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Date: 08-14-2020

Case Style:

STATE OF OHIO v. DOMINGO GARY

Case Number: 109074

Judge: KATHLEEN ANN KEOUGH

Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory M. Paul, Assistant Prosecuting
Attorney

Defendant's Attorney:

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Description:
















Defendant-appellant Domingo Gary was indicted as follows: Count 1,
rape in violation of R.C. 2907.02(A)(2); C0unt 2, sexual battery in violation of R.C.
2907.03(A)(5); and Count 3, unlawful sexual conduct with a minor in violation of
R.C. 2907.04(A). The charges related to an incident that occurred in December
2017, when Gary raped his 14-year-old stepdaughter. Pursuant to a plea agreement,
he pleaded guilty to Count 1, rape, and Counts 2 and 3 were dismissed. On appeal,
he argues that his plea was not knowing, voluntary, and intelligent. We affirm.
In his single assignment of error, Gary contends that the trial court
violated Crim.R. 11(C)(2)(a) because it did not advise him before accepting his plea
that he was subject to a mandatory term of imprisonment and not eligible for
community control sanctions.1
Crim.R. 11(C)(2)(a) provides that a trial court shall not accept a guilty
plea in a felony case without first
[d]etermining 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.
“Crim.R. 11(C)(2)(a) requires a trial court to determine that the
defendant has an awareness about the potential penalty before accepting a guilty
plea. It does not, however, require the court to make any specific articulation as to
the potential penalty.” State v. Homolak, 8th Dist. Cuyahoga No. 107040, 2019-
Ohio-869, ¶ 4, comparing Crim.R. 11(C)(2)(a) with Crim.R. 11(C)(b)-(c) (which
require the court to determine that the defendant understands and additionally
specifically inform the defendant), and citing State v. Davis, 8th Dist. Cuyahoga No.
1 “Rape carries a mandatory prison term under R.C. 2929.13(F)(2).” State v.
Arnett, 88 Ohio St.3d 208, 214, 724 N.E.2d 793 (2000).
76085, 2000 Ohio App. LEXIS 4044, 12 (Sept. 7, 2000) (“Although the judge must
specifically determine whether a defendant understands that he is not eligible for
probation, the rule does not require him to personally inform a defendant of this fact
in every circumstance. Crim.R. 11(C)(2) distinguishes between things the judge
must determine from those of which he must inform a defendant regardless of
whether an independent understanding is shown.”).
Thus, this court has held that a court need not specifically inform a
defendant that a particular conviction mandates prison or precludes a community
control sanction where the record clearly indicates that the defendant so
understood. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio1796, ¶ 11 (“The mere fact that the [trial] court did not specifically say ‘You are
ineligible for probation’ or ‘This offense requires a mandatory term of prison’ will
not be fatal unless the record clearly indicates that the defendant was unaware that
he would be sent to prison upon a plea of guilty and he was prejudiced by that fact.”);
State v. McLaughlin, 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 (“[T]he
trial court need not specifically inform the defendant he is ‘ineligible for probation’
if the totality of the circumstances warrant the trial court in making a determination
the defendant understands the offense is ‘nonprobationable.’”).
As relevant to this case, where a defendant complains the trial court
failed to explain a nonconstitutional right, the relevant inquiry is whether the court
substantially complied with the rule. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio3748, 893 N.E.2d 462, ¶ 31. “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).
At Gary’s change of plea hearing, the prosecutor put the plea agreement
on the record: the state would nolle Counts 2 and 3 in exchange for Gary’s guilty
plea to Count 1, rape in violation of R.C. 2907.02(A)(2). The prosecutor explained,
“[t]hat felony of the first degree is punishable by three to 11 years incarceration and
[a] fine of not more than $20,000.” The trial judge asked Gary’s counsel if that was
his understanding, to which he responded, “It is, your Honor.”
The trial judge asked Gary questions regarding his age and education,
and then asked him, “Do you understand the charges against you?” to which Gary
responded affirmatively. The judge then asked Gary, “[d]o you understand the plea
agreement that your attorney has reached on your behalf with the state of Ohio?”
and Gary again responded affirmatively. After confirming with Gary that he
understood that the court was making no promises regarding his sentence in this
case, the judge then discussed Cuyahoga C.P. No. CR-17-615567, in which Gary was
serving community control sanctions. The judge confirmed that Gary understood
that his guilty plea of rape in this case was a violation of his community control
sanctions in CR-17-615567, and that he could receive a separate sentence in that
case.
The trial court then reviewed the constitutional rights Gary would be
waiving by pleading guilty and confirmed Gary’s understanding of those rights. The
court then advised Gary:
Based upon the statements of the prosecuting attorney and your lawyer
I believe it is your intention to enter a plea of guilty to Count 1, rape, in
violation of 2907.02(A)(2) as charged in Count 1. This is a first-degree
felony punishable from three to 11 years in prison and up to [a]
$20,000 fine.
The judge then asked counsel, “[i]s it mandatory prison?” to which the prosecutor
responded affirmatively.
The court then advised Gary that as part of the plea, Counts 2 and 3
would be dismissed, and Gary was ordered to have no contact with the victim, to
which Gary responded “[o]kay.” The court advised Gary that he would also be
required to register as a Tier III sex offender, and explained that he would be
required to verify his address with in-person verification every 90 days for his
lifetime.
The judge then asked Gary, “[d]o you understand the offense to which
you are pleading guilty?” and Gary responded affirmatively. The judge then asked
him, “[d]o you understand the possible maximum penalty?” and Gary again
responded affirmatively. The judge then advised Gary that “[u]pon completion of
your prison term, you will be subject to postrelease control supervision for a
mandatory period of five years.” (Emphasis added.)
Then, after explaining the possible penalties for violating postrelease
control, the judge asked Gary if he had any questions “about your rights, the charge,
the penalties or anything that we’ve done here today.” Gary told the judge he had
no questions.
After confirming that both defense counsel and the prosecutor were
satisfied the judge had complied with Crim.R. 11, the judge found that Gary had been
informed of his constitutional rights, and that he understood the nature of the
charge, the effect of the plea, and the maximum penalties that could be imposed.
The court further found that Gary was making a knowing, voluntary, and intelligent
plea; accepted his plea; and found him guilty of rape.
Although the trial court never specifically advised Gary that prison was
mandatory or that he was ineligible for community control sanctions, the record
reflects that he was nevertheless subjectively aware. Based on the totality of the
circumstances, we find that the trial court substantially complied with Crim.R.
11(C)(2)(a).
The trial court advised Gary that the offense to which he was pleading
guilty was punishable by 3 to 11 years in prison, and when the trial court asked if it
was “mandatory prison,” the prosecutor responded affirmatively. Gary told the
court that he understood both the offense to which he was pleading guilty and the
maximum penalty, and told the judge he did not have any questions about the rape
charge or the associated penalties. The court advised Gary that he would be subject
to postrelease control “upon completion of your prison term,” and when the court
asked Gary after this advisement if he had any questions, he told the court “no.” The
record is abundantly clear that Gary understood he would be sentenced to prison
and was not eligible for community control. Indeed, community control was never
discussed as a possible sentence, and due to the nature and severity of his offense —
the rape and resulting pregnancy of his 14-year-old stepdaughter — Gary had no
basis upon which to conclude that he would not be sentenced to prison.
Gary argues, in reliance on State v. Morgan, 2d Dist. Clark No. 2017-
CA-29, 2018-Ohio-319, that even if the trial court advised him that prison was
mandatory, there can be no finding of substantial compliance with Crim.R.
11(C)(2)(a) because the court did not also advise him of his ineligibility for
community control. Morgan does not stand for this proposition. The Morgan court
found that the trial court did not substantially comply with Crim.R. 11(C)(2)(a)
because the defendant was neither advised that he was subject to a mandatory
prison sentence upon his conviction for rape, nor that he would be ineligible for
community control if he were convicted. Id. at ¶ 16. The Morgan court did not set
forth a requirement that a trial court must advise the defendant of both the
mandatory prison sentence and ineligibility for community control in order to
substantially comply with Crim.R. 11(C)(2)(a).
Our review of the record in this case indicates that Gary subjectively
understood that he faced a mandatory prison sentence and was not eligible for
community control. Accordingly, we find that the trial court substantially complied
with Crim.R. 11(C)(2)(a), and overrule the assignment of error.
“While we do not require it, the trial court might consider as a better
practice to avoid this and other similar appeals, the use of written plea agreements
signed by the state and the defendant. Many other trial courts find this practice
useful.” Homolak, 8th Dist. Cuyahoga No. 107040, 2019-Ohio-869 at ¶ 15.

Outcome: Judgment affirmed.

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