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7th District vacates plea in Mahoning County robbery case

TRACEY BLAIR
Legal News Reporter

Published: August 6, 2020

A Mahoning County trial court erred by failing to advise a robbery defendant of the state’s burden to prove all elements beyond a reasonable doubt during his Crim.R. 11 plea colloquy, the 7th District Court of Appeals recently ruled.
Anthony Johnson appealed a Sept. 6, 2019 judgment entry convicting him of several offenses stemming from two robberies. Johnson argued he did not intelligently, knowingly, and voluntarily enter his guilty plea.
On Dec. 28, 2017, Johnson’s codefendant, Robert Sellers, entered a Subway restaurant in Youngstown. He brandished a gun and demanded money from the cash register. Johnson was accused of driving the getaway vehicle.
Several days later, Sellers entered a Family Dollar store in Youngstown, this time wearing dark clothing and a ski mask. He again brandished a gun and demanded money from the cash register.
A witness said they saw him enter a white Tahoe SUV that was driven by Johnson, and put a “be on the lookout” - or “BOLO” - alert on the vehicle. Twenty minutes later, police located the vehicle. Inside, they found clothing consistent with the clothing worn by the robber.
On June 24, 2019, Sellers pleaded guilty and was sentenced to an aggregate nine year prison term. On the same date, Johnson pleaded guilty to two counts of robbery and one count of having a weapon while under a disability, each with attendant firearm specifications. Charges of aggravated robbery charges and violent offender specifications were dismissed.
Johnson alleged the trial court failed to inform him that by pleading guilty, he would forfeit his right to require the state to prove each element of the charged offenses beyond a reasonable doubt.
A trial court to strictly comply with the requirement to inform the defendant of these rights or the plea is invalid.
“Unlike the information required regarding constitutional rights, a trial court need only substantially comply with informing a defendant of his nonconstitutional rights,” appellate Judge Cheryl L. Waite said in her 3-0 opinion. “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. If the trial court does not substantially comply, the defendant must demonstrate some prejudice in order to invalidate the plea. The parties in this matter agree that the trial court failed to advise appellant he was waiving his right to require the state to prove each element of each offense beyond a reasonable doubt, a constitutional right. A review of the record confirms the court failed to provide this advisement at appellant’s plea hearing. As established in Veney, the notification regards a constitutional right, thus appellant need not demonstrate prejudice in order to prevail. Accordingly, appellant’s first assignment of error has merit and is sustained and his plea is hereby vacated.”
Johnson also argued the court abused its discretion when it sentenced him to 10 years in prison -more than double the term jointly recommended by the parties and one year longer than his codefendant’s sentence.
The trial court scheduled a sentencing hearing on Aug. 8, 2019. However, Johnson failed to appear at the hearing and the court issued a bench warrant for his arrest. Appellant was later arrested and his sentencing hearing was rescheduled for Sept. 3, 2019.
At the sentencing hearing, the judge discussed the fact that Johnson had a more significant criminal record than Sellers and that Sellers appeared to be more remorseful. Therefore, the court said Johnson should receive a lengthier sentence. The court also stated that Johnson should be punished for his failure to appear at the first sentencing hearing. Hence, the court decided it would no longer accept the jointly recommended sentence and, instead, sentenced him to 10 years in prison with credit for 266 days of jail time served.
However, since the appellate panel found the argument regarding his plea has merit, his sentencing argument was moot.
Appellate judges Gene Donofrio and Carol Ann Robb concurred. The case is cited State v. Johnson, 2020-Ohio-3630.


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