STATE OF OHIO, Plaintiff-Appellee, - v - JEFFREY ALLEN WILLARD, Defendant-Appellant.
CASE NO. 2020-T-0040
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
Decided: July 26, 2021
[Cite as State v. Willard, 2021-Ohio-2552.]
Criminal Appeal from the Court of Common Pleas, Trial Court No. 2019 CR 001106. Judgment: Affirmed in part, modified in part, and affirmed as modified.
OPINION
Dennis Watkins, Trumbull County Prosecutor; Ashleigh Musick and Ryan J. Sanders, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (For Defendant-Appellant).
{1} Appellant, Jeffrey Allen Willard (“Mr. Willard“), appeals his judgment of conviction from the Trumbull County Court of Common Pleas following his guilty pleas to having weapons while under disability, grand theft, grand theft of a motor vehicle, failure to comply with order or signal of police officer, escape, and obstructing official business.
{2} Mr. Willard presents two assignments of error, which we address in reverse order.
{3} In his second assignment of error, Mr. Willard contends he did not enter his guilty pleas knowingly, intelligently, or voluntarily because the trial court did not comply with
{5} In response to this court‘s sua sponte order for supplemental briefing, Mr. Willard contends under his first assignment of error that the trial court‘s restitution order for officer overtime was contrary to law because the Liberty Township Police Department was not a “victim” for the purposes of
{6} After a careful review of the record and pertinent law, we find as follows:
{7} (1) The trial court complied with
{8} (2) The trial court did not comply with
{9} (3) We clearly and convincingly find that the trial court‘s order of restitution for officer overtime is contrary to law because the Liberty Township Police Department was not a “victim” that suffered an “economic loss” pursuant to
{10} Thus, we affirm the trial court‘s judgment in part, modify in part, and affirm as modified.
Substantive and Procedural History
{11} In February 2020, the Trumbull County Grand Jury indicted Mr. Willard on the following six felony counts: having weapons while under disability, a felony of the third degree, in violation of
{12} Mr. Willard pleaded not guilty to the charges. He subsequently withdrew his former pleas of not guilty and entered written and oral pleas of guilty to all six charges.
{13} The parties jointly recommended concurrent prison terms of 24 months on count 1 (having weapons while under disability); 24 months on count 2 (grand theft); 18 months on count 3 (grand theft of a motor vehicle); 24 months on count 5 (escape); 24 months on count 6 (obstructing official business); and a mandatory consecutive prison term of 12 months on count 4 (failure to comply with order or signal of police officer), for an aggregate recommended prison term of 36 months.
{14} Among other notices, the plea agreement stated as follows:
{15} “I understand that court costs, restitution and other financial sanctions
{16} “I understand that if I am charged with multiple counts, the Court could impose consecutive sentences.”
Plea Hearing
{17} The trial court held a plea hearing and engaged in a colloquy with Mr. Willard. Mr. Willard indicated that he had read the plea agreement, had reviewed it with his attorney, and had no questions about it. He also confirmed his understanding that the sentence was not binding on the court and that the court could impose whatever sentence it deemed appropriate within the guidelines.
{18} The trial court advised Mr. Willard of the potential penalties associated with each of the six charges, including the ranges of potential prison terms, the maximum fines, and whether prison was mandatory. With respect to count 4 (failure to comply with order or signal of police officer), the trial court advised Mr. Willard that any prison term imposed was required to be served consecutive to any other prison term. Mr. Willard indicated that he understood the trial court‘s advisements and entered guilty pleas to all six charges.
{19} As a factual basis, the state indicated as follows:
{20} “[O]n or about the date referenced in the indictment, in Trumbull County, State of Ohio, officers with the Liberty Township Police Department got dispatched to a bar in their jurisdiction for a drunk and disorderly person. When they arrived they came into contact with the Defendant who was, in fact, drunk and disorderly. They attempted to take him into custody for that offense. He struggled with them. He struggled with the arrest.
{21} “[U]ltimately they were able to take him into custody. They placed him in the back of one of the Liberty Township cruisers. While they finished their paperwork, the Defendant climbed through the window from the back seat to the front seat and he was able to take off in the police cruiser.
{22} “The police cruiser contained a shotgun that was the property of the Liberty Township Police Department and the Defendant was under disability for Possession of Firearms.
{23} “[D]uring that time, the police attempted to stop this Defendant from leaving the scene, as he was in custody, and he refused to do so, driving off with the vehicle, ultimately crashing into another motor vehicle.
{24} “To prove these allegations the State would have brought forth the testimony of the arresting officers and witnesses at the scene.”
{25} The trial court determined that Mr. Willard made knowing, intelligent, and voluntary guilty pleas; had been informed of his constitutional rights; and understood the nature of the charges, the effect of changing his pleas, and the possible penalties. Accordingly, the court accepted Mr. Willard‘s guilty pleas and found him guilty.
{26} Mr. Willard waived a presentence investigation, and the matter proceeded immediately to sentencing.
Sentencing
{27} During the sentencing portion of the hearing, the trial court asked the state whether there were any issues of restitution. The state responded that the Liberty Township Police Department had submitted a victim response form requesting restitution of $10,000 as a result of alleged damage to the police cruiser and $4,500 in officer overtime as a result of the incident. The state indicated it was unaware until
{28} Following defense counsel‘s review of the form, the following exchange occurred:
{29} “[DEFENSE COUNSEL]: Your Honor, the only thing I can see, there was insurance on this vehicle, and they checked that it is, so I don‘t know that they‘re out $10,000. It‘s purely overtime.
{30} “[THE TRIAL COURT]: Are you able to verify that?
{31} “[THE STATE]: Well, Your Honor, it does say that there was insurance for the vehicle, so I would assume that they were made whole. Now, I have not received anything from the insurance company. * * * With regard to the overtime, it‘s not unheard of for police departments to ask for that, though it‘s rare. The overtime amount is $4,500.
{32} “[DEFENSE COUNSEL]: That‘s the first time I heard over time.
{33} “[THE TRIAL COURT]: You would agree with the defense that the insurance covers the car?
{34} “[THE STATE]: It‘s marked here, yes.
{35} “[THE TRIAL COURT]: So the issue then is the $4,500 overtime to find this Defendant after he stole the police car?
{36} “[THE STATE]: Correct.
{37} “[THE TRIAL COURT]: Anything else on the issue of restitution?
{38} “[THE STATE]: No.
{39} “[THE TRIAL COURT]: Counselor, is there anything you would like to say on behalf of Mr. Willard?
{40} “[DEFENSE COUNSEL]: Your Honor, we would just ask the Court to go along with the agreement for the time between the State and the Defense.”
{41} The trial court sentenced Mr. Willard to prison terms of 36 months on count 1 (having weapons while under disability); 24 months on count 2 (grand theft); 18 months on count 3 (grand theft of a motor vehicle); 36 months on count 4 (failure to comply with order or signal of police officer); 24 months on count 5 (escape); and 12 months on count 6 (obstructing official business).1 The trial court ordered the prison terms in counts 1, 2, and 3 to be served concurrent to each other; the prison terms in counts 5 and 6 to be served concurrent to each other but consecutive to the prison terms in counts 1, 2, and 3; and the prison term in count 4 to be served consecutive to all other counts, for an aggregate prison term of 96 months.
{42} The trial court stated that it had “reviewed the appropriate documentation” and ordered Mr. Willard to pay restitution to the Liberty Township Police Department in the sum of $4,500 “for overtime as necessary to apprehend” Mr. Willard.
{43} The hearing transcript indicates that following the trial court‘s pronouncement of sentence, Mr. Willard voiced his displeasure with the length of his aggregate prison sentence by using expletives and remarking, “That‘s not what I agreed to.”
{44} The trial court subsequently issued judgment entries memorializing Mr. Willard‘s guilty pleas and sentences.
{46} “[1.] The trial court abused its discretion when it ordered restitution for expenses incurred by the police department for officer overtime.
{47} “[2.] The trial court erred when [it] found that appellant‘s change of plea was made knowingly, intelligently and voluntarily.”
{48} Based on our consideration of the record and briefs, this court, sua sponte, ordered the parties to file supplemental briefs in relation to Mr. Willard‘s first assignment of error to address whether the Liberty Township Police Department constitutes a “victim” for purposes of
{49} We review Mr. Willard‘s assignments of error in reverse order.
Guilty Pleas
{50} In his second assignment of error, Mr. Willard contends he did not enter his guilty pleas knowingly, intelligently, or voluntarily because the trial court failed to comply with
Standard of Review
{51} This court reviews de novo whether the trial court accepted a plea in compliance with
Crim.R. 11(C)(2)
{52} “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.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{53}
{54} “In felony cases the court * * * shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following:
{55} “(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.
{56} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{57} “(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.” (Emphasis added.)
{58} The Supreme Court of Ohio most recently addressed appellate review of a
{59} According to the court, the focus in reviewing pleas is not “on whether the trial judge has ‘[incanted] the precise verbiage’ of the rule, * * * but on whether the dialogue between the court and the defendant demonstrates that the defendant understood the consequences of his plea.” (Emphasis added.) Id. at ¶ 12, quoting State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977).
{60} The court also stated that its prior caselaw had “muddled” the required analysis “by suggesting different tiers of compliance with the rule.” Id. at ¶ 17. For instance, “[t]he court has, in some instances, said that ‘partial’ compliance is sufficient absent a showing of prejudice from the failure to ‘substantially’ comply.” Id., quoting State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. Further, “the court has indicated that when a trial court has ‘substantially’ complied, the defendant must show prejudice from the failure to ‘strictly’ or ‘literally’ adhere to the rule.” Id., quoting State v. Nero, 56 Ohio St.3d 106, 107-108, 564 N.E.2d 474 (1990), and Stewart at 93.
{61} According to the court, “those formulations have served only to unduly complicate what should be a fairly straightforward inquiry. 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 a 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?” Id.
{62} With the above principles in mind, we apply the three-part Dangler test.
Consecutive Prison Terms
{63} Mr. Willard contends that the trial court did not comply with
{64} In State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), the Supreme Court of Ohio determined that a trial court complies with
{65} A plurality of the court recently questioned the applicability of Johnson under the current version of
{66} In Bishop, the court addressed the certified question of “[w]hether a criminal defendant on [postrelease control] for a prior felony must be advised, during his plea hearing in a new felony case, of the trial court‘s ability under
{67} In answering the certified question in the affirmative, the court distinguished Johnson, stating as follows:
{68} “[W]hat happened to the defendant in Johnson is a far cry from what happened to Bishop. Johnson was told of his potential sentences for each individual offense; the trial court just failed to tell Johnson the sentences for each offense could run consecutively. Here, the trial court told Bishop that he could receive a maximum sentence of 12 months for his fifth-degree-felony conviction. But the trial court did not tell Bishop that he was also subject to a separate consecutive 12-month sentence for his postrelease-control violation.” Id. at ¶ 16.
{69} This court and others have recognized the court‘s distinction in Bishop and have continued to apply Johnson. See, e.g., State v. Shepard, 11th Dist. Ashtabula No. 2019-A-0024, 2019-Ohio-3995, ¶ 44, fn. 1; State v. Roberts, 9th Dist. Medina No. 19CA0004-M, 2019-Ohio-4393, ¶ 6-7; State v. Ellis, 5th Dist. Coshocton Nos. 2019CA0014 and 2019CA0015, 2020-Ohio-1130, ¶ 9-12; State v. Nelson, 8th Dist. Cuyahoga Nos. 109072, 109073, and 109260, 2020-Ohio-6993, ¶ 45-51.
{70} Courts have also distinguished Johnson in the context of a “mandatory” consecutive prison term imposed pursuant to
{71}
{72} Here, the trial court properly explained the maximum individual prison terms for each of the six charges to which Mr. Willard pleaded guilty. In addition, as Mr. Willard acknowledges, the trial court expressly informed him of a mandatory consecutive prison term as a result of his guilty plea to count 4, where he was charged with failure to comply with order or signal of police officer, a felony of the third degree, in violation of
{73} Accordingly, since the trial court‘s discussion of Mr. Willard‘s prison terms was consistent with the applicable precedent, we conclude that the trial court complied with
Restitution
{74} Mr. Willard next contends that the trial court did not comply with
{75} There appears to be no case law discussing whether restitution constitutes part of the “maximum penalty involved” under
{76} In State v. Wilson, 8th Dist. Cuyahoga No. 102645, 2015-Ohio-5143, the Eighth District Court of Appeals appeared to presume that it does but determined that the defendant did not demonstrate prejudicial error. See id. at ¶ 11.
{77} In State v. Jones, 11th Dist. Lake No. 2012-L-072, 2013-Ohio-2616, this court suggested that restitution constitutes part of the maximum penalty involved by stating, in dicta, that “the best approach for all concerned is that, if a matter of restitution is not apparent from the nature of the plea and charges, there should be some understanding of the restitution parameters at the time of the plea. Otherwise, whether a plea was truly knowing or voluntary would be subject to question.” (Emphasis sic.) Id. at ¶ 17.
{78} The existing statutory authority supports a conclusion that restitution is part of the “maximum penalty involved” under
{79}
{80} The Supreme Court of Ohio has recognized that a restitution order imposed for a felony is part of an offender‘s sentence. State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, syllabus. “‘Sentence’ means the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.” (Emphasis added.)
{81} Thus, since an order of restitution is a “penalty” and a component of the defendant‘s sentence, we conclude that it constitutes part of the “maximum penalty involved” under
{82} The transcript demonstrates that the trial court did not make any reference to restitution during the plea hearing. The state contends that the trial court “substantially complied” with the rule because Mr. Willard‘s written plea agreement indicated that restitution may be imposed and because the trial court confirmed Mr. Willard‘s understanding of the written plea agreement during the plea colloquy.
{83} We note that in State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Supreme Court of Ohio held that a written plea form could be considered as part of the totality of the circumstances in determining whether a trial court substantially complied with the nonconstitutional requirements in
{84} Veney may not be consistent with Dangler, where the court indicated that the relevant focus is on the “dialogue between the court and the defendant” and whether it “demonstrates that the defendant understood the consequences of his plea.” (Emphasis added.) See id. at ¶ 12. The Dangler court also criticized its past use of “different tiers of compliance with the rule,” including the concept of substantial compliance. See id. at ¶ 17. Under Dangler, the extent of trial court‘s compliance is now relevant in determining whether a prejudice analysis is required. See id. at ¶ 15 (“[A] trial court‘s complete failure to comply with a portion of
{85} Further, while Mr. Willard‘s plea agreement stated that “restitution * * * may be imposed,” it contained no specificity to the present case. In fact, the transcript demonstrates that the state was not aware of the Liberty Township Police Department‘s request for restitution until after the plea/sentencing hearing began. Defense counsel was not informed of the police department‘s request until the sentencing portion of the hearing, which occurred after the trial court accepted Mr. Willard‘s guilty pleas. Therefore, Mr. Willard could not have understood that he could be ordered to pay restitution to the Liberty Township Police Department prior to the trial court‘s acceptance of his guilty pleas.
{86} Accordingly, we conclude that the trial court did not comply with
Prejudice Exceptions
{87} We next determine whether the trial court‘s error is “of a type that excuses a defendant from the burden of demonstrating prejudice.” Dangler at ¶ 17. We conclude that it is not.
{88} According to the Dangler court, “[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.” Id. at ¶ 13. This traditional rule is subject to two “limited” exceptions. See id. at ¶ 14-15.
{89} First, “[w]hen a trial court fails to explain the constitutional rights that a defendant waives by pleading guilty or no contest, [a reviewing court] presume[s] that the plea was entered involuntarily and unknowingly, and no showing of prejudice is required.” Id. at ¶ 14.
{90} Second, “a trial court‘s complete failure to comply with a portion of
{91} The court reiterated that “[a]side from these two exceptions, the traditional rule continues to apply: a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{92} In Dangler, the trial court informed the defendant that he would be required to register as a Tier III sex offender for the rest of his life but did not fully explain the obligations and restrictions that accompanied his status as a sex offender. Id. at ¶ 1. The Supreme Court of Ohio determined that neither of its exceptions to the prejudice requirements applied. Id. at ¶ 23.
{93} First, the “maximum-penalty advisement is not a constitutional requirement.” Id. Second, the trial court did not “completely fail” to comply with the “maximum-penalty-advisement requirement” in
{94} Here, Mr. Willard challenges the trial court‘s compliance with
{95} We acknowledge that the trial court made no mention of restitution during the plea colloquy. However, in the context of a non-prison sanction, we construe the second exception as applicable when the trial court makes no mention of a mandatory component of a defendant‘s sentence. See Sarkozy at ¶ 22 (mandatory postrelease control); State v. Rogers, 2020-Ohio-4102, 157 N.E.3d 142, ¶ 23 (12th Dist.) (mandatory fine); State v. Brown, 2020-Ohio-4474, 158 N.E.3d 972, ¶ 32 (8th Dist.) (mandatory sex offender requirements).
{96} As the dissenting judge in Rogers aptly noted, construing Dangler broadly would result in a defendant being excepted from the prejudice requirement upon a trial court‘s failure to mention any component of the defendant‘s potential sentence, even if that component was not actually imposed, was inconsequential, or was demonstratively known. See Rogers at ¶ 36, fn. 4 (Piper, J., dissenting). It would also require reversal of pleas that would not have been reversed prior to Dangler, which would be contrary to the simplicity that the Dangler court intended. See id. at ¶ 36 (Piper, J., dissenting).
{97}
Prejudice Analysis
{98} “The test for prejudice is ‘whether the plea would have otherwise been made.‘” Dangler at ¶ 16, quoting Nero at 108. Prejudice must be established “on the face of the record.” Id. at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, 11 N.E.3d 243, ¶ 26.
{99} Mr. Willard has not asserted the existence of prejudice, and we find none on the face of the record.
{100} Courts have held where a trial court fails to advise a defendant of some facet of a maximum penalty but otherwise complies with
{101} The trial court properly advised Mr. Willard regarding the maximum penalty involved other than restitution, and it did not actually impose restitution for vehicle damage. Therefore, Mr. Willard cannot demonstrate prejudice resulting from the trial court‘s failure to inform him about potential restitution for vehicle damage.
{102} In addition, there is nothing in the record indicating that Mr. Willard would not have entered his guilty pleas had the trial court informed him of potential restitution for officer overtime.
{103} For instance, after defense counsel reviewed the police department‘s restitution request during the sentencing hearing, he disputed the portion relating to vehicle damage. Neither defense counsel nor Mr. Willard disputed the portion relating to officer overtime. Mr. Willard also did not move to withdraw his guilty pleas either before or after sentencing. Based Mr. Willard‘s comments following the trial court‘s announcement of sentence, the record indicates that Mr. Willard was primarily concerned with the length of his aggregate prison sentence, not the restitution order.
{104} Accordingly, Mr. Willard has not established that he was prejudiced by the trial court‘s error.
{105} Mr. Willard‘s second assignment is without merit.
Restitution Order
{106} In his first assignment of error, Mr. Willard challenges the trial court‘s restitution order in the amount of $4,500 for police officer overtime.
Standard of Review
{107} This court reviews restitution orders pursuant to
{108} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{109} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{110} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
{111} “(b) That the sentence is otherwise contrary to law.”
{112} Here, none of the sections referenced in
Supplemental Briefing
{113} In his appellate brief, Mr. Willard‘s argument focuses on whether the amount of $4,500 for officer overtime bears a reasonable relationship to the loss the Liberty Township Police Department suffered.
{114} As indicated, this court, sua sponte, ordered the parties to file supplemental
Law and Analysis
{115}
{116} The statute does not define the term “victim.” This court has defined a “victim of a crime” as “the person or entity that was the ‘object’ of the crime.” State v. Pietrangelo, 11th Dist. Lake No. 2003-L-125, 2005-Ohio-1686, ¶ 15, quoting State v. Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106, ¶ 5.
{117} In Pietrangelo, we determined that “a government entity voluntarily advancing its own funds to pursue a drug buy through an informant is not one of the scenarios contemplated by
{118} In In re M.A., 2016-Ohio-1161, 61 N.E.3d 630 (11th Dist.), we determined police and fire departments did not qualify as “victims” pursuant to
{119} In this case, even assuming the Liberty Township Police Department incurred $4,500 in overtime costs as a result of Mr. Willard‘s offenses, we conclude, based on the foregoing authority, that such expenses were part of the department‘s normal operating costs. Therefore, the department was not a “victim” that suffered an “economic loss” pursuant to
{120} Accordingly, we clearly and convincingly find that the trial court‘s restitution order is contrary to law. The trial court‘s judgment is modified to remove the restitution order and is affirmed as modified.
{121} Mr. Willard‘s first assignment of error has merit.
{122} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas is affirmed in part, modified in part, and affirmed as modified.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.