STATE OF OHIO v. TASHAUN JONES
Appellate Case No. 24772
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 18, 2013
[Cite as State v. Jones, 2013-Ohio-119.]
Triаl Court Case No. 2011-CR-410 (Criminal Appeal from Common Pleas Court)
Rendered on the 18th day of January, 2013.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
TYLER D. STARLINE, Atty. Reg. #0078552, Finlay, Johnson & Beard, Ltd., 260 North Detroit Street, Xenia, Ohio 45385
Attorney for Defendant-Appellant
HALL, J.
{1} In July 2011, TaShaun Jones pleaded guilty to two counts of aggravated
{2} Before Jones entered his pleas, the trial court told him the maximum sentence for each charge and told him that the sentences could run consecutively. The court told Jones that the maximum consecutive prison sentence he could receive was 57 years. The court also told Jones that, after he completed his prison sentence, a post-release control sanction would be imposed on him. The court told him that if he violated a condition of the post-release control sanction, a new prison term could be imposed. The court said that the length of this new term would be “up to one-half of the Court‘s stated prison term.” (Tr. 33). The trial court ultimately sentenced Jones to 32 years in prison. The рrison term imposed for each of the two felonious-assault charges involving police officers was the statutory maximum 10 years, and the court ordered Jones to serve the two terms consecutively.
{3} Jones appealed. He assigns two errors to the trial court.
A. Post-release Control Violation Notice
{4} The first assignment of error alleges that the trial court failed to comply with
{5}
{6} The Ohio Supreme Court has observed that “[a] criminal defendant‘s choice to enter a plea of guilty or no contest is a serious decision.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The Court explained:
The benefit to a defendant of agreeing to plead guilty is the elimination of the risk of receiving a longer sentence after trial. But, by agreeing to plead guilty, the defendant loses several constitutional rights. The exchange of certainty for some of the most fundamental protections in the criminal justice system will not be permitted unless the defendant is fully informed of the consequences of his or her plea. Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.
To ensure that pleas conform to these high standards, the trial judge must engage the defendant in a colloquy beforе accepting his or her plea. * * *
Crim.R. 11(C), (D), and (E) . It follows that, in conducting this colloquy, the trial judge must convey accurate information to the defendant so that the defendant can understand the consequences of his or her decision and enter a valid plea.
(Citations omitted.) Id. at ¶ 25-26. To that end,
{7} The “maximum penalty” includes any mandatory post-release control sаnction, which has been explained this way:
Postrelease control is a period of supervision that occurs after a prisoner has served his or her prison sentence and is released from incarceration, during which the individual is subject to specific sanсtions with which he or she must comply. Violation of these sanctions may result in additional punishment, such as a longer period of control, more restrictions during the control period, or a prison term of up to nine months per violation, subject to a cumulative maximum оf one-half of the original stated prison term.
(Citations omitted.) Clark at 35. Thus if the defendant will be subject to a period of post-release control, to comply with
When the trial judge does not substantially comply with
{8} Arguably, the trial court literally complied with
{9} Aside from compliance with
{10} But this error is one for which the defendant must demonstrate prejudice before we would determine that his plea should be vacated. It is usually the case that “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.” State v. Gulley, 1st Dist. Hamilton No. C-040675, 2005-Ohio-4592, ¶ 22, citing State v. Carnicom, 2d Dist. Miami No. 2003-CA-4, 2003-Ohio-4711, ¶ 15-16 (concluding that any overstatement about the potential length of a prison term for violating a post-release control condition could not have prejudiced the defendant); see State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 27 (“[W]e cannot say that a potential overstatement of the [post-release
{11} Jоnes does not assert, let alone demonstrate, that he was prejudiced–that he would not have pleaded guilty had the trial court told him that the maximum possible prison term for a single violation of a post-release control condition is 9 months. We fail to seе how this defendant, facing a potential of many years of re-incarceration for post release control violations, would have failed to enter his pleas if he knew those many years could only be imposed in nine month increments. Accordingly, we find no grounds to vacate Jones‘s plea.
{12} The first assignment of error is overruled.
B. Maximum Consecutive Sentences
{13} The second assignment of error alleges that the trial court abused its discretion by imposing the longest possible prison term for the two felonious-assault counts involving police officers and ordering that Jones serve them cоnsecutively.
{14} The trial court explained its decision at the sentencing hearing. The court noted Jones‘s criminal history and the nature of the two felonious assault offenses:
[T]he defendant is young in age. He‘s currently 18 years old. However, he does have an extensive juvеnile record, indicating a 2007 offense for aggravated menacing, a 2007 offense for assault, a 2007 offense for theft, a 2008 offense for disorderly conduct near a school, a 2008 grand theft auto, and
a 2008 burglary charge. And then we go to the offenses that are at issue, they were of great violence, obviously involving offenses against police officers.
(Tr. 48-49).
{15} The court expressly found that the maximum sentence was called for for these two offenses:
[T]he Court will make the findings that in the Court‘s view the imposition of consecutive sentences is appropriate, and the maximum consecutive sentence with regard to the assaults on the police officers is appropriate because the acts of the defendant constituted the worst form of the offense, and so too with other sentences. The Cоurt believes that the appropriate findings are made, that consecutive sentences are appropriate, again, based upon the violent nature of the offenses, the use of the firearm, the lack of any reason whatsoever for this violence to have broken out.
(Tr. 54).
{16} Jones concedes that his sentence is lawful—that it falls within the applicable statutory range. He does not cite any factors not considered by the trial court in the above-quoted explanation. We cannot say that the sеntence imposed for the two felonious assault offenses is an abuse of the trial court‘s discretion.
{17} The second assignment of error is overruled.
{18} The trial court‘s judgment is affirmed.
FAIN and FROELICH, JJ., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Tyler D. Starline
Hon. Mary L. Wiseman