State v. Balidbid , 2012 Ohio 1406 ( 2012 )

[Cite as State v. Balidbid, 2012-Ohio-1406.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24511
v. : T.C. NO. 10 CR 3244
BILLY BALIDBID : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of March , 2012.
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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM A. SHIRA, III, Atty. Reg. No. 0005472, 432 Silvercrest Terrace, Dayton, Ohio
45440
Attorney for Defendant-Appellant
and
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Billy Balidbid pled guilty to rape by force or threat of force, in
violation of R.C. 2907.02(A)(2), and kidnapping, in violation of R.C. 2905.01(A)(4), both
first degree felonies. In exchange for the plea, the State agreed not to pursue charges for
three additional rapes involving other victims. At sentencing, the trial court concluded that
the rape and kidnapping charges were not allied offenses of similar import, and it imposed
ten years in prison for the rape and eight years for the kidnapping, to be served
consecutively. Balidbid was also sentenced to a mandatory five years of post-release
control and informed that he was classified as a Tier III sex offender.
{¶ 2} Balidbid appealed from his convictions. He claimed that his plea was not
knowing, intelligent, and voluntary, because he was improperly informed that he was
eligible for community control. Balidbid died on November 3, 2011, while in the custody
of the Ohio Department of Rehabilitation and Correction. We have granted the State’s
motion to substitute Balidbid’s appellate counsel, William A. Shira, III, as Balidbid’s
representative in this appeal. App.R. 29.
{¶ 3} For the following reasons, the trial court’s judgment will be reversed, and
the matter will be remanded to the trial court.
{¶ 4} In determining whether to accept a defendant’s guilty plea, the trial court
must determine whether the defendant knowingly, intelligently, and voluntarily entered the
plea. State v. Johnson, 40 Ohio St. 3d 130, 532 N.E.2d 1295 (1988), at syllabus. “If a
defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of due
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process and is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 & 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.
{¶ 5} Crim.R. 11(C)(2) requires the court to (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 [or no contest] 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
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. See also
State v. Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27.
{¶ 6} The Supreme Court of Ohio has urged trial courts to literally comply with
Crim.R. 11. Clark at ¶ 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
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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.
{¶ 7} Furthermore, when nonconstitutional 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. Where the trial court completely fails
to comply with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not
implicated. State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
{¶ 8} Balidbid and the State agree that Balidbid’s rape conviction carried a
mandatory prison sentence under R.C. 2929.13(F)(2) and that he was ineligible for
community control. At the time of Balidbid’s plea, however, counsel for both the State and
Balidbid, as well as the trial court, apparently believed that Balidbid was eligible for
community control and was not subject to a mandatory prison sentence. The trial court told
Balidbid at the plea hearing:
THE COURT: Okay. Now, each of those [charges] is a felony of the
first degree. As such, they carry maximum potential penalties of a $20,000
fine on each and three, four, five, six, seven, eight, nine, or 10 years in prison
on each for a total of 20 years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now – is there a technical eligibility for community
control in this case?
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[THE PROSECUTOR:] There is.
THE COURT: Okay. Now, technically you’re eligible for
community control sanctions or probation. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: If you were to get that, that could last for as long as
five years and could involve six months in jail. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. And nobody’s promised you that if you plead
today, that you would get community control, have they?
THE DEFENDANT: Yes.
THE COURT: Did anybody promise you that if you plead today,
you’ll get probation?
THE DEFENDANT: (Shaking head.)
THE COURT: Okay. You got to say it out loud, sir.
THE DEFENDANT: No, sir.
{¶ 9} After entering pleas of guilty to rape and kidnapping, Balidbid signed a
Waiver and Plea form, in open court, which also indicated that he was eligible to be
sentenced to community control. At the conclusion of the plea hearing, the trial court asked
defense counsel and the prosecutor if “either of you know about – there’s no felony one or
two convictions that – for this – that would make it a mandatory prison time.” Both defense
counsel and the prosecutor responded, “No, Your Honor.”
{¶ 10} When a defendant on whom a mandatory prison sentence must be imposed
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enters a plea of guilty or no contest, the court must, before accepting the plea, determine the
defendant's understanding that the defendant is subject to a mandatory sentence and that the
mandatory sentence renders the defendant ineligible for probation or community control
sanctions. Crim.R. 11(C)(2)(a); e.g., State v. Byrd, 178 Ohio App. 3d 646, 2008-Ohio-5515,
899 N.E.2d 1033 (2d Dist.); State v. Miller, 2d Dist. Clark No. 08 CA 90, 2010-Ohio-4760,
¶ 12; State v. Howard, 2d Dist. Champaign No. 06-CA-29, 2008-Ohio-419.
{¶ 11} Here, the trial court not only failed to inform Balidbid that he was subject to
a mandatory prison term, it expressly told him that he was eligible for community control.
This was reenforced by defense counsel and the prosecutor at the conclusion of the hearing,
both of whom told the court that Balidbid was not subject to a mandatory sentence, and by
the plea form, which was not corrected by counsel or the trial court. The plea colloquy not
only failed to substantially comply with Crim.R. 11(C)(2)(a), but it provided misleading
information as to the availability of community control as a viable sanction and to the nature
of any prison sentence that might be imposed.
{¶ 12} Moreover, even if Balidbid believed that community control was unlikely,
such an understanding would not constitute substantial compliance, given the mandatory
nature of his sentence. In State v. Howard, 2d Dist. Champaign No. 06-CA-29,
2008-Ohio-419, we reversed the defendant’s conviction and remanded for further
proceedings when Howard was informed that he eligible for, but would likely not receive,
community control. We reasoned:
The effect of Howard’s plea was that he would be subject to a
mandatory prison term that would render him ineligible for the imposition of
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community control sanctions. He could not have appreciated this effect of
his plea, because he was misadvised by the trial court that he would be
eligible for the imposition of community control sanctions. Ineligibility for
(as opposed to the unlikelihood of) the imposition of community control
sanctions is deemed to be a sufficiently important effect of a plea of guilty or
no contest that it is specifically incorporated in Crim. R. 11(C)(2)(a) as a
subject that must be specifically addressed by the trial court, concerning
which the defendant’s understanding must be specifically determined by the
trial court.
We conclude that the trial court’s having advised Howard that the
imposition of community control sanctions was unlikely in his case did not
satisfy the requirement, under the Rule, that the trial court determine that
Howard understood that he was not eligible for the imposition of community
control sanctions, especially where the trial court affirmatively mis-advised
Howard that he was eligible for the imposition of community control
sanctions. Howard at ¶ 25-26.
{¶ 13} The State argues that Balidbid nevertheless has failed to establish that he
was prejudiced by the trial court’s plea colloquy regarding community control. The State
emphasizes that the court told Balidbid that he was “technically” eligible for community
control and that Balidbid acknowledged that he had not been promised community control in
exchange for his plea. The State further notes that Balidbid told the presentence
investigator that he would live with his mother after his release from prison, and defense
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counsel’s sentencing memorandum did not advocate for community control. The State
summarizes its argument as follows: “Balidbid never had any expectation of returning to the
community. He knew he was going to prison. That is evident from his statements at the
plea hearing, his failure to ask questions at the hearing, his statements during the
pre-sentence investigation, and the statements of his counsel in the sentencing memorandum
and at sentencing.”
{¶ 14} Even assuming an analysis of prejudice were required in this case, we cannot
accept the State’s representation of Balidbad’s expectations. Balidbid did not make any
statements at the plea hearing that expressed an understanding that he would be going to
prison. His acknowledgment that he had not been promised community control in exchange
for his plea was simply a statement that he was not promised community control; it was not
an admission that he understood that he would be going to prison and that community
control would not be imposed. And, although Balidbid told the presentence investigator
that he would live with his mother “once he is released from prison,” there is nothing to
support the conclusion that, at the time of his plea, he understood that the court would be
imposing a prison sentence. The trial court did not overstate the penalty that Balidbid could
have received; to the contrary, it misrepresented that he was eligible to receive a more
lenient sanction when he was not.
{¶ 15} It may be that everyone in the courtroom “knew” that Balidbad was going
to be sentenced to prison. One of the reasons behind the mandatory language of Crim.R.
11(C)(2)(a) appears to be to avoid a retrospective analysis of “what did he know and when
did he know it.” For the foregoing reasons, Balidbid’s assignment of error is sustained.
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{¶ 16} The trial court’s judgment will be reversed, and the matter will be remanded
to the trial court.
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GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Kirsten A. Brandt
William A. Shira, III
Robert Alan Brenner
Hon. Gregory F. Singer