[Cite as State v. Moore,
2015-Ohio-4182.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102400
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHRISTOPHER MOORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-583768-A
BEFORE: Keough, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEY FOR APPELLANT
Joseph E. Feighan, III
14516 Detroit Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Margaret A. Troia
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Christopher Moore, appeals his conviction for rape and
gross sexual imposition. Finding no merit to the appeal, we affirm.
{¶2} Moore was named in a six-count indictment charging him with two counts of
rape and kidnapping, and one count of domestic violence and intimidation of a crime
victim or witness. Four of the counts contained sexually violent predator specifications,
and both rape counts were punishable by a life sentence because the victim was less than
thirteen years of age.
{¶3} Moore pleaded guilty to an amended first-degree felony count of rape and an
amended third-degree felony count of gross sexual imposition. The remaining counts
were dismissed. After obtaining a presentence investigation report and merging the two
counts for sentencing, the trial court ordered Moore to serve ten years in prison on the
amended rape count.
{¶4} Moore now appeals, raising as his sole assignment of error that the trial court
failed to properly advise him pursuant to Crim.R. 11(C)(2)(a) of the maximum penalty
involved at the time of his plea. Specifically, Moore contends that the trial court
committed reversible error when it incorrectly informed him that his guilty plea to a felony
of the first degree would result in a possible prison term of three to eleven months.
{¶5} Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial court must
address the defendant personally and determine that he is making the plea voluntarily
“with understanding of the nature of the charges and the maximum penalty involved.” A
trial court must strictly comply with the Crim.R. 11(C)(2) requirements regarding the
waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897
N.E.2d 621.
{¶6} However, as to the nonconstitutional advisements under Crim.R. 11, such as a
defendant’s right to be informed at the plea hearing of the maximum possible penalty that
could be imposed upon conviction, strict compliance is strongly preferred, but not
required. State v. Nero, 56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990). Thus, a
defendant’s plea will not be vacated on this basis so long as a trial court has substantially
complied with the rule.
Id.
{¶7} “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.” Id. “[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,
105 Ohio App.3d 567, 572,
664 N.E.2d 959 (4th
Dist.1995).
{¶8} Furthermore, “[a] defendant must show prejudice before a plea will be vacated
for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects
of the colloquy are at issue.” Veney at ¶ 17. The test for prejudice is whether the plea
would have otherwise been made. Nero at 108.
{¶9} In this case, we find that the trial court substantially complied with the
nonconstitutional requirements of Crim.R. 11. We recognize that the trial court misstated
that the penalty for rape, a first-degree felony, was three to eleven months instead of years.
However, the state questioned the court about the misstatement, and the court quickly
corrected its mistake by advising Moore that the penalty for the rape offense was three to
eleven years. After the correction, the trial court made certain that the corrected penalty
did not change anything for Moore concerning his guilty plea. Moore specifically stated
that it did not. This immediate correction and Moore’s answer to the trial court’s
pertinent question demonstrates that Moore understood the potential maximum penalty he
faced for the first-degree felony rape charge. Therefore, we find that the trial court
substantially complied with the nonconstitutional advisements and that Moore entered a
knowing, voluntary, and intelligent plea.
{¶10} Additionally, Moore has failed to demonstrate that he was prejudiced by this
initial misstatement, such that he would not have entered the plea. Had Moore truly
believed that he was only facing three to eleven months for the first-degree felony, he
could have moved to withdraw his plea prior to sentencing, which was conducted on a
subsequent date. Moore’s failure to try to withdraw his plea prior to sentencing, confirms
that he was fully apprised of the potential penalties he was facing as a result of the plea.
Therefore, we can infer that Moore only seeks to withdraw his plea now based on a change
of heart, which is not an appropriate basis to withdraw an otherwise knowing, voluntary,
and intelligent plea. State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶
7, citing State v. Drake,
73 Ohio App.3d 640, 645,
598 N.E.2d 115 (8th Dist.1991) (mere
change of heart regarding a guilty plea and the possible sentence is insufficient
justification for the withdrawal of a guilty plea). The assignment of error is overruled.
{¶11} Judgment 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 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION)
EILEEN A. GALLAGHER, J., CONCURRING WITH SEPARATE OPINION:
{¶12} I concur with the decision and opinion of the majority but I do not believe
that there was any reasonable grounds for this appeal.
{¶13} The trial court, during the plea colloquy, mistakenly advised the appellant
that the possible penalties for Count 1 as amended were three to eleven months prior to the
entry of a plea. However, the court corrected itself after an advisement by the prosecutor
of the inadvertent mistake, advised the appellant:
Three to eleven years. Did I say months? It’s three, four, five, six, seven,
eight, nine, ten or eleven years. Does that change anything for you? To that
query, appellant replied “no.”
{¶14} I would then find that this was a frivolous appeal.
