State Of Ohio v. Moulton
| Citation | 2010 Ohio 4484 |
| Decision Date | 23 September 2010 |
| Docket Number | Case No. CR-519027,No. 93726,93726 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. ANGELA MOULTON DEFENDANT-APPELLANT |
| Court | United States Court of Appeals (Ohio) |
{¶ 1} Defendant-appellant, Angela Moulton ("Moulton") appeals her conviction. Finding some merit to her appeal, we affirm in part and reverse in part.
{¶ 2} In 2008, Moulton was charged in an 80-count indictment with one count of engaging in a pattern of corrupt activity, 49 counts of forgery, four counts of identity fraud, ten counts of receiving stolen property, seven counts of theft, andnine counts of tampering with government records. The state alleged that Moulton stole the mail of multiple people, applied for credit cards in their name, and charged over $14,000 of luxury items on the fraudulent credit cards.
{¶ 3} Moulton entered pleas of no contest to all 80 charges and the trial court sentenced her to an aggregate sentence of ten years in prison.
{¶ 4} Moulton now appeals, raising the following three assignments of error for our review:
{¶ 5} In the first assignment of error, Moulton argues the trial court did not properly advise her of the constitutional rights she was waiving by pleading no contest.
{¶ 6} Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest and provides in pertinent part:
{¶ 7} The duties of the trial court pursuant to Crim.R. 11 have been placed into two distinct categories: constitutional and nonconstitutional rights. See State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, citing State v. Higgs (1997), 123 Ohio App.3d 400, 402, 704 N.E.2d 308; State v. Gibson (1986), 34 Ohio App.3d 146, 147, 517 N.E.2d 990.
{¶ 8} To comply with the duties on Crim.R. 11 regarding constitutional rights, the court must explain to the defendant that she is waiving: (1) the Fifth Amendment privilege against self-incrimination, (2) the right to a trial by jury, (3) the right to confront one's accusers, (4) the right to compulsory process of witnesses, and (5) the right to be proven guilty beyond a reasonable doubt. State v. Nero (1990), 56 Ohio St.3d 106, 107-108, 564 N.E.2d 474, citing Boykin v. Alabama (1969), 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Failureto strictly comply with these constitutional requirements invalidates a guilty plea. See Higgs; State v. Stewart (1977), 51 Ohio St.2d 86, 88-89, 364 N.E.2d 1163; State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115, paragraph one of the syllabus. But "strict compliance" does not require a rote recitation of the exact language of the rule; rather, we focus on whether the "record shows that the judge explained these rights in a manner reasonably intelligible to the defendant." Ballard, at paragraph two of the syllabus.
{¶ 9} In the instant case, the trial court informed Moulton of her rights to counsel and a jury trial, and that the state had to prove her guilt beyond a reasonable doubt at a trial at which she could not be compelled to testify against herself. The court also determined that she had not been induced, forced, or threatened to plead no contest.
{¶ 10} Moulton's specific complaint is that the trial court did not adequately inform her of her constitutional rights to confront witnesses against her and to have compulsory process for obtaining witnesses in her favor.
{¶ 11} In State v. Cummings, Cuyahoga App. No. 83759, 2004-Ohio-4470, we stated that "[a]lthough a trial court need not specifically tell a defendant that he has the right to 'compulsory process, ' it must nonetheless 'inform a defendant that it has the power to force, compel, subpoena, or otherwise cause a witness to appear and testify on the defendant's behalf.'" Id. quoting State v. Wilson, Cuyahoga App. No. 82770, 2004-Ohio-499, at ¶ 16, appeal not allowed, 102 Ohio St.3d 1484, 2004-Ohio-3069, 810 N.E.2d 968.
{¶ 12} In this case, the trial court told Moulton that she had a right to "subpoena and call witnesses." We have previously held that the use of the word "subpoena" adequately informs the defendant of his right to compulsory process. State v. Parks, Cuyahoga App. No. 86312, 2006-Ohio-1352, appeal not allowed by 110 Ohio St.3d 1443, 2006-Ohio-3862, 852 N.E.2d 190; State v. Senich, Cuyahoga App. No. 82581, 2003-Ohio-5082; State v. Gurley (June 5, 1997), Cuyahoga App. No. 70586. Therefore, by stating Moulton had a right to subpoena witnesses, the trial court clearly informed her at the time of her plea of her right to compulsory process.
{¶ 13} We find that the trial court strictly complied with the requirements of Crim.R. 11(C) in accepting Moulton's waiver of her constitutional rights. The first assignment of error is overruled.
{¶ 14} In the second assignment of error, Moulton argues that the trial court incorrectly convicted her of two felony theft counts that, as indicted, were first-degree misdemeanors. The state concedes this assignment of error, but argues that any error was harmless because her sentences for these charges were suspended.
{¶ 15} Although not stated as such in her brief, Moulton is alleging a violation of her nonconstitutional rights. Ohio courts have determined that although literal compliance with Crim.R. 11(C)(2)(a) is preferred, substantial compliance is sufficient in regard to nonconstitutional rights. State v. Caplinger (1995), 105 Ohio App.3d 567, 572, 664 N.E.2d 959, citing State v. Johnson (1988), 40 Ohio St.3d 130, 532 N.E.2d 1295; State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474. Therefore, we review Moulton's claim to see if the trial court substantially complied with Crim.R. 11 by convicting her of two felony theft counts.
{¶ 16} Substantial compliance has been defined as whether "under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." Nero; see, also, State v. Veney, 120 Ohio St.3d 176, 179-180, 2008-Ohio-5200, 897 N.E.2d 621. In other words, when reviewing the totality of the circumstances, a court must determine whether the defendant understood the consequences of waiver. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51.
{¶ 17} A defendant who challenges her guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Nero. To demonstrate prejudice in the context of this case, Moulton must show that her guilty plea would otherwise not have been entered if the trial court had not erred. Id.
{¶ 18} Ohio requires the court to satisfy itself that the defendant knows the maximum penalty applicable to the offense involved. State v. Wilson (1978), 55 Ohio App.2d 64, 65-66, 379 N.E.2d 273. Although the trial court erred when it did not inform Moulton of the range of sentence for a first-degree misdemeanor, we find that Moulton has failed to show that she was prejudiced by the court'somission. See State v. Triplett, Cuyahoga App. No. 91807, 2009-Ohio-2571. The record suggests that Moulton was not prejudiced since the court stayed her sentence on those two counts. Moreover, since Moulton was willing to enter her pleas to numerous felony counts, undoubtedly she would have pled to the first-degree misdemeanor (with the lesser punishment) had the trial court properly presented her with that alternative. See State v. Burden (Oct. 20, 1998), Cuyahoga App. No. 54491. Thus, we hold Moulton's plea was made voluntarily and knowingly, and the error made by the trial court on the degree of the offense and penalty will inure to her benefit when those counts are remanded for resentencing.
{¶ 19} In counts 25 and 35 of the indictment,...
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State v. Moulton
...2010 Ohio 4484Statev.Moulton.2010-1936Supreme Court of OhioFebruary 16, 2011APPEALS NOT ACCEPTED FOR REVIEW Cuyahoga App. No. 93726, 2010-Ohio-4484. Lanzinger and Cupp, JJ., dissent and would accept the appeal and remand the cause for application of State v. Johnson, ___Ohio St.3d___, 2010-......