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Date: 06-17-2021
Case Style:
STATE OF OHIO v. ANTHONY J. PETRONZIO
Case Number: 109823
Judge: MICHELLE J. SHEEHAN
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Allison M. Cupach, Assistant Prosecuting
Attorney
Defendant's Attorney:
Description:
Cleveland, Ohio - Criminal defense attorney represented Anthony J. Petronzio with a menacing by stalking charge.
Defendant-appellant Anthony J. Petronzio appeals from a judgment of
the trial court that convicted him of menacing by stalking after he pleaded no contest to the offense. On appeal, he raises the following two assignments of error for our
review:
I. Appellant did not enter into the no contest plea in a knowing,
voluntary and intelligent manner, violating his right to due process
under the Fifth, Sixth and Fourteenth Amendments to the U.S.
Constitution and Article I Section 10 of the Ohio Constitution.
II. Appellant was denied effective assistance of counsel in violation of
his rights under the Sixth and Fourteenth Amendments to the U.S.
Constitution and Article I Section 10 of the Constitution of the State of
Ohio.
After a careful review of the record and applicable law, we find no merit
to the appeal and affirm the judgment of the trial court.
Petronzio and his adoptive sister, Cindy Smith, were involved in a longstanding family feud over certain financial matters. Between July and December
2019, he left 38 voicemails for her, threatening her and her family’s life. On
January 21, 2020, the grand jury returned an indictment charging him with
menacing by stalking in violation of R.C. 2903.211(A)(1), a felony of the fourth
degree. On June 25, 2020, the trial court held a pretrial hearing, which was
conducted initially to hear Petronzio’s counsel’s motion to withdraw as counsel. The
court hearing was conducted via video conferencing due to the Covid-19 pandemic.
At the hearing, Petronzio changed his plea from not guilty to no contest. Based on
the no contest plea, the court found him guilty of menacing by stalking and imposed
a one-year term of community control for his offense. No Contest Plea
Under the first assignment of error, Petronzio claims his no contest
plea was not knowing, intelligent, or voluntary because the trial court did not comply
with the requirement of Crim.R. 11(C).
To ensure that a defendant enters a plea knowingly, intelligently, and
voluntarily, the trial court is required to engage a defendant in a plea colloquy
pursuant to Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 25-26. The underlying purpose of Crim.R. 11 colloquy is to convey to
the defendant certain information to enable him or her to make a knowing,
intelligent, and voluntary decision in the plea. State v. Ballard, 66 Ohio St.2d 473,
479-480, 423 N.E.2d 115 (1981).
Crim.R. 11(C)(2) requires that a trial court determine from a colloquy
with the defendant whether the defendant understands (1) the nature of the charge
and maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional
rights waived by a guilty plea. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,
897 N.E.2d 621.
When reviewing a plea colloquy, our focus is not on whether the trial
judge has “[incanted] the precise verbiage” of the rule. State v. Dangler, 162 Ohio
St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 12, quoting State v. Stewart, 51 Ohio
St.2d 86, 92, 364 N.E.2d 1163 (1977). Rather, the focus of our review is on “whether
the dialogue between the court and the defendant demonstrates that the defendant
understood the consequences of his plea.” Id., citing Veney, at ¶ 15-16. Where the issue concerns a nonconstitutional requirement, we review
for substantial compliance. See State v. Jordan, 8th Dist. Cuyahoga No. 103813,
2016-Ohio-5709, ¶ 46, citing Veney at ¶ 14-17. For example, the right to be informed
of the effect of a plea is a nonconstitutional requirement and it is subject to review
under a substantial compliance standard. State v. Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 107, 564
N.E.2d 474 (1990).
“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.” Nero at 108. “[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).
Furthermore, when a nonconstitutional aspect of a plea colloquy is at
issue, a defendant must show prejudice before the plea will be vacated for an error
involving the court’s compliance with Crim.R. 11(C). Jordan at ¶ 47, citing Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 17. See also Dangler,
162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, at ¶ 14-15 (prejudice must be
demonstrated by a defendant claiming the trial court fails to comply with
Crim.R. 11(C) unless the issue involves a constitutional right or unless the trial court
completely fails to comply with a portion of Crim.R. 11 (C)). The test for prejudice
is whether the plea would have otherwise been made. Nero at 108. Under the first assignment of error, Petronzio argues that his plea was
not knowing because at the beginning of the hearing he informed the trial court he
had not receive any discovery material. Our review of the pertinent portion of the
transcript reflects the following exchanges:
THE PROSECUTOR: * * * At this time we believe that full discovery
has been exchanged. The case has been marked to the indictment.
One count F-4, menacing by stalking.
The State had multiple conversations with our victim in this case, and
we were just continuing to negotiate whether or not we were going to
plead this case. Thank you.
THE COURT: Okay. [Defense Counsel], has discovery been complied
with?
[DEFENSE COUNSEL]: Your Honor, to the best of my knowledge, I
have received discovery, and I had discussed possible resolutions with
my client.
THE COURT: All right. Mr. Petronzio, are you satisfied that the
discovery has been completed?
THE DEFENDANT: No. No, I’m not. No. I’m not because there are a
lot of things —
* * *
THE DEFENDANT: * * * I am not happy because the documentation
that they are using is false and, second of all, the documentation — she
[referring to the victim] is submitting documentation that’s not even
hers, that it’s from an attorney. Okay?
* * *
THE COURT: * * * You may object to their admissibility, but you’re
still getting documents and that’s what counts. Okay?
THE DEFENDANT: I haven’t — I haven’t seen anything. The only
thing I’ve been told is on the phone, and the attorney told me that he received some cease and desist that [sic] she [referring to the victim]
is using that from an e-mail that’s not even hers. * * *
[THE DEFENSE COUNSEL]: Your Honor, I’d ask that the Court
advise Mr. Petronzio that I don’t think we want to get into the facts of
the case [referring to a separate federal case involving both Petronzio
and the victim]. The purpose of this hearing it’s to address [counsel’s]
motion to withdraw [as counsel] * * *.
* * *
THE COURT: *** but I want the record to be clear. So the discovery
has been, is ongoing and, sir, * * * [h]ave you had the opportunity to
discuss a resolution of this case with your lawyer?
(Tr. 4-8.)
Our review of the transcript does not support Petronzio’s allegation
that he did not receive any discovery material. The transcript reflects that his
defense represented to the court that counsel had received discovery and had
discussed possible resolutions with Petronzio. Petronzio may not have received
actual copies of the discovery material but his allegation that the documentation was
“false” and was not the victim’s own would seem to indicate that he was aware of the
content of the discovery material. As we discuss more fully in the following, our
review of the lengthy colloquy between the trial court and Petronzio indicates he was
well informed of the charge against him.
Petronzio next claims that he expressed a desire to go to trial, but,
despite his wish, the trial court sua sponte conducted a plea colloquy. He points to
the following exchange at the outset of the hearing to show that the trial court
disregarded his wish to have the case tried: THE COURT: Okay. And obviously since we’re having this hearing
today, you’re not in favor of the resolution of this case. You want to
try this case, is that correct?
THE DEFENDANT: Yes, sir.
(Tr. 8-9.)
Our review of the hearing in its entirety does not support Petronzio’s
contention that the trial court disregarded his wish to go to trial and sua sponte
conducted a plea hearing. The transcript reflects that, after the above exchange, the
trial court advised Petronzio regarding the possibility of a delayed trial date due to
the Covid-19 pandemic but explained that should he choose to go to trial, the state
would carry the burden of proving his guilt beyond a reasonable doubt. The trial
court also explained to him what would occur in a jury trial. After a lengthy
explanation about a jury trial, the court advised Petronzio that he had two other
options: to plead to the offense or waive the jury trial and have the matter tried to
the bench.
After these explanations, the court asked Petronzio if he understood
everything the court explained so far. Petronzio answered: “Yes, sir. Yes, sir, I do.”
The court then repeated that he could enter a plea and conclude the case on that day,
or wait for a trial to be scheduled. The court also asked if Petronzio would like to
take a recess to talk to his counsel and possibly conclude the case that day. Petronzio
answered “yes.” The transcript reflects that, after the recess, the court began an
extended Crim.R. 11 colloquy with Petronzio. Petronzio’s claim that the trial court
“embarked on the Plea Colloquy sua sponte” is not supported by the record. Under the first assignment of error, Petronzio also claims that his no
contest plea was not knowing or intelligent because the court explained the effect of
a no contest plea only after he entered the plea.
To advise a defendant of the “effect of the plea” means to advise him or
her of the appropriate language under Crim.R. 11(B). State v. Jones, 116 Ohio St.3d
211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph two of the syllabus.
Crim.R. 11(B)(2) sets forth the effect of a no contest pleas, stating: “The plea of no
contest is not an admission of defendant’s guilt, but is an admission of the truth of
the facts alleged in the indictment, information, or complaint and such plea or
admission shall not be used against the defendant in any subsequent civil or criminal
proceeding.”
Here, the transcript reflects that, after the recess, the court conducted
a Crim.R. 11(C) colloquy, explaining that if Petronzio was to plead guilty or no
contest, he would give up his constitutional right to have the state prove his guilt
beyond a reasonable doubt, right to a jury trial, right to subpoena and cross-examine
witnesses, and right not to testify against himself. The court also explained that
should he plead no contest, the prosecutor must provide a statement of the facts
supporting the offense. The court then asked Petronzio whether he wanted to plead
guilty or no contest. Petronzio stated: “I’ll plead no contest.”
After the prosecutor recited the facts underlying the charge against
Petronzio for menacing by stalking, the court then explained to him the effects of the
no contest plea as required by Crim.R. 11(B)(2) — that a no contest plea was not an admission of the defendant’s guilt, but only an admission of the truth of the facts
alleged in the indictment, and that the plea shall not be used against him in any
subsequent civil or criminal proceedings. The following exchange is then reflected
in the transcript:
THE COURT: Okay. I just want to make sure you understand. I want
to be clear in the record you’re not pleading guilty. You’re pleading no
contest. It cannot be used in any other proceedings. Do you
understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And that’s what you want to do?
THE DEFENDANT: Yes, sir.
(Tr. 30.)
Before proceeding to sentencing, the court asked if Petronzio
understood he was pleading no contest to a fourth-degree felony, subject to a
possible prison term of six to eighteen month. He answered: “Yes, sir, I do.”
The transcript reflects his counsel then spoke on his behalf and
presented mitigating factors for the court’s consideration: Petronzio, who was 56,
had not had a felony conviction in decades, his last misdemeanor was nearly a
decade ago, and he has been a law-abiding citizen for a significant period of time;
the stalking offense stemmed from some deep-rooted issues in the family and
Petronzio had made it clear he would not have future contact with the victim and
her family. The trial court sentenced Petronzio to a one-year term of community
control but indicated its willingness to terminate the community control in six months if he pays the court costs and abides by the order of no contact with the
victim and her family and the other conditions of his community control. The court
next instructed him to contact the court-supervised release section and let it know
that he had pleaded guilty. Petronzio repeated the court’s instruction but corrected
the court’s mistake, stating: “Oh, I am going to call the probation * * * and tell them
that I pled no contest — not plead guilty but no contest — and that I have to find a
probation officer or community control, or whatever you call it.” (Emphasis added.)
(Tr. 46.)
Pursuant to Dangler, our review is to assess “whether the dialogue
between the court and the defendant demonstrates that the defendant understood
the consequences of his plea.” The transcript here reflects the trial court explained
in great detail the implication of forgoing a trial and the effect of a no contest plea.
The court repeatedly asked Petronzio if he understand the nature of his plea and if
he was indeed pleading no contest and he answered affirmatively on each occasion.
In fact, at the conclusion of the hearing, he corrected the trial court when it
erroneously stated Petronzio pleaded guilty, and reaffirmed that he was pleading no
contest. The lengthy dialogue between the court and Petronzio as reflected in the
transcript amply demonstrates that Petronzio understood the consequences of his
no contest plea and, specifically, the effect of his no contest plea. Although the
colloquy was not in perfect order, the trial court substantially, if not fully, complied
with Crim.R. 11(C). Because the trial court at the very least substantially complied with
Crim.R. 11(C), Petronzio must demonstrate prejudice in order to have his conviction
reversed. Dangler at ¶ 16. Although Petronzio expressed a desire to go to trial at
the outset of the hearing, he pleaded no contest after a rather extensive colloquy with
the trial court. Petronzio makes no demonstration that he was prejudiced by the
trial court’s failure to more fully explain the no contest plea, nor is any prejudice
apparent in the record before us. The first assignment of error lacks merit.
Ineffective Assistance of Counsel
Under the second assignment of error, Petronzio argues his counsel
provided ineffective assistance of counsel. In order to establish a claim of ineffective
assistance of counsel, appellant must show “(1) deficient performance by counsel,
i.e., performance falling below an objective standard of reasonable representation,
and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different.” State v. Perez, 124 Ohio St.3d 122,
2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v. Washington, 466 U.S.
668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, every properly
licensed attorney is presumed to be competent and a defendant claiming ineffective
assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio St.3d 98,
100, 477 N.E.2d 1128 (1985). “Judicial scrutiny of defense counsel’s performance
must be highly deferential.” State v. Brown, 8th Dist. Cuyahoga Nos. 93216 and
93217, 2010-Ohio-364, ¶ 5, citing Strickland at 2065. In this case, Petronzio pleaded no contest to the charge against him.
In a plea case, an appellant claiming ineffective assistance of counsel must show that
there is a reasonable probability that, but for counsel’s errors, he would have insisted
on going to trial. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d
48, ¶ 89.
Petronzio contends his counsel provided ineffective assistance of
counsel in that counsel failed to share discovery information with him and, “had he
been fully informed, there is certainly a reasonable probability that he would not
have entered a plea in this case.”
While Petronzio proclaimed he had not received any discovery
material at one point at the hearing, other statements made by him indicated he
disputed the information provided by the prosecutor. While Petronzio claims on
appeal that he was deprived of information necessary for him to make an informed
decision, he does not identify the information he was allegedly deprived of that
caused him to plead no contest instead of opting for trial. On this issue, the
transcript reflects that after Petronzio expressed his dissatisfaction over discovery
material, the court called for a recess to allow a discussion between Petronzio and
his counsel regarding the evidence against him and his options. After the recess, the
trial court engaged in a plea colloquy without any further protest from Petronzio
regarding discovery and any concerns over discovery he might have had appears to
have been resolved. Having carefully reviewed the transcript, we find Petronzio fails
to meet his burden of demonstrating that, but for the information his counsel allegedly failed to share with him, he would have gone to trial instead of pleading no
contest. Petronzio’s claim of ineffective assistance of counsel lacks merit. The
second assignment of error is overruled.
Outcome: Judgment affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: