State v. Troy Shell

Decision Date30 October 1997
Docket Number97-LW-4204,71736
PartiesSTATE OF OHIO, Plaintiff-appellee v. TROY SHELL, Defendant-appellant CASE
CourtOhio Court of Appeals

Criminal appeal from Court of Common Pleas, Case No. CR-328,674.

For plaintiff-appellee: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, ERIKA RITT, Assistant Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

For defendant-appellant: THOMAS M. HORWITZ, Attorney at Law,

Landmark Office Towers, Midland Building, #1880, Cleveland, Ohio 44115.

OPINION

TIMOTHY E . MCMONAGLE, J.

Defendant-appellant, Troy Shell ("appellant") appeals the judgment of the Cuyahoga County Common Pleas Court that accepted his plea of guilty and convicted him of robbery while using a gun and sentenced him to a non-probationable term of incarceration. For the reasons that follow, we affirm.

The record reflects that appellant originally entered a plea of not guilty to a two-count indictment charging appellant with aggravated robbery in violation of R.C. 2911.01 and having a weapon while under disability in violation of R.C. 2923.13. The aggravated robbery charge included firearm, violence and two prior felony conviction specifications, while the weapon charge included firearm and violence specifications. Prior to trial, appellant entered into a plea agreement with the state wherein he pled guilty to an amended indictment charging him with robbery in violation of R.C. 2911.02. In accordance with the agreement, all specifications relative to count one, as well as the second count of the indictment, having a weapon while under disability and its specifications, were dismissed; however, the indictment, as amended, continued to include language that the offense was committed with a gun. In explaining the proposed plea agreement to appellant and the court prior to appellant's acceptance, the prosecutor stated as follows:

THE STATE:

* * * What I've indicated to [defense counsel] this morning is for purposes of a plea, that the State would be willing to offer one count of robbery on Case 328674, which would carry with it the reference to a firearm in the body however, we would delete the specifications referencing the firearm, along with both specifications referencing the prior convictions for aggravated felonies, thereby rendering the robbery count a non-probationable three, four, four five six, seven or eight years to a maximum fifteen-year period.
We would be willing then to dismiss the second count, having a weapon while under disability * * *.

The appellant was given the rest of the day to consider the state's offer and, upon reconvening the following day, the plea agreement was again restated in open court as follows:

THE STATE: * * * At this point the State would recommend to the Court an amendment of the first count of this particular case number to reflect a violation of the robbery statute, 2911.02, keeping intact the reference to the firearm in the body of the in-dictment, however, asking the Court to delete all the specifications, * * *
That would render this amended count an aggravated felony of the second degree, carrying with it the potential, on the minimum side, for either three, four, five, six, seven, eight years, to a maximum period of fifteen years incarceration and up to a $7,500 fine.
It's my understanding in that particular case that this defendant's going to withdraw his formerly entered not guilty plea to the amended first count, enter a plea of guilty to the amended count, and if such a plea is forthcoming, the State would then recommend nolleing the second count, having a weapon while under a disability.

When the trial court inquired of the prosecutor whether the indictment, as amended, carried a non-probationable sentence, the prosecutor answered in the affirmative. In questioning the appellant, the court stated:

THE COURT: I trust you understand you're pleading guilty to a robbery charge with a gun. * * *

MR. SHELL: Yes.

THE COURT: -- do you understand that?

MR. SHELL: Yes, sir.

THE COURT: This robbery charge with the gun is a non-probationable offense; do you understand that?

MR. SHELL: Yes, sir.

The court then explained the constitutional rights that appellant would be waiving in exchange for his guilty plea. In accepting appellant's plea, the court stated in its journal entry:

Thereupon, said defendant retracts his/her former plea of not guilty heretofore entered, and for plea to said indictment says he/she is guilty of robbery with gun, ORC 2911.01 Agg -2 as amended in count one, which plea/pleas on the recommendation of the prosecuting attorney is/are accepted by the court (non-probationable) on recommendation of prosecutor count 2 nolled.

Thereafter, the court sentenced appellant to the Lorain Correctional Institution for a minimum of five to a maximum of

fifteen years. It is from this conviction and sentence that appellant timely appeals, assigning the following errors for our review:

I. THE TRIAL COURT ERRED BY SENTENCING DEFENDANT FOR A CRIME NOT RECOGNIZED BY THE STATE OF OHIO.
II. THE TRIAL COURT ERRED IN ACCEPTING A PLEA WHICH WAS NEITHER KNOWINGLY, WILLINGLY NOR INTELLIGENTLY MADE IN VIOLATION OF CRIMINAL RULE 11 AND DEFENDANT'S CONSTITUTIONAL RIGHTS.
III. THE TRIAL COURT ERRED IN VIOLATION OF CRIMINAL RULE 11 BY FAILING TO CONDUCT A MEANINGFUL COLLOQUY REGARDING DEFENDANT'S WAIVER OF HIS CONSTITUTIONAL RIGHTS.
IV. THE TRIAL COURT ERRED IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL AND CRIMINAL RULE 11 RIGHTS BY FAILING TO DETERMINE WHETHER HE MADE A RATIONAL CALCULATION THAT IT WAS IN HIS BEST INTEREST TO ACCEPT THE PLEA BARGAIN.
V. THE TRIAL COURT ERRED IN OVERZEALOUSLY PARTICIPATING IN THE PLEA NEGOTIATIONS BY MAKING COERCIVE AND THREATENING STATEMENTS WHICH INDUCED DEFENDANT TO ACCEPT THE PLEA AGAINST HIS WISHES AND DESIRES AND IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.
I.

Appellant's first and second assignments of error are related and challenge the trial court's acceptance of his guilty plea to an offense that, he argues, is not cognizable by the State of Ohio. The state, on the other hand, maintains that appellant intelligently and voluntarily pled to and was convicted of robbery in violation of R.C. 2911.02 and sentenced accordingly.

In determining whether a guilty plea is voluntarily, intelligently and knowingly entered, a reviewing court must determine whether the trial court substantially complied with the requirements of Crim.R. 11. State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Billups (1979), 57 Ohio St.2d 31; State v. Caplinger (1995), 105 Ohio App.3d 567, 572; State v. Calvillo (1991), 76 Ohio App.3d 714, 719. This rule provides, in part:

(2) In felony cases the court may refuse to accept a plea of guilty * * *, 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 * * *, 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.

"Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108; State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. The underlying purpose of Crim.R. 11 is to convey to the criminal defendant sufficient information that will enable him to make a voluntary and intelligent decision whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. A defendant who challenges his guilty plea must show that the lack of compliance with this rule had a prejudicial effect. Stewart, 51 Ohio St.2d at 93. The test for prejudice is whether the plea would have otherwise been made. Nero, 56 Ohio St.3d at 108.

The record reflects that appellant pled guilty to the lesser offense of robbery in violation of R.C. 2911.02, an aggravated felony of the second degree. See R.C. 2911.02(B). According to the felony sentencing guidelines governed by R.C. 2929.11, appellant had the potential to be sentenced to a minimum term of actual incarceration of three, four, five, six, seven or eight years up to a maximum of fifteen years. See R.C. 2929.11(B)(2)(a). Thus, the trial court's action in sentencing appellant to a minimum of five years to a maximum of fifteen years was in compliance with the statutory sentencing guidelines. Nonetheless, appellant argues that his conviction should be vacated because "robbery with a gun," in actuality, is "aggravated robbery" in violation of R.C. 2911.01, an offense that was not part of the plea agreement. While we agree that the trial court was incorrect in characterizing this offense as "robbery with a gun," we do not find that appellant was prejudiced by this mischaracterization.

As originally indicted, the offense of aggravated robbery carries a lengthier term of incarceration and, by its very terms, is non-probationable. When considering that the weapon offense and multiple specifications were to be dismissed in exchange for

appellants plea to robbery, albeit with a gun, appellant has not shown that he would not have otherwise entered the plea.

To reiterate, we are not attempting...

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