State v. Abernathy

2018 Ohio 4414

• Court: Ohio Court of Appeals
• Decided: November 1, 2018
• Docket: 107123
• Status: Published

Opinion

[Cite as State v. Abernathy, 2018-Ohio-4414.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107123

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

EZEKIEL Z. ABERNATHY

DEFENDANT-APPELLANT

JUDGMENT: VACATED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617529-B

BEFORE: Keough, J., E.A. Gallagher, A.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: November 1, 2018 ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender By: David Martin King Assistant Public Defender 310 Lakeside Ave., Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Kevin E. Bringman Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

KATHLEEN ANN KEOUGH, J.:

{¶1} In 2017, defendant-appellant, Ezekiel Z. Abernathy, was named in a six-count

indictment charging him with two counts of failure to comply in violation of R.C. 2921.331(B),

two counts of robbery, one count of kidnapping, and one count of grand theft. He subsequently

entered into a plea agreement — pleading guilty to one count each of robbery and failure to

comply. During the plea agreement, the trial court advised Abernathy of the penalties associated

with robbery and failure to comply, but failed to advise him that if a prison term was imposed on

the failure to comply offense, R.C. 2921.331(B) required that the prison term be served

consecutive to any other prison sentence imposed. {¶2} At sentencing, the trial court initially imposed a concurrent sentence — 36 months

on the failure to comply offense and seven years on the robbery charge. The state subsequently

advised the court that R.C. 2921.331 mandates that the failure to comply sentence be served

consecutively to any other prison term. Accordingly, the trial court modified its sentence and

ordered Abernathy to serve one year for the failure to comply offense and six years for robbery,

with the sentences ordered to run consecutively, for a total prison term of seven years.

{¶3} Abernathy appeals his convictions, contending that he did not enter a knowing,

intelligent, and voluntary guilty plea because the trial court failed to advise him of the maximum

penalty he faced. The state concedes the error, and we agree.

{¶4} When consecutive sentences are mandatory, the consecutive sentences directly affect

the length of the sentence, thus becoming a crucial component of what constitutes the “maximum

penalty involved” under Crim.R. 11(C)(2)(a). State v. Norman, 8th Dist. Cuyahoga No. 91302,

2009-Ohio-4044, ¶ 7, citing State v. Ricks, 53 Ohio App.2d 244, 246-247, 372 N.E.2d 1369 (9th

Dist.1977). The failure to advise a defendant that a sentence must be served consecutively does

not amount to substantial compliance with Crim.R. 11(C)(2). See Norman.

{¶5} In this case, the trial court never informed Abernathy during the plea hearing that

any prison sentence imposed for a violation of R.C. 2921.331 must be served consecutively to

any other sentence. Accordingly, the trial court failed to substantially comply with Crim.R. 11,

thereby preventing Abernathy from entering a knowing, intelligent, and voluntary plea. See

State v. Anderson, 8th Dist. Cuyahoga No. 94598, 2010-Ohio-5487. The assignment of error is

sustained.

{¶6} Judgment vacated, and case remanded to the trial court for further proceedings.

It is ordered that appellant recover from 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, A.J., and FRANK D. CELEBREZZE, JR., J., CONCUR