State v. Bowen
368 N.E.2d 843
Ohio
1977
Check Treatment
Locher, J.

In State v. Milanovich (1975), 42 Ohio St. 2d 46, 49, this сourt, in considering the validity of a plea, referred to the following statement in Machibroda v. United States (1962), 368 U. S. 487, 493:

“ * * A guilty plea, if induced hy promises or threats which dеprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101; Shelton v. United States, 356 U. S. 26, reversing 246 F. 2d 571. “A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do hut give judgmеnt ‍‌​‌​​​​​‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‌‌​‌​​​‌​‌​‌‌​‌​​​​​‍and: sentence. Out 'of' just consideration for persons accused of crime, courts are careful that a pleа of guilty shall not be accepted unless made voluntarily after proper advice and with full. understanding of the consequences.” Kercheval v. United States, 274 U. S. 220, 223.’ ”

The United States Supreme Court, in Kercheval v. United States (1927), 274 U. S. 220, 223-4, further stated:

*29“When, one so pleads he may be held bound. * * * But, on timely aрplication, the court will vacate a plea of guilty shоwn to have been unfairly obtained .or given through ignorance, fеar or inadvertence.”

In the case sub judies appellant promised to recommend. to the court that the sentence be served concurrently with the sentence to be imposed if appellee is declared a parole violator. However, R. C. 2929.41 reads, in pertinent part: :

“(A) Except as provided in division (B) of this sеction, a sentence of imprisonment shall be served cоncurrently with any other sentence of imprisonment. In any casе, ‍‌​‌​​​​​‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‌‌​‌​​​‌​‌​‌‌​‌​​​​​‍a sentence of imprisonment for misdemeanor shall be-sеrved concurrently with a sentence of imprisonment for felоny served in a state penal or reformatory institution.
“(B) A sentence of imprisonment shall be served consecutively to any оther sentence of imprisonment, in the following eases:
# #
“(3) When it is imрosed for a new felony committed by a probationer, а parolee, or escapee.”

Thus, appellаnt’s recommendation as to sentencing and its qualified ‍‌​‌​​​​​‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‌‌​‌​​​‌​‌​‌‌​‌​​​​​‍acceptance by the trial court were a mere nullity.

Appеllant’s contention, that the Court of Appeals erred in voiding the plea because appellant in accordance with the plea bargain did recommend concurrent sentences regardless of the explicit statutory interdiction, is- withоut merit. Appellee’s guilty plea and the inherent waiver of his fundamental constitutional rights were induced, in part, by appellаnt’s promise to recommend to the court a statutorily proscribed act. Appellee’s plea can be viewеd neither as voluntary where induced by a promise, the very essеnce of which is nonperformable, nor as knowing where the fact of illegality was insufficiently delineated*" and, there*30fore, is void. Machibroda v. United States, supra (368 U. S. 487, 493).

Accordingly, the judgment оf the Court of Appeals is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Celebrezze, W. Brown, ‍‌​‌​​​​​‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‌‌​‌​​​‌​‌​‌‌​‌​​​​​‍P. Brown and Sweeney, JJ., concur.

Notes

The trial court, in sentencing, merely stated:

“It is the Court’s further ninWstnnHlno- that if, indeed, the Parole *30Board does impose time from the standpoint of violation of parole, the Court orders insofar as I am able, that this sentence be served concurrently with and not consecutively with the time you ‍‌​‌​​​​​‌​‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‌‌​‌​​​‌​‌​‌‌​‌​​​​​‍may or may not get in relation to violation of parole. * * *” (Emphasis added.)