State v. ParkerState v. Parker
JUDGMENT: REVERSED AND REMANDED
Christopher M. Kelley
55 Public Square, Ste. 2100
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Janna R. Steinruck
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant Ramadii Parker appeals the imposition of consecutive sentences under
Procedural and Substantive History
{¶2} This case is a consolidated appeal involving two separate criminal cases: Cuyahoga C.P. Nos. CR-06-479730-A and CR-06-481212-A.
{¶3} Case No. CR-06-479730-A stems from an incident that occurred on January 30, 2006. Police observed a hand-to-hand transaction between an unidentified man standing on a street corner and Parker, who was seated inside a truck. When officers, on foot and in a police vehicle, approached the men, Parker drove towards the officers at a high rate of speed in an attempt to flee the scene. Officers in a police vehicle began an unsuccessful pursuit of Parker that was ultimately terminated at East 125th and Carlyon.
{¶4} On April 18, 2006, a grand jury indicted Parker with a two-count indictment in CR-06-479730-A: Count 1, failure to comply with order or signal of police, in violation of
{¶5} On May 8, 2006, Parker entered a plea of not guilty on both counts.
{¶7} On May 26, 2006, a grand jury indicted Parker with a three-count indictment in CR-06-481212-A: Count 1, possession of drugs, in violation of
{¶8} On June 12, 2006, Parker entered a plea of not guilty to all three counts in the indictment.
{¶9} Parker‘s trial in CR-06-479730-A was set for June 26, 2006. Trial was reset by the court once and continued at Parker‘s request once. On August 3, 2006, Parker appeared in court and waived his right to a speedy trial. At the state‘s request, trial was continued to August 16, 2006. Parker failed to appear for trial on August 16, and a capias was issued.
{¶10} Parker was arrested on September 7, 2016.
{¶11} On November 3, 2016, Parker appeared with counsel before the trial court and entered a change of plea in both cases.
{¶12} In CR-06-479730-A, Parker withdrew his not guilty plea and entered a guilty plea to: Count 1, failure to comply with order or signal of police, in violation of
{¶13} In CR-06-481212-A, Parker withdrew his not guilty plea and entered a plea of guilty to an amended Count 2, drug trafficking, in violation of
{¶14} After engaging Parker in a plea colloquy, the trial court accepted his guilty pleas.
{¶15} On November 30, 2016, the trial court held a sentencing hearing and heard from Parker, Parker‘s counsel, and the prosecutor. At sentencing, the court initially stated it was sentencing Parker to a mandatory two-year prison term and a mandatory fine of $7,500 in CR-06-481212-A for drug trafficking. It then stated that the state satisfied the requirements of
{¶16} The trial court explained this consecutive sentence by pointing to the requirements of
{¶17} After announcing this sentence, the trial court asked if there were any objections to the sentence, specifically with respect to running the sentences from each case concurrently.
{¶18} The state responded that the plain language of
{¶19} Parker‘s counsel responded that
{¶20} Ultimately, the trial court was persuaded by the state‘s interpretation of
{¶21} On January 11, 2017, Parker appealed his sentence.
Law and Analysis
{¶23} Parker‘s first assignment of error is premised on his assertion that the trial court misinterpreted
{¶24} Questions of statutory interpretation are questions of law, which are reviewed de novo. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926, 928 N.E.2d 448, ¶ 6. In construing a statute, the primary goal “is to ascertain and give effect to the intent of the legislature as expressed in the statute.” Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 30.
{¶25} “The first rule of statutory construction is to look at the statute‘s language to determine its meaning. If the statute conveys a clear, unequivocal, and definite meaning, interpretation comes to an end, and the statute must be applied according to its terms.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19, citing Lancaster Colony Corp. v. Limbach, 37 Ohio St.3d 198, 199, 524 N.E.2d 1389 (1988).
{¶27}
If an offender is sentenced pursuant to division (C)(4) or (5) of this section for a violation of division (B) of this section, and if the offender is sentenced to a prison term for that violation, the offender shall serve the prison term consecutively to any other prison term or mandatory prison term imposed upon the offender.
{¶28} The requirements of
{¶29} It is undisputed that the plain language of
{¶30} It is also undisputed that this requirement applies where a defendant is being sentenced in two or more separate cases. State v. Spicer, 8th Dist. Cuyahoga Nos. 92384 and 92385, 2010-Ohio-61, ¶ 19. (“Although the statute does not specifically state whether it was meant to apply to instances where a defendant is being sentenced on two or more separate cases, we find that, pursuant to
{¶31} Further, the requirement that a failure to comply sentence be consecutive applies even if the defendant‘s other offenses occurred in a different county and predate the charge of failure to comply. State v. Perry, 8th Dist. Cuyahoga No. 101667, 2015-Ohio-1542, ¶ 11, citing State v. Jeffery, 5th Dist. Richland No. 10 CA 120, 2011-Ohio-2654, ¶ 48.
{¶32} Despite the foregoing implications of the
{¶33} In Perry, the defendant pleaded guilty to one count of failure to comply and one count of drug trafficking. The trial court imposed a prison term for failure to comply and ordered it to be served consecutive to other Cuyahoga County cases and consecutive to a Lake County prison term the defendant was already serving. Perry at ¶ 11. The trial court did not require that each of the defendant‘s other sentences be served consecutively to each other; it only required that the failure to comply sentence be served
{¶34} Similarly, in Jeffery, the state successfully appealed the trial court‘s decision to sentence Jeffery to one year in prison for failure to comply, to be served concurrently with previous sentences from two other counties. Jeffery, 5th Dist. Richland No. 10 CA 120, 2011-Ohio-2654, at ¶ 48. The Fifth District in that case did not, however, find that Jeffery‘s previous sentences needed to be served consecutively.
{¶35} The Twelfth District has also adopted Parker‘s interpretation of the statute. State v. Stegall, 12th Dist. Butler No. CA2015-01-012, 2015-Ohio-3934. In Stegall, the defendant was convicted of the following: one count of aggravated robbery and a corresponding firearm specification (Count 9), a second count of aggravated robbery (Count 12), one count of receiving stolen property (Count 14), and one count of failure to comply (Count 15). Id. at ¶ 3. The defendant was sentenced to ten years for Count 9, ten years for Count 12, and 18 months for Count 14, to be served concurrently; three years for the gun specification, to be served consecutively; and two years for failure to comply, to be served consecutively. Id. at ¶ 12.
{¶36} Perhaps even more relevant to the instant case is a case in which the defendant pleaded guilty in one case to charges of possession and trafficking of cocaine and pleaded guilty in a second case to charges of involuntary manslaughter, failure to comply, and aggravated vehicular assault. State v. Banks, 8th Dist. Cuyahoga Nos. 81679 and 81680, 2003-Ohio-1530. The trial court in that case sentenced Banks in the
{¶37} After engaging both attorneys in a conversation about the statute, the trial court in this case incorrectly held that it was obligated to impose consecutive sentences for all three of Parker‘s charges:
DEFENSE COUNSEL: Your Honor, could we just do the failure to comply so that one year — and then run the nine months concurrent with the other case?
THE COURT: Well, see, I don‘t think I can do that. I think whenever the failure to comply is there, it runs consecutive to any other charge, and I just don‘t — I don‘t think I can do that * * *.
(Tr. 56.)
{¶39} Because we agree with Parker‘s interpretation of
{¶40} Under
{¶41} Because the trial court here believed it was imposing consecutive sentences pursuant to a mandate in
{¶42}
If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
A trial court is required to make the findings mandated above at the sentencing hearing and incorporate its findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶43} The requirements of
{¶44} Because
{¶45} Because we remand this case for resentencing, Parker‘s second assignment of error, in which he raises an alternative argument premised on the state‘s interpretation of
{¶46} We note that while Parker does not bring any challenge to his plea or sentence related to his license suspension, a review of the plea hearing shows that the trial court provided an inaccurate description of its options with respect to the suspension. Specifically, the trial court stated that the license suspension was not mandatory. Parker‘s sentence, however, included a lifetime license suspension in accordance with the mandate found in
{¶47} We acknowledge that the dissenting opinion would sua sponte consider the validity of Parker‘s plea. However, as noted in the dissent, Parker failed to raise this
{¶48} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee 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 common pleas court 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.
TIM McCORMACK, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
{¶49} I respectfully dissent. I would find that Parker‘s assignments of error are rendered moot because the trial court failed to explain that he faced a lifetime suspension of his driver‘s license, thereby invalidating his plea.
{¶50} Although not raised in Parker‘s brief, I would, sua sponte, find that Parker‘s plea was not knowing, intelligent, and voluntary because he did not understand that he faced a lifetime suspension of his driver‘s license before entering his guilty plea.
{¶51} While we generally determine an appeal‘s merits based on the assignments of error raised by an appellant pursuant to App.R. 12(A)(1)(b), we have, sua sponte, previously raised and addressed
{¶53} A trial court must make findings and disclosures concerning a defendant‘s nonconstitutional rights. Specifically, a trial court must
[d]etermin[e] that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing [and] [i]nform[] the defendant of and determin[e] that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶54} In addition to showing noncompliance, “a defendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{¶55} The right to be advised of the maximum penalties that a defendant faces is a nonconstitutional right, and therefore, we review the record for substantial compliance. State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601, 2010-Ohio-244, ¶ 8, citing State v. Johnson, 8th Dist. Cuyahoga No. 91567, 2009-Ohio-3088.
{¶56} Many appellate districts have declined to vacate a defendant‘s plea when a court incorrectly informs a defendant of the length of the driver‘s license suspension that the defendant faces or fails to discuss the license suspension at the plea hearing. See
{¶57} Those cases are distinguishable, however, because in the instant case, the trial court affirmatively told Parker that there was no license suspension. At the plea hearing in the instant case, the court explained Parker‘s constitutional rights, the potential for consecutive sentences, and the potential prison terms and fines that he faced. The following exchange took place after that explanation:
PROSECUTOR: And there‘s also a mandatory operator‘s driver‘s license suspension.
COURT: No.
PROSECUTOR: No?
COURT: No. Not anymore. * * * The legislature changed that this year and I think it went into effect in September where on felony drug charges no longer — it‘s optional, the Court can, but it‘s certainly not mandatory.
Despite the trial court‘s statements at the plea hearing, however, Parker‘s sentence included a lifetime driver‘s license suspension, which was mandatory under
{¶59} Like Walz, the record establishes that the court clearly provided Parker misinformation; however, the facts of this case go one step further than Walz because the trial court affirmatively informed Parker that there was no license suspension. The trial court‘s misstatement of the potential penalties that Parker faced certainly did not substantially comply with