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State v. Maddox

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KELVON MADDOX DEFENDANT-APPELLANT

          Criminal Appeals from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-618705-A and CR-17-619164-A

          ATTORNEY FOR APPELLANT Britta M. Barthol P.O. Box 670218 Northfield, Ohio 44067

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Amanda Hall Assistant County Prosecutor Justice Center.

          BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE

         {¶1} Defendant-appellant, Kelvon Maddox, appeals his convictions and sentence from two cases: Cuyahoga C.P. Nos. CR-17-618705 and CR-17-619164. He raises two assignments of error for our review:

1. Appellant did not enter into his guilty plea knowingly, intelligently, and voluntarily as the trial court failed to properly inform him of the maximum and correct penalties as required by [Crim.R] 11(C)(2)(a).
2. The trial court imposed a sentence that is contrary to law when it failed to make all the factual findings necessary to sentence appellant to consecutive sentences under RC. 2929.14.

         {¶2} Finding no merit to his arguments, we affirm.

         I. Procedural History and Factual Background

         {¶3} In June 2017, the Cuyahoga County Grand Jury indicted Maddox on six counts in Cuyahoga C.P. No. CR-17-618705: two counts of attempted murder and four counts of felonious assault. All counts carried one- and three-year firearm specifications. The police report leading to this indictment indicates that on January 18, 2017, at around 12:45 a.m., Maddox was at a gas station on Kinsman Road in Cleveland, Ohio, when he began exchanging words with two people inside a blue SUV. Video footage from the gas station shows that Maddox pulled a handgun from his waistband and began shooting inside the vehicle. When police arrived, they found that one victim had been shot in the shoulder, which caused the bone to break, and the other victim had a cut on her head from broken glass.

         {¶4} In July 2017, the Cuyahoga County Grand Jury indicted Maddox on three counts in Cuyahoga C.P. No. CR-17-619164, including one count each of attempted murder, felonious assault, and vandalism. The attempted murder and felonious assault counts carried one- and three-year firearm specifications. The police report from this incident indicates that Maddox was at the same gas station on June 21, 2017, at around 1:45 a.m. The door to the gas station was locked, but the gas station was still open at the drive-through window. Maddox got mad that he could not go inside the station. The clerk said something to Maddox, and Maddox responded by pulling a gun out of his waistband, and placing the gun against the glass door. The clerk "was standing on the other side of the door with his head turned." Maddox shot the gun at the victim's head. The bullet shattered the glass door, and the victim was hit by the glass "but somehow was able to avoid the bullet."

         {¶5} The trial court held a joint plea hearing on both cases in September 2017. In Case No. CR-17-618705, Maddox pleaded guilty to felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, with a one-year firearm specification. In Case No. CR-17-619164, Maddox pleaded guilty to felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, with a three-year firearm specification. The remaining counts in both cases were dismissed.

         {¶6} The trial court sentenced Maddox to seven years in prison for felonious assault in Case No. CR-17-618705, plus one year for the firearm specification, and seven years in prison for felonious assault in Case No. CR-17-619164, plus three years for the firearm specification. The trial court ordered that the firearm specifications be served prior to and consecutive to the base charges of felonious assault and to each other, and ordered the seven years on each felonious assault charge to be served consecutive to each other, for an aggregate sentence of 18 years in prison. The trial court further notified Maddox that he would be subject to a mandatory period of three years of postrelease control upon his release from prison, and it waived costs and fines. Maddox now appeals from the sentencing judgments in both cases.

         II. Maximum Penalty Notification under Crim.R. 11(C)(2)(a)

         {¶7} In his first assignment of error, Maddox argues that his guilty pleas were not knowingly, voluntarily, and intelligently entered into because the trial court failed to advise him of the maximum penalty he would face under Crim.R. 11(C)(2)(a).

         {¶8} The standard for reviewing whether the trial court accepted a plea in compliance with Crim.R. 11(C) is de novo. It requires an appellate court to review the totality of the circumstances and determine whether the plea hearing was in compliance with Crim.R. 11(C). State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

         {¶9} Crim.R. 11(C)(2)(a) provides in pertinent part that the court

shall not accept a plea of guilty or no contest without first addressing the defendant personally and * * * [determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved[.]

         {¶10} The requirements of Crim.R. 11(C)(2)(a) are nonconstitutional, and thus, this court reviews "to ensure substantial compliance" with this rule. State v. Esner, 8th Dist. Cuyahoga No. 90740, 2008-Ohio-6654, ¶ 4. "Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that 'the defendant subjectively understands the implications of his plea and the rights he is waiving.'" State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 564 N.E.2d 474 (1990).

         {¶11} When the trial court does not" substantially comply" with Crim.R. 11(C)(2)(a), a reviewing court must then "determine whether the trial court partially complied or failed to comply with this rule." (Emphasis sic.) Clark at ¶ 32. "If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect." Id., citing Nero. As repeatedly recognized by the Ohio Supreme Court, "a defendant must show prejudice before a plea will be vacated for a trial court's error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the colloquy are at issue." State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17; see also State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12; Nero at 108.

         {¶12} "The test for prejudicial effect is 'whether the plea would have otherwise been made.'" Clark at ¶ 32, quoting Nero. "If the trial judge completely failed to comply with the rule * * *, the plea must be vacated." Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. A complete failure to comply with the rule, however, does not implicate an analysis of prejudice. Sarkozy at ¶ 22.

         {¶13} Specifically, Maddox contends that his plea was not knowingly, voluntarily, and intelligently entered into because the trial court did not properly advise him of the consecutive nature of the firearm specifications as set forth in R.C. 2929.14(B)(1)(g), which provides:

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies [is] * * * felonious assault * * *, and if the offender is convicted of or pleads guilty to a [firearm] specification * * * under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty[.]

         {¶14} The plain language of this statute mandates that a trial court is precluded from merging firearm specifications underlying separate charges where: (1) a defendant pleads guilty to two felonies, one of which is felonious assault; and (2) the defendant also pleads guilty to firearm specifications under R.C. 2929.14(B)(1)(a) in connection with both of those felonies.

         {¶15} In the instant case, Maddox pleaded guilty to two separate felonious assault charges, one of which included a one-year firearm specification under R.C. 2941.141(A) and one that included a three-year firearm specification under R.C. 2941.145(A). Both of these firearm-specification provisions are listed under R.C. 2929.14(B)(1)(a). Accordingly, R.C. 2929.14(B)(1)(g) applies, and the trial court was precluded from merging the firearm specification underlying the two felonious assault convictions.

         {¶16} The following relevant exchange occurred at the plea hearing between the trial court and Maddox:

THE COURT: * * * In 618705, you'll be pleading guilty to felonious assault. The three-year firearm specification is going to be deleted, and [the victims] will be ...

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