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State v. Tribble

Court of Appeals of Ohio, Seventh District, Mahoning

June 14, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES TRIBBLE DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 15 CR 549

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney

          For Defendant-Appellant: Atty. Derek Cek

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro.

          OPINION

          WAITE, J.

         {¶1} Appellant James Tribble appeals the judgment and sentencing of the Mahoning County Common Pleas Court. Appellant contends he did not enter his guilty plea knowingly, voluntarily and intelligently because the trial court failed to comply with Crim.R. 11. However, this record shows that the trial court did meet all requirements relative to Appellant's plea. Appellant also asserts the trial court's imposition of a twelve-month sentence was contrary to law. The trial court was not required to impose a nonprison sentence. The record reveals the trial court imposed a sentence within the statutory range; thus there was no error. Appellant further contends the trial court erred in imposing a non-definite term of probation for his domestic violence conviction. As R.C. 2929.25 and R.C. 2929.27 require a definite term of probation be imposed, the trial court's sentence in this regard is in error. Appellant's third assignment of error is sustained. Finally, Appellant asserts the trial court erred in failing to properly advise him of the consequences should he violate postrelease control, pursuant to R.C. 2967.28. A review of the transcript reveals that the trial court did fail to advise Appellant. Appellant's fourth assignment of error also has merit and is sustained. In summary, Appellant's first and second assignments of error are meritless and are overruled. Appellant's third and fourth assignments of error have merit and are sustained. The sentencing of the trial court is reversed in part and the matter is remanded as to these issues.

         Factual and Procedural History

         {¶2} On June 25, 2015, Appellant was indicted on four charges: OVI, a felony of the fourth degree in violation of R.C. 4511.19(A)(1); assault on a police officer, a felony of the fourth degree in violation of R.C. 2903.13; domestic violence, a misdemeanor of the fourth degree in violation of R.C. 2919.25(C); and resisting arrest, a misdemeanor of the second degree in violation of R.C. 2921.33.

         {¶3} On December 3, 2015, Appellant pleaded guilty to the following: count one, physical control while under the influence in violation of R.C. 4511.194(B)(D), a misdemeanor of the first degree; count two, assault, a violation of R.C. 2903.13(A), (C)(5), a felony of the fourth degree; and count three, domestic violence in violation of R.C. 2919.25(C), (D), a misdemeanor of the fourth degree.

         {¶4} A sentencing hearing was held on January 13, 2016. Appellant was sentenced to thirty days of incarceration on count one, twelve months on count two, and was sentenced to probation for count three. The sentences for all three counts were to be served concurrently. Appellant filed this timely appeal.

         ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT COMMITTED PLAIN ERROR AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW IN ACCEPTING APPELLANT'S GUILTY PLEAS WITHOUT ADEQUATELY ADVISING HIM OF ONE OF HIS CONSTITUTIONAL RIGHTS AND OTHER NONCONSTITUTIONAL RIGHTS.

         {¶5} In his first assignment of error, Appellant contends that his guilty plea was not knowingly, voluntarily and intelligently entered because the trial court failed to adequately advise him of his constitutional right to compulsory process and failed to advise him on the nonconstitutional issue of the maximum fines to which he was subject under count three.

         {¶6} "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. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11 requires the trial court to follow a certain procedure for accepting guilty pleas in felony cases. Before the court can accept a guilty plea to a felony charge, it must conduct a colloquy with the defendant to determine that they understand the plea they are entering and the rights being voluntarily waived. Crim.R. 11(C)(2).

         {¶7} Crim.R. 11(C)(2)(c) sets forth the constitutional rights that the defendant waives by entering the guilty plea.

A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant's plea is invalid. (Crim.R. 11(C)(2)(c), applied.)

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus.

         {¶8} Crim.R. 11(C) also sets forth the nonconstitutional rights that a defendant must be informed of prior to the trial court accepting the plea. A defendant must be informed: (1) of the nature of the charges; (2) of the maximum penalty involved; (3) if applicable, that he is not eligible for probation or the imposition of community control sanctions, and (4) that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence. Crim.R. 11(C)(2)(a)(b); State v. Philpott, 8th Dist. No. 74392 (Dec. 14, 2000), citing McCarthy v. U.S.,394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). For these nonconstitutional rights, the trial court must substantially comply with its mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Substantial compliance is met when under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. Id. Moreover, when nonconstitutional aspects of the Crim.R. 11 plea colloquy ...


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