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State v. Donegan

Court of Appeals of Ohio, Third District, Hardin

November 13, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
THOMAS J. DONEGAN, DEFENDANT-APPELLANT.

         Appeal from Hardin County Common Pleas Court Trial Court No. CRI 20162155

          Michael J. Short for Appellant.

          Jason M. Miller for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-appellant, Thomas J. Donegan ("Donegan"), appeals the April 12, 2017 sentencing entry of the Hardin County Court of Common Pleas. For the reasons that follow, we affirm the judgment and sentence of the trial court.

         {¶2} On October 28, 2016, the Hardin County grand jury indicted Donegan on Count One: Rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree; and Count Two: Gross Sexual Imposition in violation of 2907.05(A)(4)(C)(2), a felony of the third degree. (Doc. 1).

         {¶3} On November 8, 2016, Donegan entered a plea of not guilty to both charges and his case was set for a jury trial for January 17, 2017. (Doc. 6).

         {¶4} On November 16, 2016, Donegan filed a motion for a competency evaluation. The evaluation was ultimately conducted on January 11, 2017 and the competency hearing occurred on February 9, 2017, wherein the trial court found Donegan competent to stand trial. A new trial date was then set for March 30, 2017. (Doc. 26).

         {¶5} On March 9, 2017, the trial court conducted its final pretrial hearing on the charges at which time Donegan withdrew his plea of not guilty to Count Two and entered a plea of guilty. Pursuant to negotiations, the State dismissed Count One (Rape) of the indictment in exchange for Donegan's guilty plea. (Change of Plea Tr. Pg. 2). At the plea hearing Donegan signed a "Waiver of rights and plea of guilty" form that reflected his change of plea. (Doc. 30). In accepting Donegan's plea, the trial court found him guilty of Gross Sexual Imposition, and ordered a presentence investigation ("PSI") report. (Doc. 31).

         {¶6} Donegan was sentenced to a prison term of thirty months which was journalized by the trial court's judgment entry filed April 12, 2017. (Doc. 35).

         {¶7} On April 19, 2017 Donegan timely filed a notice of appeal raising the following assignment of error.

         ASSIGNMENT OF ERROR

         THE DEFENDANT'S PLEA WAS NOT GIVEN KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.

         {¶8} In his sole assignment of error, Donegan asserts that the trial court erred in accepting his guilty plea because it was not made knowingly, intelligently, and voluntarily.

         {¶9} " '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. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶7, quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996).

         {¶10} Crim.R. 11(C) states:

(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:
(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.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and 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 or herself.

         {¶11} "[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 the defendant's constitutional rights." State v. Ackley, 12th Dist. Madison No. CA2013-04-010, 2014-Ohio-876, citing Veney, at ¶31. "When a trial court fails to strictly comply with this duty, the defendant's plea is invalid." Id. However, a trial court is required to only substantially comply with the non-constitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Id. at ¶14. An appellate court reviews that substantial-compliance standard based upon the totality of the circumstances surrounding the defendant's plea and determines whether he subjectively understood the implications of his plea and the rights he waived. Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, ¶20. "Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made." Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).

         {¶12} In the case sub judice, we find that Donegan was properly advised of his constitutional rights under Crim.R. 11 by the trial court. The record establishes that the Court personally addressed Donegan regarding his plea of guilty in accordance with Crim.R. 11(C)(2). Specifically, with respect to Crim.R. 11(C)(2)(b), the record reflects as follows:

Court: Mr. Donegan, is that your understanding - that you're prepared to enter a plea to the one count, is that what you're gonna do today?
Defendant: Yes sir.

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