State v. Hartsook

• Decision Date: 13 October 2014
• Docket Number: No. CA2014–01–020.,CA2014–01–020.
• Citation: 21 N.E.3d 617
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Victor A. HARTSOOK, Defendant–Appellant.
• Court: Ohio Court of Appeals

21 N.E.3d 617

STATE of Ohio, Plaintiff–Appellee

v.Victor A. HARTSOOK, Defendant–Appellant.

No. CA2014–01–020.

Court of Appeals of Ohio, Twelfth District, Warren County.

Oct. 13, 2014.

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, Lebanon, OH, for plaintiff-appellee.

Thomas G. Eagle, Lebanon, OH, for defendant-appellant.

OPINION

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Victor A. Hartsook, appeals his conviction in the Warren County Court of Common Pleas for operating a vehicle while intoxicated (“OVI”). For the reasons discussed below, we affirm the conviction.

{¶ 2} Hartsook was indicted in June 2013 for two OVI offenses, one in violation of R.C. 4511.19(A)(1)(a) and the other in violation of R.C. 4511.19(A)(1)(h). Hartsook had previously been convicted of a felony OVI under R.C. 4511.19(A)(1), so each count was a felony of the third degree. Additionally, consistent with R.C. 2941.1413, both offenses included a specification that Hartsook had been convicted of or pled guilty to five or more equivalent OVI offenses in the past 20 years. He entered a plea of not guilty to all charges.

{¶ 3} In October 2013, Hartsook waived his right to a jury trial, and the cause was set for a bench trial. Later that month, Hartsook sought to change his plea to guilty for one count of OVI and the accompanying specification. In return, the state dismissed the second OVI charge and the second specification. No promises were made by the state regarding the sentences Hartsook would face for his offenses.

{¶ 4} Leading up to Hartsook's change of plea hearing, there was miscommunication regarding the sentences he could potentially receive. The plea form rightly indicated that the maximum prison term for the underlying OVI charge itself was 36 months, and was not mandatory. The plea form also rightly indicated that the maximum prison term for the specification was five years. However, the form incorrectly indicated that a mandatory prison term for the specification was “N/A.”

{¶ 5} During the change of plea hearing, the trial court indirectly corrected the error on the plea form by properly advising Hartsook that he faced a mandatory prison term for the specification of at least one year. However, in so doing the trial court incorrectly led Hartsook to believe that there was also a 30–day mandatory prison term for the underlying OVI charge, when in fact the underlying charge carried no mandatory prison term. The trial court accurately recited the maximum sentences for the offense and the specification as 36 months and five years, respectively.

{¶ 6} Regardless of the conflicting information regarding the mandatory portion of his sentence, Hartsook affirmed during his Crim.R. 11 plea colloquy that he understood the nature of the charges against him and the implications of his plea. Accordingly, the trial court found that Hartsook's plea was knowingly, intelligently, and voluntarily made, and found him guilty of the OVI charge and the accompanying specification. The trial court allowed Hartsook to remain free on bail until his sentencing hearing in November 2013, but warned him that any further misconduct would lead to a more severe sentence.

{¶ 7} Despite the trial court's warning, Hartsook did not appear at his sentencing hearing. When he was arrested and brought before the court in December 2013, Hartsook was sentenced to consecutive prison terms of two years for the OVI and four years for the specification, for an aggregate prison term of six years. He now appeals, raising two assignments of error.

{¶ 8} Assignment of error No. 1:

{¶ 9} THE TRIAL COURT ERRED IN ACCEPTING DEFENDANT'S GUILTY PLEA.

{¶ 10} In his first assignment of error, Hartsook argues that his plea was not knowing, intelligent, and voluntary because he was given inconsistent, conflicting, and incorrect information about the mandatory sentences he faced. Hartsook notes that the plea form incorrectly indicates that a mandatory prison term was “N/A” for the OVI specification, yet the trial court told him the specification carried a mandatory prison term. He also points out that the court told him the minimum mandatory sentence was one year for the specification and 30 days for the underlying OVI charge, for an aggregate of 13 months. He asserts that he really faced a minimum mandatory sentence of two years.¹ Hartsook claims that had he been provided with accurate information, “different considerations would be made, and a plea might not even be made at all.”

{¶ 11} The defendant's plea in a criminal case is invalid if not made knowingly, intelligently, and voluntarily. State v. Ackley, 12th Dist. Madison No. CA2013–04–010, 2014-Ohio-876, 2014 WL 902826, ¶ 8, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States and Ohio Constitutions. State v. Hendrix, 12th Dist. Butler No. CA2012–12–265, 2013-Ohio-4978, 2013 WL 6021170, ¶ 8.

{¶ 12} Crim.R. 11(C) facilitates an accurate determination as to whether a plea to a felony charge meets these criteria by ensuring an adequate record for review. State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Crim.R. 11(C)(2) requires the trial court to hold a plea colloquy with the defendant for the purposes of:

(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.

In conducting this colloquy, the trial judge must convey accurate information to the defendant so that the defendant can understand the consequences of his decision and enter a valid plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 26.

{¶ 13} A guilty plea is invalid if the trial court does not strictly comply with Crim.R. 11(C)(2)(c), which requires the court to verify the defendant understands the constitutional rights that he is waiving. Ackley at ¶ 9, citing Veney at ¶ 31. But a court need only substantially comply with the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Ackley at ¶ 9. Under the substantial compliance standard, the appellate court must review the totality of the circumstances surrounding the defendant's plea and determine whether he subjectively understood the effects of his plea. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 20.

{¶ 14} It is undisputed that the trial court strictly complied with the constitutional requirements of Crim.R. 11(C)(2)(c). With respect to the required notifications regarding constitutional rights, the court advised Hartsook that a guilty plea would waive his rights to have the matter tried before the court, to require the state to prove his guilt beyond a reasonable doubt, to confront witnesses against him, and to subpoena witnesses in his defense. The court also noted that Hartsook had previously waived his right to a trial by jury. Hartsook affirmed that he understood the rights he was waiving.

{¶ 15} However, we find that the court failed to substantially comply with the nonconstitutional notifications of Crim.R. 11(C)(2)(a) and (b). The miscommunication regarding the mandatory portion of Hartsook's potential sentence was too significant to allow the conclusion that he subjectively understood the effects of his plea. Indeed, Hartsook's plea form suggested there was no mandatory prison term for either the specification or the underlying OVI charge. Yet during the plea hearing, the trial court advised Hartsook that there was a mandatory prison term for both. As will be discussed below, neither instance was accurate.

{¶ 16} But our analysis does not end there. If, as here, the appellate court finds the trial court did not substantially comply with Crim.R. 11(C)(2)(a) and (b), then it must make a further determination as to whether the trial court at least partially complied. Hendrix, 2013-Ohio-4978, 2013 WL 6021170, at ¶ 11, citing Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, at ¶ 32. If the trial court wholly failed to comply, the plea must be vacated. Sarkozy, 117 Ohio St.3d 86, 881 N.E.2d 1224, at ¶ 22. If, on the other hand, the trial court partially complied, then the plea will not be vacated unless the defendant can show he was prejudiced by the extent to which the trial court was in noncompliance. Hendrix at ¶ 11.

{¶ 17} We find that although it did not substantially comply, the trial court did at least partially comply with Crim.R. 11(C)(2)(a) and (b). The trial court accurately informed Hartsook of the maximum sentence he could receive: the change of plea form and the plea colloquy correctly indicated that the OVI charge carried a maximum 36–month prison term and the specification carried a maximum five-year prison term, for an aggregate maximum of up to eight years. Moreover, the trial court made it clear in the plea colloquy that it was required to run the mandatory prison term for the specification consecutive to any time it elected to give Hartsook on the underlying OVI charge. Finally, the trial court properly noted that after Hartsook's prison sentence, the Adult Parole Authority also had the option of...