State v. ShermanState v. Sherman
For Plaintiff-Appellee
JAMES J. MAYER, JR. PROSECUTING ATTORNEY BY: KIRSTEN L. PSCHOLKA-GARTNER 38 South Park Street Mansfield, OH 44902
For Defendant-Appellant
JOHN C. O‘DONNEL 13 park Avenue West, Suite 300 Mansfield, OH 44902
{¶1} Defendant-appellant Patrick R. Sherman appeals his convictions on one count of having weapons while under disability, with a one-yеar firearm specification, and possession of crack cocaine, with a forfeiture specification. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On January 7, 2009, appellant was indicted by the Richland County Grand Jury for one count of having weapons while under disability, a felony of the third degree, with a firearm specificatiоn; one count of carrying a concealed weapon, a felony of the fourth degree; one count of improper handling of a firearm in a motor vehicle, a felony of the fourth degree; two counts of trafficking in drugs, felonies of the second and third degree, with forfeiture specifications for $1,255.00 in cash, and two counts оf possession of drugs, felonies of the second and fourth degrees, with forfeiture specifications for $1,255,00 in cash1.
{¶3} On September 28, 2009, the day his case was scheduled to proceed to trial, appellant entered into a plea agreement with the State of Ohio. Appellant agreed to plead guilty to having weapons while under disability, with a one-year firearm specification, and possession of crack cocaine, with a forfeiture specification for $1,255.00 in cash. In exchange for appellant‘s plea, the state agreed to dismiss the remaining counts. The state also agreed to recommend a sentence of eight years for thе two counts on which appellant pled guilty, to run concurrent with the sentence that
{¶4} Prior to accepting appellant‘s plea, the terms of the plea agreement were set forth on the record by the state and the appellant‘s attorney. Appellant indicated that he understood those terms, and that he was satisfied by his attorney‘s representation. The trial court explained appellant‘s rights рursuant to
{¶5} After accepting appellant‘s plea, the trial court proceeded to sentencing. On the having weapons while under disability charge, the trial court sentenced appellant to two years on the underlying charge, and one-year mandatory on the firearm specification. On the possession of crack coсaine charge, the trial court sentenced appellant to five years, two years of which were mandatory. These sentences were run consecutive for a total sentence of eight years, three of which were mandatory. As agreed the eight-year sentence was run concurrent to the sentence apрellant was already serving on an unrelated case.
{¶6} On appeal, appellant challenges only the validity of his plea, raising two assignments of error:
{¶8} “II. DEFENDANT/APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL TO HIS PREJUDICE.”
I.
{¶9} In his first assignment of error, appellant argues that his guilty plea was invalid based on confusion about when he would be eligible for judicial release. Specifically, appellant argues that his pleas of guilty were improperly accepted by the court because the court failed to determine that he understood that he is, in reality, ineligible for judicial release under the agreed upon sentence before it accepted his guilty pleas. We agree.
{¶10} Before accepting aрpellant‘s plea at the plea hearing, the trial judge was bound by the requirements of
{¶11} “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 follоwing:
{¶12} “(a) 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.
{¶14} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to havе compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” (Emphasis added).
{¶15} In determining whether the trial court has satisfied its duties under
{¶16} In State v. Clark, supra, the Ohio Supreme Court set forth the following procedure for a reviewing court, “When the trial judge does not substantially comply with
{¶17} A defendant‘s ineligibility for judicial release is not one of the matters regarding which
{¶18} In the case at bar, the “Admission of Guilt / Judgment Entry,” filed September 29, 2009 advised appellant that by pleading guilty “I am not eligible for judicial release during the mandatory imprisonment.” At the change of plea hearing, the following exchange ocсurred:
{¶19} [The Court]: We‘ve been informed that the Defendant, his attorney, and the prosecuting attorney have reached an agreement. At this time, the prosecutor can state on the record what the nature of the agreement is.
{¶20} [The Prosecutor]: Your Honor, the nature of the agreement is as follows: The State anticipates the Defendant pleading guilty to Count 1 with a one-year firearm specification and Count 6 with a forfeiture specification of $1, 255 cash as those counts are contained within the indictment. The State would, upon the Court‘s acceptance of those pleas, move to dismiss Counts 2, 3, 4, 5 and 7. The Defendant and the State agree that the Court will impose an eight year prison term on the counts that the guilty plea was accepted to. The State is further agreeing that the eight year prison sentence will go concurrent to his current time beginning on today‘s date anticipating that the Court will immediately move to sentencing. And further, that the Defendant may file a motion for judiciаl release when he is eligible, and that neither the State, the Court, and nobody else involved in the case is going to make any promises as to that motion being granted, but that he may file when eligible.” (T. at 3-4). Appellant‘s trial counsel informed the court as follows,
{¶22} Before accepting appellant‘s plea of guilty, the trial court prоceeded to inform appellant “Defendant may file for judicial release when eligible. No promise of any kind. That the motion will be filled without any promise that it be granted.” (T. at 18).
{¶23} Finally, prior to imposing sentence, one of appellant‘s parents addressed the court:
{¶24} [Unidentified Speaker]: ...I would like if he could come closer [to home] and maybe you could consider judicial release
{¶25} “* * *
{¶26} “[Unidentified Speaker]: About the judicial release, could you just please consider –
{¶27} “[The Court]: Well –
{¶28} “[Unidentified Speaker]: -- when the time comes?
{¶29} “[The Court]: When the time comes, I will give it every consideration.” (T. at 20).
{¶31}
{¶32} “(C) An eligible offender may file a motion for judicial release with the sentencing court within the following applicable periods:
{¶33} “* * *
{¶34} “(3) If the stated prison term is five years or more but not more than ten years, the eligible offеnder may file the motion not earlier than five years after the eligible offender is delivered to a state correctional institution or, if the prison term includes a mandatory prison term or terms, not earlier than five years after the expiration of all mandatory prison terms.”
{¶35} In the case at bar, appellant‘s “stated prison tеrm” for all of the charges to which he pled is eight years, of which three years are mandatory. Accordingly, pursuant to
{¶36} Interestingly, we note that in State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963, Peoples, the offender, was sentenced to a prison term of exactly five years. Id. at 461, 812 N.E.2d 963. The statute governing Peoples’ eligibility for judicial release was identical to the current version of
{¶37} However, until appellant files a motion for judicial release and the trial court denies it pursuant to
{¶38} Instead, appellant in the case at bar argues that his guilty pleas are void because his trial counsel, the prosecuting attorney, and the trial court misinformed appellant that he would be eligible for judicial release when in fact he is not. Accordingly, he argues that he did not knowingly, intеlligently, and voluntarily plead guilty. We conclude that because it appears from the record in this case that the filing of a motion for judicial release was part of the inducement to plead guilty, the trial court was obliged to correctly inform appellant as to if and when appellant would become eligible for judiсial release.
{¶39} Appellant‘s situation resembles that reviewed by the Ohio Supreme Court in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. In Clark, the Ohio Supreme Court noted that defendants who are sentenced for unclassified felonies are not subject to post release control, pursuant to
{¶40} The Clark Court further held that, because the defendant who is sentenced to an unclassified felony is not eligible for post release control, the trial court is not required to discuss post release control or parole in the defendant‘s plea colloquy under
{¶41} In the case at bar, the court was not obligated to discuss judicial release. However, if a trial judge, the prosecuting attorney and defense counsel choose to offer a request that аn accused be permitted to file a motion for judicial release “when eligible” in a
{¶42} Appellant‘s first assignment of error is sustained.
{¶43} Because appellant‘s first assignment of error is dispositive, we decline to address appellant‘s remaining assignment of error. See
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
WSG:clw 0812
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER