STATE OF OHIO, Plаintiff-Appellee v. JOHN WELCH, Defendant-Appellant
Appellate Case No. 2016-CA-6
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
January 27, 2017
2017-Ohio-314
Trial Court Case No. 15-CR-411 (Criminal Appeal from Common Pleas Court)
Rendered on the 27th day of January, 2017.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post Office Box 1262, Dayton, Ohio 45402 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} John Welch appeals from his conviction and sentence on one count of fifth-degree-felony domestic violence and from the trial court‘s imposition of a separate
{¶ 2} Welch advances two assignments of error. First, he contends the trial court erred in failing to give him proper credit on his sentence for violating post-release control. Second, he claims his guilty plea to domestic violence is invalid because the trial court failed to tell him during a plea hearing that any prison sentence for the post-release сontrol violation was required to be imposed consecutively.
{¶ 3} We begin our analysis with the second assignment of error. The record reflects that Welch, who was on post-release control, pled guilty to domestic violence in exchange for dismissal of a felonious-assault charge. The written plea form included the following language: “I understand that if I am now on felony probation, parole, or under post-release control from prison, this plea may result in revocation proceedings and any new sentence will be imposed consecutively.” (Emphasis added) (Doc. # 37). At the plea hearing, the trial court asked Welch about the plea form, confirming that he had a chance to go over it with his attorney and that he understood “everything in it.” (Plea Tr. at 4). The trial court also told Welch that “a guilty plea in this case could result in some additional incarceration for violating your post-release control[.]” (Id. at 5). With regаrd to the new domestic violence charge, the trial court explained that Welch was subject to a mandatory prison sentence on it. It then advised him about post-release control for that new offense. Among other things, it told him: “If you commit a felony offense while on post-release control, you could return to prison for the amount of time you have remaining on post-release control or one year, whichever is greater, and that will be consecutive to the time you would get for the new felony offense.” (Id. at 6-7).
{¶ 4} After accepting Welch‘s plea, the trial court found him guilty. It later
{¶ 5} On appeal, Welch argues that his guilty plea was not entered knowingly, intelligently, and voluntarily because the trial court failed to inform him, at the plea hearing, that any prison sentence it imposed for violating post-release control was required to be consecutive to his domestic violence sentence. In that regard,
{¶ 6} In State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, this court addressed a similar issue. The defendant in Branham had been on post-release control when he engaged in gross sexual imposition (GSI). He pled guilty to the GSI charge. The plea form advised him that post-release control could be revoked and that any sentence for having violated post-release control “could be imposed consecutively” to the GSI sentence. Branham at ¶ 11. The trial court subsequently imposed consecutive sentences for the gross sexual imposition conviction and for the post-release control violation.
{¶ 7} On review, this court reasoned:
* * * [T]he trial court failed to inform Branham during the plea colloquy that, pursuant to the explicit language in
R.C. 2929.141(A)(1) , if it revoked his PRC, imposition of consecutive sentences for the violation was, in fact, mandatory upon imposition of a prison term for GSI.Significantly, although the plea form signed by Branham included a provision whiсh informed him of the effect that his PRC violation could have on sentencing, it did not contain any language putting him on notice that consecutive sentences were mandatory upon a prison sentence on the GSI. Rather, the general provision in the plea form merely states that the trial court “could” impose consecutive sentences in the event of a violation of felony probation, parole, community control sanсtion, or post-release control from prison. The use of the word “could” in this context is misleading. The trial court not only should have told Branham that it was not bound by the State‘s recommendation, but also if a new prison term was imposed and the court elected to revoke his PRC, the time must be served consecutively. The trial court did not have the discretion to use the word “could” as the language in the plea form suggests. Branham‘s sole assignment of errоr is sustained.
{¶ 8} In State v. Landgraf, 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448, this court applied and followed Branham. The defendant in Landgraf pled guilty to felony theft of a motor vehicle. At that time, he was on post-release control for an earlier conviction. The plea form advised him that post-release control could be revoked and that any new sentence for having violated post-release control “could be imposed consecutively.” Post-release control was not mentioned at the plea hearing. The trial court confirmed, however,
Landgraf raises these same issues in the context of the voluntariness of his plea, and we find Branham to be relevant to our resolution of that issue. In this case, the trial court did not inquire at the plea hearing whether Landgraf was on post-release control at the time of his offense, and the trial court did not address any of the consequences that Landgraf faced under
R.C. 2929.141 if Landgraf were to plead guilty to a new felony. In our view,Crim.R. 11 required the trial court to inform Landgraf that, if he pled guilty to theft of a motor vehicle (a new felony), the court could terminate his previously-imposed post-release control and, if a prison term were imposed for the theft of a motor vehicle charge, the trial court could also impose a prison term for the post-release control violation, which would be served consecutively to the prison term imposed on the new felony (theft of a motor vehicle). In addition, the trial court should have notified Landgraf of the maximum prison term he faced for violating the post-release control imposed by the Montgomery County court. The plea form was insufficient to notify Landgraf of the consequences of pleading guilty to a felony committed while under post-release control. The plea form stated that “this plea may result in revocation proceedings and any new sentence could be imposed consecutively. I knowany prison term stated will be served without good time credit.” (Emphasis added.) As we stated in Branham, this language is misleading in that it suggests that the trial court had the discretion whether to impose a consecutive sentence for the post-release control violation.
{¶ 9} Two members of the Landgraf panel concurred separately, solely on the basis of stare decisis, while expressing disagreement with Branham‘s analysis and outcome. Id. at ¶ 28-29 (Hall, J., concurring) and ¶ 30 (Welbaum, J., concurring).
{¶ 10} Having reviewed Branham and Landgraf, as well as the requirements of
lead opinion also stated that the trial court should have told the defendant the maximum amount of prison time he faced for violating post-release control. Landgraf at ¶ 23. Welch does not raise that particular argument here. Instead, he argues only that the trial court erred in failing to tell him he faced a mandatory consecutive prison term for violating post-release control. (Appellant‘s brief at 4-7).
Crim.R. 11(C)(2) requires the court to address the defendant personally and (a) determine that the defendant is making the plea voluntarily, with an understanding of the nature of the charges and the maximum penalty, and, if applicable, that the defendant is not eligible for
The Supreme Court of Ohio has urged trial courts to literally comply with
Furthermore, when non-constitutional rights are at issue, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a
{¶ 11} Here Welch‘s invocation of
{¶ 12} First, unlike Branham and Landgraf, the plea form in this case explicitly informed Welch that his plea “may result in revocation proceedings” and that “any new sentence will be imposed consecutively.” The primary reason for finding the pleas invalid in Branham and Landgraf was the fact that the plea forms in those cases said “any new sentence could be imposed consecutively.” The fact that thе plea form in the present case correctly advised Welch meaningfully distinguishes Branham and Landgraf.
{¶ 13} Second, the trial court orally confirmed at the plea hearing that Welch had reviewed the plea form with his attorney and that he understood everything in it. We recognize that the trial court did the same thing in Landgraf. See Landgraf at ¶ 6. In that case, however, the plea form only mentioned the possibility of a consecutive sentence. Here the plea form made clear that аny prison sentence for violating post-release control
{¶ 14} Third, the trial court did orally advise Welch at the plea hearing: “If you commit a felony offense while on post-release control, you could return to prison for the amount of time you have remaining on post-release control or one year, whichever is greater, and that will be cоnsecutive to the time you would get for the new felony offense.” (Emphasis added) (Plea Tr. at 6-7). The trial court admittedly made this statement in the context of explaining the consequences of prospectively violating post-release control for his new domestic violence offense. The trial court conveyed exactly the same information, however, that Welch contends was missing from his plea hearing. Because Welch obviоusly did commit a new felony offense (domestic violence) while on post-release control for an earlier offense, the trial court‘s statement of law about any prison sentence for a post-release control violation being consecutive further supports our conclusion that he subjectively understood the nature of the penalties he faced.
{¶ 15} For each of the foregoing reasons, we conclude that the trial court at least substantially complied with
{¶ 16} We turn now to the first assignment of error, which challenges the trial court‘s failure to “credit” Welch‘s sentence properly. This assignment of error concerns an administrative sanction the Adult Parole Authority (APA) imposed on Welch prior to the trial court‘s sentencing below. In his appellate brief, Welch asserts that he was subjected to an APA post-release control hearing based on his new domestic violence offense. He further asserts that the APA imposed a sanction of 90 days in prison and 90 days of home detention for his violation. According to Welch, “[t]his time was to begin at the conclusion of the hearing and was not reduced by the time he had spent incarcerated awaiting the hearing.” (Appellant‘s brief at 2).
{¶ 17} Welch raises two specific arguments on appeal. First, he contends the trial court erred in failing to reduce his 32-month sentence for violating post-release control by six months to аccount for the sentence imposed by the APA (i.e., 90 days for the APA-imposed prison term and 90 days for the home detention). Second, he claims the trial court erred in failing to give him jail-time credit for time he spent incarcerated while
{¶ 18} Upon review, we find Welch‘s first argument to be persuasive, but only in part. His presentence investigation (PSI) report indicates that the APA held a hearing аnd administratively sanctioned him after his act of domestic violence. It appears from the record that Welch assaulted his ex-girlfriend in the early morning hours of August 2, 2015. The PSI indicates that “on August 3rd, 2015, there was a probation violation and the defendant‘s penitentiary sentence was re-imposed and he was returned to OSP.” Although the date is one day off, this reference to a “probation violation” on August 3, 2015, seems to be a reference to Welch‘s аct of domestic violence, which constituted a post-release control violation. The PSI does not indicate when the administrative hearing occurred. Nor does it identify the length of the administrative sanction imposed. At the conclusion of Welch‘s sentencing hearing, however, the trial court accepted defense counsel‘s representation that Welch “was given ninety days of prison time as well as ninety days of GPS [home detention], and that was ordered on November 24, 2015.” (Sentencing Tr. at 7).
{¶ 19} Under
language of
{¶ 20} Finally, we are unpersuaded by Welch‘s argument that the trial court erred in failing to give him credit for time he spent in confinement awaiting his APA administrative hearing. The record suggests that the administrative hearing occurred on or about November 24, 2015. (Sentencing Tr. at 7). The trial сourt‘s sentencing entry gave Welch jail-time credit from August 3, 2015 (the day after his domestic violence offense) until November 27, 2015 (which appears to be when he was conveyed to prison to begin serving his APA-imposed prison sentence). (Doc. #39 at 2). The trial court also gave Welch jail-time credit from December 31, 2015 (when he was returned to the Clark County
{¶ 21} Based on the reasoning set forth above, Welch‘s first assignment of error is sustained in part and overruled in part. The assignment of error is sustained insofar as the trial court erred in failing to reduce its 32-month prison term for Welch‘s post-release control violation by three months to account for the APA‘s existing prison sanction. In all other respects, the first assignment of error is overruled. We note, however, that the Ohio Department of Rehabilitation and Correction‘s (ODRC) online records currently do not reflect the 90-day prison sentence administratively imposed on Welch by the APA. The ODRC‘s web site reflects the trial court‘s one-year sentence for domestic violence and its 32-month sentence for violating post-release control. See State v. Evans, 2d Dist. Montgomery No. 24928, 2012-Ohio-5099, ¶ 8-9 (taking judicial notice of the ODRC website). We are unable to determine how ODRC has calculated the administrative sanction in their computations. Given that the trial court‘s 32-month sentence must be reduced by three months pursuant to
{¶ 22} Pursuant to §3(B)(2), Article IV of the Ohio Constitution and App. R. 12(B), we hereby modify the trial court‘s judgment by reducing Welch‘s 32-month prison sentence for violating post-release control to 29 months in accordance with
FROELICH, J., and WELBAUM, J., concur.
Copies mailed to:
Megan Farley
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Douglas M. Rastatter
ODRC-Bureau of Sentence Computation