State v. OliverState v. Oliver
* * * * *
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Thomas P. Kurt, for appellant.
* * * * *
HANDWORK, J.
{¶ 1} This is an appeal from a judgment issued by the Sandusky County Court of Common Pleas, following appellant‘s guilty plea pursuant to a plea agreement. Because we conclude that appellant‘s guilty plea was not entered knowingly or intelligently, we reverse and remand.
{¶ 3} Pursuant to a plea agreement, appellant pled guilty to a lesser included offense of attempted felonious assault, in violation of
{¶ 4} Appellant now appeals arguing the following three assignments of error:
{¶ 5} “FIRST ASSIGNMENT OF ERROR: Appellant‘s guilty plea was not made knowingly and voluntarily because the trial court misinformed appellant about his eligibility for judicial release. The trial court therefore erred in accepting appellant‘s plea of guilty.
{¶ 7} “THIRD ASSIGNMENT OF ERROR: For the reasons set forth in the First Assignment of Error, appellant‘s guilty plea was not made knowingly and voluntarily, and therefore his conviction was entered in violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution.”
{¶ 8} We will address all three assignments of error together. In his first and third assignments 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 in his second assignment of error, that the statute which purportedly permits judicial release, creates a legal impossibility for such release for an offender sentenced to exactly five years. 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 of five years that renders him ineligible for judicial release.
{¶ 9} We initially note that, contrary to appellee‘s suggestion, appellant‘s failure to file a motion to withdraw his plea in the trial court does not preclude him from challenging the knowing, intelligent, and voluntary nature of his plea in this court. A
{¶ 10} 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.
{¶ 11} However, the failure to accurately explain nonconstitutional rights is reviewed under the substantial compliance standard. Id. “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.” State v. Nero (1990), 56 Ohio St.3d 106, 108. Under
{¶ 12} Nevertheless, 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
{¶ 13} However, in addition to the demonstration that the court has not substantially complied with the requirements of
{¶ 14} In this case, as to the court‘s substantial compliance with
{¶ 15} The current version of
{¶ 16} We note that the version of
{¶ 17} “As [
the current version of R.C. 2929.20 ] now stands, with a five year sentence, [appellant] is not eligible for judicial release at all unless he files an application for judicial release and the court determines that the five year limitation is unconstitutional. If the limitation is found unconstitutional * * * [appellant] would be eligible after 180 days.” Since appellant has not yet applied for judicial release, any specific ruling on the constitutionality ofR.C. 2929.20 in the present appeal would be premature. The ultimate effect of the statutory language, however, does have a bearing on whether the trial court misstated or misrepresented the law as it pertained to appellant.
{¶ 18} In this case, the trial court stated at both the plea hearing and the sentencing hearing that appellant “would be eligible to apply for judicial release in the event that you are sentenced to prison.” Even the judgment entry stated that appellant “can apply for judicial release after he is delivered to the prison pursuant to the guidelines set forth in
{¶ 19} Appellant must also show that prejudice occurred, i.e., that the court‘s error induced him to enter the guilty plea. The record shows that, in exchange for his guilty plea, one of the felonious assault charges was reduced to attempted felonious assault. The second felonious assault charge was to be dismissed. The remaining charge of illegal possession of a firearm in a liquor permit premises at sentencing was not reduced or dismissed. At his sentencing hearing, appellant himself spoke several times, urging the court to impose only community control, rather than a prison sentence. Appellant‘s statements indicated that he was not expecting a lengthy prison sentence, or at the least was expecting that he would be permitted to apply for judicial release. After the court imposed the five year sentence, the maximum for appellant‘s offense, appellant again requested that the court give him “five years probation with a prison stay or something, anything like that, please?”
{¶ 20} Although no guarantee was made that such release would be granted, after reviewing the record, we conclude that it demonstrates that the possibility of judicial release likely was an important factor which induced appellant to enter his guilty plea.
{¶ 21} Accordingly, appellant‘s three assignments of error are well-taken.
{¶ 22} The judgment of the Sandusky County Court of Common Pleas is reversed, appellant‘s plea is vacated, and the case is remanded for proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________
JUDGE
Thomas J. Osowik, P.J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
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.