State v. Bobo
| Decision Date | 06 October 2022 |
| Docket Number | 111362 |
| Citation | 198 N.E.3d 580 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Victor BOBO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Luke Habermehl, Assistant Prosecuting Attorney, for appellee.
The Law Office of Jaye M. Schlachet, Jaye M. Schlachet, and Eric M. Levy, Cleveland, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant Victor Bobo ("Bobo") appeals his conviction and sentence after pleading guilty to one count of felony two drug trafficking. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
{¶ 2} On January 14, 2022, Bobo was indicted for drug trafficking cocaine in an amount exceeding 27 grams but less than 100 grams, a felony of the first degree (Count 1); possession of cocaine, a felony of the first degree (Count 2); and possession of criminal tools, a felony of the fifth degree (Count 3). Bobo also had three other cases before the court as follows: Cuyahoga C.P. No. CR-21-633725-A: receiving stolen property, a felony of the fourth degree; Cuyahoga C.P. No. CR-21-664669: robbery a felony of the third degree and grand theft a felony of the fourth degree; and Cuyahoga C.P. No. CR-22-666766: abduction, a felony of the third degree; domestic violence, a felony of the fourth degree; and resisting arrest, a misdemeanor of the second degree.
{¶ 3} On March 2, 2022, the court conducted a pretrial. Prior to that date, Bobo's counsel had asked the court to review his record for a possible community-control sanction. The court informed Bobo that, after a review of his record if Bobo reached a plea agreement, a prison term would be imposed. The court noted Bobo's lengthy criminal history and his four new cases from September 2021 to February 2022. Based on those facts alone, the trial court felt it would be inappropriate to impose a community-control sanction.
{¶ 4} After further discussion, the trial court adjourned until the afternoon session to allow Bobo to discuss the case with his attorney. On returning to the record, Bobo accepted a plea deal and pleaded guilty to Count 1 as amended to a felony of the second degree.1 The state dismissed the remaining charges on that indictment. During the plea colloquy, the trial court advised Bobo that the sentence required mandatory prison time. However, the trial court also advised Bobo that he would be entitled to earn good-time credit and could reduce his term by 15 percent.
{¶ 5} After accepting Bobo's plea, the trial court proceeded immediately to sentencing. Bobo was sentenced to a minimum indefinite sentence of three years to a maximum possible term of four and one-half years.2 After the trial court concluded sentencing, but before the case was adjourned, Bobo's attorney questioned whether he was eligible for good-time credit on a mandatory prison term. The trial court indicated that the legislature is silent as to whether a defendant is eligible for early release under S.B. 201.
{¶ 6} Bobo now appeals assigning the following errors for our review.
The trial court erred when it found appellant's plea was voluntary, knowing and intelligent and that he was aware of the maximum penalty involved where at the time of his change of plea he was given inaccurate information about prison reduction where the trial court imposed a mandatory prison sentence.
Assignment of Error No. 2
Appellant's indefinite sentence imposed under the Reagan Tokes sentencing scheme violates appellant's rights under the United States Constitution applied to the state of Ohio through the Fourteenth Amendment and the Ohio Constitution as it denies appellant due process of law; violates the Sixth Amendment right to a jury trial; violates the separation of powers doctrine; does not provide fair warning of the dictates of the statute to ordinary citizens; and the statute conferred too much authority to the Ohio Department of Rehabilitation and Correction (ODRC).
Assignment of Error No. 3
Appellant's sentence is contrary to law where the trial court failed to comply with the required notices contained in R.C. 2929.19(B)(2)(c) when imposing sentence.
Law and Analysis
{¶ 7} For ease of discussion, we will examine the assignments of error out of order, when necessary. In the first assignment of error, Bobo argues that the trial court erred when it found his guilty plea was voluntary, knowing, and intelligent where the court informed him, incorrectly, that he was entitled to good-time credit on a mandatory prison term. The state filed a notice of conceded error as to this assignment of error pursuant to Loc. App.R. 16(B).
{¶ 9} Bobo argues that such an error is sufficient to warrant vacating his plea and remanding the case back to the trial court. Alternatively, Bobo suggests the Reagan Tokes Law, S.B. 201, might allow for good-time credit on a mandatory sentence. If so, Bobo argues, his first assignment of error is moot. We will address Bobo's arguments in this assignment of error in turn.
{¶ 10} Preliminarily, a no-contest or guilty plea must be knowing, intelligent, and voluntary because it involves a waiver of constitutional rights. State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10, citing Parke v. Raley , 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ; State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. "If the plea was not made knowingly, intelligently, and voluntarily, enforcement of the plea is unconstitutional." Id.
{¶ 11} The requirements of an acceptable plea are codified in Ohio under Crim.R. 11, and it includes constitutional and nonconstitutional elements. The rule is intended to ensure " ‘an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.’ " Id. at ¶ 11, quoting State v. Stone , 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).
{¶ 12} No magic words are required to establish compliance with Crim.R. 11, rather the concern is "whether the dialogue between the court and the defendant demonstrates that the defendant understood the consequences of the plea." Dangler at ¶ 12, citing State v. Stewart , 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977), and State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15-16 ; Clark at ¶ 26 ; State v. Miller , 159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617, ¶ 19.
{¶ 13} When a criminal defendant challenges his conviction due to errors in the plea colloquy, the rule is that he must establish that an error occurred and that he was prejudiced by that error. Id. at ¶ 13. Prejudice is shown when the defendant demonstrates that but for the trial court's error, the plea would not have been made. State v. Clifton , 8th Dist. Cuyahoga No. 105220, 2018-Ohio-269, 2018 WL 555527, ¶ 9, citing Clark at ¶ 32, State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12, State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶ 14} However, there are two exceptions to the requirement that the defendant show prejudice. One exception deals with the defendant's constitutional rights and the other with the defendant's nonconstitutional rights. A trial court must strictly comply with Crim.R. 11(C)(2)(c), which describes the constitutional rights a defendant waives when he enters a plea of guilty or no contest. State v. Smith , 8th Dist. Cuyahoga Nos. 110660 and 110694, 2022-Ohio-1411, 2022 WL 1261664, ¶ 30. If the trial court fails to give the constitutional advisements, it is presumed that the plea was entered involuntarily and unknowingly. In that instance, the defendant is not required to show prejudice. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286 at ¶ 10, citing Clark at ¶ 31 ; Veney at syllabus.
{¶ 15} On the other hand, the trial court must substantially comply with Crim.R. 11(C)(2)(a) and (b) that cover nonconstitutional rights. Smith at ¶ 31. If the trial court completely fails to comply with advising on a nonconstitutional element of Crim.R. 11(C), defendant is also not required to show prejudice. Dangler at ¶ 14.
{¶ 16} In Dangler , the Supreme Court summarized our review of Crim.R. 11(C) as follows:
Properly understood, the questions to be answered are simply: (1) has the trial court complied with the relevant provision of the rule? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?
{¶ 17} Here, the main focus is whether the trial court complied with Crim.R. 11(C)(2) and determined that Bobo understood the maximum penalty involved in his plea. A review of the record shows that the trial court did initially comply with Crim.R. 11(C)(2). The trial court advised Bobo that the maximum potential penalty for his charge was a term of 8 to 12 years. Further, the trial court informed him that whether his prison term was extended beyond eight years would depend on his behavior in the institution. Finally, the trial court informed Bobo that the sentence was mandatory.
{¶ 18} The court then took the added step of advising Bobo that he was entitled to...
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