Statev.Hickman

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICTJul 5, 2019
Case No. 18-CA-116 (Ohio Ct. App. 2019)
Case No. 18-CA-1162019 Ohio 2819

Case No. 18-CA-116

07-05-2019

STATE OF OHIO Plaintiff-Appellee v. THOMAS HICKMAN Defendant-Appellant

APPEARANCES: For Plaintiff-Appellee CLIFFORD J. MURPHY Assistant Prosecuting Attorney 20 North Second Street - 4th Floor Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO 446 Howland Drive Gahanna, Ohio 43230


JUDGES: Hon. William B. Hoffman, P.J Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Case No. 18-CR-269 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee CLIFFORD J. MURPHY
Assistant Prosecuting Attorney
20 North Second Street - 4th Floor
Newark, Ohio 43055 For Defendant-Appellant JAMES A. ANZELMO
446 Howland Drive
Gahanna, Ohio 43230 Hoffman, P.J.

{¶1} Appellant Thomas Hickman appeals the judgment entered by the Licking County Common Pleas Court convicting him of possession of cocaine (R.C. 2925.11(A)(C)(4)), possession of heroin (R.C. 2915.11(A)(C)(6)), trafficking in cocaine (R.C. 2925.03(A)(2)(C)(4)(d)), and trafficking in heroin (R.C. 2925.03(A)(2)(C)(6)(d)) following his pleas of guilty, and sentencing him to an aggregate term of incarceration of three years. Appellee is the state of Ohio.

STATEMENT OF THE CASE

A rendition of the facts is unnecessary for our disposition of this appeal.

{¶2} On April 26, 2018, the Licking County Grand Jury indicted Appellant with two counts of possession of drugs and two counts of trafficking in drugs. The indictment included a forfeiture specification of $880.00 in cash, representing the proceeds of the drug offenses.

{¶3} Appellant filed a motion to suppress, alleging the police lacked a reasonable suspicion of criminal activity justifying the stop of his vehicle. The trial court overruled the motion.

{¶4} The case came before the court for trial on November 13, 2018. The parties had arrived at an agreed resolution of the case, memorialized by a written admission of guilt with an agreed sentencing recommendation of three years incarceration. The trial court engaged in a plea colloquy with Appellant pursuant to Crim. R. 11, following which the court accepted Appellant's guilty pleas and proceeded to sentencing.

{¶5} The court found counts one and three (possession and trafficking in cocaine) merged, and the State elected to have Appellant sentenced on count three. The court found counts two and four (possession and trafficking in heroin) merged, and the State elected to have Appellant sentenced on count two. The trial court sentenced Appellant to one year incarceration on count two and two years incarceration on count three, to be served concurrently with each other, and consecutively with a one year prison term for violation of the post-release control sanction Appellant was under at the time of the offenses, for an aggregate sentence of three years.

{¶6} It is from the November 13, 2018 judgment of conviction and sentence Appellant prosecutes this appeal, assigning as error:

I. THOMAS HICKMAN DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.

II. THE TRIAL COURT ERRED BY DENYING THOMAS HICKMAN'S MOTION TO SUPPRESS EVIDENCE THAT THE POLICE OBTAINED IN VIOLATION OF HIS RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.


I.

{¶7} In his first assignment of error, Appellant argues his guilty pleas were not knowing, intelligent, and voluntary because the trial court failed to advise him a guilty plea would waive his right to appeal the court's judgment overruling his motion to suppress, and because the trial court failed to advise him of the maximum sentence on each offense.

{¶8} Guilty pleas are governed by Crim. R. 11. The notice requirements for non-constitutional rights incorporated in Rule 11 are subject to a substantial compliance analysis, which looks to the totality of the circumstances to ascertain whether the defendant subjectively understood the implications of his plea and the rights he waived. See, e.g., State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). Strict compliance is required when notifying the defendant of constitutional rights incorporated in Crim. R. 11(C)(2)(c). State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

{¶9} Crim. R. 11(C)(2) provides:

(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.


{¶10}
Appellant does not argue the trial court failed to advise him of his constitutional rights incorporated in subsection (c); therefore, we need only find substantial compliance with the rest of the Rule.

{¶11} Appellant first argues he did not understand the effect of his guilty plea, as he did not understand he would waive his right to appeal the trial court's suppression ruling by a plea of guilty. Appellant cites State v. Engle, 74 Ohio St. 3d 525, 660 N.E.2d 450, 1996-Ohio-179, for the proposition, "The Supreme Court of Ohio has held that a defendant does not knowingly, voluntarily or intelligently plead guilty when he is not aware that his guilty plea waives on appeal pre-trial issues, such as a trial court's decision on a motion to suppress." Brief of Appellant, p. 4.

We note the State failed to address this argument in its brief.

{¶12} We find the facts in Engle distinguishable from the instant case. In Engle, the record affirmatively demonstrated the defendant entered the plea believing she could appeal the court's ruling on her motion in limine:

The defendant in Engle pled "no contest." --------

In the instant case, the prosecutor, in explaining the plea bargain to the court, made no fewer than six references to an appeal by the defendant in a colloquy that covers only seven sentences in the trial transcript. Defense counsel, noting that the defendant had earlier been deemed incompetent to stand trial, asked the court to determine whether Engle's pleas were voluntary. Based on the prosecutor's statements to the court, it is beyond doubt that defense counsel had explained to his client the strategy of pleading to reduced charges and appealing the trial court's adverse rulings, rather than proceeding with a defense that had been stripped of its key elements.

The trial court listened without uttering a word of correction. The judge did inquire about the defendant's understanding of her pleas as required by Crim. R. 11(C)(2). The record reflects that all the parties, including the judge and the prosecutor, shared the impression that appellant could appeal rulings other than a pretrial motion. Crim. R. 12(H). In fact, at the sentencing hearing, the judge advised the defendant: "I want to be sure that you understand that you have the right to appeal the decision of this Court."
Judge Hoffman noted in his dissent below, "[a]ppellant's agreement to the plea bargain implies her understanding that she could appeal those issues. Likewise, though the trial court did not expressly confirm the prosecutor's representation of the availability of appeal on those issues, its failure to advise the prosecutor, defense attorney and/or the defendant to the contrary would be considered by most defendants to be a tacit affirmation/recognition of her ability to appeal those very issues."


{¶13}
Id. at 527-28.

{¶14} The Ohio Supreme Court did not issue a blanket rule of law requiring a defendant be informed of the ability to appeal certain issues. Rather, the court found the record affirmatively demonstrated Engle's plea was entered with a belief she could appeal those issues. In contrast, the record in the instant case does not demonstrate Appellant believed he could appeal the court's suppression ruling to this Court. The trial court informed Appellant, "Do you understand, Mr. Hickman, that by changing your plea to guilty you give up most of your rights of appeal?" Tr. 8. Appellant responded, "Yes, sir." Tr. 8. The transcript of the plea colloquy includes no reference to an appeal of the trial court's ruling on suppression by the trial court, Appellant, the prosecutor, or defense counsel. We therefore find the instant case distinguishable from Engle, and find the trial court's statement by changing his plea Appellant would give up most of his rights to appeal substantially complied with Crim. R. 11.

{¶15} Appellant further argues the trial court failed to comply with Crim. R. 11(C)(2)(a) by notifying him of the cumulative maximum sentence of six years, rather than the maximum sentence the court could impose on each count. Appellant cites to State v. Johnson, 40 Ohio St. 3d 130, 532 N.E.2d 1295 (1988) for the proposition, "The rule requires the court to provide information on the prison sentence for each particular offense rather than the cumulative sentence for all of the offenses." Brief of Appellant, p. 5.

{¶16} We disagree with Appellant's interpretation of the Ohio Supreme Court's holding in Johnson. In Johnson, the court advised the defendant of the maximum sentence on each count, but did not advise him the sentences could be served consecutively. The Supreme Court found no error in the court's failure to advise the defendant he could be required to serve the sentences consecutively. Id. at 134. However, Johnson does not specifically require the trial court to inform the defendant of the maximum sentence on each count in a case such as this one, where the trial court informed Appellant of the cumulative maximum sentence he could receive for all the charges.

{¶17} Even if we accepted Appellant's argument the trial court failed to substantially comply with Crim. R. 11(C)(2)(a) by informing him only of the maximum cumulative sentence, the trial court's explanation of the maximum sentence partially complied with the rule. If the trial judge partially complies with Crim. R. 11 regarding the explanation of a non-constitutional right, the plea may be vacated only if the defendant demonstrates a prejudicial effect. See, e.g., State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008 -Ohio- 3748, ¶32. The test for prejudice is "whether the plea would have otherwise been made. Id.

{¶18} Appellant has not demonstrated his plea would not have been made had he been notified of the maximum sentence on each individual offense. The parties agreed to a sentencing recommendation of three years. Appellant was sentenced to three years. We find the court did not err in accepting Appellant's guilty pleas, as they were knowingly, intelligently, and voluntarily made.

{¶19} The first assignment of error is overruled.

II.

{¶20} In his second assignment of error, Appellant argues the court erred in overruling his motion to suppress.

{¶21} A defendant who enters a plea of guilty waives the right to appeal all non-jurisdictional issues arising at prior stages of the proceedings. Ross v. Auglaize Cty. Court of Common Pleas, 30 Ohio St.2d 323, 285 N.E.2d 25 (1972). Thus, by entering a guilty plea, a defendant waives the right to raise on appeal the proprietary of a trial court's suppression ruling. State v. Elliott, 86 Ohio App.3d 792, 621 N.E.2d 1272 (12th Dist. 1993); State v. Harvey, 5th Dist. Stark No. 20074-CA-00335, 2008-Ohio-3654.

{¶22} We find Appellant has waived his right to appeal the propriety of the trial court's suppression ruling by entering pleas of guilty to all charges. The second assignment of error is overruled.

{¶23} The judgment of the Licking County Common Pleas Court is affirmed. By: Hoffman, P.J. Baldwin, J. and Wise, Earle, J. concur