State v. BalidbidState v. Balidbid
Case Information
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[Cite as
State v. Balidbid
,
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24511 v. : T.C. NO. 10 CR 3244 BILLY BALIDBID : (Criminal appeal from
Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . .
O P I N I O N Rendered on the 30th day of March , 2012. . . . . . . . . . .
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee WILLIAM A. SHIRA, III, Atty. Reg. No. 0005472, 432 Silvercrest Terrace, Dayton, Ohio 45440
Attorney for Defendant-Appellant
and
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
. . . . . . . . . .
FROELICH, J.
{¶ 1}
Billy Balidbid pled guilty to rape by force or threat of force, in
violation of
{¶ 2}
Balidbid appealed from his convictions. He claimed that his plea was not
knowing, intelligent, and voluntary, because he was improperly informed that he was
eligible for community control. Balidbid died on November 3, 2011, while in the custody
of the Ohio Department of Rehabilitation and Correction. We have granted the Stаte’s
motion to substitute Balidbid’s appellate counsel, William A. Shira, III, as Balidbid’s
representative in this appeal.
the matter will be remanded to thе trial court. In determining whether to accept a defendant’s guilty plea, the trial court
must determine whether the defendant knowingly, intelligently, and voluntarily entered the
plea.
State v. Johnson
, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), at syllabus. “If a
defendant’s guilty pleа is not knowing and voluntary, it has been obtained in violation of due
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process and is void.”
State v. Brown
, 2d Dist. Montgomery Nos. 24520 & 24705,
making the plea voluntarily, with an understanding of the nature оf the charges and the
maximum penalty, and, if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions; (b) inform the defendant of and determine
thаt 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 sentencing; and (c)
inform thе defendant and determine that he understands that, by entering the plea, the
defendant is waiving the rights to a jury trial, to confront witnesses against him, to have
compulsory process for obtaining witnesses, and to require thе state to prove his guilt
beyond a reasonable doubt at a trial at which he cannot be compelled to testify against
himself.
State v. Brown
, 2d Dist. Montgomery No. 21896,
challenges his guilty plea on the bаsis that it was not knowingly, intelligently, and
voluntarily made generally must show a prejudicial effect.
State v. Veney
, 120 Ohio St.3d
176,
THE COURT: Okay. Now, each of those [charges] is a felony of the first degree. As such, they carry mаximum potential penalties of a $20,000 fine on each and three, four, five, six, seven, eight, nine, or 10 years in prison on each for a total of 20 years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Now – is there a technical eligibility for community control in this case?
[THE PROSECUTOR:] There is.
THE COURT: Okay. Now, technically you’re eligible for community control sanctions or probation. Do you understand that? THE DEFENDANT: Yes.
THE COURT: If you were to get that, that could last for as long as five years and could involve six months in jail. Do you understand that? THE DEFENDANT: Yes.
THE COURT: Okay. And nobody’s promised you that if you plead today, that you would get community control, have they?
THE DEFENDANT: Yes.
THE COURT: Did anybody promise you that if you plead today, you’ll get probatiоn?
THE DEFENDANT: (Shaking head.)
THE COURT: Okay. You got to say it out loud, sir.
THE DEFENDANT: No, sir. After entering pleas of guilty to rape and kidnapping, Balidbid signed a Waiver and Plea form, in open court, which also indicated that he was eligible to be sentenced to community control. At the conclusion of the plea hearing, the trial court asked defense counsel and the prosecutor if “either of you know about – there’s no felony one or two convictions that – for this – that would make it a mandatory prison time.” Both defense counsel and the prosecutor responded, “No, Your Honor.” When a defendant on whom a mandatory prison sentence must be imposed
enters a plea of guilty оr no contest, the court must, before accepting the plea, determine the
defendant's understanding that the defendant is subject to a mandatory sentence and that the
mandatory sentence rendеrs the defendant ineligible for probation or community control
sanctions.
a mandatory prison term, it expressly told him that he was eligible fоr community control.
This was reenforced by defense counsel and the prosecutor at the conclusion of the hearing,
both of whom told the court that Balidbid was not subject to a mandatory sentence, and by
the plea form, which was not corrected by counsel or the trial court. The plea colloquy not
only failed to substantially comply with
such an understanding would not constitute substantial compliance, given the mandatory
nature of his sentence. In
State v. Howard
, 2d Dist. Champaign No. 06-CA-29,
The effect of Howard’s plea was that he would be subject to a
mandatory prison term that would render him ineligible for the imposition of
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community contrоl sanctions. He could not have appreciated this effect of
his plea, because he was misadvised by the trial court that he would be
eligible for the imposition of community control sanctions. Inеligibility for
(as opposed to the unlikelihood of) the imposition of community control
sanctions is deemed to be a sufficiently important effect of a plea of guilty or
no contest that it is specifiсally incorporated in
We conclude that the trial court’s having advised Howard that the imposition of community control sanctions was unlikely in his case did not satisfy the requirement, under the Rule, that the trial court determine that Howard understood that he was not eligiblе for the imposition of community control sanctions, especially where the trial court affirmatively mis-advised Howard that he was eligible for the imposition of community control sanctions. Howard at ¶ 25-26. The State аrgues that Balidbid nevertheless has failed to establish that he
was prejudiced by the trial court’s plea colloquy regarding community control. The State emphasizes that the court told Balidbid that he was “technically” eligible for community control and that Balidbid acknowledged that he had not been promised community control in exchange for his plea. The State further notes that Balidbid told the presentence invеstigator that he would live with his mother after his release from prison, and defense *8 counsel’s sentencing memorandum did not advocate for community control. The State summarizes its argument as follows: “Balidbid never had any expectation of returning to the community. He knew he was going to prison. That is evident from his statements at the plea hearing, his failure to ask questions at the hearing, his statements during the pre-sentence invеstigation, and the statements of his counsel in the sentencing memorandum and at sentencing.” Even assuming an analysis of prejudice were required in this case, we cannot
accept the State’s represеntation of Balidbad’s expectations. Balidbid did not make any statements at the plea hearing that expressed an understanding that he would be going to prison. His acknowledgment that he had not been promised community control in exchange for his plea was simply a statement that he was not promised community control; it was not an admission that he understood that he would be going to prison and that community contrоl would not be imposed. And, although Balidbid told the presentence investigator that he would live with his mother “once he is released from prison,” there is nothing to support the conclusion that, at the time of his plеa, he understood that the court would be imposing a prison sentence. The trial court did not overstate the penalty that Balidbid could have received; to the contrary, it misrepresented that he was eligible to receive a more lenient sanction when he was not. It may be that everyone in the courtroom “knew” that Balidbad was going
to be sentenced to prison. One of the reasons behind the mandatory language of
. . . . . . . . . .
GRADY, P.J. and FAIN, J., concur.
Copies mailed to:
Kirsten A. Brandt
William A. Shira, III
Robert Alan Brenner
Hon. Gregory F. Singer