[Cite as State v. Morris,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100785

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

ANDRE D. MORRIS, III DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-576929-A

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

RELEASED AND JOURNALIZED: September 18, 2014 2

ATTORNEY FOR APPELLANT

Edward M. Heindel 450 Standard Building 1370 Ontario Street Cleveland, Ohio 44113

Andre D. Morris, III Inmate No. #650-916 Allen Oakwood Correctional Institution P.O. Box 4501 Lima, Ohio 45802

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Yosef M. Hochheiser Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 3 PATRICIA ANN BLACKMON, J.:

{¶1} Appellant Andre D. Morris, III (“Morris”) appeals his guilty plea and

sentence and assigns the following two errors for our review:

I. The trial court did not comply with Criminal Rule 11 before accepting Morris’s guilty plea and the plea of guilty was not knowingly, intelligently, and voluntarily made.

II. The trial court erred when it imposed a prison sentence of 18 months. The trial court did not properly consider R.C. 2929.11 and R.C. 2929.12 in determining that a prison sentence was necessary.

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

plea and sentence. The apposite facts follow.

{¶3} The Cuyahoga County Grand Jury indicted Morris for one count of

felonious assault. The charge arose from Morris’s biting off part of the victim’s finger.

{¶4} While the matter was pending, Morris filed a motion to be referred to the

psychiatric clinic to determine his competency at the time he committed the act and to

determine if his case should be transferred to the mental health docket. The psychiatrist

found Morris was sane at the time of the act and that his post-traumatic stress disorder

(“PTSD”) did not make him eligible to be transferred to the mental health docket. The

psychiatrist also found that Morris was capable of understanding the proceedings and able

to assist his counsel. Defense counsel stipulated to the accuracy of the psychiatrist’s

conclusions.

{¶5} Thereafter, Morris entered a plea to attempted felonious assault. The trial

court sentenced him to 18 months in prison. 4 Invalid Plea

{¶6} In his first assigned error, Morris argues that his guilty plea was invalid

because the trial court did not properly explain to Morris his right against

self-incrimination and also claims that he was confused at the hearing; therefore, he

contends his plea was not a “knowing, intelligent, and voluntary plea.”

{¶7} The trial court must strictly comply with those provisions of Crim.R. 11(C)

that relate to the waiver of constitutional rights. State v. Veney,

,

,

, syllabus; State v. Stewart,

,

(1977); State v. Ballard,

,

(1981), at

paragraph one of the syllabus. The privilege against compulsory self-incrimination is a

constitutional right requiring “strict compliance.” “Strict compliance” does not require

an exact recitation of the precise language of the rule, but instead focuses on whether the

trial court explained or referred to the right in a manner reasonably intelligible to that

defendant.

{¶8} In the instant case, the trial court advised Morris as follows:

Court: Do you understand that you cannot be forced to testify against yourself at trial?

Defendant: Yes.

Court: Do you understand that if you choose not to testify at trial that your silence cannot be used against you in an attempt to prove your guilt?

Defendant: Yes, ma’am.

Tr. 19. 5 {¶9} This advisement complied with Crim.R. 11(C). Morris contends the trial

court was required to explain to Morris that “a jury would be told that Morris has a right

not to testify and that the jury could not draw any inference as a result of that silence, nor

could it be used to infer Morris’s guilt.” Appellant’s Brief at 11. However, Crim.R.

11(C) does not require such an in-depth explanation. The court only has to explain his

privilege against self-incrimination in a manner reasonably intelligible to the defendant.

The above advisement satisfies this requirement.

{¶10} Morris also contends his plea was not knowingly, voluntarily, or

intelligently entered because he was confused at the hearing as evidenced by his remarks

that he “kind of” and “roughly” understood what was going on and that he initially pled

“no contest” instead of “guilty.”

{¶11} Before accepting a guilty plea, Crim.R. 11 requires the trial court to

personally address a defendant to determine if the plea is voluntary, and that the

defendant understands both the plea itself as well as the rights waived by pleading

guilty. See Crim.R. 11(C)(2). In determining whether a guilty plea is voluntarily,

intelligently, and knowingly made, the court must look to the totality of the

circumstances. State v. Calvillo,

,

(8th

Dist. 1991), citing State v. Carter,

,

(1979).

{¶12} In the instant case, prior to taking Morris’s plea, the trial court gave him

time to discuss the plea with his attorney. After the prosecutor explained the plea

agreement, defense counsel stated that he had advised his client and that he felt his client 6 was prepared to enter a “knowing, intelligent, and voluntary plea to the amended

incitement as related by the prosecutor.” Tr. 12.

{¶13} Before taking the plea, the trial court advised Morris:

[I]f you have any questions at any time throughout these proceedings,

please do not hesitate to let me know because I will give you the

opportunity to speak with your attorney, okay?

Tr. 12.

{¶14} The court then asked him his age and name and asked him if he understood

the plea? Morris responded “Roughly, yes, ma’am.” The court responded: “If you

have questions again as we go through this, feel free to tell me that, and I will allow you

to speak with your attorney or you can speak to me directly, okay?” Tr. 13. Morris

responded “yes ma’am” and asked no questions.

When the trial court asked him if his PTSD and the medication he was taking affected his

ability to “understand what’s happening here today,” the following dialogue occurred:

Morris: Yes and no. I mean, honestly, I’m kind of scared to death. I’m not going to lie about it.

Court: Aside from being scared, are you able, though, to understand what’s happening?

Morris: Yeah.

Tr. 15.

{¶15} The court then proceeded to advise him of the rights he was waiving. Prior

to explaining the rights, the court again stated: 7 Court: Mr. Morris, you have rights afforded to you by the State of Ohio and the United States constitutions. I am about to advise you of those rights. Again, do not hesitate to let me know if you have any questions, okay?

Morris: Yes, ma’am.

Tr. 17.

{¶16} The court then proceeded to advise him of his rights that he was waiving,

the terms of the plea, and the maximum sentence he was facing. The court then asked:

Court: Mr. Morris, do you understand the penalties you face by entering a guilty plea?

Morris: Yes, ma’am.

Court: Do you have any questions about the penalties you face?

Morris: Not now, ma’am, no.

Court: Do you have any questions about these proceedings?

Morris: No, ma’am.

Tr. 21-22.

{¶17} When the trial court explained postrelease control to Morris, it had stated

that the postrelease control was part of the sentence and could be imposed up to three

years. The trial court then inquired whether it had complied with Crim.R. 11 in

explaining the plea, and the prosecutor took that opportunity to discuss the postrelease

control. The prosecutor clarified with the court that because the crime was one of

violence, the postrelease control was a mandatory three years. The trial court asked if

Morris understood that the postrelease control would be mandatory, not discretionary, 8 Morris answered: “kind of.” The court then reexplained the postrelease control and

asked if he now understood. He replied: “Yes, ma’am, as you said, yeah.” The court

further inquired “do you have questions about it?” and Morris responded, “not now.”

{¶18} When the court then asked Morris how he pleaded, he initially stated, “no

contest.” However, his attorney explained he had to plead “guilty,” and Morris

immediately stated he pled “guilty.” The court asked him again, “So you are pleading

guilty?” To which he responded, “yes ma’am.”

{¶19} Under the totality of the circumstances, we conclude Morris entered a

knowing, voluntarily, and intelligent plea. Every time he seemed confused, the trial

court reiterated that he could ask questions and each time he did not ask any questions

and told the court he understood. Therefore, based on the fact the court psychiatrist

found Morris competent and the parties stipulated to his competency, the trial court did

not err by relying on Morris’s assertions that he understood the plea. Accordingly,

Morris’s first assigned error is overruled.

Seriousness and Recidivism

{¶20} In his second assigned error, Morris argues the trial court failed to consider

the factors under R.C. 2929.11 and 2929.12 prior to entering the sentence.

{¶21} Morris claims that the following factors favored a lighter sentence: (1) the

fact the victim was under the influence of PCP, crack cocaine, and alcohol at the time of

the incident, (2) the presentence report indicated he was at a moderate risk of reoffending,

(3) he was a homeless veteran, and (4) he suffered from PTSD. 9 {¶22} R.C. 2929.11 and 2929.12 outline the general purposes and principles to be

achieved in felony sentencing. R.C. 2929.11(A) provides that the “overriding purposes

of felony sentencing are to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions that the court determines

accomplish those purposes.” R.C. 2929.11(B) requires that, in addition to achieving

these goals, a sentence must be “commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim.”

{¶23} R.C. 2929.12 provides a non-exhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the

likelihood that the defendant will commit another offense in the future. State v.

Townsend, 8th Dist. Cuyahoga No. 99896,

, citing State v. Arnett,

,

,

. The factors include: (1) the

physical, psychological, and economic harm suffered by the victim, (2) the defendant’s

prior criminal record, (3) whether the defendant shows any remorse, and (4) any other

relevant factors. R.C. 2929.12(B) and (D).

{¶24} The trial court’s journal entry states that the court considered “all required

factors of the law” and concluded that prison is consistent with the purposes of R.C.

2929.11. Although there is a mandatory duty to “consider” the statutory factors, the trial

court is not required to explain its analysis of those factors in a given case. Townsend at

¶ 11-12. The trial court’s statement that it considered the required statutory factors,

without more, is sufficient to fulfill its obligations under the sentencing statutes. State v. 10 Kamleh, 8th Dist. Cuyahoga No. 97092,

, citing State v. Payne,

,

,

.

{¶25} Nevertheless, the court acknowledged on the record: (1) Morris had a

history of violence because of a prior involuntary manslaughter conviction, (2) the

victim’s injury was severe (she has gone through two surgeries), (3) Morris has a

substance abuse problem, (4) Morris’s mental condition makes him more volatile, (5) and,

community control would not impose the restrictions necessary to protect the public.

The court acknowledged that his sentence would make it difficult for Morris to find

housing after he is released from jail, but stated it did not outweigh the court’s fear for the

public’s safety. After discussing the above factors, the trial court stated:

So having considered all those things, including the purposes and principles of sentencing under Revised Code section 2929.11 and the seriousness and recidivism factors relevant to the offense and offender, pursuant to Revised Code section 2929.12, and the need for deterrence, incapacitation, rehabilitation, and restitution, the Court finds that a prison sentence is consistent with the purposes and principles of sentencing under Revised Code section 2929.11 and that the defendant is not amenable to a community control sanction due to the seriousness of the defendant’s conduct and its impact on the victim, and because it is reasonably necessary to deter the offender in order to protect the public from future crimes and because it would not place an unnecessary burden on government resources.

Tr. 39.

{¶26} As we held in State v. Warner, 8th Dist. Cuyahoga No. 100197,

: “Discounting some factors, even if considered to mitigate against a

longer term of imprisonment, against other factors that weigh in favor of a longer prison

sentence, does not render a prison sentence as one being imposed contrary to law.”

at 11 ¶ 13. Thus, the record shows the court considered the purposes and principles of felony

sentencing set forth in R.C. 2929.11 and the relevant seriousness and recidivism factors

listed in R.C. 2929.12. Accordingly, Morris’s second assigned error is overruled.

{¶27} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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

FRANK D. CELEBREZZE, JR., P.J., and EILEEN T. GALLAGHER, J., CONCUR