STATE OF OHIO v. DENNIS WICKS
No. 98236
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 4, 2013
2013-Ohio-1340
Boyle, P.J., Jones, J., and Rocco, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-552486
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Dennis Wicks, appeals his conviction, raising a single assignment of error:
The court did not substantially comply with Criminal Rule 11(C) when it failed to inform the defendant of the possible terms of imprisonment for a violation of
R.C. 2919.22(B)(1) before accepting the defendant‘s plea.
{¶2} We find merit to this assignment of error, vacate Wicks‘s guilty plea, and remand for further proceedings.
Procedural History and Facts
{¶3} In August 2011, Wicks was indicted on 14 counts: three counts of rape in violation of
{¶4} Wicks pleaded not guilty to the charges, and the matter proceeded to a jury trial. After the state‘s presentation of its third witness, the state and Wicks reached a plea agreement. Wicks pleaded guilty to a single count of rape as set forth in Count 1 and a single count of child endangering as set forth in Count 7, with both counts being amended to include both victims. The remaining counts of the indictment were nolled.
{¶5} Prior to accepting Wicks‘s guilty plea, the trial court engaged in a colloquy with Wicks, advising him of his constitutional rights, explaining the degree of felony for
{¶6} Upon Wicks‘s request, the trial court proceeded immediately to sentencing. The trial court imposed ten years on the rape count and seven years on the child endangering count, ordering that they run consecutively for a total of 17 years in prison.
Guilty Plea
{¶7} In his sole assignment of error, Wicks argues that his guilty plea was not knowingly, intelligently, and voluntarily made because the trial court failed to inform him of the maximum penalties involved prior to accepting his plea. We find merit to this assignment of error and vacate Wicks‘s guilty plea.
{¶8} Under
{¶10} Here, the trial court did not substantially comply with the requirements of
{¶11} Although the state concedes that the trial court failed to substantially comply with
{¶12} Based on the colloquy with the trial judge, Wicks easily could have believed that the maximum penalty that he would face was ten years because that was the only penalty discussed by the trial judge. Under such circumstances, we cannot say that his plea was knowingly, intelligently, and voluntarily entered. See Petitto at ¶ 13.
{¶13} Wicks‘s sole assignment of error is sustained.
{¶14} Wicks‘s convictions are reversed and his guilty plea is vacated.
{¶15} Judgment reversed and case remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., CONCURS;
KENNETH A. ROCCO, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
KENNETH A. ROCCO, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶16} Although I agree with the majority opinion insofar as it reverses Wicks‘s guilty plea to the count of child endangering, I respectfully dissent from its decision that Wicks‘s guilty plea to the rape count should also be reversed. I find the state‘s argument on this point persuasive for two reasons.
{¶17} First, a review of Wicks‘s appellate brief indicates the
The court did not substantially comply with Criminal Rule 11(C) when it failed to inform the defendant of the possible terms of imprisonment for a violation of
R.C. 2919.22(B)(1) before accepting the defendant‘s plea.
{¶19} Second, in my view, the majority opinion misinterprets State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988). In that case, the Ohio Supreme Court held in pertinent part as follows:
* * * [N]either the United States Constitution nor the Ohio Constitution requires that in order for a guilty plea to be voluntary a defendant must be told the maximum total of the sentences he faces, or that the sentence could be imposed consecutively. Therefore, even though the trial court here did not specifically state that such sentences could run consecutively, but did explain the maximum sentences possible, there was no deprivation of appellee‘s constitutional rights.
Although there has been no violation of the appellee‘s constitutional rights here, we must determine whether there has been prejudicial error committed by the trial court regarding the mandates of
Crim.R. 11(C) . We begin our analysis by considering the text of the rule itself. A review of such rule * * * indicates that it requires the trial court to explain before it accepts “the plea,” “the nature of the charge and of the maximum penalty involved.” (Emphasis added.)Crim.R. 11(C)(2)(a) . Upon its face the rule speaks in the singular. The term “the charge” indicates a single and individual criminal charge. So, too, does “the plea” refer to “a plea” which the court “shall not accept” until the dictates of the rule have been observed. Consequently, the term “the maximum penalty” which is required to be explained is also to be understood as referring to a single penalty. In the context of “the plea” to “the charge,” the reasonable interpretation of the text is that “the maximum penalty” is for the single crime for which “the plea” is offered. It would seem to be beyond a reasonable interpretation to suggest that the rule refers cumulatively to the total of all sentences received for all charges which a criminal defendant may answer in a single proceeding.* * *
Appellee did not argue in the trial court that had he known that he was subject to consecutive sentences, he would not have pled guilty. On appeal, in his brief, his argument was not that he was unaware of the consequences of his plea and that had he been aware he would not have pled guilty; instead, his argument was that the court did not comply with Crim.R. 11(C)(2) and so the plea was ipso facto involuntary.
(Underscoring added.)
{¶20} Because the Johnson decision thus specifically stated that charges should be considered individually, I find no basis upon which to hold that Wicks‘s plea to the rape count was somehow flawed by the trial court‘s failure to inform him of the maximum penalties related to the child endangering count. The decision in State v. Petitto, 8th Dist. No. 95276, 2011-Ohio-2391, does not support the majority opinion on this point; in that case, the trial court implied that the total penalty that could be imposed for both offenses to which the defendant pleaded guilty was actually the maximum penalty for only one of them.
{¶21} I find further support for my view in the language used in State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph three of the syllabus, which states that “[a]n appellate court may modify, remand, or vacate only a sentence for an offense that is appealed by the defendant * * * .” (Emphasis added.) The Supreme Court thus rejected the notion of a “sentencing package.”
{¶22} In like manner, as in most cases, the record of this case shows that the trial court treated each of the counts individually; the trial court explained all of the penalties involved with respect to the rape count before proceeding to the next one. The trial
{¶23} For the foregoing reasons, although I concur with the majority opinion that Wicks‘s conviction for child endangering must be reversed, I dissent with respect to that portion of the majority opinion‘s decision that reverses Wicks‘s conviction for rape.