THE STATE OF OHIO, APPELLANT, v. BISHOP, APPELLEE.
Nos. 2017-1715 and 2017-1716
Supreme Court of Ohio
December 21, 2018
2018-Ohio-5132
Criminal law—Plea hearings—Crim.R. 11(C)(2)(A)—A trial court must advise a criminal defendant on postrelease control for a prior felony, during plea hearing in a new felony case, of trial court’s authority under R.C. 2929.141 to terminate defendant’s existing postrelease control and to impose a consecutive prison sentence for postrelease-control violation—Defendant-appellee need not show prejudice because trial court completely failed to inform him that he could receive a consecutive prison sentence under R.C. 2929.141(A)—Court of appeals’ judgment vacating guilty plea and remanding cause affirmed.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2018-OHIO-5132
THE STATE OF OHIO, APPELLANT, v. BISHOP, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Bishop, Slip Opinion No. 2018-Ohio-5132.]
Criminal law—Plea hearings—
(Nos. 2017-1715 and 2017-1716—Submitted July 18, 2018—Decided December 21, 2018.)
APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County, No. 27496, 2017-Ohio-8332.
{¶ 1} We are asked to resolve a certified conflict between judgments of the Second District Court of Appeals and the Fifth and Eighth District Courts of Appeals on the following question: “[w]hether a criminal defendant on [postrelease control] for a prior felony must be advised, during his plea hearing in a new felony case, of the trial court‘s ability under
I. Facts and Procedural History
{¶ 2} While on postrelease control for a prior felony conviction, appellee, Dustin Bishop, was indicted on one count of possession of heroin, a fifth-degree felony, and one count of possession of drug paraphernalia, a misdemeanor.
{¶ 3} Bishop pleaded guilty to the possession count, and the state dismissed the drug-paraphernalia count. At Bishop’s plea hearing, the trial court informed Bishop that the court could place him on postrelease control for the possession offense. It also informed him that if he committed a new felony while on that postrelease control, the court could sentence him to serve one year in prison or the time remaining on his postrelease control, whichever was longer. The trial court did not inform Bishop that once he pleaded guilty to the possession offense, the court would have the authority under
{¶ 5} Bishop appealed to the Second District Court of Appeals, raising two assignments of error. Bishop first argued that he had not knowingly, intelligently, and voluntarily pleaded guilty to the possession offense because the trial court had not informed him of its authority under
{¶ 6} The appellate court, upon the state’s motion, certified that its decision conflicted with the Fifth District Court of Appeals’ decision in State v. Hicks, 5th Dist. Delaware No. 09CAA090088, 2010-Ohio-2985, and the Eighth District Court of Appeals’ decision in State v. Dotson, 8th Dist. Cuyahoga No. 101911, 2015-Ohio-2392. The state filed a notice of certified conflict and a jurisdictional appeal in this court. We determined that a conflict exists and consolidated the conflict case with the state’s jurisdictional appeal. 152 Ohio St.3d 1404, 2018-Ohio-723, 92 N.E.3d 877.
{¶ 7} According to the state’s merit brief, on January 29, 2018—after the state had appealed the court of appeals’ judgment to this court but prior to our accepting jurisdiction—the trial court accepted Bishop’s new guilty plea to the same possession offense and sentenced him to time served. We must address whether this case is moot.
{¶ 8} Nothing in the record before us confirms that the trial court did, in fact, accept a new guilty plea. But even if the court did accept a new plea, we have held that we may resolve a matter, even if it is moot with respect to the parties, when it involves an issue of great public or general interest that will outlive the instant controversy. See, e.g., Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 31, 505 N.E.2d 966 (1987). We have recognized this exception to the mootness doctrine in other certified-conflict cases and held that it was appropriate to resolve the question of law presented. State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 4, fn. 1; State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 5. For this reason, we proceed to consider the certified-conflict question.
III. Analysis
{¶ 9} Turning to the merits, we confront a conflict between judgments of the Second District Court of Appeals and the Fifth and Eighth District Courts of Appeals regarding an interpretation of the requirements of
{¶ 10} A criminal defendant’s choice to enter a guilty plea is a serious decision. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Due process requires that a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant’s plea is invalid. Id.
{¶ 11}
{¶ 12} Most relevant here,
(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.
{¶ 13} We must also consider the specifics of
A. Crim.R. 11(C)(2)(a)—The “maximum penalty involved” includes the potential R.C. 2929.141(A) sentence
{¶ 14} At issue here is the impact of
{¶ 15}
{¶ 16} First, what happened to the defendant in Johnson is a far cry from what happened to Bishop. Johnson was told of his potential sentences for each individual offense; the trial court just failed to tell Johnson the sentences for each offense could run consecutively. Here, the trial court told Bishop that he could receive a maximum sentence of 12 months for his fifth-degree-felony conviction. But the trial court did not tell Bishop that he was also subject to a separate consecutive 12-month sentence for his postrelease-control violation.
{¶ 17} Second, and more importantly, we must look to the plain language of the statutes involved.
B. Bishop need not show prejudice
{¶ 18} Finally, Bishop need not show that the trial court’s error prejudiced him—i.e., that he would not have entered the guilty plea if he had known that the trial court could terminate his existing postrelease control and convert it into additional prison time, see State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977).
{¶ 19} A trial court need only substantially comply with the nonconstitutional advisements listed in
{¶ 20} Here, the trial court completely failed to inform Bishop that a consecutive prison sentence under
IV. Conclusion
{¶ 21} We conclude that
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, J., concur.
DEWINE, J., concurs in judgment only, with an opinion.
KENNEDY, J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion joined by BROWN, J.
SUSAN D. BROWN, J., of the Tenth District Court of Appeals, sitting for DEGENARO, J.
THE STATE OF OHIO, APPELLANT, v. BISHOP, APPELLEE.
Nos. 2017-1715 and 2017-1716
Supreme Court of Ohio
December 21, 2018
2018-Ohio-5132
{¶ 22} I agree that the judgment of the court of appeals should be affirmed. The potential sentence for a postrelease-control violation is part of the “maximum penalty involved” when a defendant pleads guilty to a new felony. I write separately, however, because I disagree with the lead opinion’s dictum about mootness.
{¶ 23} There is no question that this case is not moot. As the lead opinion notes, there is nothing in the record to confirm that the trial court accepted Dustin Bishop’s guilty plea following the state’s notice of appeal to this court. And even if the trial court did act, its order would be void because it acted without jurisdiction.
{¶ 24} In its decision on October 27, 2017, the court of appeals remanded this case for resentencing by the trial court. The state filed a timely notice of appeal on December 7, 2017. According to the state’s merit brief, before this court had accepted jurisdiction, the trial court, acting on the remand order, resentenced Dustin Bishop. But once the notice of appeal was filed in this court, the trial court was divested of jurisdiction. We were confronted with a similar situation in State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, in which, after the state filed a notice of appeal but before this court accepted jurisdiction, the trial acted on a remand order to resentence a defendant. The defendant moved to dismiss the state’s appeal as moot. This court denied the motion:
“An appeal is perfected upon the filing of a written notice of appeal. Once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal.” Thus, the trial court in this case had no jurisdiction to resentence the defendant once the state had filed its notice of appeal.
(Citations omitted.) Id. at ¶ 8, quoting In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9. Likewise, the trial court here had no jurisdiction to resentence Bishop. Therefore, even if the trial court did act, its order would be void and the state’s appeal would not be moot.
{¶ 25} Because the state’s appeal is not moot, there is no need to digress into a discussion of the propriety of considering certified-conflict questions in moot cases. But because the lead opinion takes that path, I write to explain why I believe its dictum is misguided.
{¶ 26} The Ohio Constitution vests the “judicial power of the state” in “a supreme court, courts of appeals, courts of common pleas and divisions thereof, and such other courts inferior to the supreme court as may from time to time be established by law.”
{¶ 27} We have recognized exceptions to this principle and have decided cases that were moot after having found that the issues presented were capable of repetition yet evading review. See Adkins v. McFaul, 76 Ohio St.3d 350, 350-351, 667 N.E.2d 1171 (1996). But there is no reason to believe that the issue in this case—plea-hearing requirements for defendants currently on postrelease control—will evade review. Nor does the fact that this case raises a question of public or great general interest militate against applying the mootness doctrine. By definition, many cases we accept on jurisdictional appeal involve questions of “public or great general interest pursuant to Article IV, Section 2(B)(2)(e) of the Ohio Constitution.”
{¶ 28} Despite the constitutional provision tying our authority to the judicial power, the justices joining the lead opinion apparently believe that different rules apply to appeals that come to us as certified conflicts. But like our review of jurisdictional appeals, our review of certified-conflict questions depends on the existence of a case. If a court of appeals finds that its judgment conflicts with that of another court, it certifies “the record of the case to the supreme court for review and final determination.” (Emphasis added.)
{¶ 29} But all of this discussion is unnecessarily advisory. This case is not moot. We should limit our discussion to the controversy before us.
THE STATE OF OHIO, APPELLANT, v. BISHOP, APPELLEE.
Nos. 2017-1715 and 2017-1716
Supreme Court of Ohio
December 21, 2018
2018-Ohio-5132
{¶ 30} When an offender violates the terms of his or her postrelease control by committing a new felony, the offender may be prosecuted for the new felony and judicially sanctioned with a prison term for the postrelease-control violation.
{¶ 31} A trial court may accept a plea only if it is knowingly, intelligently, and voluntarily made, and relevant here,
Facts and Procedural History
{¶ 32} Appellee, Dustin Bishop, was indicted on two counts: possession of heroin, a fifth-degree felony, and possession of drug paraphernalia, a misdemeanor. Appellant, the state of Ohio, and Bishop entered into a plea agreement in which he agreed to plead guilty to heroin possession in exchange for the dismissal of the drug-paraphernalia count.
{¶ 33} At the plea hearing, the trial court informed Bishop that the fifth-degree felony count of heroin possession carried a maximum penalty of 12 months in prison and a $2,500 fine. It also advised him that he could be placed on
Upon finishing any prison sentence, you may be placed on what’s called post-release control or PRC wherein you’d be under the supervision of the parole board for three years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: If you violate any of the terms of your release from prison or you violate any law while you’re under the supervision of the parole board then the parole board can add onto your sentence nine months for each individual violation up to a total of 50 percent of the stated prison term for multiple violations.
If your violation is a felony, you could receive from the Court a prison term of either one year or whatever time is remaining on the post-release control, whichever is the longer time, plus you could be prosecuted and sentenced for the new felony, itself.
Also, for any violations, the parole board could extend the length of the post-release control or impose other more restrictive sanctions upon you.
I mentioned there, I believe, three items without giving you a chance to respond right away. Do you understand all that?
THE DEFENDANT: Yes.
(Capitalization sic.)
{¶ 34} Neither Bishop nor defense counsel informed the trial court that Bishop was on postrelease control when he committed the new felony, and there was no objection to the court’s failure to inform Bishop that
{¶ 35} The presentence-investigation report contains the earliest mention in the record of the fact that Bishop was on postrelease control when he committed the new felony. At sentencing, the trial court noted Bishop’s significant criminal history (including 14 prior felony convictions) and that he was on postrelease control at the time of his newest offense, and it imposed a 12-month sentence to be served consecutively with a 9-month sentence for heroin possession. Neither Bishop nor defense counsel objected, and Bishop did not move to withdraw his plea due to a surprise at sentencing.
{¶ 36} Rather, Bishop challenged the validity of his plea for the first time on appeal, asserting that he had not knowingly, intelligently, and voluntarily entered the plea because the trial court had not informed him that
{¶ 37} The sole issue presented in this case is whether
{¶ 38}
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:
(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.
{¶ 39} “To interpret court rules, this court applies general principles of statutory construction. * * * Therefore, we must read undefined words or phrases in context and then construe them according to rules of grammar and common usage.” State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. We must give effect to the words used in the rule, refraining from inserting or deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 53, 524 N.E.2d 441 (1988). If the language of a rule is plain and unambiguous and conveys a clear and definite meaning, then there is no need for this court to resort to the rules of interpretation; rather, we apply the rule as written. State ex rel. Potts v. Comm. on Continuing Legal Edn., 93 Ohio St.3d 452, 456, 755 N.E.2d 886 (2001).
{¶ 40} The language of
{¶ 41} A “plea” is “[a]n accused person’s response of ‘guilty,’ ‘not guilty,’ or ‘no contest’ to a criminal charge.” Black’s Law Dictionary 1337 (10th Ed.2014). A “charge” is “[a] formal accusation of an offense as a preliminary step to prosecution.” Id. at 282. The word “maximum penalty” refers to “[t]he heaviest punishment permitted by law.” Id. at 1314.
{¶ 42} Accordingly, the plea is the defendant’s response to a charge filed alleging an offense, and the maximum penalty is the heaviest punishment prescribed by statute for that offense.
{¶ 43} Our decision in State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), supports this plain reading of the rule. In that case, the accused had agreed to plead guilty to aggravated robbery, robbery, and forgery, and in its plea colloquy, the trial court informed him of the maximum possible penalty for each individual charge without advising him that the court had authority to run the sentences consecutively. Id. at 130-131. The accused pleaded guilty, the court accepted the pleas, and it imposed consecutive sentences. Id. at 131. The Second District Court of Appeals reversed and invalidated the pleas, holding that the trial court had failed to advise the accused “as to the maximum sentence possible for such violations because the trial court failed to inform him that the sentences may be imposed to run consecutively, rather than concurrently.” Id. at 131-132.
{¶ 44} We reversed, concluding that the trial court’s application of
Upon its face the rule speaks in the singular. The term “the charge” indicates a single and individual criminal charge. So, too, does “the plea” refer to “a plea” which the court “shall not accept” until the dictates of the rule have been observed. Consequently, the term “the maximum penalty” which is required to be explained is also to be understood as referring to a single penalty. In the context of “the plea” to “the charge,” the reasonable interpretation of the text is that “the maximum penalty” is for the single crime for which “the plea” is offered. It would seem to be beyond a reasonable interpretation to suggest that the rule refers cumulatively to the total of all sentences received for all charges which a criminal defendant may answer in a single proceeding.
(Emphasis added.) Johnson at 133.
{¶ 45} We further reasoned that
Crim.R. 11 applies only to the entry and acceptance of the plea. It has no relevance to the exercise of the trial court’s sentencing discretion at that stage other than directing the court to proceed with or impose sentencing. Thus, it can hardly be said that the rule imposes upon a trial judge a duty to explain what particular matters he may, at a later date, determine are significant to the exercise of his discretion. Moreover, explaining definitions of basic terms and calculating potential sentences are matters which are within the purview of legal representation, and of which even minimally competent trial counsel are capable.
{¶ 46} Johnson therefore stands for the proposition that the trial court is required to inform the accused of the maximum penalty for each charged offense that will be resolved by the plea.
{¶ 47} The lead opinion correctly notes that since we decided Johnson,
{¶ 48} Importantly, the judicial sanction authorized by
{¶ 49} In 1996, the General Assembly enacted the postrelease-control statute as part of a comprehensive revision of Ohio’s criminal sentencing scheme, S.B. 2, and its companion bill, Am.Sub.S.B. No. 269, 146 Ohio Laws, Part VI, 10752 (“S.B. 269“). As we explained in Woods v. Telb, 89 Ohio St.3d 504, 508, 733 N.E.2d 1103 (2000), our first decision to address the postrelease-control statute, S.B. 2 and S.B. 269 “chang[ed] the landscape of Ohio’s sentencing system” to provide “truth in sentencing,” primarily accomplished by eliminating both indefinite sentences and parole and replacing them with definite sentences and postrelease control. The legislature removed the Adult Parole Board’s authority to determine how long an offender stays in prison and instead provided that offenders are subject to mandatory and discretionary terms of postrelease control that commence upon release from imprisonment.
{¶ 50} Postrelease control is a “period of supervision by the adult parole authority after a prisoner’s release from imprisonment that includes one or more post-release control sanctions imposed under section 2967.28 of the Revised Code.”
{¶ 51} An offender who is released on postrelease control is under the general jurisdiction of the Adult Parole Authority and supervised by parole officers as if the offender had been placed on parole.
{¶ 52} However, if an offender violates the terms of postrelease control by committing a new felony, upon the conviction or plea of guilty for that offense, the court may terminate postrelease control and impose either community-control sanctions or a prison term for the postrelease-control violation for the greater of 12 months or the time remaining to be served on postrelease control.
{¶ 53}
{¶ 54} In Woods, we rejected the argument that permitting the Adult Parole Board to impose postrelease control on offenders violated the separation-of-powers doctrine by allowing the executive branch to exercise judicial authority, exactly because “post-release control is part of the original judicially imposed sentence” and because postrelease-control sanctions are “aimed at behavior modification in the attempt to reintegrate the offender safely into the community, not mere punishment for an additional crime.” 89 Ohio St.3d at 512, 733 N.E.2d 1103.
{¶ 55} Similarly, in State v. Martello, we held that it does not offend the double-jeopardy protections of the Ohio and United States Constitutions to
prosecute an offender who was sanctioned for violating the terms of postrelease control for the same conduct that was the reason for the sanction. 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 1. We explained that “the General Assembly has indicated its clear intent that the prison term imposed for the violation of postrelease control is a reinstatement of part of the original sentence for violating the conditions of supervision, and is not meant to be a separate criminal punishment.” Id. at ¶ 19. We continued: “[J]eopardy does not attach when a defendant receives a term of incarceration for the violation of conditions of postrelease control. Such a term of incarceration is attributable to the original sentence and is not a ‘criminal punishment’ for Double Jeopardy Clause purposes * * *.” Id. at ¶ 26.{¶ 56} Accordingly, as the statutory scheme demonstrates, a violation of the terms of postrelease control is not separately charged when the accused commits a new felony, and it is not part of the charge resolved by the accused‘s guilty plea resolving the new felony charged in the case. Nor is any sanction imposed for the postrelease-control violation part of the “maximum penalty involved,” because it is not part of a new sentence that may be imposed for a new felony but, rather, is part of the original sentence that imposed postrelease control.
{¶ 57} Nonetheless, the lead opinion reasons that a prison term imposed pursuant to
{¶ 58} And as the lead opinion notes, at the time of the plea, there was only a “potential
{¶ 59} Lastly, the lead opinion fails to appreciate the logical consequences of this court‘s judgment today. Its reasoning applies equally to an offender who violates community-control sanctions by committing a new offense. Although
{¶ 60} More fundamentally, for more than a decade, we have grappled with case after case addressing the consequences of a trial court‘s failure to properly impose postrelease control, debating whether the resulting sentence is void or voidable. See State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 23 (holding that a trial court‘s failure to properly impose a statutorily mandated term of postrelease control renders the sentence contrary to law and void); State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶ 12-13 (explaining that a void sentence is a nullity and a de novo sentencing hearing therefore is required to correct it); State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 17, 36 (overruling Bezak, holding that the improper imposition of postrelease control does not affect the valid parts of the conviction and sentence, and stating that resentencing is limited to properly imposing postrelease control); State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 12 (allowing an offender to challenge an escape conviction by collaterally attacking the imposition of postrelease control); State v. Gordon, 153 Ohio St.3d 601, 2018-Ohio-1975, 109 N.E.3d 1201, ¶ 12 (
{¶ 61} This court‘s judgment today sparks a new debate by creating a new form of postrelease-control error on par with these cases. Courts of this state have held that a guilty plea that was not knowing, intelligent, and voluntary was obtained in violation of due process and is “void.” E.g., State v. Gheen, 7th Dist. Belmont No. 17 BE 0023, 2018-Ohio-1924, ¶ 9, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Miller, 8th Dist. Cuyahoga No. 102848, 2015-Ohio-4688, ¶ 5; State v. Davis, 2d Dist. Montgomery No. 24927, 2012-Ohio-4745, ¶ 4. According to the lead opinion, an accused‘s plea is not knowing, intelligent, and voluntary if he or she is not informed that the trial court can impose a prison term for a violation of the terms of postrelease control when the accused pleads guilty to a felony that also constitutes the violation. Such a plea is presumed invalid, and no showing of prejudice is needed; that is, it is void.
{¶ 62} However, during the plea hearing, the trial court generally will not know that an offender was on postrelease control at the time of the offense unless the offender or defense counsel volunteers that information; for example, that fact does not appear in this record until the filing of the presentence-investigation report. But if the court does not know that the
Conclusion
{¶ 63} The General Assembly has enacted a clear-cut statutory scheme of supervision of offenders reentering society after a term of incarceration. It made policy choices by providing that a violation of postrelease control is not a crime and by granting trial courts discretion in deciding whether to impose a prison term as a sanction for that violation. Rather than second-guessing these policy choices
{¶ 64}
{¶ 65} For these reasons, I would answer the certified question in the negative and reverse the judgment of the Second District Court of Appeals.
FISCHER, J., dissenting.
{¶ 66} I respectfully dissent. When a defendant pleads guilty to a new felony offense while on postrelease control for a prior felony,
I. This case is not moot
{¶ 67} As the lead opinion notes, there is nothing in the record before this court to show that after the court of appeals’ remand of the case, appellee, Dustin Bishop, entered a new guilty plea to possession of heroin and that the trial court accepted this new guilty plea and resentenced him. Because the record before us indicates that there is a live controversy, this case is not moot.
II. Crim.R. 11(C)(2)(a) does not require advisement of a trial court‘s R.C. 2929.141(A) discretionary authority
{¶ 69} The lead opinion contains the conclusion that “[b]y any fair reading of
{¶ 70} ”
[d]etermining 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.
(Emphasis added.)
{¶ 72} This court, in an opinion that analyzed a prior version of
{¶ 73} While we did interpret a prior version of
{¶ 74} A plea of guilty is a complete admission of the defendant‘s guilt of the offense or offenses to which the plea is entered.
{¶ 75} The judicial sanction that the trial court could impose for a defendant‘s violation of the terms of his or her postrelease control is not a part of the penalty for the offense to which the plea is entered; instead, it is a potential sanction for the defendant‘s postrelease-control violation. The defendant‘s existing postrelease control is a part of his or her prior felony sentence, see Woods v. Telb, 89 Ohio St.3d 504, 512, 733 N.E.2d 1103 (2000); State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 34 (Lanzinger, J., dissenting), not the sentence for the offense to which the defendant is later pleading guilty. Therefore, a defendant‘s punishment for violating the terms of postrelease control, a part of the defendant‘s prior sentence, cannot be considered a part of “the maximum penalty involved” for the criminal offense to which the current plea is entered.
{¶ 76} This conclusion is supported by the language of
{¶ 78} In order for the trial court to accept a guilty plea to a charge of possession of heroin in violation of
THE COURT: The charge you‘re pleading guilty to is classified as a felony of the fifth degree. With that classification, the maximum penalty in terms of incarceration is 12 months in prison. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: The maximum penalty in terms of a fine is $2,500. Do you understand that?
THE DEFENDANT: Yes.
(Capitalization sic.) The trial court informed Bishop of “the maximum penalty involved” for a possession-of-heroin offense.
{¶ 79} I would hold that the trial court complied with
III. When does the trial court need to inform a defendant of its R.C. 2929.141(A) discretionary authority?
{¶ 80} One potential criticism of determining that the term “the maximum penalty involved” used in
{¶ 81} This court has previously held, applying the plain language of
{¶ 82} In this case, Bishop asserts that his plea was not knowingly, intelligently, and voluntarily made because the trial court did not advise him of its discretionary authority under
{¶ 83} The parties did not raise on appeal whether any statute, constitutional guarantee, or rule other than
{¶ 84} A defendant is not foreclosed from raising other arguments—statutory, rule-based, or constitutional—to attack the validity of a judicial sanction imposed pursuant to
IV. The new requirement proposed by the lead opinion under Crim.R. 11(C)(2)(a) would place an unreasonable burden on trial courts
{¶ 85} The new requirement proposed by the lead opinion under
{¶ 86} As a result of the new requirement proposed in the lead opinion, if a trial court failed to inform a defendant of a potential and speculative judicial sanction, the defendant‘s guilty plea would not be valid. The lead opinion does not include an explanation of what would happen when the court is not aware of the defendant‘s existing postrelease control. In many cases, the judicial sanction will not be imposed by the judge that sentenced the defendant to postrelease control in that defendant‘s prior felony case; indeed, the prior felony conviction may not even have been entered in the same jurisdiction. See State v. Hicks, 5th Dist. Delaware No. 09CAA090088, 2010-Ohio-2985, ¶ 9; State v. Dixon, 5th Dist. Stark No. 2008CA00254, 2009-Ohio-3137, ¶ 20.
{¶ 87} Moreover, as noted above, pursuant to
{¶ 88} This would place an unreasonable burden on the trial court to be aware of every defendant‘s existing postrelease control. The trial court is often not made aware of the defendant‘s existing postrelease control and prior felony convictions until after the plea hearing through a presentence-investigation report. See
{¶ 89} Further, the practical reality of the position taken by the lead opinion is that it might allow for the potential abuse of our plea system. When a defendant, who is likely in the best position to inform the trial court that he or she is serving a period of postrelease control, fails to provide that information to the trial court, the
{¶ 90} The conclusion of the lead opinion would likely place an unreasonable burden on the trial court and might provide defendants who are on postrelease control with the opportunity to abuse the plea system.
V. Conclusion
{¶ 91} I would reverse the judgment of the Second District Court of Appeals and hold that pursuant to
BROWN, J., concurs in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Michael J. Scarpelli and Andrew T. French, Assistant Prosecuting Attorneys, for appellant.
Carl Bryan, for appellee.