772 N.E.2d 1231 | Ohio Ct. App. | 2002
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *283
{¶ 2} On September 14, 1998, appellant shot and killed his mother and father and shot and wounded his sister. On October 15, 1998, a Mahoning County Grand Jury returned an indictment against appellant setting forth three counts. Counts 1 and 2 were for the aggravated murder of his father and mother. Each count carried a specification of an aggravating circumstance that the offense was part of a course of conduct involving the purposeful killing of two or more persons by appellant. R.C.
{¶ 3} Appellant was appointed counsel and pled not guilty. Following several pretrial matters, appellant and plaintiff-appellee, State of Ohio, reached a plea agreement. The matter proceeded to a plea and sentencing hearing on March 21, 2002. In exchange for appellant's guilty plea to all three counts, appellee agreed to move for dismissal of the death penalty specifications and for the three firearm specifications to be merged into one. The trial court sustained appellee's motion and accepted appellant's guilty pleas. The court then sentenced appellant to twenty years to life imprisonment on each of the aggravated murder counts and ten years imprisonment on the attempted aggravated murder count, each term to be served consecutively. The court also sentenced appellant to three years imprisonment on the firearm specification. This appeal followed.
{¶ 4} Appellant's first assignment of error states:
{¶ 5} "THE TRIAL COURT ERRED WHEN IT IMPOSED THE SENTENCES FOR THE TWO COUNTS OF AGGRAVATED MURDER, WHICH VIOLATED R.C.
{¶ 6} Appellant argues that he was led to believe that he could be released after twenty years or that he may have been eligible for parole earlier than twenty years based on good time credit. In support, appellant points to a discrepancy between the trial court's judgment entry of sentence and the colloquy *284 that took place during the sentencing hearing. At the sentencing hearing the court sentenced appellant to "20 years to life" for each of the two aggravated murder counts. However, the court's judgment entry sentences appellant to "20 years in prison" for each of the two aggravated murder counts without any reference to "life." Appellant characterizes this as a twenty-year "definite" sentence which the sentencing statute for aggravated murder does not authorize. Based on his construction of this as a "definite" sentence, appellant argues that he was under the impression that he could be released after twenty years or that he would be eligible for parole after fourteen years, based on good time credit.
{¶ 7} Appellant attempts to analogize his case to State v. Farley
(July 15, 1997), 10th Dist. No. 96APA09-1247. In Farley, following his conviction by a jury for aggravated murder, the trial court sentenced the defendant to "life with no eligibility for parole in less than twenty years." On appeal, the Tenth District apparently construed this to mean that the trial court was attempting to require that the defendant serve at least twenty full years before becoming eligible for parole. At the time, R.C.
{¶ 8} Appellant's reliance on Farley is misplaced. R.C.
{¶ 9} "(A) If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of section
{¶ 10} "(1) [T]he trial court shall impose a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment on the offender."
{¶ 11} Concerning parole eligibility, R.C.
{¶ 12} "(A) [A] prisoner serving a sentence of imprisonment for life for an offense committed on or after July 1, 1996, is not entitled to any earned credit under section
{¶ 13} "* * * *285
{¶ 14} "(2) If a sentence of imprisonment for life with parole eligibility after serving twenty years of imprisonment was imposed pursuant to section
{¶ 15} Thus, under the present sentencing scheme for aggravated murder, appellant must serve twenty full years before becoming eligible for parole and appellant is not entitled to apply earned or "good time" credit to that twenty years. Appellant's argument that he was led to believe that he would be eligible for parole after fourteen years, based on good time credit, is not supported by the record.
{¶ 16} At the sentencing hearing, the trial court told appellant that he was being sentenced to twenty years to life. The court told appellant that he had to serve a "mandatory" fifty-three years (twenty for each of the aggravated murder charges, ten for the attempted aggravated murder charge, and three for the firearm specification) before becoming eligible for parole. The court also told appellant that the term would be served without good time credit. Each time appellant responded that he understood.
{¶ 17} In addition, the written guilty plea form which appellant signed mirrors the sentencing hearing colloquy. The form clearly states that the basic prison term for each of the aggravated murder counts is twenty years to life. The form also explains that the maximum term for each of the aggravated murder counts could be life. The form indicated that appellant understood that he would have to serve a mandatory fifty-three years, during which he would not be eligible for judicial release.
{¶ 18} Based on the record, at the time appellant entered his plea he clearly understood what, under the law, was the correct sentence. It was not until after the trial court filed its written judgment entry of sentence that appellant claims to have acquired some "retrospective" misunderstanding of his sentence. The problem remains however that the court's sentencing entry, technically speaking, does not accurately reflect the correct sentence. Therefore, the matter is remanded with instructions to the trial court to correct the sentencing entry as a clerical mistake pursuant to Crim.R. 36.1
{¶ 19} Accordingly, appellant's first assignment of error is without merit.
{¶ 20} Appellant's second assignment of error states:
{¶ 21} "THE TRIAL COURT ERRED BY ACCEPTING APPELLANT BAUMGARTNER'S GUILTY PLEAS BECAUSE HIS PLEAS WERE BASED UPON FAULTY AND INACCURATE INFORMATION *286
REGARDING HIS SENTENCE AND THE AVAILABILITY OF PAROLE. AS SUCH, THE APPELLANT'S GUILTY PLEAS WERE MADE INVOLUNTARILY, VIOLATING APPELLANT BAUMGARTNER'S DUE PROCESS RIGHTS UNDER THE
{¶ 22} Appellant's argument under this assignment of error is premised entirely on the same argument advanced under his first assignment of error concerning his allegation that he was misled about the sentence on the aggravated murder counts. As indicated under that assignment of error, appellant clearly understood the correct sentence. Therefore, that argument cannot serve as the basis for appellant's argument under this assignment of error. Nonetheless, we will proceed to undertake a general review of the voluntariness of appellant's plea.
{¶ 23} Prior to accepting a guilty plea by a defendant, a trial court is required to follow the dictates of Crim.R. 11(C) which directs the trial judge to inform the defendant of certain matters. State v.Johnson (1988),
{¶ 24} "(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 and doing all of the following:
{¶ 25} "(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.
{¶ 26} "(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.
{¶ 27} "(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.
{¶ 28} "(3) With respect to aggravated murder committed on and after January 1, 1974, the defendant shall plead separately to the charge and to each specification, if any. A plea of guilty or no contest to the charge waives the defendant's right to a jury trial, and before accepting a plea of guilty or no contest the court shall so advise the defendant and determine that the defendant understands the consequences of the plea. *287
{¶ 29} "If the indictment contains no specification, and a plea of guilty or no contest to the charge is accepted, the court shall impose the sentence provided by law."
{¶ 30} Although rigid adherence to Crim.R. 11 is preferred, a court need only substantially comply with the rule in order to effectuate a valid plea. State v. Nero (1990),
{¶ 31} A review of the transcript from the plea proceedings reveals that the trial court adequately complied with Crim.R. 11 so as to insure that appellant's plea was knowingly, voluntarily, and intelligently entered. After learning of the details of the plea agreement, the trial court judge proceeded to personally address appellant. The judge explained the nature of the charges, the minimum and maximum penalties involved, and that appellant would not be eligible for probation. The judge informed appellant of and determined that appellant understood the effect of his plea of guilty, and that the court upon acceptance of the plea could proceed with judgment and sentence. The judge informed appellant that by his plea he was waiving his rights to a jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. Throughout this discussion appellant repeatedly acknowledged that he understood what was being explained to him.
{¶ 32} In sum, under the totality of the circumstances, the trial court substantially complied with Crim.R. 11 and adequately insured that appellant knowingly, voluntarily, and intelligently entered his plea and subjectively understood the effect of the plea, the rights being waived and the consequences of such. In addition, appellant signed a written plea setting forth in detail the charges, the sentences for each, and all of the provisions contained in Crim.R. 11(C). While not sufficient by itself, appellant's written plea is just further proof that appellant knowingly, voluntarily, and intelligently entered his plea.
{¶ 33} Accordingly, appellant's second assignment of error is without merit.
{¶ 34} Appellant's third assignment of error states:
{¶ 35} "THE TRIAL COURT ERRED BY IMPOSING THE MAXIMUM SENTENCE OF TEN YEARS FOR A FIRST-DEGREE FELONY, IN VIOLATION OF R.C.
{¶ 36} The trial court sentenced appellant to ten years in prison for the attempted aggravated murder charge. Appellant argues that this sentence was incorrect because it was the maximum term and he was a first-time offender.
{¶ 37} Appellant pled guilty and was found guilty of attempted aggravated murder, in violation of R.C.
{¶ 38} Appellant contends that since he has not served a previous prison term, the trial court erred because it did not make the required findings pursuant to R.C.
{¶ 39} R.C.
{¶ 40} "Except as provided in division (C), (D)(1), (D)(2), (D)(3), or (G) of this section, in section
{¶ 41} R.C.
{¶ 42} "[T]he court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense * * * only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * *, and upon certain repeat violent offenders * * *."
{¶ 43} Although the trial court sentenced appellant to more than the minimum, R.C.
{¶ 44} This interpretation of R.C.
{¶ 45} In State v. Moore (Sept. 10, 2001), 12th Dist. No. CA2001-01-001, the Twelfth Appellate District agreed with the other districts that had addressed the issue. The Twelfth District also proceeded to reconcile that interpretation of those provisions with the Ohio Supreme Court's decision in State v. Edmonson (1999),
{¶ 46} "First, the precise issue before the court in Edmonson was whether the trial court was required to state its reasons for imposing more than the minimum sentence, and the syllabus reflects the court's holding on this issue only. Second, the Edmonson court found that the trial court failed to make the required findings under R.C.
{¶ 47} In addition to R.C.
{¶ 48} "(B)(2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances:
{¶ 49} "* * *
{¶ 50} "(d) If the sentence is for one offense and it imposes a prison term for the offense that is the maximum prison term allowed for the offense by division (A) of section
{¶ 51} In order to comply with R.C.
{¶ 52} In this case, the record fails to reveal any compliance with R.C.
{¶ 53} Accordingly, appellant's third assignment of error has merit.
{¶ 54} Appellant's fourth assignment of error states: *291
{¶ 55} "TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE
{¶ 56} Appellant's argument under this assignment of error is premised entirely on the same argument advanced under his first assignment of error concerning his allegation that he was misled about the sentence on the aggravated murder counts. As indicated under that assignment of error, appellant clearly understood the correct sentence. Therefore, that argument cannot serve as the basis for appellant's argument under this assignment of error. Nonetheless, we will proceed to undertake a general review of appellant's ineffectiveness claim.
{¶ 57} In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that prejudice arose from counsel's performance. Strickland v. Washington (1984),
{¶ 58} "Judicial scrutiny of counsel's performance is to be highly deferential, and reviewing courts must refrain from second-guessing the strategic decisions of trial counsel." State v. Carter (1995),
{¶ 59} Appellant's claim of ineffective assistance counsel fails for lack of prejudice. As indicated under appellant's first assignment of error, appellant clearly understood the correct sentence. This court reviewed a similar claim in State v. Lankford (June 30, 1999), 7th Dist. No. 96 BA 51. In that case, the defendant pled guilty to aggravated murder with a death penalty specification and was sentenced to life in prison with parole eligibility after serving thirty years of imprisonment. Subsequently, the defendant filed a motion to withdraw his plea arguing that he was led to believe that he would be eligible for good time credit. He thought that his maximum sentence was life with parole eligibility after thirty years minus good time credit which could result in parole eligibility after twenty years. The trial court denied his motion. On appeal, this *292 court noted that (like the law applicable in this case) the defendant was not entitled to good time credit and that he had to first serve thirty "full" years before becoming eligible for parole. In evaluating his ineffective assistance of counsel claim, this court observed:
{¶ 60} "Even if we believed appellant's assertion that he was not aware of the possibility that good time was inapplicable to him, the existence of prejudice is lacking. There is no indication that appellant would not have pled guilty if he knew that he would be ineligible for good time credit. * * * Appellant was aware that the maximum sentence he faced was death. By pleading guilty he increased his chances of receiving a life sentence with parole eligibility.
{¶ 61} "Appellant was twenty years old when he was sentenced. Obviously, he was hoping for a life sentence with a chance of parole after twenty years, but the three judge panel thought that such a sentence would demean the life of Ms. Redmond. It seems unlikely and appellant does not claim that he would have chosen to chance a death sentence if he knew that good time was not a possibility. Because good time credit estimations are mere speculation about sentence possibilities, appellant's misapplication of the good time credit statute does not result in an involuntary, unknowing, or manifestly unjust plea. See State v. Xie (1992),
{¶ 62} Accordingly, appellant's fourth assignment of error is without merit.
{¶ 63} Based on our finding of error under appellant's third assignment of error, the judgment of the trial court is reversed in part and the matter remanded for resentencing on the attempted aggravated murder conviction. Additionally, due to the clerical error concerning the trial court's judgment entry of sentence on the aggravated murder convictions (identified and explained under appellant's first assignment of error), this matter is remanded with instructions to the trial court to correct the clerical mistake pursuant to Crim.R. 36. The balance of the trial court's judgment is hereby affirmed.
Waite, J., and DeGenaro, J., concur.
