[Cite as State v. Scott,
2014-Ohio-3500.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100668
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLMER L. SCOTT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573224-A
BEFORE: Rocco, J., Boyle, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: August 14, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
BY: Jeffrey M. Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Willmer L. Scott appeals his conviction after he pled
guilty to aggravated murder. Scott claims his guilty plea was invalid because (1) the
trial court failed to specifically inform him, as part of the Crim.R. 11 plea colloquy, that if
Scott had gone to trial and been found guilty on all counts, he would have faced the same
maximum sentence he faced by pleading guilty to aggravated murder, and (2) Scott
received no consideration for his guilty plea. We find no merit to Scott’s appeal. His
conviction is affirmed.
{¶2} On April 15, 2013, Scott was indicted on four counts — aggravated murder,
murder, felonious assault, and kidnapping — in connection with the April 2013 stabbing
death of Joyce Williams. On October 21, 2013, the morning of trial, the prosecutor
stated the terms of a proposed plea offer on the record: If Scott were to plead guilty to the
aggravated murder count, the state would recommend that Scott receive a sentence of 20
years to life (the lowest statutory sentence for that offense), the remaining counts would
be dismissed, and the state would return a vehicle that had been seized during the
investigation to Scott’s designated representative. The trial court allowed Scott to meet
first with his daughter and counsel and then separately with his daughter to discuss the
plea offer. After these discussions, Scott indicated that he would accept the state’s plea
offer.
{¶3} Following a detailed Crim.R. 11(C) colloquy, Scott entered his guilty plea to
the aggravated murder count. Concluding that Scott had entered his plea knowingly,
voluntarily, and with a full understanding of his rights, the trial court accepted his plea,
found Scott guilty of aggravated murder, and dismissed the remaining counts.
{¶4} The sentencing hearing was conducted the following day. At the
sentencing hearing, the prosecutor laid out the alleged facts relating to the offense to
which Scott had pled guilty and then, as agreed, recommended that Scott be sentenced to
20 years to life. Several of Scott’s family members and Scott’s counsel also spoke at the
hearing. At the conclusion of the sentencing hearing, the trial court imposed the agreed
recommended sentence of life imprisonment with eligibility for parole after 20 years on
the aggravated murder charge.
{¶5} Scott timely appealed, presenting a single assignment of error for review:
The trial court committed error when it failed to inform Mr. Scott of the
penalties he risked had he declined to plead guilty and instead insisted on
his right to a trial, penalties which were no greater than the penalty to which
he agreed.
{¶6} Scott argues that the trial court’s failure to explain to him, as part of the
Crim.R. 11 plea colloquy, that Scott was agreeing to a recommended sentence that, in all
likelihood, was “no less severe than the maximum sentence he could have faced” had he
been convicted after a trial “rendered [Scott’s] plea … neither knowing nor
intelligent” because “without that information, he could not know whether accepting the
plea was in his best interest.” Scott further contends that the plea agreement was
“invalid” because there was “no actual consideration” for his guilty plea. Specifically,
Scott contends that because he was 61 at the time of the plea hearing, the agreed
recommended sentence he received in exchange for his plea of 20 years to life “is
essentially life without the possibility of parole” — the maximum sentence he could have
received had he been convicted after trial — and that he, therefore, received no benefit in
exchange for his plea. We strongly disagree. Scott’s contention that he received no
benefit in exchange for his plea defies logic.
{¶7} Under Crim.R. 11(C), prior to accepting a guilty plea to a felony charge, the
trial court must personally address the defendant and engage in an “oral dialogue” with
the defendant to (1) determine that the defendant is making the plea voluntarily, with an
understanding of the nature of the charges and the maximum penalty involved; (2) inform
the defendant of and determine that the defendant understands the effect of the guilty plea
and that the court, upon acceptance of the plea, may proceed with judgment and sentence;
and (3) inform the defendant of and determine that the defendant understands the
constitutional rights he or she waives by pleading guilty, including the rights to a 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. See, e.g., State v. Hussing, 8th Dist. Cuyahoga No. 97972,
2012-Ohio-4938, ¶ 18; Crim.R.11(C).
{¶8} Whether the trial court accepted a plea in compliance with Crim.R. 11(C) is
subject to de novo review. State v. Jackson, 8th Dist. Cuyahoga No. 99985,
2014-Ohio-706, ¶ 6. “‘We are required to review the totality of the circumstances and
determine whether the plea hearing was in compliance with Crim.R. 11(C).’”
Id., quoting
State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 6.
{¶9} In determining whether the trial court has satisfied its duties in accepting a
plea under Crim.R. 11, reviewing courts distinguish between constitutional and
nonconstitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897
N.E.2d 474. A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)(c)
regarding the waiver of constitutional rights, meaning the court must actually inform the
defendant of the constitutional rights he is waiving and make sure the defendant
understands them. State v. Boggan, 8th Dist. Cuyahoga No. 100096,
2014-Ohio-1428, ¶
6, citing Veney at
¶ 27. With respect to the other requirements of Crim.R. 11(C)(2)(a) and (b) involving
nonconstitutional rights, including the defendant’s understanding of the nature of the
charges, the maximum penalty involved, and the effect of a guilty plea, substantial
compliance is sufficient. State v. Owens, 8th Dist. Cuyahoga Nos. 100398 and 100399,
2014-Ohio-2275, ¶ 7, citing State v. Stewart,
51 Ohio St.2d 86,
364 N.E.2d 1163 (1977).
“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,
56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990). A defendant who challenges
his or her guilty plea on the basis that the trial court did not substantially comply with the
nonconstitutional aspects of Crim.R. 11(C) must also show prejudice, i.e., that the plea
would not have been otherwise entered, before the plea will be vacated. Boggan,
2014-Ohio-1428 at ¶ 7, citing Veney at ¶ 17, and
Nero at ¶ 108.
{¶10} A review of the transcript from the plea hearing reveals that the trial court
complied with Crim.R. 11(C) and supports the trial court’s determination that Scott’s
guilty plea was knowingly, voluntarily, and intelligently made.
{¶11} At the outset of the hearing, the prosecutor identified the sentencing
options the trial court would have if Scott were to be convicted of aggravated murder and
the agreed recommended sentence that was part of the state’s plea offer:
This defendant faces, your Honor, a four count indictment.
Count 1 is aggravated murder. Count 2 is murder. Count 3 is
felonious assault and Count 4 is kidnapping.
As you know, Judge, if the defendant were to be convicted of
aggravated murder, the sentencing court would have four options as far as
sentencing goes which would be 20 years to life, 25 years to life, 30 years to
life or life without the possibility of parole.
The plea that the State of Ohio has offered to this defendant is a plea
to — we would expect a plea to Count 1, aggravated murder, and there
would be an agreement between the parties. An agreed recommended
sentence to the Court that he receive the lowest sentence within that range
which would be 20 years to life.
{¶12} After Scott expressed his desire to accept the state’s plea offer, the trial
judge began his Crim.R. 11 colloquy by confirming Scott’s understanding of the plea
agreement. The trial judge then asked Scott general questions regarding his level of
education, establishing that he had received a GED, questioned him regarding whether he
was under the influence any drugs, alcohol, or medication that would impact his ability to
understand the proceedings, and inquired whether Scott had discussed the facts of his
case with counsel, listened to his advice, and was satisfied with the representation he had
received. Scott responded appropriately to each question. The trial judge next
proceeded to explain to Scott his constitutional rights and what he would be waiving, with
respect to each of those rights, by pleading guilty to the aggravated murder offense with
which he had been charged. In each instance, Scott indicated that he understood and
confirmed that he wished to waive his constitutional rights by entering a guilty plea.
{¶13} The trial court then identified the aggravated murder charge and the
potential range of sentences Scott could receive upon conviction, i.e., life with parole
after 20 years, life with parole after 25 years, life with parole after 30 years, or life
without parole. The trial court also clearly explained the effect of the “agreed
recommended sentence” that was part of the plea agreement, making sure Scott
understood that a sentence of life with parole after 20 years was only a recommendation
to the trial court and that the trial court could impose one of the “higher degrees of the
sentence” if it deemed it appropriate. The trial court also made sure Scott understood the
effect of his guilty plea and that the trial court, upon acceptance of the plea, could
immediately proceed with judgment and sentencing. Scott stated affirmatively that he
understood the charge to which he was pleading and the potential sentences and indicated
that he had no questions concerning his plea, his rights, the charges, or the penalties and
risks discussed. He also confirmed that no one had made any promises, threats, or
inducements to cause him to enter his plea. Scott’s counsel indicated that he was
satisfied that the trial court had complied with Crim.R. 11.
{¶14} The record reflects that the trial court went to great lengths to ensure that
Scott understood the terms of the plea agreement, the potential sentences, and what Scott
would be giving up as a result of his plea, including that he would have to serve life in
prison and would only be eligible for parole after 20 years (if the trial judge accepted the
agreed recommended sentence) or longer (if he did not):
THE COURT: … Now, you understand that as a result of this
plea, you would have to serve life in prison, and your only possibility of
parole would be after — if I accept the agreed sentence — would come up
after 20 years. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: It might be a greater time if I impose the increased
sentences. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you have any questions concerning your plea as it
stands right now?
THE DEFENDANT: No, your Honor.
{¶15} Based on the foregoing, we find that the trial court conducted a detailed
and thorough plea colloquy prior to accepting Scott’s plea and that the totality of the
circumstances indicates that Scott subjectively understood the implication of his guilty
plea and the potential penalties he could receive as a result of his plea. Having complied
with Crim.R. 11, the trial court was under no obligation to go a step further and juxtapose
the potential penalties of the crime to which Scott was pleading guilty against those he
could face if he chose to go to trial.
{¶16} With respect to Scott’s contention that there was no meaningful
consideration for his plea, we do not agree that Scott received nothing of value in
exchange for his guilty plea. As a result of his plea, there was no trial. An agreed
sentence was recommended to the trial court. Even though the trial court was not bound
by the state’s recommendation in sentencing Scott and, even though, given his age, there
was a substantial likelihood that Scott would die before he had a chance to appear before
the parole board even if (as ultimately occurred) the trial court imposed the recommended
sentence of 20 years to life, there was still a chance that Scott might live to age 81 and be
eligible for parole after 20 years if the trial court imposed the agreed recommended
sentence. Further, there are a number of reasons a defendant may choose to enter a
guilty plea rather than go to trial, besides a possible reduction in sentence. For example,
a defendant may want to take responsibility for his crime, a defendant may wish to avoid
the attention of a public trial, a defendant may simply want the case to be over, or a
defendant may wish to spare the victim’s family (or his own family) the further trauma of
sitting through a trial, particularly, where, as here, there appears to have been substantial
evidence of the defendant’s guilt and little in the way of a defense. Scott’s argument also
wholly disregards the significant moral value a defendant may place on making peace
with his maker, his family, the victim, the victim’s family, and the community, which may
be realized by entering a guilty plea.
{¶17} Crim.R. 11 requires that a trial judge take certain steps to ensure that guilty
pleas are knowingly, voluntarily, and intelligently made. The purpose of the Crim.R.
11(C) colloquy is to ensure that the defendant understands the plea the defendant is
entering, the potential sentence involved, and the rights the defendant is voluntarily
waiving by entering a guilty plea. Crim.R. 11 does not require that the trial court inquire
as to a defendant’s reasons for entering a guilty plea or that it determine that a plea is in
the defendant’s “best interests,” before accepting a guilty plea. There is nothing in the
record to suggest that Scott entered his guilty plea without giving due consideration to the
state’s offer and what he was receiving and giving up by accepting that offer. To the
contrary, the record reflects that the defendant consulted first with his counsel and his
daughter, and then again with his daughter privately, prior to accepting the state’s plea
offer.
{¶18} We find no error by the trial court either in the manner in which it conducted
the Crim.R. 11(C) colloquy or in its acceptance of Scott’s guilty plea. The record
reflects that under the totality of the circumstances, Scott subjectively understood the
implications of his plea and the rights he was waiving. Furthermore, Scott has failed to
even allege — much less demonstrate — any prejudicial effect of the trial court’s
alleged error, i.e., that he would not have pled guilty if the trial court had also specifically
informed Scott that, given his age, he was agreeing to “a recommended sentence that was
likely no less severe than the maximum sentence he could have faced after trial.”
Without any evidence that his plea would not have otherwise been made, Scott has not
met his burden of showing prejudice that would necessitate vacating his plea. Scott’s
sole assignment of error is overruled.
{¶19} Scott’s conviction is affirmed.
It is ordered that appellee recover from 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 conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentences.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, A.J., and
TIM McCORMACK, J., CONCUR
