State v. Waddell

498 N.E.2d 195, 26 Ohio App. 3d 33, 26 Ohio B. 202, 1985 Ohio App. LEXIS 10215

• Court: Ohio Court of Appeals
• Decided: June 28, 1985
• Docket: CA84-11-029
• Status: Published

Opinions

Hendrickson, J.

Defendant-appellant, Barry Dean Waddell, was charged with one count of aggravated robbery per R.C. 2911.01(A)(1), one count of aggravated burglary per R.C. 2911.11(A)(3), one count of grand theft per R.C. 2913.02(A)(1), and one count of having weapons while under disability per R.C. 2923.13(A)(2). At the time he allegedly committed the above offenses, appellant was on active probation from an aggravated menacing offense committed during 1982.

Pursuant to a plea bargaining arrangement, appellant agreed to plead guilty to the aggravated burglary charge in exchange for a recommendation that the other three charges be dismissed. Before accepting appellant’s guilty plea, the court below informed appellant of his rights as required by Crim. R. 11(C), but neglected to advise him that, pursuant to R.C. 2929.41(B)(3), the sentence imposed for the aggravated burglary would have to be served consecutively with the sentence from which he was on probation. Appellant subsequently pleaded guilty to the aggravated burglary charge, and the court thereafter dismissed the other charges and sentenced appellant to not less than ten nor more than twenty-five years of incarceration.

After learning of the effect that R.C. 2929.41(B)(3) would have upon his sentence, appellant timely filed a notice of appeal to this court raising the following single assignment of error:

“The trial court erred to the prejudice of the defendant by failing to fully disclose the maximum penalty he could receive before acceptance of his guilty plea.”

Crim. R. 11(C)(2)(a) states that a court shall not accept a guilty plea in a felony case:

“* * * without first addressing the defendant personally and:

“(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.” (Emphasis added.)

As appellant was on probation at the time he pleaded guilty to aggravated burglary, his sentence was required to be served consecutively with his prior sentence per R.C. 2929.41(B)(3), which states that “[a] sentence of imprisonment shall be served consecutively to any other sentence of imprisonment * * * [w]hen it is imposed for a new felony committed by a probationer, parolee, or escapee.” The question now before us is whether the trial court committed prejudicial error in failing to advise appellant that any sentence imposed as a result of his plea would have to be served consecutively to his prior sentence per R.C. 2929.41(B). We conclude that since the trial court substantially complied with the provisions of Crim. R. 11, and since the record reveals no prejudice to appellant due to the trial court’s omission, the error is harmless and appellant’s assignment of error must therefore be overruled.

As a preliminary matter, we note that the provisions of Crim. R. 11(C)(2) were arguably complied with in the case sub judice even though the court failed to mention the impact of R.C. 2929.41(B) to appellant prior to accepting his plea. The record, after all, reveals that appellant was informed of the maximum sentence which the court might impose for aggravated burglary, the offense to which he subsequently pleaded guilty. The fact that the sentence would have to be served consecutively with the sentence imposed for appellant’s prior aggravated menacing offense was not a part of the maximum penalty for aggravated burglary.

However, even if the court below should have informed appellant that his aggravated burglary sentence had to be served consecutively to his prior sentence, the record indicates that the information provided appellant pursuant to the provisions of Crim. R. 11 was in substantial compliance with the rule, which is sufficient under the current law of Ohio. See State v. Stewart (1977), 51 Ohio St. 2d 86 [5 O.O.3d 52], In Stewart, supra, the trial judge failed to advise the defendant that he would not be eligible for probation prior to accepting his plea of guilty to a charge of murder, but the Ohio Supreme Court, per Celebrezze, J., affirmed the conviction on the basis that the terms of Crim. R. 11 were substantially complied with. Justice Celebrezze, citing Kelleher v. Henderson (C.A. 2, 1976), 531 F.2d 78, observed that knowledge of maximum and minimum sentences is not constitutionally required prior to the acceptance of a guilty plea; the test is whether the plea would have otherwise been made. He therefore concluded that “* * * the absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea.” Stewart, supra, at 93. The court’s failure to inform appellant about consecutive sentences in the case now before us is certainly no more egregious an oversight than the court’s failure to advise the defendant in Stewart, supra, that he would not be eligible for probation.

Further, an examination of the record reveals little possibility of prejudice to appellant as a result of the trial court’s alleged oversight. Appellant pleaded guilty to one charge of aggravated burglary and in exchange had charges of aggravated robbery, grand theft and having weapons while under disability dropped. The above exchange in our estimation constitutes an undeniably advantageous bargain which would have been made regardless of whether appellant had been informed of the consecutive sentence provision of R.C. 2929.41(B)(3). See Stewart, supra, and Kelleher, supra. Therefore, it appears that appellant’s guilty plea was properly accepted, and his assignment of error is, accordingly, not well-taken.

The judgment of the trial court is affirmed.

Judgment affirmed.

Jones, J., concurs separately. Koehler, P.J., dissents.