[Cite as State v. Reau,
2019-Ohio-164.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1021
Appellee Trial Court No. CR0201701319
v.
Robin D. Reau DECISION AND JUDGMENT
Appellant Decided: January 18, 2019
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Ernest E. Bollinger, for appellant.
…
SINGER, J.
{¶ 1} Appellant, Robin Reau, appeals the December 6, 2017 judgment of the
Lucas County Court of Common Pleas, where she was convicted of two counts of
receiving stolen property in violation of R.C. 2913.51(A) and (C), felonies of the fifth
degree; two counts of tampering with records in violation of R.C. 2913.42(A)(1),(B)(1)
and (B)(4), felonies of the third degree; forgery in violation of R.C. 2913.31(A)(3) and
(C)(1)(a),(b), a felony of the fifth degree; and identity fraud in violation of R.C.
2913.49(B)(2) and (I)(2), a felony of the fifth degree. Finding no error, we affirm.
Assignments of Error
I. THE COURT ERRED WHEN IT DENIED DEFENDANT HER
RIGHT TO MAKE A KNOWING, VOLUNTARY AND INTELLIGENT
DECISION TO ENTER HER PLEA.
II. APPELLANT WAS DENIED HER RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
Background
{¶ 2} On February 16, 2017, appellant was indicted on 12 counts, including:
5 counts of forgery in violation of R.C. 2913.31(A)(3) and (C)(1)(a) and (b); 3 counts of
receiving stolen property in violation of R.C. 2913.51(A),(C) and 2913.17(B); 3 charges
combined into 1 count of theft in violation of R.C. 2913.02(A)(1) and (B)(2); 1 count of
identity fraud in violation of R.C. 2913.49(B)(2) and (I)(2); and 2 counts of tampering
with records in violation of R.C. 2913.42(A)(1) and (B)(4).
{¶ 3} Eight counts in the indictment reflect that appellant allegedly misused the
identity of an individual named Denise Ann Mills (“the victim”), between July 15 and
July 18, 2016, to pass bad checks, steal items, and receive stolen property. These are
Count Nos. 1 through 7.
2.
{¶ 4} Count Nos. 8 and 9 reflect that on or about April 17, 2015, appellant
allegedly submitted a tampered-with record to appellee, the state of Ohio, in the form of
an application for certificate of auto title using the victim’s name.
{¶ 5} The remaining counts, Nos. 10, 11 and 12, reflect that on or about
November 30, 2015, appellant allegedly submitted a tampered-with record to appellee in
the form of an Ohio driver’s license application using the victim’s name.
{¶ 6} On November 20, 2017, a plea hearing was held in which appellant
withdrew previous pleas of not guilty and entered in pleas of guilty to Count Nos. 4, 5, 9,
10, 11, and 12. The plea terms were read into the record, and the trial court proceeded
with an extensive colloquy pursuant to Crim.R. 11.
{¶ 7} The plea form specifically reflects that appellant was pleading guilty to
Count Nos. 4, 5, 9, 10, 11, and 12. In exchange, appellee agreed to nolle Count Nos. 1, 2,
3, 6, 7, and 8, at the time of sentencing. Appellee also recommended “a cap of 42 months
state incarceration, if the Court imposes state incarceration at time of original
sentencing.” The plea form, however, does note as follows: “I[, appellant,] understand
the MAXIMUM penalty COULD be: a maximum basic prison term of 120 months of
which 0 is mandatory, during which I am NOT eligible for judicial release or community
control.”
{¶ 8} Moreover, at the plea hearing, the trial court accepted appellant’s pleas in
open court, concluding the hearing and stating as follows:
3.
THE COURT: Let the record reflect that [appellant] has made a
knowing, intelligent, and voluntary decision to withdraw her plea of not
guilty and tender a plea— oh, one second. [Appellant], I’m forgetting an
important step. How do you plead to these counts 4, 5, 9, 12, 10 and 11 of
the indictment?
[APPELLANT]: Guilty.
THE COURT: And why are you entering pleas of guilty?
[APPELLANT]: Because I’m guilty.
THE COURT: Thank you. Let the record reflect that [appellant]
has made a knowing, intelligent and voluntary decision to withdraw her
plea of not guilty and tender a plea of guilty to Counts 4, 5, 9, 12, 10 and 11
in case number 2017-1319. The court finds that [appellant] has been
informed of all her constitutional rights. That she understands the nature of
the charges, the effects of her plea, as well as the penalties which could be
imposed. Therefore the court accepts [appellant]’s pleas of guilty and finds
her guilty ….
{¶ 9} After accepting the pleas and finding appellant guilty, the trial court
proceeded and set the matter for sentencing on Monday, December 4, 2017.
{¶ 10} At sentencing, the trial court allowed appellant, her counsel, and appellee
to make a statement. Then it proceeded to sentence appellant on Count Nos. 4, 5, 9, 10,
11, and 12.
4.
{¶ 11} Specifically, the sentencing transcript and entry reflect that appellant was
ordered to serve two, 30-month sentences for Count Nos. 9 and 12. These counts were
ordered to be served consecutively. With respect to Nos. 4, 5, 10, and 11, appellant was
ordered to serve six-month terms, which were to be served consecutively to Nos. 9 and
12. These sentences resulted in an aggregate prison term of 84 months.
{¶ 12} As set forth in the plea form, the remaining counts against appellant were
dismissed. The judgment was journalized December 6, 2017, and appellant now appeals.
Assignment of Error No. I
{¶ 13} Appellant first asserts the trial court erred by accepting her pleas when they
were not made knowingly, voluntarily or intelligently. Appellee contends appellant
lawfully entered pleas and that the trial court complied with Crim.R. 11 in accepting the
pleas.
{¶ 14} Crim.R. 11 states, in pertinent part, as follows:
(A) Pleas. A defendant may plead not guilty, not guilty by reason
of insanity, guilty or, with the consent of the court, no contest.…
(B) Effect of guilty or no contest pleas. With reference to the
offense or offenses to which the plea is entered: (1) The plea of guilty is a
complete admission of the defendant’s guilt.
…
(3) When a plea of guilty or no contest is accepted pursuant to this
rule, the court, … shall proceed with sentencing under Crim.R. 32.
5.
(C) Pleas of guilty and no contest in felony cases.
…
(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.
See Crim.R. 11(A)-(C).
6.
{¶ 15} The underlying purpose of Crim.R. 11(C)(2) is to ensure the offender has
the information needed to make a voluntary and intelligent decision regarding whether to
plead guilty. See State v. Contrearus, 6th Dist. Lucas No. L-12-1114, 2014-Ohio-996,
¶ 6, citing State v. Ballard,
66 Ohio St.2d 473, 479-480,
423 N.E.2d 115 (1981). With
respect to constitutional rights enunciated in Crim.R. 11(C)(2)(c), a trial court must
strictly comply. State v. Colbert,
71 Ohio App.3d 734, 737,
595 N.E.2d 401 (11th
Dist.1991). A trial court, however, need not use the exact language found in that rule.
Ballard, supra, paragraph two of the syllabus. Rather, a trial court must explain those
rights in a manner reasonably intelligible to the offender.
Id.
{¶ 16} For nonconstitutional rights, strict adherence to Crim.R. 11(C) is not
required. Contrearus at ¶ 7. Rather, the trial court must substantially comply, provided
no prejudicial effect occurs before a plea is accepted. State v. Stewart, 51 Ohio St.2d 86,
93,
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).
{¶ 17} Here, and based on our review of the plea form and transcript of the plea
hearing, we find appellant made knowing, voluntary pleas, and that the trial court
complied with Crim.R. 11(C) in accepting her pleas.
{¶ 18} The record reveals the court explained appellant’s constitutional rights in
an intelligible manner. Appellant was explicitly informed of and waived her right to jury
7.
trial, to confront witnesses, to have compulsory process, against self-incrimination, and to
require proof of the crime beyond a reasonable doubt. See Crim.R. 11(C)(2)(b) and (c).
{¶ 19} Furthermore, review of the plea form and transcript of the plea hearing
support that the court substantially complied with Crim.R. 11(C) with regard to
appellant’s nonconstitutional rights. Appellant was questioned regarding her
understanding of the nature of the charge, informed with regard to the maximum penalty
of 10 years for the charges, and was informed on how she would be subject to community
control and other sanctions once the pleas were accepted.
{¶ 20} We, therefore, find that an extensive colloquy occurred and, under the
totality of the circumstances, appellant understood the implications of her pleas and the
rights she was waiving. The trial court accepted appellant’s pleas and properly proceeded
to sentencing.
{¶ 21} Accordingly, the first assignment of error is not well-taken.
Assignment of Error No. II
{¶ 22} Appellant next asserts that her trial counsel failed to provide effective
assistance when advising her regarding her pleas. Appellee contends appellant received
effective assistance of counsel.
{¶ 23} In evaluating ineffective assistance of counsel claims, the test is “whether
the accused, under all the circumstances, … had a fair trial and substantial justice was
done.” State v. Hester, 45 Ohio St.2d 71,
341 N.E.2d 304 (1976), paragraph four of the
syllabus; Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674
8.
(1984). A court must determine “whether there has been a substantial violation of any of
defense counsel’s essential duties to her client” and “whether the defense was prejudiced
by counsel’s ineffectiveness.” State v. Calhoun,
86 Ohio St.3d 279, 289,
714 N.E.2d 905
(1999).
{¶ 24} In this case, appellant specifically implies that appellant’s trial counsel was
under the influence of drugs and did not fully understand the proceedings in which
appellee mentioned that the victim had changed her position with respect to the sentence
cap recommendation. Appellant notes that her trial counsel was arrested on May 14,
2018, for possession of a controlled substance.
{¶ 25} At sentencing, appellee mentioned the victim changed her position in open
court as follows:
THE COURT: … Anything from the state?
[APPELLEE]: Judge, I would just like to indicate to the court that
the victim is present in the court today. It’s my understanding that she did
write a letter and that letter was given to the court prior to the sentencing.
Further, judge, just for the record, I do want to indicate that I did have a
conversation with the victim and explained to her the cap recommendation,
that it was a recommendation per part of the plea agreement. She did leave
me a voicemail this afternoon saying that she did change her position with
respect to the cap recommendation, so I don’t know if that is reflected in
9.
her letter that she wrote to the court. I did not have an opportunity to
review that record or the letter. But I do want to make a record of that.
THE COURT: And the victim, for the record, does not wish to
make a statement in open court; is that correct?
[APPELLEE]: That is correct.
THE COURT: Okay. Anything else from the state?
[APPELLEE]: No, Judge.
{¶ 26} Appellant’s trial counsel did not object or otherwise interject. Appellant
now claims trial counsel should have interjected and taken the time to explain to
appellant that the chances of the court following appellee’s recommended sentence
virtually disappeared. These facts considered, appellant argues, should lead this court to
find that trial counsel failed to provide effective assistance because appellant’s ability to
make knowing, intelligent pleas and waivers of constitutional rights was essentially
eliminated.
{¶ 27} Nevertheless, based on our review of the record, including the transcript of
the plea hearing and the plea form submitted in the record, we disagree. Specifically, we
found appellant understood her pleas and the rights she was waiving, and that the trial
court accepted the pleas and properly proceeded to sentencing.
{¶ 28} While accepting appellant’s pleas, the trial court confirmed appellant spoke
to her counsel about the pleas, had no promises made regarding her sentence, was not
threatened or forced to plead, and that she was satisfied with her counsel. The trial court
10.
confirmed appellant knew and understood that the recommended 42-month sentence was
not binding, as follows:
THE COURT: And I do believe there’s a sentencing
recommendation, the State of Ohio is recommending a cap of 42 months of
state incarceration if the court is to impose a prison sentence at the time of
sentencing. Do you understand that is not a binding recommendation and
the court is free to sentence you as it sees fit?
[APPELLANT]: Yes, ma’am.
{¶ 29} Moreover, at the plea hearing the trial court also elaborated on the
potential, aggregate prison term associated with the plea entered into by appellant,
summarizing and stating as follows:
THE COURT: [Appellant], you understand you are facing a
maximum prison term of 120 months or ten years in prison, of which none
is mandatory time, if the court were to sentence you to maximum
consecutive sentences as to each of these counts?
[APPELLANT]: Yes, ma’am.
{¶ 30} The plea form appellant signed also reflects that she was made aware in
writing that the recommended sentence was not binding. Therefore, we cannot say
appellant’s trial counsel was ineffective for not objecting or interjecting and explaining to
appellant that the recommended sentencing was not binding, because the record reflects
appellant fully understood that and entered in her plea despite that possibility.
11.
{¶ 31} Accordingly, we find appellant’s second assigned error is not well-taken.
Conclusion
{¶ 32} The December 6, 2017 judgment of the Lucas County Court of Common
Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
12.
