Lead Opinion
{¶ 2} In July of 2005, the Allen County Grand Jury indicted Harper on two counts of trafficking in crack cocaine in violation of R.C.
{¶ 3} At a change of plea hearing in September of 2005, Harper withdrew his not guilty plea and entered a negotiated plea of guilty to three counts of trafficking in crack cocaine in violation of R.C.
{¶ 4} In October of 2005, the trial court held a sentencing hearing and sentenced Harper to nine months of imprisonment for each of the trafficking counts and to seventeen months of imprisonment for the attempted intimidation count. The trial court determined that the sentences were to be served consecutively, for an aggregate of forty-four months of imprisonment. Harper was also subject to a period of up to three years of post release control and was ordered to pay restitution in the amount of one-hundred dollars to the Allen County Sheriff's Department, as well as restitution for reasonable and ordinary medical expenses to the victim witness.
{¶ 5} In November of 2005, Harper filed a notice of appeal of his sentence and moved for appointment of new counsel for purposes of the appeal. On November 17, 2005, the trial court granted Harper's motion for new counsel and appointed counsel for this appeal.
{¶ 6} In January of 2006, Harper's counsel filed an Anders Brief seeking leave to withdraw representation due to the lack of credible arguments to present for review. On June 21, 2006, this Court denied the motion for leave to withdraw representation. Harper's November 2005 appeal is now before this Court, in which, he presents the following assignment of error for our review.
THE APPELLANT WAS SENTENCED UNDER STATUTES WHICH UNCONSTITUTIONAL, ARE MANDATING REVERSAL AND REMANDING FOR RE-SENTENCING.
{¶ 7} In his sole assignment of error, Harper contends that the trial court's determination that his sentence be served consecutively, as well as its imposition of more than the minimum term of imprisonment, was based upon unconstitutional statutes. Specifically, Harper asserts that the Ohio Supreme Court's ruling in Foster requires that his sentence be vacated and the case be remanded for a new sentencing hearing.
{¶ 8} Before addressing the merits of Harper's assignment of error, we sua sponte raised the issue of whether Harper could lawfully plead guilty to attempted intimidation of a witness. We then allowed additional briefing on this issue by the parties.
{¶ 9} As noted above, Harper was originally indicted for two counts of trafficking in crack cocaine in violation of R.C.
{¶ 10} The attempt statute makes it unlawful for a person to purposely or knowingly "engage in conduct that, if successful, would constitute or result in [an] offense." R.C.
{¶ 11} However, a review of the intimidation of a witness statute indicates that the State erred by amending the indictment to include the attempt statute. Intimidation of a witness is proscribed under R.C.
No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder * * * [a] witness involved in a criminal action or proceeding in the discharge of the duties of the * * * witness.
Clearly, intimidation under R.C.
{¶ 12} Moreover, this conclusion adheres to the Committee Comment to the attempt statute, R.C.
This section is a general attempt statute which consolidates several specific attempt provisions in former law, and, with three exceptions, establishes an attempt to commit any offense as an offense in itself. The exceptions are an attempt to commit conspiracy, an attempt to commit a minor misdemeanor, and an attempt to commit any offense which in itself is defined as an attempt — in these cases, attempt is not an offense.
Phillips,
{¶ 13} Here, the State's coupling of R.C.
{¶ 14} Based on the foregoing, Harper's assignment of error is rendered moot. Accordingly, we decline to address it. See App.R. 12(c).
{¶ 15} Having found error prejudicial to the Appellant herein, in the particulars assigned and argued, we vacate Appellant's guilty plea and conviction and remand to the trial court for further proceedings consistent with this opinion.
Judgment vacated and cause remanded. SHAW, J., concurs. BRYANT, P.J., concurs in part and dissents in part.
Dissenting Opinion
{¶ 16} For the following reasons I concur in the judgment of the majority reversing the judgment, but dissent from the judgment vacating the plea. This case is not one in which the State has tried and wrongly convicted Harper of conduct that is not a crime. Rather, this is an appeal by Harper assigning as error, in the aftermath of State v.Foster,
{¶ 17} The actual assignment of error presented to us only raised the question as to whether the trial court's sentence was appropriate in light of Foster. I agree that this assignment of error should be sustained upon authority of Foster. In my opinion our inquiry and authority end with that decision and judgment. Appellate Rule 12, in pertinent part, provides:
(A) Determination.
(1) On an undismissed appeal from a trial court, a court of appeals shall do all of the following:
(a) Review and affirm, modify, or reverse the judgment or final order appealed;
(b) Determine the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16, the record on appeal under App.R. 9, and, unless waived, the oral argument under App.R. 21;
* * *
(B) Judgment as a matter of law. When the court of appeals determines that the trial court committed no error prejudicial to the appellant in any of the particulars assigned and argued in appellant's brief and that the appellee is entitled to have the judgment or final order of the trial court affirmed as a matter of law, the court of appeals shall enter judgment accordingly. When the court of appeals determines that the trial court committed error prejudicial to the appellant and that the appellant is entitled to have judgment or final order rendered in his favor as a mater of law, the court of appeals shall reverse the judgment or final order of the trial court and render the judgment or final order that the trial court should have rendered, or remand the cause to the court with instructions to render such judgment or final order. In all other cases where the court of appeals determines that the judgment or final order of the trial court should be modified as a matter of law it shall enter its judgment accordingly.
* * *
(D) All other cases. In all other cases where the court of appeals finds error prejudicial to the appellant, the judgment or final order of the trial court shall be reversed and the cause shall be remanded to the trial court for further proceedings.
App.R.12. Clearly, our judgments of reversal must be founded on a finding of prejudice to the Appellant.
{¶ 18} In this matter at hand, Harper has suffered no prejudice and indeed has gained a substantial benefit from the plea bargain approved by the trial court. The only prejudice to Harper, and apparently to the State, arises from our judgment depriving both of the benefit of their plea bargain. The application of the criminal statutes involved, even if wrongly applied, do not deprive the trial court of its subject matter jurisdiction nor its personal jurisdiction of the Appellant. The sentence imposed then is not void for following this statute but is merely voidable and reviewable only for abuse of discretion. It is not the trial court's abuse of discretion that then is at issue, but our replacing the trial court's exercise of discretion with ours that results in prejudice to the Appellant.
{¶ 19} We purport to recognize plain error from misapplication of the statutes involved. Our authority to do so is governed by Crim.R. 52 which states as follows:
Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
(B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Crim.R. 52. No substantial right of either the Appellant or the Appellee is prejudicially affected in these circumstances of their complete agreement and action to achieve a just resolution of this criminal matter without undue expenditure of time and money; of their failure to object or otherwise call the trial judge's attention to any perceived error, defect, irregularity, or variance and its effect on some substantial right.
{¶ 20} In State v. Rosebrook, 3rd Dist. No. 8-05-07,
The present case presents a far different situation. A plea agreement in which some charges are dropped in exchange for a guilty plea to other charges, does not, of course, equate to an acquittal. And, the plea agreement at issue in the present case expressly includes an agreement by the defendant to pay restitution for the loss he caused to the victims even though the criminal charges arising from his conduct in those situations were dismissed as part of the overall case settlement.
Rosebrook could reasonably have concluded that a restitution order was preferable to conviction, or the possibility of conviction, on the charges dropped by virtue of the plea agreement. Nothing in the law prevents him from making that choice.
For the foregoing reasons, we find the trial court did not err in ordering Rosebrook to pay restitution on counts that were dismissed following Rosebrook's change of plea. Accordingly, Rosebrook's first assignment of error is overruled.
Id. at ¶ 23-23. Absent a showing of an adverse affect on the substantial right of a defendant, any plain error is harmless and may be disregarded by the court. In re Reed,
Additionally, the Ohio Supreme Court has held that it is invited error when a party asks a court to take some action later claimed to be erroneous. State v. Campbell,
Finally, trial courts can accept Alford pleas in which the defendant denies guilt, but agrees to plead guilty to avoid a trial for whatever reason. In those situations, the trial court accepts the guilty plea even though the defendant is still claiming their innocence merely because the defendant believes that the offered sentence is better than what the outcome of a trial is likely to be. This is a similar situation in that the defendant agreed to plead guilty to a charge that is technically not valid because the offered sentence is better than what the outcome of a trial is likely to be. Since the definition of intimidation of a witness includes attempt and Harper admitted to the attempt, he could have been found guilty of the third degree felony which would affect his overall sentence. Thus, he benefited from the plea agreement and should be allowed to keep the benefit of his deal.
{¶ 21} Therefore, I respectfully concur separately from the opinion and judgment entered herein reversing the trial court and dissent from the majority's vacating the bargained sentence. I would sustain Appellant's assignment of error, reverse Appellant's void sentence, and remand the cause to the trial court for resentencing in compliance withFoster.