State v. LoydState v. Loyd
Timothy H. Dempsey, for appellant.
* * * * *
DECISION AND JUDGMENT
YARBROUGH, J.
{¶ 1} Defendant-appellant, John S. Loyd, appeals his conviction and sentence on seven counts of theft. He raises two assignments of error:
{¶ 2} “I. The trial court misinformed the defendant regarding judicial release at the plea hearing.
{¶ 4} Finding merit in appellant‘s first assignment of error, we reverse the judgment of the Erie County Court of Common Pleas.
{¶ 5} The salient facts in this case are undisputed. On June 10, 2010, appellant was indicted on eight counts of theft in violation of
{¶ 6} Prior to accepting the pleas, the trial court addressed appellant personally and made all the required disclosures and determinations under Crim.R. 11(C)(2). In the course of its colloquy, however, the trial court added the following information:
{¶ 7} “THE COURT: Do you understand that if you went to prison in this matter you would be eligible for what‘s called judicial release, early release from prison, but in order to be considered for that you or your attorney would have to file a motion or make application with this Court.
{¶ 8} “MR. LOYD: Right.
{¶ 10} “MR. LOYD: Yes.”
{¶ 11} After accepting appellant‘s pleas, the trial court held a sentencing hearing on September 23, 2010. The trial court imposed an aggregate prison term of 12 years, which rendered appellant ineligible for judicial release under
{¶ 12} Appellant also sent his own handwritten letter to the trial judge, entitled “Request for Appeal.” The letter is hand-dated “Sat. 9/25/2010,” two days after the sentencing hearing, but filed-stamped October 18, 2010. In pertinent part, the letter reads:
{¶ 13} “You stated on my last pre-trial that I would serve six (6) months of sentencing and then apply for a ‘Judicial Release’ so I therefore pleaded guilty to all charges. [My attorney] on Thursday said any time beyond ten (10) years would not be eligible for Judicial Release. Now, I am confused.”
{¶ 15} In his first assignment of error, appellant contends that his guilty pleas were not knowingly and intelligently made because the trial court misrepresented his eligibility for judicial release. Specifically, appellant argues that the trial court misled him by representing at the plea hearing that he would be eligible for judicial release and then imposing a sentence that rendered him ineligible for judicial release.
{¶ 16} A plea of guilty or no contest in a criminal case “must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle (1996), 74 Ohio St.3d 525, 527.
{¶ 17} Pursuant to Crim.R. 11(C)(2), “felony defendants are entitled to be informed of various constitutional and nonconstitutional rights, prior to entering a plea.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 6. While failure to adequately inform a defendant with respect to constitutional rights would invalidate a guilty plea “under a presumption that it was entered involuntarily and unknowingly,” failure to accurately explain nonconstitutional rights is subject to review under a standard of substantial compliance. Id. at ¶ 12. “Substantial compliance means that under the totality
{¶ 18} Crim.R. 11(C)(2) does not require a trial court to advise a defendant in regard to eligibility for judicial release. See State v. Smith, 5th Dist. No. CT2007-0073, 2008-Ohio-3306, ¶ 17; State v. Sherman, 5th Dist. No. 2009-CA-132, 2010-Ohio-3959, ¶ 17. Nevertheless, when a defendant‘s guilty plea is induced by erroneous representations as to the applicable law, including eligibility for judicial release, the plea has not been entered knowingly and intelligently. Sherman, 2010-Ohio-3959, ¶ 38-41; State v. Mitchell, 11th Dist. No. 2004-T-0139, 2006-Ohio-618, ¶ 15. See, also, Engle, supra, 74 Ohio St.3d at 528 (allowing withdrawal of no-contest plea that was predicated on inaccurate representations as to defendant‘s right to appeal the trial court‘s ruling on a motion in limine).
{¶ 19} In order to establish the necessary inducement to vacate a guilty plea, the defendant must make a two-part showing. First, the defendant must show that he or she was misinformed as to the applicable law. In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 39, the Supreme Court of Ohio explained that “an incorrect recitation of the law fails to meet the substantial-compliance standard. If a trial judge chooses to offer an expanded explanation of the law in a Crim.R. 11 plea colloquy, the information conveyed must be accurate.” See, also, State v. Sherman, supra, 2010-Ohio-3959, ¶ 41 (although
{¶ 20} Second, the defendant must demonstrate that he or she was prejudiced by the misinformation. In State v. Nero, supra, 56 Ohio St.3d at 108, the Ohio Supreme Court specified that “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.” (Citations omitted.) Thus, in cases involving misstatements as to judicial release, “the defendant must demonstrate * * * that but for the misrepresentation regarding judicial release, he would not have entered the plea.” Mitchell, supra, 2006-Ohio-618, ¶ 15. In other words, the record must reflect that “the defendant would have pled differently had he been told that he was ineligible for judicial release.” State v. Simpson, 10th Dist. No. 07AP-929, 2008-Ohio-2460, ¶ 10.1
{¶ 21} In this case, the state argues that “the record does not suggest that appellant would not have entered his plea had the trial court advised him of his ineligibility [for judicial release].” In support, appellant places heavy reliance on this court‘s decision in
{¶ 22} In Sheeks, the defendant sought to vacate his guilty plea on the basis that the state and the trial court had misrepresented that he would be eligible for judicial release after serving ten years of a stipulated 15-year sentence. The record in that case revealed that as part of the plea agreement, Sheeks was granted furlough to spend two days with his family over the 2008 Christmas holiday. He took advantage of the furlough but failed to return to custody when required, which resulted in an escape charge. It was only after Sheeks had received the benefit of the furlough that he sought to withdraw his guilty plea. Yet, at the hearing on his initial motion to withdraw his plea, Sheeks never referred to any misrepresentation concerning judicial release as a ground for withdrawing his plea; the issue was raised a month later by appellant‘s new appointed counsel upon a renewed motion to withdraw the plea.
{¶ 23} Based on those facts, we found “no evidence in the record before us to suggest, first, that appellant had a belief that he would be eligible for judicial release and, second, that such a belief induced his guilty plea.” Id. at ¶ 16. We also considered it significant that “appellant did not ask any questions about judicial release [at the plea hearing] that would have indicated that the possibility of early release was a significant factor in his decision to plead guilty.” Id. at 14.
{¶ 24} In contrast, the record in this case clearly reflects that appellant‘s guilty pleas were predicated on a belief that he would be eligible for judicial release. Appellant,
{¶ 25} Unlike in Sheeks, it was entirely unnecessary for appellant to have asked any questions about judicial release at the plea hearing in order to indicate that the possibility of early release was a significant factor in his decision to plead guilty. This is not a situation involving ambiguous or indirect statements made at the plea hearing by the court or the prosecutor, and appellant is not claiming that he relied on his own counsel‘s off-the-record representations about judicial release. In those situations, one would expect that a defendant who is concerned about the possibility of early release would ask the court for some clarification. In this case, however, the trial court expressly told appellant at the plea hearing that he would be eligible and considered for judicial release and, after each statement, elicited an affirmative response from appellant as to his understanding of that information. Under the present circumstances, appellant‘s failure to
{¶ 26} The state also argues that “the record [does not] suggest that appellant‘s plea was based on his belief that he would receive judicial release.” (Emphasis added.) Essentially, the state is proposing a test for prejudice under which a defendant must show that his or her plea was induced by erroneous representations that early release would actually be granted. Under such a standard, erroneous representations as to a defendant‘s eligibility for judicial release, or the possibility of judicial release, could never be found to have induced a plea. We cannot agree with such an insurmountable standard of demonstrating prejudicial reliance on misinformation concerning judicial release.
{¶ 27} It is true that at one point of our decision in Sheeks, we stated that the defendant failed to show that he “entered his plea based on a belief that he would be given early release.” (Emphasis added.) Id. at ¶ 19. Viewed properly and in its entirety, however, our decision in Sheeks clearly reveals that a defendant does not have to show that his plea was predicated on a belief that early release would actually or probably be granted in order to establish prejudice. Thus, we carefully pointed out that “the trial court in the case before us made no representation to appellant regarding the possibility or probability of judicial release,” that the record contained no evidence that “appellant had a belief that he would be eligible for judicial release,” and that there was no evidence that appellant “would have pled differently if he had been told he was ineligible for judicial release.” (Emphasis added.) Id. at ¶ 15, 16, 18.
{¶ 29} Considering the totality of the circumstances, we find that appellant was led by the trial court to believe he would be eligible for judicial release and that such a belief induced appellant‘s guilty pleas. Appellant‘s guilty pleas were not, therefore, made knowingly, intelligently, and voluntarily. However, we reject appellant‘s suggestion that the cause should be remanded solely for resentencing under this assignment of error. Appellant cannot vitiate his guilty pleas and have them too. The appropriate remedy where a plea is induced by erroneous representations as to the applicable law is to “remand this cause to the trial court with instructions that [appellant] be given the opportunity to withdraw [his] plea and proceed to trial.” Engle, supra, 74 Ohio St.3d at 528. Indeed, this is essentially what the courts have done in all of the cases cited by appellant in which a defendant‘s plea was invalidated on the basis of erroneous representations in regard to eligibility for judicial release.
{¶ 30} Accordingly, appellant‘s first assignment of error is well-taken to the extent that his pleas were not made knowingly, intelligently, and voluntarily.
{¶ 32}
{¶ 33} “Consistent sentencing occurs when a trial court properly considers the statutory sentencing factors and guidelines found in
{¶ 35} Our review of the record makes manifest that the trial court expressly and properly considered the purposes and principles of sentencing under
{¶ 36} Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 37} The judgment of the Erie County Court of Common Pleas is reversed. The cause is remanded to the trial court with instructions that appellant be allowed to
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
JUDGE
Thomas J. Osowik, P.J.
JUDGE
Stephen A. Yarbrough, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.