STATE OF OHIO, Appellee, - vs - PATRICK E. FABIAN, Appellant.
CASE NO. CA2019-10-119
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
8/3/2020
2020-Ohio-3926
Case No. 18CR34684
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Anzelmo Law, James A. Anzelmo, 446 Howland Drive, Gahanna, Ohio 43230, for appellant
M. POWELL, J.
{¶ 1} Appellant, Patrick Fabian, appeals his conviction in the Warren County Court of Common Pleas following his guilty plea to drug trafficking.
{¶ 2} Fabian was indicted in November 2018 on several drug-related charges. On October 30, 2019, Fabian agreed to plead guilty to two counts of drug trafficking, both third-degree felonies, in exchange for the state dismissing five felony drug offenses and the imposition of a four-year prison sentence with no judicial release. During the plea hearing,
{¶ 3} Upon accepting Fabian‘s guilty plea, the trial court proceeded immediately to sentencing. The trial court imposed the four-year agreed sentence and ordered Fabian to pay a mandatory fine of $5,000. Near the end of the sentencing hearing, the trial court realized it had failed to advise Fabian of postrelease control during the plea colloquy. Consequently, the trial court addressed Fabian and informed him that upon release from prison he may be subject to three years of postrelease control. The trial court further informed Fabian of the consequences of violating the terms of postrelease control. Fabian acknowledged that he understood.
{¶ 4} Fabian now appeals, raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} PATRICK FABIAN DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.
{¶ 7} Fabian argues that he did not knowingly, intelligently, or voluntarily enter his guilty plea because the trial court failed to comply with
{¶ 8} When a defendant enters a guilty plea in a felony criminal case, the plea must be knowingly, intelligently, and voluntarily made. State v. Smith, 12th Dist. Warren Nos. CA2019-10-113 and CA2019-11-121, 2020-Ohio-3074, ¶ 7. Failure on any of those points renders enforcement оf the plea unconstitutional under both the United States and Ohio Constitutions. Sarkozy at ¶ 22. To ensure that a defendant‘s guilty plea is knowingly, intelligently, and voluntarily made, the trial court must engage the defendant in a plea colloquy pursuant to
{¶ 9} As pertinent here is
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(Emphasis added.)
{¶ 10} Postrelease control is a “period of supervision by the adult parole authority after a prisoner‘s release from imprisonment[.]”
{¶ 11} As further explained by the General Assembly in
Prior to accepting a guilty plea or a plea of no contest to an indictment, information, or complaint that charges a felony, the court shall inform the defendant personally that, if the defendant pleads guilty or no contest to the felony so charged or any other felony, if the court imposes a prison term upon the defendant for the felony, and if the offender violates the conditions of a postrelease control sanction imposed by the parole board upon the completion of the stated prison term, the parole board may impose upon the offender a residential sanction that includes a new prison term of up to nine months.
{¶ 12} Thus, “whether mandatory or discretionary, postrelease control is an additional penalty for the offense that the defendant must consider in determining whether to waive his constitutional rights and enter a guilty plea.” Jones, 2014-Ohio-4497 at ¶ 14. “And
{¶ 13} Pursuant to
{¶ 14} The Ohio Supreme Court has recently once again addressed a trial court‘s compliance with
{¶ 15} The court then reiterated the two limited exceptions to the prejudice component of the traditional rule. The first exception occurs “[w]hen a trial court fails to explain the constitutional rights [set forth in
{¶ 16} “Aside from these two exceptions, the traditional rule continues to apply: a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 17} Recognizing that its previous caselaw has “muddled” the analysis that should apply when reviewing a defendant‘s guilty or no contest plea “by suggesting different tiers
{¶ 18} The supreme court has never explicitly defined a trial court‘s “complete failure to comply” with
{¶ 19} It is plain that a complete failure to comply with
{¶ 20} A criminal sentence consists of several distinct components, including a prison sentence, a fine, postrelease control, and where applicable, certain criminal statutory registration and notification requirements. The upshot of Sarkozy and Dangler is that a trial court‘s total failure to inform a defendant of a distinct component of the maximum penalty during a plea colloquy constitutes a complete failure to comply with
{¶ 21} At issue is whether the trial court complied with
{¶ 22} As stated above, postrеlease control was an element of Fabian‘s sentence and a component of the maximum penalty pursuant to
{¶ 23} Because “[t]he maximum-penalty advisement is not a constitutional requirement,” the second question asks us to determine whether the trial court‘s failure to advise Fabian of postrelease control under
{¶ 24} As discussed above, pursuant to Sarkozy/Dangler, the failure of a trial court to provide any advice concerning a distinct component of the maximum penalty during a plea colloquy is a complete failure to comply with
{¶ 25} The state nevertheless argues that Fabian‘s guilty plea was voluntarily entered because Fabian‘s plea and sentencing were conducted in one hearing аnd the trial
{¶ 26} However, Sarkozy unequivocally held that
{¶ 27} This case is similar to our opinion in Floyd and to the First Appellate District‘s opinion in Jones. Floyd, 2017-Ohio-687; Jones, 2014-Ohio-4497. In both cases, the defendants pled guilty to charges that subjected them to a discretionary period of up to three years of postrelease control if sentenced to prison. However, at the plea colloquy, the respective trial courts failed to explain or even mention postrelease control to the defendants. Citing Sarkozy, the First Appellate District vacated the defendant‘s guilty plea, finding that the trial court completely failed to comply with
{¶ 28} Likewise, this court found that the defendant‘s guilty plea was not voluntarily entered because “in accordance with Sarkozy and its progeny, as well as with the provisions found in
{¶ 29} Having answered the second question of Dangler in the affirmative, no showing of prejudice is required, and we therefore do not reach the third question. Considering the favorable plea deal Fabian negotiated, the record does not suggest that he was prejudiced by the trial court‘s failure to аdvise him of postrelease control during the plea colloquy, in the sense that he would not otherwise have entered the plea. Nevertheless, the three-question inquiry adopted by the Ohio Supreme Court in Dangler does not allow a reviewing court to address whether a defendant was prejudiced when a trial court either fails to explain the constitutional rights set forth in
{¶ 30} The record further suggests that Fabian was aware he was subject to postrelease control based upon the plea form he signed which plainly indicated that he was subject to a discretionary period of postrelease control of up to three years. However, while “[a] written acknowledgment of a guilty plea and a waiver of trial rights executed by an accused can, in some circumstances, reconcile ambiguities in the oral colloquy that
{¶ 31} In light of all of the foregoing, we find that the trial court completely failed to comply with
{¶ 32} Assignment of Error No. 2:
{¶ 33} PATRICK FABIAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 34} Fabian argues that he received ineffective assistance of counsel because trial counsel did not move for a waiver of the mandatory fine at the sentencing hearing. However, based upon our resolution of Fabian‘s first assignment of error, his second assignment of errоr is moot. State v. Martin, 12th Dist. Warren No. CA2018-09-105, 2019-Ohio-2792.
{¶ 35} Fabian‘s conviction and sentence for drug trafficking is hereby reversed and his plea to those offenses is vacated. This matter is reversed and remanded to the trial court for further proceedings consistent with law and in accordance with this opinion.
HENDRICKSON, P.J., concurs.
PIPER, J., dissents.
PIPER, J. dissenting.
{¶ 36} While appreciating the majority‘s application of Dangler, I respectfully disagree with its application and as well dispute the majority‘s analysis of the facts before us. I must, therefore, dissent from the foregoing opinion.
{¶ 37} Fabian‘s plea was demonstratively made knowingly, voluntarily, and intelligently. The events at the plea and sentencing hearing, which had an agreed sentence, clearly dоcument Fabian was informed by the trial court of postrelease control.2 Thus, the trial court did not make a complete failure to comply with
{¶ 38} Near the end of the plea and sentencing hearing, the trial court addressed Fabian and informed him that postrelease control was not mandatory but could be imposed for three years. The trial court also informed Fabian of the repercussions of violating the terms of postrelease control and asked Fabian if he understood the postrelease control issue. Fabian responded, “Yes, Your Honor.” The court then asked if there were any other issues and both parties responded, “No.”
{¶ 39} While the trial court had already accepted Fabian‘s plea at this point, the
{¶ 40} When an appellant challenges his plea as not knowingly, intelligently, and voluntarily entered, the Ohio Supreme Court has noted that an executed plea form could be a factor considered when reviewing the trial court‘s compliance with
{¶ 41} The majority ruling today suggests that if an attorney reminds a judge he or she forgot tо address something prior to accepting a plea, the judge has no freedom to revisit discussions with the defendant in order to insure the defendant‘s voluntariness and understanding. Such precedent is not pragmatic and runs contrary to the spirit of
{¶ 42} While the majority and I both rely on Dangler, I find Dangler simplified the analysis necessary for an аppellate court when reviewing a trial court‘s acceptance of a defendant‘s guilty plea. The Dangler court was patently clear that a defendant is not entitled to have his or her plea vacated unless he or she demonstrates prejudice by a failure of the trial court‘s compliance with
{¶ 43} The only exceptions noted within Dangler include a trial court‘s complete failure to comply with a portion of
{¶ 44} Dangler directed appellate courts to consider only three specific questions: “(1) has the trial court complied with the relevant provision of the rule? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?” Id. at ¶ 17.
{¶ 45} The majority determines that the trial court‘s discussion of postrelease control after accepting Fabian‘s plea was a complete failure because it was out of the customary sequence. I disagree, and would find that the trial court‘s error was not the type that excuses Fabian from his burden to demonstrate prejudice.
{¶ 46} I also find Fabian‘s reliance on State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, unpersuasive. In Sarkozy, the Ohio Supreme Court determined that the trial court fully failed to inform the defendant that he was subject to mandatory postrelease control and that such failure rendered the plea involuntarily given without consideration of
{¶ 47} Here, however, the trial court did not fail to inform Fabian of postrelease control and did so upon being reminded by the attorneys that such a discussion had not bеen had. The state and defense counsel had the plea and agreed sentence form as representing that postrelease control was mandatory. Upon realizing their mistake, they jointly requested the court to revisit the plea information and cross off the word “mandatory.” This correction was entirely to Fabian‘s benefit.
{¶ 48} After making the correction, the trial court asked Fabian directly if he understood what the court had explained regarding postrelease control and Fabian responded that he did. At no time did Fabian express any form of confusion about postrеlease control or otherwise indicate a lack of understanding. Fabian‘s counsel raised no objection to the sequence of the trial court‘s discussion of postrelease control; the discussion was actually invited by both the state and Fabian‘s counsel for purposes of correcting the record.
{¶ 49} Dangler does not instruct appellate courts to abandon legal tenets that have historically been used when reviewing the context of real-world daily events. Trial court determinations are rarely considered in a vacuum, and instead, in a multitude of situations, are considered in relation to the totality of the circumstances.3 State v. Hagan, 12th Dist. Butler No. CA2018-07-136, 2019-Ohio-1047 (where the totality of the circumstances indicated the appellant‘s guilty plea was knowing, intelligent, and voluntary). More recently, where the challenge was to the
implications of his guilty plea. State v. Williams, 8th Dist. Cuyahoga No. 108333, 2020-Ohio-3588.
{¶ 50} The majority‘s decision today gives more significance to the sequence of events rather than the substance of what the discussions were with Fabian. The entirety of the record clearly reveals Fabian subjectively understood the implicatiоn of his plea in the sentence he and the state had agreed to.
{¶ 51}
{¶ 52} I would thus answer the Ohio Supreme Court‘s three questions given us in Dangler at ¶ 17 as such: (1) The trial court did not fully comply with
{¶ 53} I would also overrule Fabian‘s second assignment of error in which he argues that his trial counsel was ineffective for failing to move for waiver of a mandatory fine. To prevail on an ineffective assistance of counsel claim, an appellant must establish that (1)
{¶ 54} According to
{¶ 55} I would find that Fаbian is unable to demonstrate ineffective assistance of counsel because he cannot show that a motion to waive the mandatory fine would have been granted. The record indicates that the trial court specifically considered Fabian‘s ability to pay and made a finding that Fabian had, or will have in the future, the means to pay the fine, and the record supports that finding.
{¶ 56} Fabian was able to pay a bail bondsman to post his $250,000 cash bond, and Fabian owned his own company. Fabian described himself as physically fit and noted that he was building a house for his family. Thus, Fabian had skills necessary to earn a living once released from prison and demonstrated no reason why he would unable to pay in the future. Thus, Fabian has not demonstrated his counsel was ineffective, and I would overrule his second assignment of error.
{¶ 57} I would affirm the trial court‘s ruling in all respects. Therefore, I dissent and cannot join in the majority‘s decision to sustain Fabian‘s first assignment of error.
PIPER, J.