State v. Johnson

• Decision Date: 27 March 1989
• Docket Number: No. 88-232,88-232
• Citation: 40 Ohio St.3d 130,532 N.E.2d 1295
• Parties: The STATE of Ohio, Appellant, v. JOHNSON, Appellee.
• Court: Ohio Supreme Court

Page 130

40 Ohio St.3d 130

532 N.E.2d 1295

The STATE of Ohio, Appellant, v. JOHNSON, Appellee.

No. 88-232.

Supreme Court of Ohio.

Submitted Oct. 5, 1988.

Decided Dec. 28, 1988.

Certiorari Denied March 27, 1989.

See 109 S.Ct. 1547.

Syllabus by the Court

Failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary.

On January 2, 1987, Roger Johnson, defendant-appellee herein, was charged by indictment with one count of aggravated robbery which included a firearm specification, and unlawful possession of dangerous ordnance. A plea of not guilty was entered. On February 9, 1987, appellee was additionally charged by a bill of information with one count each of robbery and forgery. On the same day, he appeared in open court with counsel and, as a result of plea negotiations, pled guilty as charged to robbery, forgery and aggravated robbery. In exchange for these guilty pleas, the state agreed to dismiss the second count of the indictment which charged unlawful possession of dangerous ordnance, to delete all reference to the firearm in count one, and to dismiss the firearm specification to that count.

The trial court, prior to accepting the guilty plea and pronouncing sentence, personally addressed appellee, setting forth his constitutional and statutory rights which he was waiving by entering a plea. Appellee, who had completed twelve years of schooling, repeatedly expressed an understanding of the implications of each plea. Further, the trial court, upon the record, ascertained that appellee understood the nature of the charges against him, all in accordance with Crim.R. 11(C), and concerning which appellee herein stated no disagreement. Also, the trial court explained to appellee the maximum penalty involved for each of the offenses to which he had entered his plea of guilty, doing so in the following colloquy:

"THE COURT: Aggravated felony one, no prior. Is that the first one?

"MR. COUGHLIN: Yes. Aggravated robbery without a firearm is an aggravated felony of the first degree.

"THE COURT: Sir, that carries a possible penalty of five, six, seven, eight, nine, ten to twenty-five years and a possible fine. Do you understand that?

"THE DEFENDANT: Yes, sir.

"MR. COUGHLIN: The robbery charge is an aggravated felony of the second degree.

"THE COURT: And sir, that carries a possible penalty of three, four, five, six, seven, eight, to fifteen years.

"MR. COUGHLIN: And the forgery charge is a felony of the fourth degree.

"THE COURT: And that, sir, carries a possible penalty of six months, one year, one and one-half years, possible fine. Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: Do you understand all the possible penalties--and I presume that these are now probationary.

"MR. COUGHLIN: That's correct.

"THE COURT: All right, sir. Let the record show that the Court is of the opinion that the defendant understands the possible penalties involved."

After informing the defendant of his constitutional rights that he would be foregoing, the trial court stated as follows:

"[THE COURT]: Now, there's a plea form that Mr. Rife has in his hand. I notice that you were going over them a minute ago. Please look them over and if you have any questions, why you should ask them.

"(Whereupon, the defendant affixed his signature to the appropriate forms.)

"THE COURT: Any questions, sir?

"THE DEFENDANT: No, sir.

"THE COURT: The record should reflect that the defendant and his counsel have signed the three separate entries of waiver and plea, two on the information and one on the indictment. The Court is now signing the forms.

"Now, sir, what is your plea to these three separate charges?

"THE DEFENDANT: Guilty.

"THE COURT: The Court will accept the pleas of guilty and refer the cases to the Adult Probation Department of this county for a pre-sentence investigation and report."

Neither the appellee nor his counsel objected at this point to any informative commentary by the trial court. Following receipt of the presentence report, the court pronounced sentence upon appellee, imposing a term of incarceration of one year for the forgery count, an indefinite term of five to fifteen years' imprisonment for the robbery count, and a term of eight to twenty-five years for the aggravated robbery count. All three sentences were ordered to be served consecutively. There also was no objection at that time to the sentences given.

Appellee appealed the convictions to the Court of Appeals for Montgomery County assigning as errors that the trial court had erred in failing to address him personally pursuant to Crim.R. 11(C), and had particularly failed to advise him of the maximum sentence possible as required by Crim.R. 11(C)(2)(a).

The court of appeals reversed the convictions. It found that although the trial court had properly personally addressed appellee on the other mandates of Crim.R. 11(C), nevertheless in that court's view, appellee had not been advised as to the maximum sentence possible for such violations because the trial court failed to inform him that the sentences may be imposed to run consecutively, rather than concurrently. The appellate court held that "without some explanation of the difference between consecutive and concurrent sentences, he would have no means of ascertaining the maximum penalty, within given limits, that might be anticipated."

The court of appeals, finding its decision in this respect to be in conflict with the decisions in State v. Van Horn (Dec. 4, 1981), Hamilton App. No. C-800042, unreported, and State v. Reisinger (June 27, 1984), Hamilton App. No. C-830673, unreported, certified the record of the case to this court for review and final determination.

Lee C. Falke, Pros. Atty., and Carley J. Ingram, Dayton, for appellant.

J. Allen Wilmes, Dayton, for appellee.

HOLMES, Justice.

The basic question presented to this court upon appeal is whether the criminal defendant, appellee herein, in entering his bargained plea of guilty to crimes charged, has done so with all protections made available to him by way of constitutional provisions or Criminal Rule. Most particularly involved here is whether the sentencing information given to appellee allowed him to make an informed plea of guilty.

As previously stated, at the sentencing hearing, neither appellee nor his counsel objected to the manner in which sentencing was pronounced. Neither expressed to the judge any misunderstanding which appellee may have had as to the total maximum sentence that the law provided. There was no assertion made that the plea of guilty was not "knowingly" given as to all sentencing possibilities. At that point in time, if the appellee felt that he had been misinformed or not fully informed of his rights in the sentencing process, he could have, through counsel, availed himself of Crim.R. 32.1 and sought to withdraw his plea after sentencing, and such should be granted where manifest injustice is shown. However, even though not brought to the attention of the trial court, appellate courts will notice and rectify plain errors affecting substantial rights, particularly claimed denials of constitutional rights. See, e.g., State v. Rogers (1987), 32 Ohio St.3d 70, 512 N.E.2d 581, and In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, paragraph one of the syllabus.

In Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the United States Supreme Court held that the Constitution requires that in order for a reviewing court to determine that a guilty plea was voluntarily made, the record must show that the defendant voluntarily and knowingly waived three rights: the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment, the right to trial by jury, and the right to confront one's accusers.

These constitutional guarantees, along with other requirements, are set forth in Ohio's Crim.R. 11(C)(2). This rule instructs the trial court that before accepting a plea of guilty or a plea of no contest, the court must do the following:

"In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:

"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved and, if applicable, that he is not eligible for probation.

"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.

"(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."

We have previously determined that this rule fully encompasses those procedural requirements established by the United States Constitution upon this issue. State v. Stewart (1977), 51 Ohio St.2d 86, 88, 5 O.O.3d 52, 54, 364 N.E.2d 1163, 1165. As stated previously, the constitutional requirements for acceptance of a voluntary guilty plea have been set forth in Boykin v. Alabama, supra. We have stated in this regard that the knowledge of the maximum and minimum sentences is not constitutionally required. State v. Stewart, supra. Similarly, in Barbee v. Ruth (C.A.5, 1982), 678 F.2d 634, 635, it was held that:

" 'The Constitution does not require that, in order to understand the consequences of a plea of guilty, the accused must be informed by the trial court, or must otherwise know, whether or not sentences imposed for...