State v. Sarkozy

881 N.E.2d 1224, 117 Ohio St. 3d 86
CourtOhio Supreme Court
DecidedFebruary 14, 2008
DocketNo. 2006-1973
StatusPublished
Cited by403 cases

This text of 881 N.E.2d 1224 (State v. Sarkozy) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sarkozy, 881 N.E.2d 1224, 117 Ohio St. 3d 86 (Ohio 2008).

Opinions

Lundberg Stratton, J.

[87]*87I. Introduction

{¶ 1} Today this court must determine the effect of the failure of a trial court during a plea colloquy to advise a defendant that his sentence includes a mandatory term of postrelease control. Because we hold that a defendant in these circumstances may challenge whether the plea was knowing, intelligent, and voluntary either by filing a motion to withdraw the plea or upon direct appeal, we vacate the judgment of the court of appeals and remand the cause.

II. Facts

{¶ 2} On February 8, 2005, Michael Sarkozy, defendant-appellant, was indicted on ten counts, including one count of attempted murder, two counts of aggravated burglary, two counts of aggravated robbery, two counts of kidnapping, and two counts of felonious assault. Each of these counts also included one- and three-year firearm specifications, a notice of prior conviction, and a repeat-violent-offender specification. Sarkozy was also indicted on one count of having a weapon while under a disability.

{¶ 3} After initially entering a plea of not guilty, Sarkozy withdrew his not-guilty plea and on May 25, 2005, entered a plea of guilty to one count of attempted murder with all specifications, one count of aggravated robbery, and one count of kidnapping. All remaining counts of the indictment were nolled pursuant to the plea agreement.

{¶ 4} At the time of the plea, the trial court advised Sarkozy of the prison terms related to the offenses to which he was pleading guilty. The trial court did not inform Sarkozy that postrelease control would be part of the sentence imposed, the length of postrelease control, or the consequences of violating postrelease control. Sarkozy was referred for a presentence investigation and report.

{¶ 5} Prior to sentencing, Sarkozy made a pro se oral motion to withdraw his guilty plea pursuant to Crim.R. 32.1, challenging his attorney’s performance. At the sentencing hearing, Sarkozy argued his motion. The trial court denied the motion and sentenced Sarkozy to 27 years’ imprisonment with a mandatory term of five years of postrelease control.

{¶ 6} On appeal to the Cuyahoga County Court of Appeals, Sarkozy argued in part that his plea was invalid because the trial court failed to advise him that postrelease control would be a part of his sentence. A divided court of appeals affirmed the convictions but remanded the cause for resentencing in light of this court’s intervening decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Sarkozy sought reconsideration and certification of a conflict in the court of appeals but was denied both. The cause is now before this court pursuant to the acceptance of a discretionary appeal.

[88]*88III. Analysis

{¶ 7} This court has held that “[w]hen a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle (1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450.

{¶ 8} Crim.R. 11 governs the process of entering a plea. Of particular relevance to this case is Crim.R. 11(C), which provides:

{¶ 9} “(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:
{¶ 10} “(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.” (Emphasis added.)

{¶ 11} Because Sarkozy was pleading guilty to three first-degree felony offenses, a five-year term of postrelease control was a mandatory element of his sentence pursuant to R.C. 2929.14(F)(1) and 2967.28. However, the trial court did not inform Sarkozy that it would impose any postrelease control before accepting his guilty plea. Both Sarkozy and the state agree that the trial court’s acceptance of Sarkozy’s guilty plea without advising him of postrelease control was an error, but they disagree as to the effect of that omission.

{¶ 12} Sarkozy argues that because he was not advised of postrelease control before he entered his plea, the trial court did not determine that he was entering his guilty plea voluntarily, with an understanding of the nature of the charges and of the maximum penalty involved, as required by Crim.R. 11.

{¶ 13} Sarkozy correctly notes that there are substantial differences between the previous system of parole and the current system of postrelease control. “Under the prior system of parole, a sentencing judge, imposing an indefinite sentence with the possibility of parole, had limited power or authority to control the minimum time to be served before the offender’s release on parole; the judge could control the maximum length of the prison sentence, but the judge had no power over when parole might be granted in between those parameters. The judge had no power to control the conditions of parole or the length of the parole supervision.

{¶ 14} “Under the current system of post-release control, the judge sentences the offender from the options available under the new sentencing scheme and informs the offender that he or she may be subject to a definite period of post-[89]*89release control * * * and that a violation of those conditions would result in additional time up to fifty percent of the original sentence.” (Footnote omitted.) Woods v. Telb (2000), 89 Ohio St.3d 504, 511, 733 N.E.2d 1103.

{¶ 15} When Sarkozy pleaded guilty, he was not advised that he was subject to a mandatory five-year term of postrelease control pursuant to R.C. 2929.14(F)(1) and 2967.28, nor was he advised that violating postrelease control could carry further incarceration of up to 50 percent of his original prison sentence. Thus, Sarkozy argues that because he was not informed of the mandatory term of postrelease control at his plea colloquy, the violation of which could include a significant amount of additional incarceration, his plea was not entered knowingly, intelligently, or voluntarily and should be vacated.

{¶ 16} However, the state defends the plea on two grounds. First, the state argues that Sarkozy waived his right to challenge his sentence because he failed to raise the issue in his motion to withdraw his guilty plea. Second, the state argues that the trial court substantially complied with Crim.R. 11, and therefore the plea was valid. We will address each of these in turn.

Waiver

{¶ 17} The state argues that Sarkozy did not challenge the trial court’s failure to properly advise him of his mandatory postrelease control at the first available opportunity, i.e., his motion to withdraw his guilty plea, and therefore, Sarkozy has waived the right to challenge this aspect of his sentence. However, the state’s argument misapplies the doctrine of waiver.

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Cite This Page — Counsel Stack

Bluebook (online)
881 N.E.2d 1224, 117 Ohio St. 3d 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sarkozy-ohio-2008.