State v. PakulniewiczState v. Pakulniewicz
OPINION
{¶ 1} Defendant-appellant, Daniel Pakulniewicz, appeals his conviction and sentence in the Mahoning County Common Pleas Court for multiple counts of rape and gross sexual imposition, including his classification as a sexual predator.
{¶ 2} On March 27, 2003, a Mahoning County grand jury indicted appellant as follows: thirty-seven counts of rape, in violation of R.C.
{¶ 3} On July 24, 2004, a Mahoning County grand jury issued a superseding indictment amending the March 27, 2003 indictment as follows: counts one through thirty-two, rape in violation of R.C.
{¶ 4} Appellant pleaded not guilty and was appointed counsel. The case proceeded to numerous pretrial matters. Subsequently, appellant and plaintiff-appellee, State of Ohio, reached a
{¶ 5} On March 24, 2005,1 the trial court sentenced appellant to a total prison term of forty years as follows. On rape counts one, two, three, and four, the trial court sentenced appellant to the maximum term of ten years in prison on each count to be served consecutive to one another. On rape counts five through thirty-seven, the trial court sentenced appellant to the maximum term of ten years in prison on each count with the sentences to be served concurrent with one another and concurrent with the sentences imposed for counts one through four. On gross sexual imposition counts thirty-eight through forty-one, the trial court sentenced appellant to the maximum term of eighteen months in prison on each count with the sentences to be served concurrent with one another and concurrent to the sentences imposed for counts one through thirty-seven. On gross sexual imposition counts forty-two through forty-five, the trial court sentenced appellant to the maximum term of five years in prison on each count with the sentences to be served concurrent to one another and concurrent to the sentences imposed for counts one through forty-one. The trial court also ordered that all of the aforementioned sentences were to be served consecutively to the sentence imposed upon appellant in a similar Trumbull County case.
{¶ 6} This appeal followed and appellant was appointed appellate counsel. On December 30, 2005, appellate counsel filed a “no merit” brief (i.e., Toney brief) and asked to withdraw as counsel.
{¶ 7} In State v. Toney (1970), 23 Ohio App.2d 203, 52 O.O.2d 304, 262 N.E.2d 419, this court set forth in its syllabus the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
{¶ 8} “3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
{¶ 9} “4. Court-appointed counsel‘s conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
{¶ 10} “5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶ 11} “* * *
{¶ 12} “7. Where the Court of Appeals determines that an indigent‘s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.”
{¶ 13} As stated above, appellant‘s appointed appellate counsel filed a Toney brief on December 30, 2005. On March 29, 2006, this Court informed appellant that his counsel had filed a Toney brief and granted him thirty days to file a brief raising any assignments of error. To date, appellant has not filed a pro se brief. However, appellant‘s appointed appellate counsel filed a supplemental brief on August 28, 2006 contesting the constitutionality of the consecutive sentences in light of the Ohio Supreme Court‘s holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Nonetheless, this opinion will proceed to independently examine the record to determine if the appeal is wholly frivolous.
{¶ 14} Appellant pleaded guilty pursuant to a
{¶ 15} When determining the voluntariness of a plea, this Court must consider all of the relevant circumstances surrounding it. State v. Trubee, 3d Dist. No. 9-03-65, 2005-Ohio-552, at ¶ 8, citing Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. Pursuant to
{¶ 16} A trial court must strictly comply with
{¶ 17} A trial court need only substantially comply with
{¶ 18} At the change of plea hearing, the colloquy between the court and appellant demonstrates that he voluntarily and intelligently entered his guilty plea.
{¶ 19} The trial court strictly complied with
{¶ 20} “THE COURT: You do have important rights and those rights start with your right to a jury trial. Do you understand that?
{¶ 21} “THE DEFENDANT: Yes, sir.” (Tr. 7).
{¶ 22} “THE COURT: All right. The State of Ohio would have to prove their case by calling witnesses. And Attorney Taylor would have a chance to cross examine every witness the prosecutor called. Do you understand that?
{¶ 23} “THE DEFENDANT: Yes, sir.
{¶ 24} “THE COURT: If you had any witnesses you wanted to call during your trial you could do that and you could have subpoenas issued requiring the appearance of those people at your trial. That is something called compulsory process. Do you understand that?
{¶ 25} “THE DEFENDANT: Yes, sir.
{¶ 26} “THE COURT: If this case went to trial, no one could ever force you to testify. And if you decided that you did not want to testify, nobody could say anything about that. Do you understand that?
{¶ 27} “THE DEFENDANT: Yes, sir.” (Tr. 9).
{¶ 28} The court also substantially complied with
{¶ 29} “THE COURT: Do you understand that as to Counts 1 through 37 there‘s a maximum term of imprisonment of up to ten years on each count with a $20,000 fine?
{¶ 30} “THE DEFENDANT: Yes, sir.
{¶ 31} “THE COURT: Prison is mandatory in those cases. Do you understand that?
{¶ 32} “THE DEFENDANT: Yes, sir.
{¶ 33} “THE COURT: In Counts 42 and 43 there is a maximum term of up to five years on each count with a $10,000 fine, and prison is also mandatory for those offenses. Do you understand that?
{¶ 34} “THE DEFENDANT: Yes, sir.
{¶ 35} “THE COURT: And in Counts 38, 39, 40 and 41, and Counts 44 and 45, there‘s a maximum term of up to 18 months with a $5,000 maximum fine. Do you understand that?
{¶ 36} “THE DEFENDANT: Yes.
{¶ 37} “THE COURT: All right. If you add up — and I appreciate this from counsel — all of those sentences — if the Court were to impose consecutive sentences as to all of those counts, you would be looking at up to 389 years in prison with a maximum fine of up to $790,000. Do you understand that?
{¶ 38} “THE DEFENDANT: Yes, sir.” (Tr. 10-11).
{¶ 39} Additionally, appellant acknowledged he had gone over the plea agreement and form with his trial counsel. (Tr. 15). After accepting appellant‘s plea, the court found that it had advised the defendant to the effect of his plea and that appellant entered the plea freely and voluntarily with full knowledge of its consequences. (Tr. 16).
{¶ 40} Thus, the trial court complied with
{¶ 41} Next, we will address an obvious sentencing issue — the consecutive sentences imposed by the trial court in light of the Ohio Supreme Court‘s recent decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. In his supplemental brief, appellant‘s appointed appellate counsel raised the following sole assignment of error:
{¶ 42} “THE TRIAL COURT ERRED IN RELYING ON THE UNCONSTITUTIONAL FACTORS CONTAINED IN R.C.
{¶ 43} While this appeal was pending, the Ohio Supreme Court held that the provisions of the Revised Code relating to consecutive sentences, R.C.
{¶ 44} The Court went on to hold that the unconstitutional provision could be severed. Id., paragraph four of the syllabus. Since the provisions could be severed, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id., paragraph seven of the syllabus.
{¶ 45} Here, the trial court sentenced appellant to consecutive sentences pursuant to R.C.
{¶ 46} After State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, the trial court no longer needs to give reasons or findings of fact prior to imposing (1) a nonminimum term on an offender who has never served a prison term, (2) the maximum term, (3) consecutive terms, and (4) penalty enhancements for repeat violent offenders or major drug offenders. The Court held that:
{¶ 47} “These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion. We do not order resentencing lightly. Although new sentencing hearings will impose significant time and resource demands on the trial courts within the counties, causing disruption while cases are pending on appeal, we must follow the dictates of the United States Supreme Court. Ohio‘s felony sentencing code must protect Sixth Amendment principles as they have been articulated.
{¶ 48} “Under R.C.
{¶ 49} The same day Foster was decided, the Ohio Supreme Court decided a companion case. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. In Mathis, the Court clarified Foster adding:
{¶ 50} “Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C.
{¶ 51} As an aside, it should be noted that the issue of waiver has arisen in other Foster related cases before this Court and other Ohio appellate district courts of appeal as well. The issue is whether the lack of objection in the trial court waives the Blakely issue for purposes of appeal when the sentencing occurred after the Blakely decision was announced. The Ohio Supreme Court in Foster and its progeny have created an exception to the doctrine of waiver. Accordingly, this Court has found the doctrine of waiver inapplicable to Foster related cases. State v. Buchanan, 7th Dist. No. 05 MA 60, 2006-Ohio-___.
{¶ 52} Accordingly, appellant‘s sole assignment of error is with merit.
{¶ 53} The judgment entry of sentence of the trial court is hereby reversed and vacated in part as it relates to imposition of consecutive sentences and this matter remanded for resentencing consistent with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. The trial court‘s judgment regarding appellant‘s underlying conviction is hereby affirmed.
Vukovich, J., concurs.
Waite, J., concurs.