[Cite as State v. Benitez-Maranon, 2014-Ohio-3575.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                              C.A. Nos.   26461
                                                                       26659
        Appellee

        v.
                                                           APPEAL FROM JUDGMENT
RAUL BENITEZ-MARANON                                       ENTERED IN THE
                                                           COURT OF COMMON PLEAS
        Appellant                                          COUNTY OF SUMMIT, OHIO
                                                           CASE No.   CR 11 08 2249

                                DECISION AND JOURNAL ENTRY

Dated: August 20, 2014



        BELFANCE, Presiding Judge.

        {¶1}    Raul Benitez-Maranon appeals from his conviction in the Summit County Court

of Common Pleas. For the reasons set forth below, we affirm in part and reverse in part.

                                                      I.

        {¶2}    Mr. Benitez-Maranon was indicted for aggravated murder and murder for killing

Jerry Laury. Both counts had underlying firearm specifications. Mr. Benitez-Maranon pleaded

guilty to aggravated murder along with the underlying firearm specification, and the remaining

count was dismissed. The trial court sentenced Mr. Benitez-Maranon to an aggregate term of 33

years to life in prison.

        {¶3}    Mr. Benitez-Maranon filed a motion for delayed appeal, which was granted, and

has raised four assignments of error for our review. For ease of discussion, we have rearranged

his assignments of error.
                                                   2


                                                 II.

                                   ASSIGNMENT OF ERROR II

        THE TRIAL COURT FAILED TO ENSURE THAT MR. BENITEZ-
        MARANON WAS PROVIDED WITH A QUALIFIED INTERPRETER[.]

        {¶4}   In his second assignment of error, Mr. Benitez-Maranon argues that the trial court

committed plain error because it failed to ensure that he was provided with a qualified

interpreter.

        {¶5}   To establish plain error,1

        “[f]irst, there must be an error, i.e., a deviation from the legal rule. * * * Second,
        the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an
        error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error
        must have affected ‘substantial rights * * *’ [to the extent that it] * * * affected
        the outcome of the trial.”

State v. Hardges, 9th Dist. Summit No. 24175, 2008-Ohio-5567, ¶ 9, quoting State v. Barnes, 94

Ohio St.3d 21, 27 (2002). “Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

        {¶6}   According to Mr. Benitez-Maranon, the plain error in this case is that “there is

absolutely no indication that the interpreter was qualified or that the Court made any inquiry

regarding the qualifications of the interpreter.” R.C. 2311.14(A)(1) provides,

        Whenever because of a hearing, speech, or other impairment a party to or witness
        in a legal proceeding cannot readily understand or communicate, the court shall
        appoint a qualified interpreter to assist such person. Before appointing any
        interpreter under this division for a party or witness who is a mentally retarded
        person or developmentally disabled person, the court shall evaluate the
        qualifications of the interpreter and shall make a determination as to the ability of
        the interpreter to effectively interpret on behalf of the party or witness that the
        interpreter will assist, and the court may appoint the interpreter only if the court is

        1
          Mr. Benitez-Maranon has not suggested that the trial court’s failure to qualify his
interpreter should be analyzed under any standard other than plain error.
                                                  3


       satisfied that the interpreter is able to effectively interpret on behalf of that party
       or witness.

Pursuant to R.C. 2311.14(B), “Before entering upon official duties, the interpreter shall take an

oath that the interpreter will make a true interpretation of the proceedings to the party or witness,

and that the interpreter will truly repeat the statements made by such party or witness to the

court, to the best of the interpreter’s ability.” See also Evid.R. 604 (“An interpreter is subject to

the provisions of these rules relating to qualification as an expert and the administration of an

oath or affirmation to make a true translation.”).2

       {¶7}    In this case, the trial court administered the oath required by R.C. 2311.14(B) on

the record, but the record is silent as to whether there was any inquiry concerning the

interpreter’s qualifications. Mr. Benitez-Maranon, however, suggests that the trial court was not

only required to investigate and determine that the interpreter was qualified, its inquiry and

determination must be reflected in the record. He also argues that the trial court committed plain

error in failing to expressly qualify the interpreter pursuant to R.C. 2311.14(A). However, Mr.

Benitez-Maranon has not pointed to anything in the record or to legal authority that suggests that

R.C. 2311.14(A) applied in this case.3        In addition, assuming that R.C. 2311.14(A) was

applicable to Mr. Benitez-Maranon, he has not provided legal authority that a trial court commits

plain error if there is no indication in the record that the court evaluated the qualifications of the

interpreter.4 Hence, to the extent that Mr. Benitez-Maranon’s plain error argument is premised


       2
           Sup.R. 88, which governs the appointment of foreign language or sign language
interpreters, became effective after Mr. Benitez-Maranon had pleaded guilty and been sentenced.
         3
           On its face, R.C. 2311.14(A) only requires the trial court to examine the qualifications
of the interpreter and make a determination about those qualifications when the “party or witness
[] is a mentally retarded person or developmentally disabled person[.]”
         4
           To the extent that Mr. Benitez-Maranon’s argument is premised on the absence of any
determination that the interpreter was qualified, we note that this argument would be necessarily
premised upon facts that are outside of the record in this case.
                                                4


upon the existence of a plain legal error, he has failed to develop his argument. See App.R.

16(A)(7). Likewise, Mr. Benitez-Maranon has failed to cite legal authority and develop an

argument as to the existence of an obvious defect in the proceedings that affected Mr. Benitez-

Maranon’s substantial rights. See Hardges at ¶ 9; App.R. 16(A)(7).

       {¶8}    Accordingly, based upon Mr. Benitez-Maranon’s limited argument, his second

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY NOT HAVING THE APPELLANT PLEAD
       SEPARATELY TO THE AGGRAVATED MURDER CHARGE AND TO THE
       GUN SPECIFICATION AS REQUIRED BY CRIMINAL RULE 11(C)(3).

       {¶9}    Mr. Benitez-Maranon argues in his third assignment of error that the trial court

committed reversible error by having him plead guilty to aggravated murder and the underlying

firearm specification together rather than separately. We disagree.

       {¶10} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

(Internal quotations and citations omitted.) State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-

4130, ¶ 9. “Crim.R. 11 was adopted in 1973 to give detailed instructions to trial courts on the

procedures to follow before accepting pleas of guilty or no contest.” Id.

       {¶11} Mr. Benitez-Maranon does not dispute that the trial court’s plea colloquy

complied with the requirements of Crim.R. 11(C)(1)-(2). Instead, he argues that the trial court

failed to comply with the requirement in Crim.R. 11(C)(3) that, “[w]ith respect to aggravated

murder committed on and after January 1, 1974, the defendant shall plead separately to the

charge and to each specification, if any.” However, Mr. Benitez-Maranon does not cite any
                                                 5


authority or develop any argument to support his assertion that Crim.R. 11(C)(3) would apply in

a case such as this where there is no capital-punishment specification. See Crim.R. 11(C)(3)

(requiring a three-judge panel to convene in cases where an indictment “contains one or more

specifications that are not dismissed upon acceptance of a plea of guilty or no contest to the

charge * * *”). See also State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543, 545 (2000)

(noting that the three-judge requirement in R.C. 2945.06 and Crim.R. 11(C)(3) only applies

when a defendant is charged with an offense that is punishable by death and, therefore, neither

requires a three-judge panel accept a guilty plea if the death penalty is no longer a possible

sentence.). Instead, his reference to the applicability of Crim.R. 11(C)(3) is conclusory. See

App.R. 16(A)(7).

       {¶12} Accordingly, in light of the limited argument before us and the apparent

inapplicability of Crim.R. 11(C)(3) because no capital specification existed in this case, his third

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR IV

       THE TRIAL COURT FAILED TO COMPLY WITH ORC § 2929.19[.]

       {¶13} In Mr. Benitez-Maranon’s fourth assignment of error, he argues that his sentence

must be vacated because the trial court failed to give the notification required by R.C.

2929.19(B)(2)(f) and because it did not tell him that his sentence was mandatory.

“MANDATORY” SENTENCE

       {¶14} Mr. Benitez-Maranon argues that the trial court failed to inform him that his

sentence was mandatory as required by R.C. 2929.19(B)(2)(a),5 which provides that, “if the

sentencing court determines at the sentencing hearing that a prison term is necessary or required,

       5
          In his brief, Mr. Benitez-Maranon incorrectly refers to R.C. 2929.19(B)(1) for this
proposition.
                                                  6


the court shall * * * [i]mpose a stated prison term and, if the court imposes a mandatory prison

term, notify the offender that the prison term is a mandatory prison term.” In this case, the trial

court did not expressly notify Mr. Benitez-Maranon that the prison term for aggravated murder

was mandatory. Instead, it said that “Mr. Benitez-Maranon will spend the next 30-plus years in

prison.” The trial court also said that it was “imposing a life sentence with parole eligibility –

which is not the same thing as getting parole – after 30 years * * *.” Finally, the trial court

informed Mr. Benitez-Maranon, “So, that is my sentence. It is three years, plus life * * * with

the possibility of parole after 30 years. So 33 years is your first opportunity to go to the Parole

Board.” We agree that, although the trial court clearly conveyed the content of its sentence to

Mr. Benitez-Maranon, it did not inform him that the sentence was mandatory.

       {¶15} R.C. 2929.19(B)(7) provides that “[t]he failure of the court to notify the offender

that a prison term is a mandatory prison term pursuant to division (B)(2)(a) of this section or to

include in the sentencing entry any information required by division (B)(2)(b) of this section

does not affect the validity of the imposed sentence or sentences.” Thus, pursuant to this section,

upon failure to comply with R.C. 2929(B)(2)(a), it appears that the remedy would be to require

the trial court to provide the notification. However, contrary to his suggestion, Mr. Benitez-

Maranon’s sentence would not be vacated. Accordingly, it is appropriate to remand the matter to

the trial court to provide the notification set forth in R.C. 2929.19(B)(2)(a).

R.C. 2929.19(B)(2)(f)

       {¶16} R.C. 2929.19(B)(2)(f) provides that,

       [s]ubject to division (B)(3) of this section, if the sentencing court determines at
       the sentencing hearing that a prison term is necessary or required, the court shall *
       * * [r]equire that the offender not ingest or be injected with a drug of abuse and
       submit to random drug testing as provided in section 341.26, 753.33, or 5120.63
       of the Revised Code, whichever is applicable to the offender who is serving a
       prison term, and require that the results of the drug test administered under any of
                                                 7


       those sections indicate that the offender did not ingest or was not injected with a
       drug of abuse.

Thus, R.C. 2929.19(B)(2)(f) mandates that the trial court order drug testing and order a

defendant to not use drugs in prison. However, while the trial court did not do so in this case,

Mr. Benitez-Maranon has not explained why the trial court’s oversight requires the complete

vacation of his sentence, nor has he cited any authority to that effect. See App.R. 16(A)(7). See

also State v. Culgan, 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 18-20.

       {¶17} However, to the extent that Mr. Benitez-Maranon argues that the trial court erred

when it failed to order him to not use drugs and to submit to random drug testing, his assignment

of error is sustained. On remand, the trial court shall comply with the requirements of R.C.

2929.19(B)(2)(f).

       {¶18} Mr. Benitez-Maranon’s fourth assignment of error is sustained in part and

overruled in part.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AND
       COSTS AGAINST DEFENDANT WITHOUT INFORMING DEFENDANT AT
       HIS SENTENCING OR MAKING AN “ABILITY-TO-PAY” FINDING AS
       REQUIRED UNDER O.R.C. §§ 2947.23 AND 2941.51(D)[.]

       {¶19} Mr. Benitez-Maranon argues in his first assignment of error that the trial court

committed reversible error when it failed to determine whether he was able to pay prior to

imposing court costs and attorney fees. He also argues that the trial court failed to give him the

proper notice under R.C. 2947.23 that he could be required to perform community service if he

failed to pay the court costs. The State concedes that the trial court erred, and we agree.

       {¶20} Under R.C. 2941.51(D),

       [t]he [attorney] fees and expenses approved by the court under this section shall
       not be taxed as part of the costs and shall be paid by the county. However, if the
                                                 8


       person represented has, or reasonably may be expected to have, the means to meet
       some part of the cost of the services rendered to the person, the person shall pay
       the county an amount that the person reasonably can be expected to pay.

Thus, “[t]he court must make a determination that the defendant is financially capable of paying

for his appointed counsel before assessing court-appointed attorney fees.” (Internal quotations

and citations omitted.) State v. Malone, 9th Dist. Lorain No. 09CA009732, 2010-Ohio-5658, ¶

11. The trial court did not make any finding regarding Mr. Benitez-Maranon’s ability to pay; in

fact, the trial court did not mention attorney fees or court costs at all at the sentencing hearing.

Therefore, the trial court’s imposition of court costs and attorney fees must be reversed. See State

v. Walters, 9th Dist. Summit No. 25391, 2011-Ohio-6247, ¶ 35.

       {¶21} Turning to Mr. Benitez-Maranon’s argument that the trial court failed to comply

with former R.C. 2947.23(A)(1), he is correct that former R.C. 2947.23 “required trial courts to

advise defendants of the foregoing community service notifications at their sentencing hearings.”

State v. Eader, 9th Dist. Summit No. 26762, 2013-Ohio-3709, ¶ 19. Failure to comply with the

requirements of former R.C. 2947.23(A)(1) constitutes reversible error. Id. Accordingly, Mr.

Benitez-Maranon is correct that the matter must be remanded so that the trial court can comply

with the notice requirements of R.C. 2947.23.

       {¶22} Mr. Benitez-Maranon’s first assignment of error is sustained.

                                              III.

       {¶23} Mr. Benitez-Maranon’s first assignment of error is sustained, and his fourth

assignment of error is sustained in part. His remaining assignments of error are overruled. The

judgment of the Summit County Court of Common Pleas is affirmed in part and reversed in part,

and the matter is remanded for further proceedings consistent with this opinion.
                                                 9


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

ANDREA L. WHITAKER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
