662 N.E.2d 65 | Ohio Ct. App. | 1995
Lead Opinion
The state of Ohio, plaintiff-appellee, indicted Shawn Carroll, defendant-appellant, for an aggravated felony of the second degree (felonious assault) with a firearm specification. The indictment did not contain a R.C.
"The trial court's sentence of three years' actual incarceration to be followed by a definite prison term of six months was contrary to law."
The appellant argues that the trial court did not have the option of imposing an indefinite sentence for the fourth-degree felony. He maintains that the only proper sentence for his fourth-degree felony is a definite term of imprisonment.2 Our standard of review is de novo.
R.C.
"No person shall be sentenced pursuant to division (B)(6) or (7) of this section to an indefinite term of imprisonment for a felony of the third or fourth degree unless the indictment * * * charging him with the offense contains a specification as set forth in section
R.C.
"The grand jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth the allegation either that, during the commission of the offense, the offender caused physical harm to any person, or made an actual threat of physical harm to any person with a deadly weapon, or that the offender has previously been convicted of or pleaded guilty to an offense of violence)."
Appellant maintains that because there was no R.C.
Based on the above statutes, it would first appear that this is true. However, the appellant disregards the fact that he was indicted for a second-degree felony that is punishable by an indefinite sentence. The Ohio Supreme Court discussed this issue in State v. Lytle (1990),
"Reading the statutes this way does no violence to the salutary purpose of putting a defendant on notice that the prosecutor seeks an enhanced sentence for involving a firearm in the crime and that the defendant should prepare a defense accordingly."
In the case at bar, appellant was charged in the indictment with a second-degree felony and a firearm specification. There was no R.C.
Appellant's original charge of a second-degree felony, which is punishable by an indefinite sentence, put the appellant on notice that the prosecutor was seeking an enhanced sentence.3 The charge of a second-degree felony satisfies the purpose of the R.C.
A significant difference between the Lytle case and the case at bar is that the Lytle case went to a jury. The record showed that the facts supported a finding of guilty of a R.C.
Appellant argues that the Court of Appeals for Hamilton County in State v. Tyson (1984),
Appellant further argues that the case of State v. Morris (May 13, 1994), Lucas App. No. L-93-180, unreported, 1994 WL 193756, is directly on point. The Morris court relied onState v. Witwer (1992), 64 Ohio State 3d 421. The Morris Court stated: *377
"The Supreme Court of Ohio in Witwer * * * came to the conclusion that an indefinite sentence may be imposed on one convicted of a fourth degree felony only if the indictment includes the R.C.
We disagree with the Morris court interpretation of theWitwer case. In Witwer, the indictment charged the defendant with a fourth-degree felony (aggravated vehicular homicide). The indictment also properly contained a R.C.
Consequently, the appellant argues that the trial court unlawfully sentenced him, since the sentence included three years of actual incarceration. Appellant argues that R.C.
In Tyson, supra, paragraph two of the syllabus (criticized for other reasons in Lytle, supra), the court stated:
"The assessment of a valid indefinite sentence of incarceration is a necessary predicate to the imposition of a three-year term of incarceration pursuant to R.C.
The relevant statutory language of R.C.
"The court shall impose a term of actual incarceration of three years in addition to imposing * * * an indefinite term of imprisonment pursuant to section
We agree that the assessment of an indefinite sentence on the underlying offense is necessary before imposing a three-year term of incarceration. We reach this determination from the plain meaning of the relevant statutory language contained in R.C.
In response to appellant, the appellee argues that appellant waived any defect in the sentence given to him by entering guilty pleas. Appellee states that as part of the plea bargain, the appellant knew the exact sentence before he entered the pleas of guilty. Therefore, the appellee concludes that appellant waived his right to appeal the sentence.
"[I]n reviewing the record on appeal, the appellate court should inquire as to whether the defendant voluntarily and knowingly waived his constitutional rights." State v. Kelley
(1991),
In Kelley at 130,
"`[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth inMcMann [v. Richardson (1970),
In the case at bar, the record shows that the appellant signed a form captioned "Petition to Enter Plea of Guilty." Item eight on that form states: *379
"[T]he Court, Prosecution, Defense Attorney have stated that I will be sentenced to a definite term of six months on the aggravated assault, an actual incarceration of 3 years on the Firearm Specification, the sentences to be consecutive. If for some reason the sentence as stated above is inapplicable, not followed, I understand that I may withdraw my plea of guilty to both charges, that the court will sustain my motion to withdraw my plea and that this matter will be scheduled for trial." (Emphasis added.)
And item thirteen states:
"I have a right to appeal this conviction by filing Notice of Appeal within 30 days of the date of sentencing * * *."
The record shows that the trial court did not substantially comply with Crim.R. 11(C)(2)(a) or (b).5 The trial court did not give the appellant correct information on what the maximum penalty was. Hence, the appellant could not understand the effect of his plea. Accordingly, we do not find that appellant voluntarily and knowingly waived his right to appeal a defect in his sentence.
In State v. Brunner (June 4, 1991), Ross App. No. 1654, unreported, 1991 WL 99669, this court considered the situation where the appellant pled guilty to an indefinite sentence for a felony of the third degree and then appealed the sentence since the trial court had failed to follow R.C.
"The defendant got one of the sentences provided by law for a third degree felony. By asking for the sentence, he waived the provisions of R.C.
The case sub judice is similar to Brunner and Coleman in that appellant is challenging a plea to which he agreed. There are, however, significant differences between this case and theBrunner and Coleman cases. Those cases involved two possible lawful sentences. The defendant agreed to one of the two possible lawful sentences. Here, appellant's sentence was contrary to law. Another significant difference between this case and the cases that found that a guilty plea waives all subsequent arguments is the existence of item thirteen in the "Petition to Enter Plea of Guilty." Item thirteen clearly states that appellant has not waived his right to appeal his conviction. His conviction occurred after he was told the exact sentence he would receive. The sentence he was told he would receive was contrary to law. While the word "sentence" is not used in item thirteen, it is used elsewhere. Item eight states that "[i]f for some reason the sentence is inapplicable, * * * this matter will be scheduled for trial." Moreover, the trial court acknowledged the possibility that appellant's sentence could be set aside on appeal.6 Consequently, we do not find here that appellant waived his right to appeal a defect in his sentence.
In conclusion, the trial court chose a sentence that was contrary to law when it imposed a definite term of imprisonment for aggravated assault and a three-year term of imprisonment for the firearm specification. The court could have imposed one of the two following sentences: (1) a definite sentence for the fourth-degree felony, or (2) an indefinite sentence for the fourth-degree felony (if the facts supported a R.C.
Accordingly, this court sustains appellant's assignment of error and vacates the conviction and sentence. This court reverses the judgment and remands this cause to the trial court for further proceedings consistent with these findings.
Judgment reversed and cause remanded.
STEPHENSON, J., concurs.
HARSHA, J., dissents.
"Courts imposing sentences to the penitentiary for felonies shall make the sentences either indefinite or definite in their duration."
Whether the sentence is definite or indefinite depends upon the severity of the offense and the corresponding statute proscribing the offense. Definite sentences impose terms of imprisonment for an exactly stated time period in which the defendant must be incarcerated and then released. These sentences are usually less severe and shorter than an indefinite sentence. Indefinite sentences state the minimum and maximum time that the defendant can be imprisoned. These sentences are usually longer, and the penitentiary controls when the prisoner will be released during that time period.
"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
"(c) Informing him and determining that he understands that by his plea he is waiving his right to 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."
See State v. Ballard (1981),
Dissenting Opinion
I respectfully dissent on the rationale set forth inBrunner, supra, i.e., the appellant bargained for the sentence which he in fact is receiving.