State Of Ohio v. Moulton, No. 93726

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtLARRY A. JONES, J.
Citation2010 Ohio 4484
Decision Date23 September 2010
Docket NumberCase No. CR-519027,No. 93726

2010 Ohio 4484


No. 93726
Case No. CR-519027

Court Of Appeals Of Ohio
Eighth Appellate District
County Of Cuyahoga

RELEASED: September 23, 2010
JOURNALIZED: September 23, 2010

ATTORNEYS FOR APPELLANT Robert L. Tobik Cuyahoga County Public Defender BY: David M. King Assistant Public Defender

ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor BY: James D. May Assistant Prosecuting Attorney


Criminal Appeal from the Cuyahoga County Court of Common Pleas

BEFORE: Jones, J., McMonagle, P.J., and Dyke, J.

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{¶ 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, and

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nine 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:

"I. The trial court erred when it did not advise Angela Moulton she was waiving certain constitutionally guaranteed trial rights by pleading guilty in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Section 10 of the Ohio Constitution and Crim.R. 11.

"II. The court erred in finding Ms. Moulton guilty and sentencing her under offense[s] for which she was not under indictment.

"III. The offenses of tampering with records are allied offenses of similar import with the offense of engaging in a pattern of corrupt activity and thus should have been merged into a single count of conviction."
No Contest Plea

{¶ 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:

"(2) In felony cases the court may refuse to accept a plea of guilty or 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:

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"(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.

"(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.

"(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."

{¶ 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. Failure

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to 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.

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{¶ 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.

Theft Convictions

{¶ 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

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(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...

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