State v. Crook

[Cite as State v. Crook, 2022-Ohio-896.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
EDDIE CROOK, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0051
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 20 CR 548
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Reversed. Vacated. Remanded.
Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Edward A. Czopur,
Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown,
Ohio 44503, for Plaintiff-Appellee and
Atty. Lydia Evelyn Spragin, 6100 Oak Tree Boulevard, Suite 200, Independence, Ohio
44131, for Defendant-Appellant.
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Dated: March 18, 2022
D’Apolito, J.
{¶1} Appellant, Eddie Crook, appeals from the May 11, 2021 judgment of the
Mahoning County Court of Common Pleas concurrently sentencing him to an indefinite
term of 3 to 4.5 years in prison for felonious assault and grand theft; imposing an
additional 1,416 days of a “reserved sentence” due to him being on post-release control
under a prior case, Case No. 12 CR 112, at the time the new offenses were committed;
and ordering that the additional 1,416 days are to be served consecutively for a total of
6.8 to 8.4 years in prison, following a guilty plea.
{¶2} On appeal, Appellant argues (1) the trial court erred in accepting his guilty
plea because it was not made in a knowing, intelligent, and voluntary manner; (2) that
because the written plea of guilty and the colloquy at the hearing are silent regarding a
“reserved sentence,” the court thereby erred in imposing the additional 1,416 days of
remaining post-release control from his 2012 case and ordering that it run consecutively;
and (3) his trial counsel was ineffective. For the reasons stated, we reverse the trial
court’s judgment, vacate Appellant’s plea and sentence, and remand the matter for further
proceedings.
FACTS AND PROCEDURAL HISTORY
{¶3} On September 24, 2020, Appellant was indicted by the Mahoning County
Grand Jury on two counts: count one, felonious assault, a felony of the second degree,
in violation of R.C. 2903.11(A)(1)(D)(1)(a), with notice of a prior conviction specification
pursuant to R.C. 2929.13(F)(6), and a repeat violent offender specification (cause,
attempt, or threat of physical harm – multiple convictions) pursuant to R.C. 2941.149(A);
and count two, grand theft, a felony of the fourth degree, in violation of R.C.
2913.02(A)(3)(B)(2). Appellant was appointed counsel, pled not guilty at his arraignment,
and waived his right to a speedy trial.
{¶4} On March 23, 2021, Appellant withdrew his former not guilty plea and
entered an oral and written plea of guilty to count one, felonious assault, a felony of the
Case No. 21 MA 0051
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second degree, in violation of R.C. 2903.11(A)(1)(D)(1), and count two, grand theft, a
felony of the fourth degree, in violation of R.C. 2913.02(A)(3)(B)(2).
{¶5} The written plea agreement lists the maximum penalties for felonious
assault (8-12 years) and for grand theft (18 months). (3/23/2021 Written Plea of Guilty,
p. 2). Appellee, the State of Ohio, recommended 5 to 7.5 years while Appellant’s defense
counsel recommended 3 to 4.5 years. (Id.) The State agreed to move to dismiss the
notice of a prior conviction specification pursuant to R.C. 2929.13(F)(6) and the repeat
violent offender specification (cause, attempt, or threat of physical harm – multiple
convictions) pursuant to R.C. 2941.149(A). (Id. at p. 1). Appellant recognized that
sentencing lies solely within the discretion of the trial court and that any agreement
between the State and his defense counsel is merely a recommendation. (Id. at p. 3).
Appellant was further advised that if he were now under the supervision of the Ohio Adult
Parole Authority or the Mahoning County Probation Department, this plea “may” result in
revocation proceedings that “could” subject him to additional penalties, “possibly”
consecutive sentences. (Id. at p. 4).
{¶6} There was no mention of any specific prior cases, namely Case No. 12 CR
112, at the plea hearing and/or in the written plea of guilty. The trial court accepted
Appellant’s guilty plea, ordered a PSI, and deferred sentencing.
{¶7} At the May 10, 2021 sentencing hearing, the State mentioned Appellant’s
prior case from 2012, Case No. 12 CR 112, and indicated he was on post-release control.
Appellant and his counsel informed the trial court that they believed Appellant had
completed his post-release control. The next day, the trial court concurrently sentenced
Appellant to 3 to 4.5 years on count one, felonious assault, and 18 months on count two,
grand theft, for a total of 3 to 4.5 years in prison. The notice of a prior conviction
specification pursuant to R.C. 2929.13(F)(6) and the repeat violent offender specification
(cause, attempt, or threat of physical harm – multiple convictions) pursuant to R.C.
2941.149(A) were dismissed. Thus, the trial court sentenced Appellant in accordance
with the recommendation of his defense counsel. However, the court further imposed an
additional 1,416 days of Appellant’s “reserved sentence” due to him being on post-release
control under Case No. 12 CR 112 at the time the new offenses were committed. The
additional 1,416 days were ordered to be served consecutively for a total of 6.8 to 8.4
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years in prison. Appellant’s sentence also includes three years of mandatory post-release
control.
{¶8} Appellant filed a timely appeal and raises three assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE WRITTEN PLEA OF GUILTY WAS NEITHER KNOWING,
VOLUNTARY, NOR INTELLIGENT AND THE TRIAL COURT ERRED BY
ACCEPTING MR. CROOK’S PLEA OF GUILTY.
ASSIGNMENT OF ERROR NO. 2
THE COURT ERRED WHEN THE COURT IMPOSED AN ADDITIONAL
1,416 DAYS OF A “RESERVE SENTENCE” WITHOUT GIVING MR.
CROOK THE BENEFIT OF DUE PROCESS AND WITHOUT
EXPLANATION TO ALLOW MR. CROOK TO HAVE A FULL,
COMPLETE, AND ACCURATE UNDERSTANDING OF HIS MAXIMUM
EXPOSURE. BOTH THE WRITTEN PLEA OF GUILTY AND ANY
COLLOQUY WITH THE COURT ARE SILENT UNTIL THE ACTUAL
IMPOSITION IS SPRUNG ON MR. CROOK EVEN IN LIGHT THAT BOTH
MR. CROOK AND HIS TRIAL COUNSEL TOLD THE COURT THAT HE
HAD COMPLETED HIS PRC IN FULL AND THERE WAS NO MENTION
OF A “RESERVE SENTENCE.”
{¶9} In his first assignment of error, Appellant argues the trial court erred in
accepting his guilty plea because it was not made in a knowing, intelligent, and voluntary
manner. In his second assignment of error, Appellant contends that because the written
plea of guilty and the colloquy at the hearing are silent regarding a “reserved sentence,”
the court thereby erred in imposing an additional 1,416 days of remaining post-release
control from his 2012 case and ordering that it run consecutively. Because Appellant’s
first and second assignments are interrelated and are dispositive of this appeal, we will
address them together for ease of discussion.
Case No. 21 MA 0051
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Crim.R. 11(C) governs the procedure a trial court must follow before
accepting a guilty plea in a felony case. Before the court can accept a guilty
plea to a felony charge, it must conduct a colloquy with the defendant to
determine that he understands the plea he is entering and the rights he is
voluntarily waiving. Crim.R. 11(C)(2). A trial court must strictly comply with
Crim.R. 11(C)(2)[(c)] pertaining to the waiver of federal constitutional
rights. State v. Martinez, 7th Dist. No. 03MA196, 2004-Ohio-6806, at ¶ 12.
However, it need only substantially comply with Crim.R. 11(C)(2) pertaining
to non-constitutional rights * * *.” Id., citing Crim.R. 11(C)(2)(a)(b).
State v. McQueen, 7th Dist. Mahoning No. 08 MA 24, 2008-Ohio-6589, ¶ 39.
The Ohio Supreme Court has recognized that notice of postrelease control
falls within a defendant’s nonconstitutional rights. State v. Sarkozy, 117
Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26. * * *
Under the substantial-compliance standard, we review the totality of
circumstances surrounding the defendant’s plea in order to determine
whether he subjectively understood the effect of his plea. Sarkozy, supra,
at ¶ 20. If the trial court completely neglects to advise a defendant of
a nonconstitutional right, the plea is vacated without
a prejudice analysis. State v. Cruz-Ramos, 2019-Ohio-779, ––– N.E.3d ––
–– (7th Dist.), citing Sarkozy at ¶ 22, 25. If the trial court partially complies
with the rule, the plea will only be vacated when prejudice is
shown. Id. citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 32. In order to establish prejudice, the defendant must show
that the plea would not have been otherwise entered. State v. Cologie, 7th
Dist. Belmont No. 17 BE 0009, 2017-Ohio-9217, ¶ 11, citing State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15; State v. Nero,
56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
State v. Bailey, 7th Dist. Belmont No. 18 BE 0052, 2019-Ohio-4746, ¶ 5-6.
Case No. 21 MA 0051
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{¶10} Specifically, Crim.R. 11 (C)(2), “Pleas of Guilty and No Contest in Felony
Cases,” states:
(2) In felony cases the court may refuse to accept a plea of guilty or a plea
of no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally either in-person or by remote
contemporaneous video in conformity with Crim.R. 43(A) and doing all of
the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty
involved, and if applicable, that the defendant is not eligible for probation or
for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the
defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
Crim.R. 11(C)(2)(a)-(c).
{¶11} The Supreme Court of Ohio was asked in 2018 to resolve a certified conflict
between judgments of the Second District Court of Appeals (State v. Bishop, 2d Dist.
Montgomery No. 27496, 2017-Ohio-8332) and the Fifth (State v. Hicks, 5th Dist.
Delaware No. 09CAA090088, 2010-Ohio-2985) and Eighth District Courts of Appeal
(State v. Dotson, 8th Dist. Cuyahoga No. 101911, 2015-Ohio-2392) on the following
question:
Case No. 21 MA 0051
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[W]hether a criminal defendant on (post-release control) for a prior felony
must be advised, during his plea hearing in a new felony case, of the trial
court’s ability under R.C. 2929.141 to terminate his existing (post-release
control) and to impose a consecutive prison sentence for the (post-release
control) violation.
State v. Bishop, 152 Ohio St.3d 1404, 2018-Ohio-723.
{¶12} In a plurality opinion, the Supreme Court of Ohio concluded that Crim.R.
11(C)(2)(a) requires that advisement. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-
5132, ¶ 1. The Court answered the certified question in the affirmative and affirmed the
judgment of the Second District Court of Appeals. Id.{¶13} “There is no dispute that when a defendant is on postrelease control at the
time a plea is entered, the Crim.R. 11(C)(2)(a) maximum penalty advisement must include
a discussion of the possible consequences under R.C. 2929.141(A)(1)” regarding post-
release control time. State v. Stewart, 8th Dist. Cuyahoga No. 110219, 2021-Ohio-3600,
¶ 23, citing Bishop, 2018-Ohio-5132, ¶ 21.
{¶14} In this case, Appellant stresses he was prejudiced because “he would not
have entered the plea had he known that an additional amount of time could/would be
imposed by the judge and he was not going to be afforded a hearing by the parole board.”
(9/17/2021 Appellant’s Brief, p. 20). Although Appellant “agrees with the sentence
imposed for the actual crimes to which he plead guilty as they were both with[in] the
statutory range as well as the agreed upon range within the written plea[,] [h]e [contends
he] simply was not informed that the Judge could impose ‘reserve time’ and not the Parole
Board.” (Id.) Appellant asserts the harm and/or prejudice at issue is that he did not have
everything before him to properly consider prior to entering his guilty plea.
{¶15} As such, it appears Appellant’s guilty plea was not made in a knowing,
intelligent, and voluntary manner. We do not know whether Appellant would have
changed his plea. Appellant made a decision without being totally informed.
{¶16} The State agrees with Appellant that “it is true that the trial court did not fully
advise as to the potential for a [post-release control] sentence in addition to a sentence
for the new offenses,” but alleges that “such failure was harmless as the sentence
Case No. 21 MA 0051
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imposed was shorter than the maximum advised.” (10/18/2021 Appellee’s Brief, p. 2).
The State stresses that Bishop does not apply here because the defendant in that case
was sentenced to a longer sentence. (Id. at p. 5). The State thereby indicates that
“[d]espite Bishop, the alleged error here was harmless.” (Id. at p. 6). The State further
contends that because Appellant did not inform the trial court that he was on post-release
control at the time of his plea, “any alleged error [at sentencing] was invited.” (Id. at p. 7).
{¶17} Appellant counters that “[t]he harm is not in the fact that the sentence
imposed was much shorter than the maximum advised.” (11/12/2021 Appellant’s Reply
Brief, p. 4). Rather, Appellant asserts the harm is “in the fact that the very appearance of
the integrity of the process was comprised such that it surprised [him] when the sentence
was extended to include the [post-release control] time and tack it on consecutively and
caused him much angst.” (Id). Appellant maintains “[t]he error was most certainly not
invited by [him].” (Id. at 9). Even if Appellant thought or knew he was on post-release
control at the time of his plea, “he did not know that the [post-release control] could be
revoked, that the Judge could impose the remaining [post-release control] time, or that it
could be imposed in toto and consecutively.” (Id). Appellant stresses “[t]his is the very
knowledge the trial court was to ensure that he knew.” (Id).
{¶18} The State alleges that Appellant denied being on post-release control.
However, the sentencing transcript does not support that allegation. In fact, Appellant did
not deny being on post-release control. Rather, both Appellant and his attorney believed
Appellant had completed it. The following colloquy occurred among the trial judge,
Appellant, and Appellant’s counsel at the sentencing hearing:
THE COURT: You’re released early from prison. Somebody gave you a
break - -
THE DEFENDANT: No, sir.
THE COURT: - - and somebody gave you another break - -
THE DEFENDANT: No, sir. I did my whole - -
[DEFENSE COUNSEL]: Your Honor, just for the record - -
Case No. 21 MA 0051
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THE COURT: All right. So you did your time. I got it.
[DEFENSE COUNSEL]: He did his complete - -
THE COURT: Mandatory PRC [post-release control].
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: I just wanted to correct the record.
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And I appreciate that. Thank you for correcting the
record.
(5/10/2021 Sentencing Hearing T.p., p. 17-18).
{¶19} Thus, both Appellant and his counsel believed Appellant had completed his
post-release control and orally notified the trial judge at the sentencing hearing. The State
improperly places the entire burden upon Appellant in knowing his post-release control
status and informing the trial court of such. However, at oral argument before this court,
the State conceded that it should have “probably” known on its own that Appellant was
on post-release control and informed the trial court and Appellant accordingly during the
plea proceedings.
{¶20} The record before us supports Appellant’s claim of “surprise” due to the
sentence imposed by the trial court. (9/17/2021 Appellant’s Brief, p. 12). See State v.
Minor, 7th Dist. Mahoning No. 88 C.A. 103, 1989 WL 5409, *1-2 (Jan. 26, 1989) (this
court held that a remand to the trial court to determine the voluntariness of the appellant’s
guilty plea was warranted because the sentence took her by “surprise”). Here, there was
no specific discussion during the plea proceedings of the potential imposition of an
additional 1,416 days which was “held in reserve” nor that the time would run consecutive
to another prison sentence. The change of plea hearing and the written plea of guilty did
not give Appellant specific notice of the additional 1,416 days and that those days from
Case No. 21 MA 0051
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Case No. 12 CR 112 would have any bearing upon his sentencing for the instant charges
of felonious assault and grand theft. The trial court had an obligation to reference the
2012 case and advise Appellant properly before imposing the additional days and running
them consecutively.
{¶21} As such, Appellant was denied proper notice and the opportunity to be
heard on this issue in order to make a fully informed decision prior to sentencing. The
record supports Appellant’s claim of prejudice, i.e., that “he would not have entered the
plea had he known that an additional amount of time could/would be imposed by the judge
and he was not going to be afforded a hearing by the parole board.” (9/17/2021
Appellant’s Brief, p. 20); Bailey, supra, at ¶ 6 (“In order to establish prejudice, the
defendant must show that the plea would not have been otherwise entered.”)
{¶22} Contrary to the State’s position, Bishop does not hinge on whether a
defendant receives a maximum sentence. Rather, as stated, Bishop stands for the
proposition that “a criminal defendant on (post-release control) for a prior felony must be
advised, during his plea hearing in a new felony case, of the trial court’s ability under R.C.
2929.141 to terminate his existing (post-release control) and to impose a consecutive
prison sentence for the (post-release control) violation.” (Emphasis added.) Bishop,
2018-Ohio-723.
{¶23} In complete conformity with Bishop, the State concedes that “[t]he best
practice would have been for the trial court to fully advise Appellant of the [post-release
control] violation potential at the time of the plea.” (10/18/2021 Appellee’s Brief, p. 5).
However, the trial court did not do that here.
{¶24} It appears Appellant’s guilty plea was not knowingly, intelligently, and
voluntarily made as he probably would not have pled guilty based on the facts presented.
Accordingly, in the interest of justice, we vacate the plea and remand the matter to the
trial court for further proceedings. See Minor, supra, at *2; State v. Baker, 170 Ohio
App.3d 331, 2006-Ohio-7085, ¶ 47 (2d Dist.).
{¶25} Appellant’s first and second assignments of error are with merit.
Case No. 21 MA 0051
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ASSIGNMENT OF ERROR NO. 3
DEFENSE COUNSEL WAS INEFFECTIVE IN THAT HE FAILED TO
ENSURE THAT THE WRITTEN PLEA OF GUILTY “FORM” WAS
MODIFIED TO FIT THE FACTS OF MR. CROOK’S CASE AND THE
IMPOSITION OF THE SENTENCE COUNSEL FAILED TO RAISE A
MOTION PURSUANT TO OHIO CRIMINAL RULE 32.1.
{¶26} Based on this court’s disposition in Appellant’s first and second
assignments of error, we find Appellant’s third assignment of error moot. See App.R.
12(A)(1)(c); State v. Terrell, 2d Dist. Clark No. 2020-CA-24, 2021-Ohio-1840, ¶ 28 (a
reversal of a trial court’s judgment as a result of an appellant’s guilty plea not having been
knowingly, intelligently, and voluntarily entered renders an assignment of error alleging
ineffective assistance of counsel moot).
CONCLUSION
{¶27} For the foregoing reasons, Appellant’s first and second assignments of error
are well-taken, thereby rendering his third assignment moot. The judgment of the
Mahoning County Court of Common Pleas is reversed, Appellant’s plea and sentence are
vacated, and the cause is remanded to the trial court for further proceedings consistent
with this Opinion.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 MA 0051
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For the reasons stated in the Opinion rendered herein, the judgment of the
Mahoning County Court of Common Pleas is reversed, Appellant’s plea and sentence
are vacated. We hereby remand this matter to the trial court for further proceedings
according to law and consistent with this Court’s Opinion. Costs to be taxed against
the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 MA 0051