State v. Wood , 48 Ohio App. 2d 339 ( 1976 )

I concur in the judgment of affirmance but will make additional comments on the issue raised by the appellant that the guilty pleas were defective because of the failure of the trial court to comply with Criminal Rule 11(C)(2)(a) by not advising appellant that he was not eligible for probation as a repeat or dangerous offender under R. C. 2951.02(F)(2).

In a criminal case, after a defendant is found guilty or enters a plea of guilty or no contest, the trial court may immediately impose sentence and order the defendant incarcerated in an institution. However, the trial court may, after imposing sentence, suspend the execution of the sentence and place the defendant on probation if permitted by law.

Criminal Rule 11(C)(2)(a), which was adopted on July 1, 1973, provides in substance that before a trial court accepts a plea of guilty or no contest, it shall determine that the defendant is making the plea voluntarily, and that he understands the nature of the charge, the maximum penalty involved, and if applicable, that he is not eligible for probation. This means that if, as a matter of law, a defendant is not eligible for probation, the trial court must so advise him of this fact under the requirements of Criminal Rule 11(C)(2)(a). On the contrary, if a defendant is eligible for probation, nothing need be said regarding the subject of probation.

It is noted that at the time Criminal Rule 11 was adopted, eight non-probationable offenses were enumerated in R. C. 2951.04 and there were additional non-probationable offenses enumerated in titles other than Title 29 of the Revised Code, such as R. C.3719.99. Also, R. C. 2951.02 provided the statutory authority for placing a defendant who had plead guilty or had been found guilty on probation. On January 1, 1974, R. C. 2951.04 was repealed and R. C. 2951.02 was also repealed and replaced by a new statute numbered the same. The new R. C. 2951.02 provides in substance the criteria for determining whether or not to place an offender on probation, and also which Title 29 offenses are not probationable. Further, a new statute, R. C. 2929.01 defining repeat and dangerous offenders was enacted and became effective on January 1, 1974.

Now R. C. 2951.02(A), (B), (D) and (E) provide that the trial court has discretion in determining whether or not to place a defendant on probation and these sections also set forth the various criteria that the court shall consider in determining whether or not a defendant shall be placed on probation.

R. C. 2951.02(F)(1) and (3) provide that an offender shall not be placed on probation when the offense involved is aggravated murder, murder, or when the offense was committed while the offender was armed with a firearm or a dangerous ordnance as defined in R. C. 2923.11. This means that, as a matter of law, if the offense involved in the case is one of those set forth in R. C. 2951.02(F), (1) or (3), the offender shall not be placed on probation.

In addition, R. C. 2951.02(F)(2) provides that if the offender is a repeat or dangerous offender, as defined in R. C.2929.01, he shall not be placed on probation. A review of R. C.2929.01 indicates that whether or not an offender is a repeat or dangerous offender is a matter for subjective determination by the trial court. If the trial court does in fact find in the exercise of its discretion that a defendant is a repeat or dangerous offender, he may not be placed on probation. However, there is no mandate requiring that the court make a finding in each case as to whether the defendant is or is not a repeat or dangerous offender. The code merely provides that if an offender is found to be a repeat or dangerous offender, he may not be placed on probation. R. C. 2951.02(F)(2). Thus, the trial court has discretion to either make no finding as to whether a defendant is a repeat or dangerous offender, or make a specific finding that he is or is not a repeat or dangerous offender. The effect of R. C. 2951.02 is to give the trial court discretion in determining whether or not to suspend a sentence of imprisonment and place a defendant on probation unless it makes a finding that the defendant is a repeat or dangerous offender, or unless the Title 29 offense committed was aggravated murder, murder, or an offense committed while the offender was armed with a firearm or dangerous ordnance.

However, since the court has discretion in determining whether a defendant is a repeat or dangerous offender, it, in effect, has discretion whether or not it will suspend the sentence and place the defendant on probation in all Title 29 cases except those involving aggravated murder, murder, or an offense committed while the offender was armed with a firearm or dangerous ordnance.

In summary, under R. C. 2951.02 only the offenses of aggravated murder, murder, or offenses committed when the offender was armed with a firearm or dangerous ordnance are non-probationable as a matter of law. As to all other Title 29 offenses, it is clearly within the trial court's discretion whether it will suspend execution of sentence and place a defendant on probation.

In the present case the trial court did not make a finding that the appellant was a repeat or dangerous offender under R. C. 2929.01. The offenses to which the defendant entered pleas of guilty were probationable at the discretion of the court. Therefore, the appellant was eligible for probation. The trial court did not commit prejudicial error in failing to tell the defendant that he was not eligible for probation. The judgment is properly affirmed.