State v. TolleState v. Tolle
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for Appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Kris. D. Blanton, Assistant Adams County Prosecuting Attorney, West Union, Ohio, for Appellee.
Smith, P.J.
{¶1} Appellant, Jeremiah Tolle, appeals the judgment entered by the Adams County Court of Common Pleas convicting him of one count of aggravated possession of drugs. Tolle pleaded guilty to the charge after the trial court denied his motion to suppress evidence. On appeal, Tolle raises a single assignment of error contending that his plea of guilt was not entered knowingly, intelligently, and voluntarily. Because we find merit to the argument raised under Tolle’s sole assignment of error, it is sustained. Accordingly, the judgment of the trial court is reversed and this matter is remanded with instructions for further proceedings.
{¶2} On November 13, 2019, Tolle was indicted on three third-degree felony counts that each contained specifications. The charges stemmed from the execution of a search warrant at Tolle’s residence that was issued after Tolle was arrested during a traffic stop. Count one charged Tolle with aggravated possession of drugs in violation of
{¶3} Tolle pleaded not guilty to all of the charges and filed a dual motion to suppress and a motion in limine on February 18, 2020. In his dual motion, Tolle argued that all evidence seized as a result of the search warrant should be suppressed and that any testimony relating to the search warrant should be excluded from trial. A suppression hearing was held on March 31, 2020, and after taking the matter under advisement, the trial court issued a decision denying the motion to suppress on April 20, 2020. There is nothing in the record to suggest a
{¶4} Thereafter, Tolle entered into a plea agreement whereby he would plead guilty to the aggravated possession of drugs charge contained in count one of the indictment, as amended.1 In exchange for Tolle’s guilty plea, the remaining counts of the indictment were dismissed. At the plea hearing, the State outlined the agreement reached with Tolle and noted that this was a case with “a rather lengthy motion to suppress.” After confirming the agreement reached between the parties and advising Tolle of the constitutional rights he was waiving and the maximum penalty he was facing, the trial court engaged Tolle in the following colloquy:
[COURT:] Now, the other right, that you’ll still retain, even if you do enter a plea of guilty is you’ll keep the right to appeal any and all decisions of this court in your case, but that appeal must be timely filed. It must be filed within 30 days of the judgment entry of sentence. I think you’re batting a thousand on my questions about definitions. Do you understand what an appeal is?
[TOLLE:] Yes, sir.
COURT: What do you think an appeal would be?
[TOLLE:] Uh it’s to overturn your case and the findings of the case?
COURT: Sure. Yeah, you have it we’re going to say it a little bit different terms [sic]. So, an appeal is where you would
ask judges and courts that have higher and superior authority than this court to review the decisions of this court in your case, to see if those decisions were fair and legal and appropriate. So, I think we’re saying the same thing. [TOLLE:] Yeah.
COURT: Higher review.
[TOLLE:] Yes, sir.
{¶5} Thereafter, the trial court accepted Tolle’s guilty plea to count one of the indictment, as amended. Tolle was ultimately convicted on the sole count and sentenced to a prison term of 30 months on February 24, 2021. It is from this sentencing entry that Tolle now brings his timely appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
I. THE PLEA OF GUILTY WAS NOT ENTERED KNOWINGLY, INTELIGENTLY [SIC], AND VOLUNTARILY.
{¶6} In his sole assignment of error, Tolle contends that his guilty plea was not entered knowingly, intelligently, and voluntarily. In support of his assignment of error, Tolle directs our attention to the fact that the trial court advised him that despite pleading guilty, he would “keep the right to appeal any and all decisions” of the court. Tolle argues that such advisement “would suggest that [he] had the right to appeal any decision made by the court throughout the entire case[,]” which would include the trial court’s denial of his motion to suppress. Tolle further
{¶7} The State counters by arguing that an appellant who challenges his plea on the basis that it was not knowingly and voluntarily made must show a prejudicial effect. The State further argues that the trial court had no duty to advise Tolle about his right to appeal at the plea hearing stage and therefore “any discussion or colloquy the trial court had with the appellant would be harmless error.” Thus, the State argues that Tolle “has failed to provide anything to this Court that indicates he was prejudiced by the alleged inadequacy of the instructions of the trial court, nor has the appellant even specifically complained in his brief that he was prejudiced.”
Applicable Law and Standard of Review
{¶8}
(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} Thus, prior to accepting a guilty plea, a “court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses.” State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115, paragraph one of the syllabus (1981). See also
{¶10} When reviewing a defendant‘s constitutional rights (right to a jury trial, right to call witnesses, etc.), a trial court must strictly comply with
{¶11} In contrast, when reviewing a defendant‘s non-constitutional rights (maximum penalty involved, understanding effect of plea, etc.), a trial court must substantially comply with
{¶12} In Veney, the Court held as follows regarding the acceptance of guilty pleas:
“When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”
{¶13} “It is the trial court‘s duty, therefore, to ensure that a defendant ‘has a full understanding of what the plea connotes and of its consequence.’ ” Montgomery at ¶ 40, quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Conley, 4th Dist. Adams No. 19CA1091, 2019-Ohio-4172, ¶ 34.
{¶14} When appellate courts evaluate whether a defendant knowingly, intelligently, and voluntarily entered a guilty plea, a court must independently review the record to ensure that the trial court complied with the
{¶15} The purpose of
{¶16} Additionally, it has been held that a defendant who seeks to invalidate a plea on the basis that the trial court partially, but not fully, informed the defendant of his or her non-constitutional rights must demonstrate a prejudicial effect. See Veney at ¶ 17; Clark at ¶ 31. To demonstrate that a defendant suffered prejudice due to the failure to fully inform the defendant of his or her non-constitutional rights, the defendant must establish that, but for the trial court‘s failure, a guilty plea would not have been entered. See Clark at ¶ 32, citing Nero” cite=“56 Ohio St. 3d 106” parallel=“564 N.E.2d 474” pinpoint=“108” court=“Ohio” date=“1990“>State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990)(stating that “[t]he test is ‘whether the plea would have otherwise been made’ “). However, when a trial court completely fails to inform a defendant of his or her non-constitutional rights, the plea must be vacated, and no analysis of prejudice is required. See Clark at ¶ 32, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
Legal Analysis
{¶17} Here, the record before us indicates Tolle initially pleaded not guilty to the charge at issue but then changed his plea to guilty after his motion to suppress was denied. When accepting Tolle’s guilty plea, the trial court affirmatively stated on the record that Tolle would “keep the right to appeal any and all decisions of [the] court in [his] case, but that appeal must be timely filed.” As set forth above, the trial court went on to engage Tolle in a colloquy asking him if he understood what an appeal was and asking Tolle to provide the court with his understanding of what an appeal was, to which Tolle responded that “it’s to overturn your case and the findings of the case.” The trial court thereafter stated as follows:
* * * So, an appeal is where you ask judges and courts that have higher and superior authority than this court to review the decisions of this court in your case, to see if those decisions were fair and legal and appropriate.
{¶19} In State v. Engle, the Supreme Court of Ohio held that the “defendant‘s [no contest] plea was predicated on a belief that she could appeal the trial court‘s rulings that her counsel believed had stripped her of any meaningful defense[,]” and therefore “her plea was not made knowingly or intelligently.”
{¶20} More recently, the Supreme Court of Ohio was confronted with an argument that a “plea was invalid because the trial court failed to comply fully with
{¶21} However, as discussed in Dangler at length, there are exceptions to the traditional rule that relieve defendants from the requirement of demonstrating prejudice. Dangler at ¶ 14-17. For example, if a trial court fails to strictly comply, and instead only substantially complies with the
{¶22} However, neither Dangler nor Nero involved a trial court incorrectly informing a defendant that he or she retained the right to appeal all decisions of the court when entering a guilty plea. Moreover, and importantly, although Dangler was decided after Engle, Dangler relied on Nero, which was decided six years before Engle. This is important because although Nero specifically discussed the “but-for” and “prejudice” requirements of the traditional rule which must be alleged when seeking to invalidate a guilty plea, Engle was decided six years after Nero. As set forth above, the Engle Court found that Engle’s plea was invalid because it was predicated on her understanding that she had the right to appeal. The Engle Court reached this decision despite the fact that there was no claim made that she would not have entered her plea but for the misinformation. Thus, it appears that the prejudice caused by a trial court’s error in informing a defendant that he or she retains the right to appeal all decisions of the court when entering a guilty plea is apparent on the face of the record and must not be specifically alleged or demonstrated by a defendant. As such, in accordance with Engle as well as our prior decisions in Lask and Buggs, we conclude that Tolle’s guilty plea was not knowing, intelligent or voluntary in light of the fact that it was entered while
{¶23} Alternatively, we conclude that this type of error by the trial court not only fails to constitute substantial compliance with
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 court has not complied fully with the rule, is the purported failure of the 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?
{¶24} In answer to the first question, we cannot conclude that the trial court substantially complied with
Conclusion
{¶25} In light of the foregoing, we conclude that the disposition of this matter is controlled by our prior precedent as set forth in State v. Lask and State v. Buggs, supra, as well as what we conclude is binding precedent contained in State v. Engle, supra. More specifically, in Lask, Buggs and Engle, pleas were invalidated in situations where defendants were wrongly advised regarding a guilty plea’s effect on their rights of appeal, without any express discussion regarding the existence of prejudice or lack thereof. As set forth above, in our view, prejudice is apparent on the face of the record in these circumstances. Alternatively, because we have concluded that the trial court’s misrepresentation regarding Tolle’s right of appeal did not constitute substantial compliance with the rule and instead constituted a complete failure to comply with
JUDGMENT REVERSED AND CAUSE REMANDED.
{¶26} The majority in vacating Tolle’s guilty plea considers the trial court’s mis-notification that he retains the right to appeal all its prior decisions on the same level as a constitutional notification that a trial court must strictly comply with. The law is well-established in that “[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, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 13. The only two carved exceptions to the prejudice requirement with regard to errors committed during a guilty plea colloquy, strict compliance and complete failure to comply, do not apply here. Accordingly, Tolle is not absolved of his burden to demonstrate he was prejudiced by the trial court’s inaccurate notification. Because Tolle failed to establish, let alone claim he was prejudiced by the trial court’s incorrect statement relating to his right to appeal its prior rulings, I would affirm his convictions. I, therefore, respectfully dissent.
{¶27} When a defendant pleads guilty, the trial court is required to comply with the notifications as set forth in
We have made a limited exception to the prejudice component of that rule in the criminal-plea context. When a trial court fails to explain the constitutional rights that a defendant waives by pleading guilty or no contest, we presume that the plea was entered involuntarily and unknowingly, and no showing of prejudice is required. We have identified these constitutional rights as those set forth in
Crim.R. 11(C)(2)(c) : the right to a jury trial, the right to confront one’s accusers, the privilege against self-incrimination, the right to compulsory process to obtain witnesses, and the right to require the state to prove guilt beyond a reasonable doubt. (Citation omitted.)
{¶28} The matter at bar does not involve any of the constitutional notifications, yet the majority presumes prejudice simply because an error occurred: “it appears that the prejudice caused by a trial court’s error in informing a defendant that he or she retains the right to appeal all decisions of the court when entering a guilty plea is apparent on the face of the record and must not be specifically alleged or demonstrated by a defendant.” Majority opinion, ¶ 22. I agree that the trial court erred when it notified Tolle he still retained “the right to appeal any and all decisions of this court in your case” even after pleading guilty. (Plea hearing, T.p. 28) See State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16,
{¶29} Similarly, the complete failure to comply exception to the prejudice component does not apply here. In Dangler, the Supreme Court explained that “a trial court’s complete failure to comply with a portion of
{¶30} “The test for prejudice is ‘whether the plea would have otherwise been made.’ ” Id., quoting Nero at 108. Tolle has not demonstrated prejudice in this case. During the plea colloquy, Tolle did not indicate that he intends to appeal any of the trial court’s prior rulings, but more importantly, he fails to claim in his appellate briefing that he would not have otherwise pleaded guilty but for the trial court’s incorrect notification.
{¶31} The majority deviates from the traditional rule requiring Tolle to demonstrate prejudice without providing a legal basis, and, in support of its conclusion to vacate his plea, simply applies the holding from several cases without noting key procedural distinctions. Majority opinion, ¶ 18, 19, 22. Two of the cases are previous decisions from this court: State v. Lask, 4th Dist. Adams No. 18CA1081, 2019-Ohio-2753; and State v. Buggs, 4th Dist. Scioto No. 20CA3913, 2021-Ohio-39. In both cases the defendant demonstrated prejudice. In Lask, the record established Lask’s intention to appeal when defense counsel stated: “it’s my understanding that when pleading guilty the defendant will waive his right to appeal a motion to suppress ruling unless it’s specifically stated on the record or in
{¶32} The majority also relies on the Supreme Court’s decision in State v. Engle that vacated Engle’s plea without addressing the procedural background of the case. Majority opinion, ¶ 19; Engle 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). Engle pleaded no contest and the record demonstrated her intent to appeal where “the prosecutor, in explaining the plea bargain to the court, made no fewer than six references to an appeal by the defendant in a colloquy that covers only seven sentences in the trial transcript.” Engle at 527.
{¶33} There are no cases that support the majority’s position that any error in advising a defendant of his right to appeal during a guilty plea colloquy mandates automatic reversal. To the contrary, a recent Seventh District Court of Appeals case addressing a similar issue reiterated the traditional rule that:
a defendant who challenges his guilty plea on the basis that the advisement for the non-constitutional rights did not substantially comply with
Crim.R. 11(C)(2)(a) (b) must also show a prejudicial effect, meaning the plea would not have been otherwise entered.* * *
“The failure to inform a defendant that a guilty plea waives certain rights on appeal is not one of the specifically enumerated rights the trial court is required to discuss during the
Crim. R. 11 colloquy.” State v. Reynolds, 12th Dist. Madison No. CA2018-02-005, 2018-Ohio-4942, ¶ 12. Prior to accepting a guilty plea, a trial court need not inform a defendant that he is waiving the right to appeal the overruling of a motion to suppress. State v. Jones, 1st Dist. Hamilton No. C-050833, 2006-Ohio-4284, ¶ 8.
State v. Hackathorn, 7th Dist. Belmont No. 21 BE 0013, 2022-Ohio-1612, ¶ 12.
{¶34} In Hackathorn, at the change of plea hearing in which the defendant pleaded guilty, the trial court misadvised him that he would retain the right to appeal its prior decisions, which included the denial of his motion to suppress. Id. at ¶ 8, 16. The Seventh District overruled the assignment of error that Hackathorn’s plea was not knowingly, intelligently and voluntarily entered and held
While the court told appellant he had the right to appeal, it did not break down his right to explain that defendant could appeal his plea and sentence but could not appeal the ruling on the motion to suppress. But the court was not required to discuss with appellant what he would and would not be able to appeal based on his guilty plea.
Accordingly, appellant’s second assignment of error is without merit and is overruled.
{¶36} Another recent case to mention is State v. West, in which the Second District Court of Appeals addressed whether the defendant’s plea was valid when the trial court misadvised him that he was subject to Tier II designation by pleading guilty to illegal use of a minor in nudity oriented material, when in fact he was subject to the less severe Tier I sex offender classification. 2d Dist.
{¶37} Sexual offender classification is a required notification pursuant to
{¶38} What we have here, however, is a notification that is not even required pursuant to
It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. concurs in Judgment and Opinion.
Wilkin, J., dissents with Dissenting Opinion.
For the Court,
Jason P. Smith
Presiding Judge
NOTICE TO CLERK
The clerk shall serve a copy of this order on all counsel of record and unrepresented parties at their last known addresses by ordinary mail. IT IS SO ORDERED.