State v. Fry-McMurray
| Decision Date | 21 September 2016 |
| Docket Number | No. 15 MA 0111.,15 MA 0111. |
| Citation | 72 N.E.3d 9,2016 Ohio 6998 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Wendy FRY–McMURRAY, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, Youngstown, OH, for plaintiff-appellee.
Edward Czopur, Youngstown, OH, for defendant-appellant.
{¶ 1} Defendant-appellant, Wendy A. Fry–McMurray, appeals from a Mahoning County Common Pleas Court sentencing judgment entry filed June 8, 2015.
{¶ 2} Appellant was indicted on July 12, 2012, for aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a)(B)(1)(2), a felony of the third degree; driving under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(ii), a misdemeanor of the first degree; driving under the influence of alcohol in violation of R.C. 4511.19(A)(1)(d)(G)(1)(a)(ii), a misdemeanor of the first degree; and failure to yield the right of way in violation of R.C. 4511.42(A), a minor misdemeanor.
{¶ 3} As a result of a plea agreement, the aggravated vehicular assault charge was reduced to eliminate mandatory jail time and one of the driving under the influence charges was dismissed. On March 10, 2015, Appellant plead guilty to the reduced charges of aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b)(C)(2), a fourth degree felony; operating a vehicle while impaired in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(ii), a first degree misdemeanor; and failure to yield the right of way in violation of R.C. 4511.42(A), a minor misdemeanor.
{¶ 4} Appellant was sentenced to six months in the Mahoning County Justice Center with all but 10 days suspended and three years of community control to be monitored by the Adult Parole Authority. Appellant was ordered to obtain an alcohol assessment, follow treatment recommendations, engage a sponsor and home group, not drink alcohol, and perform 200 hours of community service. Appellant's driver's license was suspended for five years.
{¶ 5} Appellant filed a timely notice of appeal on July 8, 2015.
{¶ 6} Appellant's sole assignment of error states:
APPELLANT WAS DENIED DUE PROCESS OF LAW, AS GUARANTEED BY BOTH THE UNITED STATES AND OHIO CONSTITUTIONS, BECAUSE HER GUILTY PLEA WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY DUE TO THE TRIAL COURT'S ERROR IN FAILING TO ADVISE AS TO A DRIVER'S LICENSE SUSPENSION.
{¶ 7} Appellant complains that the trial court's failure to orally explain to her at her plea hearing the driver's license suspension caused her plea to be not knowingly, intelligently, and voluntarily entered even though the plea agreement Appellant signed reflects that her license could be suspended for six months to 10 years.
State v. Elmore, 7th Dist. No. 08–JE–36, 2009-Ohio-6400, 2009 WL 4547924, ¶ 8 quoting State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450.
{¶ 8} The United States Supreme Court explained "that in order for a reviewing court to determine whether a guilty plea was voluntary, the United States Constitution requires the record to show that the defendant voluntarily and knowingly waived his constitutional rights." State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990) citing Boykin v. Alabama, 395 U.S. 238, 242–243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
{¶ 9} Crim.R.11(C)"was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review. State v. Stone (1975), 43 Ohio St.2d 163, 167–168, 72 O.O.2d 91, 94, 331 N.E.2d 411, 414 ; State v. Stewart (1977), 51 Ohio St.2d 86, 92–93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167 ; and State v. Scott (1974), Ohio App.2d 139, 144, 69 O.O.2d 152, 155, 318 N.E.2d 416, 420." Nero at 107, 564 N.E.2d 474.
{¶ 10} There is a distinction between constitutional rights and non-constitutional rights when one enters a Crim.R.11 plea. The first time the Supreme Court had the opportunity to speak to Crim.R. 11(C) was in State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 601 (1976). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981). The Ohio Supreme Court explained in Ballard that Caudill said that trial courts must "adhere scrupulously" to the provisions of Crim.R.11(C)(2). Ballard, 475, 423 N.E.2d 115. In Ballard, the Supreme Court explained that this standard was short-lived because the Supreme Court subsequently held in Stewart that a trial court only need substantially comply with the provisions of Crim.R.11(C)(2) that involve non-constitutional rights. Thus, there is a distinction in Crim.R.11 between constitutional and non-constitutional rights and what is required for each when a plea is made under Crim.R.11. Nero; Elmore.
{¶ 11} Crim.R.11(C)(2)(c) sets forth the constitutional rights a defendant waives by entering a guilty plea. With regard to those rights, this Court has explained:
A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant's plea is invalid. (Crim.R.11(C)(2)(c), applied.)
Elmore ¶ 9 quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus.
{¶ 12} In addition to constitutional rights, Crim.R.11(C)(2) is concerned with non-constitutional rights. Crim.R.11(C)(2) provides, in pertinent part:
{¶ 13} 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 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.
{¶ 14} Appellant does not assert that the trial court failed to comply with the mandates of Crim.R.11 regarding Appellant's constitutional rights. Rather, Appellant asserts that the trial court's failure to orally warn her of the possibility of a driver's license suspension is a violation of the Crim.R.11(C)(2)(a) requirement that Appellant understand the maximum penalty involved.
{¶ 15} Appellant does not deny that she signed a written plea agreement on March 10, 2015, which stated, in pertinent part, that Appellant recognized that among the penalties that could be imposed was "IN THIS CASE A DRIVERS LICENSE SUSPENSION FROM 6 MONTHS TO FIVE YEARS." Also, on March 10, 2015, during the plea hearing, the following exchange took place:
(Plea Hearing, 8–9).
{¶ 16} However, at no point during the plea hearing did the trial court orally advise Appellant that part of the sentence could include the suspension of her driver's license. Appellant now complains that the failure by the trial court to orally explain the driver's license suspension was a violation of her due process rights as it caused her guilty plea to be not knowing, intelligent and voluntary.
{¶ 17} With regard to what is required when addressing the non-constitutional rights under Crim.R.11, the Ohio Supreme Court has explained:
Literal compliance with Crim.R.11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance.
Nero at 108, 564 N.E.2d 474. The Supreme Court continued:
Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.
{¶ 18} Where a trial court has not substantially complied, a reviewing court must decide if there was a complete failure to comply or only a partial failure to comply. Where there has been a partial failure, then the plea should only be vacated if defendant demonstrates a prejudicial effect:
When 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. 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. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A) ; see also [State v. ] Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is "whether the plea would have otherwise been made." Nero at 108, 564 N.E.2d 474, citing Stewart, id. If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph two of the syllabus. "A complete failure to comply with the rule does not implicate an analysis of prejudice." Id. at ¶ 22.
State v. Clark, 893 N.E.2d 462, 119 Ohio St.3d 239, 2008-Ohio-3748 (Ohio 2008)...
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