STATE OF OHIO v. HARRY H. KROUSKOUPF III
Case No. CT2018-0020
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 6, 2019
[Cite as State v. Krouskoupf, 2019-Ohio-806.]
Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2018-0007; JUDGMENT: Vacated and Remanded
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: March 6, 2019
APPEARANCES:
For Plaintiff-Appellee: D. MICHAEL HADDOX, Prosecuting Attorney, BY: GERALD ANDERSON II, Assistant Prosecutor, 27 North Fifth St., Box 189, Zanesville, OH 43702-0189
For Defendant-Appellant: JAMES ANZELMO, 446 Howland Drive, Gahanna, OH 43230
{1} Appellant Harry H. Krouskoupf, III [“Krouskoupf“] appeals his conviction and sentence after a negotiated guilty plea in the Muskingum County Court of Common Pleas.
Facts and Procedural History
{2} On January 3, 2018, Krouskoupf was indicted on one count of theft, a felony of the fifth degree, in violation of
{3} On February 26, 2018, Krouskoupf entered a plea of guilty to theft, felony of the fifth degree, and two counts of robbery, felonies of the second degree, with a repeat violent offender specification.
{4} During the plea hearing, Krouskoupf noted that he was currently on “parole.” (Plea Hearing, Feb. 26, 2018 at 6-7). During the sentencing hearing, the court ordered Krouskoupf to serve thirteen years in prison for the offenses to which he pleaded guilty. (Sent. Hearing, Mar. 12, 2018 at 8).
{5} The court also found that Krouskoupf violated the terms of his post-release control. The trial court terminated Krouskoupf‘s post-release control and ordered him to a prison term equal to the time remaining on that sanction. (Id. at 8-9). The court ordered Krouskoupf to serve that sentence consecutive to the thirteen-year prison sentence. (Id.)
I.
{6} In his First Assignment of Error, Krouskoupf argues that the trial court was required to inform Krouskoupf before accepting his guilty plea to an offense he committed while on post-release control that pursuant to
STANDARD OF APPELLATE REVIEW
{7} The entry of a plea of guilty is a grave decision by an accused to dispense with a trial and allow the state to obtain a conviction without following the otherwise difficult process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete admission of guilt.
{8}
Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with non-constitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.
103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.
ISSUE FOR APPEAL
Whether the trial court was required to inform Krouskoupf before accepting his guilty plea to an offense he committed while on post-release control that pursuant to
{9} The Ohio Supreme Court has held a trial court must inform a defendant who is on post-release control and is pleading guilty to a new felony offense of the trial court‘s authority to revoke the defendant‘s post-release control and impose a prison term consecutively to any term of imprisonment it imposes for that new felony offense. In State v. Bishop, the defendant, while on post-release control for a prior felony, pleaded guilty to a felony drug possession charge. ___ Ohio St.3d ___, 2018-Ohio-5132, ¶3 (July 18, 2018). The trial court sentenced Bishop to serve a nine-month term of imprisonment for the possession offense. Id. at ¶4. For the post-release control violation the trial court ordered Bishop to serve a one-year prison sentence under
{10} A majority of the Ohio Supreme Court found,
Crim.R. 11(C)(2)(a) requires a trial court to advise a criminal defendant on post-release control for a prior felony, during his plea hearing in a new felony case, of the trial court‘s authority underR.C. 2929.141 to terminate the defendant‘s existing post-release control and to impose a consecutive prison sentence for the post-release-control violation. We therefore answer the certified question in the affirmative and affirm the judgment of the Second District Court of Appeals.
{11} Bishop is important to the analysis in the case at bar because in the case at bar the trial court similarly failed to inform Krouskoupf that he was also subject to a separate consecutive sentence for his post-release control violation,
THE DEFENDANT: Yes.
THE COURT: And what are you on?
THE DEFENDANT: Parole.
THE COURT: You understand by pleading guilty, that could lead to a violation of your parole?
THE DEFENDANT: Yes, sir.
T., Plea Hearing, Feb. 26, 2018 at 6-7. In Bishop, the Ohio Supreme Court found that Bishop did not need to show that the trial court‘s error prejudiced him because the Supreme Court found, “the trial court completely failed to inform Bishop that a consecutive prison sentence under
{12} We conclude in the case at bar that the trial court completely failed to inform Krouskoupf that a consecutive prison sentence under
{13} Krouskoupf‘s First Assignment of Error is sustained.
II.
{14} In his Second Assignment of Error, Krouskoupf contends that he received ineffective assistance of counsel because his trial attorney failed to request the trial court waive the assessment of court costs. [Appellant‘s Brief at 6].
{15} In light of our disposition of Krouskoupf‘s First Assignment of Error, we find his Second Assignment of Error to be moot.
{¶17} On the authority contained in
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J, concur