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State v. Ross

Court of Appeals of Ohio, Ninth District

July 24, 2013

STATE OF OHIO Appellee.
v.
DUSTIN L. ROSS Appellant.

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR 1112 3466 (B) CR 12 01 0172 (B)

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

HENSAL, Judge.

{¶1} Defendant-Appellant, Dustin L. Ross, appeals from the judgments of the Summit County Court of Common Pleas. For the reasons set forth below, this Court affirms in part, and reverses in part.

I.

{¶2} On December 30, 2011, Dustin Ross was indicted in case number 26523 for one count each of breaking and entering and possessing criminal tools. On February 2, 2012, Ross was indicted in case number 26524 for one count each of receiving stolen property, possessing criminal tools, and criminal mischief Ross pleaded not guilty to the charges in each case. On February 29, 2012, a joint plea hearing was held on both cases. In case number 26523, Ross changed his plea to guilty on the breaking and entering charge, which was a fifth degree felony. In case number 26524, Ross changed his plea to guilty on the possessing criminal tools charge, which was also a fifth degree felony. Pursuant to the plea agreement, the remaining charges in each case were dropped. At the plea hearing, the prosecution recommended the minimum sentence of six months imprisonment on each charge. The prosecution further recommended that Ross serve the sentences concurrently.

{¶3} Ross failed to appear at a joint sentencing hearing scheduled for both cases. The trial court stated on the record at that hearing that due to his failure to appear, Ross faced a possible sentence of twenty four months in prison on both cases. Ross was subsequently apprehended. Prior to sentencing, he filed a motion to withdraw his guilty plea in each case, which was denied by the trial court without a hearing. On May 30, 2012, Ross was sentenced to eleven months in prison on each case, which was to be served consecutively. Ross appealed, and the cases were consolidated for purposes of this appeal. He raises two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ACCEPTING APPELLANT ROSS'S GUILTY PLEAS WITHOUT STRICTLY COMPLYING WITH THE REQUIREMENTS OF CRIMINAL RULE 11(C)(2)(c).

{¶4} Ross argues that his pleas were not entered knowingly, intelligently and voluntarily because the trial court failed to properly advise him that he had the right to confront witnesses against him, have compulsory process for obtaining witnesses in his favor, and that he could not be compelled to testify against himself at a trial. His argument is without merit.

{¶5} "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). Criminal Rule 11(C)(2)(c) provides that prior to accepting a guilty plea in a felony case, a trial court must inform the defendant that he is waiving certain rights. These rights include: (1) the right to a jury trial; (2) the right to confront witnesses against him; (3) the right to have compulsory process for obtaining witnesses in the defendant's favor, and (4) the right 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 Id. The court must ascertain whether the defendant understands that he is waiving these rights when he enters a guilty plea. Id.

{¶6} While the "preferred method" is that the trial court recite the Rule 11(C)(2)(c) language verbatim, a "trial court's failure to literally comply with Crim.R. 11(C) does not invalidate a plea agreement if the record demonstrates that the trial court explained the constitutional right 'in a manner reasonably intelligible to that defendant.'" (Emphasis deleted.) State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 14, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 18. In addition, "[a]n alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea." Id at paragraph two of the syllabus.

{¶7} At Ross's plea hearing, the trial court advised him that by pleading guilty he was "giving up [his] right to a jury trial on both these cases; giving up [his] right [to] make the prosecutor prove the charge against [him] beyond a reasonable doubt; [he was] giving up [his] right to have [his attorney] subpoena and cross-examine witnesses for [him]; [and he was] giving up [his] right to testify or not testify in [his] own defense[.]" Ross acknowledged on the record ...


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