State v. GulleyState v. Gulley
OPINION.
{¶ 1} Defendant-appellant Glenn Gulley appeals from the judgment of the trial court convicting him of burglary, in violation of
{¶ 2} In State v. Jordan, the Ohio Supreme Court definitively determined that a trial court “is duty-bound to notify [an] offender” about post-release control at sentencing regardless of whether that information was earlier conveyed at the time of a plea. 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22. The court, construing
{¶ 3} The Jordan court also noted that a trial court‘s failure to provide post-release notification before accepting a guilty or no-contest plea may form the basis to vacate the plea. See State v. Jordan at ¶ 28. Today, we hold in this case that because the trial court failed to personally address Gulley and inform him of the correct mandatory length of the post-release-control period — a part of his sentence — before accepting his guilty plea, the court failed to substantially comply with
The Trial Court‘s Misstatements at the Plea Colloquy
{¶ 4} After consulting with his counsel, Gulley signed a form withdrawing his not-guilty plea and entering a guilty plea to burglary, a second-degree felony. The plea form stated, “After prison release, I may have (5 years for F-1 or sex offense) or [sic] up to 3 years of post-release control.” (Emphasis added.) The form also noted that Gulley could be returned to prison for nine months for a violation of the conditions of post-release control, for a total additional imprisonment not to exceed one-half of his original five-year sentence. Gulley acknowledged to the trial court that he had read and understood the form before signing it.
{¶ 5} In its plea colloquy, the trial court told Gulley, “Once you‘ve served your time, the parole board will decide whether or not they want to place you on Post-Release Control, what we used to call `parole.’ If they do place you on Post-Release Control, and you violate the conditions [of] that control, you can be sent back to the penitentiary. Do you understand that?” Gulley answered in the affirmative.
{¶ 6} Although Am.Sub.S.B. No. 2 had been in effect for over eight years when Gulley entered his guilty plea, the trial court‘s remarks reflected its lack of attention to detail in carrying out its duties both before accepting a guilty plea and at sentencing. Just as the scheme “makes sentencing a more complex task,” so a trial court accepting a plea of guilty or no contest must also “consider and analyze numerous sections of the Revised Code and must provide notice to offenders” of their impact on the offenders. Id. This is one of a number of cases that suggests that trial courts would be well served by a checklist or script when they advise offenders of the post-release-control implications of pleas to ensure compliance with
{¶ 7} In State v. DeArmond (1995), 108 Ohio App.3d 239, 242, 670 N.E.2d 531 (citations omitted), this court reaffirmed that trial “courts must ensure that a criminal defendant realizes what he is giving up [when entering a plea of no contest or guilty]. `The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.‘” The purpose of the rules and statutes that govern the acceptance of a plea is “to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty.” State v. Ballard (1981), 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115.
{¶ 8} The trial court‘s notice of post-release control at Gulley‘s plea hearing was flawed in three respects: (1) both the plea form and the trial court misinformed him that, after his release from prison for a second-degree felony, post-release control was within the discretion of the Adult Parole Authority (“APA“); (2) when personally addressing Gulley, the trial court did not mention that a new prison term of up to nine months for a violation of the conditions of post-release control could be imposed; and (3) the trial court failed to tell Gulley that, in addition to a potential maximum prison term of eight years for his burglary conviction, he would be supervised for three years by the APA.
Notice of Post-Release Control Required at the Plea Hearing
{¶ 9} The state concedes that at the plea hearing Gulley was misinformed that his post-release control would be discretionary. By operation of law, Gulley was subject to a mandatory period of post-release control. See
{¶ 10} The thrust of the state‘s argument is that because post-release-control notification “truly is part of the sentencing hearing,” the trial court was not required to inform Gulley about being subject to post-release control at the plea hearing. Thus, Gulley cannot demonstrate that he was prejudiced by any misstatement at the plea hearing. This argument presupposes that Gulley received the correct notice at sentencing. He did not, as the trial court again repeated that post-release control would be at the discretion of the APA. Cf.
{¶ 11} By statute and by rule, however, the trial court also has an independent duty, separate from its sentencing obligations, to inform a defendant personally of post-release control before accepting a plea of guilty or no contest. First, before accepting a plea and imposing a prison term, under
{¶ 12} Next,
Post-Release Control is a Part of a Felony Offender‘s Sentence
{¶ 13} If the trial court imposes a prison term for the underlying felony “it shall include in the sentence” a period of post-release control.
{¶ 14} “As part of the sentence, [post-release control] is a fortiori intertwined with the requirements of
{¶ 15} Because post-release control is part of the maximum penalty involved, a trial court violates its duty under
{¶ 16} Thus, under
Substantial-Compliance Scrutiny
{¶ 17} When articulating the nonconstitutional notifications of
{¶ 18} In State v. Yanez at ¶ 31-32, we held that the trial court‘s statutory duty to personally address a noncitizen defendant and inform him of the immigration consequences of entering a guilty or no-contest plea as required by
Gulley Was Not Misled By the Reference to a Discretionary Period
{¶ 19} While a trial court can violate its duty under
The Trial Court Did Not Personally Address Gulley and Inform Him of the Maximum-Penalty and Prison-Duration Consequences of His Plea
{¶ 20} At the plea hearing, the trial court failed to address Gulley personally and inform him (1) of the three-year duration of the post-release-control period required by
{¶ 21} Where a trial court omits any reference to the imposition of post-release control in its pre-plea colloquy with the defendant, there is no compliance with
{¶ 22} But a rote recitation of the post-release-control notification is not required. For example, where the trial court erroneously overstates the length of additional prison time that can be imposed for a violation of post-release-control conditions, the defendant is not prejudiced. See State v. Carnicom at ¶ 15-16.
{¶ 23} Here, the trial court completely failed to inform Gulley personally of the three-year duration of his period of post-release control before accepting his plea. The trial court also failed to include in its colloquy the duration of any additional prison time for violations of post-release-control conditions. Because post-release control was part of Gulley‘s sentence, the trial court did not substantially comply with the maximum-penalty component of
{¶ 24} Although Gulley acknowledged that he had read and signed the plea form that correctly stated the length of the period of post-release control and the additional prison term for a violation of a post-release-control conditions, we have held that a written plea form that recites the maximum penalties for an offense is not alone substantial compliance with
{¶ 25} Although the written plea form that Gulley signed after consultation with his counsel incorrectly stated that the post-release-control period was discretionary, it correctly identified the length of the period of post-release control and of the additional prison terms for violations. Both
{¶ 26} Because Gulley was not given accurate information about the consequences of his plea, we hold, under the totality of the circumstances, that the trial court did not substantially comply with the requirements of
Remedy
{¶ 27} The failure to provide notice of post-release control at the plea hearing cannot form the basis of a claim to modify a sentence by eliminating any post-release-control requirements. See State v. Jordan, at ¶ 28. Because Gulley‘s guilty plea was not knowing and voluntary, his plea and sentence are hereby vacated, the judgment is reversed, and the case is remanded for further proceedings consistent with this Opinion.
Judgment accordingly.
Painter and Hendon, JJ., concur.