State v. Jones , 2011 Ohio 1202 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-1202.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Julie A. Edwards, J.
Hon. Patricia A. Delaney, J.
-vs-
Case Nos. 10CA75, 10CA76,
CHRISTOPHER MONTEZ JONES and 10CA77
Defendant-Appellant
OPINION
CHARACTER OF PROCEEDING: Richland County Court of Common Pleas,
Case Nos. 04CR207, 04CR267, and
04CR881
JUDGMENT: 10CA75 - Reversed and Remanded
10CA76 - Reversed and Remanded
10CA77 - Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 11, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. CHRISTOPHER MONTEZ JONES,PRO SE
PROSECUTING ATTORNEY c/o Richland Correctional Institution
RICHLAND COUNTY, OHIO Inmate No. 554-805
P.O. Box 8107
By: KIRSTEN L. PSCHOLKA-GARTNER Mansfield, Ohio 44901-8107
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10CA75, 10CA76, and 10CA77 2
Hoffman, P.J.
{¶1} Defendant-appellant Christopher Montez Jones appeals his conviction and
sentence entered by the Richland County Court of Common Pleas in three separate
case numbers: 2004CR0207, 2004CR0267, and 2004CR0881. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was convicted in three separate case numbers in the Richland
County Court of Common Pleas after entering pleas of guilty to the charges therein. In
Case No. 2004CR0207, Appellant entered a plea of guilty to one count of forgery, a fifth
degree felony, in violation of R.C. Section 2913.31(A)(3). In Case No. 2004CR0267,
Appellant entered a plea of guilty to one count of grand theft of a motor vehicle, a fourth
degree felony, in violation of R.C. 2913.02(A)(1); one count of forgery, a fourth degree
felony, in violation of R.C. 2913.31(A)(2); and one count of identity fraud, a third degree
felony, in violation of R.C. 2913.49(B)(2). In Case No. 2004CR0881, Appellant entered
a plea of guilty to one count of theft by deception, a fifth degree felony, in violation of
R.C. 2913.02(A)(3).
{¶3} Upon journalization of Appellant’s sentences in the above cases, the trial
court failed to properly memorialize the manner of conviction, that being Appellant’s
entering a plea of guilty to the charges.
{¶4} On May 21, 2010, Appellant moved the trial court to revise/correct his
sentencing entries to comply with Criminal Rule 32(C) and State v. Baker, (2008), 119
Ohio St.3d 197, 2008-Ohio-3330 to include the manner of conviction.
1
A rendition of the facts is unnecessary for our resolution of these appeals.
Richland County, Case No. 10CA75, 10CA76, and 10CA77 3
{¶5} On June 2, 2010, the trial court granted Appellant’s motion and issued
amended sentencing entries to comply with Criminal Rule 32(C) and the Supreme
Court’s holding in Baker.
{¶6} On June 17, 2010, Appellant filed a notice of appeal from the June 2, 2010
resentencing entries, assigning as error:
{¶7} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DID NOT INFORM MR. JONES AT ALL OF POST-RELEASE CONTROL DURING THE
PLEA HEARING PRIOR TO ACCEPTING HIS PLEAS, THEREBY FAILING TO
SUBSTANTIALLY COMPLY WITH THE MAXIMUM PENALTY-COMPONENT OF
CRIM.R. 11(C)(2)(A).
{¶8} “II. MR. JONES WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
I.
{¶9} As set forth in the Statement of the Case, above, the trial court granted
Appellant’s motion to revise/correct the sentencing entries finding the trial court’s
previous sentencing entries did not comply with Criminal Rule 32(C) and the Ohio
Supreme Court’s decision in State v. Baker (2008), 119 Ohio St.3d 197, 2008-Ohio-
3330. The Court in Baker held in the syllabus,
{¶10} “A judgment of conviction is a final appealable order under R.C. 2505.02
when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon
which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry on the journal by the clerk of court. (Crim.R.32(C), explained.)”
Richland County, Case No. 10CA75, 10CA76, and 10CA77 4
{¶11} Accordingly, Appellant’s sentencing entries were not final and appealable
until June 2, 2010 when the trial court corrected the entries to comply with Criminal Rule
32. Therefore, Appellant’s direct appeal is timely and properly before this Court.
{¶12} In his first assignment of error, Appellant maintains the trial court erred in
failing to inform him of a term of post-release control during the plea hearing prior to
accepting his plea; thereby, failing to comply with Criminal Rule 11 (C)(2).
{¶13} In State v. Sarkozy, (2008), 117 Ohio St.3d 86, the Ohio Supreme Court
held,
{¶14} “Accordingly, we hold that if a trial court fails during a plea colloquy to
advise a defendant that the sentence will include a mandatory term of postrelease
control, the defendant may dispute the knowing, intelligent, and voluntary nature of the
plea either by filing a motion to withdraw the plea or upon direct appeal. Further, we
hold that if the trial court fails during the plea colloquy to advise a defendant that the
sentence will include a mandatory term of postrelease control, the court fails to comply
with Crim.R. 11 and the reviewing court must vacate the plea and remand the cause.”
{¶15} In State v. Holmes, Licking App. No. 09 CA 70, 2010-Ohio-428, this Court
held:
{¶16} “Appellant herein maintains that the trial court's notification, following
appellant's plea, that he would be placed on three years of PRC was insufficient in light
of State v. Sarkozy, 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509. In Sarkozy,
the Ohio Supreme Court held: ‘If the trial court fails during the plea colloquy to advise a
defendant that the sentence will include a mandatory term of postrelease control, the
Richland County, Case No. 10CA75, 10CA76, and 10CA77 5
court fails to comply with Crim.R. 11 and the reviewing court must vacate the plea and
remand the cause.’ Id. at paragraph two of the syllabus.
{¶17} “Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to
address the defendant personally and to convey certain information to such defendant,
and makes clear that the trial court shall not accept a plea of guilty or no contest without
performing these duties. As such, the PRC notification must be made prior to the court's
acceptance of the plea. See Sarkozy at ¶ 11, ¶ 25, 881 N.E.2d 1224. Moreover, ‘[e]ven
if post-release control is discretionary, a defendant must be informed of the possibility of
post-release control before a court may accept his plea.’ State v. Souris, Summit
App.No. 24550, 2009-Ohio-3562, ¶ 7.
{¶18} “***
{¶19} “Because this case represents a complete absence of PRC colloquy prior
to the court's acceptance of the plea, [footnote omitted] we find a lack of substantial
compliance with Crim.R. 11(C) and a demonstration of prejudicial error under Sarkozy
and its progeny.”
{¶20} In the case sub judice, the trial court was required to inform Appellant of
the possibility of any mandatory or discretionary terms of post-release control as part of
the maximum penalty involved in order to satisfy Criminal Rule 11(C)(2)(a). Therefore,
in order for Appellant to knowingly, intelligently and voluntarily enter a plea, the trial
court was required to inform Appellant a post-release control sanction was a possibility
for the offenses to which he was pleading before the trial court accepted his plea. State
v. Douglas 2006-Ohio-536.
Richland County, Case No. 10CA75, 10CA76, and 10CA77 6
{¶21} The trial court did not inform Appellant of the possibility of post-release
control prior to accepting his plea; therefore, Appellant’s plea was not made knowingly,
intelligently and voluntarily.
{¶22} Appellant’s assigned error is sustained. Appellant’s convictions and
sentences are reversed and the cases are remanded to the trial court for further
proceedings in accordance with the law and this opinion.
II.
{¶23} In the second assignment of error, Appellant asserts he was denied the
effective assistance of counsel as his trial counsel failed to ensure he was aware of and
understood the maximum penalty also included post-release control prior to his entering
his pleas.
{¶24} Based upon our analysis and disposition of Appellant’s first assignment of
error, we find Appellant’s second assignment of error moot.
By: Hoffman, P.J.
Edwards, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Richland County, Case No. 10CA75, 10CA76, and 10CA77 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER MONTEZ JONES :
:
Defendant-Appellant : Case Nos. 10CA75
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is reversed, and the matter remanded to the
trial court for further proceedings in accordance with the law and this opinion. Costs to
Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER MONTEZ JONES :
:
Defendant-Appellant : Case Nos. 10CA76
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is reversed, and the matter remanded to the
trial court for further proceedings in accordance with the law and this opinion. Costs to
Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHRISTOPHER MONTEZ JONES :
:
Defendant-Appellant : Case Nos. 10CA77
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas is reversed, and the matter remanded to the
trial court for further proceedings in accordance with the law and this opinion. Costs to
Appellee.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY