State v. WhiteState v. White
Robert Tobik
Chief Public Defender
BY: Robert M. Ingersoll
John Martin
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Debra Obed
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant Charles White appeals from the six-year prison sentence imposed after he pleaded guilty to committing robbery, a second-degree felony.
{¶ 2} White presents four assignments of error. He claims his sentence should be reversed because, at the sentencing hearing, the trial court failed to comply with all the requirements set forth in
{¶ 3} Upon a review of the record, this court finds that White‘s first claim has merit. This renders his other claims moot. Consequently, his sentence is reversed and vacated, and this case is remanded for resentencing.
{¶ 4} White originally was indicted with cо-defendant Marcus Gray on one count of aggravated robbery,
{¶ 6} “On the completion of your prison term, you shall be subject to an automatic three year period of Post Release Control, which, if you violate, will subject you to additional prison time.
{¶ 7} “Under the wоrst case scenario, that additional prison sanction could be as much as either a year or the remaining time left on your three year Post Release Control period, whichever is greater. Do you understand Post Release Control and the consequences оf violating it?”
{¶ 8} White responded, “Yes.” Subsequently, the trial court accepted White‘s plea, and referred him to the probation department for a presentence report.
{¶ 9} When White‘s case was called for sentencing, defense counsel noted for the court that the probation report contained some inaccuracies. Counsel informed the court that, after his arrest on the charge, White provided an oral statement to the detective in which he clarified his part in the incident.
{¶ 10} The trial court proceeded to read the account contained in the police report of the incident. In relevant part, the police were called to the
{¶ 11} The victim indicated two men, later identified as White and Gray, offered to sell him marijuana, the victim informed them he had $10, the men seemed agreeable, but then White “punched the victim in the head,” Gray “proceeded to punch him in the back,” аnd when the victim went to the ground, both men “proceeded to punch and kick the victim.” Both men “went through [the victim‘s] pockets * * * taking his property.”
{¶ 12} The police report went on to state that White was observed riding in the area of the incident on a bicycle, but when an officer stopped his patrol car to interview White, White “fled through the yards and with the assistance of chopper No. 1 and other officers * * * was found to be hiding at 3045 West 51st.” When the detective interviewed White about the crime, he provided information about it and “blamed it on” his co-defendant, who also had fled and had been apprehended.
{¶ 13} White‘s defense counsel acknowledged that the information in the police report was accurate. Counsel sought, however, to distinguish White‘s “role in the commission of the offense,” claiming that Gray was the “principal offender” in the encounter with the victim.
{¶ 15} The trial court, however, remained unimpressed. The court stated that it placed “a lot of weight on [White‘s] prior [criminal] record in drafting a sentence,” and pointed out that the police required a helicopter to locate White after he and Gray сommitted the crime.
{¶ 16} In pronouncing sentence, the court noted that, although White was only 24 years old, he already had a lengthy record of criminal convictions, including drug trafficking, drug possession, assault, and domestic violence. The court indicated that it believed a six-year prison sentence for White‘s conviction in this case was appropriate, and informed White that upon his release from prison, he would be “placed on three-years of post-release control, which if [he] violate[d] even by jaywalking, it will result in [him] doing more prison time.”
{¶ 17} Whitе now appeals from the sentence imposed with the following assignments of error:
{¶ 19} “II. Charles White has been deprived of his liberty without due рrocess of law by the sentences [sic] imposed on him as said sentences [sic] do not comport with Ohio‘s sentencing structure for the reason that the trial court did not consider Mr. White‘s mitigation properly and fully.
{¶ 20} “III. Charles White has been deprived of his liberty without due process of lаw by the sentences [sic] imposed on him as said sentences [sic] do not comport with Ohio‘s sentencing structure for the reason that Mr. White‘s sentence is not proportionate with that imposed on the principal offender Marcus Gray.
{¶ 21} “IV. Charles White has been deprived of his libеrty without due process of law by the sentences [sic] imposed on him as said sentences [sic] do not comport with Ohio‘s sentencing structure for the reason that the trial court considered a fact not listed in the statute as an aggravating factor.”
{¶ 23} “In applying [State v.] Foster [109 Ohio St.3d 1, 2006-Ohio-856] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court‘s compliance with all applicablе rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision shall be reviewed under an abuse-of-discretion standard.” (Emphasis added.)
{¶ 24} In his first assignment of error, White argues that the triаl court‘s failure during the sentencing hearing to inform him specifically of the consequences of violating postrelease control renders his sentence void. In making this argument, he relies upon State v. Craddock, Cuyahoga App. No. 85175, 2005-Ohio-28391 and State v. Donahue, Cuyahoga App. No. 89111, 2007-Ohio-6825.
{¶ 26} ”
{¶ 27} “‘Subject to division (B)(4) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
{¶ 28} “‘* * *
{¶ 29} “‘(b) Notify the offender that, as part of the sentence, the parole board mаy extend the stated prison term for certain violations of prison rules for up to one-half of the stated prison term;
{¶ 30} “‘(c) Notify the offender that the offender will be supervised under
{¶ 31} “‘(d) Notify the offender that thе offender may be supervised under
{¶ 32} “‘(e) Notify the offender that, if a period of supervision is imposed following the offender‘s release from prison, as described in division (B)(3)(c) or (d) of this section, and if the offender violates that supervision or a condition of postrelease control imposed under division (B) of
{¶ 33} “In State v. Brooks, 103 Ohio St. 3d 134, 2004-Ohio-4746, 814 N.E.2d 837, the Supreme Court construed the mandatory requirements of
{¶ 34} “The Court explained:
{¶ 36} “Similarly, in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, the Supreme Court held, ‘In cases in which a defendant is convicted of, or pleads guilty to, an offense for which postrelease control is required but not properly included in the sentence, the sentence is void, and the state is entitled to a new sentencing hearing to have postrelease control imposed on the defendant unless the defendant has completed his sentence.’ Id., syllabus.
{¶ 37} “In light of these decisions, the trial court must properly inform the defendant of postrelease control at thе sentencing hearing, even if it has already done so during the plea proceedings. See State v. Bailey, Clark App. No. 2007 CA 121, 2008-Ohio-5357. In Bailey, the court held that even where
{¶ 38} “In this matter, the record reflects that the trial court informed the defendant of postrelease control during the plea proceedings. The rеcord reflects that before accepting the guilty plea, the trial court informed defendant that he would be sentenced to five years of postrelease control, that it was like parole, and that if he violated the terms of postrelease control, defendant could be sent back to prison for one-half of the sentence time.
{¶ 39} “The record further reflects, however, that during the sentencing hearing, the trial court simply stated that defendant would be subject to postrelease control, which was reducible at the discretion of the parole board. This notification has been deemed to insufficiently apprise the defendant of the penalties for violating postrelease control. See State v. Cook, Cuyahoga App. No. 90487, 2008-Ohio-4246.
{¶ 40} “In light of the foregoing, the defendant‘s sentence is hereby vacated and the matter is remanded for resentencing.”
{¶ 41} This case presents the same facts. The trial court merely told White that if he violated postrelease control, he would be returned to prison.
{¶ 42} This renders White‘s remaining assignments of error moot.
{¶ 43} White‘s sentence is reversed and vacated, and this case is remanded for resentencing.
It is ordered that appellant recover of appellee costs herein taxed.
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. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
MELODY J. STEWART, J., CONCUR