Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 15 CR 549
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Derek Cek
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary
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.
and Procedural History
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.
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.
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.
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.
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.
"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).
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),
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,
897 N.E.2d 621, syllabus.
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