State v. Colvin

• Decision Date: 31 August 2016
• Docket Number: No. 15 MA 0162.,15 MA 0162.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Dewaylyn COLVIN, Defendant–Appellant.
• Court: Ohio Court of Appeals

70 N.E.3d 1012

2016 Ohio 5644

STATE of Ohio, Plaintiff–Appellee,

v.Dewaylyn COLVIN, Defendant–Appellant.

No. 15 MA 0162.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Aug. 31, 2016.

Paul J. Gains, Mahoning County Prosecutor, Ralph M. Rivera, Assistant Prosecuting Attorney, Youngstown, OH, for plaintiff-appellee.

Timothy Cunning, Scullin & Cunning, LLC, Boardman, OH, for defendant-appellant.

CAROL ANN ROBB, CHERYL L. WAITE, MARY DeGENARO, JJ.

OPINION

ROBB, J.

{¶ 1} Defendant–Appellant Dewaylyn Colvin appeals the judgment of the Mahoning County Common Pleas Court denying his motion to vacate his guilty plea and to declare his sentence void. Appellant states the trial court and the parties overlooked R.C. 2929.13(F)(6), which contains a mandatory sentence requirement for a first-degree felony where the defendant had a prior conviction of a first or second degree felony.

{¶ 2} Because the trial court did not specify the prison term imposed on count 16 was a mandatory sentence, Appellant believes his sentence is void and asks for resentencing on all offenses. However, application of the void sanctions doctrine is limited by the Ohio Supreme Court. Moreover, the void sanctions doctrine applies only to a facially illegal sentence, but it cannot be ascertained from solely the face of count 16 that the prison term was of mandatory nature. Consequently, Appellant's sentence is not void.

{¶ 3} Appellant also maintains he was erroneously advised that count 16 carried a nonmandatory sentence, resulting in a violation of Crim.R. 11(C)(2)(a), which requires the court to determine the defendant understands the maximum penalty and his ineligibility for community control. This claim is res judicata since it could have been raised in Appellant's prior plea withdrawal motion. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 4} In December 2011, an indictment was filed against Appellant and five other defendants. Appellant was charged with: second degree felony drug trafficking in counts 4 and 8; first degree felony drug trafficking in counts 9 and 10; third degree felony drug possession in count 11; having a weapon under disability in count 15; and engaging in a pattern of corrupt activity in count 16, a first degree felony. A plea agreement was entered on January 30, 2013. The state dismissed count 4 and amended counts 9 and 10 to second degree felonies. The defendant, who was represented by two retained attorneys, pled guilty to the indictment as amended.

{¶ 5} The portion of the written plea agreement explaining maximum penalties disclosed the three drug trafficking counts carried mandatory prison terms. For count 16 (engaging in a pattern of corrupt activity), the agreement disclosed prison was presumed necessary but not mandatory. For the other two offenses, it was explained prison was not presumed nor mandatory.

{¶ 6} The sentencing recommendations of each side were set forth in the written plea agreement. Both sides recommended a concurrent sentence on counts 8, 9, and 10 to run consecutive to a concurrent sentence on counts 11, 15, and 16. The state recommended a total sentence between 12 and 14 years, seeking 8 years on counts 8, 9, and 10 plus 4 to 6 years on count 16 (with 24 to 36 months concurrent on counts 11 and 15). The defense asked for 5 mandatory years on counts 8, 9, and 10 plus 4 non-mandatory years on count 16 for a total of 9 years (without specifically mentioning a request as to the sentence for counts 11 and 15, except that they run concurrent).

{¶ 7} At the plea hearing, the prosecution reviewed this information from the written plea and advised the court that counts 11, 15, and 16 involved non-mandatory prison time. The court then read the pertinent portion of the plea agreement in order to advise Appellant on the maximum penalties. The court said prison was presumed but not mandatory for count 16, which had a maximum sentence of 11 years, and prison was not presumed or mandatory for counts 11 and 15, which had thirty-six-month maximums. The court also advised: prison was mandatory on counts 8, 9, and 10; the maximum on those counts was eight times three; and if all sentences were run consecutive, Appellant could face 41 years in prison.

{¶ 8} At sentencing, the prosecution provided various examples of when Appellant would be eligible for judicial release depending on what mandatory prison term the court chose for counts 8, 9, and 10 and what non-mandatory prison term the court chose for count 16.¹ The prosecutor noted the defense asked him to place the examples on the record. In seeking a mandatory sentence of five years plus a non-mandatory sentence of four years, defense counsel spoke of the court's opportunity to consider judicial release after 5.5 years. In arguing for its longer recommendation, the state mentioned Appellant's prior conviction of involuntary manslaughter. This offense was also reflected in the pre-sentence investigation ordered by the court prior to sentencing.

{¶ 9} During imposition of sentence, the court mentioned its consideration of Appellant's eligibility for judicial release but did not describe any term as mandatory or non-mandatory. The court imposed a total sentence of 11 years, with 7 years on counts 8, 9, and 10 plus 4 years on count 16; the court also imposed 36 months on counts 11 and 15 to run concurrent. The court's April 11, 2013 sentencing entry does not describe any prison term as mandatory or non-mandatory. No direct appeal was filed from the conviction and sentence.

{¶ 10} On September 11, 2013, Appellant filed a pro se motion for judicial release. Appellant thereafter retained counsel (different than original trial counsel). In July 2014, the transcripts of the plea and sentencing hearings were filed in the trial court. On November 10, 2014, Appellant's counsel filed a motion to vacate the guilty plea under Crim.R. 32.1 and a separate motion to vacate the sentence.

{¶ 11} The plea withdrawal motion alleged: (1) Appellant was under the influence of prescription pain killers throughout the pendency of his case, including at the plea hearing; and (2) his attorney was ineffective by informing him he would receive 4 years if he pled guilty. The trial court overruled this motion on December 17, 2014, finding: there was no reasonable probability Appellant would not have pled guilty but for the alleged misrepresentation; Appellant understood the sentencing recommendation of both sides; he spoke at sentencing and specified he was not under the influence; and there was no manifest injustice.

{¶ 12} Appellant's separate motion to vacate his sentence argued consecutive sentences were not properly imposed. The trial court overruled this motion on February 26, 2015. Appellant filed notice of appeal on March 27, 2015, resulting in case number 15 MA 50. The docketing statement says both the December 17, 2014 judgment entry and the February 26, 2015 judgment entry were being appealed. On May 8, 2015, this court ruled the appeal would only proceed as to the February 26, 2015 entry. On July 23, this court warned the case would be dismissed if Appellant did not further prosecute the appeal within 30 days. On September 23, 2015, the appeal in 15 MA 50 was dismissed for failure to file a brief.

{¶ 13} In the meantime, Appellant retained new counsel who raised different issues in the trial court. On April 8, 2015, this attorney filed another motion to vacate the plea. He sought plea withdrawal due to the failure to advise Appellant that count 16 carried a mandatory prison term due to his prior first degree felony conviction. He urged the misadvisement that count 16 did not carry mandatory prison time violated Crim.R.11(C)(2)(a) and resulted in a plea that was not knowing and intelligent. The motion characterized the mistake as "understandable" in light of the "absurd and unnecessary complexity of the Ohio Revised Code's sentencing laws."

{¶ 14} This new motion also argued the sentence was void because the court was statutorily-required to impose a mandatory sentence on count 16. The state filed a memorandum in opposition, and the court heard arguments on the motion. On August 26, 2015, the trial court overruled Appellant's motion. Appellant filed this timely appeal.

MANDATORY SENTENCE UNDER R.C. 2929.13(F)(6)

{¶ 15} In general, a prison term is presumed for a first or second degree felony. R.C. 2929.13(D)(1). Still, the trial court can impose community control if it makes certain findings. R.C. 2929.13(D)(2). The court can only impose community control, however, if the offender is not required to serve a mandatory prison term. R.C. 2929.16(A). A mandatory prison term also affects the ability to seek judicial release. The court can only decrease the offender's non-mandatory prison term through a judicial release; it cannot decrease the mandatory prison term. R.C. 2929.20(A)(1)(a), (B). If there is a mandatory prison term, the motion for judicial release cannot be filed until after the mandatory term is served and a certain time period passes (depending on the length of the non-mandatory time). R.C. 2929.20(C).

{¶ 16} Count 16 contained the charge of engaging in a pattern of corrupt activity.

See R.C. 2923.32(A)(1). The offense was a first degree felony because at least one of the incidents of corrupt activity was a third degree felony or higher. See R.C. 2923.32(B)(1). A mandatory prison term was not required under the statute defining the offense. See id. (listing certain circumstances requiring a mandatory prison term). However, R.C. 2929.13(F) contains additional directives for imposing a mandatory prison term under various circumstances. See State v. Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, 880 N.E.2d 896, ¶ 9 (" R.C.2929.13(F) addresses mandatory prison terms and lists offenses for which a sentencing court is obligated to impose a prison term."). See also R.C. 2929.01(X)(1) (defining a mandatory prison term as one that must be imposed under ...