STATE OF OHIO v. DEONTE CORTEZ GIVENS
CASE NO. CA2014-02-047
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
2/2/2015
[Cite as State v. Givens, 2015-Ohio-361.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-09-1490
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
OPINION
RINGLAND, P.J.
{1} Defendant-appellant, Deonte Givens, appeals from his conviction and the sentence he received in the Butler County Court of Common Pleas following his guilty plea to robbery, theft and a firearm specification.
{2} On January 7, 2014, Givens pled guilty to charges of robbery with a gun specification and petty theft. At the plea hearing, the trial court attempted to engage in a plea colloquy as required by
{3} During that colloquy, the trial court failed to advise Givens that he was subject to a mandatory prison term for the robbery charge because he had been adjudicated delinquent for aggravated robbery as a minor. While the trial court advised Givens that “the minimum sentence you could get there would be two years,” the court did not advise Givens that the minimum sentence was mandatory.
{4} The trial court went on to advise Givens that he may be eligible to earn days of credit while in prison. However, because Givens’ prison term was mandatory, he was not eligible to earn days of credit. In addition, the trial court informed Givens that there was a “presumption that prison is necessary.” However, prison was mandatory for Givens rather than merely presumed. Moreover, the plea form itself was marked “N/A” under the heading titled “Prison Term is Mandatory/Consecutive.” Finally, the judgment of conviction entry itself did not state that the prison sentence for the robbery conviction is mandatory.
{5} Givens now appeals his conviction and sentence, raising three assignments of error for review.
{6} Assignment of Error No. 1:
{7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN ITS ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY, IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{8} Within this assignment of error, Givens argues that, “[a] trial court errs in misadvising an accused of the mandatory nature of his prison sentence during the plea colloquy, and the court further errs in advising [the] accused that he can earn credit against the prison term to be imposed.”
{9} The defendant‘s plea in a criminal case is invalid if not made knowingly,
{10}
(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.
(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.
(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.
{11} In conducting this colloquy, the trial judge must convey accurate information to the defendant so that the defendant can understand the consequences of his decision and enter a valid plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 26.
{12} A guilty plea is invalid if the trial court does not strictly comply with
{13} Even if we find the trial court did not substantially comply with
{14} It is undisputed that the trial court strictly complied with the constitutional requirements of
{15} On the other hand, the trial court wholly failed to comply with the nonconstitutional notifications of
{16} The miscommunication regarding the mandatory term of Givens’ potential sentence was too significant to allow the conclusion that he subjectively understood the effects of his plea. Indeed, Givens’ plea form itself suggested there was no mandatory prison term for the robbery charge. Furthermore, Givens was improperly advised at the plea hearing that prison was merely a presumption and that he was eligible to earn credit. At no point, either through the plea form or during the plea hearing, was Givens advised that the robbery charge carried a mandatory prison term. In fact, Givens was expressly advised that a prison term was not mandatory. Such a failure cannot be considered harmless as a mandatory prison term renders Givens ineligible for community control, judicial release, or earned credit on the robbery charge. State v. Hendrix, 12th Dist. Butler App. No. CA2012-12-265, 2013-Ohio-4978, ¶ 26. Accordingly, we find that Givens could not have subjectively understood that he was subject to a mandatory prison term on the robbery charge.
{17} In light of the foregoing, having found that Givens’ plea was not made knowingly, intelligently and voluntarily where the trial court failed to advise him that he was subject to a mandatory prison term on the robbery charge, Givens’ first assignment of error is sustained.
{18} Assignment of Error No. 2:
{19} THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF APPELLANT IN IMPOSING MULTIPLE SENTENCES FOR ALLIED OFFENSES.
{20} Assignment of Error No. 3:
{21} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT AFFORDING HIS RIGHT OF ALLOCUTION BEFORE IMPOSING SENTENCE.
{22} Based upon our resolution of the Givens’ first assignment of error, the
{23} Givens’ conviction and sentence for robbery, theft and the firearm specification are 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 the law and in accordance with this opinion.
HENDRICKSON and PIPER, JJ., concur.