State v. Brazo
| Decision Date | 09 November 2021 |
| Docket Number | 2021 CA 0016 |
| Citation | 2021 Ohio 4006 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. STEPHEN BRAZO Defendant-Appellant |
| Court | Ohio Court of Appeals |
2021-Ohio-4006
STATE OF OHIO Plaintiff-Appellee
v.
STEPHEN BRAZO Defendant-Appellant
No. 2021 CA 0016
Court of Appeals of Ohio, Fifth District, Licking
November 9, 2021
Criminal Appeal from the Court of Common Pleas, Case No. 19 CR 00951.
For Plaintiff-Appellee WILLIAM C. HAYES, PROSECUTING ATTORNEY, PAULA M. SAWYERS, ASSISTANT PROSECUTOR
For Defendant-Appellant JAMES A. ANZELMO
Hon. Craig R. Baldwin, P. J. Hon. W. Scott Gwin, J. Hon. John W. Wise, J.
OPINION
Wise, J.
{¶1} Defendant-Appellant Stephen Brazo appeals his conviction and sentence on one count of aggravated possession of drugs entered in the Licking County Court of Common Pleas following a guilty plea.
STATEMENT OF THE FACTS AND CASE
{¶2} The relevant facts and procedural history are as follows:
{¶3} On November 21, 2019, Appellant Stephen Brazo was indicted on one count of Aggravated Possession of Drugs (Methamphetamine), a violation of R.C. §2925.11 (A)(C)(1)(c), a felony of the 2nd degree. The case was scheduled for jury trial on October 8, 2020.
{¶4} On October 8, 2020, the date scheduled for trial, Appellant arrived approximately an hour and a half late. At that time, Appellant indicated that he wished to plead guilty to the charge.
{¶5} Appellant completed a plea form which his attorney reviewed with him and which he stated that he understood. The trial court reviewed with Appellant the rights that he was giving up by pleading to the Indictment, including the right to a trial, the right to have the State prove the case beyond a reasonable doubt, the right to confront his accuser, the right to call and question and cross-examine witnesses, and the right to testify himself if he chose to. (T. at 8-11). When Appellant hesitated during his plea of guilty, the trial court made it clear that he was entitled to a jury trial if he so desired. (T. at 12-13). After advising Appellant of that fact, the trial court asked Appellant if he wanted to plead guilty to the charge and Appellant stated in the affirmative. (T. at 13).
{¶6} The State presented the following recitation of the facts:
{¶7} On May 2, 2019, Officer Walker of the Pataskala Police Department was operating a marked Pataskala Police Cruiser on routine patrol near South Township Road and Broad Street in Pataskala, Licking County, Ohio. (T. at 14). The officer pulled behind a silver Dodge Pickup Truck and ran the license plate, which came back as expired as of February 2019. Id. The officer noticed a white validation sticker on the license plate indicating that the vehicle was valid until 2020. Id. The vehicle turned into the Duke and Duchess Gas Station located at 110 West Broad Street in Pataskala, Licking County, Ohio. Id. Contact was made with the driver of the vehicle, Stephen Brazo, hereinafter the Appellant. Id. The passengers were identified as co-Defendants Benjamin Johnson (rear passenger) and Alicia Clark (front seat passenger). Id. A close inspection of the white validation sticker revealed that the sticker belonged to a vehicle with license plate HMY3687 (returning to a silver Pontiac owned by Appellant), whereas the valid number for the silver Dodge Pickup plate was HIG5043. Id. Due to the fictitious plate validation sticker, the occupants were removed and the vehicle inventoried for towing. Id. The officer issued the traffic citation for fictitious plates, while a second officer performed an inventory search of the vehicle. Id. Officers located two small plastic baggies containing a crystallike substance between the front driver and passenger seats and two containers with digital scales and a smoking pipe in the same location. Id. Officers also located a gray plastic baggie containing a large amount of methamphetamine under the right rear passenger seat where co-Defendant Johnson had been seated. Id. Digital scales and smoking paraphernalia were recovered from the vehicle. Id. The drugs were tested and determined to be 98.275 grams of methamphetamine, a schedule II controlled substance. Id. Bulk amount for methamphetamine is 3 grams. Id. The Appellant was interviewed and
stated that Johnson had told him where he could buy some cocaine and that he took Johnson to a hotel where he assumed Johnson had scored. Id. Appellant further admitted that the drugs inside of the vehicle were his. Id.
{¶8} After Appellant was advised of the facts of the case as set forth above Appellant was advised as to the nature of the charge against him and the maximum penalty he could face if he pled to the charge. (T. at 6-10, 14-16).
{¶9} Appellant agreed with the facts as presented by Appellee. (T. at 16).
{¶10} The trial court ultimately found Appellant guilty based on his plea, and sentenced Appellant to three (3) to four and a half (4 ½) years in prison, pursuant to the Reagan Tokes Law. (T. at 25). (See Oct. 8, 2020 Judgment Entry).
{¶11} Appellant then moved to withdraw his guilty plea. The trial court denied Appellant's motion to withdraw.
{¶12} Appellant now appeals, raising the following assignments of error:
ASSIGNMENTS OF ERROR
{¶13} "I. STEPHEN BRAZO DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.
{¶14} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING BRAZO'S MOTION TO WITHDRAW HIS PLEA, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.
{¶15} "III. AS AMENDED BY THE REAGAN TOKES ACT, THE REVISED CODE'S SENTENCES FOR FIRST AND SECOND DEGREE QUALIFYING FELONIES VIOLATES THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO.
{¶16} "IV. THE TRIAL COURT SENTENCED BRAZO TO AN INDEFINITE PRISON TERM IN CONTRAVENTION OF THE SENTENCING STATUTES, IN VIOLATION OF BRAZO'S RIGHTS TO DUE PROCESS.
{¶17} "V. STEPHEN BRAZO RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."
I.
{¶18} In his first assignment of error, Appellant argues his plea of guilty was not knowingly, intelligently or voluntarily made. We disagree.
{¶19} Crim.R. 11(C)(2) sets forth a trial court's duties during a felony plea hearing to address the defendant personally, to convey certain information to the defendant, and prohibits acceptance of a guilty plea or no contest without performing these duties. State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428, ¶ 10. The rule specifically provides:
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 either in-person or by remote contemporaneous video in conformity with Crim.R. 43(A) and doing all of the following:
(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.
{¶20} Crim.R. 11(C)(2) contains both constitutional advisements with which a trial court must strictly comply and non-constitutional advisements with which a trial court must substantially comply. In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766 (2018) the Supreme Court of Ohio stated at paragraph 19:
A trial court need only substantially comply with the nonconstitutional advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. But "[w]hen the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially
complied or failed to comply with the rule." (Emphasis sic.) Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 32. "If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect." Id. But if the trial court completely failed to comply with the rule, the plea must be vacated. Id. Complete failure" 'to comply with the rule does not implicate an analysis of prejudice.'" Id., quoting State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
{¶21} Here, Appellant argues the trial court failed to ensure that he subjectively understood that his guilty plea was a complete admission of guilt.
{¶22} Upon review, we find Appellant's arguments unpersuasive.
{¶23} At the change of plea hearing, upon inquiry by the trial court, Appellant acknowledged that by pleading guilty he was making a complete admission that he had committed the acts charged in the Indictment. (T. at 7). The trial court reviewed with Appellant the rights that he was giving up by pleading guilty to the Indictment, including the right to a trial, the right to confront and cross-examine witnesses, the right to present his own evidence, issue subpoenas to compel witnesses and to testify on...
To continue reading
Request your trial