[Cite as State v. Williams, 2011-Ohio-2551.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 95853




                                     STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               RICHARD WILLIAMS
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                     Criminal Appeal from the
                 Cuyahoga County Court of Common Pleas
                         Case No. CR-534090

     BEFORE:      Keough, J., Cooney, P.J., and S. Gallagher, J.

    RELEASED AND JOURNALIZED:                May 26, 2011
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, OH 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Defendant-appellant, Richard Williams (“Williams”), appeals the

trial court’s acceptance of his guilty plea and his sentence. For the following

reasons, we affirm.

      {¶ 2} In February 2010, Williams was charged with seven counts each

of kidnapping, felonious assault, and gross sexual imposition, and six counts

of rape. All counts contained one or more specifications, including notice of

prior conviction, repeat violent offender specifications, sexual motivation

specifications, and sexually violent predator specifications.

      {¶ 3} Since the procedural nature of this case is of importance to the

disposition of this appeal, we recount it in some detail. On the day of trial,

the State presented Williams with a plea agreement. Following extensive

day-long plea negotiations, the trial court was advised that Williams would be

entering into a plea agreement. After the State set forth the plea agreement

on the record, the trial court engaged in the requisite Crim.R. 11 plea

colloquy. During the colloquy, the trial court thoroughly advised Williams of

his constitutional rights he would be waiving by pleading guilty to the

charges set forth in the agreement. After Williams affirmatively stated he

understood these rights, the trial court advised him of the penalties he faced

on each count, postrelease control, and his sexual offender classification.
When the trial court inquired if any promises had been made, Williams

answered in the affirmative, stating that he believed his sentence would be 25

years to life. After the court told Williams that he would be facing a life

sentence with parole eligibility after 25 years, the trial court accepted

Williams’s plea and granted the State’s motion to amend the counts as

agreed. Williams then pled guilty to the counts as the trial court delineated

them on the record. When the trial court asked for his plea to the rape of

B.U., 1 Williams indicated he did not rape B.U.                           The trial court, the

prosecutor, and defense attorney realized that a mistake had been made in

the plea agreement and there was some confusion as to the proper agreement.

 The prosecutor changed the victim’s name on the rape count to reflect what

was intended. The trial judge stated:

      {¶ 4} “Court:       * * * What the court is going to do is obviously I’ve gone

through the constitutional rights of the defendant.                       He has indicated he

understands he is waiving or giving up those rights and answered the other

questions in the Rule 11 colloquy.

      {¶ 5} “However, when I went through the offenses to which he would be

pleading guilty, although the penalties do not change, some of the

amendments have changed. So I’m going to strike that and also advise the



      We use initials to protect the identities of sexual assault victims involved.
      1
defendant once again of exactly what he’ll be pleading to and strike any of his

changes of plea. * * *.”

      {¶ 6} After the trial court went through the plea agreement with the

prosecutor and defense attorney, Williams again questioned the potential

sentence of 25 years to life. After a sidebar conversation, the court addressed

Williams and advised him that his sentence was at her discretion and she

would make no promises as to whether he would receive a sentence of 25

years to life. Williams then asserted that he wished to go to trial. The trial

court acknowledged this request: “Okay. We’ll see you tomorrow morning in

civilian clothes.”    The trial court transcript indicates that the court then

stood in “recess.”

      {¶ 7} When the trial court reconvened that same day, the judge

addressed the parties and stated that it was her understanding that the

parties had engaged in further plea negotiations during the recess.        The

record, however, is unclear how much time had elapsed before reconvening.

The trial court then set forth the new plea agreement. After a few brief

conferences with his counsel, Williams indicated to the trial court that he

wished to accept the new plea deal:

      {¶ 8} “Court:    Okay. All right. I’ve gone through your constitutional

rights, did you understand those rights and did you understand that you are

waiving or giving up those rights?
      {¶ 9} “Williams:     Yes.

      {¶ 10} “Court:   All right. And you answered truthfully when I asked

your age, education, whether you were under the influence of drugs or

alcohol, about your citizenship; is that correct?

      {¶ 11} “Defendant:    Yes.”

      {¶ 12} The trial court set forth the plea, the penalties associated

therewith, the possibility and consequences of Williams violating his current

parole status, Williams’s sex offender classification, and postrelease control.

Williams entered pleas of guilty to the renegotiated plea: guilty to one count

of gross sexual imposition and guilty to one count of rape with a prior

conviction specification for rape. Following the plea, the trial court stated,

“All right.    Let the record reflect that the court finds the defendant

knowingly, voluntarily and with a full understanding of his rights enters his

change of plea.” Both the defense attorney and prosecutor stated they were

satisfied with the court’s compliance with Crim.R. 11.

      {¶ 13} The trial court sentenced Williams to a life sentence on the rape

charge, with eligibility for parole after 25 years, to run consecutive to a

sentence of five years on the gross sexual imposition charge, for a total of life

in prison, with eligibility for parole after 30 years.

      {¶ 14} Williams filed this delayed appeal, challenging the validity of his

plea and sentence.
                                      Plea

       {¶ 15} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony

matter, a trial court must personally address the defendant and (1) determine

that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty; (2) inform the defendant

of and determine that the defendant understands the effect of the plea, and

that the court may proceed with judgment after accepting the plea; and (3)

inform the defendant and determine that the defendant understands that he

is waiving his constitutional rights to a jury trial, to confront the witnesses

against him, to call witnesses in his favor, and to require the State to prove

his guilt beyond a reasonable doubt at a trial where the defendant cannot be

forced to testify against himself.

       {¶ 16} A trial court must strictly comply with the mandates of Crim.R.

11(C)(2) regarding the waiver of constitutional rights, meaning the court

must actually inform the defendant of the constitutional rights he is waiving

and make sure the defendant understands them. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶27. Failure to fully advise a

defendant of his Crim.R. 11(C)(2)(c) rights renders a plea invalid. Veney at

29.

       {¶ 17} In his first assignment of error, Williams argues that he did not

enter his plea knowingly and voluntarily because the trial court failed to
strictly comply with the mandates of Crim.R. 11(C)(2) when it failed to

readvise him of his constitutional rights prior to accepting his guilty plea to

the renegotiated plea.    Williams has failed to cite to any legal authority

supporting his argument; however, our research of the issue failed to find

precedent for this court to follow.

      {¶ 18} During the initial plea colloquy, the trial court strictly complied

with Crim.R. 11(C)(2)(c) by advising Williams of his constitutional rights.

Williams affirmatively stated he understood that by pleading guilty to the

offenses set forth in the initial plea agreement, he would be waiving or giving

up his constitutional right to have a trial by jury or before a judge, his right to

subpoena witnesses to appear and testify, his right to cross-examine

witnesses, the right to have the State prove his guilt beyond a reasonable

doubt, and the right to not testify, nor be compelled to testify, at trial. Tr.

31-33.

      {¶ 19} The plea colloquy was disrupted, not because Williams did not

understand his Crim.R. 11 rights, but because confusion existed as to the

victim of the rape charge and because Williams thought he was receiving a

25-to-life sentence. It was during this confusion that Williams demanded a

trial. After an unknown period of time, the parties negotiated a new plea

agreement, which was placed before the trial court. The trial court did not

readvise Williams of his constitutional rights, but rather questioned whether
he understood those constitutional rights that were previously set forth and

whether he understood he would be waiving those rights. After Williams

affirmatively stated he understood, the trial court proceeded with the plea,

ultimately accepted the plea, and imposed a sentence.

      {¶ 20} This court would prefer trial courts to take the extra step and

readvise a defendant of his Crim.R. 11(C)(2) constitutional rights when a plea

is disrupted or when a new plea agreement has been reached. At the very

least, the trial court should make sure the record reflects how much time has

elapsed between the original plea and the end of the recess. Trial courts run

the risk of noncompliance with the mandatory provisions of Crim.R. 11 when

the advisement of a defendant’s constitutional rights does not immediately

precede the actual plea entered by a defendant. See Veney; State v. Troiano,

Franklin App. No. 09AP-862, 2010-Ohio-3019, 9.

      {¶ 21} However, we find that the facts and circumstances in this case

demonstrate that the trial court strictly complied with the mandates of

Crim.R. 11(C)(2).   The trial judge commented that she previously advised

Williams of his constitutional rights and questioned him prior to accepting his

plea on the renegotiated plea deal as to whether he understood those rights

and that he was waiving those rights. Williams responded affirmatively.

      {¶ 22} Finally, the record reflects that the nature of the charges in the

renegotiated plea deal were the same as the initial plea deal, except the
renegotiated plea contained fewer charges. In the first plea deal, the State

offered the following plea: one count of kidnapping, two counts of felonious

assault, one count of gross sexual imposition, and one count of rape

containing a prior conviction specification.    In the renegotiated deal, the

State offered, and Williams ultimately pled guilty to, one count of gross

sexual imposition and one count of rape containing a prior conviction

specification. The charges did not change, just the number of them.

      {¶ 23} Finally, because only a limited lapse of time occurred between the

two pleas such that the pleas occurred on the same day and possibly within

hours of each other, the initial colloquy between Williams and the trial court

was sufficient to satisfy the mandates of Crim.R. 11(C)(2)(c).

      {¶ 24} Accordingly, the trial court did not err in failing to readvise

Williams of his Crim.R. 11(C)(2)(c) rights prior to accepting his guilty plea.

Williams’s first assignment of error is overruled.

                        Consecutive Sentence Findings

      {¶ 25} Williams contends in his second assignment of error that the trial

court erred in sentencing him to consecutive terms of imprisonment without

making the findings required under R.C. 2929.14(E)(4), in violation of his

right to due process of law under the Fourteenth Amendment to the United

States Constitution. Williams asserts that the holding in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, that R.C. 2929.14(E)(4) and
2929.41(A) were unconstitutional, is no longer valid in light of Oregon v. Ice

(2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517.

      {¶ 26} The Ohio Supreme Court recently rejected this argument in State

v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768.          The court

concluded that Ice did not require it to depart from its holding in Foster

because “there is no constitutional requirement that a judge make findings of

fact before imposing consecutive sentences” and requiring resentencing to

include findings of fact would “disrupt reasonable and settled expectations of

finality,” and impose an “undue burden on the judicial system.” Hodge at

30-32.

      {¶ 27} Accordingly, Williams’s second assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.

Case remanded to the trial court for execution of sentence.



      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

COLLEEN CONWAY COONEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
