State v. Bishop

[Cite as State v. Bishop, 2017-Ohio-8332.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27496
:
v. : Trial Court Case No. 16-CR-3494
:
DUSTIN S. BISHOP : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of October, 2017.
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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
CARL BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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HALL, P.J.
{¶ 1} Dustin S. Bishop appeals from his conviction and sentence on one count of
drug possession, a fifth-degree felony.
{¶ 2} Bishop advances two assignments of error. First, he contends the trial court
erred in accepting a guilty plea that he did not enter knowingly, intelligently, and
voluntarily. Second, he claims the trial court abused its discretion in failing to address
factual inaccuracies in his presentence-investigation report as required by R.C.
2951.03(B)(5).
{¶ 3} The record reflects that Bishop pled guilty to drug possession in exchange
for dismissal of a misdemeanor drug-paraphernalia charge. Following a pre-sentence
investigation, the trial court imposed a nine-month prison sentence for the drug
possession. Because Bishop was on post-release control (PRC) when he committed the
drug offense, the trial court also revoked PRC and imposed a consecutive one-year prison
sentence for the PRC violation.
{¶ 4} In his first assignment of error, Bishop challenges the validity of his guilty
plea. Specifically, he contends the trial court never advised him that he faced a
consecutive prison term if it revoked his existing PRC. In support, Bishop relies on State
v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, and State v. Landgraf, 2d
Dist. Clark No. 2014 CA 12, 2014-Ohio-5448.
{¶ 5} In Branham, the defendant signed a plea form advising him that his guilty
plea could result in revocation of his PRC and that any new sentence imposed for the
PRC violation could be imposed consecutively. At the defendant’s plea hearing in
Branham, the trial court simply told him that he could be sentenced for the PRC violation.
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Branham at ¶ 11-14. On appeal, this court vacated the plea and reversed, holding that
the trial court was required to inform the defendant that if it revoked PRC, a consecutive
sentence for the PRC violation was mandatory under R.C. 2929.141(A)(1).
{¶ 6} In Landgraf, “the trial court did not inquire at the plea hearing whether [the
defendant] was on post-release control at the time of his offense, and the trial court did
not address any of the consequences that [the defendant] faced under R.C. 2929.141 if
[he] were to plead guilty to a new felony.” Landgraf at ¶ 22. On appeal, this court held that
Crim.R. 11 obligated the trial court to advise the defendant that it could terminate his PRC,
that it could impose a prison sentence for the PRC violation, and that any prison sentence
it decided to impose for the PRC violation would be required to be served consecutively.
Id. at ¶ 23. Although the plea form in Landgraf addressed the consequences of the
defendant pleading guilty to a felony committed while on PRC, this court found the form
insufficient because it stated that any prison term imposed for the PRC violation could be
imposed consecutively, not that it was required to be imposed consecutively. Id. at ¶ 24.
{¶ 7} In the present case, the State concedes that “Branham and Landgraf directly
support Bishop’s first assignment of error[.]” (Appellee’s brief at 7). We agree. In fact, the
circumstances of the present case indicate less information about consecutive PRC
sentencing was provided than the circumstances presented in either of the foregoing
cases. Unlike Branham, the trial court here did not mention Bishop being on PRC, or the
potential for revocation of his existing PRC, or any sentencing implications of revoking his
existing PRC. Unlike Landgraf and Branham, the plea form here did not mention PRC or
any consequences of Bishop pleading guilty while on PRC for a prior offense.
Consequently, we conclude, based on the authority of Branham and Landgraf, that the
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trial court committed prejudicial error in failing to advise Bishop, at the time of his plea,
that any additional sentence imposed for his current PRC violation must be served
consecutively. See Landgraf at ¶ 29 (Hall, J., concurring) (“That is the law in this district,
and the doctrine of stare decisis dictates adherence to it.”). Although the State urges us
to “overrule” the prior panel opinions in Branham and Landgraf, we decline to do so.
Bishop’s first assignment of error is sustained.
{¶ 8} In his second assignment of error, Bishop contends the trial court erred in
failing to address alleged factual inaccuracies in his PSI report at sentencing. In light of
our determination above that Bishop’s plea must be vacated, this assignment of error is
overruled as moot.
{¶ 9} Having sustained Bishop’s first assignment of error, we hereby reverse the
trial court’s judgment, vacate his guilty plea, and remand the matter for further
proceedings consistent with this opinion.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck
Michael J. Scarpelli
Carl Bryan
Hon. Timothy N. O’Connell