2005 Ohio 552 | Ohio Ct. App. | 2005
{¶ 2} On May 23, 2003 Marion County Sheriff's deputies arrested Trubee and two others for suspected burglaries of two residential homes. Witnesses reported that two individuals, identified as Trubee's co-defendants, Christopher Nagel and Nathan Laird, attempted to enter two separate residences through a window by pushing in the air conditioner unit. The two individuals fled the scene when they heard an occupant of one of the residences phone the police department. Police arrived on the scene, and the two subjects were apprehended in a vehicle driven by Trubee. The police found items reported missing from outside one of the residential properties in Trubee's vehicle.
{¶ 3} On June 5, 2003 the Marion County Grand Jury indicted Trubee, Nagel, and Laird on two counts of burglary in violation of R.C.
{¶ 4} Subsequent to the September 11, 2003 hearing but prior to sentencing, Trubee's counsel filed a written motion to withdraw his guilty plea pursuant to Crim.R. 32.1. The trial court held a hearing on September 19, 2003 and overruled the motion to withdraw guilty plea. The court subsequently sentenced Trubee to a term of two years in prison, filing its Judgment Entry of Sentencing on November 17, 2003.
{¶ 5} Defendant now appeals from the decision of the trial court overruling his motion to withdraw guilty plea, and from the judgment and sentencing.
Defendant-Appellant was denied his Sixth Amendment right to effectiveassistance of counsel, by trial counsel's failure to thoroughlyinvestigate the case at bar prior to advising Defendant-Appellant toplead guilty. The Court below erred in overruling defense counsel's motion towithdraw plea when indications were apparent that the plea of guilty wasnot voluntarily made.
{¶ 7} Generally, our review of a trial court's denial of a presentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion. State v. Peterseim (1979),
{¶ 8} However, Trubee does not argue that the trial court should have accepted his motion to withdraw his guilty plea as a matter of right, but instead he asserts that the plea itself was invalid because it was not voluntarily, knowingly, and intelligently made. A guilty plea has serious consequences for a defendant, and therefore a trial court must not accept a plea unless it is voluntary, knowing, and intelligent. See State v.Ballard (1981),
{¶ 9} Defendant also argues that he was denied effective assistance of counsel in the trial court proceedings. However, the entry of a guilty plea is an admission of factual guilt, see Crim.R. 11(B)(1), and a criminal defendant who pleads guilty is limited on appeal to attacking the voluntary and intelligent nature of the plea. A criminal defendant who has entered a guilty plea "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." State v. Spates (1992),
{¶ 10} Ohio Crim.R. 11(C)(2) outlines the procedures trial courts must follow for accepting guilty pleas in felony cases. Pursuant to that rule, before accepting a guilty plea to a felony charge, the trial court must first conduct a colloquy with the defendant to determine that he understands the plea he is entering and the rights he is voluntarily waiving by doing so. Crim.R. 11(C)(2); see also State v. Tucci, 7th Dist. No. 01 CA 234, 2002-Ohio-6903. A trial court must specifically inform a defendant that there are four rights a guilty plea waives: the rights to trial by jury, confrontation of witnesses, and to compel witnesses by compulsory process, as well as the privilege against self-incrimination. Boykin v. Alabama (1969),
{¶ 11} The record in the case clearly demonstrates that the trial court engaged in the colloquy required by Crim.R. 11 and advised Trubee of the rights he was waiving by pleading guilty to attempted burglary. At the September 19, 2003 hearing the court questioned Trubee to determine whether he understood the consequences of his plea and that he was waiving certain constitutional rights:
THE COURT: Have you had enough time to discuss this arrangement andthis potential plea of guilty with your attorney? THE DEFENDANT: Yes, sir. THE COURT: Do you have confidence in the advice you're being given? THE DEFENDANT: Yes, sir. THE COURT: Has your lawyer explained to you your constitutionalrights, the nature of the charges against you, and the consequences ofentering a plea of guilty? THE DEFENDANT: Yes, sir.
* * *
THE COURT: I'm sure your lawyer has explained to you that you don'thave to plead guilty here today. You're entitled to a speedy trial, andthat trial must be open to the public. You'd have a right to a jury of 12people, or you could waive a jury and have a trial to the court. If you'd have a jury trial, it would take the unanimous verdict of all12 jurors before you could be convicted. At a trial you and your attorney would have the right to see, hear, andconfront the witnesses who appear and testify against you. You'd alsohave the right to present evidence of your own, and the right to usecompulsory subpoena process to obtain the attendance of witnesses whowould testify on your behalf. You'd have the right to remain silent at your trial; the Prosecutorcould not comment upon your silence, and your silence could not beconsidered for any purpose. Of course if you wanted to you could take thewitness stand and testify on your own behalf, in which case theProsecutor would have an opportunity to cross-examine you. Under our system of laws you're presumed to be innocent until such timeas you're proven guilty beyond a reasonable doubt. What that means isthat it is incumbent upon the Prosecutor to go forward and prove each andevery essential element of the crime with which you're charged.
The court also discussed the nature of the charges and the potential punishments Trubee would be susceptible to if he pled guilty. Therefore, the record establishes that Trubee was made aware of the constitutional rights he was waiving by pleading guilty, and he acknowledged the voluntary nature of his plea.
{¶ 12} Trubee asserts that his plea was not voluntary because he was coerced into pleading guilty by the actions of his counsel. Specifically, Trubee argues that he only agreed to plead guilty because his counsel "scared" him by telling him that if he did not accept the negotiated plea he would be "looking at serious, worse things." He argues that his counsel also told him his co-defendants would testify against him at trial even though there was no indication in the State's summation of the facts that would indicate that the co-defendants would testify.
{¶ 13} These alleged actions by defense counsel, even if taken, did not affect the voluntary nature of the Trubee's plea in this case. It is clear that had Trubee not agreed to plead guilty he was facing charges of burglary, conviction of which carries harsher punishment than his plea of guilty to attempted burglary. Thus, it is clearly appropriate for defense counsel to advise his client that he will be facing stiffer penalties if he does not plead guilty and is convicted of burglary.
{¶ 14} Moreover, Trubee indicated at the hearing that he was confident in the advice given to him by trial counsel, and that he was entering his plea without any coercing:
THE COURT: Now, other than the Prosecutor's recommendation, have therebeen any promises, threats, or inducements to get you to plead guiltyhere today? THE DEFENDANT: No, sir. THE COURT: Are you doing this voluntarily? THE DEFENDANT: Yes, Your Honor.
In short, Trubee made it clear before the trial court that he had accepted the advice of counsel, was confident in that advice, and had voluntarily chosen to plead guilty to the reduced charge. Nothing in counsel's conduct indicates that Trubee was improperly coerced or pressured into pleading guilty.
{¶ 15} As discussed previously, we find that defendant's guilty plea was made voluntarily, knowingly, and intelligently. We therefore also find that counsel's conduct did not affect the voluntary nature of the plea. Based on the foregoing, defendant's first and second assignments of error are overruled.
{¶ 17} In Blakely, the Court expounded on the rule announced inApprendi that "[o]ther than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."Apprendi v. New Jersey (2000),
{¶ 18} However, the United States Supreme Court found that the ten year maximum for class B felonies was not the "statutory maximum" for purposes of the Apprendi rule. Notwithstanding the ten year maximum penalty, the Washington sentencing scheme further limited the potential prison term for second-degree kidnapping with a firearm to a "standard range" of between forty-nine and fifty-three months. Blakely,
{¶ 19} Applying the Apprendi rule, the Court held that the "statutory maximum" in the sentencing scheme was fifty-three months, rather than ten years, because that was the maximum sentence the judge could impose "solely on the basis of the facts reflected in the jury verdict oradmitted by the defendant." Blakely,
{¶ 20} In one sense, the Ohio sentencing scheme applicable in this case is similar in function to the scheme found unconstitutional inBlakely. Trubee pled guilty to attempted burglary, a third degree felony. R.C.
[T]he court shall impose the shortest prison term authorized for theoffense pursuant to division (A) of this section, unless one or more ofthe following applies: (1) The offender was serving a prison term at the time of the offense,or the offender previously had served a prison term. (2) The court finds on the record that the shortest prison term willdemean the seriousness of the offender's conduct or will not adequatelyprotect the public from future crime by the offender or others.
R.C.
{¶ 21} We hold that Trubee's sentence does not violate his Sixth Amendment rights. Our analysis of the constitutionality of Ohio's sentencing scheme is informed by the Apprendi decision and its progeny, as well as the Supreme Court's post-Blakely evaluation of the Federal Sentencing Guidelines in United States v. Booker (2005), ___ U.S. ___,
{¶ 23} Unlike the Washington statute, the sentencing "range" created by R.C.
{¶ 24} A close examination of the Supreme Court's rulings demonstrates that the Court has implicitly found that the structure of Ohio's sentencing scheme does not violate a defendant's constitutional rights. In her dissenting opinion in Apprendi, Justice O'Connor criticized the majority by arguing that New Jersey could achieve the same sentencing result without violating the Court's rule simply by redrafting the statute:
First, New Jersey could prescribe, in the weapons possession statute itself, a range of 5 to 20 years' imprisonment for one who commits that criminal offense. Second, New Jersey could provide that only those defendants convicted under the statute who are found by a judge . . . to have acted with a purpose to intimidate an individual on the basis of race may receive a sentence greater than 10 years' imprisonment.
Apprendi,
{¶ 25} Moreover, the Apprendi majority accepted that such a scheme would be constitutional under their new rule. Id. at 489 n. 16 (noting that a State could "comply with the rule" by revising the criminal code in the manner O'Connor suggests). This suggests that "in the Court's view there are constitutionally significant differences between [O'Connor's suggested framework] and the actual Apprendi statute." Michaels, Truth in Convicting: Understanding and Evaluating Apprendi (2000), 12 Fed.Sent.R. 320, 321.1 These constitutional differences permit a legislature to enable judicial fact-finding within a statutory range.
{¶ 26} This statutory structure is virtually identical to Ohio's framework — R.C.
{¶ 27} The Ohio and Washington statutory schemes also differ in where the authority to impose the maximum sentence derives from. TheBlakely-Apprendi rule establishes that the ultimate authority to impose the maximum sentence must stem from the jury verdict itself, and not from an additional fact determined by the sentencing court. The constitutional right protected by the Blakely-Apprendi rule — the defendant's Sixth Amendment right to a trial by jury — required a rule that "ensur[ed] that the judge's authority to sentence derives wholly from the jury's verdict." Blakely,
{¶ 28} Thus, the Blakely definition of the "statutory maximum" establishes that the verdict itself, not the additional findings of the court, must grant authority for the sentence. This was not the case under the Washington system, because the sentence permitted after the additional findings was beyond the maximum sentence a jury verdict of second degree kidnapping allowed. Thus, Blakely was not afforded his jury trial rights because the "substantial and compelling reasons" permitting an increase in his sentence were never considered by a jury.
{¶ 29} More precisely, those reasons necessarily were not incorporated into the maximum sentence permitted by the jury verdict, because "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." State v. Gore
(2001),
{¶ 30} However, the Supreme Court's opinions have repeatedly made clear that "when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant [to the sentence]." Booker,
[N]othing [in this opinion] suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within therange proscribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case."
Apprendi,
{¶ 31} The Ohio statute does not grant the sentencing court any authority to impose a sentence above that available for all other offenses of the same type. Therefore, Trubee was entitled under the sentencing scheme to have a jury determine all facts that would prove him guilty of attempted burglary, and he was never amenable to a sentence beyond what is statutorily prescribed for all attempted burglaries. The Ohio system does not allow a court to utilize facts not contemplated when establishing the sentencing range in order to impose a sentence beyond that range. Consequently, the court was not authorized to make any factual findings that would have permitted sentencing Trubee to six, seven, or eight years imprisonment, a punishment reserved only for first or second degree felonies. See R.C.
{¶ 32} It is also important to note the nature of the constitutional right at issue. The right to a jury trial cannot be analyzed in a vacuum because it implicates various other constitutional protections — the presumption of innocence, "the proscription of any deprivation of liberty without `due process of law,'" the right to a speedy and public trial, and the right to have the jury verdict based on proof beyond a reasonable doubt. Apprendi,
{¶ 33} Based on this understanding of the nature of the jury trial right, the Court concluded in Blakely that in the Washington statutory scheme the jury did not find all facts essential to the punishment. Id. at 2537. This was because "the relevant `statutory maximum' is . . . the maximum [a judge] may impose without any additional findings." Id. Unlike the Washington scheme, R.C.
{¶ 35} R.C.
{¶ 36} In reality, all R.C.
{¶ 37} Instead, R.C.
{¶ 38} Accordingly, the "statutory maximum" under R.C.
{¶ 40} There are two reasons articulated by the Court justifying the exclusion of prior convictions from the general rule. First, theApprendi Court relied on the fact that procedural safeguards were already in place to justify the exception. Apprendi,
{¶ 41} The Court has also recognized the exception for prior convictions because the sole issue addressed by this factor is recidivism. Almendarez-Torres,
{¶ 42} The Court distinguished the fact of prior conviction from facts relating to the underlying circumstances of the offense. Id. at 243 — 44, citing Graham v. West Virginia (1912),
{¶ 43} The Court has not retreated from that reasoning in subsequent cases. See United States v. Koch (6th Cir. 2004),
{¶ 44} Interestingly, however, an examination of factors unrelated to the commission of the offense is conspicuously absent from of theApprendi/Blakely discussion. In fact, the Almendarez-Torres case, which recognized the recidivism exception, is not even mentioned in Justice Scalia's majority opinion in Blakely. On the other hand, the Court specifically drew a distinction between the types of facts relating to recidivism in Almendarez-Torres — those not related to the commission of the offense — and the types of facts that are "elements" of the offense.Jones,
{¶ 45} Consequently, we think this case falls under the recognized exception for prior convictions. In sentencing Trubee, the trial court relied on the fact that Trubee had a previous record. At the sentencing hearing, the court made a finding on the record that Trubee had a "very lengthy" juvenile history and had been incarcerated for burglary in Arizona. In its journal entry, the trial court noted that the shortest prison term would not adequately protect the public from future crimes. Recidivism was the sole factor influencing the trial court's decision to sentence Trubee beyond the one year minimum sentence. Under the Supreme Court's rationale in Almendarez-Torres, this fact, which was unrelated to the commission of the offense, need not be reserved to the jury. TheBlakely rationale is inapplicable.
{¶ 46} Moreover, the court's finding that Trubee had served a prior prison term takes R.C.
{¶ 47} Trubee also argues that his sentence is unconstitutional because the trial court considered a victim impact statement and a presentence report before issuing its sentence. Trubee, relying once again on Apprendi and Blakely, argues that the trial court cannot use such evidence to sentence a defendant above the statutory maximum.
{¶ 48} However, it is clear Ohio's statutory scheme does not allow the judge to sentence a defendant beyond the statutory maximum based on information contained in victim impact statement or a presentence report. Under the express language of the statute, the trial judge could only sentence Trubee to more than one year in prison if he found one of the factors listed in R.C.
{¶ 49} Finally, Trubee challenges the validity of his sentence, arguing that it is not valid because the court's findings were not journalized. As previously stated, the journal entry stated, "[t]he court finds that the shortest prison term would not adequately protect the public from future crime by the defendant or others." Implicit in this finding is the recidivism issue, and it is clear that the trial court based this finding on Trubee's prior burglary convictions and lengthy juvenile record. Thus, defendant's arguments are not well taken.
{¶ 50} We think it clear that the trial court in this case issued its sentence based on Trubee's prior convictions, and thus it was within the trial court's discretion to sentence Trubee within the range permitted by the burglary statute.
Judgment Affirmed.
Cupp, P.J., and Bryant, J., concur.
However, based on our finding that Blakely is inapplicable to Ohio's statutory scheme, this exception will not be implicated in Ohio. When a criminal defendant pleads guilty to the underlying charges, that defendant is admitting all facts essential to the maximum punishment. Therefore, the defendant need not consent to any judicial factfinding, because there is no factor that can increase his sentence over the statutory maximum.
