2006 Ohio 5653 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 3} Buchanan was arraigned on July 17, 2003, and at that time entered a plea of not guilty. On January 11, 2005, after discovery, two motions and hearings to determine Buchanan's competency, two superceding indictments, and multiple motions to continue, Buchanan and the state entered into a plea agreement.
{¶ 4} Pursuant to the plea agreement, the state moved to strike the language in the first three counts of the indictment that stated "and further find that Jameelah Wylie was less than ten years of age or that Scranton Buchanan compelled her to submit by force or threat of force." 01/11/05 J.E. Striking this language from the indictment dismissed the potential for life in prison and rendered counts one, two and three first degree felonies. The trial court granted the motion to strike. 01/11/05 J.E. Buchanan then pled guilty to all counts in the amended indictment. 01/11/05 Tr. 23.
{¶ 5} Sentencing was set for March 18, 2005. The state recommended an eight year sentence on each offense as set forth in counts one and two. It recommended that those sentences be served consecutively. On count three, it recommended three years. On counts four through six, it recommended one year a piece. It then recommended that counts three through six run concurrent with the sentences for counts one and two. Thus, the state recommended a total of 16 years in prison.
{¶ 6} The trial court sentenced Buchanan to 16 years in prison. However, instead of strictly following the state's recommendation it ordered the following:
{¶ 7} "[E]ight (8) years on Count 1, eight (8) years on Count 2 to be served consecutively with Count 1 and eight (8) years on Count 3 to be served concurrently with Count 1 and Count 2, and on Counts 4, 5, and 6 one (1) year on each count to be served concurrently with each other and with Counts 1, 2 and 3." 03/21/05 J.E. (underline in original).
{¶ 8} Following that sentence, appellate counsel was appointed. On December 29, 2005, counsel filed a no merit brief, i.e. a Toney brief.
{¶ 10} "3. Where court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
{¶ 11} "4. Court-appointed counsel's conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
{¶ 12} "5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶ 13} "* * *
{¶ 14} "7. Where the Court of Appeals determines that an indigent's appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed." Toney,
{¶ 15} As stated above, the Toney brief was filed by counsel on December 29, 2005. On March 29, 2006, we informed Buchanan of counsel's Toney brief and granted him 30 days to file a written brief. As of date, Buchanan has not filed a pro se brief. Thus, we will proceed to independently examine the record to determine if the appeal is frivolous.
{¶ 16} A cursory glance of the docket in this case may raise a suspicion that Buchanan's speedy trial rights, either statutory or constitutional, may have been violated. Yet, in State v.Synder, 7th Dist. No. 03MA152,
{¶ 17} "A guilty plea constitutes a complete admission of guilt. Crim.R. 11(B)(1). `By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.' State v. Barnett (1991),
{¶ 18} Thus, Buchanan's guilty plea waived his ability to raise any speedy trial issues, as long as the plea was entered into knowingly, voluntarily, and intelligently.
{¶ 19} In order for a plea to be entered into knowingly, voluntarily and intelligently, Crim.R. 11 must be followed. Crim.R. 11(C) sets forth the requirements in felony cases. InState v. Martinez, 7th Dist. No. 03MA196,
{¶ 20} "A trial court must strictly comply with Crim.R. 11 as it pertains to the waiver of federal constitutional rights. These include the right to trial by jury, the right of confrontation, and the privilege against self-incrimination. [Boykin v.Alabama (1969),
{¶ 21} A review of the 27 page transcript indicates that Buchanan's plea conformed with Crim.R. 11(C). Buchanan was informed that by entering the guilty plea he was waiving his right to have the state prove its case beyond a reasonable doubt, the right to a jury trial, the right to subpoena (compulsory process), the right against self incrimination, and the right to confrontation. 01/11/05 Tr. 12-14. Buchanan was also informed of the nature of the charges against him. 01/11/05 Tr. 5-10. The trial court additionally indicated that even though it was not going to proceed to judgment and sentencing, that it could. 01/11/05 Tr. 14-16. Buchanan was additionally informed of the maximum penalty. 01/11/05 Tr. 10-11, 16-17. Lastly, the trial court asked if he had been coerced in any way and if he entered the plea on his own free will. 01/11/05 Tr. 19-20. Buchanan indicated that he was not coerced or threatened and that he entered the plea freely. 01/11/05 Tr. 19-20. In addition to all the above advisements, the record in this case displays that the trial court took exceptional care in determining that Buchanan made the plea knowingly.
{¶ 22} Consequently, considering all the above, the guilty plea was entered into intelligently, knowingly, and voluntarily. Thus, the entering of a valid guilty plea waives any speedy trial issues. Therefore, no meritorious issues exist as to speedy trial or the entering of the plea.
{¶ 23} As such, our analysis must now turn to sentencing. Buchanan was sentenced for three first degree felonies and three third degree felonies. On each first degree felony, Buchanan received an eight year sentence. On each of the third degree felonies, Buchanan received a one year sentence. None of these sentences were maximum sentences, however, the trial court did order two of the sentences to be served consecutively. It stated:
{¶ 24} "The Court considered the record, oral statements and the pre-sentence investigation, as well as the principles and purposes of sentencing under ORC §
{¶ 25} Thus, the trial court made findings in accordance with R.C.
{¶ 26} The Ohio Supreme Court, after finding R.C.
{¶ 27} The implication of Foster is that trial courts are no longer required to give reasons or findings prior to imposing maximum, consecutive, and/or nonminimum sentences; it has full discretion to impose a sentence within the statutory range. Id. at ¶ 100. However, if a trial court does state findings and reasons for imposing maximum, consecutive and/or nonminimum sentences, the sentence must be vacated and the cause remanded to the trial court for a new sentencing hearing in order for the sentencing to comport with Foster. Id. at ¶ 104.
{¶ 28} The Ohio Supreme Court explained:
{¶ 29} "These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. We do not order resentencing lightly. Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio's felony sentencing code must protect Sixth Amendment principles as they have been articulated.
{¶ 30} "Under R.C.
{¶ 31} Thus, considering the Foster mandates, since the trial court made R.C.
{¶ 32} That said, the Ninth and Tenth Appellate District have found that Foster issues in some situations are waived if they are not raised to the trial court. State v. Silverman, 10th Dist. Nos. 05AP-837, 05AP-838, 05AP839,
{¶ 33} The Ohio Supreme Court addressed waiver in theFoster opinion. However, the defendants in Foster were sentenced pre-Blakely. The Foster holding clearly indicates that if a defendant had been sentenced prior to the decision inBlakely and does not make an argument about the potential unconstitutionality of Ohio's felony sentencing scheme, the argument is not waived. Foster, at ¶ 30-33. However, Foster does not speak to the situation where a defendant was sentenced after Blakely was decided and failed to raise issues concerningBlakely and Ohio's felony sentencing scheme.
{¶ 34} As stated above, the Ninth and Tenth Appellate Districts have stated that defendants sentenced post Blakely and did not raise Blakely to the sentencing court have waived any such argument. These courts have explained:
{¶ 35} "In State v. Draughon, Franklin App. No. 05AP-860,
{¶ 36} "Here, the trial court sentenced appellant after the United States Supreme Court issued Blakely. Thus, appellant could have objected to his sentencing based on Blakely and the constitutionality of Ohio's sentencing scheme. Appellant did not do so. Therefore, pursuant to Draughon, we conclude that appellant waived his Blakely argument on appeal. See Draughon at ¶ 7.
{¶ 37} "Accordingly, based on the above, we need not reverse appellant's prison sentences on Eighth Amendment or Blakely
grounds. As such, we overrule appellant's second and third assignments of error." State v. Silverman, 10th Dist. Nos. 05AP-837, 05AP-838, 05AP839,
{¶ 38} On the other hand, the Sixth Appellate District has taken the opposite view. State v. Brinkman, 6th Dist. No. WD-05-058,
{¶ 39} "The state responds that appellant is not entitled to be resentenced because he failed to raise the Blakely issue at his sentencing hearing. Citing State v. Murphy,
{¶ 40} "We find this argument to be inconsistent withFoster, which clearly directs that, `* * * those [cases] pending on direct review must be remanded to trial courts for new sentencing hearings * * *.' Foster at ¶ 104; State v. Mota,
6th Dist. No. L-04-1354,
{¶ 41} In making such a holding, the Sixth Appellate District acknowledged that its decision was in conflict with the Ninth and Tenth Appellate Districts. As such, it certified a conflict to the Ohio Supreme Court on July 28, 2006.
{¶ 42} After reviewing our sister districts analysis on the issue, we tend to agree with the Sixth Appellate District. We agree that the principles of waiver do not apply to Foster.
{¶ 43} However, we must take this opportunity to explain why we hold as such. First, we note that the general rule is that challenges to constitutional issues must first be raised to the trial court or they are deemed waived for appellate review. The doctrine of waiver is fundamental and well established. That said, Foster and its progeny created an exception to the doctrine of waiver. Many of the cases the Ohio Supreme Court has remanded pursuant to Foster involved post-Blakely sentencing dates. Yet, the Ohio Supreme Court gave no indication whetherBlakely issues were raised to the trial court. Instead, it has unlimitedly remanded the cases. See State v. Moser, 5th Dist. No. 05CA39,
{¶ 44} The above cited cases contain no clear indication thatBlakely issues were preserved for review. Yet, a review of the cases seems to indicate that they were not. In both the Phipps (Eighth Appellate District) and Kendrick (Second Appellate District) cases, it does not appear that Blakely issues were raised to the appellate courts. In neither of those decisions isBlakely even mentioned. Thus, it appears as if Blakely was raised for the first time to the Ohio Supreme Court and yet the Court still reversed and remanded that case for resentencing pursuant to Foster.
{¶ 45} If that were not enough for this court to conclude that the doctrine of waiver is inapplicable to Foster issues, in Cottrell, Blakely issues were not raised to the trial court. Yet, the Ohio Supreme Court still reversed and remanded the case for resentencing pursuant to Foster. Thus, the Supreme Court's reversal and remanding of Cottrell for resentencing based onFoster is a clear indication that Foster is a special case in which the doctrine of waiver is inapplicable.
{¶ 46} Accordingly, considering all the above, we agree with the Sixth Appellate District and hold that the doctrine of waiver is inapplicable to Foster issues. Thus, even though Buchanan was sentenced post-Blakely and did not raise issues related toFoster and Blakely to the sentencing court, those issues are not deemed waived. Therefore, in accordance with Foster, we find that this case must be reversed.
{¶ 47} It is noted that typically when reviewing a Toney case, if during our independent review of the case we find an appealable issue, we order counsel to file a brief. However, given the analysis in Foster and our analysis of the issues, we view it as a waste of judicial economy to send this case back for briefing.
{¶ 48} In conclusion, the appeal is not frivolous. The conviction is affirmed. However, appellant's sentence is reversed and vacated. The case is remanded for resentencing.
Donofrio, P.J., concurs.
DeGenaro, J., dissents; see dissenting opinion.
Dissenting Opinion
{¶ 49} In its decision, the majority concludes that it must remand this cause for resentencing pursuant to State v. Foster,
{¶ 50} In Foster, the Ohio Supreme Court held that R.C.
{¶ 51} In Foster, each of the defendants was sentenced prior to June 24, 2004, the date Blakely was decided. The State argued that the defendant waived the issue since he did not raise it in the trial court. The Ohio Supreme Court rejected that argument, concluding that he "could not have relinquished his sentencing objections as a known right when no one could have predicted that Blakely would extend the Apprendi doctrine to redefine `statutory maximum.'" Id. at ¶ 31, citing Smylie v.State (Ind. 2005),
{¶ 52} The court then issues the following mandate:
{¶ 53} "These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. We do not order resentencing lightly. Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio's felony-sentencing code must protect Sixth Amendment principles as they have been articulated. * * *
{¶ 54} "As the Supreme Court mandated in Booker, we must apply this holding to all cases on direct review." (Footnote omitted) (Citations omitted) Id. at ¶ 103-106.
{¶ 55} Although the language mandating the remand of cases pending on direct review in Foster is sweeping, the Ohio Supreme Court twice explicitly stated that it made this mandate to comply with Booker. Thus, it cannot have intended for Ohio's appellate courts to ignore "ordinary prudential doctrines," such as waiver. Furthermore, the Ohio Supreme Court's decision to address the waiver issue in Foster itself shows that the court did not intend to suspend these doctrines in all sentencing cases involving a defendant's Sixth Amendment right to a jury trial. Thus, I must respectfully disagree with the majority's conclusion that we must ignore the "ordinary prudential doctrine" of waiver when faced with a defendant who raises a Foster issue.
{¶ 56} In this case, Appellant was sentenced on May 5, 2005, well after both Blakely and Booker were decided. Indeed, by the time Appellant was sentenced in August 2005, one of Ohio's appellate districts had applied Blakely and Booker to Ohio's felony sentencing scheme and found that scheme unconstitutional. See State v. Montgomery,
{¶ 57} In support of its conclusion that waiver does not apply in the wake of Foster, the majority cites eight cases in which the defendant was sentenced after Blakely, but beforeFoster, State v. Moser, 5th Dist. No. 05CA39, 2006-Ohio-0165;State v. Bryant, 9th Dist. No. 22723, 2006-Ohio-0517; State v.Kendrick, 2d Dist. No. 20965, 2006-Ohio-0311; State v. Phipps,
8th Dist. No. 86133, 2006-Ohio-0099; State v. Hampton, 10th Dist. No. 04AP-806,
{¶ 58} The only case cited by the majority which does discuss waiver is Cottrell. However, this court concluded that the defendant had waived the issue in that case because he had agreed to a bench trial, rather than a jury trial. Cottrell at ¶ 37. At no time does the opinion ever address whether the defendant waived his right to a jury trial for the purpose of the sentencing factors addressed in Foster. The United States Supreme Court in Blakely distinguished between a jury trial waiver for the purpose of facts leading to guilt and the facts to be considered for sentencing. Thus, none of the cases cited by the majority provide "a clear indication that Foster is a special case in which the doctrine of waiver is inapplicable." Opinion at ¶ 45.
{¶ 59} Although none of the cases cited by the majority demonstrates that its conclusion is correct, there is at least one case decided in the In re Criminal Sentencing Cases
decisions which demonstrate that it is incorrect. For instance, in State v. Taylor, 4th Dist. No. 04CA13,
{¶ 60} Currently, there is a split in the districts over this direct issue. The Second and Sixth Districts conclude that this type of error cannot be waived. See State v. Davis, 2nd Dist. No. 21047,
