State v. Keith, 89765 (6-12-2008)State v. Keith, 89765 (6-12-2008)
{¶ 2} Keith presents one assignment of error in which he argues that the trial court failed to ascertain, prior to accepting his pleas, whether the parties had agreed to a particular sentence, which calls into question the validity of those pleas. Upon a review of the record, this court reluсtantly agrees that the trial court erred in accepting Keith's pleas, but for a different reason than the one put forward.
{¶ 3} The record reveals the trial court failed personаlly to inform Keith of the maximum penalty involved, including the period of postrelease control. The trial court's failure compels this court to vacate his pleas; consequently, his assignment of error must be sustained. State v. Sarkozy,
{¶ 4} Keith's convictions, accordingly, are vacated, and this matter remanded for further proceedings. Id.
{¶ 5} Keith originally was indicted along with five co-defendants as the result of an incident that this court has described in, inter alia,State v. Rembert, Cuyahoga App. No. 88300,
{¶ 6} Keith's case proceeded up to the point that a jury was being chosen before he decided to enter into a plea agreement with the state. As explained by the prosecutor, in exchange for Keith's admission of his role during the incident, and his cooperation in the prosecution of his cо-defendants, the state would amend the indictment so that Keith would be charged with only one count of aggravated robbery and two counts of involuntary manslaughter, with three-year firearm specifications, while the remaining charges would be dismissed. The trial court then would be left with the discretion to sentence Keith "anywhere from a 13 year sentence to 33 years as a maximum sentence in jail."
{¶ 7} Before concluding his remarks, the prosecutor reiterated that Keith would enter pleas of guilty to "two counts of involuntary manslaughter, a charge of aggravated robbery, a three-year gun specification, and the potential is 13 to 33 years in jail with complete and truthful testimony, and the discretion as to where he ends up between 13 to 33 years" was left "entirely" up to the court. Defense counsel acknowledged the prosecutor accurately set forth the terms of the agreement.
{¶ 8} The trial court at that point addressed Keith and prоceeded to outline the constitutional rights he would be relinquishing in entering a plea. Keith indicated *4 he understood. The trial court requested Keith's pleas to the charges. To each of the amended counts, Keith stated his plea was "guilty." The court found his pleas were "knowingly, intelligently and voluntarily made," and accepted them. The court then set a sentencing date.
{¶ 9} When Keith's case ultimately was called for sentencing, the trial court imposed consecutive terms of three years for the firearm specifications, five years for the aggravated robbery conviction, and concurrent terms of ten years for each of the involuntary manslaughter convictions, for a total term of eighteen years. Prior to concluding the sentencing hеaring, the court explained that Keith would be subject to certain terms of postrelease control.
{¶ 10} This court has permitted Keith to file a delayed appeal of his conviсtions. He presents one assignment of error, as follows:
"The trial court abused its discretion by accepting the appellant's guilty plea (sic) without first inquiring as to the appellant (sic) specific understanding of the plea agreement."
{¶ 11} Keith argues that the transcript of the sentencing hearing raises a question concerning whether he believed he would receivе a minimum sentence of thirteen years in exchange for his fulfillment of his responsibilities under the terms of the plea agreement. He thus asserts the trial court erred in accepting his pleas without inquiring into Keith's understanding with respect to the sentence. *5
{¶ 12} Keith's assignment of error thus directs this court's attention to the plea hearing. Having been so directed, this court cannot ignore the faсt that postrelease control was neither discussed by the parties nor mentioned during the plea hearing. Thus, although this court cannot agree with Keith's specific argument, a review of thе record demonstrates his assertion itself is correct. The trial court committed plain error in accepting his pleas. State v. Conrad, Cuyahoga App. No. 88934,
{¶ 13} Prior to accepting a guilty plea,
{¶ 14} "Postrelease control [, too,] is part of the offender's sentence." State v. Barnes, Cuyahoga App. Nos. 86654, 86655,
{¶ 15} Kеith sought to enter pleas to several charges in this case. Pursuant to
{¶ 16} The trial court in this case, however, neverpersonally informed Keith of any of the maximum penalties involvedat all prior to accepting his pleas, i.e., it neither stated which potential penalty applied to which charge, nor mentioned anything concerning postrelease control. State v. Sarkozy, supra. The transcript of the plea hearing demonstrates, rather, that only the prosecutor mentioned the range of penalties. State v. Conrad, supra.
{¶ 17} Even if this information was correct, the prosecutor never distinguished which penalty applied to which offense, and the trial court never subsequеntly clarified the matter for Keith's benefit. Moreover, the trial court never informed Keith he would be subject to postrelease control.1 *7
{¶ 18} This was inadequate to constitute "substantial compliance" with the requirements of the rule. State v. Sarkozy, supra; see also,State v. Jones (May 4, 2001), Cuyahoga App. No. 77657; State v.Barnes, supra. This court cannot ignore the strong mandate set forth in paragraph two of the syllabus of State v. Sarkozy, supra, which states:
{¶ 19} "If the trial court fails during the plea colloquy to аdvise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with
{¶ 20} The strength of that language permits no alternatives for even the most artful or inventive of appellate arguments; consequently, despite Keith's attempts to preserve the benefit that inured to him as the result of the plea agreement, this court is constrained bySarkozy to vacate his pleas in their entirety.2 *8
{¶ 21} Since the trial court thus failed to comply with its duties as outlined in CrimR. 11(C), this court is constrained to sustain Keith's assignment of error. State v. Sarkozy, supra; State v. Bingham, supra.
{¶ 22} Accordingly, Keith's convictions are vacated and his sentence is rеversed.
{¶ 23} This case is remanded for further proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered thаt a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, P.J., and ANN DYKE, J., CONCUR