State v. FieldsState v. Fields
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 15, 2010
APPEARANCES:
For Plaintiff-Appellee
ROBERT L. SMITH
Muskingum County
Assistant Prosecuting Attorney
27 North Fifth Street
Zanesville, Ohio 43701
For Defendant-Appellant
ELIZABETH N. GABA
1231 East Broad Street
Columbus, Ohio 43205
O P I N I O N
{¶1} Appellant, Gerald Fields, appeals a judgment of the Muskingum County Common Pleas Court convicting him of trafficking in crack cocaine (
STATEMENT OF FACTS AND CASE
{¶2} On August 6, 2009, an informant working for the Zanesville Police Department purchased crack cocaine from appellant in a Bob Evans parking lot in Zanesville, Ohio. Prior to the purchase, police officers observed appellant leave his residence and drive to the scene in a 1990 Cadillac. Immediately after the transaction, officers conducted a traffic stop and recovered the cash used by the informant to purchase the drugs from appellant.
{¶3} The Muskingum County Grand Jury indicted appellant on 13 drug offenses, with the August 6, 2009, controlled buy constituting the first two counts of the indictment. On October 13, 2009, appellant entered pleas of guilty to Counts One and Two of the indictment, trafficking in crack cocaine and permitting drug abuse, and to the forfeiture specification attached to the first count. The state nolled the remaining 11 counts of the indictment. Appellant was sentenced to 8 years incarceration for trafficking in cocaine and 12 months in prison for permitting drug abuse, to be served consecutively. He assigns eight errors on appeal:
{¶4} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ACCEPTING HIS GUILTY PLEAS, AS APPELLANT‘S PLEAS WERE NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED, AND WERE
{¶5} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY ACCEPTING HIS GUILTY PLEAS, AS APPELLANT‘S PLEAS WERE NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED, AND WERE THEREFORE OBTAINED IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT OT THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE CONSTITUTION OF THE STATE OF OHIO. A GUILTY PLEA TO A SENTENCE CARRYING MANDATORY 3 YEARS POST RELEASE CONTROL IS NOT KNOWING, VOLUNTARY AND INTELLIGENT WHEN THE TRIAL COURT TELLS THE DEFENDANT THAT HE WILL BE SUBJECT TO ‘UP TO THREE YEARS’ OF POST RELEASE CONTROL DURING THE PLEA COLLOQUY, AND TELLS HIM THAT HE ‘COULD BE’ SENT BACK TO PRISON FOR VARIOUS VIOLATIONS OF THE ‘RULES AND REGULATIONS’ OF POST RELEASE CONTROL DURING THE PLEA COLLOQUY, BUT THEN SENTENCES HIM IN ADVANCE TO ‘ANY TERM FOR
{¶6} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW BY APPROVING AN ILLEGAL SENTENCING ENTRY. A SENTENCING ENTRY IS ILLEGAL AND THE SENTENCE IS VOID WHEN A DEFENDANT IS CONVICTED OF OR PLEADS GUILTY TO ONE OR MORE OFFENSES AND POST RELEASE CONTROL IS NOT PROPERLY INCLUDED IN THE SENTENCE FOR THE PARTICULAR OFFENSE.
{¶7} “IV. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW BY APPROVING AN ILLEGAL SENTENCING ENTRY. A SENTENCING ENTRY IS ILLEGAL AND THE SENTENCE IS VOID WHEN THE TRIAL COURT SENTENCES A DEFENDANT IN ADVANCE TO ‘ANY TERM’ FOR FUTURE VIOLATIONS OF POST-RELEASE CONTROL IN THE COURT‘S SENTENCING ENTRY.
{¶8} “V. THE TRIAL COURT VIOLATED DUE PROCESS, THE DOUBLE JEOPARDY CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS, AND
{¶9} “VI. THE TRIAL COURT VIOLATED DUE PROCESS AND
{¶10} “VII. THE TRIAL COURT VIOLATED DUE PROCESS AND THE 8TH AMENDMENT, AND ABUSED ITS DISCRETION, AND/OR COMMITTED PLAIN ERROR IN IMPOSING MAXIMUM CONSECUTIVE SENTENCES THAT WERE NOT COMMENSURATE WITH APPELLANT‘S CONDUCT.
{¶11} “VIII. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT, AND ACTED IN VIOLATION OF THE 5TH, 6TH, AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION, IN DENYING HIS MOTION TO CONTINUE THE JURY TRIAL.”
I, II
{¶12} In his first assignment of error, appellant argues that his plea was not knowing, voluntary, and intelligent because during the plea colloquy the court notified him that he could receive up to three years of postrelease control, rather than a mandatory term of three years postrelease control. In his second assignment of error, appellant restates his argument that his plea was not knowing, voluntary and intelligent because he was not properly informed of the term of postrelease control, and also argues that his plea is invalid because after orally informing him of the possibility that he could be sent back to prison for violations of postrelease control, the court then sentenced him in advance to “any term” for violation of postrelease control in the sentencing entry.
{¶14} “(2) 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:
{¶15} “(a) 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.”
{¶16} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the Ohio Supreme Court held that a trial court must inform a defendant of mandatory postrelease control as part of the requirements of
{¶17} The Sarkozy court at ¶22 stated, “A complete failure to comply with the rule does not implicate an analysis of prejudice.” Thereafter, the Supreme Court of Ohio decided the case of State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, stating:
{¶18} “When a trial judge fails to explain the constitutional rights set forth in
{¶19} “When the trial judge does not substantially comply with
{¶20} In the instant case, the court substantially complied with
{¶21} Further, appellant has not demonstrated prejudice from the discrepancy between the oral plea colloquy and the written plea form. He has not demonstrated that he would not have entered the plea had the judge correctly stated that the term was a mandatory three years rather than “up to” three years in the oral plea colloquy. The plea bargain in this case resulted in the dismissal of eleven counts of a thirteen count indictment. Sentencing was not a part of the agreement between appellant and the State. The parties agreed in the plea bargain that the state would recommend a sentence of nine years and appellant reserved the right to argue for a lesser sentence. Postrelease control was not a part of the plea bargain.
{¶22} Appellant also argues his plea was invalid because in the sentencing entry, the trial court states:
{¶23} “The Court further notified the Defendant that “Post Release Control” is mandatory in this case <for three years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under
{¶24} Appellant argues that the sentence should not be “any term” for violation of postrelease control, but any term imposed for violation of postrelease control.
{¶26} “While on post-release control, you will be subject to a variety of rules and regulations. Should you fail to follow those rules and regulations, you could be sent back to prison for a period of up to nine months for each rule violation you may commit. Total amount of time you could be sent back to prison would be equal to one half of your original prison sentence.
{¶27} “If you commit a new felony while on post-release control, in addition to any sentence you receive for the new felony, additional prison time could be added to that sentence in the form of the time you have left on post-release control or one year, whichever is greater. Do you understand that?” Tr. 7.
{¶28} Further, the written plea agreement states:
{¶29} “A violation of any post release control rule, or condition can result in a more restrictive sanction while I am under post release control, and increased duration of supervision or control, up to the maximum term and re-imprisonment even though I have served the entire stated prison term imposed upon me by this Court for all offenses.
{¶30} “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 ½ 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 or the time remaining on post release control, in addition to any other prison term imposed for the offense.”
{¶31} The trial court completely explained to appellant the potential consequences of violation of the terms of postrelease control. Contrary to appellant‘s
{¶32} The first and second assignments of error are overruled.
III & IV
{¶33} In his third and fourth assignments of error, appellant argues that the sentencing entry is illegal and void because postrelease control was not properly included in the sentence and the court sentenced him in advance to “any term” of incarceration for violations of postrelease control.
{¶34} As discussed in I & II above, the court substantially complied with the requirements of
{¶35} The sentencing entry was not illegal or void. The third and fourth assignments of error are overruled.
{¶36} In his fifth assignment of error, appellant argues that the offenses are allied offenses of similar import.
{¶37} Appellant failed to raise this claim in the trial court. While appellant argued at the sentencing hearing that the counts “appear to be a continuous transaction,” appellant made this claim in support of his argument that the court should consider concurrent sentences under Oregon v. Ice. Appellant‘s failure to raise a claim that offenses are allied offenses of similar import in the trial court constitutes a waiver of the claimed error. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, 646. An error not raised in the trial court must be plain error in order for an appellate court to reverse. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804;
{¶38}
{¶39} “(A) Where the same conduct by the defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
{¶40} “(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or
{¶41} In State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, 1999-Ohio-291, the Ohio Supreme Court held that offenses were of similar import if the offenses “correspond to such a degree that the commission of one crime will result in the commission of the other.” Id. The Rance court further held that courts should compare the statutory elements in the abstract, which would produce clear legal lines capable of application in particular cases. Id. at 636. If the elements of the crime so correspond that the offenses are of similar import, the defendant may be convicted of both only if the offenses were committed separately or with a separate animus. Id. at 638-39.
{¶42} However, in 2008 the court clarified Rance, because the test as set forth in Rance had produced inconsistent, unreasonable and, at times, absurd results. State v. Cabrales, 118 Ohio St.3d 54, 59, 886 N.E.2d 181, 2008-Ohio-1625. In Cabrales, the court held that, in determining whether offenses are of similar import pursuant to
{¶43} The Cabrales court noted that Ohio courts had misinterpreted Rance as requiring a “strict textual comparison,” finding offenses to be of similar import only when all the elements of the compared offenses coincide exactly. Id. at 59. The Eighth Appellate District has described the Cabrales clarification as a “holistic” or “pragmatic” approach, given the Supreme Court‘s concern that Rance had abandoned common sense and logic in favor of strict textual comparison. State v. Williams, Cuyahoga No. 89726, 2008-Ohio-5286, ¶ 31, citing State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677. This Court has referred to the Cabrales test as a “common sense approach.” State v. Varney, Perry App. No. 08-CA-3, 2009-Ohio-207, ¶ 23.
{¶44} The Ohio Supreme Court revisited the issue of allied offenses of similar import in State v. Brown, 119 Ohio St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569. The court first found that aggravated assault in violation of
{¶45} The Ohio Supreme Court again addressed this issue in State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059. In Winn, the court considered whether kidnapping and aggravated robbery are allied offenses of similar import. The court compared the elements of each in the abstract. The elements for kidnapping,
{¶46} Having found the offenses to be of similar import under the Cabrales test, the Ohio Supreme Court in Winn did not consider the societal interests underlying the
{¶47} The Ohio Supreme Court again applied the Cabrales test in State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147. The court first looked at the elements of attempted felony murder, which required that the offender engage in conduct which, if successful, would result in the death of another as a proximate result of committing or attempting to commit an offense of violence. Because felonious assault is an offense of violence, the court concluded that felonious assault and attempted felony murder are allied offenses. Id. at ¶23. The court then considered whether attempted murder, defined as engaging in conduct which if successful would result in purposely causing the death of another, and felonious assault, defined as causing or attempting to cause physical harm by means of a deadly weapon, are allied offenses. While the elements considered in the abstract do not align exactly, the court concluded that when the defendant in that case attempted to cause harm with a deadly weapon, he also engaged in conduct which, if successful, would have resulted in the death of a victim, and the offenses were therefore allied. Id. at ¶26. The court then went on to consider whether the offenses were committed with a separate animus. Id. at ¶27.
{¶48} The state relies on State v. Robbins (April 29, 1994), Licking App. No. 93-CA-30, unreported, in which this Court found that complicity to aggravated trafficking in drugs and permitting drug abuse are not allied offenses of similar import. However,
{¶49}
{¶50} “(A) No person shall knowingly do any of the following:
{¶51} “(1) Sell or offer to sell a controlled substance;”
{¶52}
{¶53} “(A) No person who is the owner, operator, or person in charge of a locomotive, watercraft, aircraft, or other vehicle, as defined in division (A) of section 4501.01 of the Revised Code, shall knowingly permit the vehicle to be used for the commission of a felony drug abuse offense.”
{¶54} In Cabrales, the court found that possessing a controlled substance under
{¶56} The fifth assignment of error is overruled.
VI
{¶57} In his sixth assignment of error, appellant argues that the court failed to make the necessary findings required by
{¶58} In State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856, the Ohio Supreme Court found
{¶59} This Court has previously rejected this argument on several occasions, finding that we do not have the authority to overturn Foster. E.g. State v. Argyle, Delaware App. No. 09CAA090076, 2010-Ohio-273; State v. Arnold, Muskingum App. No. CT2009-0021, 2010-Ohio-3125. For the reasons stated in Argyle, supra, and Arnold, supra, the assignment of error is overruled.
{¶60} In his seventh assignment of error, appellant argues that his nine year sentence violates the Rule of Lenity and is not commensurate with his conduct.
{¶61} The rule of lenity is a principle of statutory construction that provides that a court will not interpret a criminal statute so as to increase the penalty it imposes on a defendant if the intended scope of the statute is ambiguous. See Moskal v. United States (1990), 498 U.S. 103, 107-108, 111 S.Ct. 461, 112 L.Ed.2d 449, quoting Bifulco v. United States (1980), 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205, quoting Lewis v. United States (1980), 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (“‘the ‘touchstone’ of the rule of lenity ‘is statutory ambiguity‘“); State v. Arnold (1991), 61 Ohio St.3d 175, 178, 573 N.E.2d 1079. Under the rule, ambiguity in a criminal statute is construed strictly so as to apply the statute only to conduct that is clearly proscribed. United States v. Lanier (1997), 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d 432.
{¶62} The Ohio Supreme Court has held that under the post-Foster sentencing scheme, a trial court has discretion to impose consecutive sentences and, despite the Foster severance of statutory presumptions, is not required by the rule of lenity to impose a minimum prison term. State v. Elmore, 122 Ohio St.3d 472, 912 N.E.2d 582, 2009-Ohio-3478, ¶42. Nothing in the language of
{¶63} Appellant has not pointed to any alleged ambiguity in the sentencing statutes. The rule of lenity therefore does not apply.
{¶64}
{¶66}
{¶67} In Kalish, the Court discussed the affect of the Foster decision on felony sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the judicial fact-finding portions of
{¶68} “Thus, despite the fact that
{¶69} Therefore, Kalish holds that, in reviewing felony sentences and applying Foster to the remaining sentencing statutes, the appellate courts must use a two-step approach. “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Kalish at paragraph 4, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶70} The sentence appellant received was within the permissible statutory range, and the court stated in its judgment that it had considered the principles and purposes of sentencing under
{¶71} Further, appellant has not demonstrated that the court abused its discretion in imposing the maximum sentence. The transcript of the sentencing hearing reflects that appellant had several prior felony convictions: receiving stolen property in 1981, two counts of trafficking in cocaine in 2004, and trafficking in cocaine in 2006. Appellant was released from prison on the 2006 conviction in June of 2007, and was arrested on the instant offenses in August, 2009. Tr. 8-9. Appellant represented to the court that he had been unemployed all his life. Tr. 5. The court did not abuse its discretion in sentencing appellant to the maximum sentence.
{¶72} The seventh assignment of error is overruled.
VIII
{¶73} In his eighth assignment of error, appellant argues the court erred in overruling his motion to continue the case. On September 28 and 29, 2009, appellant filed numerous motions, including a motion to continue based on the State‘s failure to provide discovery and a motion to compel discovery. Trial was set for October 13, 2009. On October 6, 2009, the court held a hearing on all outstanding motions. At this hearing the court overruled the motion to continue, finding that the BCI report appellant recently received in discovery would only serve to benefit appellant, because the report disclosed that some of the tested substances were not in fact controlled substances, which the State represented would result in the dismissal of some charges. Further, the
{¶74} Appellant entered a guilty plea as part of a plea bargain. “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” United States v. Broce (1989), 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927. The guilty plea renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt. Menna v. New York (1975), 423 U.S.61, 96 S.Ct. 241, 46 L.Ed.2d 195. Thus, when a defendant enters a plea of guilty as a part of a plea bargain he waives all appealable errors, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658; State v. Barnett (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101.
{¶75} While appellant now claims he was “boxed into a corner” by the denial of his motion to continue and forced to defend the case “with only one week to investigate the fragmented and disjointed discovery responses provided by the State.” However, nothing in the record supports this claim. The record of the plea hearing reflects that appellant knowingly entered a voluntary plea. He at no point stated that he was
{¶76} The eighth assignment of error is overruled.
{¶77} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Edwards, P.J.
Wise, J. and
Delaney, J. concur
s/Julie A. Edwards
s/John W. Wise
s/Patricia A. Delaney
JUDGES
JAE/r0818
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant.
s/Julie A. Edwards
s/John W. Wise
s/Patricia A. Delaney
JUDGES