STATE OF OHIO v. DALE A. KENNEDY
Appellate Case No. 2011-CA-3
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
August 26, 2011
[Cite as State v. Kennedy, 2011-Ohio-4291.]
Trial Court Case No. 2009-CR-297; (Criminal Appeal from Common Pleas Court)
Rendered on the 26th day of August, 2011.
NICK A. SELVAGGIO, Atty. Reg. #0055607, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
JOSHUA S. CARTER, Atty. Reg. #0084925, 5405 Fairford Court, Dayton, Ohio 45414 Attorney for Defendant-Appellant
FAIN, J.
{¶ 1} Defendant-appellant Dale Kennedy appeals from his conviction and sentence for Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (OVI), in violation of
{¶ 3} We conclude that the trial court erred in sentencing Kennedy to a 60-day mandatory term in conjunction with his underlying OVI conviction. Under
{¶ 4} We further conclude that Kennedy‘s guilty plea was valid. Under the totality of the circumstances, Kennedy did not misunderstand the consequences of his plea, nor were there any prejudicial effects.
{¶ 5} We additionally conclude that the trial court did not abuse its discretion when it
{¶ 6} Finally, we conclude that Kennedy was not denied effective assistance of counsel. Although the parties and the trial court were all mistaken about imposition of the mandatory 60-day sentence under
{¶ 7} Accordingly, that part of the judgment of the trial court making 60 days of Kennedy‘s one-year sentence for OMVI mandatory is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for the purpose of carrying the sentence, as modified, into execution, including notification of the proper authorities.
I
{¶ 8} In December 2009, Dale Kennedy was indicted on two counts. Count One alleged that Kennedy had violated
{¶ 9} Count Two alleged that Kennedy had violated
{¶ 10} After initially pleading not guilty, Kennedy entered a plea of guilty to Count One and the specification in Count One. Count Two and the Specification to Count Two were dismissed with prejudice. The trial court then sentenced Kennedy to twelve months in prison on Count One, with 60 days of the twelve months to be mandatory, and to three years on the specification to Count One. The court ordered the sentences to be served consecutively. Kennedy was also ordered to complete a substance abuse and alcohol program, and his driver‘s license was suspended for six years.
{¶ 11} Kennedy appeals from his conviction and sentence.
II
{¶ 12} Kennedy‘s First Assignment of Error is as follows:
{¶ 13} “BECAUSE KENNEDY WAS SUBJECT TO THE
{¶ 14} Under this assignment of error, Kennedy contends that the trial court erred in sentencing him to a mandatory term of 60 days on the underlying OVI offense. We agree.
{¶ 15} Kennedy pled guilty to the first count in the indictment, which alleged a violation of
{¶ 16} Kennedy argues that the trial court was prohibited from imposing a 60-day mandatory sentence by the unambiguous terms of
{¶ 17}
{¶ 18} “No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
{¶ 19} “(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.”
{¶ 20}
{¶ 21} For example, a first offense is classified as a first-degree misdemeanor, and the court is permitted to chose between a three-day jail term or an intervention program. The court may also sentence an offender to both intervention and jail, but the maximum cumulative sentence cannot exceed six months.
{¶ 22} In contrast,
{¶ 23} In this regard,
{¶ 24} “(i) If the sentence is being imposed for a violation of division (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory prison term of one, two, three, four, or five years
{¶ 25} The statute thus offers three choices for a sentencing judge. First, where a defendant is convicted of or pleads guilty to a specification under
{¶ 26} In all other situations involving
{¶ 27} Once the court decides which of the three option applies,
{¶ 28} “If the court imposes a mandatory term of local incarceration, it may impose a jail term in addition to the sixty-day mandatory term, the cumulative total of the mandatory term and the jail term for the offense shall not exceed one year, and, except as provided in division (A)(1) of section 2929.13 of the Revised Code, no prison term is authorized for the
{¶ 29} If the court chooses the local incarceration option, it may chose whether the term is to be served in jail, a community based correctional institution, a halfway house, or an alternative residential facility. See
{¶ 30} Similarly,
{¶ 31} “If the court imposes a mandatory prison term, notwithstanding division (A)(4) of section 2929.14 of the Revised Code, it also may sentence the offender to a definite prison term that shall be not less than six months and not more than thirty months and the prison terms shall be imposed as described in division (G)(2) of section 2929.13 of the Revised Code. If the court imposes a mandatory prison term or mandatory prison term and additional prison term, in addition to the term or terms so imposed, the court also may sentence the offender to a community control sanction for the offense, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.”
{¶ 32} Thus, if the court imposes a mandatory prison sentence, either the one-to-five-year prison term for a specification situation, or the 60-day mandatory prison sentence for a non-specification situation, the court may also impose an additional sentence of six to thirty months, notwithstanding
{¶ 33} Accordingly, in the case before us, the trial court could have sentenced Kennedy only to a mandatory prison term of one to five years under
{¶ 34} In contending that error occurred, Kennedy relies on two decisions from the Eleventh District Court of Appeals, which hold that a trial court cannot sentence a defendant to a mandatory 60-day term of imprisonment on the underlying OVI charge and to a one to five-year sentence on the
{¶ 35} We agree with the Eleventh District Court of Appeals that a defendant cannot be sentenced to a mandatory 60-day term of imprisonment on the underlying OVI charge where the defendant is subject to a specification under
{¶ 36} The State argues, however, that Kennedy should not be allowed to take advantage of this error, because he invited it.
{¶ 37} “The doctrine of invited error estops an appellant, in either a civil or criminal case, from attacking a judgment for errors the appellant induced the court to commit. Under that principle, a party cannot complain of any action taken or ruling made by the court in accordance with the party‘s own suggestion or request.” Royse v. Dayton, Montgomery App. No. 24172, 2011-Ohio-3509, ¶ 11, citing State v. Woodruff (1983), 10 Ohio App.3d 326.
{¶ 38} In the case before us, there is no indication that Kennedy invited the error. The
{¶ 39} The State‘s second position is that the language of
{¶ 40}
{¶ 41} “If the offender is being sentenced for a third degree felony OVI offense, or if the offender is being sentenced for a fourth degree felony OVI offense and the court does not impose a mandatory term of local incarceration under division (G)(1) of this section, the court shall impose upon the offender a mandatory prison term of one, two, three, four, or five years if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or shall impose upon the offender a mandatory prison term of sixty days or one hundred twenty days as specified in division (G)(1)(d) or (e) of section 4511.19 of the Revised Code if the offender has not been convicted of and has not pleaded guilty to a specification of that type. The court shall not reduce the term pursuant to section 2929.20, 2967.193, or any other provision of the Revised Code. The offender shall
{¶ 42} Courts construing
{¶ 43} “The language and interplay of
{¶ 44} The above cases do not address any conflict between
{¶ 45} We do agree with the State that the last sentence in
{¶ 46} The language in question was added when the legislature re-wrote
{¶ 47} “Fourth degree felony state OVI. Under the act, subject to the provisions described below regarding third degree felony state OVI, state OVI is a felony of the fourth degree if, within six years of the offense, the offender previously has been convicted of three or four of the predicate offenses or if, within 20 years of the offense, the offender previously has been convicted of five or more predicate offenses. The offender may be sentenced to a definite prison term of not less than six months and not more than 30 months. The court must sentence the offender in accordance with the Felony Sentencing Law (
{¶ 48} This legislative analysis makes no specific comment about these matters, but does support the conclusion that the 60-day mandatory term does not apply where a specification exists. The Final Analysis also mentions the part of the sentence in
{¶ 49} Instead, the Final Analysis says only that ”The act requires that the offender serve the one-, two-, three-, four-, or five-year mandatory prison term imposed under this provision consecutively to and prior to the prison term imposed for the underlying offense and consecutively to any other mandatory prison term imposed in relation to the offense and expressly prohibits a grant of work release from the mandatory term.” Id. at p.12 (Italics in original).
{¶ 50} To the extent that
{¶ 51} Accordingly, the trial court erred in stating that 60 days of the twelve-month sentence for the OVI conviction in Count One are mandatory.
{¶ 52} Kennedy‘s First Assignment of Error is sustained.
III
{¶ 53} Kennedy‘s Second Assignment of Error is as follows:
{¶ 54} “BECAUSE THE PRESIDING JUDGE, PROSECUTION, AND DEFENSE COUNSEL MISINTERPRETED THE SENTENCING GUIDELINES, BECAUSE THE JUDGE NEVER IDENTIFIED WHICH REVISED CODE SECTION KENNEDY VIOLATED, AND BECAUSE KENNEDY NEVER STATED ‘GUILTY,’ THE COURT‘S ACCEPTANCE OF KENNEDY‘S PLEA IS INVALID.”
{¶ 55} Under this assignment of error, Kennedy contends that the court‘s acceptance of his plea was invalid due to several deficiencies: (1) all parties and the court misinterpreted the sentencing guidelines; (2) the trial judge never identified the Ohio Revised Code section that Kennedy violated; and (3) Kennedy never stated that he was “guilty.” Kennedy concedes that these are non-constitutional requirements, which require only a showing of “substantial compliance” with Crim. R. 11(C)(2).
{¶ 56} Crim. R. 11(C)(2) provides, in pertinent part, that:
{¶ 57} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the
{¶ 58} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.”
{¶ 59} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. * * * Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made.” State v. Nero (1990), 56 Ohio St.3d 106, 108. (Citations omitted).
{¶ 60} We have reviewed the transcripts of all hearings in this case, and conclude that under the totality of circumstances, Kennedy did not misunderstand the consequences of his plea, nor were there any prejudicial effects.
{¶ 61} As an initial matter, regardless of any error regarding whether a 60-day mandatory term could be imposed as part of the sentence on the underlying crime, Kennedy was not prejudiced. The error actually benefits Kennedy, because he will not be subject to a mandatory 60-day period of imprisonment on the OVI sentence. Thus, Kennedy‘s sentence will actually be less severe than what the trial court outlined, and Kennedy cannot have detrimentally relied upon the trial court‘s misstatement in deciding to plead guilty.
{¶ 62} The trial court correctly told Kennedy that he was subject to a maximum penalty on the underlying charge and specification of seven and a half years (one to five years
{¶ 63} As an additional matter, Kennedy contends that the trial court failed to mention the applicable code sections to which Kennedy was pleading. Kennedy also insists that he never said he was guilty. Kennedy‘s position is that he only admitted that he had driven a vehicle while intoxicated.
{¶ 64} We note that Kennedy admitted at the plea hearing, after receiving all appropriate warnings, that he had operated a motor vehicle while under the influence of drugs, and that he had five prior convictions within the past twenty years for equivalent offenses. Transcript of March 22, 2010 Plea Hearing, pp. 22-23. After hearing these admissions, the trial court required Kennedy to read a written plea agreement which listed the offenses to which Kennedy was pleading guilty. The agreement also listed all possible penalties for the crimes. In addition, the plea form specifically says:
{¶ 65} “I withdraw my former not guilty plea and enter a plea of guilty to the following offenses:
{¶ 66} “Count 1 – OVI –
{¶ 67} “Count 1 - Specification
{¶ 68} After reading the form and reviewing it with counsel, Kennedy signed the plea form. Transcript of March 22, 2010 Plea Hearing, pp. 23-24. Kennedy‘s arguments, therefore, are without merit.
{¶ 69} Finally, Kennedy argues that he was not adequately informed regarding the forfeiture of his automobile. We disagree. The record indicates that the forfeiture issue was discussed at length during the plea hearing, and, in fact, had been the subject of an agreement between the State and defense prior to the plea hearing. Transcript of March 22, 2010 Plea Hearing, pp. 11-12.
{¶ 70} Kennedy‘s Second Assignment of Error is overruled.
IV
{¶ 71} Kennedy‘s Third Assignment of Error is as follows:
{¶ 72} “THE TRIAL COURT ERRED BY NOT IMPOSING THE MINIMUM SENTENCE OR CONSIDERING THE POSSIBILITIES OF COMMUNITY CONTROL.”
{¶ 73} Under this assignment of error, Kennedy contends that the trial court erred by failing to consider a minimum sentence or the possibilities of community control. Kennedy argues that the trial court had already concluded at the plea hearing that it was not even going to consider community control. Kennedy also maintains that the trial court failed to consider the record and imposed an unduly harsh sentence.
{¶ 74} In State v. Bowshier, Clark App. No. 08-CA-58, 2009-Ohio-3429, we observed
{¶ 75} “The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum, consecutive, or more than minimum sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the syllabus. Nevertheless, in exercising its discretion the trial court must consider the statutory policies that apply to every felony offense, including those set out in
{¶ 76} “When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including
{¶ 77} In the case before us, the State recommended a fourteen-month prison term as part of the plea agreement. Thus, the trial court‘s comment that it would not consider community control would have come as no surprise to Kennedy. In addition, the trial court
{¶ 78} We also find no abuse of discretion in the sentence. At the plea hearing, the State indicated that it would not be bound by the sentencing recommendation if Kennedy violated the conditions of bond while awaiting sentencing, or incurred additional charges while on bond. The sentencing hearing was subsequently delayed several months because of an injury Kennedy had sustained. By the time the sentencing hearing took place, Kennedy was the subject of a motion for bond revocation, and also had charges of criminal trespass, telephone harassment, and criminal mischief pending in municipal court. Kennedy denied culpability for those charges, and the State did not withdraw its sentencing recommendation. Nonetheless, the trial court was entitled to consider this information. The record also indicates that Kennedy had been previously imprisoned for a year in 1999, due to a burglary conviction, and that Kennedy had six prior alcohol-related offenses.
{¶ 79} In light of the information in the record, we do not find that the trial court acted unreasonably or arbitrarily in sentencing Kennedy to one year on the underlying charge and to three years on the specification. A trial court does not have to follow the prosecutor‘s recommendation. State v. Darmour (1987), 38 Ohio App.3d 160, 161.
{¶ 80} Nevertheless, because the State appears to have advocated for a fourteen-month sentence at both the plea hearing and the sentencing hearing, the following comments of Judge Wolff of this court, concurring in State v. Lewis, No. 2004-CA-101, 2005-Ohio-3736, are worth noting:
{¶ 81} “I write separately only to point out that prosecutors – in order to dispose of cases without trial – should not make sentencing recommendations that they know have no reasonable likelihood of being followed.
{¶ 82} “A sentencing recommendation is an inducement to forego the right to trial and is only a proper inducement if it is a realistic recommendation.
{¶ 83} “This is not to say that an unrealistic sentencing recommendation is necessarily a basis for reversal. Assuming arguendo that the recommendation here was unrealistic, the trial court made it abundantly clear to Lewis that the court was not bound by the State‘s recommendation.
{¶ 84} “That having been said, the integrity of the practice of plea negotiation – which is essential to the efficient administration of the criminal justice system – is better served by realistic sentencing recommendations.
{¶ 85} “Despite the pronouncements of trial judges that they are not bound by sentencing recommendations and despite defendants’ acknowledgments of same, it cannot be denied that the prosecutor‘s sentencing recommendation is a factor to be considered by defendants and their counsel in determining whether to plead guilty or no contest or to go to trial.
{¶ 86} “Realistic sentencing recommendations can only serve the objective of well considered, well counseled pleas of guilty and no contest.” Id. at ¶ 23-28 (Wolff, J., concurring).
{¶ 87} As in Lewis, the trial court clearly indicated to Kennedy that it did not have to follow the prosecutor‘s recommendations. Transcript of March 22, 2010 Plea Hearing, p. 6.
{¶ 88} Kennedy‘s Third Assignment of Error is overruled.
V
{¶ 89} Kennedy‘s Fourth Assignment of Error is as follows:
{¶ 90} “KENNEDY‘S SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS DENIED WHERE HIS COURT APPOINTED COUNSEL FAILED TO RESEARCH STATUTORY REQUIREMENTS OF THE CRIME KENNEDY ALLEGEDLY VIOLATED, WHERE HIS COUNSEL FAILED TO FILE EVIDENTIARY MOTIONS, AND WHERE HIS COUNSEL CONSENTED TO THE FORFEITURE OF KENNEDY‘S VEHICLE PRIOR TO CONSULTING WITH KENNEDY.”
{¶ 91} Under this assignment of error, Kennedy contends that his trial counsel failed to provide effective representation in two ways: (1) by failing to research the sentence enhancement statute; and (2) by consenting to the forfeiture of Kennedy‘s vehicle.
{¶ 92} “In order to prevail on a claim of ineffective assistance of counsel, the defendant must show both deficient performance and resulting prejudice. Strickland v. Washington (1984), 466 U.S. 668. Trial counsel is entitled
{¶ 93} “Even assuming that counsel‘s performance was ineffective, the defendant must still show that the error had an effect on the judgment. * * * Reversal is warranted only where the defendant demonstrates that there is a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Jackson, Champaign App. No. 2004-CA-24, 2005-Ohio-6143, at ¶ 30 (citation omitted).
{¶ 94} The record in the case before us indicates that all parties, including the trial court, incorrectly assumed that the one-year prison sentence imposed on the OVI was subject to 60 days of mandatory time. Although a mistake occurred, Kennedy was not prejudiced. As we noted, Kennedy benefits by the correctly applied law. Accordingly, even if trial counsel should have known of the proper penalty, no prejudice occurred, because Kennedy did not prejudicially rely upon the mistake in deciding to plead guilty.
{¶ 95} With regard to the forfeiture of Kennedy‘s automobile, the trial court took the position at the plea hearing that if an indictment does not specify forfeiture, it cannot be enforced unless the defendant agrees. Transcript of March 22, 2010 Plea Hearing, pp. 9-10. The State responded that forfeiture had been raised since the beginning of the case with defense counsel, and that the parties had agreed that Kennedy‘s vehicle would be forfeited. Defense counsel agreed with the State.
{¶ 96} The trial court continued to reiterate its position that forfeiture is not mandatory
{¶ 97} As an initial matter, we note that the trial court‘s position was incorrect.
{¶ 98} “In all cases, if the vehicle is registered in the offender‘s name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code. * * * ”
{¶ 99}
{¶ 100} “If a court orders the criminal forfeiture of a vehicle pursuant to section * * * 4511.19 * * * of the Revised Code, the order shall be issued and enforced in accordance with this division, subject to division (B) of this section. An order of criminal forfeiture issued under this division shall authorize an appropriate law enforcement agency to seize the vehicle ordered criminally forfeited upon the terms and conditions that the court determines proper. * * * A forfeiture order may be issued only after the offender has been provided with an opportunity to be heard. The prosecuting attorney shall give the offender written notice of the possibility of forfeiture by sending a copy of the relevant uniform traffic ticket or other written notice to the offender not less than seven days prior to the date of issuance of the forfeiture
{¶ 101} Division (B) of
{¶ 102} Thus, the State does not have to add a specification to the indictment, but must only give the defendant written notice of the possibility of forfeiture by one of the two methods stated in
{¶ 103} We also find no evidence of prejudice. The trial court told Kennedy that he did not have to proceed on the forfeiture issue, but Kennedy agreed to the forfeiture, after being given an opportunity to speak with his attorney.
{¶ 104} Kennedy‘s Fourth Assignment of Error is overruled.
VI
{¶ 105} Kennedy‘s First Assignment of Error having been sustained, and his other assignments of error having been overruled, that part of the judgment of the trial court making 60 days of Kennedy‘s one-year sentence for OMVI mandatory is Reversed; the judgment of
DONOVAN and VUKOVICH, JJ., concur
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Nick A. Selvaggio
Joshua S. Carter
Hon. Roger B. Wilson