State v. ThomasState v. Thomas
Corey W. Thomas, pro se
#A684426
Richland Correctional Institution
1001 Olivesburg Road
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mary Weston
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.:
- Thomas‘s conviction and sentence are void as the trial court lacked subject-matter jurisdiction.
- Thomas was deprived effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution when counsel advised Thomas to plead guilty instead of advising Thomas of statute of limitations defense and failing to file a motion to dismiss based on the statute of limitations.
- The trial court [failed to inform] Thomas he would be waiving his federal constitutional rights by pleading guilty.
- The trial court violated the due process clause to the Fourteenth Amendment to the United States Constitution by accepting Thomas‘s plea without informing him [that] the duration of post-release control could be up to eight years pursuant to
R.C. 2967.28(d)(3) . - The trial court violated the due process clause to the Fourteenth Amendment to the United States Constitution by accepting Thomas‘s plea without informing him of the maximum penalties, to wit: the cost of confinement under
R.C. 2929.18(a)(5)(ii) . - The trial court violated the equal protection and due process clause to the Fourteenth Amendment to the United States Constitution failing to grant Thomas jail-time credit for the time he spent in the juvenile detention center in 1994.
{¶2} Having reviewed the record and pertinent law, we affirm Thomas‘s conviction, but we remand in order for the trial court to give Thomas credit for any time served in a juvenile facility in connection with this matter. The apposite facts follow.
Thomas was born on February 20, 1977. The offenses here are claimed to have been committed on April 28, 1994, and Thomas was first arrested that day, while he was still 17. Under
section 2152.03 of the Ohio Revised Code the juvenile division thus acquired jurisdiction over Thomas. When the charges resurfaced in 2013, Thomas, being over 18, could be subject to the initial jurisdiction of the general division of the common pleas court underR.C. 2152.12(J) only if he had not been arrested before age 21. Since he had been arrested at age 17, the general division did not have jurisdiction and could only get jurisdiction over the case if it were transferred here by the juvenile division underR.C. 2152.12(A) or(B) . (SeeR.C. 2152.12(H) .) Therefore, the state‘s June 4, 2014, motion to transfer jurisdiction to the juvenile division is granted, even in the face of the juvenile division‘s ability underR.C. 2152.12(B) to transfer the case right back to the general division.
{¶4} The matter was transferred to the juvenile court in October 2015, and was in turn bound over to the general division for further proceedings.
{¶5} Thomas subsequently moved to dismiss the matter for preindictment delay. Following a hearing, the trial court denied this motion, and on December
Transfer from Juvenile Court
{¶6} In his first assigned error, Thomas asserts that his conviction is void because the general division of the court of common pleas lacked jurisdiction, and the juvenile court had exclusive jurisdiction in this matter.
{¶7} Under
any person who, while under eighteen years of age, commits an act that would be a felony if committed by an adult and who is not taken into custody or apprehended for that act until after the person attains twenty-one years of age is not a child in relation to that act.
{¶8} In State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, the Ohio Supreme Court stated:
Without a constitutional law authorizing a juvenile court to send juvenile cases to adult court, the courts of common pleas lack subject-matter jurisdiction over these cases. State v. Wilson, 73 Ohio St.3d 40, 44, 1995 Ohio 217, 652 N.E.2d 196 (1995) (“absent a proper bindover procedure * * *, the juvenile court has the exclusive subject matter jurisdiction over any case concerning a child who is alleged to be a delinquent“); see also
R.C. 2152.03 .
(Emphasis sic.) Id. at ¶ 22 (O’Neill, J., dissenting.)
When a child is arrested under any charge, complaint, affidavit, or indictment for a felony or a misdemeanor, proceedings regarding the child initially shall be in the juvenile court in accordance with this chapter. If the child is taken before a * * * judge of a court of common pleas other than a juvenile court, the * * * judge of the court of common pleas shall transfer the case to the juvenile court, and, upon the transfer, the proceedings shall be in accordance with this chapter. Upon the transfer, all further proceedings under the charge, complaint, information, or indictment shall be discontinued in the court of the * * * judge of the court of common pleas other than a juvenile court subject to
section 2152.12 of the Revised Code . The case relating to the child then shall be within the exclusive jurisdiction of the juvenile court, subject tosection 2152.12 of the Revised Code .
(Emphasis added.) Accord
{¶10} These statutes are written in the negative and clearly state that a juvenile court is divested of jurisdiction when:
(1) the defendant must have been under eighteen years of age at the time of the offense; (2) the alleged offense would be a felony if committed by an adult; and (3) the defendant must not have been “taken into custody or apprehended” for the offense prior to turning twenty-one years of age.
State v. Rosser, 8th Dist. Cuyahoga No. 104624, 2017-Ohio-5572, ¶ 21; In re H.C., 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10. The H.C. court explained:
In interpreting this [language], the Ohio Supreme Court held that the touchstone of determining whether or not a juvenile court possesses jurisdiction under the provision was “the age of the offender upon apprehension.”
{¶11} Moreover, absent a patent and unambiguous lack of jurisdiction, a court with general subject-matter jurisdiction may determine its own jurisdiction. State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 16. Accord State v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011-Ohio-6755 (general division had jurisdiction to determine whether Lindstrom was ever apprehended or taken into custody and to “transfer” matter to juvenile court after concluding that juvenile charges had been filed before indictment); State v. Mohamed, 178 Ohio App.3d 695, 2008-Ohio-5591, 899 N.E.2d 1071, ¶ 12 (8th Dist.) (trial court had jurisdiction to “transfer” the case to juvenile court after it determined that defendant was a juvenile at the time of the offenses).
{¶13} Thomas argues that the general division was required to “dismiss” the case against him and not simply transfer it to the juvenile court, and that the state was required to re-indict him after the bindover. However, the plain language of
{¶14} The first assigned error lacks merit.
{¶15} In his second assigned error, Thomas asserts that he was deprived of the effective assistance of trial counsel when his attorney did not move to dismiss the matter under the statute of limitations.
{¶16} We review a claim of ineffective assistance of counsel under a two-part test that requires the defendant to demonstrate: (1) trial counsel‘s performance fell below an objective standard of reasonable representation; and (2) prejudice arose from the deficient performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶17} In evaluating the alleged deficiency in counsel‘s representation, we note that Thomas was indicted for a 1994 rape and kidnapping. At that time, the statute of limitations was six years, pursuant to
{¶18} Here, Thomas was indicted on December 6, 2013, or within 20 years of the date on which the rape and kidnapping were alleged to have occurred. Accordingly, trial counsel did not err in failing to move to dismiss on the basis of the statute of limitations. Further, absent a trial error, a claim of ineffective assistance must fail. See State v. Henderson, 39 Ohio St.3d 24, 528 N.E.2d 1237 (1988).
{¶19} The second assigned error is without merit.
Guilty Plea
{¶20} In the third, fourth, and fifth assigned errors, Thomas argues that the trial court erred in accepting his guilty plea without first advising him of his “federal rights,” the penalties he faced, and the imposition of “costs of incarceration.”
{¶21} Under
- 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.
- Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to a jury trial, to confront witnesses against him or her, to have 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.
{¶22} The trial court must strictly comply with those provisions of
{¶23} As to the nonconstitutional rights, substantial compliance is sufficient. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31; State v. Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-4673, ¶ 12; Veney at ¶ 14. “Substantial compliance means that under the totality of the circumstances
{¶24} The nonconstitutional rights listed in
{¶25} With regard to Thomas‘s claim that the trial court failed to advise him of his “federal rights,” the court‘s colloquy states:
THE COURT: I want you to know the constitutional rights that you will be giving up if you plead guilty. There are five of them. As mentioned, these are all constitutional rights, so I‘m not going to keep using that adjective. First, if you plead guilty, you‘re giving up your right to a jury trial. Do you understand?
THOMAS: Yes.
THE COURT: Second, you give up your right to require the prosecutor to produce in open court evidence that convinces a jury beyond a reasonable doubt that you are, in fact, guilty of the crimes charged in the original indictment. Do you understand?
THOMAS: Yes.
THE COURT: Third, you give up your right to confront and cross-examine witnesses, including presumably * * * [the victim], that the prosecutor must bring against you at a trial. Do you understand?
THOMAS: Yes.
THE COURT: Fourth, you give up your right to compulsory process. That means your right to subpoena witnesses, to have them brought to court to testify in your favor at a trial. Do you understand?
THOMAS: Yes.
THE COURT: Fifth, if you plead guilty, you give up your right not to be compelled to be a witness against yourself. This is often called your Fifth Amendment right to remain silent. Do you understand?
THOMAS: Yes.
{¶26} From the foregoing, the trial court clearly met the strict compliance standard required for informing an accused of his or her constitutional rights.
{¶27} The third assigned error lacks merit.
{¶28} Thomas next claims that the trial court failed to advise him that under
{¶29} Postrelease control is part of the “maximum penalty involved,” so the court is required to advise the defendant of postrelease control sanctions. State v. Perry, 8th Dist. Cuyahoga No. 82085, 2003-Ohio-6344, ¶ 11. This is a nonconstitutional right that is reviewed for substantial compliance. State v. Studgions, 8th Dist. Cuyahoga No. 103612, 2016-Ohio-4701, ¶ 18.
{¶30} Sentences for first-degree felony sex offenses carry mandatory five-years postrelease control sanctions.
{¶31} To substantially comply with
“[T]he General Assembly apparently decided it would be cumbersome to require the courts to advise an offender of every possible option that might occur in the event of a violation of postrelease control.” State v. Zganjer, Cuyahoga App. No. 94724, 2011 Ohio 606, ¶ 3. “Instead of forcing the sentencing court to delve into the myriad of possibilities that could arise in the event of a future violation of postrelease control, the statute only requires the court to advise an offender of the maximum sanction that can be imposed in the event of a violation of postrelease control.” Id.
Id. at ¶ 10. Accord State v. Camp, 2d Dist. Clark No. 2017-CA-73, 2018-Ohio-2964.
{¶32} In this matter, the trial court informed Thomas that his sentence would include mandatory five-year postrelease control. The court also stated as follows:
THE COURT: Now, when you get out of prison, Mr. Thomas, you will be required to serve five years of post-release control. * * * [F]ive years Mr. Thomas — you need to report to that officer on a regular basis. If you fail to do so, then the parole officer may have you charged with a new crime called escape. During the period of PRC, you must follow whatever restrictions the parole officer places on your conduct; not only restrictions, but requirements and obligations as well. If during that period of PRC you fail to abide by the conditions placed upon your conduct by the parole officer, then he or she may return you to prison, without bringing you to court, for up to one-half of your original sentence, depending on how many violations you commit and what they are. Finally, I want you to know that if you‘re on post-release control and you then commit a new felony, when you are sentenced for the new felony you can get an extra prison term equal to
the greater of one year or the number of years you then have left on post-release control.
{¶33} From the foregoing, we conclude that the trial court substantially complied with its duty of informing Thomas of postrelease control. Id.
{¶34} The fourth assigned error lacks merit.
{¶35} With respect to Thomas‘s claim that the court failed to advise him that he would have to pay the “costs of confinement,” we note that “costs of confinement” are included within
(ii) All or part of the costs of confinement under a sanction imposed pursuant to section 2929.14, 2929.142, or 2929.16 of the Revised Code, provided that the amount of reimbursement ordered under this division shall not exceed the total amount of reimbursement the offender is able to pay as determined at a hearing and shall not exceed the actual cost of the confinement[.]
{¶36} In State v. Stowes, 8th Dist. Cuyahoga No. 98774, 2013-Ohio-2996, the defendant complained that the trial court failed to inform him prior to his guilty plea that he “could be ordered to reimburse the state for the cost of confinement.” This court held that “court costs are not part of the penalty, and they are, therefore, not constitutional rights.” Id. at ¶ 12. This court additionally held that the trial court substantially complied
{¶37} In this matter, the court imposed “costs of prosecution” under
THE COURT: [I]f you plead guilty, you will have to pay court costs that I estimate to be around four or $500, and that‘s only a guess. It could be a little more or a little less.
{¶38} We conclude that the trial court substantially complied with its duties under
{¶39} The fifth assigned error lacks merit.
Juvenile Detention Center Credit Toward Sentence
{¶40} In his sixth assigned error, Thomas argues that the trial court failed to give him credit for time served in the juvenile detention center in connection with this matter.
{¶41}
{¶42} In this matter, the record indicates that “Thomas was first arrested [in 1994 in connection with this matter] while he was still 17.” However, the trial court did not order any jail-time credit for any 1994 confinement, and instead ordered:
Defendant to receive jail time credit for 138 day(s), to date. (Jail credit dates: March 7 through 21, 2014; August 8 through 18, 2016; and August 30 through December 19, 2016.)
{¶44} We find plain error herein. Thomas was first arrested in 1994 “while he was still 17,” but the sentencing order gives Thomas credit only for incarceration dates from 2014 and 2016. Accordingly, the sixth assigned error is well taken.2
{¶45} Thomas‘s conviction is affirmed, but we remand the case to the trial court to grant Thomas credit, pursuant to
{¶46} Judgment is affirmed and remanded for further proceedings.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
PATRICIA ANN BLACKMON, JUDGE
TIM McCORMACK, P.J., and MELODY J. STEWART, J., CONCUR