583 N.E.2d 1106 | Ohio Ct. App. | 1990
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *245 Defendant Howard L. Walton appeals from a sentence imposed following plea proceedings. For the reasons set forth below, the sentence is reversed and the matter is remanded to the trial court for further proceedings.
On March 29, 1988, the plea was presented to the trial court, and the following exchange took place:
"THE COURT: All right. Howard Walton, on Case No. CR 220615, how do you plead to the second count, having a weapon while under disability with a gun specification? Are you guilty of that?
"THE DEFENDANT: Yes, sir. *246
"THE COURT: Are you guilty?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right then."
Thus, the trial court made no reference to, and defendant entered no plea to the violence specification contained within count two. The court's journal entry for the plea likewise reflected this omission, and also failed to mention the gun specification as it provided:
"Thereupon, said defendant retracts his/her former plea of not guilty heretofore entered, and for plea to said indictment says he/she is guilty of having weapon under disability, R.C. 2023.13 [sic,
At the subsequent sentencing hearing, held on May 11, 1988, the court stated that it was sentencing defendant to "three years * * *, plus one-and-a-half years on the CCW," indicating that sentence was being imposed for the previously nolled charges contained in count one. The journal entry for the sentencing mirrored the plea proceedings, however, as it provided:
"The defendant herein having, on a former day of court entered plea of guilty to count two, having weapon under disability, with gun specification, R.C.
"It is therefore, ordered and adjudged by the court that said defendant Howard L. Walton, is sentenced to the Correctional Reception Center, Orient, Ohio, for term of one and one-half (1 + 1/2) years, plus three (3) years actual time for gun specification. All time to run consecutive. Pay court costs."
Thus, both the journal entry pertaining to the plea and the journal entry pertaining to the sentencing demonstrate that no disposition was made of the violence specification contained within count two.
On October 7, 1988, defendant moved the court to resentence him, alleging that the sentence imposed was outside the mandates of R.C.
"To correct entry of May 11, 1988, defendant Howard L. Walton, sentenced to 1 1/2 to 5 years at Correctional Reception Center plus 3 years actual time for gun specification, time to run consecutive."
Defendant now appeals, assigning two errors.
This claim is meritorious, as R.C.
Crim.R. 43(A) provides in pertinent part as follows:
"The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence. * * *"
This provision applies when one sentence is vacated, and a new sentence is imposed, see Columbus v. Rowland (1981),
As the trial court modified defendant's sentence outside his presence pursuant to the "corrected" journal entry, it violated Crim.R. 43(A). Accordingly, we reverse and remand the matter for resentencing in defendant's presence.
We conclude that the sentence first imposed was invalid and therefore modifiable without subjecting defendant to double jeopardy, because it imposed incarceration for a gun specification in addition to a definite term of imprisonment contrary to R.C.
Accordingly, the sentence first imposed could be modified without violating the prohibition against double jeopardy.
At the plea proceedings, defendant pleaded guilty to a violation of R.C.
"(A) Whoever is convicted of or pleads guilty to a felony other than aggravated murder or murder, except as provided indivision (D) or (E) of this section shall be imprisoned for an indefinite term * * *.
"* * *
"(D) Whoever is convicted of or pleads guilty to a felony of the third or fourth degree and did not, during the commission of that offense, cause physical harm to any person or make an actual threat of physical harm to any person with a deadly weapon, as defined in section
Thus, in accordance with this statute, an indefinite term of imprisonment is an improper sentence for a fourth degree felony unless it is established that defendant caused physical harm to another, threatened physical harm with a deadly weapon, or was previously convicted of an offense of violence. See State v.Turner (1987),
In the instant case, the record suggests that defendant had been convicted of prior offenses, and was charged with a violence specification, yet he was not asked to plead and did not plead to the violence specification. This conflict presents a dilemma which cannot be resolved at the appellate level, but rather must be resolved by the trial court during the resentencing proceedings.
If the violence specification is not established, the trial court must impose a definite term of imprisonment for count two, and cannot impose three years' actual time for the gun specification. R.C.
An appeal will lie from any subsequent errors.
An indefinite term of imprisonment resulting from a violence specification does not constitute a separate, additional sentence imposed for the earlier offense of violence but merely enhances the penalty for a subsequent offense. That is, the violence specification does not come into play until and unless the defendant is convicted of a subsequent felony as stated in R.C.
For the foregoing reasons, the judgment is reversed and the cause is remanded for further proceedings.
Judgment reversedand cause remanded. *250
NAHRA, J., concurs.
PATTON, C.J., concurs in part and dissents in part.
Dissenting Opinion
I agree that defendant should have been sentenced in accordance with Crim.R. 43(A); therefore, I concur with Part III-A of the court's opinion. I must respectfully dissent from that part of the court's opinion in which it concludes that defendant must somehow plead to the violence specification contained in the indictment. In my view, the violence specification is not a substantive charge to which a defendant must plead.
The majority notes that the trial court failed to ask defendant to plead to the violence specification. There is no reason to ask a defendant to plead to a violence specification because it is not a part of the substantive charge contained in the indictment. In State v. Allen (1987),
"Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact." Cf. State v. Price
(1985),
In this case, the defendant had no reason to plead to the violence specification. While the state had the obligation to prove the existence of the prior offense giving rise to the specification, it did not form a part of the substantive charge contained in the indictment. By entering a guilty plea, defendant admitted the facts contained in the indictment, including the facts forming the basis of the violence specification. See Crim.R. 11(B)(1). To hold otherwise essentially dictates that the state must prove the substantive elements of the prior offense despite the fact that a judgment of conviction had been entered. Allen recognizes that distinction by holding that the specification is not a substantive part of the charge.
Even if the defendant was required to enter a "plea" to the violence specification, I believe that the totality of the circumstances show that he was aware that he was admitting the facts contained in the indictment.
The transcript of proceedings shows that the assistant prosecutor stated on the record that the state was willing to dismiss the first count of the indictment in exchange for defendant's guilty plea to one count of having a weapon while under disability with violence and gun specifications. Moreover, *251
the assistant prosecutor specifically stated that the offense was a fourth degree felony that carried an indefinite term. Defense counsel then stated that he had explained to his client the effect of the guilty plea and that his client understood the effect of the plea. The trial court then asked defendant for his plea to "count two" of the indictment. Despite the fact that the court did not specifically mention the violence specification, it is apparent that defendant was pleading to the indictment. This conclusion is supported by the fact that defendant was well aware that his sentence for the charge of having a weapon while under disability was to be indefinite. The only way that the penalty to the underlying charge could be enhanced to an indefinite term was through the violence specification as set forth in R.C.
I believe that these facts belie defendant's contention that his guilty plea was involuntary since the trial court did not ask for a plea to the violence specification. Even were such a plea required, the totality of the circumstances shows that he was aware that his penalty would be enhanced through the specification contained in the indictment. Therefore, I would affirm that part of defendant's conviction.