State v. NormanState v. Norman
[Please see original opinion at 2009-Ohio-1793.]
STATE OF OHIO, PLAINTIFF-APPELLEE vs. EZELL NORMAN, DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-499712
BEFORE: Stewart, J., McMonagle, P.J., and Celebrezze, J.
RELEASED: August 13, 2009
ATTORNEY FOR APPELLANT
Margaret Amer Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Kevin L. Rosenberg
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ON RECONSIDERATION1
MELODY J. STEWART, J.:
{¶ 1} Defendant-appellant, Ezell Norman, appeals from his guilty pleas to drug trafficking, failure to comply, and tampering with evidence. He maintains that his pleas were not knowingly entered because the court failed to advise him that the sentence for failure to comply would have to be served
{¶ 2} Count 3 of the indictment charged Norman with failure to comply in violation of
{¶ 3} Norman‘s guilty plea implicated
{¶ 4}
{¶ 5} When the rights involved are of a constitutional nature, the court must strictly comply with
{¶ 6} In State v. Johnson (1988), 40 Ohio St.3d 130, the syllabus states: “[f]ailure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of
{¶ 7} Johnson is not dispositive because its use of the word “may” shows that it concerns the discretionary imposition of consecutive sentences.
{¶ 8} In State v. Bragwell, Mahoning App. No. 06-MA-140, 2008-Ohio-3406, the Seventh Appellate District noted that in Johnson the consecutive sentences ordered were discretionary, not mandatory:
{¶ 9} “Here the trial court did not simply fail to inform appellant that it might order him to serve his sentences consecutively. Instead it completely neglected to inform him that he was required to serve his sentences consecutively. Whether appellant was to serve his sentences consecutively or concurrently was not up to the trial court‘s discretion as was the case in Johnson, supra.
R.C. 2929.13(G)(2) directs that the court impose a mandatory prison term for the repeat offender specification prior to and consecutive to the sentence on the underlying DUI. Unlike Johnson, in this case a mandatory, consecutive prison term was a guaranteed consequence of appellant‘s guilty plea.{¶ 10} “For all of these reasons, we cannot conclude that the trial court substantially complied with
Crim.R. 11(C)(2) in informing appellant of theconsequences of his guilty plea. Appellant did not enter a knowing and intelligent plea.” Id. at ¶57-58. See, also, State v. Pitts, 159 Ohio App.3d 853, 2005-Ohio-1389, at ¶22 (finding that because R.C. 2921.331(D) mandates consecutive sentences, that sentence was “part of the maximum penalty appellant faced and the trial court erred by failing to inform appellant of this at the plea hearing.“); State v. Hankison, Scioto App. No. 01CA2792, 2002-Ohio-6161, at ¶16 (reversing guilty plea because “the trial court did not advise Hankison that, by pleading guilty to failure to comply, it was mandatory that his sentence be served consecutively to any other sentence.“).{¶ 11} The only precedent from this court on the issue is State v. Dudenas, Cuyahoga App. Nos. 81461 and 81774, 2003-Ohio-1000, which involves
R.C. 2921.331(D) with facts similar to those in this case. Citing to Johnson, this court summarily rejected Dudenas‘s argument regarding the trial court‘s failure to inform him of having to serve consecutive sentences. Id. at ¶19.{¶ 12} In our original decision of the present case, we acknowledged that Dudenas was something of an outlier among appellate districts and reluctantly adhered to it as precedent, despite misgivings that it offered no analysis on the distinction between discretionary and mandatory consecutive sentences for purposes of
Crim.R. 11 . After further reflection, we are now persuaded that Dudenas‘s failure to address the mandatory nature of theconsecutive sentences for purposes of Crim.R. 11(C)(2)(a) makes it unviable as precedent for this case. We therefore hold, in conformance with other appellate districts in this state, that compliance with the “maximum” penalty provision ofCrim.R. 11(C)(2) requires the court to inform the defendant, prior to taking a guilty plea, that a charge carries a mandatory consecutive sentence.{¶ 13} The court did not inform Norman that any sentence for a violation of
R.C. 2921.331 would have to be served consecutively to sentences imposed on the other counts to which Norman pleaded guilty. This constituted a lack of substantial compliance withCrim.R. 11(C)(2)(a) and requires a reversal of Norman‘s guilty plea.Judgment reversed and remanded.
It is ordered that appellant recover of appellee its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
CHRISTINE T. McMONAGLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR