[Cite as State v. Castro,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 15-21-06

v.

MIGUEL D. CASTRO, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. CR-20-09-123

Judgment Affirmed

Date of Decision: December 20, 2021

APPEARANCES:

Esteban R. Callejas for Appellant

Kelly J. Rauch for Appellee Case No. 15-21-06

SHAW, J.

{¶1} Defendant-Appellant, Miguel D. Castro (“Castro”), appeals from a

judgment of the Court of Common Pleas of Van Wert County sentencing him to

sixty months in prison after he pled no contest to one count of sexual battery.

{¶2} The facts relevant to this appeal are as follows. On September 3, 2020,

Castro was indicted on one count of rape in violation of R.C. 2907.02(A)(1)(c) and

(B), a felony of the first degree, and one count of sexual battery in violation of R.C.

2907.03(A)(3) and (B), a felony of the third degree. At his arraignment, Castro was

provided with a Spanish-speaking interpreter certified by the Ohio Supreme Court

and was represented by a public defender attorney. Castro entered a plea of not

guilty.

{¶3} At a pretrial/change of plea hearing held on December 22, 2020, Castro

was represented by court-appointed counsel, a Spanish-speaking attorney, and the

same interpreter was used for the hearing. The State presented a plea agreement in

which Castro would plead guilty to the rape count, in exchange for a stipulated

prison sentence of five years and the dismissal of the other count. When the trial

court was inquiring of Castro with respect to the nature of the plea agreement, the

court noted there was a stipulation of five years in prison, but the court indicated it

was going to interpret it as five years minimum with an additional two-and-a-half-

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year indefinite sentence. The trial court then asked Castro if he understood the

nature of the charge to which he was pleading and he replied:

I have a certain doubt. I hope that you will please understand me, as far as I understood, if I were to declare myself guilty, the maximum sentence was going to be five (5) years. Is that correct?

(Tr. at p. 16). The trial court explained that because Ohio has an indefinite sentence

for a first degree felony, the court could not just give a sentence of five years. The

trial court then took a recess to allow Castro to talk to his attorney and upon

returning on the record, Castro’s attorney noted that his client’s concern was that he

understood the plea agreement to mean a five-year prison term, but that the parties

had not really discussed the additional two and a half years. The trial court then

continued the hearing for a later pretrial conference.

{¶4} The trial court held a second pretrial/change of plea hearing on January

7, 2021, participated in by Castro and his same counsel and interpreter. At this

hearing, the plea agreement reached between the parties provided as follows: Castro

would plead guilty to sexual battery, which is a third degree felony punishable by

up to sixty months in prison, and included a stipulated sentence of sixty months in

prison.

{¶5} As part of his guilty-plea colloquy, the trial court asked Castro if he

understood that a guilty plea was a complete admission of guilt of the crime of

sexual battery, and Castro answered, “No.” (Tr. at p. 27-28). At that point, the trial

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court recessed to allow Castro the opportunity to speak to his attorney. Back on the

record, Castro’s attorney explained that “[a] conflict has been ensuing that we’ve

been dealing with, but apparently this client no longer wants me representing him.

He wants to have other counsel representing him.” (Tr. at p. 29). The trial court

asked Castro’s attorney if the request was “in the nature of communication has

broken down to the point that representation is no longer beneficial?”

His

attorney indicated he did believe so. When the trial court asked Castro if he wished

to have a different attorney to explain these matters to him, Castro indicated that he

did. The trial court then suspended the hearing to appoint Castro a new attorney.

{¶6} On March 4, 2021, the trial court held a hearing and Castro’s new

attorney requested a trial date. The case was scheduled for a jury trial on June 28,

2021. However, on June 18, 2021, a change of plea and sentencing hearing was

held. The same attorney who represented Castro at the March hearing represented

him at the hearing and the same interpreter was used as in all the proceedings. At

the beginning of this hearing, the trial court recited the terms of a plea agreement,

under which Castro would plead no contest to sexual battery in exchange for a

stipulated sentence. The trial court proceeded to advise Castro, through his

interpreter, about the rights he was giving up by pleading no contest. The State then

provided the facts supporting the no contest plea. Castro was also advised that

deportation, exclusion of admission to the United States, or denial of naturalization

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were potential consequences of his plea. The trial court concluded that Castro was

“freely, voluntarily, and understandingly” making his plea and then found him

guilty of the offense. (Tr. at p. 49).

{¶7} As noted by the State before sentencing, the parties had stipulated to a

five-year prison term. The trial court proceeded to sentencing and ordered Castro

to serve a prison term of sixty (60) months, with 284 days of jail credit for time

served before sentencing. Castro was also classified a Tier III sex offender.

{¶8} Castro now appeals, raising two assignments of error for our review.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT ACCEPTED THE APPELLANT’S GUILTY PLEA [SIC] AS THAT PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY GIVEN.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ABUSED ITS DISCRETION WHEN SENTENCING APPELLANT AS THE RECORD DOES NOT SUPPORT THE SENTENCE.

First Assignment of Error

{¶9} In his assignment of error, Castro argues that the trial court erred in

accepting his plea. Specifically, Castro claims the totality of the circumstances,

including his lack of ability to understand the English language and American

culture, illustrates his confusion across multiple hearings and multiple attorneys,

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and therefore, his no contest plea was not knowingly, intelligently, and voluntarily

made in compliance with Crim.R. 11(C).

Relevant Authority

{¶10} Criminal Rule 11(C)(2) outlines the procedures for trial courts to

follow when accepting pleas in felony cases, and reads as follows:

(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.

{¶11} The underlying purpose of Crim.R. 11 is to ensure that certain

information is conveyed to the defendant which would allow him to make a

voluntary and intelligent decision regarding whether to enter a plea. State v. Axline,

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3d Dist. Wyandot No. 16-21-02,

, citing State v. Ballard,

(1981). In determining whether a plea was entered

knowingly, intelligently, and voluntarily, an appellate court examines the totality of

the circumstances through a de novo review of the record. See

Discussion of the Record

{¶12} In this case, Castro does not contend that the trial court failed to

comply with the advisements under Crim.R. 11(C). Rather, he contends that his no

contest plea was not knowing, intelligent, or voluntary because of his confusion on

the record during the advisements given by the trial court. On this basis, Castro

argues that the trial court erred in accepting his no contest plea.

{¶13} Specifically, Castro cites to three instances in the trial court

proceedings which he claims demonstrate his confusion regarding aspects of the

plea proceedings. The first instance occurred when the confusion arose from the

indefinite sentence statute; the second instance occurred from the fact that a guilty

plea is an admission of guilt; and his continuous inability to communicate with

multiple attorneys represented the third instance.

Analysis

{¶14} At the outset, the record shows that Castro, who does not speak

English, was provided with an Ohio Supreme Court certified interpreter and court-

appointed counsel at all stages of the court proceedings. The record further shows

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that the trial court took the necessary measures to ensure that Castro fully

understood the nature and ramifications of his plea and to resolve any confusion on

Castro’s part prior to accepting his no contest plea. See Axline at ¶ 11 (finding the

trial court did not err in accepting the plea where the record established that “the

trial court took the necessary steps to ensure that Axline fully understood the

advisements given during the plea colloquy and to resolve any confusion on

Axline’s part prior to accepting his guilty plea”). The trial court recessed and gave

Castro an opportunity to speak to his appointed counsel each time he demonstrated

any confusion about the plea he was entering. New counsel was appointed

thereafter. Moreover, at the change of plea and sentencing hearing, Castro showed

no confusion because he understood a plea of no contest to mean he was not

admitting guilt but rather the truth of the facts alleged in the indictment. The trial

court inquired of Castro, through Castro’s interpreter, as to the nature and

voluntariness of his no contest plea. Castro stated that he understood his rights as

explained by the trial court.

{¶15} Consequently, the totality of the circumstances amply demonstrates

that Castro’s no contest plea was knowingly, voluntarily and intelligently made, and

the trial court did not err when it accepted the plea. Accordingly, Castro’s first

assignment of error is overruled.

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Second Assignment of Error

{¶16} In Castro’s second assignment of error, he argues that the trial court

abused its discretion in sentencing him because the record does not support the

sentence. More specifically, Castro contends the record demonstrates that the trial

court refused or failed to consider statutory sentencing factors.

Relevant Authority

{¶17} As a result of the Ohio Supreme Court’s holding in State v. Jones,

,

, “an appellate court may not modify or vacate a

felony sentence based upon a finding by clear and convincing evidence that the

record does not support the trial court’s ‘findingsʼ under R.C. 2929.11 and R.C.

2929.12.” State v. Denoyer, 3d Dist. Allen No. 1-20-34,

, citing

(“Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that

of the trial court concerning the sentence that best reflects compliance with R.C.

2929.11 and 2929.12.”). Moreover, under R.C. 2953.08(D)(1), a sentence imposed

upon a defendant is not subject to review “if the sentence is authorized by law, has

been recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” “ ʻIn discussing jointly recommended sentences,

the Ohio Supreme Court has recognized that “[t]he General Assembly intended a

jointly agreed-upon sentence to be protected from review precisely because the

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parties agreed that the sentence is appropriate.” ʼ ˮ State v. Phillips, 3d Dist. Allen

No. 1-19-43,

, quoting State v. Morris, 3d Dist. Hardin No. 6-

12-17,

, quoting State v. Porterfield,

, 2005-

Ohio-3095, ¶ 25.

{¶18} Here, at the change of plea and sentencing hearing, the plea agreement

reached between the parties contained a stipulated sentence of five years in prison.

The trial court affirmed Castro’s understanding of the same. Further, the trial court

asked Castro whether he had discussed the matter of plea and the present charge

fully and completely with his attorney. Castro replied, “Yes.” (Tr. at p. 43).

Therefore, we find that the record clearly demonstrates that the parties had a

stipulation regarding Castro’s sentence. See Phillips at ¶ 21-23. As we find that the

trial court imposed the parties’ stipulated sentence, we need not discuss whether the

record supports the sentence under R.C. 2929.11 and 2929.12 to conclude that

Castro’s sentence is authorized by law. See Jones.

{¶19} For the foregoing reasons, Castro’s second assignment of error is

overruled.

{¶20} Having found no error prejudicial in the particulars assigned and

argued, the judgment of the trial court is affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

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