[Cite as State v. Phillips,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102364

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

PHILLIP REED

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-585352-B, CR-14-586038-A, and CR-14-587733-B

BEFORE: Celebrezze, J., E.A. Gallagher, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: February 25, 2016 ATTORNEY FOR APPELLANT

Carmen P. Naso Milton A. Kramer Law Clinic 11075 East Boulevard Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Kelly N. Mason Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Phillip Reed, brings the instant appeal challenging the pleas he

entered in three cases. He claims the trial court failed to comply with Crim.R. 11 when

the court did not ensure that appellant understood the nature of the pleas and failed to

inquire about his mental state when engaging him in a plea colloquy. After a thorough

review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} Appellant, along with another, engaged in a series of thefts that occurred

between June 12, 2013, and March 27, 2014. Appellant was indicted in three separate

cases. In Cuyahoga C.P. No. CR-14-585352-B, appellant was charged with eight counts

related to theft from a U-Haul location. In Cuyahoga C.P. No. CR-14-586038-A,

appellant was charged with three counts related to theft from New Creation Builders,

L.L.C. In Cuyahoga C.P. No. CR-14-587733-B, appellant was charged with eight counts

related to theft from a Baker’s Square location. According to the state’s description,

appellant and another stole U-Haul trucks and used them to transport metal items stolen

from other businesses and then returned the trucks before anyone realized they were

missing. Appellant also used fraudulent checks to pay New Creation Builders for the

construction of a residential garage.

{¶3} On September 23, 2014, appellant agreed to change his pleas to guilty in

accordance with a plea agreement offered by the state. In C.P. No. CR-14-585352-B,

appellant pled guilty to three counts of grand theft, violations of R.C. 2913.02(A)(1), and one count of vandalism, a violation of R.C. 2909.05(B)(1). The remaining counts were

dismissed pursuant to the agreement. In C.P. No. CR-14-586038-A, appellant pled guilty

to two counts of forgery, violations of R.C. 2913.31(A)(3), and the remaining count was

dismissed. Finally, in C.P. No CR-14-587733-B, appellant pled guilty to one count of

breaking and entering, a violation of R.C. 2911.13(B), and one count of receiving stolen

property, a violation of R.C. 2913.51(A). The court then ordered a presentence

investigation report and set the matter for sentencing.

{¶4} On October 29, 2014, the court held a combined sentencing hearing. The

court went through appellant’s significant criminal history and heard from the state,

appellant’s counsel, and appellant. The court imposed a total prison sentence of 36

months.

{¶5} Appellant sought and was granted leave by this court to file a delayed appeal.

Herein, he assigns one error for review:

I. The trial court failed to substantially comply with Criminal Rule 11 when it accepted Appellant Phillip Reed’s guilty plea to the amended charges in Case Nos. CR-14-585352, CR-14-586038, and CR-14-587733.

II. Law and Analysis

A. Knowing, Intelligent, and Voluntary Plea

{¶6} Appellant claims the court failed to ensure that appellant’s pleas were made

knowingly and intelligently because he misunderstood the consequences of his guilty

pleas when he asserted during the plea colloquy that he would receive probation or be placed in a community-based correctional facility. Appellant also asserts that the court

failed to engage appellant in questions surrounding his mental health after the court was

informed that appellant had a serious mental health diagnosis and was prevented from

taking prescribed medications.

{¶7} The process of accepting pleas of no contest and guilty is governed by

Crim.R. 11. Crim.R. 11© provides the trial court with certain requirements that must be

met before it may accept such pleas. “The underlying purpose, from the defendant’s

perspective, of Crim.R. 11© is to convey to the defendant certain information so that he

can make a voluntary and intelligent decision whether to plead guilty.” State v. Ballard,

,

(1981). The trial court must engage the

criminal defendant in an oral colloquy to ensure a knowingly, voluntarily, and

intelligently plea is entered. State v. Engle,

,

(1996).

{¶8} A trial court must strictly comply with the requirements related to the waiver

of constitutional rights under Crim.R. 11(C)(2)©. State v. Veney,

,

,

. For these constitutional rights, a plea is only

voluntary, intelligent, and knowing if the trial court engaged in meaningful dialogue with

the defendant which, in substance, explained the pertinent constitutional rights “in a

manner reasonably intelligible to that defendant.” Id. at ¶ 27, citing Ballard.

{¶9} For nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b), this

court determines whether there was “substantial compliance” with the rule. Veney at ¶ 14-17. “Substantial compliance” means that under the totality of the circumstances the

defendant subjectively understands the implications of his or her plea and the rights he or

she is waiving. State v. Nero,

,

(1990). “[I]f it

appears from the record that the defendant appreciated the effect of his plea and his

waiver of rights in spite of the trial court’s error, there is still substantial compliance.”

State v. Caplinger,

,

(4th Dist. 1995). Further, a

defendant must show prejudice before a plea will be vacated for a trial court’s error

involving Crim.R. 11© procedure when nonconstitutional aspects of the plea colloquy are

at issue. Veney at ¶ 17.

{¶10} Crim.R. 11(C)(2)(a) requires the court to determine that the defendant is

making the plea voluntarily, with understanding of the nature of the charges and of the

maximum penalty involved. Therefore, a trial court must substantially comply with this

requirement.

{¶11} In response to a question posed by the court about any promises regarding

possible sentences, appellant explained that it was his understanding that if he pled guilty

that he would receive either probation or placement in a community-based correctional

facility. Trial counsel then explained, “I never indicated to you what the Court would do.

I indicated possible probation, possible prison and there is CBCF available. But did I

ever indicate to you at any time what the Judge would do or make any promise what the

Judge would do?” Appellant responded, “No.” {¶12} This dispels any notion that appellant was promised community control if he

pled guilty. On the record, appellant’s attorney clarified appellant’s understanding of the

attorney’s explanation of possible sentencing ranges. Appellant claims the court should

be the one that inquires and explains. But here, there is sufficient evidence in the record

that the court substantially complied with Crim.R. 11 to ensure that no promises were

made or coercion employed to extract a guilty plea from appellant, and that his plea was

knowingly, intelligently, and voluntarily given with a full understanding of his rights and

the potential penalties he faced. Further, the trial court appropriately explained the

possible range of penalties to appellant for each of the charges he faced. Appellant

indicated he understood those possible penalties.

{¶13} Next, appellant argues that the court was required to inquire further into

appellant’s mental state during the plea colloquy.

{¶14} A criminal defendant is presumed competent to stand trial, and by extension,

enter a plea. R.C. 2945.37(G); State v. Tong, 8th Dist. Cuyahoga No. 64903,

(Mar. 10, 1994) (holding the standards used to evaluate each are the

same). Further, R.C. 2945.37(B) requires a hearing when competency issues are raised

prior to trial.

{¶15} Appellant’s attorney never indicated his client was not competent to enter a

plea. Counsel stated appellant had been diagnosed with “ADHD and bipolar” disorder

for which he was prescribed medication. Counsel further informed the court that appellant was unable to take his prescribed medication for a prolonged period of time due

to his incarceration awaiting trial.

{¶16} Apart from this statement, the record does not contain any indication that

would lead the trial court to question appellant’s ability to enter a knowing, intelligent,

and voluntary plea. The trial court personally addressed appellant and asked him several

questions in compliance with Crim.R. 11. Appellant’s responses were appropriate

answers to the questions posed. Appellant also indicated he understood the things said

by the court.

{¶17} R.C. 2945.37(F) provides,

The court shall not find a defendant incompetent to stand trial solely

because the defendant is receiving or has received treatment as a voluntary

or involuntary mentally ill patient * * * or because the defendant is

receiving or has received psychotropic drugs or other medication, even if

the defendant might become incompetent to stand trial without the drugs or

medication.

{¶18} Appellant is presumed competent to enter a plea, and the record in this case

does not contain any indication that appellant did not comprehend the colloquy that the

court conducted. The record indicates that the trial court fully informed appellant of his

constitutional rights and made sure appellant was making a knowing waiver of those

rights. This case stands in stark contrast to others where a defendant’s ability to enter a knowing and intelligent plea has been questioned. For example, the Sixth District was

faced with a case where issues of competency were observed by the trial court:

Thus, even with the repetitive coaxing and questioning, appellant was unable to sufficiently focus on and comprehend the nature and objectives of the proceedings. Many of appellant’s answers were non-responsive, indicating that she clearly did not understand that under a no contest plea, she would likely be found guilty, or even why she had been charged with the offense. Even the court itself expressed that it had difficulty discerning whether appellant’s inability to comprehend was due to lack of education or mental health issues. Nothing in the record indicates that appellant was “faking it,” nor did the trial court make such a finding. Instead, we conclude that appellant’s ability to understand or to become “educated” as to the legal issues involved was inextricably intertwined with her mental health and medication issues. Consequently, we conclude that the record shows that, due to her mental illness and somewhat limited cognitive abilities, appellant was unable to fully participate in her defense or to appreciate the ramifications of the no contest plea and subsequent conditions of sentencing.

State v. Nickell, 6th Dist. Wood No. WD-07-015,

.

{¶19} Where the record contained no similar evidence of bewilderment, confusion,

or an inability to understand the proceedings, the Second District found guilty pleas

validly entered. State v. Smith, 2d Dist. Montgomery Nos. 24264 and 24265,

. Similar to Smith, there is no indication in the record before

this court that appellant did not understand the plea colloquy.

{¶20} During the plea colloquy appellant gave appropriate responses to questions

posed by the trial court and it does not otherwise appear that he was unable to understand

the proceedings and intelligently enter a guilty plea. See State v. Jones, 1st Dist. Hamilton No. C-050112,

; State v. Smith, 4th Dist. Washington

No. 12CA11,

.

{¶21} While the court’s colloquy could have been more thorough regarding

appellant’s present mental condition, the record is devoid of any indication that appellant

did not understand the plea colloquy and the rights he was giving up, and knowingly

entered guilty pleas in this case.

III. Conclusion

{¶22} Appellant’s pleas were entered knowingly, intelligently, and voluntarily

where the court properly explained appellant’s constitutional and nonconstitutional rights,

and there is no indication on the record that appellant’s present mental condition meant he

did not understand any portion of the colloquy.

{¶23} 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 issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions 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.

_______________________________________ FRANK D. CELEBREZZE, JR., JUDGE

EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR