State v. MeredithState v. Meredith
Dated: March 30, 2011
DICKINSON, Presiding Judge.
INTRODUCTION
{¶1} Larond Meredith pleaded guilty to possession of cocaine, failure to comply with an order or signal of a police officer, and resisting arrest. The trial court accepted his pleas and sentenced him to eight years in prison. He has appealed, arguing that he did not enter his guilty pleas knowingly, intelligently, and voluntarily and that his sentence is void because the trial court failed to properly impose post-release control. This Court affirms the trial court‘s acceptance of Mr. Meredith‘s guilty pleas as they were made knowingly, intelligently, and voluntarily, but remands the matter for proceedings consistent with
BACKGROUND
{¶2} A Summit County Grand Jury indicted Mr. Meredith on eight counts: possession of cocaine, trafficking of cocaine, tampering with evidence, failure to comply with a police
KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY
{¶3} Mr. Meredith‘s first assignment of error is that the trial court incorrectly accepted his guilty pleas because they were not entered knowingly, voluntarily, and intelligently and that there is a reasonable probability that, but for ineffective assistance of counsel, he would not have pleaded guilty. He has argued that his guilty pleas were not knowing, intelligent, and voluntary because the trial court failed to tell him about his appellate rights, that he would be subject to a mandatory five-year period of post-release control, and that his sentence for failure to obey would be consecutive to his other sentences.
{¶4}
{¶5} “‘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.’ . . . To demonstrate prejudice in this context, the defendant must show that the plea would otherwise not have been entered.” State v. Veney, 120 Ohio St. 3d 176, 179, 2008-Ohio-5200, at ¶15 (quoting State v. Nero, 56 Ohio St. 3d 106, 108 (1990)).
{¶6} Mr. Meredith has argued that the trial court failed to properly inform him of his right to appeal. The trial court‘s duty to advise a defendant of his right to appeal, however, does not arise until sentencing and, therefore, has no effect upon whether the defendant‘s guilty plea was entered knowingly, voluntarily, and intelligently. State v. Atkinson, 9th Dist. No. 05CA0079-M, 2006-Ohio-5806 at ¶22;
{¶7} Even so, Mr. Meredith has argued that the trial court, “[h]aving undertaken the task to inform Mr. Meredith as to appellate rights at the time of the plea colloquy, . . . must do so with substantial accuracy.” According to Mr. Meredith, the trial court violated this claimed new duty by not informing him of all his rights of appeal under
{¶8} We note that Mr. Meredith has also argued that the trial court‘s failure to notify him during his sentencing hearing of his right to appeal “compound[s]” the error. While, as discussed above, there was no error with regard to the plea colloquy, the trial court did err in failing to tell Mr. Meredith about his appellate rights at his sentencing hearing. This error during sentencing, however, would not affect whether he made his guilty pleas knowingly, voluntarily, and intelligently. Additionally, this Court granted his motion for delayed appeal, rendering the error harmless.
{¶9} Mr. Meredith has also argued that the trial court failed to properly inform him of the possibility of post-release control at the time of his plea. He has pointed to State v. Gillespie, 9th Dist. No. 24248, 2009-Ohio-2785, and State v. Souris, 9th Dist. No. 24550, 2009-Ohio-3562, in support of his argument. In both cases, this Court vacated a defendant‘s plea because the trial court failed to mention post-release control at all during the plea colloquies. Gillespie, 2009-Ohio-2785, at ¶8; Souris, 2009-Ohio-3562, at ¶8. The trial court in this case, however, told Mr. Meredith that he would be subject to a “mandatory five-year post-release control period.” When asked if he understood that, Mr. Meredith responded affirmatively.
{¶10} He has argued, however, that the language on the written plea, which he read and signed after the trial court‘s statements to him, conflicted with the trial court‘s statements. Mr. Meredith has claimed that, as a result, his plea was not made knowingly. The written plea
{¶11} Mr. Meredith‘s arguments that the failure of someone to check “May” or “Will” and that the language on the plea form invalidates his guilty plea are without merit. Mr. Meredith‘s pleas were made orally as allowed by
{¶12} Mr. Meredith has also argued that the trial court failed to inform him that he faced a mandatory consecutive sentence for the failure to obey charge. During the plea colloquy, however, the trial court told Mr. Meredith that “[c]onsecutive to [possession of cocaine] and to . . . the remaining sentence on the probation violations, for failure to comply with police order . . . you could be sentenced to a further . . . five years[.]” The trial court asked Mr. Meredith if he understood, and he responded affirmatively.
{¶13} Mr. Meredith has argued that the trial court‘s statement that his sentence for failure to comply would be “consecutive to” his other sentences did not inform him the sentence had to be served consecutively. He has also claimed that a table on his written plea agreement, which he signed after the trial court‘s colloquy, was unclear. In particular, he has pointed to a
{¶14} When the trial court accepts guilty pleas, it is best if the trial court strictly complies with the requirements of
{¶16} Examining the totality of the circumstances, this Court concludes that Mr. Meredith knowingly, intelligently, and voluntarily entered his plea and the trial court substantially complied with its duties under {¶17} Mr. Meredith‘s second assignment of error is that the trial court incorrectly advised him regarding post-release control and incorrectly imposed five years mandatory post release control “to the extent the parole board may determine[.]” According to Mr. Meredith, {¶18} Mr. Meredith has argued that the trial court‘s judgment entries for his community control violations fail to reflect the trial court‘s statements made at sentencing that all post release control would be served concurrently. {¶19} Mr. Meredith has contended that the phrase “to the extent the parole board may determine as provided by law” renders the trial court‘s imposition of post-release control invalid. We disagree as the trial court, in its judgment entry, correctly sentenced Mr. Meredith to “5 years of mandatory post-release control . . . .” In light of the trial court correctly imposing a mandatory five-year period of post-release control, the disputed phrase should be construed to refer not to the duration of the post-release control, but to the parole board‘s authority under {¶20} Although not argued by Mr. Meredith in his brief, the State has conceded that the trial court‘s judgment entries are deficient because they do not inform Mr. Meredith that the parole board may impose a prison term of up to one-half of his original prison term if he violates post-release control. See State v. Singleton, 124 Ohio St. 3d 173, 2009-Ohio-6434, at ¶11. It has {¶21} In his reply brief, Mr. Meredith has argued that he is entitled to be resentenced as if he had “not been sentenced.” The Ohio Supreme Court recently held that, “[a]lthough the doctrine of res judicata does not preclude review of a void sentence, res judicata still applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, at paragraph three of the syllabus. “[W]hen a judge fails to impose statutorily mandated post release control as part of a defendant‘s sentence, that part of the sentence . . . is void and must be set aside.” Id. at ¶26. Since Mr. Meredith was sentenced after the effective date of {¶22} The trial court failed to properly inform Mr. Meredith of the penalty he can face for violation of his post-release control. His second assignment of error is sustained in part. {¶23} Mr. Meredith‘s guilty pleas were made knowingly, voluntarily, and intelligently. The trial court‘s judgment entries, however, did not inform him of the potential penalty for a violation of post-release control. Accordingly, we affirm the judgment of the Summit County Common Pleas Court in part, vacate it in part, and remand for proceedings consistent with There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to both parties equally. CLAIR E. DICKINSON FOR THE COURT CARR, J. MOORE, J. CONCUR MARK H. LUDWIG, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.POST-RELEASE CONTROL
CONCLUSION
APPEARANCES: