State v. WallaceState v. Wallace
For Plaintiff-Appellee: KENNETH OSWALT, Licking County Prosecutor, BY: DANIEL HUSTON, 20 South Second St., 4th Fl., Newark, OH 43058
For Defendant-Appellant: WILLIAM T. CRAMER, 470 Olde Worthington Road, Ste. 200, Westerville, OH 43082
O P I N I O N
{¶1} Defendant-Appellant, Nicholas B. Wallace, appeals his convictions on one count of aggravated murder, one count of murder, one count of aggravated burglary and one count of tampering with evidence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was indicted for aggravated murder (
{¶3} The Assistant Prosecuting Attorney set forth the underlying facts at the Change of Plea and Sentencing hearing conducted on December 18, 2009:
{¶4} “Specifically on August 24, 2009, at approximately 2212 hours, the Newark Police Department officers responded to 59 West Harrison Street, Newark, Licking County, Ohio, on a report of screams coming from a room, the structure being a rooming house. Upon further investigation, officers found 25-year old John Stouffer lying dead on the floor of his room. It was apparent that Mr. Stouffer had suffered multiple stab wounds from a sharp-edged incident (instrument).
{¶5} “Homicide detectives were called in to investigate. The investigation revealed that the co-defendant, Beth Doty, was previously romantically involved with the victim and believed that she was pregnant with his child at the time of the homicide. Prior to his killing, co-defendant Doty had solicited her co-defendants and members of
{¶6} “To that end, on August 24, 2009, James Slocum, the president of the “Death Demons,” directed the Defendant and the co-defendants to “go do him”, referring to Stouffer. Thereafter, the Defendant and his co-defendants arrived at Stouffer’s neighbor’s apartment under the pretense of removing some of co-defendant Beth Doty’s personal items from the apartment. Marvin Wielms whom the co-defendant Beth Doty was dating at the time occupied this apartment.
{¶7} “Once there, co-defendant William Snyder convinced the victim, John Stouffer, to answer his door under the pretense of wanting to discuss Stouffer’s truck. After the victim opened his door, co-defendant Snyder stepped aside and co-defendant Jason Stone rushed through the doorway and proceeded to physically attack the victim with a knife. The Defendant handed the knife and ultimately the murder weapon to Stone moments before Stone attacked and killed Stouffer.
{¶8} “A total of 29 stab wounds were inflicted by co-defendant Stone, including stab wounds of - - 20 stab wounds to the torso, seven stab wounds to the head and neck, and two stab wounds to the extremities. Because of the stab wounds, John Stouffer died at the scene.
{¶9} “After Stone killed Stouffer, the Defendant and his co-defendants returned to James Slocum’s residence located at 33 South Sixth Street, Newark, Licking County, Ohio. There the Defendant burned Stone’s blood soaked clothes to destroy the evidence, and additionally disposed of a second knife that was identical to the murder weapon. Thank you.” (T. at 9-14).
{¶11} On appeal, appellant challenges only the validity of his plea, raising two assignments of error,
{¶12} “I. APPELLANT‘S PLEAS OF NO CONTEST MUST BE VACATED BECAUSE THE TRIAL COURT COMPLETELY FAILED TO INFORM APPELLANT OF THE EFFECT OF THE PLEAS.
{¶13} “II. APPELLANT‘S PLEAS OF NO CONTEST MUST BE VACATED BECAUSE THE TRIAL COURT‘S EXPLANATION OF POST RELEASE CONTROL WAS INACCURATE AND CONFUSING INSOFAR AS APPELLANT WAS PLEADING TO AN UNCLASSIFIED OFFENSE AND WAS THEREFORE SUBJECT TO A SIGNIFICANTLY MORE RESTRICTIVE PAROLE REGIME.”
II.
{¶14} For ease of discussion, we shall start with appellant’s second assignment of error.
{¶15} Appellant argues in his second assignment of error, that his plea was not knowingly, intelligently, and voluntarily made because the trial judge informed him that he would be subject to a limited period of post release control and that a violation of
{¶16} Before accepting appellant’s plea at the plea hearing, the trial judge was bound by the requirements of
{¶17} “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:
{¶18} “(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.
{¶19} “(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.
{¶20} “(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.”
{¶21} In determining whether the trial court has satisfied its duties under
{¶22} In Clark, supra, the Ohio Supreme Court set forth the following procedure for a reviewing court, “When the trial judge does not substantially comply with
{¶24} However, appellant was also sentenced for tampering with evidence, a felony of the third degree.
{¶25} “(a) If a period of post-release control is imposed upon the offender and if the offender also is subject to a period of parole under a life sentence or an indefinite sentence, and if the period of post-release control ends prior to the period of parole, the offender shall be supervised on parole. The offender shall receive credit for post-release control supervision during the period of parole. The offender is not eligible for final release under section
{¶27} Despite the failure to substantially comply with
{¶28} In Clark, the court of appeals determined that the trial court erred in discussing post release control and that it provided a deficient explanation of the parole process. State v. Clark, Ashtabula App. No. 2006-A-0004, 2007-Ohio-1780, 2007 WL 1113968, ¶ 15-19. However, it held that the trial court substantially complied with the
{¶29} The Supreme Court held, despite “the failure to substantially comply with
{¶30} “The test for prejudice is ‘whether the plea would have otherwise been made.’ Id. Under the substantial-compliance standard, we review the totality of circumstances surrounding [the defendant‘s] plea and determine whether he subjectively understood [the effect of his plea].” See, State v. Sarkozy, 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509 at ¶ 19-20.
{¶31} In the case at bar, there is no evidence that would suggest appellant’s belief that he would be subject to post-release control, assuming he would be released,
I.
{¶33} Finally, in his first assignment of error, appellant argues that his plea was not knowingly, intelligently, and voluntarily made because the trial judge failed to inform him of the effect of his plea of no contest. Specifically, a court must advise a defendant that a no contest plea is not an admission of guilt, but is an admission of the truth of the facts alleged in the complaint and that the plea cannot be used in subsequent civil or criminal proceedings.
{¶34} We concede, however, that the “Admission of No Contest” form signed by appellant and filed on December 18, 2009 form did not precisely explain the difference between a guilty plea and a no contest plea, nor did the transcript of the change of plea and sentencing hearing indicate that the trial court informed appellant that such plea could not be used against him in a subsequent civil or criminal proceedings. Thus, to this extent, we agree that the trial court failed to fully comply with
{¶35} We find nothing in the record to suggest that the trial court‘s failure to fully inform appellant about the effect of his no contest plea prejudiced him, because this advice, had it been given, would have made the no-contest plea more attractive to appellant, not less. State v. Singleton, 169 Ohio App.3d 585, 590, 863 N.E.2d 1114, 1118, 2006-Ohio-6314 at ¶ 65.
{¶36} Appellant’s first assignment of error is overruled.
By Gwin, P.J., and
Delaney, J., concur
Hoffman, concurs and dissents
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
WSG:clw 0802
{¶38} I concur, albeit reluctantly, with the majority’s analysis and disposition of Appellant’s second assignment of error.
{¶39} I say reluctantly only to note my disagreement with the Ohio Supreme Court’s holding in Clark that substantially misinforming a defendant as to his or her sentence regarding post-release control is to be analyzed as if the trial court partially complied with
{¶40} I further question the availability of a
{¶42} I respectfully dissent from the majority’s disposition of Appellant’s first assignment of error. The majority concedes the transcript of the change of plea and sentencing hearing indicates the trial court did not inform Appellant of the effect of his no contest plea. (Majority Opinion at ¶34). Such colloquy is required by
{¶43} Accordingly, I would sustain Appellant’s second assignment of error. In so doing, I echo the words of admonition set forth by the Ohio Supreme Court in Clark:
{¶44} “Over the past few years, we have decided several cases on the application of
{¶45} “We urge trial courts to avoid committing error and to literally comply with
HON. WILLIAM B. HOFFMAN
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY