State v. Gipson, OT-21-001

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMAYLE, J.
Citation2022 Ohio 2069
Docket NumberOT-21-002,OT-21-001,OT-21-003
Decision Date17 June 2022
PartiesState of Ohio Appellee v. Jody Gipson Appellant

2022-Ohio-2069

State of Ohio Appellee
v.

Jody Gipson Appellant

Nos. OT-21-001, OT-21-002, OT-21-003

Court of Appeals of Ohio, Sixth District, Ottawa

June 17, 2022


Trial Court Nos. 20CR170, 20CR074, 19CR126

James J. VanEerten, Ottawa County Prosecuting Attorney, and Blake W. Skilliter, Assistant Prosecuting Attorney, for appellee.

Anthony J. Richardson, II, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

I. Introduction

{¶ 1} In these consolidated appeals, the defendant-appellant, Jody Gipson, challenges three October 30, 2020 judgments by the Ottawa County Court of Common

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Pleas. Gipson pled guilty to multiple drug-related offenses, and the trial court sentenced him to an indefinite prison term of 14 to 18 years and $22, 500 in fines. Gipson challenges his sentence in multiple respects and claims that his guilty pleas were involuntary, necessitating a remand and trial. As set forth below, we affirm the trial court's judgment.

II. Background

{¶ 2} On June 27, 2019, Gipson was indicted on five drug-related offenses: two counts of aggravated possession of methamphetamine, trafficking in methamphetamine, possession of criminal tools, and money laundering. (Ottawa County Court of Common Pleas case No. 19CR126). At the change-of-plea hearing, Gipson pled guilty to a single count of aggravated possession of methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(c), a felony of the second degree (Count 1). The offense was subject to the provisions of the Reagan Tokes Law, which sets forth an indefinite sentencing scheme for certain qualifying first and second-degree felonies committed on or after March 22, 2019. Thus, Gipson was advised that his maximum sentence included an indefinite prison term of eight to 12 years, of which between two to eight years was mandatory and a maximum possible fine of $15, 000, of which $7, 500 was mandatory. In exchange for his guilty plea, the state agreed not to prosecute the remaining offenses. The trial court accepted the plea, found Gipson guilty and set the matter for sentencing.

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{¶ 3} While awaiting sentencing, Gipson was indicted on new charges of aggravated trafficking (Counts 1-3) and aggravated possession (Count 4) of methamphetamine. (Ottawa Co. C.C.P. case No. 20CR074). From his jail cell, Gipson was alleged to have contacted his young son, in violation of a protective order, and was indicted a third time. (Ottawa Co. C.C.P. case No. 20CR170).

{¶ 4} A change-of-plea hearing was held with regard to the new indictments. In case No. 20CR74, Gipson agreed to plead guilty to two counts of aggravated trafficking in methamphetamine, in violation of R.C. 2925.03(A)(1) and (C)(1)(b), both felonies of the third degree (Count 1 and Count 2, as amended) and aggravated possession of methamphetamine, in violation of R.C. 2925.11(A) and (C)(1)(b), a felony of the third degree (Count 4, as amended). Gipson was advised that his maximum sentence, as to each count, was a basic prison term of 36 months, of which none was mandatory and a maximum fine of $10, 000, of which $5, 000 was mandatory. Gipson was also told that he could be ordered to serve the sentences consecutively to each other and consecutively to the sentence imposed in the other felony drug case.

{¶ 5} In case No. 20CR170, Gipson agreed to plead guilty to violating a protective order, in violation of R.C. 2919.27(A)(2) and (B)(2), a misdemeanor of the first degree. Gipson was advised that the maximum sentence included a basic jail term of 180 days and a $1, 000 fine, neither of which was mandatory.

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{¶ 6} The trial court accepted Gipson's plea in both cases, entered findings of guilt and ordered the preparation of a presentence investigation ("PSI").

{¶ 7} Sentencing was held with respect to all three cases on October 29, 2020. After hearing from the parties and the mother of the Gipson's young son, the trial court sentenced Gipson to an indefinite prison term of eight to 12 years in case No. 19CR126 and 24 months as to Count 1, 2, and 4 in case No. 20CR074, all terms to be served consecutively to one another, for a total period of incarceration of 14 to 18 years. Additionally, the trial court ordered Gipson to pay the mandatory fine of $7, 500 and to forfeit $3, 839.07 in case No. 19CR126. It ordered him to pay the mandatory fine of $5, 000 in Counts 1, 2, and 4 and to forfeit $505 and his vehicle in case No. 20CR074. In the misdemeanor case, the court ordered Gipson to serve 180 days, concurrent to the felony sentences, and to pay $1, 000 in fines (case No. 20CR170).

{¶ 8} Gipson appealed the judgments and raises the following assignments of error:

FIRST ASSIGNED ERROR: The trial court committed error by sentencing appellant to consecutive terms where the sentences are disproportionate to the seriousness of appellant's conduct
SECOND ASSIGNED ERROR: The trial court committed error by not properly informing defendant about judicial release when he entered his plea.
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THIRD ASSIGNED ERROR: The trial court committed error by imposing fines on appellant without making the necessary findings.
FOURTH ASSIGNED ERROR: The trial court committed error by failing to properly apply the plain meaning and legislative intent of applicable statutes when sentencing appellant.

{¶ 9} For ease of discussion, we address Gipson's assignments of error out of order.

III. Judicial Release

{¶ 10} In his second assignment of error, Gipson argues that his guilty plea in case No. 19CR126 was involuntary because the trial court "misadvised" him regarding his eligibility for judicial release. Gipson seeks an order of remand to allow him to withdraw his guilty "pleas."

{¶ 11} A plea of guilty or no contest in a criminal case "must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11(C)(2) provides that "felony defendants are entitled to be informed of various constitutional and nonconstitutional rights, prior to entering a plea." State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 6. "When a defendant seeks to have a plea vacated on appeal because the plea was not entered in a knowing, intelligent and

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voluntary manner due to the trial court's failure to comply with Crim.R. 11, '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 [an appellant] from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the [appellant] met that burden?'" State v. Morgan, 6th Dist. Lucas Nos. L-20-1156, L-21-1017, L-21-1018, 2021-Ohio-3996, ¶ 15, quoting State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 17.

{¶ 12} As Gipson acknowledges, Crim.R. 11 "does not require courts to inform a defendant of his eligibility for judicial release." State v. McGill, 8th Dist. Cuyahoga No. 108469, 2020-Ohio-575, ¶ 17; see also State v. Oliver, 6th Dist. Sandusky No. S-10-040, 2011-Ohio-5305, ¶ 18 ("Under Crim.R. 11(C)(2), a trial court is not required to advise a defendant regarding eligibility for judicial release."); State v. Kinney, 1st Dist. Hamilton No. C-160415, 2018-Ohio-404, ¶ 22 ("[T]he trial court is under no obligation to inform a defendant regarding his eligibility for judicial release."). Therefore, the failure to include such information in the court's colloquy does not violate a defendant's Crim.R. 11 rights. However, if a defendant who pleads guilty is misled as to whether he would be eligible for judicial release or when he becomes eligible to apply for judicial release, the guilty plea may be invalidated if the defendant can show that he prejudiced by the misstatement. Kinney at ¶ 25. The test for prejudice is "whether the plea would have otherwise been made." Dangler at ¶ 16.

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{¶ 13} A trial court may grant judicial release and modify a sentence only as provided for by statute. State v. Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 23, citing R.C. 2929.20. When a defendant's entire sentence is mandatory, he is ineligible for judicial release. State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11. However, when a defendant is sentenced to mandatory prison term(s) and non-mandatory term(s), judicial release is not foreclosed. Thus, a prisoner "cannot apply for judicial release until a period of time 'after the expiration of all mandatory prison terms' in the stated prison sentence." Id., quoting R.C. 2929.20(C).

{¶ 14} At the change-of-plea hearing involving the first indictment, Gipson entered a guilty plea with respect to a single offense, i.e. aggravated possession of drugs. Gipson was advised that he faced a maximum basic prison term of eight to twelve years, of which between two to eight years was mandatory (case No 19CR126; hereinafter referred to as "the first case"). The trial court advised Gipson that "[y]ou are, however, or would be eligible for Judicial Release. Now when you became eligible for Judicial Release would depend on your initial sentence."

{¶ 15} On appeal, Gipson makes no mention of the court's misstatement. However, the state "concedes that the Court misspoke when it stated [that] Gipson would be[come] eligible" at some point during his mandatory sentence.

{¶ 16} In support of his claim-that his plea in the first case was involuntary- Gipson cites the September 15, 2020 change-of-plea hearing, which concerned the

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second and third cases (case Nos. 20CR74 and 20CR170). Gipson complains that the trial court "confused" him because it indicated that he "could be eligible for judicial release, when in fact he would have to...

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