State v. WrightState v. Wright
Andrew R. Bucher for appellant.
* * * * *
SINGER, J.
{¶ 1} Appellant appeals her conviction for complicity to robbery following a guilty plea in the Sandusky County Court of Common Pleas. For the reasons that follow, we affirm.
{¶ 3} On November 19, 2008, appellant was named in a three count indictment, charging two counts of complicity to aggravated robbery, first degree felonies, and one count of comрlicity to robbery, a second degree felony. All counts were accompanied with a firearm specification. On arraignment, appellant pled not guilty to all charges.
{¶ 4} Appellant was scheduled to appear before the court for a plea change on March 31, 2009. When she did not appear, ostensibly because of a medical emergency, the court revoked her bond. The court did not expressly rule on her motion to reinstate bond.
{¶ 5} On April 22, 2009, appellant executed a waiver of further indictment and agreed to be tried on a bill of information. The original indictment was dismissed. Appellant entered a plea of guilty to an information charging complicity to robbery, a third degree felony, in violation of “[R.C.]2911.01(A)(3) and 2923.03.”
{¶ 6} Following a plea colloquy, the trial court accepted appellant‘s plea. After a presentence investigation, the court sentenced appellant to a four year term of incarceration. Appellant now appeals this сonviction, setting forth the following four assignments of error:
{¶ 7} “I. The trial court erred and was not in compliance with Crim R. 11 when it failed to notify defendant-appellant of a mandatory term of post release control at plea
{¶ 8} “II[.] The court abused its discretion when it sua sponte revoked defendant appellant‘s bond and subsequently declined a hearing on the same. The result of this abuse was an involuntary plea[.]
{¶ 9} “III[.] Defendant suffered from ineffective assistance of counsel both generally and to render her plea involuntary.
{¶ 10} “IV[.] Defendants [sic] waiver of indictment and agreement to proceed via information was invalid as the information failed to charge a crime under the R.C.”
I. Plea Colloquy
{¶ 11} During appellant‘s plea colloquy, both orally and in the written plea agreement, the court advised appellant that she could be sentenced to imprisonment and, if a prison term is imposed, “* * * you may be subjected to a period of post-release control for up to three years upon your release from prison * * *.” It is undisputed that complicity to robbery is a third degree felony which, coupled with caused or threatened physical harm to a person, carries a mandatory three year term of postrelease control. See
{¶ 12} Appellant argues that, pursuant to the syllabus of State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, at paragraphs one and two of the syllabus, a trial court‘s failure to inform a defendant that her sentence will include a mandatory period of postrelease control constitutes a violation of
{¶ 13} The state maintains that strict compliance with
{¶ 14} A guilty plea is a complete confession of the matter charged.
{¶ 15}
{¶ 17} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. The test is whether the plea would have otherwise been made.” (Citations omitted.) State v. Nero (1990), 56 Ohio St.3d 106, 108.
{¶ 18} Appellant relies on State v. Sarkozy, supra, for the proposition that, when a court fails to advise a defendant of mandatory postrelease control during the plea colloquy, this constitutes a failure to cоmply with
{¶ 19} Michael Sarkozy was named in a ten count indictment charging him with attempted murder and assorted burglaries, robberies and assaults. He initially pled not
{¶ 20} At Sarkozy‘s plea hearing, the court informed him of the prison terms for the offenses to which he was pleading guilty. The court did not inform Sarkozy of mandatory postrelease control, its length or the consequences for violating postrelease control. The court accepted Sarkozy‘s plea, denied а subsequent motion to withdraw the plea and sentenced him to a 27 year term of imprisonment with a mandatory five year term of postrelease control.
{¶ 21} Sarkozy appealed, arguing that his plea was invalid because he had not been advised that postrelease control would be part of his sentence. The appеals court affirmed. On further review, the Supreme Court of Ohio reversed. In syllabus, the court held:
{¶ 22} “1. If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion tо withdraw the plea or upon direct appeal.
{¶ 23} “2. If the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with
{¶ 25} The Sarkozy syllabus must be construed in the light of the court‘s full opinion. State v. Garrett, 9th Dist. No. 24377, 2009-Ohio-2559, ¶ 18, citing S.Ct. R. Rep. Op. 1(B)(1). The Sarkozy court, at ¶ 22, states that it did not apply the substantial compliance analysis because “there was no compliance with
{¶ 26} The Sarkozy court expressly distinguished the complete omission of any mention of postrelease control from colloquies such as those examined in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082. There defendants were advised that mandatory postrelease control was “optional,” id. at ¶ 3, that “the defendant will/may serve a period of post-release control,” id. at ¶ 5, “that the defendant is subject to post release control which is (mandatory/optional),” id. at ¶ 11, “is optional,” id. at ¶ 13, and,
{¶ 27} According to the Sarkozy court, “In Watkins, however, the trial judge did mention postrelease control, whereas here the trial judge made no mention of postrelease control during the plea colloquy. In cases such as Watkins, some compliance prompts a ‘substantial compliance’ analysis and the corresponding ‘prejudice’ analysis.” Sarkozy at ¶ 23.
{¶ 28} With this distinction, the court leaves intact its prior holding that, when a court misinforms a defendant that a period of postrelease control is discrеtionary rather than mandatory, this is “* * * sufficient to afford notice to a reasonable person that the courts were authorizing postrelease control as part of each petitioner‘s sentence.” Watkins at ¶ 51. Although Watkins was a petition for habeas corpus, the court also applied this reasoning to find substantial compliance with
{¶ 29} The trial court‘s imperfect advisement to appellant that she was subject to a discretionary period of postrelease control afforded her sufficient notice that such control might be imposed. Since appellant had notice that her sentence might include postrelease control, she cannot show prejudice as her plea was made with knowledge of that
{¶ 30} Accordingly, even though the court mistakenly told appellant that her postrelease control period was discretionary rather than mandatory, the plea colloquy substantially complied with
II. Bond Revocation
{¶ 31} In her second assignmеnt of error, appellant maintains that the trial court abused its discretion when it revoked her bond after she failed to appear at a scheduled hearing and that being incarcerated coerced her to enter a plea. Appellant insists that she notified the court while receiving treatment for pregnancy comрlications at a hospital and provided documentation to the court of her medical issues. In such circumstances, appellant insists, revocation of her bond was erroneous.
{¶ 32} When a “* * * court determines that the accused has violated conditions of bail, whether the conditions be express or implied, the accused is subjеct to the court‘s sanctioning authority for violation of the conditions, including revocation of bail.” In re Mason (1996), 116 Ohio App.3d 451, 453. The decision of the court in this regard is reviewed on an abuse of discretion standard. State v. Clinkscale, 177 Ohio App.3d 294,
{¶ 33} In this matter, the court stated on the record that it believed appellant‘s absence at what was supposed to be a plea change hearing was a stalling tactic, intended to delay her trial. The court, therefore, refused to believe appellant‘s submissions of excuse. This is a factual determinatiоn to which we must grant great deference. State v. Antill (1964), 176 Ohio St. 61, 67. Given this determination of fact, we cannot say that the court‘s decision to revoke bond was arbitrary, unreasonable or unconscionable. Moreover, there is nothing in the record to suggest that the revocation of appellant‘s bond influenced her decision to enter a pleа. Accordingly, appellant‘s second assignment of error is not well-taken.
III. Ineffective Assistance of Counsel
{¶ 34} In her third assignment of error, appellant asserts that she was denied effective assistance of counsel because her trial counsel failed to petition for a habeas corpus or seek other remedy when her bond was revoked.
{¶ 35} “A convicted dеfendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction * * * has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
{¶ 36} In this matter, given our decision with respect to appellant‘s seсond assignment of error, we cannot say that the inaction appellant asserts constituted deficient representation would have produced any result. As a result, appellant has failed to meet the first prong of the Strickland test. Accordingly, appellant‘s third assignment of error is not well-taken.
IV. Failure to State an Offense
{¶ 37} In her remaining assignment of error, appellant insists that the bill of information to which she pled contained patent defects to the extent that she could not have possibly have been properly advised of the nature of the charge against her as required. Specifically, the bill of information states that appellant committed “Complicity to Commit Robbery” in violation of
{¶ 38} The state concedes that the statutory reference in the bill of information was in error, but suggests that, in all other respects, the information was correct as was the
{¶ 39} In all respects, the bill of information charges and refers to the offense of complicity to commit robbery, a third degree felоny. It would appear that, in drafting the information, the state substituted
{¶ 40}
{¶ 41} As a result, appellant‘s fourth assignment of error, to the extent that she seeks a declaration that the bill of information under which she was tried is invalid, is not well-taken. Nevertheless, this matter must be remanded to the trial court for a nunc pro tunc entry correcting the erroneous statute reference.
{¶ 42} On consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed. This matter is remanded to said court to correct the erroneous statute references in the bill of information and final judgment. It is ordered that appellant pay court costs of this appeal pursuant to
JUDGMENT AFFIRMED.
S-09-023
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J. _______________________________
Thomas J. Osowik, P.J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.