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State v. Cola

Court of Appeals of Ohio, Eighth District

July 25, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TROY COLA DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555733

ATTORNEYS FOR APPELLANT: Joseph C. Patituce Catherine R. Meehan Megan M. Patituce Jennifer Scott Patituce & Scott, L.L.C.

ATTORNEYS FOR APPELLEE: Timothy J. McGinty Cuyahoga County Prosecutor By: Brett Kyker Assistant Prosecuting Attorney.

BEFORE: S. Gallagher, P.J., Blackmon, J., and McCormack, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.:

{¶ 1} Appellant Troy Cola appeals his conviction and sentence on multiple counts in the Cuyahoga County Court of Common Pleas. For the reasons stated herein, we affirm.

{¶ 2} Appellant was charged under a 120-count indictment. Counts 1 through 7 charged appellant with pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(2). Counts 8 through 119 charged appellant with pandering sexually oriented material involving a minor in violation of R.C. 2907.322(A)(1). Count 120 charged appellant with possessing criminal tools in violation of R.C. 2923.24. The indictment also included forfeiture specifications.

{¶ 3} Appellant initially entered a plea of not guilty. Pursuant to a plea agreement, appellant entered a change of plea to guilty on Counts 1 through 98 and Count 120. It was agreed that the remaining counts would be nolled. Appellant stipulated that the offenses to which he pled guilty were not allied offenses of similar import. An agreement was also reached on the forfeiture specifications.

{¶ 4} The trial court entered a finding of guilty on the charges to which appellant pled guilty and dismissed the remaining counts. Thereafter, the trial court sentenced appellant to a concurrent sentence of seven years for each of Counts 1 through 98, with five years of mandatory postrelease control. The court also imposed a concurrent sentence of six months for Count 120, with three years of discretionary postrelease control. Appellant was classified as a Tier II sex offender.

{¶ 5} Appellant timely filed this appeal. He raises three assignments of error for our review. His first assignment of error provides as follows:

1. Appellant's conviction should be vacated because his right to due process was violated when the trial court failed to substantially comply with Crim.R. 11.

{¶ 6} Appellant argues that the trial court failed to comply with Crim.R. 11 because he was not advised that his plea was a complete admission of guilt. The right to be informed that a guilty plea is a complete admission of guilt is nonconstitutional and is reviewed under a standard of substantial compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990). Applying this standard, we must review the totality of circumstances surrounding appellant's plea and determine whether he subjectively understood that a guilty plea is a complete admission of guilt. See id. Further, in order for the plea to be invalidated, the defendant must demonstrate prejudice, which requires a showing that the plea would not otherwise have been entered. Id.

{¶ 7} A review of the record herein shows that the trial court explained the constitutional rights appellant would be waiving by entering a plea of guilty and appellant expressed his understanding of those rights. The court also reviewed with appellant the nature of the offenses and the potential penalties involved. Defense counsel indicated, and appellant conceded, that they had met to discuss the matter a number of times, that appellant was aware of his constitutional rights, and that appellant's plea was being entered knowingly, intelligently, and voluntarily.

{ΒΆ 8} When the trial court reviewed the offense of pandering sexually oriented matter involving a minor, appellant indicated that "I didn't knowingly." However, he made no further assertions while being advised of the rights he was waiving or while entering his guilty plea, nor did he otherwise maintain actual innocence during the plea hearing. Rather, when the court advised appellant that by entering a plea of guilty, he would be admitting the charged offenses, appellant ...


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