State v. Victor Seeley
| Decision Date | 20 March 2002 |
| Docket Number | 02-LW-1479,2001 CO 27 |
| Citation | 2002 Ohio 1545 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. VICTOR SEELEY, DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Hon Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
For Plaintiff-Appellee: Attorney Robert Herron, Prosecuting Attorney, Attorney Tammy Riley Jones, Attorney Nicholas Barborak, Asst. Prosecuting Attorneys, Columbiana County Courthouse, Lisbon, OH 44432
For Defendant-Appellant: Attorney Melody Calhoun, 132 S. Market Street, P.O. Box 365, Lisbon, OH 44432
OPINION
This timely appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Defendant-Appellant, Victor Seeley (hereinafter "Seeley"), appeals the trial court's decision finding him guilty of violating R.C 2919.21(A)(2) and sentencing him to serve six months in jail to pay restitution in the amount of $24,800, to continue to pay child support as previously ordered, and warning him of possible post-release control. For the following reasons, we conclude Seeley's counsel was ineffective for failing to address an apparent violation of the statute of limitations, and further, that Seeley's plea was ineffective because he did not understand the nature of the offense with which he was charged. Accordingly, we reverse the trial court's decision and remand for further proceedings.
On September 29, 1994, Seeley was secretly indicted by the Columbiana County Grand Jury for a violation of R.C. 2919.21(A)(2). This indictment alleged Seeley either abandoned or failed to provide adequate support for his minor child for a period between January 7, 1982, and September 21, 1994. At the time the grand jury issued this indictment it also issued a warrant for Seeley's arrest in accordance with Crim.R. 9.
Seeley was arrested pursuant to this warrant six years later on October 3, 2000. At an October 11, 2000 arraignment, Seeley pled not guilty. However, on March 28, 2001, the trial court held a plea hearing where, pursuant to a plea agreement, Seeley pled guilty to the offense. On June 29, 2001, the trial court proceeded with a sentencing hearing, and on July 2, 2001, Seeley was sentenced to serve six months in jail, ordered to pay restitution in the amount of $24,800 as well as to continue to pay child support as previously ordered, and warned of possible post-release control.
On appeal, Seeley asserts four assignments of error:
We shall address Seeley's assignments of error in reverse order, as our resolution of the last three assigned errors renders the first moot.
In his fourth assignment of error, Seeley argues he could not be convicted of a felony as his indictment lacked the necessary felony specification. In particular, he argues he could not be found guilty of a felony violation of R.C. 2919.21(A)(2) since there had not been a prior court finding that he had failed to provide support.
R.C. 2919.21 generally provides a violation will be a misdemeanor in the first degree. However, the statute provides that a violation could become a felony.
"If the offender previously has been convicted of * * * a violation of division (A)(2) of this section or if there has been a court finding that the offender has failed to provide support under division (A)(2) of this section for * * * twenty-six weeks out of one hundred four, then a violation of division (A)(2) of this section is a felony of the fourth degree." Former R.C. 2919.21(E).
As Seeley concedes in his brief, courts have found there need not be a prior court finding that the defendant failed to provide support in order for the felony specification to accrue. See State v. Cole (1994), 94 Ohio App.3d 629, 641 N.E.2d 732; State v. Lizanich (1994), 93 Ohio App.3d 706, 639 N.E.2d 855. Consequently, the indictment need merely charge the defendant has failed to provide support for a total period of twenty-six weeks out of one hundred four consecutive weeks. Id.
Seeley argues a change in the statute after his indictment, but before he was arrested, requires a prior court order as an element of the offense which needs to be in the indictment. It is axiomatic that legislatures may not retroactively alter the definition of a crime. State v. Webb (1994), 70 Ohio St.3d 325, 331, 638 N.E.2d 1023, 1030 quoting Collins v. Youngblood (1990), 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, 39. Since Seeley was indicted under the prior version of the statute, it is that version of the statute which defines the offense. Accordingly, the indictment merely needs to allege Seeley failed to provide support for a total period of twenty-six weeks out of one hundred four consecutive weeks. See Cole, supra; Lizanich, supra.
The September 29, 1994 indictment alleges:
"On or about January 7, 1982, through September 21, 1994, inclusive, in Columbiana County, Ohio, Victor B. Seeley did, abandon or fail to provide adequate support to his legitimate children under the age of 18, to-wit: Christina Deanna Vincent, DOB: 2-17-78, in violation of Section 2919.21(A)(2) of the Ohio Revised Code, being a felony of the fourth degree." Id.
This indictment alleges more than twenty-six weeks of non-support. Indeed, it cites more than twelve years of non-support. This indictment is sufficient to charge Seeley with a felony violation of R.C. 2919.21(A)(2). Seeley's fourth assignment of error is meritless.
In his third assignment of error, Seeley argues the trial court abused its discretion when it accepted his guilty plea. Essentially, he alleges the trial court committed plain error when it allowed Seeley to plead guilty even though the statute of limitations had elapsed by the time he was served with the indictment and because Seeley expressed his desire for paternity testing. Plain error only exists when it is clear the verdict would have been otherwise but for the error. State v. Sanders (2001), 92 Ohio St.3d 245, 263, 750 N.E.2d 90, 115 citing State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804. The defendant bears the burden of demonstrating plain error. State v. Wade (1978), 53 Ohio St.2d 182, 188, 7 O.O.3d 362, 365, 373 N.E.2d 1244, 1248.
State v. Engle (1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450, 451.
Pursuant to this requirement, the Criminal Rules provide that when accepting a guilty plea from a defendant charged with a felony, a trial court must address the defendant personally in order to:
The standard for determining whether a trial court properly accepted a plea is whether the court substantially complied with Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163. "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." State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476. "The test is whether the court's error prejudiced the defendant in that he would not have pled guilty had the error not been made." State v. Gales (1999), 131 Ohio App.3d 56, 61, 721 N.E.2d 497, 500 citing Nero at 108, 564 N.E.2d at 476.
Seeley first argues that the colloquy between he and the trial court indicates he did not understand the nature of the charges against him. There is no exact test to determine whether a defendant subjectively understands the charges against him. State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760. In order to make sure a defendant does understand those charges, a court must look to all the particular facts and circumstances surrounding the case. Id. citing Johnson v. Zerbst (1938) 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466. Even if it is entirely plausible that the defendant understands the nature of the charges against him, the record must demonstrate that understanding. See State v. Blair (1998), 128 Ohio App.3d 435, 715 N.E.2d 233....
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