated:
THE COURT: All right. Did you hear everything that was said on that, Mr. Smith?
Mr. SMITH: Yes, sir.
THE COURT: Okay. Do you understand it?
MR. SMITH: Yes.
THE COURT: All right. You heard what I said about the potential penalties. Do you understand those, sir?
MR. SMITH: Yes, sir.
{¶ 16} The trial court then advised Smith of the constitutional rights that he would be waiving upon entering a guilty plea. After verifying that Smith understood the constitutional rights he would be waiving by pleading guilty, the trial court engaged Smith in the following exchange:
THE COURT: Do you feel that there‘s been any sense of pressure from anyone on you to waive your constitutional rights
MR. SMITH: No, sir.
THE COURT: You‘re doing this of your own free will?
MR. SMITH: Yes, sir.
THE COURT: Have you had enough time to think about this, sir?
MR. SMITH: I‘ve had many months to think about this, sir.
{¶ 17} Smith claims that his guilty plea was not voluntarily entered since neither the trial court nor the state provided “sufficient information” concerning the nature of the charges and the maximum penalty involved for each offense. Smith also claims that his plea was not voluntary because the state did not provide a recitation of the facts underlying each offense prior to him entering his plea. We disagree.
{¶ 18} Contrary to Smith‘s claims, there is no requirement that the trial court “enter into a discussion with a defendant or defendant‘s counsel to ensure there is an understanding where no uncertainty is otherwise indicated.” State v. Rivera, 12th Dist. Butler No. CA2013-05-072, 2014-Ohio-3378, ¶ 28, citing State v. Dotson, 12th Dist. Preble No. CA2007-11-025, 2008-Ohio-4965, ¶ 10. Such is the case here.
{¶ 19} There is also no requirement that the trial court determine whether a factual basis exists to support a guilty plea prior to the accused entering his or her plea. State v. Isbell, 12th Dist. Butler No. CA2003-06-152, 2004-Ohio-2300, ¶ 16. This is because, pursuant to
Assignment of Error No. 2:
SMITH‘S SENTENCE IS CONTRARY TO LAW BECAUSE THE COURT FAILED TO MERGE ALLIED OFFENSES.
{¶ 22} In his second assignment of error, Smith argues the trial court erred by considering “additional evidence” when making its allied offenses determination at sentencing. In support of this claim, Smith takes issue with the fact that “[i]t was not until the issue of merger was raised at the time of sentencing that the [state] recited the specific conduct that related to each alleged victim for each charged offense.” This is because, according to Smith, it was improper for the trial court to rely on “facts [he] did not plead to when it decided not to merge certain offenses.” We disagree.
{¶ 23} Despite Smith‘s claims, considering the underlying facts recited by the state were the same facts detailed in the PSI, we find it was proper for the state to set forth the salient facts necessary to assist the trial court in making its allied offenses determination. It was also proper for the trial court to then consider those facts as part of its allied offenses analysis. This is because it is well established that the trial court may consider the information contained in the PSI when deciding whether offenses are allied offenses of similar import. State v. Knight, 12th Dist. Butler No. CA2016-02-028, 2016-Ohio-7991, ¶ 13 (trial court can “look to the information contained in the record,” including the PSI, when making its allied offenses determination), citing State v. Cisco, 5th Dist. Delaware No. 13 CAA 04 0026, 2013-Ohio-5412, ¶ 30 (“the trial court does not err in relying upon the [PSI]
Assignment of Error No. 3:
SMITH‘S SENTENCE IS CONTRARY TO LAW BECAUSE THE FACTS TO WHICH SMITH PLEAD FAILS TO SUPPORT CONSECUTIVE SENTENCES.
{¶ 26} In his third assignment of error, Smith argues the trial court erred by considering “additional evidence” when deciding whether to impose consecutive sentences. Similar to his argument in his second assignment of error, Smith argues that it was improper for the trial court to rely on the state‘s “recitation of the specific conduct related to each alleged victim constituting the offenses at the time of sentencing.” We disagree.
{¶ 27} Contrary to Smith‘s claims, not only is the state permitted under
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and M. POWELL, J., concur.