State v. Jones , 2013 Ohio 119 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-119.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24772
Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-410
v. :
:
TASHAUN JONES : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of January, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. #0078552, Finlay, Johnson & Beard, Ltd., 260 North
Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} In July 2011, TaShaun Jones pleaded guilty to two counts of aggravated
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robbery, one count of carrying a concealed weapon, one count of underage purchase of a
firearm or handgun, and three counts of felonious assault, two of which involved police
officers. These charges stemmed from Jones’s robbing a pizza-delivery driver, firing a gun at
the driver seven times, and exchanging gun fire with undercover police officers.
{¶ 2} Before Jones entered his pleas, the trial court told him the maximum sentence
for each charge and told him that the sentences could run consecutively. The court told Jones
that the maximum consecutive prison sentence he could receive was 57 years. The court also
told Jones that, after he completed his prison sentence, a post-release control sanction would
be imposed on him. The court told him that if he violated a condition of the post-release
control sanction, a new prison term could be imposed. The court said that the length of this
new term would be “up to one-half of the Court’s stated prison term.” (Tr. 33). The trial court
ultimately sentenced Jones to 32 years in prison. The prison term imposed for each of the two
felonious-assault charges involving police officers was the statutory maximum 10 years, and
the court ordered Jones to serve the two terms consecutively.
{¶ 3} Jones appealed. He assigns two errors to the trial court.
A. Post-release Control Violation Notice
{¶ 4} The first assignment of error alleges that the trial court failed to comply with
R.C. 2943.032 by not informing Jones that if he violates a condition of his mandatorily
imposed post-release control sanction, he could be sent back to prison for up to 9 months for
each singular violation. Jones contends that because the trial court did not specifically tell him
of the 9-month limitation, his plea was not knowingly and intelligently made and should be
vacated. The State concedes that the trial court failed to comply with the statute. But it
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contends that the court substantially complied with the law governing plea colloquies and that
Jones was not prejudiced by the error.
{¶ 5} R.C. 2943.032 provides: “Prior to accepting a guilty plea or a plea of no
contest [for] a felony, the court shall inform the defendant personally that * * *, if the offender
violates the conditions of a post-release control sanction * * * the parole board may impose
upon the offender a residential sanction that includes a new prison term of up to nine months.”
The court’s advice that the prison term for violation of post release control could be “up to one
half of the Court’s stated prison term”, which in this case could potentially have been 57
years, informed the defendant of the maximum potential post release control sentence, but not
the segmental nine-month-per-violation limitation.
{¶ 6} The Ohio Supreme Court has observed that “[a] criminal defendant’s choice to
enter a plea of guilty or no contest is a serious decision.” State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The Court explained:
The benefit to a defendant of agreeing to plead guilty is the elimination
of the risk of receiving a longer sentence after trial. But, by agreeing to plead
guilty, the defendant loses several constitutional rights. The exchange of
certainty for some of the most fundamental protections in the criminal justice
system will not be permitted unless the defendant is fully informed of the
consequences of his or her plea. Thus, unless a plea is knowingly, intelligently,
and voluntarily made, it is invalid.
To ensure that pleas conform to these high standards, the trial judge
must engage the defendant in a colloquy before accepting his or her plea. * * *
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Crim.R. 11(C), (D), and (E). It follows that, in conducting this colloquy, the
trial judge must convey accurate information to the defendant so that the
defendant can understand the consequences of his or her decision and enter a
valid plea.
(Citations omitted.) Id. at ¶ 25-26. To that end, Crim.R. 11(C)(2)(a) provides that, before
accepting a guilty plea, a court must “[d]etermin[e] that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved * * *.”
{¶ 7} The “maximum penalty” includes any mandatory post-release control
sanction, which has been explained this way:
Postrelease control is a period of supervision that occurs after a prisoner has
served his or her prison sentence and is released from incarceration, during
which the individual is subject to specific sanctions with which he or she must
comply. Violation of these sanctions may result in additional punishment, such
as a longer period of control, more restrictions during the control period, or a
prison term of up to nine months per violation, subject to a cumulative
maximum of one-half of the original stated prison term.
(Citations omitted.) Clark at ¶ 35. Thus if the defendant will be subject to a period of
post-release control, to comply with Crim.R. 11 the court must inform the defendant of post
release control. However, case law distinguishes between constitutional and non-constitutional
components of Crim. R. 11.
When the trial judge does not substantially comply with Crim.R. 11 in
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regard to a nonconstitutional right, reviewing courts must determine whether
the trial court partially complied or failed to comply with the rule. If the trial
judge partially complied, e.g., by mentioning mandatory postrelease control
without explaining it, the plea may be vacated only if the defendant
demonstrates a prejudicial effect. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d
474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364
N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is “whether the
plea would have otherwise been made.” Nero at 108, 564 N.E.2d 474, citing
Stewart, id. If the trial judge completely failed to comply with the rule, e.g., by
not informing the defendant of a mandatory period of postrelease control, the
plea must be vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881
N.E.2d, 1224, paragraph two of the syllabus.
Id. at ¶ 32.
{¶ 8} Arguably, the trial court literally complied with Crim R. 11 because it advised
the defendant of the “maximum penalty,” which included a prison term, and advised him of
imposition of the correct term of mandatory post-release control, and advised him of the
maximum possible sanction. One could question whether Crim.R. 11 requires the court to tell
the defendant anything about the length of a a post-release sanction prison term because that
term is a consequence of a violation of the sanction, imposed by the parole board and not a
sentence imposed by the court for committing the original offense. Moreover, the nine month
sanction limit for each singular violation is in R.C. 2943.032, not Crim. R. 11. Nevertheless,
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other appellate courts have reviewed issues concerning the completeness of a post release
control explanation (aside from the mandatory/discretionary and 3/5 year reversible errors)
under a substantial compliance analysis. In State v. Allen, 10th Dist. Franklin No. 11AP-640,
2012-Ohio-2986, ¶ 23, the court found substantial compliance “[b]ased upon the trial court’s
explanation of appellant’s maximum penalties, including the terms of mandatory post-release
control, combined with the information contained in the guilty plea forms and the trial court’s
inquiries regarding whether appellant discussed the guilty plea forms with his attorney,
understood the guilty plea forms, and signed the guilty plea forms.” In State v. McDuffie, 8th
Dist. Cuyahoga No. 96721, 2011-Ohio-6436, ¶ 24, the court found substantial compliance
where “the trial court advised appellant, ‘[s]hould you misbehave while under their
supervision, you can receive additional prison time under this case number.’ ” In State v.
Reese, 9th Dist. Wayne No. 09CA0020, 2009-Ohio-6507, ¶ 9, the court concluded that, under
the totality of the circumstances, the defendant subjectively understood the consequences of
his plea even though the trial court failed to inform him about “the specific terms of
re-incarceration he might face for post-release control violations.” And in State v. Munyan, 5th
Dist. Licking No. 08-CA-88, 2009-Ohio-2348, the appellate court concluded that the trial
court substantially complied with Crim.R. 11 despite not informing the defendant about the
length of re-incarceration he might face for violations of his post-release control under former
R.C. 2943.032(E). Consistent with the holdings in these cases, we determine that the trial
court complied with Crim. R. 11 even though the defendant was not expressly advised of the
R.C. 2943.032 nine month limitation, and therefore, Crim. R. 11 does not provide any basis
for the defendant to vacate his plea.
[Cite as State v. Jones, 2013-Ohio-119.]
{¶ 9} Aside from compliance with Crim. R. 11 by the trial court, a separate issue is
whether the conceded failure to directly comply with R.C. 2943.032 presents a basis to vacate
the defendant’s plea as not being knowingly and intelligently made. The trial court here told
Jones that if he violated post-release control, “they could send you back to prison for up to
one-half of the Court’s stated prison term.” (Tr. 33).1 The trial court explained that a 5-year
post-release control sanction means: “[W]hat post-release control means is that if you get out
of prison and you’re subject to that post-release control period, if you violate any of the terms
of your release from prison or if you violate any law, the parole board could add more time or
more restrictions to your post-release control or they could send you back to prison * * *.” (Tr.
33). The court failed to comply with the statute and, therefore, erred.
{¶ 10} But this error is one for which the defendant must demonstrate prejudice
before we would determine that his plea should be vacated. It is usually the case that “where
the trial court erroneously overstates the length of additional prison time that can be imposed
for a violation of post-release-control conditions, the defendant is not prejudiced.” State v.
Gulley, 1st Dist. Hamilton No. C-040675, 2005-Ohio-4592, ¶ 22, citing State v. Carnicom, 2d
Dist. Miami No. 2003-CA-4, 2003-Ohio-4711, ¶ 15-16 (concluding that any overstatement
about the potential length of a prison term for violating a post-release control condition could
not have prejudiced the defendant); see State v. Williams, 10th Dist. Franklin No. 10AP-1135,
2011-Ohio-6231, ¶ 27 (“[W]e cannot say that a potential overstatement of the [post-release
1
We point out that what the trial court said is not incorrect–just incomplete. Under R.C. 2967.28, the maximum prison term for
any single post-release control violation is 9 months. R.C. 2967.28(F)(3). But the “maximum cumulative prison term” for multiple violations
is “one-half of the stated prison term originally imposed.” Id.The judgment entry of conviction correctly states: “The parole board also could impose up to an additional nine (9) months prison
term for each violation for a total of up to fifty percent (50%) of the original sentence imposed by the court.” (Dkt. #41).
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control] sanction that could be imposed creates prejudice * * *.”), citing State v. Young, 4th
Dist. Gallia No. 06CA10, 2007-Ohio-5232, and Carnicom. But see Carnicom at ¶ 18
(cautioning “that a trial court’s misstatement of the maximum possible prison time for an
offense that overstates the time may not always be harmless error in a plea as charged”) (Fain,
J., concurring).
{¶ 11} Jones does not assert, let alone demonstrate, that he was prejudiced–that he
would not have pleaded guilty had the trial court told him that the maximum possible prison
term for a single violation of a post-release control condition is 9 months. We fail to see how
this defendant, facing a potential of many years of re-incarceration for post release control
violations, would have failed to enter his pleas if he knew those many years could only be
imposed in nine month increments. Accordingly, we find no grounds to vacate Jones’s plea.
{¶ 12} The first assignment of error is overruled.
B. Maximum Consecutive Sentences
{¶ 13} The second assignment of error alleges that the trial court abused its discretion
by imposing the longest possible prison term for the two felonious-assault counts involving
police officers and ordering that Jones serve them consecutively.
{¶ 14} The trial court explained its decision at the sentencing hearing. The court
noted Jones’s criminal history and the nature of the two felonious assault offenses:
[T]he defendant is young in age. He’s currently 18 years old. However,
he does have an extensive juvenile record, indicating a 2007 offense for
aggravated menacing, a 2007 offense for assault, a 2007 offense for theft, a
2008 offense for disorderly conduct near a school, a 2008 grand theft auto, and
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a 2008 burglary charge.
And then we go to the offenses that are at issue, they were of great
violence, obviously involving offenses against police officers.
(Tr. 48-49).
{¶ 15} The court expressly found that the maximum sentence was called for for these
two offenses:
[T]he Court will make the findings that in the Court’s view the
imposition of consecutive sentences is appropriate, and the maximum
consecutive sentence with regard to the assaults on the police officers is
appropriate because the acts of the defendant constituted the worst form of the
offense, and so too with other sentences. The Court believes that the
appropriate findings are made, that consecutive sentences are appropriate,
again, based upon the violent nature of the offenses, the use of the firearm, the
lack of any reason whatsoever for this violence to have broken out.
(Tr. 54).
{¶ 16} Jones concedes that his sentence is lawful–that it falls within the applicable
statutory range. He does not cite any factors not considered by the trial court in the
above-quoted explanation. We cannot say that the sentence imposed for the two felonious
assault offenses is an abuse of the trial court’s discretion.
{¶ 17} The second assignment of error is overruled.
{¶ 18} The trial court’s judgment is affirmed.
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FAIN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Tyler D. Starline
Hon. Mary L. Wiseman