State v. WagnerState v. Wagner
Dated: June 15, 2009
BELFANCE, Judge
{¶1} Defendant/Appellant Thomas Wagner appeals from his convictions in the Medina County Court of Common Pleas. For the reasons set forth below, we affirm.
FACTS
{¶2} On March 1, 2008, Wagner consumеd at least four beers before leaving his job at a restaurant in Brecksville. Wagner was driving towards his home in Wadsworth when his car spun out on black ice and became stuck in a grassy mediаn. Police contacted a tow truck to help free Wagner‘s vehicle. While waiting for the tow truck, Wagner drank a pint of vodka he had in his car. After his vehicle was removed from the median, Wagner drove to the parking lot of a bar in Wadsworth, where he planned to continue drinking.
{¶3} Upon exiting his vehicle, a Wadsworth Police Department officer confronted Wagner. The officer indicated that the police had received phone calls about erratic driving. The officer had Wagner perform field sobriety tests. Blood alcohol testing revealed Wagner‘s
{¶4} On June 6, 2008, a change of plea hearing was held. Count I of the indictment was dismissed and Wagner pled guilty to a violation of
{¶5} Wagner has timely appealed, аsserting one assignment of error. Wagner argues that his plea of guilty was not knowing, voluntary and intelligent where the trial court did not correctly advise Wagner of the maximum sentence he сould receive. While we conclude that the trial court did err, we cannot conclude that the error prejudiced Wagner; we therefore overrule Wagner‘s sole assignment of error.
STANDARD OF REVIEW
{¶6} Prior to accepting a guilty plea, the trial court is required to inform the defendant of the rights contained in
{¶7}
“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.”
{¶8} An appellate court‘s review of a trial court‘s compliance with
“[I]f the trial judge imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule aрplies. Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that the defendant subjectively understands the implications of his plea and the rights he is waiving, the plea may be upheld.
“When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied * * * the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudicе is whether the plea would have otherwise been made.” (Internal citations and quotations omitted.) Clark at ¶¶31-32.
MAXIMUM SENTENCE
{¶9} Wagner pled guilty to a violation of
{¶10}
“If the sentence is being imposed for a violation of division (A)(1)(h) * * * of this section, a mandatory prison term of one, two, three, four, or five years as required by and in accordance with division (G)(2) of section 2929.13 of the Revised Code if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code * * *. If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code.”
{¶11} Thus, the maximum total sentence the trial court could hаve sentenced Wagner to was seven and one-half years in prison; Wagner could have received up to five years for the specification and thirty months for the underlying offеnse. See
{¶12} The trial court informed Wagner at his plea hearing that he was subject to a maximum of thirty months in prison. As Wagner was in actuality subject to seven and one half years imprisonmеnt, the trial court‘s statement to Wagner was incorrect. Regardless of what sentence Wagner actually received, we cannot conclude based on the totality of the circumstances that Wagner understood the effect of his plea when the trial court provided
{¶13} However, our analysis does not end here. Clark provides that if a trial court does not substantially comply with
{¶14} Here, the trial court did not completely disregard its duties under
{¶15} Wagner thus must demonstrate that he was prejudiced by the trial court‘s error. Id. The test for prejudice is whether Wagner would havе otherwise entered into the plea. Id. at ¶32. While the cases Wagner cites, State v. Caplinger (1995), 105 Ohio App.3d 567, and State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, support a determination that the trial court did not substantially comply with
{¶16} Clark specifically states that upon a determination by the appellate court that the trial court partially complied with
CONCLUSION
{¶17} In light of the foregoing, we affirm the judgment of the Medina County Court of Common Plеas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified coрy of this journal entry shall constitute the mandate, pursuant to
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 to Appellant.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, J.
CONCUR
APPEARANCES:
ANDREW M. KORDUBA, Attorney at Law, for Appellant.
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant Prosecuting Attorney, for Appellee.