State v. Grove

2019 Ohio 1627

• Court: Ohio Court of Appeals
• Decided: April 29, 2019
• Docket: 2018AP100033
• Status: Published

Opinion

[Cite as State v. Grove, 2019-Ohio-1627.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P. J. : Hon. John W. Wise, J Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2018AP100033 PAUL GROVE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas County Court of Common Pleas, Case No. 2017CR090204

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: April 29, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMANDA MILLER DONOVAN HILL Assistant Prosecuting Attorney 116 Cleveland Avenue North 125 East High Avenue Canton, OH 44702 New Philadelphia, OH 44663 Gwin, P.J. Tuscarawas County, Case No. 2018 AP 100033 2

{¶1} Appellant Paul E. Grove, Jr. [“Grove”] appeals his conviction and sentence

after a negotiated guilty plea in the Tuscarawas County Court of Common Pleas.

Facts and Procedural History

{¶2} The Tuscarawas County Grand Jury indicted Grove on one count of

Aggravated Vehicular Homicide, in violation of R.C. 2903.06(A)(1)(a), two counts of

Aggravated Vehicular Assault, in violation of R.C. 2903.08(A)(1)(a), one count of

Operating a Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a

Combination of Them, in violation of R.C. 4511.19(A)(1)(d), one count of Operating a

Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them,

in violation of R.C. 4511.19(A)(1)(a), one count of Operating a Motor Vehicle or

Agricultural Tractor Without Being in Control of it, in violation of R.C. 4511.202(B), one

count of Violation of Lanes of Travel on Roadways, in violation of R.C. 4511.33 (A) and/or

(B), and one count of Violation of Speed Limits, in violation of R.C, 4511.21 (D)(1) The

matter proceeded to hearing on August 13, 2018 where Grove pled guilty to all counts.

{¶3} The trial court sentenced Grove as follows: Aggravated Vehicular Homicide:

Eight years. Aggravated Vehicular Assault: Sixty Months, consecutive with the sentence

imposed on Count One. Aggravated Vehicular Assault: Sixth Months, consecutive with

the sentence imposed on Counts One and Two Operating a Motor Vehicle Under the

Influence of Alcohol, a Drug of Abuse, or a Combination of Them: 180 days, concurrent

to the sentence imposed on Counts One, Two, and Three. The trial court's total sentence

imposed amounted to eighteen (18) years.

Assignment of Error Tuscarawas County, Case No. 2018 AP 100033 3

{¶4} Grove raises one assignment of error,

{¶5} “I. APPELLANT’S PLEA WAS NOT VOLUNTARY, INTELLIGENT AND

KNOWING.”

Law and Analysis

{¶6} Grove argues that the Plea form, as well as the Trial Court's colloquy both

failed to accurately depict the mandatory sentencing under the charge of Aggravated

Vehicular Homicide and instead expressly stated that he might receive community control

sanctions.

STANDARD OF APPELLATE REVIEW

{¶7} The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

{¶8} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d

115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v. Tuscarawas County, Case No. 2018 AP 100033 4

Griggs, the Ohio Supreme Court noted the following test for determining substantial

compliance with Crim.R. 11:

Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly, failure to comply with non-constitutional

rights will not invalidate a plea unless the defendant thereby suffered

prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.

The test for prejudice is ‘whether the plea would have otherwise been

made.’ Id. Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant’s] plea and determine

whether he subjectively understood [the effect of his plea]. See, State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.

ISSUE FOR APPEAL

Whether the trial court was required to inform Grove before accepting his guilty

plea that Aggravated Vehicular Homicide under R.C. 2903.06 required the trial court

impose a mandatory prison sentence.

{¶9} R.C. 2903.06, Aggravated Vehicular Homicide provides, in relevant part,

(B)(1) Whoever violates division (A)(1) or (2) of this section is guilty

of aggravated vehicular homicide and shall be punished as provided in

divisions (B)(2) and (3) of this section. Tuscarawas County, Case No. 2018 AP 100033 5

(2)(a) Except as otherwise provided in division (B)(2)(b) or (c) of this

section, aggravated vehicular homicide committed in violation of division

(A)(1) of this section is a felony of the second degree and the court shall

impose a mandatory prison term on the offender as described in division

(E) of this section.

***

(E)(1) The court shall impose a mandatory prison term on an

offender who is convicted of or pleads guilty to a violation of division (A)(1)

of this section. Except as otherwise provided in this division, the mandatory

prison term shall be a definite term from the range of prison terms provided

in division (A)(1)(b) of section 2929.14 of the Revised Code for a felony of

the first degree or from division (A)(2)(b) of that section for a felony of the

second degree, whichever is applicable, except that if the violation is

committed on or after the effective date of this amendment1, the court shall

impose as the minimum prison term for the offense a mandatory prison term

that is one of the minimum terms prescribed for a felony of the first degree

in division (A)(1)(a) of section 2929.14 of the Revised Code or one of the

terms prescribed for a felony of the second degree in division (A)(2)(a) of

that section, whichever is applicable. If division (B)(2)(c)(i), (ii), (iii), (iv), (v),

(vi), (vii), or (viii) of this section applies to an offender who is convicted of or

pleads guilty to the violation of division (A)(1) of this section, the court shall

impose the mandatory prison term pursuant to division (B) of section

1 R.C. 2903.06 was amended effective March 22, 2019. Tuscarawas County, Case No. 2018 AP 100033 6

2929.142 of the Revised Code. The court shall impose a mandatory jail

term of at least fifteen days on an offender who is convicted of or pleads

guilty to a misdemeanor violation of division (A)(3)(b) of this section and

may impose upon the offender a longer jail term as authorized pursuant to

section 2929.24 of the Revised Code. (Emphasis added).

{¶10} R.C. 2929.14 provides, in relevant part,

(2)(a) For a felony of the second degree committed on or after the

effective date of this amendment2, the prison term shall be an indefinite

prison term with a stated minimum term selected by the court of two, three,

four, five, six, seven, or eight years and a maximum term that is determined

pursuant to section 2929.144 of the Revised Code, except that if the section

that criminalizes the conduct constituting the felony specifies a different

minimum term or penalty for the offense, the specific language of that

section shall control in determining the minimum term or otherwise

sentencing the offender but the minimum term or sentence imposed under

that specific language shall be considered for purposes of the Revised Code

as if it had been imposed under this division.

(b) For a felony of the second degree committed prior to the effective

date of this amendment, the prison term shall be a definite term of two,

three, four, five, six, seven, or eight years. (Emphasis added).

2 R.C. 2929.14 was amended effective March 22, 2019. Tuscarawas County, Case No. 2018 AP 100033 7

{¶11} In the case at bar, the Crim.R. 11(C) and (F) plea agreement signed by

Grove does not state that any of the felony counts to which he would plead carry

mandatory time. The box indicating “Mandatory” is blank for each felony charge.

{¶12} Prior to accepting Grove’s plea, the trial court advised him,

THE COURT: And, so before I can accept your plea, I need to make

sure you understand what that range of sentencing is for, for each charge.

On the felony of the second degree, the possible prison term is two, three,

four, five, six, seven or eight years and a possible fine of up to fifteen

thousand dollars. For counts two and three, the range of sentencing is a

possible prison term of twelve, eighteen, twenty-four, thirty, thirty-six, forty-

two, forty-eight, fifty-four or sixty months, with a fine of up to, should that, I

think that should be ten thousand dollars. On count three there's a type-o.

THE COURT: You are advised that a felony conviction may

prevent you from owning or possessing firearms under Ohio or Federal law.

Also, if the Court selects a prison term on multiple counts, those can be

imposed consecutively, meaning one right after the other, even if the law

does not require it. You're also advised that, in addition to the mandatory

fine that I've mentioned, the Court can impose the, the optional fines on

these charges and other supervision fees. The Court can impose the

payment of restitution to a victim, if we have a restitution request. And the

other financial sanction is required that the Court impose, the Court costs

or the costs of prosecution. If you fail to pay that judgment, the Court can Tuscarawas County, Case No. 2018 AP 100033 8

later order community service hours to be performed and credited at an

hourly rate towards the amount due. If you are currently on probation,

parole, community control or post-release control supervision, a plea to a

new charge could result in revocation proceedings and any new sentence

could be imposed consecutively. If you are not a United States citizen, a

conviction could result in deportation. Do you understand those possible

penalties?

THE DEFENDANT: Yes ma'am.

THE COURT: Okay. On the post-release control, I don't think we

have - -

MS. MILLER: Actually, the mandatory three year box should be

checked your honor.

THE COURT: Okay. And, oh they've changed, okay. For the felony

three, if there's an, if there —

MS. MILLER: We, we don't, our system doesn't let us check that for

the serious physical harm. It's not an offense of violence, the F-3s, so.

THE COURT: Okay. It used to say for serious physical harm.

MS. MILLER: It used to.

THE COURT: It doesn’t now?

MS. MILLER: Our system doesn’t check it.

THE COURT: Okay. Okay. So the next section describes post-

release control and this is a period of, of supervision that comes after Tuscarawas County, Case No. 2018 AP 100033 9

release from prison, which is why it’s called post-release. Most people refer

to it as parole. If you serve a prison term for the felonies of the second and

third degree, you would face, for the felony of the second degree, a

mandatory period of post-release control for three years. And for the felony

of the third degree, it would be a maximum term of three years post-release

control. It appears that it would be optional, but, either way, if you’re under

supervision of the Adult Parole Board, they’ll have rules for you to follow,

they’ll have somebody that you’re accountable to. If you fail to follow the

rules, they can place you under greater restrictions or return you to prison

for up to nine months for each violation, for a total of one-half of the original

prison term. If you commit a new felony while you’re under post-release

control, you risk having the sentence on your new felony increased by one

year or the time remaining on that three year term of post-release control,

whichever is greater. Do you understand the post-release control?

Change of Plea, T. Aug. 13, 2018 at 5-7. The trial court further advised Grove of the

mandatory driver’s license suspension. Id. at 7.

{¶13} This Court has held that a trial court must, before accepting the plea,

determine the defendant’s understanding that the defendant is subject to a mandatory

sentence and that the mandatory sentence renders the defendant ineligible for probation

or community control sanctions. State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-

Ohio-2990, ¶ 12; State v. Lee, 5th Dist. Licking No. 2011CA0087, 2012-Ohio-3055, ¶31;

State v. McCuen, 5th Dist. Muskingum No. CT2004-0038, 2005-Ohio-3346, ¶11. Accord,

State v. Walters, 4th Dist. Adams No. 15CA1009, 2016-Ohio-5783, ¶13. Tuscarawas County, Case No. 2018 AP 100033 10

{¶14} Addressing a trial court’s failure to notify a defendant before accepting his

plea that post-release control time was mandatory, the Ohio Supreme Court found,

We disagree with the court of appeals’ finding of substantial

compliance with Crim.R. 11. Rather, we find that there was no compliance

with Crim.R. 11. The trial court did not merely misinform Sarkozy about the

length of his term of post-release control. Nor did the court merely

misinform him as to whether post-release control was mandatory or

discretionary. Rather, the court failed to mention post-release control at all

during the plea colloquy. Because the trial court failed, before it accepted

the guilty plea, to inform the defendant of the mandatory term of post-

release control, which was a part of the maximum penalty, the court did not

meet the requirements of Crim.R. 11(C)(2)(a). A complete failure to comply

with the rule does not implicate an analysis of prejudice.

117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, 22. In the case at bar, the trial

court did not mention the mandatory prison sentence required for Aggravated Vehicular

Homicide. As is true with post-release controls, a complete failure to inform Grove of the

mandatory prison sentence did not meet the requirements of Crim.R. 11(C)(2)(a).

Therefore, Grove is not required to demonstrate prejudice.

{¶15} In State v. Straley, the Court noted,

The State next contends that any error by the trial court in failing to

advise Straley that he would be subject to mandatory prison terms for the

three counts of second-degree felony sexual battery charges and its failure

to sentence him to the required mandatory terms did not prejudice him Tuscarawas County, Case No. 2018 AP 100033 11

because he understood that he would be serving an aggregate prison term

of 35 years and 10 months.

We reject the State’s contention because Straley did not understand

that R.C. 2929.13(F)(3) required a mandatory prison term for the 21 years

of the sentence associated with the second-degree felony sexual battery

charges.

4th Dist. Highland No. 17CA4, 2018-Ohio-3080, ¶25-26. In the case at bar, the trial court

further informed Grove,

THE COURT: And Ms. Miller, on behalf of the State of Ohio, has told

the Court what she expects the recommendations to be at the time of

sentencing. Other than those things she talked about, do you think that

anyone representing the Prosecutor's office or the State of Ohio promised

you anything else that we have not discussed today?

THE DEFENDANT: No, I have not heard that.

THE COURT: And do you understand that her recommendation on

sentencing could be more severe if you engage in additional criminal activity

prior to sentencing?

THE DEFENDANT: Yes, understood ma'am.

THE COURT: And do you also understand that I have not made a

promise of a specific sentence in exchange for your plea?

THE DEFENDANT: I understand that.

Change of Plea, T. Aug. 13, 2018 at 9. In the case at bar, Grove was not told that any

portion of the eight-year prison sentence he would serve was mandatory. Likewise, the Tuscarawas County, Case No. 2018 AP 100033 12

sentencing entry filed by the trial court does not mention that any prison sentence

imposed upon Grove is “mandatory” prison time. Accordingly, Grove’s pleas were not

made knowingly, intelligently, and voluntarily.

{¶16} Grove’s sole assignment of error is sustained. The plea of guilty and

sentence is vacated and the matter will be remanded to the trial court for further

proceedings.

{¶17} The judgment of the Tuscarawas County Court of Common Pleas is

reversed and this cause is remanded to that court for further proceedings according to

law and consistent with this opinion.

By Gwin, P.J.,

Wise, John, J., and

Delaney, J., concur