STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIE RIGGANS, DEFENDANT-APPELLANT.
CASE NO. 1-09-56
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
March 29, 2010
2010-Ohio-1254
Appeal from Allen County Common Pleas Court Trial Court No. CR2009 0021 Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
Willie Riggans, Appellant
Jana E. Emerick, for Appellee
{¶1} Defendant-appellant, Willie J. Riggans (hereinafter “Riggans“), pro se, appeals the trial cоurt‘s judgment entry of conviction and sentencing. We affirm Riggans’ conviction but remand this matter for the trial court to correct its judgment entry relative to post-release control pursuant to
{¶2} On January 15, 2009, the Allen County Grand Jury indicted Riggans on two (2) counts, including: count one (1) of aggravated trafficking in drugs, within the vicinity of a juvenile, in violation of
{¶3} On March 20, 2009, Riggans entered a plea of not guilty at arraignment. (Doc. Nos. 4, 6, 8).
{¶4} On May 5, 2009, a final pre-trial was held wherein Riggans executed a negotiated plea of guilty to the charges in the indictment. (Doс. Nos. 28, 31). That same day, Riggans appeared before the trial court, withdrew his previously tendered not guilty plea, and entered guilty pleas to both charges in the indictment. (May 6, 2009 JE, Doc. No. 32). The trial court thеreafter sentenced Riggans to four (4) years of incarceration on count one (1) and two (2) years incarceration on count two (2). (Id.). The trial court ordered that the terms on counts one (1) аnd two (2) be served consecutively to each other for a total aggregate term of six (6) years incarceration, and the trial court further ordered that the sentence imposed in
{¶5} On October 23, 2009, Riggans filed a notice of appeal. (Doc. No. 39). On October 28, 2009, Riggans filed a motion for delayed appeal with this Court, which we granted on November 20, 2009.
{¶6} Riggans now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT‘S CONDUCT AND DIRECT PARTICIPATION IN THE PLEA NEGOTIATION PROCESS RENDERED APPELLANT‘S PLEA INVOLUNTARY.
{¶7} In his first assignment of error, Riggans argues that his guilty pleas were involuntary because “the recоrd demonstrates that the trial court, and Riggans, were essentially the only parties involved in the plea negotiations.” (Appellant‘s Brief at 10). Riggans further asserts that that the trial court judge “lost his composurе, and became hostile towards [him]” when he asked to dismiss his counsel for ineffective assistance. (Id. at 7). Riggans argues that “it would be difficult to say that [he] was not influenced by the judge‘s attitude, demeanor, and cоercive language.” (Id. at 10). We disagree.
{¶8} Although strongly discouraged by the Ohio Supreme Court, a trial judge‘s participation in plea negotiations does not render a defendant‘s plea invalid per se under the Ohio and United States Constitutions. State v. Byrd (1980), 63 Ohio St.2d 288, 293-94, 407 N.E.2d 1384. Nonetheless, “a trial judge‘s participation in the plea bargaining process must be carefully scrutinized to determine if the judge‘s intervention affected the vоluntariness of the defendant‘s guilty plea.” Id. Ordinarily, a plea should be found involuntary under the Fifth Amendment and Section 10, Article I of the Ohio Constitution “if the judge‘s active conduct could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the judge would be biased against him at trial.” Id.
{¶9} As an initial matter, the trial court‘s involvement in the plea negotiаtions sub judice—which was limited to providing the State and the defendant with a range of sentence it would impose—was qualitatively different than the trial court‘s involvement found objectionable in Byrd, supra. The trial court judge in Byrd solicited аn unrequested meeting with the defendant‘s mother and sister through a deputy sheriff who was also a friend of the defendant‘s family. 63 Ohio St.3d at 289-90. At this meeting, the trial court judge informed the defendant‘s mother and sister that the defendant would fаce a predominantly white jury, and, if convicted, the defendant would be sentenced to death by the electric chair. Id. The trial court judge told the defendant‘s mother that it would be wise for her to get thе defendant to plead guilty so that he would not be sentenced to death. Id. The defendant‘s sister indicated that the trial court judge asked them to go to the jail and have the defendant sign a plea agreement. Id.
{¶11} The Ohio Supreme Court, reviewing this record, concluded that the trial сourt judge‘s conduct in all probability led the defendant to conclude that he would not receive a fair trial and that proceeding to trial was futile. Id. at 294. The Court further noted that the defendant was exрosed to a coercive environment to induce his change of plea because the trial judge used authority figures, family, and family friends to persuade the defendant to plead guilty. Id. In addition to that, at the time of the meeting, the defendant was addicted to methodone and was not provided an attorney. Id.
{¶13} Additionally, nоthing in the record here indicates that the trial court judge thought a trial was futile; in fact, the trial court judge suggested that, if Riggans was not satisfied with the plea agreement, the matter could proceed to trial as previously scheduled. (May 5, 2009 Tr. at 16, 19-20). See State v. Bizzell, (Sept. 29, 2000), 2nd Dist. Nos. 18055, 98-CR-2537, at *2 (noting that the trial court reminded the defendant he could abandon his agreement and proceed to trial). Furthermore, the record does not reveal any bias against Riggans, as he
{¶14} On the basis of the record before us, we cannot conclude that Riggans’ plea was involuntary; and therefore, his first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT FAILED TO PROPERLY STATE APPELLANT‘S MANDATORY POST-RELEASE CONTROL OBLIGATIONS IN THE JUDGMENT ENTRY OF CONVICTION AND SENTENCE.
{¶15} In his second assignment of error, Riggans argues that the trial court erred by notifying him in its journal entry that he was subject to “up to” three years of post-release contrоl. Riggans argues that this matter must be remanded for resentencing. The State concedes that the trial court‘s entry is in error and the matter must be remanded.
(B) Each sentence to a prison term for a felony of the * * * second degree * * * shall include a requirement that the offender be subject to a period of post-releasе control imposed by the parole board after the offender‘s release from imprisonment. * * * Unless reduced by the parole board pursuant to division (D) of this section when authorized under that division, a period of post-release control required by this division for an offender shall be of one of the following periods:
* * *
(2) For a felony of the second degree that is not a felony sex offense, three years;
(Emphasis added). At the combined change оf plea and sentencing hearing the trial court twice informed Riggans that he would be subject to “a period of three (3) years” post-release control. (May 5, 2009 Tr. at 5, 46). However, the trial court‘s judgment еntry states that “[u]pon completion of the prison term, the defendant shall be subject to such further period of supervision under POST RELEASE CONTROL as the parole board may determine pursuant to law (up to three (3) years).” (May 6, 2009 JE, Doc. No. 32) (emphasis added). It appears that the trial court incorporated into its judgment entry the post-release control provided for third, fourth, and fifth degree felonies as providеd in
{¶17} Riggans’ second assignment of error is, therefore, sustained.
{¶18} Accordingly, we affirm Riggans’ conviction but remand this matter for the trial court to correct its judgment entry relative to post-release control pursuant to
Affirmed in part, Reversed in part, and Cause Remanded
WILLAMOWSKI, P.J., and ROGERS, J., concur.
/jnc