STATE OF OHIO v. GREGORY L. WALZ
C.A. CASE NO. 23783
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
October 5, 2012
2012-Ohio-4627
T.C. NO. 09CR1959
Plaintiff-Appellee
v.
Defendant-Appellant
(Criminal appeal from Common Pleas Court)
OPINION
Rendered on the 5th day of October, 2012.
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} On June 25, 2009, defendant-appellant Gregory L. Walz was indicted on two
{¶ 2} On December 3, 2009, a hearing was held on Walz‘s motion to vacate. The matter was continued for further hearing on December 9, 2009 on the issue of whether Walz‘s belief in his innocence was relevant to his request to withdraw his guilty plea. On December 11, 2009, the trial court overruled Walz‘s motion to vacate. The trial court subsequently sentenced Walz to seven years imprisonment for one of the felonious assault convictions and 12 months for the vandalism conviction, to be served concurrently, as well as 12 months for the failure to comply conviction, to be served consecutively with the first two convictions. The two felonious assault convictions were merged for purposes of sentencing.
{¶ 3} Walz filed a timely notice of appeal with this Court on December 14, 2009. On appeal, Walz argued that his guilty plea was not made in a knowing and intelligent fashion because he received ineffective assistance of counsel at the trial level. Walz also argued that the trial court erred in denying his motion to vacate. On March 18, 2011, we
{¶ 4} On June 16, 2011, Walz filed an application for the reopening of his appeal pursuant to
{¶ 5} Walz‘s first assignment of error is as follows:
{¶ 6} “GREGORY L. WALZ WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS BECAUSE HIS GUILTY PLEAS WERE NOT ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.”
{¶ 7} In his first assignment, Walz argues that the trial court erred to his prejudice when it failed to inform him at the plea hearing that he faced a mandatory three year to lifetime driver‘s license suspension on Counts II and IV, felonious assault (deadly weapon)
{¶ 8}
{¶ 9} In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 10} A trial court must strictly comply with
{¶ 11} A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163, 1167 (1977);
{¶ 12} Upon review of the colloquy between the trial court and Walz, we conclude that the court did not substantially comply with the requirements set forth in
{¶ 13} We note that the plea form for Count II, felonious assault (deadly weapon), did not mention that Walz was subject to a mandatory license suspension. Thus, in regards to Count II, he was neither apprised orally nor pursuant to the plea form that he faced a mandatory license suspension lasting a minimum of three years to a lifetime maximum. In State v. Greene, 2d Dist. Greene No. 2005 CA 26, 2006-Ohio-480, we found that the defendant was prejudiced by the trial court‘s failure to inform him orally or in writing that he would receive a mandatory license suspension “of at least three years and as long as his natural life.” Id. at ¶ 12. “It is reasonable to conclude that Greene would not have pled
{¶ 14} In the instant case, the trial court failed to inform Walz of the mandatory driver‘s license suspension orally at the plea hearing or in the plea form with respect to Count II. The trial court‘s failure in this regard prejudiced Walz to the extent that his plea was rendered in less than a knowing, intelligent, and voluntary manner, thus requiring that his conviction in Count II be reversed.
{¶ 15} The plea form for Count IV, failure to comply, did, however, state that Walz was subject to a mandatory suspension of his driver‘s license ranging from a minimum of three years to a maximum lifetime suspension. Generally, we have held that “a trial court speaks only through its journal entries.” State v. Hatfield, 2d Dist. Champaign No. 2006 CA 16, 2006-Ohio-7090. Therefore, because Walz was informed in the plea form which he signed for Count IV that he was facing a mandatory license suspension, it follows that he was ostensibly on notice of the impending suspension and he could not later claim that he was unaware for the purposes of a motion to vacate his plea for that charge.
{¶ 16} During the following exchange at the plea hearing, the trial court orally informed Walz of all of the penalties he would be subject to as a result of his guilty plea to Count IV:
The Court: All right. Finally, as to failure to comply, that is a felony of the third degree, which means that the potential prison term can be anywhere from one year
to five years. Do you understand that? Walz: Yes, sir.
Q: And also that as that – as it relates to any prison term to be imposed for that felony [sic] to comply, it must be – that prison term must be served in a consecutive fashion to any other prison term. Do you understand that?
A: Yes, sir.
Q: And by consecutive, that means you would serve the first prison term and then this prison term would be a prison term that you would serve after the initial prison term has been served for the other charges. Do you understand that?
A: Yes, sir.
Q: As opposed to what‘s called a concurrent sentence, where you would serve the sentences together. Do you understand that?
A: Yes, sir.
Q: All right. As to the failure to comply, there‘s also a potential fine, but the fine cannot exceed $10,000.00. Do you understand that, sir?
A: Yes, sir.
Q: All right. Now, as I‘ve said, those are all of the potential penalties. ***
{¶ 18} Lastly, we note that the Ohio Supreme Court has recently issued an opinion which found that a mandatory driver‘s license suspension is a statutorily mandated term. State v. Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, at ¶ 15. The Supreme Court held that a trial court‘s failure to include this term in a criminal sentence renders the sentence void in part. Id. Further, a mandatory driver‘s license suspension constitutes a criminal sanction, requiring re-sentencing of the offender which is limited to
{¶ 19} Walz‘s first assignment of error is sustained. Walz‘s convictions for Counts II and IV only are hereby reversed. These two counts are remanded for further proceedings.
{¶ 20} Because they are interrelated, Walz‘s second and third assignments of error will be discussed together as follows:
{¶ 21} “THE TRIAL COURT ERRED WHEN IT DENIED IPP AND SHOCK INCARCERATION IN ITS SENTENCING ENTRY.”
{¶ 22} “THE TRIAL COURT ERRED WHEN IT DISAPPROVED OF WALZ‘S TRANSFER TO TRANSITIONAL CONTROL IN ITS SENTENCING ENTRY.”
{¶ 23} In his second assignment, Walz argues that the trial court erred when it disapproved of his placement in a shock incarceration program and intensive prison program in the judgment entry without first making specific findings required by
{¶ 24}
The sentencing court, pursuant to division (K) of section
2929.14 of the Revised Code, may recommend placement of the offender in a program of shock incarceration under section5120.031 of the Revised Code or an intensive program prison under section5120.032 of the Revised Code, disapprove placement of the offender in a program or prison of that nature, or make no recommendation. If the court recommends or disapproves placement, it shall make a finding that gives its reasons for its recommendation or disapproval.
{¶ 25} In State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283, 944 N.E.2d 258, (2d Dist.), we held that a trial court errs when it disapproves of shock incarceration or intensive program prison without making certain findings required by
{¶ 26} However, with respect to the trial court‘s error in having disapproved of shock incarceration and intensive program prison in this case, this error is necessarily harmless, because Walz, as a first-degree felon, is not eligible for either program.
{¶ 27} Lastly, we note that the trial court erred in prematurely disapproving Walz
{¶ 28} Walz‘s second assignment is overruled as harmless error. Walz‘s third assignment is sustained.
{¶ 29} Walz‘s first and third assignments of error having been sustained, this matter is remanded to the trial court for proceedings consistent with this opinion.
GRADY, P.J., concurs.
HALL, J., concurring:
{¶ 30} I agree that the trial court‘s denial of the defendant‘s participation in either Intensive Program Prison or Shock Incarceration is harmless error because the defendant, serving a mandatory sentence for a first-degree felony, is not eligible for either program. Nevertheless, I previously have questioned whether the statutory requirement that the trial court make a “finding” of the reasons for denial of these programs is constitutional in light of cases holding other aspects of judicial fact finding are unconstitutional. See State v. Allender, 2d Dist. Montgomery No. 24864, 2012 -Ohio- 2963, ¶30 n. 2 (Hall, J., dissenting). I also agree we previously have held that it is premature to deny transitional control at sentencing. Howard, supra. Accordingly, this case should be reversed for the trial court to correct its judgment entry of conviction with regard to both of those matters.
{¶ 31} The failure to inform the defendant of a mandatory driver‘s license
{¶ 32} To establish ineffective assistance of appellate counsel, the appellant would have the burden of establishing that his appellate counsel‘s representation fell below an objectively reasonable standard of representation by failing to raise the issue he now presents and that, as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). There is a “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Here the question is whether it was sound professional strategy for appellate counsel not to raise the fact that missing from the defendant‘s sentence was any driver‘s license suspension whatsoever. Normally, I would agree that it is a reasonable strategy to “let a sleeping dog lie.” With the continuing passage of time, the likelihood that Mr. Walz ever would have suffered a driver‘s license suspension waned.1 But in the unique circumstances of this original appeal, Walz‘s only two assignments of error sought to vacate his plea on the basis that it was not voluntarily made. I perceive no better way appellate counsel could have achieved that same goal than to raise the lack of advice about the driver‘s license suspensions, which, in turn, would undoubtedly result in the plea being vacated and the case being remanded for further proceedings. Thus, in this case, appellate counsel‘s failure to raise the lack of driver‘s license suspensions constitutes ineffective assistance, and the defendant has been prejudiced by not having his plea vacated. For these reasons, I agree that Walz‘s convictions in Count II and IV should be reversed and remanded.
Johnna M. Shia
Robert Alan Brenner
Hon. Michael L. Tucker