[Cite as State v. McDaniel,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT VINTON COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No: 09CA677 : v. : : DECISION AND Shaune A. McDaniel, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 10-22-10

APPEARANCES:

Katherine A. Szudy, Columbus, Ohio, for the Appellant.

Austin B. Campbell, Vinton County Prosecutor, McArthur, Ohio, for the Appellee.

Kline, J.:

{¶1} Shaune A. McDaniel appeals from the judgment of the Vinton County

Common Pleas Court. McDaniel pleaded guilty to aggravated robbery. On appeal,

McDaniel contends that, during his change of plea hearing, the trial court failed to

adequately inform him of his right to compulsory process and of the maximum potential

sentence. As such, McDaniel maintains that the trial court failed to ensure that his plea

was a knowing, intelligent, and voluntary one. But we hold that the language used by

the trial court reasonably apprised McDaniel of his right to compulsory process and that Vinton App. No. 09CA677 2

the trial court was not obliged to mention the imposition of court costs, as part of his

maximum potential sentence, when considering McDaniel’s plea.

{¶2} McDaniel next contends that the trial court erred by failing to orally announce

the imposition of court costs during his sentencing hearing. But we find that the

transcript of the hearing indicates that the trial court did, in fact, orally impose court

costs at the sentencing hearing. Accordingly, we affirm the judgment of the trial court.

I.

{¶3} On March 4, 2009, the Vinton County grand jury returned a three-count

indictment against McDaniel. The indictment alleged that McDaniel had engaged in

conduct that constituted (1) aggravated robbery in violation of R.C. 2911.01(A)(3); (2)

felonious assault in violation of R.C. 2903.11(A)(1); and (3) criminal conspiracy in

violation of R.C. 2923.01(A).

{¶4} On November 6, 2009, McDaniel changed his plea from not guilty to guilty.

At this hearing, McDaniel entered a plea of guilty to aggravated robbery, and the State,

in return for this plea, dismissed counts two and three. During the plea colloquy, the

trial court informed McDaniel of the constitutional rights he was waiving by entering this

plea. During the trial court’s explanation of McDaniel’s rights, the trial court stated the

following: “Also, you’re waiving your right to bring in your own witnesses to subpoena

those witnesses if necessary, to come in as a part of your defense. Do you understand

you are waiving that right?” Transcript of November 5, 2009 Hearing at 6.

{¶5} The trial court made no mention of court costs when considering whether to

accept McDaniel’s guilty plea. The trial court also made no mention that it was

empowered to order McDaniel to perform community service in the event that he was Vinton App. No. 09CA677 3

unable to pay the court costs. Immediately after accepting McDaniel’s plea of guilty, the

trial court held a sentencing hearing and sentenced McDaniel to a nine-year sentence

for his aggravated robbery conviction. During the sentencing phase of the hearing, the

trial court stated: “[McDaniel] is further ordered to pay all court costs for which execution

is awarded in accordance with Revised Code 2947.23[.]” Transcript of November 5,

2009 hearing at 10.

{¶6} McDaniel appeals the judgment of the trial court and assigns the following

errors for our review: I. “[McDaniel] was deprived of his right to due process under the

Fourteenth Amendment to the United States Constitution and Section 10, Article I of the

Ohio Constitution when the trial court accepted an unknowing, unintelligent, and

involuntary guilty plea. (Plea and Sentencing Hearing Transcript, pp. 3-11).” And, II.

“The trial court erred when it failed to address the imposition of court costs in open

court, and then included such costs in [McDaniel’s] sentencing entry. (November 5,

2009 Guilty Plea and Judgment Entry of Conviction and Sentence; Plea and Sentencing

Hearing Transcript, pp. 1-14).”

II.

{¶7} McDaniel first contends that the trial court failed to ensure that his guilty plea

was a knowing, intelligent, and voluntary waiver of his constitutional rights. Specifically,

McDaniel contends that the trial court both failed to adequately explain his right to

compulsory process and failed to explain the maximum potential sentence.

{¶8} In determining whether to accept a guilty plea, the trial court must determine

whether the defendant’s plea was made knowingly, intelligently, and voluntarily. See

State v. Johnson (1988),

, at syllabus; Crim.R. 11(C). “In considering Vinton App. No. 09CA677 4

whether a guilty plea was entered knowingly, intelligently and voluntarily, an appellate

court examines the totality of the circumstances through a de novo review of the record

to ensure that the trial court complied with constitutional and procedural safeguards.”

State v. Eckler, Adams App. No. 09CA878,

, at ¶48 (quotations

omitted). Before accepting a guilty plea, the trial court should engage in a dialogue with

the defendant as described in Crim.R. 11(C). See State v. Morrison, Adams App. No.

07CA854,

.

{¶9} In part, Crim.R. 11(C)(2) 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:

{¶10} “(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved[.]

{¶11} “* * *

{¶12} “(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.”

{¶13} “Substantial compliance with the provisions of Crim.R. 11(C)(2)(a) and (b) is

sufficient to establish a valid plea.” State v. Vinson, Franklin App. No. 08AP-903, 2009-

Ohio-3240, at ¶6, citing State v. Mulhollen (1997),

; see, also,

State v. Nutt, Ross App. No. 06CA2927,

. “Substantial Vinton App. No. 09CA677 5

compliance means that, under the totality of the circumstances, appellant subjectively

understood the implications of his plea and the rights he waived.” Vinson at ¶6, citing

State v. Carter (1979),

; see, also, Morrison at ¶9. However, “[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 (1) the right to a jury trial, (2) the

right to confront one’s accusers, (3) the right to compulsory process to obtain witnesses,

(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the

privilege against compulsory self-incrimination. When a trial court fails to strictly comply

with this duty, the defendant’s plea is invalid.” State v. Veney,

,

, syllabus. See, also, State v. Ballard (1981),

, at

paragraph one of the syllabus. “Appellant need not be advised of those rights in the

exact language of Crim.R. 11(C), but he must be informed of them in a reasonably

intelligible manner.” Vinson at ¶6, citing Ballard, at paragraph two of the syllabus.

{¶14} A defendant who challenges his guilty plea on the basis that it was not

knowingly, intelligently, and voluntarily made must show a prejudicial effect. See State

v. Stewart (1977),

; Crim.R. 52(A). “The test is whether the plea

would have otherwise been made.” State v. Nero (1990),

; State

v. Corbin,

,

.

{¶15} McDaniel contends that two errors on the part of the trial court indicate that

the trial court failed to comply with the requirements of Crim.R. 11.

{¶16} First, McDaniel claims that the trial court failed to adequately explain

McDaniel’s right to compulsory process. As noted above, the trial court is obliged to

use words that reasonably explain the constitutional rights that a defendant’s guilty plea Vinton App. No. 09CA677 6

waives. At the hearing, the trial court characterized McDaniel’s right to compulsory

process as follows: “you’re waiving your right to bring in your own witnesses to

subpoena those witnesses if necessary, to come in as a part of your defense. Do you

understand you are waiving that right?”

{¶17} The gist of McDaniel’s argument seems to be that this question did not

sufficiently inform him that he could compel witnesses to testify. McDaniel cites no

cases directly on point for his contention that the above passage does not reasonably

inform a defendant of his right to compulsory process. And our review of Ohio cases

indicates that other courts have found similar statements sufficient. State v. Ward,

Montgomery App. No. 21044,

(court’s statement that the

defendant was giving up his right to have his own witnesses come and testify was

“adequate, if less than ideal.”); State v. Anderson (1995),

(finding that “[y]ou are giving up your right to call witnesses on your own behalf”

informed the defendant in a reasonably intelligible manner); State v. Thomas, Franklin

App. No. 04AP-866,

(finding that “right to have your witnesses,

should you have any, subpoenaed to the courtroom” informed the defendant in a

reasonably intelligible manner).

{¶18} Some districts in Ohio have required the trial court to specifically inform the

defendant of the power to compel the attendance of witnesses. State v. Gardner,

Lorain App. No. 08CA009520,

, at ¶9 (court failed to reasonably apprise

defendant of his right because it did not inform him that he could use the court’s

subpoena power to compel witnesses’ attendance); State v. Wilson, Cuyahoga App. No.

82770,

(“The trial court must inform a defendant that it has the Vinton App. No. 09CA677 7

power to force, compel, subpoena, or otherwise cause a witness to appear and testify

on the defendant’s behalf. Otherwise, the logical import of the court’s notice is that the

defendant could present such witnesses as he could only secure through his own

efforts.”) (emphasis sic); State v. Parks, Cuyahoga App. No. 86312,

(“This court has held that the use of the word ‘subpoena’ adequately informs the

defendant of his right to compulsory process.”).

{¶19} Here, we note that even under the more restrictive cases, the trial court’s

statement is satisfactory because the statement indicates that McDaniel could have had

the court issue subpoenas to ensure the presence of witnesses. The gist of the trial

court’s statement was that McDaniel had the right to subpoena witnesses to testify at

any potential trial. We find that this would reasonably apprise an individual of the nature

of his constitutional right to compulsory process.

{¶20} Second, McDaniel contends that his plea was invalid because the trial court

failed to substantially comply with the requirement that the trial court inform the accused

of the maximum potential penalty for his offense. Crim.R. 11(C)(2)(a). Here, McDaniel

contends that the trial court failed to inform him that he would be obliged to pay court

costs and that if he failed to pay court costs, the trial court could order him to perform

community service. McDaniel analogizes the failure to mention costs to the failure to

advise a defendant of a mandatory term of post release control. McDaniel therefore

cites a case from the Supreme Court of Ohio for the principle that his plea is invalid.

See State v. Sarkozy,

,

.

{¶21} However, the Supreme Court of Ohio has recently stated that court “costs are

distinct from criminal punishment. ‘[A]lthough costs in criminal cases are assessed at Vinton App. No. 09CA677 8

sentencing and are included in the sentencing entry, costs are not punishment, but are

more akin to a civil judgment for money.’” State v. Joseph,

, 2010-

Ohio-954, at ¶20, quoting State v. Threatt,

,

, at ¶15.

Court costs are not punishment and therefore are not part of the “penalty” that the trial

court needs to describe under Crim.R. 11(C)(2)(a). Therefore, McDaniel fails to

establish that the trial court failed to substantially comply with the requirements of

Crim.R. 11(C)(2)(a).

{¶22} Accordingly, we overrule McDaniel’s first assignment of error.

III.

{¶23} In his second assignment of error, McDaniel contends that the trial court erred

by failing to orally impose court costs during the sentencing phase of the hearing. The

State agrees, and admits that this Court should reverse and remand the matter to the

trial court in order for the trial court to consider a waiver of costs due to indigency

pursuant to Joseph. In Joseph, the Supreme Court of Ohio held that the trial court erred

by failing to orally impose court costs at the defendant’s hearing.

. The

Court then remanded for the limited purpose of allowing the defendant “to move the

court for a waiver of the payment of court costs.” Id. at ¶23.

{¶24} We find this admission from the State anomalous because, during the

sentencing portion of the hearing, the trial court stated that “[McDaniel] is further

ordered to pay all court costs for which execution is awarded in accordance with

Revised Code 2947.23[.]” R.C. 2947.23(A) is the section that mandates the imposition

of court costs in all criminal cases. Vinton App. No. 09CA677 9

{¶25} We find this case distinguishable from Joseph because the trial court orally

imposed court costs with specific reference to the relevant section of the Ohio Revised

Code.

{¶26} Accordingly, we overrule McDaniel’s second assignment of error.

IV.

{¶27} Having overruled both of McDaniel’s assignments of error, we affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Vinton App. No. 09CA677 10

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Vinton County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.