State v. YoungState v. Young
Judgment: Affirmed in part, reversed in part, and remanded.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).
J. Dean Carro, Appellate Review Office, University of Akron School of Law, Akron, OH 44325-2901 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Devon L. Young, appeals from the April 6, 2009 judgment of the Trumbull County Court of Common Pleas, entered after Mr. Young signed a written plea agreement disposing of charges for felonious assault and having weapons while under disability.
{¶2} Mr. Young’s guilty plea was made knowingly, intelligently, and voluntarily, specifically with respect to waiving his constitutional right to a jury trial. The record
{¶3} Substantive Facts and Procedural History
{¶4} Mr. Young was indicted by the Trumbull County Grand Jury on two counts of felonious assault, felonies of the second degree, each with a firearm specification, and one count of having weapons while under disability, a felony of the third degree. Repeat violent offender specifications were subsequently added to the felonious assault counts, based on a prior conviction in Montgomery County of felonious assault, a felony of the second degree. He pleaded not guilty at his arraignment.
{¶5} Mr. Young later appeared with counsel at a combined change of plea and sentencing hearing. He withdrew his former not guilty plea and entered an oral and written plea of guilty to all charges. Before accepting the plea, the trial court informed Mr. Young at the hearing that he was subject to a mandatory period of postrelease control of up to three years. The signed plea agreement also stated he would be subject to mandatory postrelease control once released from prison of up to a maximum of three years.
{¶6} During the course of sentencing, the trial court referenced the Notice for Prison Imposition, which provides that after Mr. Young is released from prison, he will have a period of postrelease control for three years. Mr. Young and his counsel both
{¶7} Mr. Young received a total term of imprisonment of nine years: six years for each count of felonious assault, to run concurrently; three years on each firearm specification, which were merged; and one year on the count of having weapons while under disability, to be served concurrently to the two counts of felonious assault. The trial court’s sentencing entry states that Mr. Young was further notified that “post release control is Mandatory in this case up to a maximum of 3 years.” (Italics added.)
{¶8} Mr. Young did not file a direct appeal from his convictions and sentence. However, he subsequently filed pro se motions for delayed appeal and for appointment of counsel, which we granted.
{¶9} Mr. Young’s appointed appellate counsel thereafter filed a motion to withdraw pursuant to Anders v. California (1967), 386 U.S. 738. In response, Mr. Young filed a pro se brief claiming that his counsel failed to address the issue regarding postrelease control. He referred this court to the Supreme Court of Ohio’s decision in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434.
{¶10} After an independent review of the record, we found Mr. Young’s claim involving postrelease control “arguable on its merit.” Therefore, this court held that he should be afforded the assistance of new counsel to argue his appeal. We appointed new counsel for Mr. Young, who filed an appellate brief on his behalf asserting the following assignments of error for our review:
{¶11} “[1.] The trial court erred in accepting Appellant Young’s plea of guilty when it failed to properly inform him of his Sixth Amendment right to a jury trial in a reasonably intelligible manner rendering the plea involuntary in violation of the Due Process Clause of the Fourteenth Amendment.
{¶12} “[2.] The trial court erred when it failed to comply with
{¶13} Strict Compliance with Crim.R. 11 (C)(2)(c)
{¶14} In his first assignment of error, Mr. Young argues that the trial court erred in accepting his guilty plea because it failed to properly inform him of his
{¶15} “A criminal defendant’s choice to enter a plea of guilty or no contest is a serious decision. The benefit to a defendant of agreeing to plead guilty is the elimination of the risk of receiving a longer sentence after trial. But, by agreeing to
{¶16} “To ensure that pleas conform to these high standards, the trial judge must engage the defendant in a colloquy before accepting his or her plea.” Id. at ¶26, citing State v. Ballard (1981), 66 Ohio St.2d 473, paragraph one of the syllabus;
{¶17}
{¶18} “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶19} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶20} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶21} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{¶22} The matters subject of
{¶23} “If a trial court fails to literally comply with
{¶24} “When a trial judge fails to explain the constitutional rights set forth in
{¶25} “The failure to comply literally with the provisions of subsection (c) does not automatically invalidate a guilty plea. Ballard, 66 Ohio St.2d at 479. Failure to use the exact language contained in
{¶26} At the combined plea and sentencing hearing, the trial court first inquired about Mr. Young’s educational background and whether he was under the influence of any drugs or alcohol to ensure that he understood the proceedings. Mr. Young replied that he has a tenth grade education, has no problem reading or writing the English language, and was not under the influence of drugs or alcohol.
{¶27} The trial judge recited the Ohio Revised Code sections for felonious assault and the attendant specifications before informing Mr. Young that “[t]he State of Ohio would have to prove the following elements by proof beyond a reasonable doubt to the unanimous satisfaction of a jury[.]” The trial judge went on to recite the Ohio
{¶28} The trial court then launched a point-by-point inquiry of whether Mr. Young understood his
{¶29} “THE COURT: Nobody has to plead to any charge. You have the right to go forward with a trial and have the State of Ohio prove its case by proof beyond a reasonable doubt. Do you understand that?
{¶30} “THE DEFENDANT: Yes, Your Honor.
{¶31} “THE COURT: At that trial, you have the right to have an attorney represent you and if you couldn’t afford one, one would be appointed at State’s expense. Do you understand that?
{¶32} “THE DEFENDANT: Yes, Your Honor.
{¶33} “THE COURT: Also, at that trial, you have the right to confront and cross examine any witnesses that testify against you. Do you understand that?
{¶34} “THE DEFENDANT: Yes, sir.
{¶35} “THE COURT: You also have the right to subpoena witnesses to testify on your own behalf. Do you understand that?
{¶36} “THE DEFENDANT: Yes, sir.
{¶37} “THE COURT: You have a
{¶38} “THE DEFENDANT: Yes, Your Honor.”
{¶39} While the trial judge did not specifically use the adjective “jury” each time when referencing “trial,” appellant was advised on two separate occasions that “[t]he State of Ohio would have to prove the following elements by proof beyond a reasonable doubt to the unanimous satisfaction of a jury[.]” The issue then becomes whether this is sufficient.
{¶40} While the trial court did not ask Mr. Young whether he understood that he had a right to a jury trial and by pleading guilty he was waiving that right (such word-by-word, rote colloquy would certainly be in literal compliance with
{¶41} This court stated in McKenna, supra, at ¶67:
{¶42} “‘[I]n determining whether a trial court has informed a criminal defendant of his Boykin rights,’ the Ohio Supreme Court has acknowledged that ‘matters of reality, and not mere ritual, should be controlling.’ Ballard, 66 Ohio St.2d at 480, quoting McCarthy v. United States (1969), 394 U.S. 459, 468 fn. 20, *** (citation omitted). *** [A
{¶43} Although after Veney it is clear that obtaining a signed written waiver is insufficient when the trial court completely omits an explanation of a constitutional right, it still may be argued that a reviewing court may also consider other factors in the record, such as written materials reviewed by counsel and a defendant when determining whether the oral explanation was “reasonably intelligible.”
{¶44} Since McKenna, one of our sister districts has questioned the continuing validity of the Ballard proposition that a trial court may look to other portions of the record for additional evidence of an adequate explanation of a defendant’s constitutional rights in light of the decision in Veney.
{¶45} The Fourth District recognized, and we agree, that “[t]he Supreme Court of Ohio has never explicitly overruled or limited this aspect of Ballard.” However, we observe that subsequent cases seem to have limited any “totality of the circumstances” inquiry only when determining if the trial court substantially complied with
{¶46} Here, the written guilty plea, signed by Mr. Young and his counsel, shows that he was advised of his constitutional rights and that he agreed to waive them. The written plea states the following:
{¶47} “The Court and my Attorney have advised me that by entering this Plea of Guilty I am waiving (giving up) the following Constitutional Rights:
{¶48} “My right to a jury trial or trial to the Court;
{¶49} “My right to confront and cross-examine the witnesses against me;
{¶50} “My right to have compulsory process for obtaining witnesses in my favor;
{¶51} “My right to require the State to prove my guilt beyond a reasonable doubt at a trial;
{¶52} “My right not to be compelled to testify against myself; and
{¶53} “My right to appeal upon conviction after a trial.
{¶54} “I specifically acknowledge that I understand all of the above, and I expressly waive all of those rights, including my right to a trial by jury, as to each and every count.”
{¶55} Thus, the written guilty plea, signed by Mr. Young and his counsel, clearly states that he was advised that by pleading guilty, he was “waiving (giving up)” certain constitutional rights, including his right to a jury trial.
{¶56} At the change of plea hearing, Mr. Young acknowledged that he reviewed the written guilty plea with his counsel; indicated that he understood it; had no questions; signed it freely and voluntarily without any threats or promises; and was satisfied with the services of his attorney.
{¶57} This additional evidence from the written plea agreement specifically reviewed by the trial court during the colloquy only reinforces our conclusion that Mr. Young’s plea was knowingly, intelligently and voluntarily made.
{¶58} Mr. Young’s first assignment of error is without merit.
{¶59} Postrelease Control
{¶60} In his second assignment of error, Mr. Young contends the trial court erred by failing to comply with
{¶61}
{¶62} “(3) *** [I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:
{¶63} “***
{¶64} “(c) Notify the offender that the offender will be supervised under section
{¶65} “***
{¶66} “(e) Notify the offender that *** the parole board may impose a prison term, as part of the sentence, of up to one-half of the stated prison term originally imposed upon the offender.”
{¶67} In addition,
{¶68} “(B) Each sentence to a prison term for a felony of the *** second degree *** shall include a requirement that the offender be subject to a period of post-release control imposed by the parole board after the offender’s release from imprisonment. *** [A] period of post-release control required by this division for an offender shall be one of the following periods:
{¶69} “***
{¶70} “(2) For a felony of the second degree *** three years[.]”
{¶71} Mr. Young pleaded guilty to and was sentenced on one count of having weapons while under disability, a felony of the third degree. In addition, Mr. Young pleaded guilty to and was sentenced on two counts of felonious assault, felonies of the
{¶72} The General Assembly enacted
{¶73} Mr. Young was sentenced on April 6, 2009, well after the enactment of
{¶74} ”
{¶75} “For such offenders,
{¶76} In Singleton, the Supreme Court of Ohio considered the effect of
{¶77} Following Singleton, the Supreme Court of Ohio decided State v. Fischer, Slip Opinion No. 2009-0897, 2010-Ohio-6238. We note that the appellant in Fischer was sentenced prior to the enactment of
{¶78} In the instant matter, the trial court failed to properly notify Mr. Young at his sentencing hearing and in its judgment entry that he was subject to a mandatory three-year period of postrelease control and that if he were to violate the provisions of postrelease control, the parole board could impose an additional prison term of up to one-half of his prison sentence.
{¶79} Instead, at the sentencing hearing, the trial court stated the following:
{¶80} “THE COURT: And in a case like this, you will be placed on post-release control for up to three years. Do you understand that?
{¶81} “THE DEFENDANT: I do.
{¶82} “THE COURT: While you are on post-release control, you have to abide by the Parole Board’s rules and regulations. Do you understand that?
{¶83} “THE DEFENDANT: Yes, sir.
{¶84} “THE COURT: And if you fail to abide by their rules and regulations, you will be placed on more restrictive post-release control. Do you understand that?
{¶85} “THE DEFENDANT: Yes, sir.
{¶86} “THE COURT: And if the violation is deemed significant enough, you can be sent back to the penitentiary. Do you understand that?
{¶87} “THE DEFENDANT: Yes, sir.” (Emphasis added.)
{¶88} At no point during the sentencing portion of the colloquy did the trial court state that postrelease control was mandatory and that the parole board could impose a prison term of up to one-half of the prison sentence for a violation of postrelease control pursuant to
{¶89} The trial court’s use of the phrase “up to” three years with respect to postrelease control, similar to the reference in Singleton regarding the possibility of postrelease control, connotes that the period is discretionary rather than mandatory.
{¶90} In addition, in its sentencing entry, the trial court stated the following:
{¶91} “The Court has further notified the Defendant that post release control is Mandatory in this case up to a maximum of 3 years, as well as the consequences for violating conditions of post release control imposed by the Parole Board under
{¶92} Although the trial court used the term “mandatory” in its sentencing entry, it again used the “up to” three years language regarding postrelease control. The language used at both the sentencing hearing and in the trial court’s judgment entry does not adequately indicate that a three-year term of postrelease control was mandatory. See State v. Hagens, 7th Dist. Nos. 09-MA-2 and 09-MA-3, 2009-Ohio-6526, at ¶12 (holding that an advisement of “up to” three years is not adequate as it does not sufficiently advise an offender of the mandatory nature or period of postrelease control.)
{¶93} This court recently reversed and remanded a matter where the trial court failed to properly impose postrelease control in State v. Gaut, 11th Dist. No. 2010-T-0059, 2011-Ohio-1300. In Gaut, the appellant was convicted of multiple counts of rape, for which he received multiple (concurrent) terms of life imprisonment, with parole eligibility after 15 years. Id. at ¶4. The appellant was sentenced in 2008, after the enactment of
{¶94} Although
{¶95} We note that the state, in its appellate brief, acknowledged the trial court made “some minor deviations from the statutory language during sentencing.” But the state indicated Mr. Young was aware from his signed Notice for Prison Imposition “that he was subject to a mandatory period of postrelease control for three years, and that if he violated the terms of his postrelease control he could be re-imprisoned for one half of the stated prison term.” However, we stress that regardless what that written form
{¶96} Mr. Young’s sentence of conviction must be corrected to include a mandatory postrelease control period of three years, not “up to” three years, and state that the parole board may impose a prison term of up to one-half of his prison sentence for any violation.
{¶97} Mr. Young’s second assignment of error is with merit.
{¶98} For the foregoing reasons, Mr. Young’s first assignment of error is without merit and his second assignment of error is well-taken. The judgment of the Trumbull County Court of Common Pleas is affirmed in part, reversed in part, and the matter is remanded for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, J., concurs,
TIMOTHY P. CANNON, P.J., concurs in part and dissents in part, with Concurring/Dissenting Opinion.
{¶99} I respectfully concur in part and dissent in part from the opinion of the majority.
{¶100} The majority determines that appellant’s judgment on sentence of conviction must be corrected and, thus, pursuant to
{¶101} The record reflects that although the trial court issued an incorrect sentencing entry, it properly notified appellant about post-release control during the sentencing hearing. On March 30, 2009, a joint plea and sentencing hearing was held with regard to the indictment in this case. The state and appellant, through counsel, reached an agreement on the plea and disposition. There are several pertinent documents that apply to this joint hearing. The first document is entitled “Finding on Guilty Plea to the Indictment.” This document fully and completely explains all issues with regard to post-release control, including the consequences of violating post-release control. It was signed by appellant on March 30, 2009, as part of the joint plea and sentencing hearing. During the hearing, the trial court directly inquired into whether appellant read the document, whether he understood the document, and whether he voluntarily signed the document. Appellant responded in the affirmative to all questions.
{¶102} The second document is a notice to appellant entitled “Notice (Prison Imposed).” This document, which was also signed by appellant as part of the hearing on March 30, 2009, fully and completely explained post-release control. The document stated that appellant “will have a period of post-release control for 3 years following your release from prison.” During the hearing, the trial court inquired into whether appellant read this document, whether he understood it, and whether he voluntarily signed the document. Appellant responded affirmatively to all questions. In addition, the trial court inquired into whether appellant’s counsel was satisfied that appellant knew and understood what was contained in the documents. Appellant’s attorney responded in the affirmative.
{¶103} Appellant was also advised at the hearing that he was going to serve a mandatory period of post-release control “up to a maximum of 3 years.” The majority notes that the phrase “up to” three years “connotes that the period is discretionary rather than mandatory.” The majority then cites this court’s recent decision in State v. Gaut, 11th Dist. No. 2010-T-0059, 2011-Ohio-1300, where the trial court notified the appellant, who was convicted of a felony of the first degree and a felony sex offense, that post-release control was mandatory “up to” a maximum of five years. Unlike the majority, I believe the distinction between Gaut and this case is a distinction with a difference. The language used by the trial court in Gaut, i.e., that the post-release control period was mandatory “up to” five years, is an incorrect statement of the law. Under the statutory scheme, the imposition of post-release control for a felony of the first degree cannot be reduced.
{¶104} In the instant matter, however, appellant was convicted of two felonies of the second degree and one felony of the third degree. Therefore, the language in the sentencing entry for appellant, i.e., that post-release control was “mandatory, up to three years,” is actually a correct statement of the law. This is because
{¶105} “If the authority recommends that the board or court reduce the duration of control for an offense described in division (B) or (C) of this section, the board or court shall review the releasee’s behavior and may reduce the duration of the period of control imposed by the court. In no case shall the board or court reduce the duration of the period of control imposed for an offense described in division (B)(1) of this section to a period less than the length of the stated prison term originally imposed ***”
{¶106} The first sentence above applies to appellant in this case in that the board may reduce the period of post-release control. The reference to (B)(1), prohibiting reduction, applies to Gaut. As a result, I would find the language used by the trial court to be an acceptable imposition of post-release control.
{¶107} When taken as a whole, I believe the trial court satisfied the requirement that appellant be given proper notification of post-release control and the consequences for violating it at his joint plea and sentencing hearing.
{¶108} The next issue is the language in the “Entry on Sentence” signed by the trial court. In the entry on sentence, the trial court reiterated its statement that “post release control is Mandatory, in this case up to a maximum of 3 years ***.”
{¶109} In addition to stating the term of post-release control, the trial court is obligated under
{¶110} As the trial court properly advised appellant about post-release control at the sentencing hearing yet failed to issue a correct sentencing entry, I would favor either a correction by this court, pursuant to