2006 Ohio 2314 | Ohio Ct. App. | 2006
{¶ 3} Appellant ultimately entered a plea of guilty to four counts of sexual battery. To accomplish this, the state amended the three rape charges, counts 1, 19, and 20, to sexual battery and deleted the sexually violent offender and repeat violent specifications attached to those charges. The state further amended the sexual battery charge, count 4, to delete the sexually violent offender specification. Appellant then pleaded guilty to the charges in counts 1, 4, 19 and 20 as amended; the remaining charges were dismissed. As part of his plea agreement, appellant agreed that he would be classified as a sexual predator. The court later sentenced appellant to four years' imprisonment on each charge, to be served consecutively and followed by five years of post release control. He was further adjudicated a sexual predator and was advised of the reporting requirements.
{¶ 5} Appellant's seventh assignment of error contends that his plea was not knowingly, intelligently and voluntarily entered, because he did not understand the maximum penalty the court could impose was more than five years' imprisonment. "[N]either the United States Constitution nor the Ohio Constitution requires that in order for a guilty plea to be voluntary a defendant must be told the maximum total of the sentences he faces, or that the sentence could be imposed consecutively." State v. Johnson (1988),
{¶ 6} At the plea hearing, the court asked appellant, "[d]o you understand the offenses to which you will be pleading as amended are all felonies of the third degree, each carries with it a possible term of incarceration in State prison ranging anywhere from 1, 2, 3, 4, or 5 years, and/or up to a $7,500 fine? Do you understand that?" [Emphasis added.] Appellant responded, "[y]es, Your Honor." While an explicit explanation of the potential for consecutive sentences might have been preferable, it was not required by either the constitution or the criminal rule. Appellant was sufficiently informed of the maximum potential sentence for each offense. Therefore, we overrule appellant's seventh assignment of error.
{¶ 7} Appellant's eighth through eleventh assignments of error contend that he received ineffective assistance of counsel. Because all of these arguments are subject to the same standard, we review them together.
{¶ 8} In his eleventh assignment of error, appellant claims his attorney supplied ineffective assistance because he did not file a motion to dismiss for failure to provide appellant with a speedy trial. Appellant waived this argument by pleading guilty. "When a defendant enters a plea of guilty as a part of a plea bargain he waives all appealable errors which may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea." State v.Barnett (1991),
{¶ 9} The ninth and tenth assignments of error contend that appellant's attorney provided ineffective assistance in counseling him to enter into the plea agreement, because he gave appellant inaccurate information about the sentence which the court could potentially impose and because he failed to advise appellant about the nature of a sexual predator designation. These arguments concern the advice counsel gave to appellant, so they are necessarily based on evidence outside the record on appeal. Appellant cannot demonstrate on the record that counsel provided ineffective assistance in counseling appellant to enter into the plea agreement. He can present evidence of his counsel's claimed ineffectiveness through a petition for post-conviction relief. State v. Cooperrider (1983),
{¶ 10} The eighth assignment of error contends that appellant's counsel was ineffective because he failed to raise certain arguments at sentencing. Our disposition of appellant's assignments of error concerning the sentences imposed upon him renders this assignment of error moot.
{¶ 11} Appellant's first assignment of error challenges the court's imposition of separate consecutive punishments for each of the offenses of which he was convicted, on the ground that these offenses were allied offenses of similar import. Appellant waived this argument, first by pleading guilty to four separate crimes, and second, by failing to raise the issue that the offenses were allied in the trial court. State v. Hooper,
Columbiana App. No. 03 CO 30,
{¶ 12} In his fifth assignment of error, appellant contends that the court erred by "relying on alleged facts not proven beyond a reasonable doubt, nor supported by the record, to impose non-mandatory consecutive sentences," in violation of the United States Supreme Court's decision in Blakely v. Washington
(2004),
{¶ 13} In Foster, the supreme court held that "because the total punishment increases through consecutive sentences only after judicial findings beyond those determined by a jury or stipulated to by a defendant, R.C.
{¶ 14} The Ohio Supreme Court further held that "[cases] pending on direct review must be remanded to the trial courts for new sentencing hearings not inconsistent with this opinion." Id. at ¶ 104. It noted that "[u]nder R.C.
{¶ 15} Accordingly, we vacate the sentences imposed on appellant and remand this matter for a new sentencing hearing in accordance with the requirements of Foster. This disposition renders moot appellant's other challenges to the sentences imposed upon him.
{¶ 16} Convictions affirmed; sentences vacated and case remanded for resentencing.
{¶ 17} Appellant's convictions are affirmed, but the sentences imposed are vacated and this matter is remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee his costs herein.
It is ordered that a special mandate be sent to 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.
Dyke, A.J. and McMonagle, J. concur.
