State v. Bishop

• Decision Date: 21 December 2018
• Docket Number: Nos. 2017-1715,2017-1716,s. 2017-1715
• Citation: 156 Ohio St.3d 156,124 N.E.3d 766,2018 Ohio 5132
• Parties: The STATE of Ohio, Appellant, v. BISHOP, Appellee.
• Court: Ohio Supreme Court

156 Ohio St.3d 156

124 N.E.3d 766

2018 Ohio 5132

The STATE of Ohio, Appellant,

v.BISHOP, Appellee.

Nos. 2017-1715

2017-1716

Supreme Court of Ohio.

Submitted July 18, 2018

Decided December 21, 2018

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Michael J. Scarpelli and Andrew T. French, Assistant Prosecuting Attorneys, for appellant.

Carl Bryan, Yellow Springs, for appellee.

French, J. {¶ 1} We are asked to resolve a certified conflict between judgments of the Second District Court of Appeals and the Fifth and Eighth District Courts of Appeals on the question "[w]hether a criminal defendant on [postrelease control] for a prior felony must be advised, during his plea hearing in a new felony case, of the trial court's ability under R.C. 2929.141 to terminate his existing [postrelease control] and to impose a consecutive prison sentence for the [postrelease-control] violation." 152 Ohio St.3d 1404, 2018-Ohio-723, 92 N.E.3d 877. We conclude that Crim.R. 11(C)(2)(a) requires that advisement. We answer the certified question in the affirmative and affirm the judgment of the Second District Court of Appeals.

I. Facts and Procedural History

{¶ 2} While on postrelease control for a prior felony conviction, appellee, Dustin Bishop, was indicted on one count of possession of heroin, a fifth-degree felony, and one count of possession of drug paraphernalia, a misdemeanor.

{¶ 3} Bishop pleaded guilty to the possession count, and the state dismissed the drug-paraphernalia count. At Bishop's plea hearing, the trial court informed Bishop that the court could place him on postrelease control for the possession offense. It also informed him that if he committed a new felony while on that postrelease control, the court could sentence him to serve one year in prison or the time remaining on his postrelease control, whichever was longer. The trial court did not inform Bishop that once he pleaded guilty to the possession offense, the court would have the authority under R.C. 2929.141 to terminate Bishop's existing postrelease control and impose a prison term that he would serve consecutively to the term of imprisonment imposed for the possession offense. The trial court accepted Bishop's guilty plea and set the matter for sentencing.

{¶ 4} The trial court sentenced Bishop to serve a nine-month term of imprisonment for the possession offense. For the postrelease-control violation, the court ordered Bishop to serve a one-year prison term under R.C. 2929.141 consecutively to the sentence for the possession offense.

{¶ 5} Bishop appealed to the Second District Court of Appeals, raising two assignments of error. Bishop first argued that he had not knowingly, intelligently, and voluntarily pleaded guilty to the possession offense because the trial court had not informed him of its authority under R.C. 2929.141 to terminate his postrelease control and to order him to serve a prison term consecutively to any term of imprisonment imposed for the felony offense to which he was pleading guilty. The appellate court, relying on its prior decisions in State v. Branham , 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, 2014 WL 6090404, and State v. Landgraf , 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448, 2014 WL 7004830, sustained Bishop's first assignment of error and concluded that the trial court erred by failing to advise Bishop, at the time of his plea, that he could have to serve an additional, consecutive sentence for his current postrelease-control violation. 2017-Ohio-8332, ¶ 7. The appellate court deemed Bishop's second assignment of error moot, reversed the trial court's judgment, vacated Bishop's guilty plea, and remanded the matter for further proceedings. Id. at ¶ 8-9.

{¶ 6} The appellate court, upon the state's motion, certified that its decision conflicted with the Fifth District Court of Appeals' decision in State v. Hicks , 5th Dist. Delaware No. 09CAA090088, 2010-Ohio-2985, 2010 WL 2595153, and the Eighth District Court of Appeals' decision in State v. Dotson , 8th Dist. Cuyahoga No. 101911, 2015-Ohio-2392, 2015 WL 3819178. The state filed a notice of certified conflict and a jurisdictional appeal in this court. We determined that a conflict exists and consolidated the conflict case with the state's jurisdictional appeal. 152 Ohio St.3d 1404, 2018-Ohio-723, 92 N.E.3d 877.

II. Intervening Trial-Court Proceedings

{¶ 7} According to the state's merit brief, on January 29, 2018—after the state had appealed the court of appeals' judgment to this court but prior to our accepting jurisdiction—the trial court accepted Bishop's new guilty plea to the same possession offense and sentenced him to time served. We must address whether this case is moot.

{¶ 8} Nothing in the record before us confirms that the trial court did, in fact, accept a new guilty plea. But even if the court did accept a new plea, we have held that we may resolve a matter, even if it is moot with respect to the parties, when it involves an issue of great public or general interest that will outlive the instant controversy. See, e.g. , Franchise Developers, Inc. v. Cincinnati , 30 Ohio St.3d 28, 31, 505 N.E.2d 966 (1987). We have recognized this exception to the mootness doctrine in other certified-conflict cases and held that it was appropriate to resolve the question of law presented. State v. Massien , 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 4, fn. 1 ; State v. Brooks , 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 5. For this reason, we proceed to consider the certified-conflict question.

III. Analysis

{¶ 9} Turning to the merits, we confront a conflict between judgments of the Second District Court of Appeals and the Fifth and Eighth District Courts of Appeals regarding an interpretation of the requirements of Crim.R. 11(C). The Second District Court of Appeals has held that the trial court must inform a defendant who is on postrelease control and is pleading guilty to a new felony offense of the trial court's authority to revoke the defendant's postrelease control and impose a prison term to be served consecutively to any term of imprisonment it imposes for that new felony offense. See 2017-Ohio-8332 at ¶ 7 ; Branham , 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, at ¶ 14. The Second District has interpreted that requirement to be part of the trial court's duty under Crim.R. 11(C)(2)(a) to advise the defendant of "the maximum penalty involved." See Landgraf , 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448, at ¶ 23 (lead opinion). In contrast, the Fifth and Eighth District Courts of Appeals have held that Crim.R. 11 does not require the trial court to inform the defendant of the possible effects of his guilty plea to a new offense on his postrelease control. Hicks , 5th Dist. Delaware No. 09CAA090088, 2010-Ohio-2985, at ¶ 10-13 ( Crim.R. 11(D) did not require the trial court to inform the defendant, who was pleading guilty to a misdemeanor offense, of the possible effects of his plea on his postrelease control); Dotson , 8th Dist. Cuyahoga No. 101911, 2015-Ohio-2392, at ¶ 13 ( Crim.R. 11(C) did not require the trial court to inform the defendant, who was pleading guilty to a felony offense, of the possible effects of his plea on his postrelease control).

{¶ 10} A criminal defendant's choice to enter a guilty plea is a serious decision. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. Due process requires that a defendant's plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant's plea is invalid. Id.

{¶ 11} Crim.R. 11(C) prescribes the process that a trial court must use before accepting a plea of guilty to a felony.

State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. The trial court must follow certain procedures and engage the defendant in a detailed colloquy before accepting his or her plea. Clark at ¶ 26 ; see Crim.R. 11(C). The court must make the determinations and give the warnings that Crim.R. 11(C)(2)(a) and (b) require and must notify the defendant of the constitutional rights that Crim.R. 11(C)(2)(c) identifies. Veney at ¶ 13. While the court must strictly comply with the requirements listed in Crim.R. 11(C)(2)(c), the court need only substantially comply with the requirements listed in Crim.R. 11(C)(2)(a) and (b). Id. at ¶ 18.

{¶ 12} Most relevant here, Crim.R. 11(C)(2) includes the following among the determinations a trial court must make:

(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.

{¶ 13} We must also consider the specifics of R.C. 2929.141. That statute provides that when a defendant who is on postrelease control is convicted of or pleads guilty to a new felony, the trial court may terminate the postrelease-control term and convert it into additional prison time. R.C. 2929.141(A)(1). This additional penalty is often referred to as a "judicial sanction." See, e.g. , State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 25. The additional term can be as long as the greater of 12 months or the amount of time that remained on the existing postrelease-control term. R.C. 2929.141(A)(1). The court is not required to impose an additional prison term for the violation. See id. But if it does, the defendant must serve the additional term consecutively to the prison term for the new felony. Id.

A. Crim.R. 11(C)(2)(a) —The "maximum penalty involved" includes the potential R.C. 2929.141(A) sentence

{¶ 14} At issue here is the impact of R.C. 2929.141(A) on the portion of Crim.R. 11(C)(2)(a) that requires a trial court to ensure during the plea hearing that the defendant is entering his guilty plea "with understanding of the nature of the charges and of the maximum penalty involved." In arguing that the...