State v. Stumph

2021 Ohio 723

STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL STUMPH, Defendant-Appellant.

APPEAL NO. C-190318

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

March 12, 2021

TRIAL NO. B-1607280

OPINION.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske and Lora D. Peters, Assistant Public Defenders, for Defendant-Appellant.

MYERS, Judge.

{¶1} Defendant-appellant Michael Stumph pled guilty to aggravated murder in violation of R.C. 2903.01(B) and was sentenced to life imprisonment without the possibility of parole. Stumph appeals, arguing that his guilty plea was not knowingly, intelligently, and voluntarily entered, that the trial court erred in imposing a sentence of life without the possibility of parole, that the cumulative effect of the errors tainting his guilty plea and the sentencing hearing require reversal of his conviction, and that R.C. 2953.08(D)(3), which prohibits the review of sentences imposed for aggravated murder, is unconstitutional.

{¶2} For the reasons set forth below, we decline to address Stumph's constitutional challenges to R.C. 2953.08(D)(3). And finding Stumph's remaining assignments of error to be without merit, we affirm the trial court's judgment.

Factual and Procedural Background

{¶3} In November of 2016, Otto Stewart was brutally murdered in his home during the course of a robbery. For his role in these crimes, Stumph was indicted for aggravated murder with an accompanying death-penalty specification, murder, and two counts of aggravated robbery.

{¶4} Stumph pled guilty to aggravated murder. In return for Stumph's guilty plea, the death-penalty specification and remaining charges were dismissed. Following a sentencing hearing, the trial court imposed a sentence of life imprisonment without the possibility of parole.

Stumph's Plea was Voluntary

{¶5} In his first assignment of error, Stumph argues that his guilty plea was not entered knowingly, voluntarily, and intelligently.

{¶6} Before accepting a guilty plea to a felony offense, Crim.R. 11(C) requires a trial court to address the defendant and verify that the defendant is entering the plea voluntarily, with an understanding of the effect of the plea, the nature of the charges, and the maximum potential penalty. The court must also inform the defendant of various constitutional rights that the defendant is waiving by entering a guilty plea. State v. Morris, 1st Dist. Hamilton No. C-180520, 2019-Ohio-3011, ¶ 15; State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 41.

{¶7} When explaining the constitutional rights that are being waived, the trial court must strictly comply with Crim.R. 11. Morris at ¶ 16; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus. But when explaining the nonconstitutional provisions of the rule to a defendant, including the nature of the charges, the maximum penalty involved, postrelease-control obligations, and the effect of the plea, the trial court need only substantially comply with Crim.R. 11. Morris at ¶ 16; Veney at ¶ 14. 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).

{¶8} If a trial court fails to substantially comply with Crim.R. 11 regarding a nonconstitutional provision, a reviewing court must determine whether the trial court partially complied or failed to comply with the rule. Morris at ¶ 17; State v.Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. Where a trial court has completely failed to comply with a nonconstitutional provision of the rule, the defendant's plea must be vacated. Clark at ¶ 32. But where the trial court has partially complied, the plea may only be vacated if the defendant demonstrates prejudice. Id. To establish prejudice, a defendant must demonstrate that the plea would not have otherwise been made if the defendant had been fully informed. Id., citing Nero at 108.

{¶9} Stumph specifically argues that that his plea was not voluntary because the trial court conflated the concepts of parole and postrelease control during the plea colloquy when explaining the potential maximum sentence he faced. The following discussion took place during the plea colloquy:

THE COURT: And basically, he's going to plead guilty as charged to Count 1, which is Aggravated Murder, and that's in violation of 2903.01(B). It's a special felony. It carries a maximum possible fine of $25,000—although he's not going to be fined, it's an indigent case, but it carries anywhere from—from 20 to life, 25 to life, 30 to life or life with no parole. Can we put that [on the plea form]?

[DEFENSE COUNSEL]: We can, Judge, we put life at the end.

THE COURT: It says life. It says 20 to 25 to 30 to life. Let's make sure, because the other option is life with no parole. If you want to put that in and show it to the defendant, he's right here. Make sure he understands that.

[DEFENSE COUNSEL]: Judge, for the record, we're putting—[defense counsel two] is putting it on the document—throughout the entirecase, the negotiations, he was made aware the aggravated murder carries 20, 30 to life, and then life without the possibility of parole.

[DEFENSE COUNSEL TWO]: Judge, I just have written life without the possibility of parole on the plea form. Do you need his initials or can he acknowledge that on the record?

THE COURT: Yeah, could you? You can acknowledge it on the record, that's fine.

DEFENDANT: I acknowledge it, Your Honor.

* * *

THE COURT: [At the sentencing hearing] I'll decide whether you receive 20 to life, 25 to life, 30 to life, or life without parole. If I gave you 20, 25, 30 to life and you eventually got out of prison, you would be on postrelease control then for five years. If you violated that, they could send you back for nine months for every violation until they got up to half your term. And I imagine on that kind of case it would probably be for the rest of your life.

[DEFENSE COUNSEL]: Judge, for special felonies, they are on parole for the rest of your life.

THE COURT: So he would—you would be on—that's right, you would actually be on parole for the rest of your life, even though its 20, 25 to 30—that's right, even if you are, you would get life parole. If you violate, they could send you back for nine months for every violation. I guess if you're on parole for life, they could just keep sending you backbecause it's a life term. They could just send him back for nine months or more, at least nine months.

[THE STATE]: At least.

THE COURT: If you commit a felony while on postrelease control, the judge who got the new felony could send you to prison and run that sentence consecutively to how—your life term. I guess at that point they could send you back and you probably end up getting life consecutive to the new term. Or if I decide life with no parole, which is a possibility, there's no promises here, I'm going to look at everything and keep an open mind. Life without the possibility of parole, then you're just locked up for the rest of your life. Do you understand that?

DEFENDANT: Yes, sir.

{¶10} Stumph contends that the plea form he executed further confused the issue of whether he faced parole or postrelease control if he were to be released from prison. The plea form contained the following language:

After release from the Department of Corrections, I understand the following: I shall be supervised on post[-]release control for each offense that is one of the following: a felony of the first degree (F1) for five (5) years; any sex offense for five (5) years; a felony of the second degree (F2) for three (3) years; any felony of the third degree (F3) where I caused or threatened physical harm to a person for three (3) years. I may be supervised on post release control for up to three (3) years, as determined by the parole board for any of the following: a felony of the third degree (F3) which does not involve physical harm orthreatened harm to a person; a felony of the fourth degree (F4); and a felony of the fifth degree (F5). The parole board could return me to prison for up to nine (9) months for each violation of these conditions for a total of 50% of my stated term. If I commit a new felony while on post-release control, I may be punished both for the violation of post-release control and the new offense. At sentencing for the new felony, I may then receive a prison term for the violation for post-release control of up to the remaining period of post-release control or one (1) year, which ever is greater. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony.

{¶11} Because Stumph pled guilty to aggravated murder, an unclassified or special felony, he was not subject to postrelease control. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 36; R.C. 2967.28. Rather, an offender convicted of aggravated murder "is either ineligible for parole or becomes eligible for parole after serving a period of 20, 25, or 30 years in prison." Id. at ¶ 36. Whereas an offender subject to a term of postrelease control faces a period of supervision after the offender has served her or his prison sentence, an offender subject to parole "is released from confinement before the end of his or her sentence and remains in the custody of the state until the sentence expires or the Adult Parole Authority grants final release." Id. at ¶ 35-36.

{¶12} A trial court is not required to inform an offender about parole when discussing the maximum penalty faced in a plea colloquy because an offender is not guaranteed to be released on parole. Id. at ¶ 37. But...