[Cite as State v. Simonoski,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98496

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ACO SIMONOSKI DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-553775

BEFORE: Blackmon, J., Stewart, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: March 21, 2013 ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Melissa Riley Gregory Mussman Assistant County Prosecutors 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Appellant Aco Simonoski (“Simonoski”) appeals his plea and sentence for

attempted murder and felonious assault and assigns five errors for our review.1

{¶2} Having reviewed the record and pertinent law, we affirm Simonoski’s

convictions. The apposite facts follow.

Facts

{¶3} On April 20, 2010, the Cuyahoga County Grand Jury indicted Simonoski

for attempted murder, four counts of felonious assault, and two counts of domestic

violence. The charges arose from Simonoski striking his wife in the head and neck with

an ax during a domestic dispute. He also struck his daughter on her hand with the ax,

when she attempted to stop him from killing her mother. The wife survived the attack

but due to her injuries she is living in a nursing home.

{¶4} Simonoski entered a no contest plea on March 30, 2012; the trial court

continued the sentencing until after it received a presentence investigation report (“PSI”).

On May 2, 2012, the trial court sentenced Simonoski to ten years for the attempted

murder of his wife and merged all other counts pertaining to her. The court also

sentenced Simonoski to eight years in prison for the felonious assault count against his

daughter and merged the remaining counts pertaining to her. The trial court ordered the

sentences to run consecutively, resulting in a total of 18 years in prison.

Consecutive Sentences

1 See appendix. {¶5} In his first assigned error, Simonoski contends the trial court erred when it

sentenced him to consecutive prison terms because it was contrary to law. Specifically,

he argues that pursuant to R.C. 2929.41(A) there is a presumption that a sentence is

concurrent unless it includes one of the exceptions listed in the statute. When Simonoski

was sentenced in May 2012, R.C. 2929.41(A) stated:

Except as provided in division (B) of this section, division (E) of section

2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a

prison term, jail term, or sentence of imprisonment shall be served

concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the

United States. Except as provided in division (B)(3) of this section, a jail

term or sentence of imprisonment for misdemeanor shall be served

concurrently with a prison term or sentence of imprisonment for felony

served in a state or federal correctional institution.

{¶6} Simonoski argues that because none of the listed exceptions pertained to

him, the court should have imposed concurrent sentences. This court has previously

addressed prior R.C. 2929.41(A) and has held that the statute’s reference to R.C.

2929.14(E) is a typographical error and that the legislature meant to state R.C.

2929.14(C)(4), which concerns making findings prior to imposing a consecutive sentence.

State v. Walker, 8th Dist. No. 97648,

; State v. Ryan, 8th Dist.

No. 98005,

. Relying on our case in Ryan, the Second District in State v.

Hess, 2d Dist. No. 25144,

, ¶ 11 and 13, explained: With H.B. 86, Ohio’s sentencing scheme again requires judicial fact-finding for consecutive sentences. R.C. 2929.41(A), which was severed by Foster, was reenacted without alteration. Former R.C. 2929.14(B) and (C), which had been severed, were formally deleted, and the judicial fact-finding requirement for consecutive sentencing, previously set forth in R.C. 2929.14(E), was reenacted and codified as R.C. 2929.14(C).

***

R.C. 2929.41(A), as amended by H.B. 86, failed to reflect the renumbering of the judicial fact-finding requirements for consecutive sentencing from R.C. 2929.14(E) to R.C. 2929.14(C). And it is apparent that the reference to R.C. 2929.14(E), rather than R.C. 2929.14(C), in R.C. 2929.41(A) is a typographical error. As noted by the Eighth District, given that R.C. 2929.41(A), as amended by H.B. 86, already referred to specific subsections of R.C. 2971.03, ‘the further reference to R.C. 2929.14(E), which points to other portions of R.C. 2971.03, appears to be surplusage.* * * [C]ourts must avoid statutory interpretations that render any part of a statute “surplusage or nugatory.”’ State v. Ryan, 8th Dist. Cuyahoga No. 98005,

, citing Westgate Ford Truck Sales, Inc. v. Ford Motor Co., 2012-Ohio -1942,

, ¶ 14 (8th Dist.).

{¶7} In fact, the legislature made its intent clear by recently amending the section

in September 2012, to change the (E) to (C). Accordingly, we conclude the trial court

correctly interpreted the statute and did not err by imposing consecutive sentences.

Accordingly, Simonoski’s first assigned error is overruled.

Effect of Plea

{¶8} In his second assigned error, Simonoski argues the trial court failed to

comply with Crim.R. 11 because it failed to explain to him the effect of his plea. The

effect of a no contest plea is set forth in Crim.R. 11(B)(2), which states:

The plea of no contest is not an admission of defendant’s guilt [as is the effect of a guilty plea], but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.

{¶9} Informing a defendant of the effect of his or her plea is a nonconstitutional

right, and, therefore, is subject to review for substantial compliance rather than strict

compliance. State v. Griggs,

,

,

, ¶

11-12. “Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is

waiving.” State v. Nero,

,

(1990). Furthermore,

“failure to comply with nonconstitutional rights will not invalidate a plea unless the

defendant thereby suffered prejudice.” Griggs at ¶ 12. The test for prejudice is

“whether the plea would have otherwise been made.”

.

{¶10} Our review of the record shows that Simonoski subjectively understood the

effects of his plea. The trial court explained to Simonoski the possible maximum

sentence, the rights he was waiving, and the fact he will be deported upon being released

from prison. Although the court did not explicitly inform Simonoski that he was

admitting the facts in the indictment, the court read the indictment for each charge and

Simonoski stated he pled no contest to each one. Additionally, the court asked counsel,

who is also the counsel on appeal, whether he was satisfied that the court complied with

Crim.R. 11, and counsel responded that he was. Additionally, the court asked

Simonoski, “Is there anything about this case or these proceedings that you do not

understand or that you would like more fully explained?” Simonoski responded, “I

understand,” and his counsel responded, “He understands.” {¶11} Further, even if the court failed to substantially comply with explaining the

effects of his plea, Simonoski still has to prove he was prejudiced by the court’s failure.

Simonoski argues that the fact there was no compliance absolves him of the duty to prove

he was prejudiced and cites to cases dealing with misdemeanors and one dealing with the

failure to advise regarding postrelease control. However, although that may be the law

as to misdemeanors and postrelease control, the Ohio Supreme Court has consistently

held that the court’s failure to tell the defendant the effect of a plea to a felony, does not

invalidate the plea unless appellant shows that he was prejudiced by the court’s failure to

substantially comply with the rule. State v. Griggs,

,

,

, ¶ 12; State v. Jones,

,

,

; State v. Veney,

,

,

. See also State v. Petitto, 8th Dist. No. 95276,

(court’s

failure to advise the defendant regarding the effect of the plea did not prejudice the

defendant).

{¶12} To show prejudice, Simonoski must demonstrate that he would not have

entered a no contest plea if the court provided more detail regarding the effects of his

plea.

Simonoski provides no support for his contention that he was prejudiced.

Moreover, as we held in Petitto:

[T]he court did not specifically ask appellant if he understood that his

plea was a complete admission of his guilt. Nonetheless, the Ohio

Supreme Court has held that unless a defendant asserts “actual

innocence,” “he is presumed to understand that he has completely admitted his guilt,” and a “court’s failure to inform the defendant of

the effect of his guilty plea as required by Crim.R. 11 is presumed not

to be prejudicial.” State v. Griggs,

,

,

, syllabus; see also, State v. Taylor, Cuyahoga App. No.

94569,

; State v. Thomas, Cuyahoga App. No. 94788,

. Id. at ¶ 8.

{¶13} Although the Petitto, Taylor, and Thomas decisions all concerned guilty

pleas, we conclude the same analysis applies to no contest pleas. Simonoski never

asserted his innocence; therefore, we presume the court’s failure to advise him regarding

the effect of his no contest plea was not prejudicial.

{¶14} The cases cited to by Simonoski in support of his argument are

distinguishable because they are misdemeanor cases in which the court pursuant to both

Crim.R. 11(E) and Traf.R. 10 has to advise the defendant of the effect of the plea. “A

trial court’s obligations in accepting a plea depend upon the level of offense to which the

defendant is pleading.” Jones,

,

,

. Unlike in felony cases, misdemeanor cases only require the court to advise the

defendant of the effect of the plea; the court is not required to advise the defendant

pursuant to Crim.R. 11(C). Accordingly, Simonoski’s second assigned error is

overruled.

Sentence Based on Evidence Outside the Plea

{¶15} In his third and fourth assigned errors, Simonoski argues the trial court

erred by imposing a maximum, consecutive sentence because the court relied on facts not in the indictment or admitted at the time of the hearing, and that because the trial court

engaged in a rote recitation of the sentencing statute, it failed to engage in an independent

analysis.

{¶16} At the hearing, the trial court reviewed the presentence investigation report,

photographs from the crime scene, and the victim impact statements given by

Simonoski’s children. One of Simonoski’s daughters was also present when Simonoski

attempted to murder her mother, and in fact, was also struck by the ax. Therefore, her

impact statement included a recitation of the event and how mentally she will suffer from

the horrific memories the rest of her life. Simonoski’s wife was unable to speak for

herself because of the injuries she suffered from the attack, she resides in a nursing home.

However, Simonoski’s daughter described the impact the assault had on her mother.

Her mother no longer can see, talk, or perform basic life functions due to the brain

injuries caused by being struck by the ax. All of Simonoski’s children asked the court to

impose the maximum sentence.

{¶17} We conclude consideration of all this evidence was appropriate in

determining the sentence to be imposed. Pursuant to R.C. 2930.14, the victims can give

oral or written statements at the hearing in which they detail the harm suffered and

sanction that should be imposed. The trial court also did not err by reviewing the

photographs and PSI prior to sentencing. R.C. 2947.06; State v. Page, 8th Dist. No.

90485,

.

{¶18} Our review of the record also shows the trial court engaged in the

appropriate analysis in deciding to impose a maximum, consecutive sentence. With the enactment of Am.Sub.H.B. No. 86, effective September 30, 2011, the General Assembly

has revived the requirement that trial courts make findings before imposing consecutive

sentences under R.C. 2929.14(C). State v. Bonner, 8th Dist. No. 97747,

. Under R.C. 2929.14(C)(4), in imposing consecutive sentences, the

trial court must first find that the sentence is necessary to protect the public from future

crime or to punish the offender. Next, the trial court must find that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the

danger the offender poses to the public.

{¶19} Finally, the trial court must find that at least one of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or

sentencing, while under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or

2929.18, or while under postrelease control for a prior offense; (2) at least two of the

multiple offenses were committed as part of one or more courses of conduct, and the

harm caused by two or more of the offenses was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct; or (3) the offender’s history

of criminal conduct demonstrates that consecutive sentences are necessary to protect the

public from future crime by the offender. R.C. 2929.14(C)(4)(a)-(c).

{¶20} As Simonoski concedes, the trial court stated the requirements listed in the

statute verbatim; however, Simonoski argues the trial court should have engaged in an

independent analysis. There was no reason for the court to state its reasons for the

findings. The General Assembly deleted R.C. 2929.19(B)(2)(c) in H.B. 86. This was the provision in S.B. 2 that had required sentencing courts to state their reasons for

imposing consecutive sentences on the record. Accordingly, a trial court is not required

to articulate and justify its findings at the sentencing hearing. Thus, although a trial court

is free to articulate or justify its findings, there is no statutory requirement that it do so.

State v. Goins, 8th Dist. No. 98256,

.2

{¶21} Accordingly, Simonoski’s third and fourth assigned errors are overruled.

Sentence Constitutes Cruel and Unusual Punishment

{¶22} In his fifth assigned error, Simonoski argues the trial court’s imposition of

the maximum, consecutive sentence constitutes cruel and unusual punishment because he

suffered from alcoholism and major depressive disorder at the time he committed the acts.

{¶23} There was no evidence presented at the plea or sentencing hearings

showing that Simonoski suffered from alcoholism or major depressive disorder. A

review of the PSI also does not show that Simonoski suffered from these conditions.

The court sentenced Simonoski based solely on the acts he committed. Accordingly,

Simonoski’s fifth assigned error is overruled.

{¶24} Judgment affirmed.

It is ordered that appellee recover of appellant its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

We note that although Simonoski incredulously argues there was no mental 2

or physical harm in this case, the trial court spoke of the horrific physical injuries suffered by Simonoski’s wife and daughter, and the mental injury caused by Simonoski’s actions, which will forever haunt the daughter. It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, A.J., and MARY EILEEN KILBANE, J., CONCUR

APPENDIX

Assignments of Error

I. Defendant was denied due process of law when the court imposed a consecutive sentence in violation of statutory law.

II. Defendant was denied due process of law when the court accepted a plea of no contest without informing defendant concerning the effect of a plea of no-contest. III. Defendant was denied his rights under the Sixth Amendment when the court based its sentence on facts neither alleged in the indictment not admitted at the time of the plea of no-contest.

IV. Defendant was denied due process of law when the court, by rote incantation, imposed maximum consecutive sentences.

V. Defendant was subjected to cruel and unusual punishment when his criminal activities were, in part, caused by alcohol dependency and major depressive disorder.