State v. Gullatte

[Cite as State v. Gullatte, 2018-Ohio-5273.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-20
:
v. : Trial Court Case No. 2015-CR-287
:
DAVID J. GULLATTE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of December, 2018.
...........
NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Second Floor, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
CHRISTOPHER B. EPLEY, Atty. Reg. No. 0070981, 10 West Second Street, Suite 2400,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant David J. Gullatte pled guilty in the Greene County Court
of Common Pleas to failure to comply with an order or signal of a police officer. The trial
court sentenced him to 36 months in prison. Gullatte appeals from his conviction,
claiming that the trial court erred in imposing a maximum 36-month sentence, which was
longer than the sentence recommended by the State. Gullatte has completely served
the imposed prison sentence, and there is no relief which we can provide on the issue
raised in his appeal. Accordingly, this appeal will be dismissed as moot.
{¶ 2} According to the presentence investigation report, on May 7, 2015, a
Beavercreek police officer in a marked cruiser observed Gullatte speeding on Interstate
675. Gullatte was also weaving across lanes and on the shoulder of the highway. The
officer saw Gullatte swerve to take an exit, squeeze through cars stopped for a red light
at the exit, striking them, cross a busy road against a red light, and reenter the highway.
The police officer activated the cruiser’s lights and siren in an attempt to initiate a traffic
stop, but Gullatte did not comply. When Gullatte took the next exit, he proceeded
through another red light and struck another vehicle. Gullatte left his vehicle and ran
from the officer. Gullatte’s driver’s license was under suspension at the time of the
incident. He had numerous prior traffic offenses.
{¶ 3} Approximately one week later, Gullatte was indicted on one count of
aggravated vehicular assault, in violation of R.C. 2903.08(A)(2)(b), and one count of
failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331(B).
Both offenses were felonies of the third degree. Gullatte faced a maximum sentence of
36 months in prison on each offense, as well as a $10,000 fine and driver’s license
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suspension.
{¶ 4} On November 3, 2015, Gullatte reached an agreement with the State
whereby he would plead guilty to failure to comply and agree to pay restitution of $8,800.
The State agreed to dismiss the aggravated vehicular assault charge. The parties
further agreed that Gullatte would receive a one-year sentence if he paid restitution in full
by the sentencing date and, alternatively, if Gullatte did not pay restitution in full by the
sentencing date, Gullatte would receive an 18-month sentence.
{¶ 5} At the plea hearing, the trial court told Gullatte that it would “honor the
agreement you have struck to impose either of those two sentences depending on the
status of restitution. * * * [W]hen we come back for disposition, I will either impose a one-
year sentence or an 18-month sentence.” The court informed Gullatte that community
control was an option for his offenses and asked Gullatte if he wished to proceed with his
plea. Gullatte responded that he wished to go forward with his plea. The written plea
agreement noted that Gullatte was eligible for community control, but that he would not
receive it due to the stipulated sentence.
{¶ 6} Gullatte’s sentencing was scheduled for January 2016, but was continued
when he retained new counsel.
{¶ 7} At a hearing on March 18, 2016, the parties informed the court that they had
reached an agreement to have Gullatte’s plea withdrawn and an agreement on a revised
plea. The trial court granted the motion to withdraw and conducted a new plea hearing.
The court informed Gullatte that the maximum punishment he could receive was a three-
year sentence and/or a $10,000 fine, and that the court was required to suspend his
driver’s license for a period of time between three years and a lifetime suspension.
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{¶ 8} The court then articulated the amended plea agreement, stating:
Defendant will plead guilty to Count 2, Failure to Comply with an Order or
Signal of a Police Officer, felony of the third degree. Count 1 of the
indictment, which is aggravated vehicular assault, will be dismissed. The
case will go for a Pre-Sentence Investigation. Defendant’s responsible for
restitution in the amount of $8,800. If the Defendant pays full restitution by
sentencing date, the State would recommend a one-year prison sentence.
If the Defendant does not pay full restitution by sentencing date, the State
would recommend an 18-month prison sentence.
{¶ 9} When asked if he had any questions about what the court had read, Gullatte
asked if the agreement stated that he was eligible for community control. The court
replied:
Yes. The State is making a recommendation of prison, which means that
both sides have the right. You and the State have a right to make a
recommendation to me as to what I should do in this case. * * * [T]o answer
your question specifically, the State’s making a recommendation of prison,
but it’s not a stipulated sentence. A stipulated sentence is where the Court
would say, this is what I’m going to do. This is going to have the Court
receive a Pre-Sentence Investigation, and then make a decision based
upon the information I have in the Pre-Sentence Investigation.
Gullatte indicated that he understood. The court later elaborated that it had a “choice
here of two things: Either a prison sentence or Community Control.” The court told
Gullatte that, at that time, it did not know which one it was going to do. Gullatte again
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indicated his understanding. After additional exchanges, Gullatte entered a guilty plea
to failure to comply with an order or signal of a police officer.
{¶ 10} On May 26, 2016, after a presentence investigation, the trial court
sentenced Gullatte to 36 months in prison and suspended his driver’s license for 20 years.
In doing so, the trial court told Gullatte that it was not bound by the prosecutor’s
recommendation, and that it was the court’s responsibility to “fashion its own sentence,
that was a decision I made in this case[.]” Gullatte subsequently sought to stay his
sentence, but his request was denied.
{¶ 11} Gullatte timely appealed from his conviction, but we dismissed the appeal
for lack of prosecution. We subsequently granted Gullatte’s application to reopen his
direct appeal. He now claims that the trial court improperly sentenced him to the
maximum sentence.
{¶ 12} The Ohio Department of Rehabilitation and Correction website indicates
that Gullatte is no longer incarcerated and is not on post-release control. Accordingly,
we must consider whether Gullatte’s appeal is moot. We have stated:
“ ‘Any appeal of a sentence already served is moot.’ ” Columbus v. Duff,
10th Dist. Franklin No. 04AP-901, 2005-Ohio-2299, ¶ 12, quoting State v.
Wright, 8th Dist. Cuyahoga No. 83781, 2004-Ohio-4077, ¶ 18. It is true
that “an appeal challenging a felony conviction is not moot even if the entire
sentence has been satisfied before the matter is heard on appeal.” State
v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109 (1994), at the syllabus. But
this rule “does not apply if appellant is appealing solely on the issue of the
length of his sentence and not on the underlying conviction.” State v.
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Beamon, 11th Dist. Lake No. 2000-L-160, 2001 WL 1602656, * 1 (Dec. 14,
2001); e.g., Duff at ¶ 12 (quoting Beamon for the same proposition).
State v. Bogan, 2d Dist. Champaign No. 2012-CA-34, 2013-Ohio-1920, ¶ 5.
{¶ 13} Gullatte does not challenge his underlying guilty plea; his appeal relates
only to the length of his prison sentence. Because Gullatte has completely served that
sentence and is not on post-release control, there is no relief that we can provide.
Gullatte’s appeal is moot and, accordingly, it is dismissed.
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FROELICH, J. and HALL, J., concur.
Copies sent to:
Nathaniel R. Luken
Christopher B. Epley
Hon. Stephen Wolaver