State v. Abernathy

[Cite as State v. Abernathy, 2018-Ohio-4414.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107123
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EZEKIEL Z. ABERNATHY
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-617529-B
BEFORE: Keough, J., E.A. Gallagher, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 1, 2018
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
By: David Martin King
Assistant Public Defender
310 Lakeside Ave., Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kevin E. Bringman
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} In 2017, defendant-appellant, Ezekiel Z. Abernathy, was named in a six-count
indictment charging him with two counts of failure to comply in violation of R.C. 2921.331(B),
two counts of robbery, one count of kidnapping, and one count of grand theft. He subsequently
entered into a plea agreement — pleading guilty to one count each of robbery and failure to
comply. During the plea agreement, the trial court advised Abernathy of the penalties associated
with robbery and failure to comply, but failed to advise him that if a prison term was imposed on
the failure to comply offense, R.C. 2921.331(B) required that the prison term be served
consecutive to any other prison sentence imposed.
{¶2} At sentencing, the trial court initially imposed a concurrent sentence — 36 months
on the failure to comply offense and seven years on the robbery charge. The state subsequently
advised the court that R.C. 2921.331 mandates that the failure to comply sentence be served
consecutively to any other prison term. Accordingly, the trial court modified its sentence and
ordered Abernathy to serve one year for the failure to comply offense and six years for robbery,
with the sentences ordered to run consecutively, for a total prison term of seven years.
{¶3} Abernathy appeals his convictions, contending that he did not enter a knowing,
intelligent, and voluntary guilty plea because the trial court failed to advise him of the maximum
penalty he faced. The state concedes the error, and we agree.
{¶4} When consecutive sentences are mandatory, the consecutive sentences directly affect
the length of the sentence, thus becoming a crucial component of what constitutes the “maximum
penalty involved” under Crim.R. 11(C)(2)(a). State v. Norman, 8th Dist. Cuyahoga No. 91302,
2009-Ohio-4044, ¶ 7, citing State v. Ricks, 53 Ohio App. 2d 244, 246-247, 372 N.E.2d 1369 (9th
Dist.1977). The failure to advise a defendant that a sentence must be served consecutively does
not amount to substantial compliance with Crim.R. 11(C)(2). See Norman.
{¶5} In this case, the trial court never informed Abernathy during the plea hearing that
any prison sentence imposed for a violation of R.C. 2921.331 must be served consecutively to
any other sentence. Accordingly, the trial court failed to substantially comply with Crim.R. 11,
thereby preventing Abernathy from entering a knowing, intelligent, and voluntary plea. See
State v. Anderson, 8th Dist. Cuyahoga No. 94598, 2010-Ohio-5487. The assignment of error is
sustained.
{¶6} Judgment vacated, and case remanded to the trial court for further proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN A. GALLAGHER, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR