State v. Landgraf , 2014 Ohio 5448 ( 2014 )

[Cite as State v. Landgraf, 2014-Ohio-5448.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2014 CA 12
v. : T.C. NO. 13CR644
ERNEST LANDGRAF, JR. : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of December , 2014.
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RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton,
Ohio 45420
Attorney for Defendant-Appellant
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FROELICH, P.J.
{¶ 1} Ernest Landgraf, Jr., pled guilty in the Clark County Court of Common Pleas
to theft of a motor vehicle, a fourth-degree felony; as part of the plea, the State dismissed
one count of breaking and entering. At the time of the offenses, Landgraf was on
post-release control related to a prior felony committed in Montgomery County. At
sentencing, the trial court imposed 18 months in prison for the theft, terminated Landgraf’s
post-release control in the Montgomery County case, and ordered him to serve a prison term
for the amount of time remaining on his post-release control, to be served consecutively to
the 18-month sentence.
{¶ 2} Landgraf appeals from his conviction, claiming that his plea was not made
knowingly, intelligently, and voluntarily, because he was not informed of the potential
additional, consecutive prison term that could be applied under R.C. 2929.141 for the
post-release control violation. For the following reasons, the trial court’s judgment will be
reversed, the plea will be vacated, and the matter will be remanded for further proceedings.
I. Procedural History
{¶ 3} In February 2012, Landgraf was convicted on his guilty plea in the
Montgomery County Court of Common Pleas of tampering with coin machines, a
fifth-degree felony. 1 State v. Landgraf, Montgomery C.P. No. 2011 CR 1475 (Feb. 22,
2012). The trial court in that case sentenced him to seven months in prison and notified
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In September 2014, the trial court ordered the record in this case to be supplemented with a certified copy of the
termination entry from State v. Landgraf, Montgomery County C.P. No. 2011 CR 1475. Our understanding of
what occurred in Landgraf’s Montgomery County case is based on that judgment entry and information in the presentence
investigation report for this case.
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him that, at the discretion of the parole board, he may be placed on post-release control for
three years upon his release from prison. The judgment entry further indicated that
Landgraf was notified of the consequences of violating post-release control, including that
“[i]f the violation of the [post-release control] sanction is a felony, in addition to being
prosecuted and sentenced for the new felony, the defendant may receive from the court a
prison term for the violation of the post-release control itself.” Landgraf served his prison
term and was placed on three years of post-release control.
{¶ 4} On September 4, 2013, while on post-release control, Landgraf broke into
Dan McFaddon Auto Sales in New Carlisle, Ohio, and took a 1999 Dodge Dakota from the
lot. Landgraf was indicted for breaking and entering and theft of a motor vehicle arising
from that incident.
{¶ 5} On January 6, 2014, Landgraf pled guilty to theft of a motor vehicle, in
exchange for which the State dismissed the breaking and entering charge. The plea form
indicated that Landgraf faced a maximum prison term of 18 months and a maximum fine of
$5,000. The plea form further stated, in part, “I understand that if I am now on felony
probation, parole, under a community control sanction, or under post release control from
prison, this plea may result in revocation proceedings and any new sentence could be
imposed consecutively. I know any prison term stated will be served without good time
credit.”
{¶ 6} At the plea hearing, the trial court did not inquire whether Landgraf was on
community control, parole, or post-release control, and no mention was made of the fact that
Landgraf was on post-release control at the time of the offense. The trial court did ask
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Landgraf if he had a chance to review the plea form with his attorney and if he understood
everything in it. Landgraf responded affirmatively, and he acknowledged signing the plea
form.
{¶ 7} The court orally informed Landgraf that theft of a motor vehicle carried a
maximum penalty of 18 months in prison and a $5,000 fine. Landgraf indicated that he
understood. The court also told Landgraf that, if he were sentenced to prison for the theft,
he could be placed on post-release control for three years and of the consequences of
violating post-release control. Landgraf stated he understood this, as well. The court
explained the constitutional rights that he was waiving by entering a guilty plea and inquired
whether he was entering his plea voluntarily. The court found that Landgraf had entered his
plea knowingly, intelligently, and voluntarily, and found him guilty on his guilty plea. The
court ordered a presentence investigation.
{¶ 8} The trial court sentenced Landgraf on January 27, 2014. At that time, the
prosecutor highlighted Landgraf’s criminal history and told the court that it “appears” that
Landgraf was on post-release control at the time of the offense and continued to be on
post-release control. The presentence investigation report stated, “It was verified from the
Adult Parole Authority Parole Officer * * * that the defendant has been on PRC since
September, 2012 for a period of 3 years in Case No. 11 CR 1475 from Montgomery
County.” The state argued that Landgraf was “not a good candidate for community
control.”
{¶ 9} The trial court sentenced Landgraf to the maximum 18 months in prison and
ordered him to pay restitution and court costs. The court also ordered Landgraf’s
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post-release control in Montgomery C.P. No. 2011 CR 1475 to be terminated and that he
serve “a prison term for the amount of time you have remaining on post-release control,” to
be served consecutively to the 18-month sentence. The remaining portion of his
post-release control appears to have been 23 months.
II. Voluntariness of Plea
{¶ 10} Landgraf’s sole assignment of error states: “The trial court erred in accepting
appellant’s guilty plea as it was not knowingly, intelligently and voluntarily tendered.”
{¶ 11} An appellate court must determine whether the record affirmatively
demonstrates that a defendant’s plea was made knowingly, intelligently, and voluntarily.
State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7. “If a defendant’s
guilty plea is not knowing and voluntary, it has been obtained in violation of due process and
is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012-Ohio-199, ¶
13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In
order for a plea to be given knowingly and voluntarily, the trial court must follow the
mandates of Crim.R. 11(C). Brown at ¶ 13.
{¶ 12} Crim.R. 11(C)(2) requires the court to address the defendant personally and
(a) determine that the defendant is making the plea voluntarily, with an understanding of the
nature of the charges and the maximum penalty, and, if applicable, that the defendant is not
eligible for probation or for the imposition of community control sanctions; (b) inform the
defendant of and determine that the defendant understands the effect of the plea of guilty and
that the court, upon acceptance of the plea, may proceed with judgment and sentencing; and
(c) inform the defendant and determine that he understands that, by entering the plea, the
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defendant is waiving the rights to a jury trial, to confront witnesses against him, to have
compulsory process for obtaining witnesses, and to require the State to prove his guilt
beyond a reasonable doubt at a trial at which he cannot be compelled to testify against
himself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.
{¶ 13} The Supreme Court of Ohio has urged trial courts to literally comply with
Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.
However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial
court need only substantially comply with those requirements. E.g., State v. Nero, 56 Ohio
St.3d 106, 108, 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.” Id. In contrast, the trial court must strictly comply with
Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at
¶ 31.
{¶ 14} Furthermore, when non-constitutional rights are at issue, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently, and
voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea
would otherwise not have been entered. Id. at ¶ 15.
{¶ 15} Landgraf argues that the trial court’s Crim.R. 11 colloquy was deficient in
that the trial court failed to fully explain the maximum penalties that he faced. Specifically,
Landgraf asserts that the trial court was required to explain that he was “immediately subject
to an additional, consecutive prison term as a consequence of pleading guilty to the felony
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theft offense while under post release control.” He further states that the language of plea
form failed to adequately inform him of the possible maximum penalty he faced under R.C.
2929.141.
{¶ 16} R.C. 2929.141 addresses sentencing on a felony committed by a person
under post-release control at the time of the offense. It provides, in relevant part:
(A) Upon the conviction of or plea of guilty to a felony by a person on
post-release control at the time of the commission of the felony, the court
may terminate the term of post-release control, and the court may do either of
the following regardless of whether the sentencing court or another court of
this state imposed the original prison term for which the person is on
post-release control:
(1) In addition to any prison term for the new felony, impose a prison
term for the post-release control violation. The maximum prison term for
the violation shall be the greater of twelve months or the period of
post-release control for the earlier felony minus any time the person has spent
under post-release control for the earlier felony. In all cases, any prison term
imposed for the violation shall be reduced by any prison term that is
administratively imposed by the parole board as a post-release control
sanction. A prison term imposed for the violation shall be served
consecutively to any prison term imposed for the new felony. The
imposition of a prison term for the post-release control violation shall
terminate the period of post-release control for the earlier felony.
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(2) Impose a sanction under sections 2929.15 to 2929.18 of the
Revised Code for the violation that shall be served concurrently or
consecutively, as specified by the court, with any community control
sanctions for the new felony.
{¶ 17} We recently vacated a defendant’s plea and reversed his conviction where
the trial court failed to inform the defendant that, if a prison term were imposed for the new
felony and the court elected to terminate his post-release control, the time must be served
consecutively. State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067.
{¶ 18} In Branham, the defendant was on post-release control for a rape conviction
when he committed a new felony, and he pled guilty to a reduced charged of gross sexual
imposition, a fourth-degree felony. Identical to Landgraf’s plea form, the plea form in
Branham included a statement that “I understand that if I am now * * * under post-release
control from prison, this plea may result in revocation proceedings and any new sentence
could be imposed consecutively.” The plea agreement in Branham also included the State’s
promise not to take any action on the post-release control violation.
{¶ 19} At the plea hearing, Branham acknowledged that he was on post-release
control. The court inquired whether Branham had signed the plea form, had read and
discussed it with his attorney before signing it, and had understood it; Branham stated that he
had. The court explained to Branham that the State did not speak for the parole board when
it agreed to take no action on the post-release control violation, and the court told Branham
that it could still sentence him for the post-release control violation. Branham stated that he
understood.
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{¶ 20} On appeal, Branham argued that the trial court erred in imposing consecutive
sentences for the new felony and the post-release control violation. We agreed on the
ground that the trial court had failed to inform Branham during the plea colloquy that,
pursuant to the explicit language in R.C. 2929.141(A)(1), if it revoked his post-release
control, the imposition of consecutive sentences for the violation was mandatory upon
imposition of a prison term for the new felony. Branham at ¶ 12.
{¶ 21} We rejected the State’s assertion that the plea form adequately informed
Branham that the court would impose consecutive sentences upon the termination of his
post-release control. We stated:
Significantly, although the plea form signed by Branham included a provision
which informed him of the effect that his PRC violation could have on
sentencing, it did not contain any language putting him on notice that
consecutive sentences were mandatory upon a prison sentence on the GSI.
Rather, the general provision in the plea form merely states that the trial court
“could” impose consecutive sentences in the event of a violation of felony
probation, parole, community control sanction, or post-release control from
prison. The use of the word “could” in this context is misleading.
Branham at ¶ 13. We thus concluded that the trial court “not only should have told
Branham that it was not bound by the State’s recommendation, but also if a new prison term
was imposed [on the gross sexual imposition] and the court elected to revoke his PRC, the
time must be served consecutively. The trial court did not have the discretion to use the
word ‘could’ as the language in the plea form suggests.” Id. at ¶ 14.
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{¶ 22} Landgraf raises these same issues in the context of the voluntariness of his
plea, and we find Branham to be relevant to our resolution of that issue. In this case, the
trial court did not inquire at the plea hearing whether Landgraf was on post-release control at
the time of his offense, and the trial court did not address any of the consequences that
Landgraf faced under R.C. 2929.141 if Landgraf were to plead guilty to a new felony.
{¶ 23} In our view, Crim.R. 11 required the trial court to inform Landgraf that, if
he pled guilty to theft of a motor vehicle (a new felony), the court could terminate his
previously-imposed post-release control and, if a prison term were imposed for the theft of a
motor vehicle charge, the trial court could also impose a prison term for the post-release
control violation, which would be served consecutively to the prison term imposed on the
new felony (theft of a motor vehicle). In addition, the trial court should have notified
Landgraf of the maximum prison term he faced for violating the post-release control
imposed by the Montgomery County court.
{¶ 24} The plea form was insufficient to notify Landgraf of the consequences of
pleading guilty to a felony committed while under post-release control. The plea form
stated that “this plea may result in revocation proceedings and any new sentence could be
imposed consecutively. I know any prison term stated will be served without good time
credit.” (Emphasis added.) As we stated in Branham, this language is misleading in that it
suggests that the trial court had the discretion whether to impose a consecutive sentence for
the post-release control violation.
{¶ 25} Finally, the State cites to the termination entry in Landgraf’s Montgomery
County case (for which post-release control was imposed) to support its assertion that
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Landgraf had sufficient notice of the consequences of violating community control. The
termination entry stated, in part: “If the violation of the [post-release control] sanction is a
felony, in addition to being prosecuted and sentenced for the new felony, the defendant may
receive from the court a prison term for the violation of the post-release control itself.” The
notification in Montgomery C.P. No. 2011 CR 1475 did not indicate the potential maximum
prison term for the post-release control violation or that the prison terms for the new felony
and the violation would be consecutive sentences. Moreover, the notification provided in
Montgomery C.P. No. 2011 CR 1475 occurred nearly two years before Landgraf was
sentenced in this case.
{¶ 26} Landgraf’s assignment of error is sustained.
III. Conclusion
{¶ 27} The judgment of the trial court is reversed, the plea is vacated, and this
matter is remanded for further proceedings.
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HALL, J., concurring:
{¶ 28} I disagree with the analysis about the nature of a plea with the potential of
mandatory consecutive sentencing for committing a new felony violation while on
post-release control. Landgraf at least twice was notified that a felony violation of
post-release control (PRC) could result in an additional sentence. First, the entry imposing
PRC in Montgomery County C.P. No. 2011 CR 1475 informed him that if he committed a
new felony while on supervision, “in addition to being prosecuted and sentenced for a new
felony, the defendant may receive from the court a prison term for the violation of the
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post-release control itself.” Second, the plea form in this case stated: “I understand that if I
am now on felony probation, parole, under a community control sanction, or under post
release control from prison, this plea may result in revocation proceedings and any new
sentence could be imposed consecutively.” The plea form, although arguably incomplete, is
not incorrect or misleading. In an attempt to cover the potential sentencing permutations for
different kinds of supervision where an additional sentence may be consecutive (i.e.,
community control), the form encompasses PRC where, if imposed, the additional sentence
must be consecutive. Admittedly, it would be more clear if the form, and court colloquy,
included notification that in the case of PRC an additional sentence, if imposed, must be
consecutive. But one who knowingly accepts the risk that a discretionary potential sentence
may be imposed consecutively should not be heard to complain when it is imposed
consecutively.
{¶ 29} However, I join in the reversal, vacation of the plea, and remand because this
court previously has decided the case of State v. Branham, 2d Dist. Clark No. 2013 CA 49,
2014-Ohio-5067, which held that if a trial court imposes an additional prison term for a PRC
violation then it is required to have informed the defendant at the time of his plea that the
additional sentence must be served consecutively. Id. at ¶ 14. That is the law in this district,
and the doctrine of stare decisis dictates adherence to it.
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WELBAUM, J., concurring:
{¶ 30} I concur with Judge Froelich and Judge Hall that State v. Branham, 2d Dist.
Clark No. 2013 CA 49, 2014-Ohio-5067, is controlling. For that reason only, I join in the
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judgment of the court. I further concur with the analysis of Judge Hall’s concurring
opinion.
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Copies mailed to:
Ryan A. Saunders
Charles W. Morrison
Hon. Douglas M. Rastatter