State v. ShadeState v. Shade
Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Kettering, Ohio, Ohio 45429
Attorney for Defendant-Appellant
OPINION
EPLEY, J.
I. Facts and Procedural History
{2} On August 14, 2020, Shade was indicted in Montgomery C.P. No. 2020-CR-1045 for theft, a felony of the fifth degree, and petty theft, a first-degree misdemeanor. On June 3, 2021, he was charged in a separate nine-count indictment in Montgomery C.P. No. 2021-CR-1731 for: Count 1 – failure to comply; Counts 2 & 3 – having weapons under disability; Counts 4 & 5 – improper handling of a firearm in a motor vehicle; Counts 6 & 7 - carrying a concealed weapon; Count 8 – aggravated possession of drugs; and Count 9 obstructing official business. The parties reached a global plea agreement before trial. As to Case No. 2020-CR-1045, Shade agreed to plead guilty to theft in exchange for the dismissal of the petty theft; the parties also agreed to jointly recommend community control sanctions. As to Case No. 2021-CR-1731, the parties agreed that Shade would plead guilty to Counts 1 and 2, failure to comply and having weapons under disability (both felonies of the third degree), and in exchange, the State would dismiss the remaining charges. Additionally, both the State and Shade agreed to a recommended sentence of no more than 24 months in prison.
{3} Prior to the plea hearing, attorneys for both sides informed the court of the plea deal, and Shade‘s counsel asked that Shade be granted leave to visit his dying mother before disposition. The court agreed but explicitly warned Shade in open court
{4} The Crim.R. 11 plea colloquy followed. The court explained to Shade about the constitutional and non-constitutional rights he would be giving up upon pleading guilty. Shade was also informed about the maximum sentence he was facing for each charge, that he faced a mandatory license suspension, and post-release control. The court further noted that he was eligible for community control on all of the counts to which he was pleading guilty, and that he would be facing a prison sentence of 84 months if he violated the terms of community control. “The felonies would be [served] consecutively to one another. * * * So, you would have 12 – 36 and 36 is 72 and 12 is 84 [months], * * * so a bunch of time that would be hanging over your head[.]” Tr. at 14.
{5} The court did not, however, inform Shade that if prison time were imposed for the charge of failure to comply, the sentence, by operation of law, would have to be served consecutively to any other prison term imposed. After completing the colloquy, the court determined that Shade was entering into his guilty pleas in a knowing, intelligent, and voluntary fashion and then set the schedule for a presentence interview and sentencing hearing (originally scheduled for August 4, 2021 but continued until September 8, 2021).
{6} Despite the warning at the plea hearing, Shade failed to appear at the
{7} Ultimately, Shade was sentenced to prison terms of 12 months for theft in Case No. 2020-CR-1045 and 36 months for both failure to comply and having weapons while under disability in Case No. 2021-CR-1731. The court ordered the three sentences to be served consecutively to each other for a total of 84 months in prison. Shade has appealed, raising a single assignment of error.
II. Shade‘s plea was voluntary
{8} In his assignment of error, Shade argues that because the trial court did not inform him that a prison sentence for failure to comply is statutorily required to be served consecutively to other prison terms, he did not enter his guilty pleas in a knowing, intelligent, and voluntary manner.
{9} To satisfy the requirements of due process, a guilty plea must be made knowingly, intelligently, and voluntarily, and the record must affirmatively demonstrate as much. State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. For a plea to be made knowingly and voluntarily, the trial court must follow the mandates of
{10}
{11} “A trial court must substantially comply with the notification of non-constitutional rights contained in
{12} Shade does not contend that his constitutional rights were violated (and
{13} Initially, it should be noted that we have previously rejected the proposition that a guilty plea to failure to comply (
{14} Shade‘s argument – that a court must inform a defendant that a sentence imposed pursuant to a
{15} The holdings of cases like Norman and Milhoan, though, only apply “when the imposition of consecutive sentences is a foregone conclusion at the time the plea is
{16} Shade‘s receiving a prison sentence, let alone a consecutive one, was not a “foregone conclusion” when he entered into his plea agreement. Shade was informed that he was eligible for community control sanctions on both failure to comply and having weapons while under disability at the plea hearing, and his plea agreement included simply a “cap” of 24 months if prison were imposed. Further, failure to comply does not carry mandatory prison time (see
{17} Perhaps the biggest strike against Shade in this case is that he brought all of this upon himself. The trial court tried to be merciful by letting Shade visit with his dying mother before being sentenced and only asked that he show up for the disposition. Instead, despite a clear warning of the consequences – “you fail to come back to court when we tell you to come back to court * * * you will have entered pleas to these charges but the agreement about how you‘re going to be treated is off the table and you‘re at my mercy then. Do you understand that?” (Tr. at 7-8) – he chose to run, forfeiting the deal brokered by his attorney. It is not reasonable to ask the trial court to inform a defendant
{18} Ultimately, we conclude that the trial court strictly complied with
III. Conclusion
{19} The judgments of the trial court will be affirmed.
TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. David Turner
Hon. Steven K. Dankof