State v. Riggans , 2010 Ohio 1254 ( 2010 )

[Cite as State v. Riggans, 2010-Ohio-1254.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-09-56
PLAINTIFF-APPELLEE,
v.
WILLIE RIGGANS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0021
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Decision: March 29, 2010
APPEARANCES:
Willie Riggans, Appellant
Jana E. Emerick, for Appellee
Case No. 1-09-56
PRESTON, J.
{¶1} Defendant-appellant, Willie J. Riggans (hereinafter “Riggans”), pro
se, appeals the trial court’s judgment entry of conviction and sentencing. We
affirm Riggans’ conviction but remand this matter for the trial court to correct its
judgment entry relative to post-release control pursuant to R.C. 2929.191.
{¶2} On January 15, 2009, the Allen County Grand Jury indicted Riggans
on two (2) counts, including: count one (1) of aggravated trafficking in drugs,
within the vicinity of a juvenile, in violation of R.C. 2925.03(A)(1), (C)(1)(c), a
second degree felony; and count two (2) of aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(1), (C)(1)(c). (Doc. No. 1).
{¶3} On March 20, 2009, Riggans entered a plea of not guilty at
arraignment. (Doc. Nos. 4, 6, 8).
{¶4} On May 5, 2009, a final pre-trial was held wherein Riggans executed
a negotiated plea of guilty to the charges in the indictment. (Doc. Nos. 28, 31).
That same day, Riggans appeared before the trial court, withdrew his previously
tendered not guilty plea, and entered guilty pleas to both charges in the indictment.
(May 6, 2009 JE, Doc. No. 32). The trial court thereafter sentenced Riggans to
four (4) years of incarceration on count one (1) and two (2) years incarceration on
count two (2). (Id.). The trial court ordered that the terms on counts one (1) and
two (2) be served consecutively to each other for a total aggregate term of six (6)
years incarceration, and the trial court further ordered that the sentence imposed in
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this case run consecutive to the term imposed in Riggans’ previous case, case no.
CR2007 0254. (Id.).
{¶5} On October 23, 2009, Riggans filed a notice of appeal. (Doc. No.
39). On October 28, 2009, Riggans filed a motion for delayed appeal with this
Court, which we granted on November 20, 2009.
{¶6} Riggans now appeals raising two assignments of error for our
review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT’S CONDUCT AND DIRECT
PARTICIPATION IN THE PLEA NEGOTIATION PROCESS
RENDERED APPELLANT’S PLEA INVOLUNTARY.
{¶7} In his first assignment of error, Riggans argues that his guilty pleas
were involuntary because “the record demonstrates that the trial court, and
Riggans, were essentially the only parties involved in the plea negotiations.”
(Appellant’s Brief at 10). Riggans further asserts that that the trial court judge
“lost his composure, and became hostile towards [him]” when he asked to dismiss
his counsel for ineffective assistance. (Id. at 7). Riggans argues that “it would be
difficult to say that [he] was not influenced by the judge’s attitude, demeanor, and
coercive language.” (Id. at 10). We disagree.
{¶8} Although strongly discouraged by the Ohio Supreme Court, a trial
judge’s participation in plea negotiations does not render a defendant’s plea
invalid per se under the Ohio and United States Constitutions. State v. Byrd
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(1980), 63 Ohio St.2d 288, 293-94, 407 N.E.2d 1384. Nonetheless, “a trial
judge’s participation in the plea bargaining process must be carefully scrutinized
to determine if the judge’s intervention affected the voluntariness of the
defendant’s guilty plea.” Id. Ordinarily, a plea should be found involuntary under
the Fifth Amendment and Section 10, Article I of the Ohio Constitution “if the
judge’s active conduct could lead a defendant to believe he cannot get a fair trial
because the judge thinks that a trial is a futile exercise or that the judge would be
biased against him at trial.” Id.{¶9} As an initial matter, the trial court’s involvement in the plea
negotiations sub judice—which was limited to providing the State and the
defendant with a range of sentence it would impose—was qualitatively different
than the trial court’s involvement found objectionable in Byrd, supra. The trial
court judge in Byrd solicited an unrequested meeting with the defendant’s mother
and sister through a deputy sheriff who was also a friend of the defendant’s
family. 63 Ohio St.3d at 289-90. At this meeting, the trial court judge informed
the defendant’s mother and sister that the defendant would face a predominantly
white jury, and, if convicted, the defendant would be sentenced to death by the
electric chair. Id. The trial court judge told the defendant’s mother that it would
be wise for her to get the defendant to plead guilty so that he would not be
sentenced to death. Id. The defendant’s sister indicated that the trial court judge
asked them to go to the jail and have the defendant sign a plea agreement. Id.
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{¶10} After talking with his mother and sister, the defendant met with the
trial court judge in chambers along with a sheriff’s deputy, a probation officer, and
an assistant prosecutor. Id. at 290. The defendant was not provided with counsel
nor was he advised to obtain counsel. Id. The trial court judge negotiated a plea
bargain with the prosecutor, and, thereafter, informed the defendant that it was a
“pretty good” deal. Id. The trial court judge also informed the defendant that, if he
declined to plead guilty, he would face a lengthy trial. Id. The trial court judge
further informed the defendant that he would decide the sentence in the event the
jury convicted him of aggravated murder. Id. During this meeting, the trial court
also enlisted the aid of the deputy sheriff, a friend of the defendant’s family, in
convincing the defendant to plead guilty. Id. Aside from all of this, the trial court
judge twice noted during the meeting that the defendant was “kind of in the air all
the time” or half asleep due to his drug problems. Id.
{¶11} The Ohio Supreme Court, reviewing this record, concluded that the
trial court judge’s conduct in all probability led the defendant to conclude that he
would not receive a fair trial and that proceeding to trial was futile. Id. at 294. The
Court further noted that the defendant was exposed to a coercive environment to
induce his change of plea because the trial judge used authority figures, family,
and family friends to persuade the defendant to plead guilty. Id. In addition to
that, at the time of the meeting, the defendant was addicted to methodone and was
not provided an attorney. Id.
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{¶12} The trial court’s involvement in the plea negotiations here was
limited to its indication to the parties that “it would not sentence [Riggans] over
seven (7) years” if he pled guilty to the charges pursuant to the plea agreement.
(May 5, 2009 Tr. at 2). This involvement is much less coercive than that of the
trial court judge in Byrd. Furthermore, a defendant’s plea is not rendered
involuntary merely because the trial court promised a particular sentence; rather,
the defendant’s plea may be rendered involuntary when the trial court fails to
impose the promised sentence. Akron v. Hendon, 9th Dist. No. 22791, 2006-Ohio-
1038, ¶13-14 (trial court’s indication that it would give defendant credit for time
served was not impermissible involvement in plea negotiations); State v. Walker
(1989), 61 Ohio App.3d 768, 770, 573 N.E.2d 1158. The trial court sentenced
Riggans to an aggregate total of six (6) years, which was within the range stated
by the trial court; and therefore, Riggans’ plea was not involuntary on that basis.
(May 6, 2009 JE, Doc. No. 32).
{¶13} Additionally, nothing in the record here indicates that the trial court
judge thought a trial was futile; in fact, the trial court judge suggested that, if
Riggans was not satisfied with the plea agreement, the matter could proceed to
trial as previously scheduled. (May 5, 2009 Tr. at 16, 19-20). See State v. Bizzell,
(Sept. 29, 2000), 2nd Dist. Nos. 18055, 98-CR-2537, at *2 (noting that the trial
court reminded the defendant he could abandon his agreement and proceed to
trial). Furthermore, the record does not reveal any bias against Riggans, as he
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suggests. The trial court judge specifically noted on the record that he was not
“upset” at Riggans, but merely “disappointed” with Riggans, and, again,
reaffirmed Riggans’ right to proceed to trial. (Id. at 14). Furthermore, the trial
court provided Riggans with a twenty-six (26) minute recess to further discuss the
plea agreement with his attorney before accepting his change of plea. (Id. at 16-
17). After Riggans further discussed the plea agreement with his attorney and the
trial court explained that the terms imposed in this case would be consecutive to
the sentence imposed in his previous case, Riggans indicated that he was satisfied
with counsel and that he wanted to change his pleas to guilty. (Id. at 21-23).
{¶14} On the basis of the record before us, we cannot conclude that
Riggans’ plea was involuntary; and therefore, his first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FAILED TO
PROPERLY STATE APPELLANT’S MANDATORY POST-
RELEASE CONTROL OBLIGATIONS IN THE JUDGMENT
ENTRY OF CONVICTION AND SENTENCE.
{¶15} In his second assignment of error, Riggans argues that the trial court
erred by notifying him in its journal entry that he was subject to “up to” three
years of post-release control. Riggans argues that this matter must be remanded
for resentencing. The State concedes that the trial court’s entry is in error and the
matter must be remanded.
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{¶16} Riggans pled guilty to a second degree felony and a third degree
felony. R.C. 2967.28(B) provides, in pertinent part:
(B) Each sentence to a prison term for a felony of the * * *
second degree * * * shall include a requirement that the offender
be subject to a period of post-release control imposed by the
parole board after the offender’s release from imprisonment. * *
* Unless reduced by the parole board pursuant to division (D) of
this section when authorized under that division, a period of
post-release control required by this division for an offender
shall be of one of the following periods:
***
(2) For a felony of the second degree that is not a felony sex
offense, three years;
(Emphasis added). At the combined change of plea and sentencing hearing the
trial court twice informed Riggans that he would be subject to “a period of three
(3) years” post-release control. (May 5, 2009 Tr. at 5, 46). However, the trial
court’s judgment entry states that “[u]pon completion of the prison term, the
defendant shall be subject to such further period of supervision under POST
RELEASE CONTROL as the parole board may determine pursuant to law (up to
three (3) years).” (May 6, 2009 JE, Doc. No. 32) (emphasis added). It appears that
the trial court incorporated into its judgment entry the post-release control
provided for third, fourth, and fifth degree felonies as provided in R.C. 2967.28(C)
of “up to three years.” Since Riggans pled guilty to a second degree felony, R.C.
2967.28(B) governs and provides that the period of post-release control “shall be”
“three years,” not “up to three years.” As such, the trial court’s judgment entry of
sentence is in error. Since Riggans was sentenced after July 11, 2006, the
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effective date R.C. 2929.191 (H.B. 137), this matter must be remanded for the trial
court to correct its sentence in accordance with R.C. 2929.191. State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the
syllabus.
{¶17} Riggans’ second assignment of error is, therefore, sustained.
{¶18} Accordingly, we affirm Riggans’ conviction but remand this matter
for the trial court to correct its judgment entry relative to post-release control
pursuant to R.C. 2929.191.
Affirmed in part, Reversed in part, and Cause Remanded
WILLAMOWSKI, P.J., and ROGERS, J., concur.
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