State v. Bailey

[Cite as State v. Bailey, 2016-Ohio-4937.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. Nos. 28003
28004
Appellee 28005
v.
SCOTT M. BAILEY APPEAL FROM JUDGMENT
ENTERED IN THE
Appellant COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. CR 2011-08-2057
CR 2011-11-3188
CR 2015-03-0720
DECISION AND JOURNAL ENTRY
Dated: July 13, 2016
WHITMORE, Judge.
{¶1} Appellant, Scott M. Bailey, appeals from the Summit County Court of Common
Pleas. His consolidated appeals center on his guilty plea in Case Number CR 2015-03-0720 and
the sentence imposed in Case Number 2011-11-3188 for community control violations. This
Court reverses.
I
{¶2} In March 2015, Bailey fled from police on icy roads through a residential
neighborhood. Bailey reached speeds of 65 miles per hour in a 25 mile per hour zone. He also
ran several stop signs and failed to signal as police attempted to stop him with overhead lights
and sirens. He was eventually apprehended following a foot chase after he “bailed out of the
car.”
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{¶3} Bailey was initially charged in Akron Municipal Court with: (1) failure to comply
with the order of a police officer (“failure to comply”); (2) obstructing official business; (3)
driving under suspension; (4) a stop sign violation; and (5) reckless operation. He was later
indicted for: (1) failure to comply in violation of R.C. 2921.331(B), a third-degree felony; (2)
driving under suspension in violation of R.C. 4510.11(A), a first-degree misdemeanor; and (3)
obstructing official business in violation of R.C. 2921.31, a second-degree misdemeanor. Bailey
pled not guilty to the indicted offenses.
{¶4} Based on the 2015 charges, Bailey was also alleged to have violated his
community control in two separate 2011 cases (Case Number 2011-08-2057 and Case Number
2011-11-3188). Bailey had previously violated community control two times in those cases.
Following his prior violations, the trial court continued him on community control.
{¶5} At a change of plea hearing, Bailey pled guilty to failure to comply. The State
dismissed the driving under suspension and obstructing official business charges. At the
beginning of the change of plea hearing, the prosecutor noted that the failure to comply charge
was a third-degree felony and that, if Bailey was given a prison sentence, it was “mandatory
consecutive time.” During the trial judge’s colloquy with Bailey, she confirmed that he
understood that a guilty plea in the 2015 case was also an admission to violating his community
control terms in the 2011 cases. She further advised that “on the new case the maximum penalty
that could be imposed is 36 months incarceration and a fine of up to $10,000.” The judge did not
explicitly address whether any sentences were required to be served consecutively.
{¶6} The court sentenced Bailey to 1 year incarceration in the 2015 case. In Case
Number 2011-08-2057, Bailey was ordered to serve 6 months for possession of cocaine. In Case
Number 2011-11-3188, Bailey was ordered to serve 18 months for failure to comply, 6 months
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for possession of cocaine, and 6 months for operating under the influence of alcohol or drugs
(“OVI”). In Case Number 2011-11-3188, the trial court further ordered that the failure to
comply and possession of cocaine sentences be served consecutively, but that the OVI sentence
be served concurrently. The trial court ordered the sentences in the three cases to run
consecutively to each other for a total of 3 years and 6 months.
{¶7} Bailey appeals raising four assignments of error. Bailey’s first and fourth
assignments of error relate to his plea in Case Number CR 2015-03-0720. His second and third
assignments of error relate to his sentence in Case Number CR 2011-11-3188. We have
rearranged his assignments of errors accordingly.
II
Assignment of Error Number One
BAILEY’S GUILTY PLEA IN CR 2015-03-0720 MUST BE VACATED
BECAUSE HE DID NOT ENTER HIS PLEA KNOWINGLY, VOLUNTARILY,
OR INTELLIGENTLY.
{¶8} In his first assignment of error, Bailey argues that he did not enter his guilty plea
knowingly, voluntarily, or intelligently because the trial court failed to inform him that he would
be statutorily required to serve consecutive sentences. We agree.
{¶9} Prior to accepting a guilty plea, the court must address the defendant “personally”
and determine, inter alia, “that the defendant is making the plea voluntarily, with understanding
of the nature of the charges and of the maximum penalty involved.” Crim.R. 11(C)(2)(a).
“[U]nless a plea is knowingly, intelligently, and voluntarily made, it is invalid.” State v. Clark,
119 Ohio St. 3d 239, 2008-Ohio-3748, ¶ 25. The plea colloquy is designed to ensure that the
defendant understands the consequences of his decision to enter a plea. Id. at ¶ 26. “[I]f the trial
judge imperfectly explained nonconstitutional rights such as the right to be informed of the
4
maximum possible penalty * * *, a substantial-compliance rule applies.” Id. at ¶ 31.
“Substantial compliance means that under the totality of the circumstances the defendant
subjectively understands the implication of his plea and the rights he is waiving.” State v. Nero,
56 Ohio St. 3d 106, 108 (1990).
{¶10} The parties agree that Bailey’s sentences must run consecutively under R.C.
2921.331(D) because Bailey caused a substantial risk of serious physical harm to persons or
property when fleeing police. The statute requires, “if the offender is sentenced to prison for that
violation, the offender shall serve the prison term consecutively to any other prison term or
mandatory prison term imposed upon the offender.” R.C. 2921.331(D).
{¶11} Usually, a trial judge is not required to advise a defendant at the time of his plea
that consecutive sentences may be imposed. See State v. Johnson, 40 Ohio St. 3d 130 (1988),
syllabus. In Johnson, the Court reasoned that “the decision of whether the criminal defendant is
to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing
discretion” and “[t]he exercise of such discretion” occurs at the time of sentencing not when the
plea is entered. Id. at 133-134.
{¶12} Bailey argues that Johnson does not apply where a statute requires the imposition
of consecutive sentences, and therefore, the court is not exercising any discretion when imposing
the consecutive requirement. Bailey cites to cases from the Eighth and Sixth Districts
differentiating between “discretionary consecutive” sentences and “mandatory consecutive”
sentences. See State v. Perry, 8th Dist. Cuyahoga No. 101667, 2015-Ohio-1542, State v.
Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, and State v. Pitts, 159 Ohio App. 3d
852, 2005-Ohio-1389 (6th Dist.).
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{¶13} We agree with our sister Districts that Johnson is distinguishable from cases, such
as the present one, where a trial court lacks discretion to determine whether sentences should run
concurrently or consecutively. When a statute requires that sentences be served consecutively,
the consecutive nature “directly affects the length of the sentence, thus becoming a crucial
component of what constitutes the ‘maximum’ sentence.” Norman at ¶ 7. In that situation, the
trial court must inform the defendant of the consecutive nature of the sentence, as it is part of the
maximum penalty.
{¶14} Because the right to be informed of the maximum penalty is a nonconstitutional
right, we review the plea hearing transcript to determine whether there was substantial
compliance. At the beginning of the plea hearing, the prosecutor stated that Bailey was going to
plead guilty to “failure to comply, it’s a felony of the third degree. It’s mandatory consecutive
time, not mandatory time, but mandatory consecutive if he’s given any prison sentence.” The
prosecutor continued that they would request a presentence investigation report, that they
remained free to argue sentencing, and that Bailey would also plead guilty to community control
violations. Defense counsel responded, “That’s an accurate description of our negotiations.”
{¶15} When addressing Bailey, the trial court judge inquired, “You understand that by
pleading guilty you are also admitting to violating the terms and conditions of your community
control in the two 2011 cases?” and “You understand on the new case the maximum penalty that
could be imposed is 36 months incarceration and a fine of up to $10,000?”. Bailey answered,
“Yes, Your Honor” to these inquiries. The trial judge did not ask whether Bailey understood
that, if he was sentenced to prison, his sentences would be run consecutively pursuant to R.C.
2921.331(D).
6
{¶16} The State argues that the prosecutor’s statement at the beginning of the plea
hearing ensured that Bailey understood that his sentence would be run consecutively. We do not
agree that the prosecutor’s statement can substitute for the trial judge’s obligation to address the
defendant “personally” to ensure that he understands the maximum penalty that he is facing. See
Crim.R. 11(C)(2)(a); see also State v. Anderson, 108 Ohio App. 3d 5, 12 (9th Dist.1995)
(defendant’s receipt of information from attorneys does not obviate need for dialogue with the
trial court). Defense counsel’s agreement to the “description of our negotiations” does not
necessarily equate to the defendant’s understanding of the maximum sentence that he faced.
{¶17} Here, the trial court failed to ensure that Bailey understood that his sentences
would be run consecutively pursuant to a statutory requirement. Not only did the court not
mention the consecutive nature of the sentences, the court did not provide Bailey with the
aggregate sentence that could be imposed. Contrast State v. Millhoan, 6th Dist. Lucas Nos. L-
10-1328 and L-10-1329, 2011-Ohio-4741, ¶ 33 (maximum consecutive penalty “substantially
convey[ed]” when court informed defendant of prison term for each charge and aggregate, total
prison term).
{¶18} We note that the parties also address arguments made by defense counsel at the
sentencing hearing. Bailey contends that these arguments “compounded” the error alleged
herein. We disagree as statements at the sentencing hearing do not demonstrate what Bailey did
or did not understand at the time that he entered his plea. See State v. Meredith, 9th Dist.
Summit No. 25198, 2011-Ohio-1517, ¶ 8 (error during sentencing would not affect whether
defendant made plea knowingly, voluntarily, and intelligently).
{¶19} Because the trial court’s plea colloquy did not ensure that Bailey understood the
maximum penalty he was facing, his first assignment of error is sustained.
7
Assignment of Error Number Four
BAILEY’S CONVICTION IN CR 2015-03-0720 MUST BE REVERSED
BECAUSE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED HIM BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
{¶20} In his fourth assignment of error, Bailey argues that his trial counsel was
ineffective because he failed to object when the trial court did not notify Bailey of the
consecutive nature of his sentence. Given our resolution of Bailey’s first assignment of error,
this assignment of error is moot and need not be addressed. See App.R. 12(A)(1)(c).
Assignment of Error Number Two
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
SENTENCED BAILEY TO SERVE SIX MONTHS IN THE SUMMIT
COUNTY JAIL FOR A VIOLATION OF HIS COMMUNITY CONTROL FOR
DRIVING UNDER SUSPENSION IN CR 2011-11-3188, WHEN THE TRIAL
COURT INITIALLY REQUIRED BAILEY TO SERVE 30 DAYS IN THE
COUNTY JAIL.
{¶21} In his second assignment of error, Bailey argues that the six-month sentence he
received on his OVI conviction following his most recent community control violation must be
vacated. We agree.
{¶22} Initially, we note that Bailey is challenging the sentence that was imposed for his
OVI conviction, which was a misdemeanor offense. He is not challenging the sentences imposed
for his felony convictions.
{¶23} A court imposing community control for a misdemeanor “shall notify the offender
that if any of the conditions of the community control sanctions are violated the court may do
any of the following * * * [i]mpose a definite jail term from the range of jail terms authorized for
the offense * * *.” R.C. 2929.25(A)(3)(c).
8
{¶24} On appeal, Bailey argues that this statute is “analogous to the felony version found
at R.C. 2929.19(B)(4).” We disagree. R.C. 2929.14(B)(4) provides that a court imposing a
community control sanction in a felony case
shall notify the offender that, if the conditions of the sanction are violated, if the
offender commits a violation of any law, or if the offender leaves this state
without the permission of the court or the offender’s probation officer, the court *
* * may impose a prison term on the offender and shall indicate the specific
prison term that may be imposed as a sanction for the violation, as selected from
the range of prison terms for the offense * * *.
The felony statute requires a notification of the “specific prison term,” but the misdemeanor
statute requires only notification that a “definite jail term from the range of jail terms authorized”
may be imposed. Compare R.C. 2929.14(B)(4) with R.C. 2929.25(A)(3)(c). The misdemeanor
statute does not require that the “specific” term be stated at the hearing. See, e.g., State v.
Gibson, 11th Dist. Portage No. 2013-P-0047, 2014-Ohio-433, ¶ 33-34, State v. Sutton, 162 Ohio
App.3d 802, 2005-Ohio-4589, ¶ 10 (4th Dist.). It does, however, still require that the defendant
be notified that a jail term may be imposed for a violation.
{¶25} In the instant matter, Bailey was notified of the prison terms that could be imposed
for his felony convictions if he violated his community control. But, he was not notified that any
further jail term might be imposed on his misdemeanor OVI conviction.
{¶26} The initial sentencing entry in Case Number CR 2011-11-3188 placed Bailey on
community control for two years. It further listed “sanctions being imposed” including “[t]hat he
pay a fine in the amount of $525.00 and serve 30 days in the Summit County Jail on Count 3 of
the Indictment [OVI].” He was further notified that, if the conditions of the community control
sanctions were violated the court may “impose a prison term of 18 months on Count 1 [failure to
comply], and a prison term of 6 months on Count 2 [possession of cocaine], including
9
discretionary post release control of 3 years. Said prison sentences to run consecutively with
each other and consecutively with the sentence imposed in Case Number 11 08 2057.”
{¶27} Following his first community control violation, the court extended his community
control term. The journal entry states that a violation “may lead to more restrictive sanctions for
the Defendant, up to and including a prison term of 24 months, to be served consecutively with
the prison term in Case Number 11 08 2057, for a total of 30 months.”
{¶28} When Bailey again violated the terms of his community control, the court once
again continued him on community control. The court again noted that a violation “may lead to
more restrictive sanctions for the Defendant, up to and including a prison term of 24 months, to
run consecutively with the prison term in Case Number 2011 08 2057, for a total of 30 months.”
{¶29} None of these entries advised Bailey that he would have a sentence imposed on the
OVI charge if he violated the terms of his community control sanctions. The first entry advises
that 18 months could be imposed on the failure to comply charge and 6 months on the possession
of cocaine charge. This totals 24 months for a violation. Neither of the two subsequent entries
varied this 24-month total, although they mention what the grand total would be if combined
with the amount from Case Number 2011-08-2057.
{¶30} Because Bailey was not notified that any jail term could be imposed relative to his
OVI conviction, this portion of his sentence must be vacated. Bailey’s second assignment of
error is sustained.
Assignment of Error Number Three
THE TRIAL COURT ANNOUNCED A DIFFERENT SENTENCE IN ITS
JOURNAL ENTRIES THAN IT DID DURING BAILEY’S SENTENCING
HEARING, VIOLATING HIS RIGHT TO DUE PROCESS AND MANDATING
REVERSAL AND A NEW SENTENCING HEARING.
10
{¶31} In his third assignment of error, Bailey argues that the sentence imposed for his
OVI conviction in the journal entries differed from the sentence that was stated at his sentencing
hearing. In light of our disposition of the second assignment of error, this assignment of error is
moot and need not be addressed. See App.R. 12(A)(1)(c).
III
{¶32} Bailey’s first and second assignments of error are sustained. His third and fourth
assignments of error are moot. The judgment of the Summit County Court of Common Pleas is
reversed and this matter remanded for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
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MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.