STATE OF OHIO v. BRANDON K. DRAKE
C.A. No. 16CA0056-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
May 30, 2017
2017-Ohio-4027
COUNTY OF MEDINA; CASE No. 16 CR 0048; APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO
CALLAHAN, Judge.
{¶1} Appellant, Brandon Drake, appeals his conviction from the Medina County Court of Common Pleas. This Court reverses.
I.
{¶2} Mr. Drake pled guilty to a single count of unlawful sexual conduct with a minor, in violation of
II.
ASSIGNMENT OF ERROR
THE COURT IMPROPERLY ADVISED THE DEFENDANT OF THE MAXIMUM PENALTIES AND THEREFORE A KNOWING, INTELLIGENT[,] AND VOLUNTARY PLEA WAS NOT MADE[.]
{¶4} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527 (1996). Prior to accepting a guilty plea, a trial court must engage in a dialogue with the defendant as described in
{¶5} In this context, “[s]ubstantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108 (1990), citing State v. Stewart, 51 Ohio St.2d 86 (1977) and State v. Carter, 60 Ohio St.2d 34, 38 (1979). “[A] defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. The test is whether the plea would have otherwise been made.” (Internal citations omitted.) Nero at 108. A defendant may challenge his guilty plea either through a
{¶6} Under
{¶7} Here, the trial court engaged in a detailed dialogue with Mr. Drake. However, as part of that dialogue, the trial court advised Mr. Drake: “It‘s a single count, felony three unlawful sexual conduct with a minor, a felony of the third degree. I think the maximum punishment is thirty-six months. Am I correct?” to which the prosecutor responded, “Yes.” Later during the plea, the court told Mr. Drake, “I have indicated to you this is a felony of the third degree, the maximum punishment being thirty-six months in prison * * *.” The court found Mr. Drake‘s guilty plea to be “made knowingly, voluntarily, and intelligently.”
{¶8} The trial court incorrectly advised Mr. Drake as to the maximum possible penalty for the offense.
{¶10} The State contends that Mr. Drake failed to meet his burden on appeal because he submitted only a partial transcript, i.e. the transcript of the plea and the sentencing. It suggests that Mr. Drake “may” have been advised of the correct maximum penalty during his arraignment and, therefore, made his plea with knowledge of the maximum penalty. “Ohio
{¶11} “‘[I]t is axiomatic that a defendant must know the maximum penalty involved before the trial court may accept his guilty plea.‘” State v. Puckett, 4th Dist. Scioto No. 03CA2920, 2005-Ohio-1640, ¶ 9, quoting State v. Corbin, 141 Ohio App.3d 381, 386-387 (8th Dist.2001), citing State v. Wilson, 55 Ohio App.2d 64 (1st Dist.1978) and State v. Gibson, 34 Ohio App.3d 146 (8th Dist.1986). “The potential sentence hanging over a pleading defendant is one of the important matters on his mind, if not the most important, * * *.” Wilson at 66. In the present matter, Mr. Drake pled guilty to unlawful sexual conduct with a minor with the understanding that the maximum potential penalty he could receive at sentencing would be thirty-six months in prison. Instead, he was sentenced to forty-eight months in prison. Albeit statutorily permissible, Mr. Drake‘s sentence exceeds the maximum sentence he was advised he could receive when he entered his plea. Based upon the totality of the circumstances, this Court cannot conclude that Mr. Drake subjectively understood the implications of his plea and must conclude that his plea was not made knowingly, intelligently, and voluntarily.
{¶12} This case is unlike Wagner. In Wagner, this Court could not infer any prejudice. Wagner, 2009-Ohio-2790, at ¶ 16. In that case, the defendant was advised at the plea hearing that the maximum penalty was thirty months in prison. Id. at ¶ 12. In actuality, the maximum penalty was seven and one half years in prison. Id. The defendant was sentenced to eighteen months in prison. Id. at ¶ 4. Although the defendant was misinformed of the maximum penalty, he received a sentence that was less than the amount that he was informed he faced. By contrast, in the present case, Mr. Drake was sentenced to a longer period of incarceration than he was informed that he faced. When a defendant receives a sentence that exceeds what he was informed by the court was the maximum penalty, the prejudice is apparent on its face. See State v. Schmidt, 11th Dist. Portage No. 2012-P-0034, 2015-Ohio-2450, ¶ 22 (“Appellate courts have reversed guilty pleas when the trial court understated the maximum penalty at the plea hearing and then imposed an actual sentence greater than the understated plea.“).
{¶13} Mr. Drake‘s sole assignment of error is sustained. The judgment of the Medina County Court of Common Pleas is reversed, Mr. Drake‘s guilty plea is vacated, and this cause is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
JOHN D. MIZANIN, JR., Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.