State v. Gibson, 07 Ma 98 (9-5-2008)State v. Gibson, 07 Ma 98 (9-5-2008)
{¶ 1} Appellant Gary Gibson pleaded guilty in the Mahoning County Court of Common Pleas to four felony drug charges. He was sentenced to a total of four and one-half years in prison pursuant to the plea agreement. He now argues that his plea was not made knowingly, intelligently and voluntarily because he was misinformed about when he would be eligible for judicial release. Appellant argues that the trial judge should have imposed the four and one-half years of prison time so that the prison terms for all four counts would be served concurrently, thus allowing him to be eligible for judicial release at the earliest possible date. The record does not indicate that Appellant was misinformed about judicial release or that any particular date of eligibility for judicial release was part of the plea agreement. Although Appellant may have hoped that the trial judge would impose the prison terms to be most advantageous for early judicial release, the plea agreement clearly states that sentencing was at the sole discretion of the trial judge. Appellant‘s conviction and sentence are hereby affirmed.
BACKGROUND OF THE CASE
{¶ 2} Appellant was indicted on August 17, 2006, on three counts of trafficking in cocaine, and one count of engaging in a pattern of corrupt activity. Appellant entered into Crim. R. 11 plea negotiations with the prosecutor. On April 9, 2007, Appellant agreed to plead guilty to three counts of trafficking in cocaine,
{¶ 3} The sentencing hearing was held on May 22, 2007. The parties indicated at the hearing that they were jointly agreeing to a prison term of four-and-one-half years. (Tr., pp. 2, 4.) The court acknowledged that there was a jointly recommended sentence. The court reviewed with Appellant the rights he had waived and the options that were available to the court regarding sentencing. Appellant‘s attorney requested fines be imposed concurrently rather than consecutively. No mention was made of imposing any prison terms concurrently. The court asked Appellant and his counsel if there were any other matters to be addressed, and they both answered no. The court then imposed sentence. The court sentenced Appellant to one year in prison on each of counts one, two and three, which is the mandatory minimum, and 18 months on count four, all to run consecutively for a total of four and one half years in prison.
{¶ 4} After sentence was announced, Appellant‘s counsel asked to raise an issue concerning judicial release. (Tr., p. 20.) Counsel stated that he had agreed to the four-and-one-half year prison term because he understood that Appellant would be eligible for judicial release in 18 months. Under the judicial release statute, a defendant who receives a prison sentence of less than five years is not eligible for judicial release until after any mandatory prison terms have been served.
ASSIGNMENT OF ERROR
{¶ 5} [There is no formal assignment of error in Appellant‘s brief.]
{¶ 6} Appellant argues that his guilty plea was invalid based on confusion about when he would be eligible for judicial release. Under
{¶ 7} The first question that arises is whether Appellant can even pursue this appeal. Normally,
{¶ 8} Appellant contends that his guilty plea was somehow tied to the possibility of judicial release and that his confusion about judicial release rendered his plea invalid. Appellant and the state entered into a plea agreement pursuant to
{¶ 9} Appellant is incorrect that a trial court must discuss judicial release as part of a plea agreement. “[T]he trial court need not inform a defendant about his eligibility for judicial release unless it is incorporated into a plea bargain.” State v. Simmons, 1st Dist. No. C-050817, 2006-Ohio-5760, ¶ 13, citing State v. Mitchell, 11th Dist. No. 2004-T-0139, 2006-Ohio-618, and State v. Cline, 10th Dist. No. 05AP-869, 2006-Ohio-4782. There is no indication on this record that a certain date for judicial release was part of the plea agreement. Appellant‘s counsel did not raise the question of judicial release until after the sentence was actually announced. The prosecutor then informed the court that the state never agreed to judicial release, nor to any recommendations regarding judicial release. (Tr., p. 21.) In other words, Appellant‘s counsel surprised the trial judge and the prosecutor with the issue after
{¶ 10} Appellant cites one case in his brief, State v. Royles, 1st Dist. Nos. C-060875; C-060876, 2007-Ohio-5348. In Royles, the defendant agreed to a seven-year prison term as part of a plea agreement for two counts of trafficking in cocaine. The Royles court held that the defendant could appeal whether his plea was made voluntarily and intelligently even though his sentence was jointly recommended by the state and was accepted by the trial court. The Royles court then reviewed the plea. The record indicated that the trial judge told the defendant he was not eligible for judicial release or for any good-time reduction in his sentence. Royles held that the plea was entered into voluntarily, and the conviction and sentence were affirmed. It is unclear how Royles supports Appellant‘s argument. As previously stated, in the instant case the trial court was under no duty to discuss judicial release because it was not part of the plea agreement.
{¶ 11} Further, the plea agreement clearly reflects, and Appellant was obviously aware, that the trial court retained full discretion to impose any lawful sentence, and was not bound by the recommendations made by either the defendant or the prosecutor. Even if Appellant and the prosecutor had agreed to recommend that the prison terms be imposed in such a manner that Appellant might be eligible
{¶ 12} Because there is no error apparent from the record, the judgment of the trial court is affirmed.
Vukovich, J., concurs. DeGenaro, P.J., concurs.