State v. ByrdState v. Byrd
Lead Opinion
{¶ 1} Defendant, Kevin Byrd Jr., was charged with multiple felony offenses in two separate indictments. Byrd subsequently entered negotiated pleas of guilty to three of the offenses charged, and the state dismissed the remaining charges.
{¶ 2} In common pleas case No. 2006CR5353/1, Byrd pleaded guilty to one count of aggravated robbery,
{¶ 3} In common pleas case No. 2007CR532/2, Byrd pleaded guilty to two counts of aggravated robbery and to two counts of kidnapping,
{¶ 4} The aggregate six-year term in case No. 2006CR5353/1 and the aggregate seven-year term in case No. 2007CR532/2 were ordered to run consecutively, for a total prison term of 13 years. Byrd filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “Contrary to appellant’s rights to due process and the requirements of
{¶ 6} Aggravated robbery is a first-degree felony.
{¶ 7} Byrd was previously convicted of a second-degree felony offense in Montgomery Common Pleas case No. 2004CR2605. Therefore, in the present cases the prison sentences the court imposed were mandatory, and Byrd was told by the court during the
{¶ 8} A court that imposes a prison sentence on an “eligible offender” may subsequently reduce the term of that sentence by ordering a judicial release.
{¶ 9} “As used in this section, ‘eligible offender’ means any person serving a stated prison term of ten years of less when either of the following applies:
{¶ 10} “(1) The stated prison term does not include a mandatory prison term.
{¶ 11} “(2) The stated prison term includes a mandatory prison term, and the person has served the mandatory prison term.”
{¶ 12} Because Byrd was sentenced to mandatory prison terms, he is ineligible for judicial release. Byrd argues on appeal that his pleas of guilty were improperly accepted by the court, because the court failed to determine that
{¶ 13}
{¶ 14} In
Pape,
we held that though the defendant understood that he faced a mandatory prison sentence of four years, and though the court was unaware that the defendant’s counsel had allegedly told defendant he would be eligible for judicial release,
{¶ 15}
Colbert
was an appeal from an order denying a defendant’s
{¶ 16} On appeal, the defendant in
Colbert
might have relied on the “manifest injustice” standard of
{¶ 17} In Brigham, the defendant entered guilty, pleas to having weapons under disability, with a firearms specification, and carrying a concealed weapon. When the defendant inquired of the court whether he was eligible for shock probation, the court advised him that he was ineligible during his term of three years’ actual incarceration on the firearm specification. Defendant’s counsel indicated he would move for shock probation after that, and stated: “I said if we were able to file, we would file, and you (the court) would consider it at that time.” When the defendant asked the court whether it would consider the motion, the court replied that it would make no promises.
{¶ 18} On appeal, the Court of Appeals of Franklin County held in
Brigham
that the defendant’s guilty pleas were accepted in violation of
{¶ 19} “
{¶ 20} Unlike in Colbert and Brigham, in neither the present case nor in Pape was there any claim or indication that either counsel or the court had misstated or misrepresented that the defendant was eligible for judicial release when he was not.
{¶ 21} After acknowledging that fact, we wrote in Pape :
{¶ 22} “Nevertheless, we conclude that requiring the trial court to determine that a defendant understands he is ineligible for judicial release is a salutary interpretation of
{¶ 24} On closer review, we believe that the holdings in Colbert and Brigham stand for the proposition that when a defendant’s eligibility for probation or community control sanctions is misrepresented or misstated, a determination by the court that the defendant understands he is ineligible is then “applicable,” and that the same applies to the defendant’s ineligibility for “super shock probation” or, as it is now, judicial release. Neither Colbert nor Brigham held that in every instance in which a mandatory sentence is imposed that the court must determine that a defendant understands he is ineligible for judicial release. Indeed, Colbert expressly disclaimed that purpose.
{¶ 25} Furthermore, a careful reading of
{¶ 26} “The 1998 amendment to
{¶ 27} The focus of
{¶ 28} First,
{¶ 29} Second,
{¶ 30} We hold that when a defendant on whom a mandatory prison sentence is imposed enters a plea of guilty or no contest, before accepting the plea the court must determine the defendant’s understanding that the mandatory sentence renders the defendant ineligible for alternative sentences of probation or community-control sanctions.
{¶ 31} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 32} “Contrary to appellant’s rights to due process the state of Ohio contaminated the sentencing process by breaching their plea agreement not to pursue sentencing enhancements, and to treat the offenses as one single offense.”
{¶ 33} When defendant offered his guilty pleas on September 4, 2007, and after reviewing the terms of the plea agreement, defendant’s attorney made the following representation to the court:
{¶ 34} “Additionally, your Honor, there was some discussion this morning regarding whether or not the State would be pursuing a sentencing enhancement against my client for the convictions of multiple felony ones. And the State said that they would not be pursuing that, they would treat this as one single conviction.”
{¶ 36} Defendant failed to object to the state’s recommendation. He therefore forfeited the error he assigns on appeal.
State v. Payne,
{¶ 37} “{¶ 15} Typically, if a party forfeits an objection in the trial court, reviewing courts may notice only ‘[p]lain errors or defects affecting substantial rights.’
{¶ 38} “{¶ 16} ‘First, there must be an error,
ie.,
a deviation from the legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of
{¶ 39} “{¶ 17} The burden of demonstrating plain error is on the party asserting it. See, e.g.,
State v. Jester
(1987),
{¶ 40} Defendant argues that the state’s recommendation of maximum, consecutive sentences breached the plea agreement to not seek a “sentencing enhancement” and to “treat this as one single conviction.” We do not agree. The firearms specifications attached to the felony offenses to which defendant entered guilty pleas required additional sentences which, by operation of law, “enhanced” the sentences the court imposed for the felonies. There was nothing for the state to do in that respect, and recommending maximum sentence for those felony offenses within their available statutory ranges did not “enhance” them.
{¶ 41} Treating the felony sentences “as one single conviction,” as defendant’s counsel had characterized the state’s promise, could be construed to preclude the consecutive sentences the state recommended. However, it would not exclude the possibility of maximum concurrent sentences. The maximum sentence the
{¶ 42} The second assignment of error is overruled. The judgment of the trial court will be affirmed.
Judgment affirmed.
Concurrence Opinion
concurring separately.
{¶ 43} I concur in the majority’s disposition of the first assignment, its opinion and disposition of the second assignment, and the judgment.
{¶ 44} I continue to believe that
State v. Pape
(Nov. 21, 2001), Clark App. No. 2000CA98,
{¶ 45} Nevertheless, I concur in the disposition of the first assignment because the trial court substantially complied with
{¶ 46} In Pape, we observed:
{¶ 47} “The trial court made no inquiry of Pape’s understanding that he was not eligible for community control sanctions, which ineligibility was integral to his receiving a mandatory sentence. Nor did the written plea of guilty mention Pape’s ineligibility for community control sanctions.”
{¶ 48} In this ease, the trial court informed Byrd that he could receive a maximum sentence of ten years for the aggravated robbery counts, with a maximum penalty of 30 years of incarceration, in addition to three years for the firearm specifications. The court further told Byrd that he could receive eight years in prison for each kidnapping count plus three years for the firearm
{¶ 49} Byrd’s written plea agreements — which Byrd signed — provided that Byrd was not eligible for community control sanctions and that “[t]he prisons term(s) * * * is/are mandatory and cannot be reduced by judicial release, earned credit, or furlough.”
{¶ 50} It is clear from the record that the trial court asked Byrd whether he understood that he was ineligible for community control on all of the charges, and Byrd responded, ‘Yes, sir.” Byrd’s written plea agreement also acknowledged that judicial release was unavailable. Although the trial court did not expressly inform Byrd that he was not eligible for judicial release, the trial court substantially complied with the requirements of