State v. Byrd

• Decision Date: 24 October 2008
• Docket Number: No. 22406.,22406.
• Citation: 178 Ohio App.3d 646,2008 Ohio 5515,899 N.E.2d 1033
• Parties: The STATE of Ohio, Appellee, v. BYRD, Appellant.
• Court: Ohio Court of Appeals

899 N.E.2d 1033

178 Ohio App.3d 646

2008-Ohio-5515

The STATE of Ohio, Appellee, v. BYRD, Appellant.

No. 22406.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided October 24, 2008.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine, Assistant Prosecuting Attorney, for appellee.

Anthony R. Cicero, Canton, for appellant.

GRADY, Judge.

{¶ 1} Defendant, Kevin Byrd Jr., was charged with multiple felony offenses in two separate indictments. Byrd subsequently entered negotiated pleas of guilty to three of the offenses charged, and the state dismissed the remaining charges.

{¶ 2} In common pleas case No. 2006CR5353/1, Byrd pleaded guilty to one count of aggravated robbery, R.C. 2911.01(A), with a firearm specification attached to that felony charge pursuant to R.C. 2941.145. Byrd was sentenced to serve a three-year prison term for the specification offense, to run prior to a three-year term for the aggravated-robbery offense, for an aggregate term of six years.

{¶ 3} In common pleas case No. 2007CR532/2, Byrd pleaded guilty to two counts of aggravated robbery and to two counts of kidnapping, R.C. 2905.01, and the firearm specifications attached to each of those felony charges. The court merged the specifications. Byrd was sentenced to serve a three-year prison term for the specification offense, to run prior to a four-year sentence for each aggravated-robbery offense and three years for each kidnapping offense, to run concurrently, for an aggregate prison term of seven years.

{¶ 4} The aggregate six-year term in case No. 2006CR5353/1 and the aggregate seven-year term in case No. 2007CR532/2 were ordered to run consecutively, for a total prison term of 13 years. Byrd filed a timely notice of appeal.

FIRST ASSIGNMENT OF ERROR

{¶ 5} "Contrary to appellant's rights to due process and the requirements of Crim.R. 11(C)(2)(a), appellant's plea was not knowingly, intelligently and voluntarily entered because the court's colloquy never explained that his sentences would be mandatory and make him ineligible for judicial release."

{¶ 6} Aggravated robbery is a first-degree felony. R.C. 2911.01(C). Kidnapping is a second-degree felony. R.C. 2905.01(C). Per R.C. 2929.13(F)(6), a sentencing court is mandated to impose a prison term for first- and second-degree felony offenses when the offender was previously convicted of a first- or second-degree felony offense.

{¶ 7} Byrd was previously convicted of a second-degree felony offense in Montgomery Common Pleas case No. 2004CR2605. Therefore, in the present cases the prison sentences the court imposed were mandatory, and Byrd was told by the court during the Crim.R. 11 colloquy on his guilty pleas that the prison sentences were required.

{¶ 8} A court that imposes a prison sentence on an "eligible offender" may subsequently reduce the term of that sentence by ordering a judicial release. R.C. 2929.20(B). Division (A) of R.C. 2929.20 states:

{¶ 9} "As used in this section, `eligible offender' means any person serving a stated prison term of ten years of less when either of the following applies:

{¶ 10} "(1) The stated prison term does not include a mandatory prison term.

{¶ 11} "(2) The stated prison term includes a mandatory prison term, and the person has served the mandatory prison term."

{¶ 12} Because Byrd was sentenced to mandatory prison terms, he is ineligible for judicial release. Byrd argues on appeal that his pleas of guilty were improperly accepted by the court, because the court failed to determine that Byrd understood that he is ineligible for judicial release before it accepted his guilty pleas. Byrd relies on Crim.R. 11(C)(2)(a) and our prior holding in State v. Pape (Nov. 21, 2001), Clark App. No. 2000CA98, 2001 WL 1473764.

{¶ 13} Crim.R. 11(C)(2)(a) provides that in felony cases a court "shall not accept a plea of guilty or no contest without first addressing the defendant personally and * * *. [d]etermining 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."

{¶ 14} In Pape, we held that though the defendant understood that he faced a mandatory prison sentence of four years, and though the court was unaware that the defendant's counsel had allegedly told defendant he would be eligible for judicial release, Crim.R. 11(C)(2)(a) required the court to determine that the defendant understood that he would be ineligible for judicial release because his sentence was mandatory. We relied on two decisions of other districts that involved failure to advise a defendant that he was ineligible for shock probation: State v. Colbert (1991), 71 Ohio App.3d 734, 595 N.E.2d 401, and State v. Brigham (Feb. 27, 1997), Franklin App. Nos. 96APA07-964 and 96APA07-970, 1997 WL 84650.

{¶ 15} Colbert was an appeal from an order denying a defendant's Crim.R. 32.1 motion to withdraw his guilty pleas. At the plea hearing, the prosecutor stated that defense counsel had indicated an intent to move for super shock probation and that "we will not oppose that." The court added: "For the record, the court had indicated in chambers that the court would recommend it upon proper motion." 71 Ohio App.3d at 738, 595 N.E.2d 401. The court's written entry on the plea also stated, "The Court indicated that it would allow the Defendant to be brought back from prison on motion by the Defendant after the Defendant has served six months in prison." Id. However, when the defendant moved for super shock probation, the court denied the motion. The defendant moved to withdraw his guilty pleas, and the court also denied that motion.

{¶ 16} On appeal, the defendant in Colbert might have relied on the "manifest injustice" standard of Crim.R. 32.1 to argue that the trial court induced his guilty pleas by misrepresenting the court's intention to grant super shock probation. Instead, the defendant relied on Crim.R. 11(C)(2)(a). Addressing that rule and its requirements, the Court of Appeals of Portage County cited the rule of substantial compliance with Crim.R. 11 announced in State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163, noting that "compliance with the rule can be based upon a consideration of the totality of the circumstances surrounding the entry of the plea." 71 Ohio App.3d at 737, 595 N.E.2d 401. The appellate court also observed that "the failure to inform the defendant of his ineligibility for probation, under certain circumstances, may be prejudicial error requiring the vacation of the defendant's plea." Id. at 738, 595 N.E.2d 401. The appellate court then found that the statements the court made constituted such circumstances, and it reversed the trial court's order denying the defendant's motion to withdraw his guilty pleas.

{¶ 17} In Brigham, the defendant entered guilty pleas to having weapons under disability, with a firearms specification, and carrying a concealed weapon. When the defendant inquired of the court whether he was eligible for shock probation, the court advised him that he was ineligible during his term of three years' actual incarceration on the firearm specification. Defendant's counsel indicated he would move for shock probation after that, and stated: "I said if we were able to file, we would file, and you (the court) would consider it at that time." When the defendant asked the court whether it would consider the motion, the court replied that it would make no promises.

{¶ 18} On appeal, the Court of Appeals of Franklin County held in Brigham that the defendant's guilty pleas were accepted in violation of Crim.R. 11(C)(2), because his "[c]ounsel's representations were `unfulfillable' because appellant's convictions were nonprobationable." Id. at *2. The court rejected the state's substantial-compliance argument, stating:

{¶ 19} "Crim.R. 11(C) does not require the trial court to discuss shock probation eligibility, nor does this court hold that, in every case, the trial court must advise a defendant that he is ineligible for super shock probation. On a case-by-case basis, that may or may not be necessary. We merely hold that, whe[n] a defendant asks that specific question, the defendant is entitled to an accurate answer so he can make an intelligent waiver of his rights by entering a guilty plea." Id.

{¶ 20} Unlike in Colbert and Brigham, in neither the present case nor in Pape was there any claim or indication that either counsel or the court had misstated or misrepresented that the defendant was eligible for judicial release when he was not.

{¶ 21} After acknowledging that fact, we wrote in Pape:

{¶ 22} "Nevertheless, we conclude that requiring the trial court to determine that a defendant understands he is ineligible for judicial release is a salutary interpretation of Crim.R. 11(C)(2)(a) which furthers the purpose of Crim.R. 11(C)(2)(a) that pleas of guilty and no contest be voluntarily and intelligently made, i.e., `with full understanding of the consequences,' Brigham, supra, citing Kercheval v. United States (1927), 274 U.S. 220, 223 [47 S.Ct. 582, 71 L.Ed. 1009]." Pape, at *4.

{¶ 23} When Colbert and Brigham were decided, Crim.R. 11(C)(2) required the court to determine that the defendant entered his guilty or no-contest plea with the "understanding * * *, if applicable, that [h]e is not eligible for probation." (Emphasis added.). The rule now requires a determination of the Defendant's "understanding * * *, if applicable, that he is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing." (Emphasis added.)

{¶ 24} On closer review, we believe that the holdings in Colbert and Brigham stand for the proposition that when a defendant's eligibility for probation or community control sanctions is...