STATE OF OHIO v. MARC TERRELL
Appellate Case No. 2020-CA-24
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
May 28, 2021
[Cite as State v. Terrell, 2021-Ohio-1840.]
WELBAUM, J.
Triаl Court Case Nos. 2019-CR-523; Criminal Appeal from Common Pleas Court
Rendered on the 28th day of May, 2021.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 46 1/2 North Sandusky Street, Delaware, Ohio 43015
Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On August 20, 2019, Terrell was indicted for one count of aggravated vehiсular homicide in violation of
{¶ 4} At the plea hearing, the trial court engaged in a plea colloquy with Terrell. During the plea colloquy, the trial court advised Terrell of the possible penalty he faced for aggravated vehicular homicide and stated the following:
The aggravated vehicular homicide offense is a felony of the second degree. The sentencing range for that offense would be anywhere from community control sanctions also known as probation up to a maximum penalty of twelve years in the Ohio State Penitentiary. Typically for a second degree felony, the sentencing range, if prison is imposed, is anywhere between two and eight years. The law has recently changed. And whatever amount of time the court would impose, if it imposed a prison sentence, that would be the minimum term; and then the maximum term would be adding 50% to that minimum term. So essentially, the maximum prison term for this offense would be an eight-year prison term, but it would be an indefinite prison term and adding 50% to the eight, which is four, and it would make it eight to twelve as an indefinite sentence.
(Emphasis added.) Plea Hearing Trans., p. 6-7.
{¶ 5} After Terrell indicated that he understood the aforementioned statements, the
{¶ 6} Terrell once again indicated that he understood the trial court‘s statements. Thereafter, the trial court advised Terrell about the penalty for OVI and stated the following: “The OVI offense is a first degree misdemeanor. The sentencing range for that offense would be anywhere from three days of incarceration, which would be mandatory, up to a maximum penalty of six months incarceration.” (Emphasis added.) Id. at 7-8.
{¶ 7} Shortly after Terrell indicated that he understood the trial court‘s statements regarding the OVI offense, the trial court once again indicated that Terrell was eligible for community control sanctions and stated the following: ”If you were placed on community control, conditions of it could include time in the county jail, fines, and restitution. If you‘re sentenced to prison, then upon your release you will be placed on a mandatоry post-release control.” (Emphasis added.) Plea Hearing Trans., p. 9.
{¶ 8} Following its plea colloquy, the trial court accepted Terrell‘s guilty pleas as knowingly, intelligently, and involuntarily entered. The trial court then ordered a PSI and scheduled the matter for a sentencing hearing. At the sentencing hearing, the trial court imposed the maximum possible prison sentenсe for each of the three offenses and ordered the sentences to be served consecutively for a total, aggregate term of 13.5 years to 17.5 years in prison.
First Assignment of Error
{¶ 10} Under his first assignment of error, Terrell contends that his guilty pleas to aggravated vehicular homicide аnd aggravated vehicular assault were not knowingly, intelligently, and voluntarily entered. In support of this claim, Terrell asserts that the trial court failed to inform him at the plea hearing that by pleading guilty, he would be subject to mandatory prison terms for those offenses. Terrell also claims that the trial court incorrectly advised him that he was eligible for community control sanctions. Terrell further argues that the plea form provided by the trial court incorrectly stated that prison terms were not mandatory for the aggravated vehicular homicide and aggravated vehicular assault offenses. As a result of this misinformation, Terrell asserts that the trial court completely failed to comply with
{¶ 11} Generally speaking, “a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of
{¶ 12} The first exception is that the trial court must comply strictly with
{¶ 13} The second exception is that “a trial court‘s complete failure to comply with a portion of
{¶ 14} Pursuant to
{¶ 15} With regard to mandatory prison sentences, we have explained that:
” ‘When a defendant on whom a mandatory prison sentence must be imposed enters a plea of guilty or no contest, the court must, before accepting the plea, determine the defendant‘s understanding that the defendant is subject to a mandatory sentence and that the mandаtory sentence renders the defendant ineligible for probation or community
control sanctions.’ ” State v. Morgan, 2018-Ohio-319, 104 N.E.3d 941, ¶ 15 (2d Dist.), quoting State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 10.
{¶ 16} In this case, the parties do not dispute that pursuant to
{¶ 17} In State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, we recently discussed what constitutes a complete failure tо comply with
” ‘[A] trial court‘s total failure to inform a defendant of a distinct component of the maximum penalty during a plea colloquy constitutes a complete failure to comply with
Crim.R. 11(C)(2)(a) , thereby requiring the vacation of the defendant‘s guilty or no contest plea.’ [State v. Fabian, 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20]. ‘Or stateddifferently, a complete failure to comply with Crim.R. 11(C)(2)(a) involves a trial court‘s complete omission in advising about a distinct component of the maximum penalty. By contrast, a trial court‘s mention of a component of the maximum penalty during a plea colloquy, albeit incomplete or perhaps inaccurate, does not constitute a complete failure to comply withCrim.R. 11(C)(2)(a) .’ ”
Id. (Emphasis added.) Harris at ¶ 22, quoting Rogers at ¶ 19.
{¶ 18} In an effort to establish that the trial court completely failed to comply with
{¶ 19} Although Morgan applied the pre-Dangler substantial compliance analysis, we nevertheless find it instructive on the issue presented herein. In our view, Morgan is an example of when a trial court сompletely failed to comply with a component of
{¶ 20} In addition, the trial court specifically advised Terrell that his OVI offense carried a mandatory term of incarceration while providing no similar advisement for the other two offenses. By omitting a similar advisement for aggravated vehicular homicide and aggravated vehicular assault, and by indicating that community control sanctions were possible for those offenses, the trial court effectively indicated that prison terms were not mandatory for those offenses when they, in fact, were. This incorrect information was also provided in the plea form. Therefore, instead of completely omitting information, the trial court simply provided inaccurate information regarding Terrell‘s eligibility for community control sanctions. For this reason, rather than a complete failure, we find that the trial court partially failed to comply with a component of
{¶ 21} Because the trial court partially failed to cоmply with
{¶ 22} “Clearly, the prospect of probation would be a factor weighing heavily in favor of a plea. That probation is statutorily precluded could affect a person‘s decision to enter a plea of no contest or guilty.” State v. May, 64 Ohio App.3d 456, 460, 581 N.E.2d 1154 (9th Dist.1989). Therefore, “[w]here the trial court erroneously informs an accused who enters a guilty plea and who is ineligible for probation on the offense to which he/she is pleading guilty that the accused is eligible for probation and the accused does not believe оtherwise, the plea cannot be viewed as either voluntary or knowing since ‘the prospect of probation would be a factor weighing heavily in favor of a plea.‘” State v. Floyd, 4th Dist. Scioto No. 92CA2102, 1993 WL 415287, *6 (Oct. 13, 1993), quoting May at 460. In other words “[t]he prejudice to a defendant is apparent when the court informs him/her that he/she is eligible for probation although it is actually unavailable. In such сase, a defendant might be coerced into pleading guilty because of the possibility of probation.” Id. See also State v. Rand, 10th Dist. Franklin No. 03AP-745, 2004-Ohio-5838, ¶ 22-23 (finding prejudicial error existed where the trial court incorrectly advised the defendant at the plea hearing that a prison sentence was not mandatory for his offense); State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-13 (finding prejudicial error existed where the defendant was unaware of the amount of mandatory prison time and of the fact that he would be ineligible for judicial release or community control sanctions).
{¶ 23} In an attempt to show that Terrell was not prejudiced by the trial court‘s misinformation, the State directs this court‘s attention the Supreme Court of Ohio‘s
{¶ 24} The Supreme Court reached this conclusiоn, in part, because the defendant‘s motion to withdraw his guilty plea was filed eight years after the defendant filed a direct appeal in which the defendant never challenged the validity of his guilty plea. Id. at ¶ 21. The Supreme Court found that “Straley‘s eight-year delay in moving to withdraw his plea ***undercuts his assertion that he would not have pled guilty if he knew part of his sentence would bе mandatory.” Id. The Supreme Court also found that, because the defendant pled guilty in exchange for an agreed sentence of 35 years and 10 months in prison, the defendant “could not have reasonably expected to serve any less than [the agreed] sentence.” Id. at ¶ 18.
{¶ 25} Straley is clearly distinguishable from the present case. Unlike Straley, the present case involves a direct appeal in which Terrell is challenging the validity of his
{¶ 26} Although it is clear that Terrell knew that he was going to be incarcerated for the OVI offense, as the trial court properly advised Terrell that he could serve up to 180 days in jail with at least three days being mandatory, that term was significantly less than the prison terms that Terrell faced for aggravated vehicular homicide and aggravated vehicular assault. Being a first-time offender with no criminal history, Terrell may very well have based his decision to plead guilty on his belief that community control sanctions were possible for one or both of those offenses. Therefore, given the foregoing, we find that prejudice is apparent from the trial court‘s misinformation in this case, thereby requiring this court to conclude that Terrell‘s guilty plea was not knowingly, intelligently, and voluntarily entered.
{¶ 27} Terrell‘s first assignment of error is sustained.
Second and Third Assignments of Error
{¶ 28} Under his second assignment of error, Terrell contends that his conviction
Conclusion
{¶ 29} Having sustained Terrell‘s first assignment of error, Terrell‘s conviction will be reversed and the matter will be remanded to the trial court for further proceedings.
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Andrew P. Pickering
April F. Campbell
Hon. Douglas M. Rastatter