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State v. Cruz

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 19, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSE A. CRUZ, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597092-A.

         JUDGMENT: AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel Van, Assistant Prosecuting Attorney, for appellee.

          Jonathan N. Garver, for appellant.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE.

         {¶ 1} In this consolidated appeal, defendant-appellant, Jose A. Cruz ("Cruz"), challenges the validity of his guilty plea and the trial court's denial of his pro se, postsentence motions to withdraw his guilty plea and terminate his sex offender status.[1] For the reasons set forth below, we affirm.

         {¶ 2} In July 2015, Cruz was charged in a six-count indictment. Counts 1-3 charged him with rape. Counts 4 and 5 charged him with gross sexual imposition. Count 6 charged him with kidnapping and carried a sexual motivation specification. The indictment listed the victim as Jane Doe (D.O.B. 4/13/01). In February 2016, Cruz entered into a plea agreement with the state. Cruz pled guilty to amended counts of sexual battery (Counts 1 and 3) and an amended count of abduction with the sexual motivation specification (Count 6). The remaining counts were nolled.

         {¶ 3} The trial court conducted its sentencing hearing in March 2016. The trial court sentenced Cruz to three years in prison on each count, to be served concurrently, for a total of three years in prison. The court classified Cruz as a Tier III sex offender and informed Cruz of his registration obligations.

         {¶ 4} In October 2016, Cruz filed a motion for judicial release, which the state opposed. The trial court denied the motion in November 2016. Two years later, in December 2018, Cruz filed two pro se motions - a motion to withdraw his guilty plea and vacate his conviction and a motion to terminate and/or modify his sex offender classification status. In his motion to withdraw his guilty plea, Cruz argued that defense counsel had promised him judicial release after serving six months in prison. In his motion to terminate his sex offender classification, Cruz argued that the Tier III reporting requirements are excessive punishment in violation of both the U.S. and Ohio Constitutions. The state opposed both motions. The trial court denied both motions in January 2019.

         {¶ 5} Cruz now appeals, raising the following four assignments of error for review:

Assignment of Error No. 1
[Cruz's] guilty plea must be vacated because the trial court erred in failing to adequately inform [Cruz], prior to accepting his guilty pleas, that he had a constitutional right to a trial by jury.
Assignment of Error No. 2
[Cruz's] guilty plea must be vacated because the trial court erred by failing to ascertain, prior to accepting his guilty plea, that he understood the constitutional rights recited by the trial court and that he further understood that by entering guilty pleas he was waiving those constitutional rights.
Assignment of Error No. 3
The trial court erred in denying [Cruz's postsentencing] motion to withdraw guilty plea and vacate conviction.
Assignment of Error No. 4
The trial court erred in denying [Cruz's posttrial] motion to terminate and/or modify his Tier III sex offender/child offender classification status because [R.C.] 295o.1(G)(1)(A) violates the ban on cruel and unusual punishment contained in the Eighth Amendment of the Constitution of the United States.

         Guilty Plea

         {¶ 6} In the first and second assignments of error, Cruz challenges his guilty plea. Cruz argues that his plea must be vacated because the trial court did not adequately inform him of his constitutional right to a jury trial. Cruz also argues that his guilty plea must be vacated because the trial court failed to ascertain, prior to accepting his guilty plea, that he understood his constitutional rights and that he waived those constitutional rights by entering a guilty plea.

         {¶ 7} Crim.R. 11(C) sets forth the procedure the trial court must follow before accepting defendant's guilty plea. "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily." State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

         {¶ 8} We review the trial court's compliance with the requirements of Crim.R. 11(C) de novo. State v. Roberts, 8th Dist. Cuyahoga No. 89453, 2010-Ohio-3302, ¶ 19, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

         {¶ 9} Crim.R. 11(C)(2)(c) provides in relevant part:

In felony cases the court may refuse to accept a plea of guilty * * * and shall not accept a plea of guilty * * * without first addressing the defendant personally and doing all of the following: * * * [i]nforming 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.

         {¶ 10} Strict compliance by the trial court is required for the waiver of the constitutional rights (right to a jury trial) set forth under Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18, citing State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981). In explaining strict compliance, the Ohio Supreme Court has held that "the preferred procedure is for the trial court to use the language in Crim.R. 11(C), * * * [but the] 'failure to [literally comply] will not necessarily invalidate a plea. The underlying purpose, from the defendant's perspective, of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty.'" Id. at ¶ 18, quoting Ballard at 479-480.

         {¶ 11} Cruz argues that the trial court failed to adequately inform him of his constitutional right to a jury trial. We note that while the advisement on constitutional rights necessitates strict compliance, "[a] rote recitation of the rule is not required." Ballard. Indeed, the failure to use the exact language of the rule will not be fatal to the plea as long as the record demonstrates that the trial court explained the rights set forth in Crim.R. 11(C) in a manner reasonably intelligible to that defendant. Id. at paragraph two of the syllabus, citing State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 601 (1976). In reaching this conclusion, the Supreme Court reasoned that "[t]o hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue between the trial court and the accused. This is something we are unwilling to do." Id.

         {¶ 12} A review of the record in the instant case reveals that the trial court did advise Cruz of his constitutional right to a jury trial. During the plea colloquy, Cruz provided his name, his age (62 years old), the fact that he had an associate's degree, that he was not under the influence of any drugs or alcohol, and that he understood the proceedings. Other than the plea offer, Cruz agreed that no threats or promises had been made. Cruz indicated that he ...


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