State v. EcklerState v. Eckler
Lisa Rothwell, West Union, Ohio, for Appellant.
Aaron E. Haslam, Adams County Prosecuting Attorney, and David Kelley, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.
Kline, P.J.:
{¶1} Jeffery Eckler (hereinafter “Eckler”) appeals his conviction for Aggravated Assault, in violation of
I.
{¶2} An Adams County Grand Jury indicted Eckler for Felonious Assault, a second-degree felony, in violation of
{¶3} Eckler initially pled not guilty to the Felonious Assault charge. But later, Eckler agreed to plead guilty to Aggravated Assault, a fourth-degree felony, in violation of {¶4} “COURT: Mr. Eckler, are you presently on felony probation, parole, under community control sanctions or under post release control?” {¶6} COURT: Okay. Do you understand that a plea of guilty in this, in this case, to this amended charge, could result in your parole officer filing revocation proceedings against you? Do you understand that? {¶7} MR. ECKLER: Yes sir. {¶8} COURT: Do you understand that if they file revocation proceedings against you and they do, in fact, revoke your parole, that any suspended sentenced could be required to be served by the parole board, and that sentence would be in addition to any term of incarceration or could be imposed in addition to any term of incarceration imposed by this court for the offense of aggravated assault. Do you understand that? {¶9} MR. ECKLER: Yes sir. {¶10} COURT: Now if this court does, in fact, require you to serve an actual term of incarceration in an appropriate state penal institution, in prison, that a period of supervision by the adult parole authority upon your release from prison would be optional in this case, and it would be optional whether they placed you on post release control. Do you understand that? {¶11} MR. ECKLER: Yes sir. {¶12} COURT: When I use the term optional Mr. Eckler, do you know what I mean by that? {¶13} MR. ECKLER: Yes, it’s up to them. {¶14} COURT: It’s up to them, thank you. {¶16} COURT: Now, because this is a felony of the fourth degree, you should understand that if they do, in fact, exercise that option and place you on post release control, that you could be placed on post release control for a period of up to three years. Do you understand that? {¶17} MR. ECKLER: Yes sir. {¶18} COURT: Now Mr. Eckler, if you were to be placed on post release control, if you violate any post release control rule or condition, that could result in more restrictive sanctions being placed upon you by the adult parole authority, it could also result in increased duration of the period of supervision up to the maximum of three years, or it could even result in being reimprisoned, even though you had served the entire stated prison term that I would impose upon you at the time of sentencing for this offense. Do you understand that? {¶19} MR. ECKLER: Yes sir. {¶20} COURT: If you were to violate any of the conditions while under post release control, the parole board could return you to prison for up to nine months for each violation of your post release control for a total of up to one-half of the originally stated prison term imposed by this court. If the violation of your post release control is a new felony offense, you can receive a prison term of the greater of one year or it could be the time remaining on your post release control, and that would be in addition to any other prison term that any court would, courts would impose upon you for the new felony offense. Do you understand? {¶21} MR. ECKLER: Yes sir. {¶23} MR. ECKLER: No sir.” Change of Plea Hearing at 6-9. {¶24} After the trial court concluded its colloquy, Eckler pled guilty to Aggravated Assault. {¶25} On December 18, 2008, the trial court held a sentencing hearing. The trial court sentenced Eckler to seventeen months in prison for the Aggravated Assault conviction. Then, the trial court addressed Eckler’s post-release control violation. {¶26} “COURT: * * * Now counselors, the other issue that this court is confronted with is that, at the time of the change of plea, prior to accepting the plea of guilty, this court advised Mr. Eckler that if he was on community control, post release control from prison, or any other supervised release, but specifically post release control, that if he was convicted of a new felony offense, that he could receive the greater of twelve months or the time remaining on post release control. There are one thousand forty-three days remaining on post release control. Pursuant to {¶27} [Discussions between defense counsel and the defendant] {¶28} [ECKLER’S TRIAL COUNSEL]: Your Honor, do you know what he’s on parole for right now? {¶30} MR. ECKLER: No I served two years, that’s all they gave me was two years. {¶31} COURT: Okay, two years. {¶32} MR. ECKLER: Yeah. {¶33} [ECKLER’S TRIAL COUNSEL]: He thought the maximum on, on this type of sentence would be half the original sentence, am I wrong on that? {¶34} COURT: Well, at the time of, at the time of the change of plea, the court advised * * * the defendant that, that, and he acknowledged by signing, it says I understand that if I am now on felony probation, parole, under community control sanctions or under post release control from prison, this plea may result in revocation proceedings and any new sentence could be imposed consecutively. I know any prison term stated will be served without good time credit. The court in this case, had also advised, and I’m I guess somewhat assuming the same, but I can pull [Case No. 20040120.] * * * But he has been advised, at least in this court, and I will look at the 2005 entry, that if he violates any of the conditions of supervision while under post release control, the parole board could return him to prison up to nine months for each violation, for a total of one-half of the originally stated prison term. Relevant to this question, if the violation of post release control is a new felony, I can receive a prison term of the greater of one year or the time receiving [sic] on post release control in addition {¶35} The trial court then proceeded to read from the judgment entry of sentencing in Case No. 20040120 (hereinafter the “20040120 Entry”). The trial court then went off the record, which allowed Eckler and his trial counsel the opportunity to review the 20040120 Entry. After going back on the record, the trial court sentenced Eckler to 1,043 days in prison for the post-release control violation. Eckler’s trial counsel objected to length of the sentence. {¶36} “[ECKLER’S TRIAL COUNSEL]: Your Honor, for the record, I would object to the court sentencing Mr. Eckler to anything over a year in addition to the current sentence for violation of the post release control based on the language of the change of plea hearing there that I pointed out to the court in chambers where it appears that the defendant was advised that, or least arguably, that the maximum he would end up doing would be a year. That may have been a typographical error or it may not have, but I think that’s due, I think the sentence has more than one interpretation, so I would ask that the court provide the least restrictive interpretation, which would be, I believe, I don’t remember if it says three hundred and sixty-five days or one year, I believe it said one year. * * * I’ll just quote this, if that’s alright [sic]. It says if I violate conditions of supervision while under post release control, the parole board could return me to prison for up to nine months for each violation for a total of one-half of my originally stated prison term. If the violation is a new felony, I could receive a prison term of the greater of one year of the time remaining on post release {¶37} COURT: It states one year, and instead of saying or it says of? {¶38} [ECKLER’S TRIAL COUNSEL]: One year of the time remaining, that’s correct your Honor. {¶39} COURT: Instead of one year or the time remaining, correct? {¶40} [ECKLER’S TRIAL COUNSEL]: Correct your Honor. {¶41} COURT: Alright [sic]. That objection shall be duly noted. State? {¶42} MR. KELLEY: Just, just for clarification that that is contained in the change of plea paperwork dated December 29th, 2004 in case number 20040120, not in today’s instant case involving the change of plea paperwork.1 {¶43} COURT: Certainly. And I believe the objection, at least this initial objection, is noted as relates to the court’s imposition of the additional post release control days of one hundred, one thousand and forty-three, correct? {¶44} [ECKLER’S TRIAL COUNSEL]: That’s correct your Honor.” Id. at 27-29. {¶45} Despite the objection, the trial court still sentenced Eckler to 1,043 days in prison for the post-release control violation. {¶46} Eckler appeals his conviction, asserting the following assignment of error: I. “THE TRIAL COURT DENIED THE APPELLANT DUE {¶47} In his only assignment of error, Eckler contends that he did not knowingly, intelligently, and voluntarily plead guilty to Aggravated Assault. {¶48} In determining whether to accept a guilty plea, the trial court must determine whether the defendant knowingly, intelligently, and voluntarily entered the plea. See State v. Johnson (1988), 40 Ohio St.3d 130, at syllabus; {¶49} {¶51} (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. {¶52} (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” {¶53} “Substantial compliance with the provisions of {¶54} A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. See State v. Stewart (1977), 51 Ohio St.2d 86, 93; {¶55} At the trial court level, Eckler did not move to withdraw his guilty plea. Instead, at the sentencing hearing, Eckler objected to the length of his sentence. Eckler based his objection on the following language in the 20040120 Entry: “If the violation is a new felony, I could receive a prison term of the greater of one year of the time remaining on post release control, in addition to any other prison term imposed for the offense.” (Emphasis added.) But on appeal, Eckler has made no arguments as to the length of his sentence; e.g., that the sentence was too long and, thus, contrary to law. Rather, for the first time, Eckler now {¶56} “Generally, a party cannot assert new legal theories for the first time on appeal.” State v. Landrum (2000), 137 Ohio App.3d 718, 722, citing Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43; see, also, State v. Smith, Trumbull App. No. 2007-T-0076, 2008-Ohio-1501, at ¶16; State v. Pigg, Scioto App. No. 04CA2947, 2005-Ohio-2227, at ¶34; State v. Kemper, 158 Ohio App.3d 185, 2004-Ohio-4050, at ¶19; State v. Perkins (2001), 145 Ohio App.3d 583, 586. Therefore, except for plain error, Eckler has forfeited his right to raise this issue for the first time here. See, e.g., Pigg at ¶34. See, also, State v. Conrad, Cuyahoga App. No. 88934, 2007-Ohio-5717, at ¶3-5 (reviewing for plain error because defendant “failed to challenge his guilty plea at the trial court”); State v. Edwards, Cuyahoga App. No. 85908, 2006-Ohio-2315, at ¶23; State v. Kovacek (May 30, 2001), Lorain App. No. 00CA007713. {¶57} Pursuant to {¶58} Essentially, on appeal, Eckler contends that the language in the 20040120 Entry confused him. Because of the 20040120 Entry, Eckler argues that he did not understand the consequences of his guilty plea. Namely, Eckler claims that he thought one year, not 1,043 days, was the maximum prison term for the community control violation. {¶59} Here, we cannot find plain error. First, we note that Eckler’s sentence is in accordance with the law. See former {¶61} In his brief, Eckler cites State v. Bragwell, Mahoning App. No. 06-MA-140, 2008-Ohio-3406. However, we believe that Bragwell is distinguishable from the present case. In Bragwell, the defendant agreed to plead guilty to driving while under the influence of alcohol and a repeat offender specification. Id. at ¶3. On appeal, the Bragwell court found that the defendant’s plea was not knowingly, intelligently, and voluntarily made. In part, the Bragwell court noted the following: “In [the defendant’s] signed plea form, the information regarding which prison term is mandatory was only partially correct. One page of the form properly identifies the one-to-five-year sentence on the specification as the mandatory sentence and further states that another term of up to five years is possible on the underlying DUI. But on the very next page where only the charged offense, and not the specification, is listed it states that a prison term for the DUI is mandatory.” Id. at ¶51. As such, the Bragwell court found that “the {¶62} Eckler equates the incorrect information in Bragwell’s plea form to the language of the 20040120 Entry, but this argument does not persuade us. In Bragwell, the Seventh District Court of Appeals held that the trial court erred in “not informing the defendant of a mandatory consequence of his guilty or no contest plea.” Id. at ¶52. However, under the former {¶63} Next, there is no evidence that Eckler actually relied upon the 20040120 Entry while he entered his guilty plea. If Eckler did not rely upon the 20040120 Entry, then he cannot claim that the language in that entry caused his plea to be less than knowing, intelligent, and voluntary. Neither Eckler nor his attorney mentioned the 20040120 Entry during the change of plea hearing. As Eckler’s trial attorney later noted, the 20040120 Entry “ha[d] more than one {¶64} Finally, we cannot find either an error or an obvious defect in the present case because we do not have the complete record from Case No. 20040120. In fact, we have none of the documents or transcripts from that case. All we have is the transcript from the sentencing hearing below, wherein Eckler’s attorney read part of the 20040120 Entry into the record. Therefore, without the complete record, we do not know (1) the full context of the 20040120 Entry, (2) whether the trial court in Case No. 20040120 addressed this issue at the sentencing hearing, or (3) whether the trial court in Case No. 20040120 issued a subsequent entry pursuant to {¶65} Accordingly, for the foregoing reasons, we overrule Eckler’s only assignment of error and affirm the judgment of the trial court. JUDGMENT AFFIRMED. It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Harsha, J. and McFarland, J.: Concur in Judgment Only. For the Court BY: Roger L. Kline, Presiding Judge Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.II.
NOTICE TO COUNSEL