State v. ImberState v. Imber
Rendered on the 17th day of August, 2012.
. . . . . . . . .
Andrew Wilson, Pros. Attorney; Lisa M. Fannin, Asst. Pros. Attorney, Atty. Reg. No. 0082337, 50 E. Columbia Street, 4th Floor, P.O. Box 1608, Springfield, OH 45501
Attorneys for Plaintiff-Appellee
Joe Cloud, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, OH 45432
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On May 4, 2011, Defendant Branden Imber entered guilty pleas to ten fourth-degree felony offenses. The State dismissed other charges. The parties agreed to an aggregate sentence of twelve years in exchange for Imber’s promise to cooperate in the State’s prosecution of a co-defendant, including testifying truthfully if called as a witness by the State.
{¶ 2} On that same date, the trial court imposed an agreed eighteen months sentence
{¶ 3} The State subsequently moved to withdraw the plea agreement. The State contended that Imber had refused to meet with prosecutors concerning the charges against the co-defendant. Following a hearing on August 10, 2011, the court held the State’s motion in abeyance until after the co-defendant’s trial, when Imber’s cooperation or lack of cooperation could be more fully considered.
{¶ 4} Both the State’s motion to withdraw and Imber’s sentencing on the remaining nine charges came on for hearing on August 12, 2011. The State had not called Imber to testify at his co-defendant’s trial. But, because Imber had declined to talk to prosecutors prior to that trial, the court found that Imber failed to provide the promised cooperation. Instead of an aggregate twelve year sentence for the ten charges of which Imber was convicted, the court imposed an aggregate sentence of thirteen and one-half years.
{¶ 5} The court journalized a judgment of conviction on all ten charges, including Count Three for which Imber was previously sentenced, on August 16, 2011. [Dkt. 20]. Imber filed a timely notice of appeal from that final judgment.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “THE TRIAL COURT ERRED AS A MATTER OF LAW AT THE PLEA HEARING WHEN IT FAILED TO COMPLY WITH
{¶ 8} After advising Imber of his right to trial and the related constitutional rights and determining that Imber understood his rights, the court engaged Imber in the following colloquy:
THE COURT: By pleading guilty you would be giving up all of these rights that we have gone over. Are you telling the Court that you want to give those rights up and plead guilty to these offenses set forth in the plea form?
THE DEFENDANT: Yes, sir.
THE COURT: The Court finds that the defendant has knowingly, voluntarily, intelligently waived his rights and entered pleas of guilty to those offenses. Based upon his plea I find him guilty.
{¶ 9} Pleas of guilty and not guilty may be made orally.
{¶ 10} Imber also argues that the trial court failed to address Imber personally and determine his understanding that he was not eligible for community control sanctions.
{¶ 11} Imber further argues that his plea was less than knowing, intelligent, and voluntary because the court failed to inform Imber that the plea agreement was not binding on the court, presumably when the court imposed its sentences. The court agreed to impose a twelve-year aggregate sentence, and its agreement was binding on the court unless Imber failed to cooperate with the State as promised. The court explained that in that event sentencing on the counts not including Count Three “would be left to the discretion of the court.” (Tr. 5). In addressing Imber, the court engaged him in the following colloquy:
THE COURT: the agreement is that you will receive a twelve-year sentence and no fine, again, so long as you fulfill your obligations under the plea agreement. Do you understand that?
THE DEFENDANT: Yes, sir. (Tr. 18).
{¶ 12} The record demonstrates that the court determined that Imber understood that the court’s agreement to impose a twelve year aggregate sentence would not be binding on the court should Imber breach his plea agreement, and in that event the court would be free to impose any other sentence or sentences authorized by law.
{¶ 13} Finally, Defendant complains that in conditionally accepting his guilty pleas the court did not make Imber aware of what his agreement to cooperate would require him to do. Imber promised his “cooperation” with the State in its prosecution of his co-defendant, and to testify truthfully if called as a witness. That promise was one Imber made and the court accepted. The court was entitled to accept Imber’s unqualified promise. It was
{¶ 14} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 15} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN BOTH SENTENCING HEARINGS VIOLATING THE DEFENDANT’S RIGHT TO DUE PROCESS WHEN IT FAILED TO APPLY THE APPLICABLE RULES AND STATUES.”
{¶ 16} Imber argues that the May 5, 2011 judgment of conviction is defective because it is contradictory, first stating that Defendant pled guilty to Count Three and subsequently that the State had agreed to dismiss Count Three. The judgment [Dkt. 13] states that Defendant pled guilty to Count Three, but not that the State agreed to dismiss Count Three. That particular misstatement was made by the prosecutor in describing the plea agreement when he said that the State agreed to dismiss Count Three. (Tr. 3).
{¶ 17} The prosecutor obviously misspoke, and Defendant does not contend that he understood that Count Three would be dismissed. More importantly, the alleged error is not before us for review. The May 5, 2011 judgment of conviction is a final order from which Imber took no appeal. The fact that the court again imposed a sentence for the offense in Count Three in the subsequent August 16, 2011 final judgment from which this appeal was taken does not operate to resurrect for review any error the court committed in the unappealed May 5, 2011 judgment of conviction.
{¶ 18} Imber again argues that he was convicted of Count Three without entering a guilty plea. We disposed of that claim with respect to the first assignment of error.
{¶ 19} Imber further complains that the August 18, 2011 judgment of conviction
{¶ 20} Defendant is correct, but he was not prejudiced by the error. The prior May 5, 2011 judgment of conviction, which correctly identifies Count Three as a fourth degree felony, is a final unappealed judgment that concluded Defendant’s conviction for Count Three. The erroneous reference to the offense in Count Three in the August 18, 2011 judgment of conviction as a fifth degree felony is harmless error.
{¶ 21} Defendant further argues that when it imposed his nine prison sentences at the August 12, 2011 proceeding on the remaining nine offenses, the court failed to notify him of his possible post-release control and the potential punishments for its violation. At the sentencing proceeding in which a prison sentence is imposed, the Defendant must be notified of any post-release control requirements to which he will or may be subject, and the potential penalties for their violation. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864 (2004). The notice must also be reflected in the resulting judgment of conviction. Id.
{¶ 22} The court conducted a combined “plea and disposition” proceeding on May 5, 2011. Imber pled guilty to the ten offenses to which he agreed to plead guilty, after the court advised him of the post-release control provisions applicable to his sentences for those offenses. (Tr. 19). The court then imposed a prison sentence on the offense in Count Three. The judgment of conviction the court entered on that same date indicates that the required notice concerning post-release control was given. (Dkt. 13).
MR. PICEK: Your Honor, would you advise him of his post-release control?
THE COURT: I don’t think there’s any mandatory post-release control.
MR. PICEK: It’s optional.
THE COURT: I advised him at the time of the plea that it would be optional. That will be all for today. (Tr. 21).
{¶ 24} The prosecutor was correct; post-release control notification must be given at the proceeding in which a prison sentence is imposed. Jordan. The trial court erred when it failed to notify Defendant of the post-release control provisions applicable to the nine sentences the court imposed in the proceeding held on August 12, 2011. The August 16, 2011 judgment of conviction imposing those sentences [Dkt. 20] states that the required notices were given at the August 12, 2011 sentencing proceeding, but that finding is belied by the record.
{¶ 25} In State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 23, 24, the Supreme Court explained that the remedy for error of this kind with respect to sentences imposed on or after July 11, 2006, is not reversal and resentencing, as Jordan held, but is instead the procedure set out in
{¶ 26} Defendant also argues that the court erred when it failed to state that it considered the factors in
{¶ 27} Finally, Defendant argues that his convictions for the offense alleged in Count Five, receiving stolen property consisting of a 1994 GMC Sierra vehicle, and in Count Six, receiving stolen property consisting of a firearm, should have been merged pursuant to
{¶ 28}
{¶ 29} The second assignment of error is sustained in part and overruled in part.
THIRD ASSIGNMENT OF ERROR
{¶ 30} “THE TRIAL COURT ABUSED ITS DISCRETION IN BOTH SENTENCING HEARINGS VIOLATING THE DEFENDANT’S RIGHTS TO DUE PROCESS WHEN IT FAILED TO APPLY TO APPLICABLE RULES AND STATUTES.”
{¶ 32} The third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 33} “THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO MERGE COUNTS FIVE AND SIX AND IMPOSING INDIVIDUAL SENTENCES ON EACH OF THOSE COUNTS.”
{¶ 34} This assignment of error raises the same issue we rejected in deciding the second assignment of error. It is therefore moot, and need not be decided.
{¶ 35} The fourth assignment of error is overruled.
Conclusion
{¶ 36} Having sustained the second assignment of error, in part, we will remand the case to the trial court pursuant to
DONOVAN, J., concurs.
FROELICH, J., concurring:
As stated by the majority, the defendant apparently complains that the plea was not knowingly and intelligently made because the court never adequately defined “cooperation.” Although in hindsight, this agreement, as almost any agreement, could have been more explicit, there was an in-court hearing on August 10, to flesh out any concerns. On August
Copies mailed to:
Lisa M. Fannin, Esq.
Joe Cloud, Esq.
Hon. Douglas M. Rastatter