Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0004.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, For Plaintiff-Appellee.
Neil P. Agarwal, For Defendant-Appellant.
THOMAS R. WRIGHT, J.
(¶1} Appellant, Alfonso W. Chionchio, appeals his conviction from the Portage County Court of Common Pleas on one count of felonious assault pursuant to R.C. 2903.11(A)(1), a felony of the second degree. Appellant raises issues pertaining to his plea and sentence.
(¶2} The record is limited as to the facts surrounding appellant's felonious assault conviction. The three victims were walking on a sidewalk when they encountered appellant and two other individuals. An altercation ensued and one of the victims sustained a broken jaw. At the time of the underlying offense, appellant was on post-release control from an earlier case involving having weapons under disability.
(¶3} In January 2012, appellant was indicted by the Portage County Grand Jury on two counts of felonious assault, R.C. 2903.11(A)(1), felonies of the second degree, and one count of assault, R.C. 2903.13, a misdemeanor of the first degree. The matter was set for a suppression hearing and a jury trial. However, just prior to the suppression hearing, appellant entered into a plea agreement with the state and pled guilty to one count of felonious assault, R.C. 2903.11(A)(1), a felony in the second degree. The remaining counts were dismissed. The trial court imposed an agreed sentence of five years incarceration with credit for time served. Appellant raises the following six assignments of error for our review:
(¶4} " The Trial Court committed reversible and plain error when it accepted Chionchio's guilty plea when it failed to substantially comply with Crim.R. 11(C)(2) in violation of Chionchio's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and under Art. I, §16 of the Ohio Constitution.
(¶5} "[2.] The Trial Court committed reversible and plain error in failing to provide Chionchio with his right to allocution prior to the imposition of his prison sentence in violation of R.C. 2929.19(A) and Crim.R. 32(A).
(¶6} "[3.] The Trial Court committed reversible and plain error in imposing court costs against Chionchio without complying with R.C. 2947.23(A).
(¶7} "[4.] The Trial Court committed reversible and plain error by ordering Chionchio to pay an 'assessment and recoupment fee.'
(¶8} "[5.] The Trial Court committed reversible error in assessing fines, assessment and recoupment fee, and court costs without any regard to Chionchio's ability to pay said fines and costs.
(¶9} "[6.] The cumulative effect of the Trial Court's errors denied Chionchio a fair trial."
(¶10} Appellant failed to object during the plea and sentencing hearing regarding any of the matters he raises on appeal. Thus, this court's determination will be limited to a plain error analysis. Generally, the failure to raise an issue or argument at the trial court level that is apparent at the time constitutes a waiver of such issue. State v. Awan, 22 Ohio St.3d. 120, syllabus (1986). Plain error exists only where, but for the error, the outcome would have been different. State v. Bennett, 11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-1567, ¶56. "In the context of a criminal case, a court of review should invoke the plain error doctrine with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d. 804, paragraph three of the syllabus." State v. Oliver, 11th Dist. Portage No. 2010-P-0017, 2012-Ohio-122, ¶36.
(¶11} Plain error requires appellant to establish: (1) there was an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e. there was an "obvious" defect in the trial proceedings; and (3) the error affected substantial rights, i.e. affected the outcome. Bennett, at ¶56.
(¶12} Turning to appellant's first assignment, he argues that his guilty plea was not knowingly, intelligently, and voluntarily made because the trial court failed to either substantially or partially notify him, both on the record and in its journal entry, that he would be subject to a period of post-release control upon the conclusion of his prison term pursuant to R.C. 2929.19(B)(2)(c), and that should he violate the terms of postrelease control, an additional prison term may be imposed. Appellant further argues that since he was on post-release control at the time of this offense, this court should likewise find that the trial court committed prejudicial error when it failed to notify him of the mandatory obligations under R.C. 2929.141(A)(1) (New felony committed by person on post-release control).
(¶13} "'In considering whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate court examines the totality of the circumstances through a de novo review of the record to ensure that the trial court complied with constitutional and procedural safeguards.'" (Citations omitted) State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025, 2011-Ohio-2326, ¶12.
(¶14} "The exchange of certainty for some of the most fundamental protections in the criminal justice system will not be permitted unless the defendant is fully informed of the consequences of his or her plea. Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.'" Id. at ¶13, citing State v. Clark, 119 Ohio St.3d 234, 2008-Ohio-3748, ¶25. "To ensure that pleas conform to these high standards, the trial judge must engage the defendant in a colloquy before accepting his or her plea.'" Id. at ¶14, quoting State v. Ballard, 66 Ohio St.2d 473, paragraph one of the syllabus (1981).
(¶15} Crim.R. 11(C)(2) governs pleas and states in pertinent part:
(¶16} "(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(¶17} "(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing."
(¶18} Pursuant to State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, when the trial court fails to advise a defendant that the sentence will include a mandatory term of post release control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea ...