STATE OF OHIO, Appellee v. PHILLIP L. POPE, Appellant
C.A. Nos. 26928, 27096
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 23, 2014
2014-Ohio-3212
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 12 3456
Dated: July 23, 2014
MOORE, Judge.
{¶1} Defendant-Appellant, Phillip L. Pope, appeals from the February 25, 2013 judgment entry of the Summit County Court of Common Pleas. We affirm, in part, reverse, in part, and remand for the trial court to correct the sentencing entry.
I.
{¶2} Mr. Pope was indicted for (1) aggravated murder, in violation of
{¶3} Mr. Pope pleaded not guilty to all of the charges.
{¶4} In February of 2013, Mr. Pope changed his plea to guilty of murder, in violation of
{¶5} Mr. Pope did not timely appeal from the trial court‘s sentencing entry. However, he filed two motions for delayed appeal, and this Court granted both motions. The appeals were then consolidated. He now raises three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ACCEPTING [][MR.] POPE‘S GUILTY PLEA WITHOUT COMPLYING WITH THE REQUIREMENTS OF [
{¶7} The State responds by arguing that Mr. Pope cannot demonstrate prejudice because “[t]here is nothing in the record to suggest that [Mr.] Pope would not have entered his guilty plea had the trial court not erroneously informed him that he was subject to a mandatory five-year term of [postrelease] control.”
{¶8} “The basic tenets of due process at the federal and state level dictate that a guilty plea must be knowingly, intelligently, and voluntarily given.” State v. Firl, 9th Dist. Summit No. 22689, 2005-Ohio-5501, ¶ 6, citing State v. Sherrard, 9th Dist. Lorain No. 02CA008065, 2003-Ohio-365, ¶ 6, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “To ensure this standard is met, trial courts must conduct an oral dialogue with the defendant pursuant to
{¶9}
In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
Determining 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.
{¶10} Literal compliance with Criminal Rule 11 is preferred. Clark, 2008-Ohio-3748, at ¶ 29. (“Literal compliance with
{¶11} Further, “[w]hen the trial judge does not substantially comply with
The trial judge was not required to discuss postrelease control or parole in [Mr.] Clark‘s plea colloquy under
Crim.R. 11(C)(2) , as [Mr.] Clark was not eligible for postrelease control, given his plea to an unclassified felony. * * *Such 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
Crim.R. 11 plea colloquy, the information conveyed must be accurate. The rule is in place to ensure that defendants wishing to plead guilty or no contest do so knowingly, intelligently, and voluntarily. Because of the substantial misinformation that the trial judge provided to the defendant in this case, the defendant could not have entered his plea knowingly, intelligently, and voluntarily. The fact that the trial court provided some correct information as well does not alter this conclusion, because the [correct] information was not provided in such a manner as to remedy the erroneous information.Despite the failure to substantially comply with
Crim.R. 11 , the trial judge did not simply ignore his duties underCrim.R.11(C)(2)(a) . Because the trial judge partially complied with the rule, [Mr.] Clark must show that he was prejudiced by the trial court‘s misinformation to successfully vacate his plea. * * *
Id. at ¶ 38.
{¶13} Upon remand, the Eleventh District upheld Mr. Clark‘s plea, and concluded that he failed to demonstrate prejudice because he “presented no evidence and point[ed] to no
{¶14} In the present matter, Mr. Pope pleaded guilty to murder, an unclassified felony. As such, pursuant to
* * *
[THE COURT]: You understand that should you be released by the adult parole authority, you will be under their supervision at that point and you will have to serve a period of post[]release control as part of your sentence, and that would be for a mandatory five-year term?
[MR. POPE]: Yes.
* * *
[THE COURT]: You understand that when you‘re placed on post[]release control, the adult parole authority would be authorized to return you to prison for up to nine months for any single violation, up to a maximum of 50 percent of your prison sentence for all violations?
And if you would be convicted of a new felony while on post[]release control, in addition to being punished for the new offense, the Judge could add an additional, consecutive prison term of one year or whatever time remains on your post[]release control term?
[MR. POPE]: Yes.
* * *
The record indicates that the trial court failed to substantially comply with
{¶15} Similar to Clark II, the record before us does not contain any evidence that, but for the belief that he would be subject to postrelease control, Mr. Pope would have proceeded to trial. See Nero at 108. Mr. Pope does not direct us to any part of the record suggesting that, had he known he was not eligible for postrelease control, he would not have pleaded guilty to murder.
{¶16} Instead, the transcript of the plea hearing demonstrates that Mr. Pope accepted full and complete responsibility for his actions. During the plea hearing, Mr. Pope‘s attorney stated: “[t]his is his fault and nobody else‘s fault,” and “[i]t‘s his fault and that‘s why he is entering this plea at this time. It‘s his responsibility and nobody else‘s; is that right,” to which Mr. Pope responded, “[r]ight.” Further, there was no discussion on the record that Mr. Pope‘s decision to plead guilty in any way hinged on whether he was eligible for postrelease control. In fact, prior to the
{¶17} While Mr. Pope did not file a motion to withdraw his plea or otherwise place before the court any evidentiary documents, he bases his argument regarding prejudice upon the suggestion that he would not have pleaded guilty had he known he was ineligible for postrelease control. We note that there is nothing in the record to support this assertion, and Mr. Pope does
{¶18} Therefore, based upon the record before us, we cannot conclude that Mr. Pope was prejudiced by the trial court‘s statement regarding postrelease control.
{¶19} Accordingly, Mr. Pope‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
[THE] TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING [MR.] POPE TO FIVE YEARS OF MANDATORY POST-RELEASE CONTROL UNDER
{¶20} In his second assignment of error, Mr. Pope argues that, pursuant to
{¶21} As stated above,
{¶22} Here, the trial court sentenced Mr. Pope to fifteen years to life for murder, an unclassified felony, and also indicated that he would be subject to five years’ mandatory postrelease control after being released from prison. Because
{¶23} Accordingly, Mr. Pope‘s second assignment of error is sustained, and the matter is remanded to the trial court to correct the sentencing entry.
[MR.] POPE WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING THAT THE TRIAL COURT COULD NOT [IMPOSE] POST-RELEASE CONTROL UPON [MR.] POPE FOR HIS CONVICTION OF MURDER, AN UNCLASSIFIED FELONY.
{¶24} In his third assignment of error, Mr. Pope argues that he was denied effective assistance of counsel because his attorney failed to object to the imposition of postrelease control. However, given the resolution of Mr. Pope‘s second assignment of error, we conclude his third assignment of error is moot and decline to address it. See
III.
{¶25} In overruling Mr. Pope‘s first assignment of error, sustaining his second assignment of error, and concluding that his third assignment of error is moot, the judgment of the Summit County Court of Common Pleas is affirmed, in part, reversed, in part, and remanded for further proceedings consistent with this decision.
Judgment affirmed in part, reversed in part, and cause remanded.
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
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.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
BELFANCE, P. J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.