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State v. Swoveland

Court of Appeals of Ohio, Third District, Van Wert

July 23, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
DAN J. SWOVELAND, DEFENDANT-APPELLANT.

          Appeal from Van Wert County Common Pleas Court Trial Court No. CR-17-04-049

          Thomas J. Lucente, Jr. for Appellant.

          Kelly J. Rauch for Appellee.

          OPINION

          PRESTON, J.

         {¶1} Defendant-appellant, Dan J. Swoveland ("Swoveland"), appeals the December 4, 2017 judgment entry of sentence of the Van Wert County Court of Common Pleas. We affirm.

         {¶2} On May 4, 2017, the Van Wert County Grand Jury indicted Swoveland on five counts: Counts One and Two of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), (C), a second-degree felony; Count Four of aggravated funding of drug trafficking in violation of R.C. 2925.05(A)(1), a first-degree felony; and Count Five of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), (B)(1). (Doc. No. 3).

         {¶3} On May 10, 2017, Swoveland appeared for arraignment and pled not guilty to the counts of the indictment. (Doc. No. 11).

         {¶4} On October 11, 2017, Swoveland withdrew his pleas of not guilty and entered guilty pleas, under a written plea agreement, to Counts One and Three. (Doc. No. 26). In exchange for his change of pleas, the State agreed to dismiss Counts Two, Four, and Five of the indictment and recommend that Swoveland serve a seven-year prison sentence. (Id.). The trial court accepted Swoveland's guilty pleas, found him guilty on Counts One and Three, and ordered a presentence investigation. (Doc. No. 27).

         {¶5} On December 4, 2017, the trial court sentenced Swoveland to 7 years in prison on Count One and 5 years in prison on Count Three and ordered that Swoveland serve the terms consecutively for an aggregate term of 12 years. (Doc. No. 31).

         {¶6} On December 22, 2017, Swoveland filed a notice of appeal. (Doc. No. 45). He raises three assignments of error for our review.

         Assignment of Error No. I

         Appellant's guilty pleas were involuntary and should be vacated due to appellant's in-court statements.

         {¶7} In his first assignment of error, Swoveland argues that his guilty pleas were not made knowingly, intelligently, and voluntarily. In particular, Swoveland contends that his guilty pleas were not knowing, intelligent, or voluntary because his in-court statements do not reflect that he was knowingly, intelligently, and voluntarily admitting guilt to Counts One and Three of the indictment.

         {¶8} "All guilty pleas must be made knowingly, voluntarily, and intelligently." State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). "'"Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution."'" State v. Montgomery, 3d Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 10, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting Engle at 527. Crim.R. 11(C)(2), which governs guilty pleas for felony-level offenses, provides:

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.

         {¶9} "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." Montgomery at ¶ 11, citing Veney at ¶ 31. "'When a trial court fails to strictly comply with this duty, the defendant's plea is invalid.'" Id., quoting Veney at ¶ 31. "A trial court, however, is required to only substantially comply with the non-constitutional notifications in Crim.R. 11(C)(2)(a) and (b)." Id., citing Veney at ¶ 14-17.

         {¶10} "An appellate court reviews the 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. at ¶ 12, 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).

         {¶11} In support of his argument that his guilty plea was not knowing, intelligent, or voluntary, Swoveland points to exchanges that occurred during the sentencing hearing. First, Swoveland points to a statement indicating that he "thought he could get community service" after "pleading guilty to one first-degree felony and one second-degree felony, each with mandatory prison time." (Appellant's Brief at 9). In other words, Swoveland is challenging the trial court's compliance with Crim.R. 11(C)(2)(a).

         {¶12} To substantially comply with the requirements of Crim.R. 11(C)(2)(a) in instances "where a defendant faces a mandatory prison sentence," a "trial court must determine, prior to accepting a plea, that the defendant understands that he or she is subject to a mandatory prison sentence and that as a result of the mandatory prison sentence, he or she is not eligible for probation or community control sanctions." State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-5145, ¶ 19, citing State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 10, State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14, State v. Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6, and State v. Dawson, 8th Dist. Cuyahoga No. 61828, 1993 WL 12286, *2 (Jan. 23, 1993).

A trial court can meet this requirement either by expressly informing the defendant that he or she is subject to a mandatory prison sentence and is therefore ineligible for probation or community control sanctions or by confirming the defendant's subjective understanding of that fact in some other way, i.e., if the "totality of the circumstances" warrants the trial court in making a determination that the defendant otherwise ...

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