STATE OF OHIO, Plaintiff-Appellee -vs- JOSHUA DUNHAM, Defendant-Appellant
Case No. 2011-CA-121
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 27, 2012
2012-Ohio-2957
Hon. W. Scott Gwin, P.J.; Hon. Sheila G. Farmer, J.; Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2010CR0559; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellee
JAMES J. MAYER Richland County Prosecutor 38 Park Street Mansfield, OH 44902
For Defendant-Appellant
PAUL MANCINO, JR. 75 Public Square, Ste. 1016 Cleveland, OH 44113-2098
Gwin, P.J.
{¶1} The Richland County Grand Jury in a six-count indictment indicted appellant Joshua Dunham [“Dunham“]. Specifically, Dunham was indicted with one count of vehicular homicide in violation of
{¶2} On June 1, 2011, Dunham changed his plea of not guilty to guilty to all counts of the indictment. The court referred the matter to the probation department for the preparation of a presentence investigation report. Dunham appeared for sentencing on July 11, 2011. Dunham was fined $375.00 and sentenced to a total term of imprisonment of nine (9) years of mandatory prison time on count one (1), a one (1) year sentence on count three (3) and a six (6) month sentence on count five (5). The sentences in counts 2, 4 and 6 were merged into counts 1, 3 and 5.
ASSIGNMENTS OF ERROR
{¶3} Dunham raises five assignments of error,
{¶5} “II. DEFENDANT WAS DENIED A DUE PROCESS OF LAW WHEN THE COURT MISINFORMED DEFENDANT CONCERNING ABOUT A MANDATORY LIFE TIME LICENSE SUSPENSION.
{¶6} “III. DEFENDANT WAS DENIED A DUE PROCESS OF LAW AND HIS RIGHTS UNDER THE SIXTH AMENDMENT WHEN THE COURT BASED ITS SENTENCING ON FACTS NOT ALLEGED IN THE INDICTMENT NOR ADMITTED AT THE PLEA HEARING.
{¶7} “IV. DEFENDANT WAS DENIED A DUE PROCESS OF LAW WHEN THE COURT BELIEVED IT HAD TO IMPOSE A LICENSE SUSPENSION OF LIFE.
{¶8} “V. DEFENDANT WAS DENIED A DUE PROCESS OF LAW WHEN THE ORAL PRONOUNCEMENT OF SENTENCE DID NOT INCLUDE MANDATORY TIME BUT THE JOURNAL ENTRY OF SENTENCING INCLUDED MANDATORY TIME.”
I.
{¶9} In Dunham‘s first assignment of error, he disputes the voluntary nature of his pleas because, Dunham argues, the trial court failed to inform him that by pleading guilty he faced a mandatory prison sentence.
{¶10} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty
{¶11}
Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with non constitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have otherwise been made.’ Id. Under the substantial-compliance standard, we review the totality of circumstances surrounding [the defendant‘s] plea and determine whether he subjectively understood [the effect of his plea]. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.
{¶12}
{¶13} The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. A manifest injustice has been defined as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 N.E.2d 83(1998). “‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.‘” State v. Ruby, 9th Dist. No. 23219, 2007-Ohio-244, ¶ 11, quoting State v. Williams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Accordingly, under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. Smith, 49 Ohio St.2d at 264.
{¶14} In determining whether the trial court has satisfied its duties under
{¶15} In Clark, a case decided after Sarkozy, the Ohio Supreme Court concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly explains non-
{¶16} In the case at bar, the trial court never orally informed Dunham that any portion of his prison sentence was mandatory. Moreover, the plea form executed by Dunham evidences confusion regarding the mandatory sentencing range, indicating that only four years of the potential 15 year sentence was mandatory. In the trial court‘s sentencing entry is the handwritten notation “9 mandatory.” This is the first time it appears in the record that Dunham was informed that he was to receive a nine year prison sentence and that all nine years were to be considered mandatory. Thus, it is clear that at the time he pled guilty, Dunham was unaware of the amount of time of his prison term for the offenses that was mandatory, and that he would be ineligible for community control sanctions, and judicial release. Accord, State v. Maggard, 1st Dist. No. C-100788, 2011-Ohio-4233, ¶17; State v. Johnson, 8th Dist. No. 92364, 2009-Ohio-5821, ¶15; State v. Rand, 10th Dist. No. 03AP-745, 2004-Ohio-5838, ¶22.
{¶17} Under the totality of the circumstances, we are not convinced that Dunham understood that the prison sentence imposed was mandatory or that he was
{¶18} Consequently, we conclude that, under the circumstances of this case, the trial court abused its discretion when it denied Dunham‘s motion to withdraw his guilty plea.
{¶19} For the foregoing reasons, Dunham‘s first assignment of error is sustained.
II, III, IV, V
{¶20} Based upon our analysis and disposition of Dunham‘s first assignment of error, we find his second, third, four and fifth assignments of error premature.
CONCLUSION
{¶21} Because the trial court did not adequately inform Dunham that the prison sentence imposed was mandatory or that he was ineligible for community control or probation, Dunham‘s first assignment of error is sustained.
By Gwin, P.J.,
Farmer, J., and
Edwards, J., concur
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JULIE A. EDWARDS
WSG:clw 0611
STATE OF OHIO, Plaintiff-Appellee -vs- JOSHUA DUNHAM, Defendant-Appellant
CASE NO. 2011-CA-121
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
2012-Ohio-2957
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Richland County Court of Common Pleas is reversed, and this cause is remanded to that court with instructions to permit Dunham to withdraw his guilty plea. Costs to appellee.
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HON. W. SCOTT GWIN
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HON. SHEILA G. FARMER
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HON. JULIE A. EDWARDS