State v. Walton , 66 Ohio App. 3d 243 ( 1990 )

I agree that defendant should have been sentenced in accordance with Crim.R. 43(A); therefore, I concur with Part III-A of the court's opinion. I must respectfully dissent from that part of the court's opinion in which it concludes that defendant must somehow plead to the violence specification contained in the indictment. In my view, the violence specification is not a substantive charge to which a defendant must plead.

The majority notes that the trial court failed to ask defendant to plead to the violence specification. There is no reason to ask a defendant to plead to a violence specification because it is not a part of the substantive charge contained in the indictment. In State v. Allen (1987), 29 Ohio St.3d 53, 29 OBR 436, 506 N.E.2d 199, the syllabus states:

"Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact." Cf. State v. Price (1985), 24 Ohio App.3d 186, 24 OBR 277, 493 N.E.2d 1372 (firearm specification contained in R.C. 2929.71 does not create a separate offense of which an offender may be convicted since it merely enhances the penalty for the offense).

In this case, the defendant had no reason to plead to the violence specification. While the state had the obligation to prove the existence of the prior offense giving rise to the specification, it did not form a part of the substantive charge contained in the indictment. By entering a guilty plea, defendant admitted the facts contained in the indictment, including the facts forming the basis of the violence specification. See Crim.R. 11(B)(1). To hold otherwise essentially dictates that the state must prove the substantive elements of the prior offense despite the fact that a judgment of conviction had been entered. Allen recognizes that distinction by holding that the specification is not a substantive part of the charge.

Even if the defendant was required to enter a "plea" to the violence specification, I believe that the totality of the circumstances show that he was aware that he was admitting the facts contained in the indictment.

The transcript of proceedings shows that the assistant prosecutor stated on the record that the state was willing to dismiss the first count of the indictment in exchange for defendant's guilty plea to one count of having a weapon while under disability with violence and gun specifications. Moreover, the assistant prosecutor specifically stated that the offense was a fourth degree felony that carried an indefinite term. Defense counsel then stated that he had explained to his client the effect of the guilty plea and that his client understood the effect of the plea. The trial court then asked defendant for his plea to "count two" of the indictment. Despite the fact that the court did not specifically mention the violence specification, it is apparent that defendant was pleading to the indictment. This conclusion is supported by the fact that defendant was well aware that his sentence for the charge of having a weapon while under disability was to be indefinite. The only way that the penalty to the underlying charge could be enhanced to an indefinite term was through the violence specification as set forth in R.C. 2941.143.

I believe that these facts belie defendant's contention that his guilty plea was involuntary since the trial court did not ask for a plea to the violence specification. Even were such a plea required, the totality of the circumstances shows that he was aware that his penalty would be enhanced through the specification contained in the indictment. Therefore, I would affirm that part of defendant's conviction.