State v. Peoples

• Court: Ohio Court of Appeals
• Writing for the Court: KLATT, J.
• Citation: State v. Peoples, 186 N.E.3d 859 (Ohio App. 2022)
• Decision Date: 24 March 2022
• Docket Number: 21AP-45, No. 21AP-46
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Brian Anthony C. PEOPLES, Defendant-Appellant.

186 N.E.3d 859

STATE of Ohio, Plaintiff-Appellee,

v.Brian Anthony C. PEOPLES, Defendant-Appellant.

No. 21AP-45

No. 21AP-46

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 24, 2022

On brief: G. Gary Tyack, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

On brief: Carpenter Lipps & Leland LLP, Kort Gatterdam and Erik P. Henry, Columbus, for appellant.

DECISION

KLATT, J.

{¶ 1} In these consolidated appeals,¹ defendant-appellant, Brian Anthony C. Peoples, appeals from judgments of the Franklin County Court of Common Pleas revoking his community control in Franklin C.P. No. 15CR-6418 ("15CR-6418") and imposing an 8-year prison sentence to be served consecutively to an 18-month prison sentence imposed in Franklin C.P. No. 20CR-1611 ("20CR-1611"). For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

{¶ 2} On December 30, 2015, plaintiff-appellee, state of Ohio, charged appellant in 15CR-6418 with two counts of felonious assault in violation of R.C. 2903.11, both second-degree felonies; each included a three-year firearm specification under R.C. 2941.145(A). Appellant pleaded not guilty to the charges.

{¶ 3} At a plea hearing held August 3, 2016, the prosecutor advised the trial court that appellant would withdraw his not guilty plea and enter a guilty plea to both counts in the indictment, with Count 1 carrying a lesser-included one-year firearm specification under R.C. 2941.141 and Count 2 carrying no firearm specification. Further, pursuant to the plea agreement, the parties jointly recommended a split sentence consisting of four years imprisonment on Count 1 (three years for felonious assault plus one year mandatory on the firearm specification), to be followed by a term of community control (to be determined by the court) on Count 2. In addition, the parties jointly recommended that if appellant violated the terms of his community control, he "shall be sent to [Ohio Department of Rehabilitation and Correction] for an additional eight years." (Aug. 3, 2016 Plea/Sentencing Proceedings Tr. at 3; Aug. 3, 2016 Entry of Guilty Plea at 1.)

{¶ 4} Thereafter, the prosecutor recited the following facts. On October 7, 2015, Patricia Laster and her granddaughter parked outside a store and exited their vehicle. Appellant was among a group of people in the area and exchanged gunfire with an unknown individual. Laster and her granddaughter were caught in the crossfire and sustained gunshot wounds to their legs. The granddaughter recognized appellant as a person with whom she went to school and subsequently identified him in a photo array. Defense counsel offered no additions or exceptions to these facts.

{¶ 5} The trial court then engaged appellant in a Crim.R. 11 colloquy, advised him of the details of the jointly recommended split sentence, and inquired as to his understanding of that sentence. Appellant averred that he understood the sentence and was satisfied with defense counsel's representation. The trial court obtained assurances from both appellant and his counsel that appellant was entering his pleas knowingly, voluntarily, and intelligently. Appellant then pleaded guilty in accordance with the plea agreement. The trial court accepted appellant's guilty pleas, imposed the jointly recommended split sentence, and entered a nolle prosequi as to the firearm specification in Count 2. The trial court commented that the split sentence was appropriate, as appellant "is suffering some significant consequences for his actions, but yet it certainly gives him an opportunity to move forward with his life, given the young man that he is." (Aug. 3, 2016 Tr. at 17.) The court memorialized appellant's conviction and sentence in a judgment entry filed August 10, 2016. Appellant did not appeal.

{¶ 6} On February 14, 2020—after appellant had served his four-year prison term on Count 1 and was on community control on Count 2—the trial court² declared appellant an absconder from community control and issued a capias for his arrest. On March 30, 2020, appellant was arrested on the community control violation and new charges.

{¶ 7} On April 7, 2020, appellant was indicted in 20CR-1611 on two counts of having weapons while under disability in violation of R.C. 2923.13 ("WUD"), both third-degree felonies. Count 1 included a 54-month firearm specification under R.C. 2941.145(D), and Count 2 included an 18-month firearm specification under R.C. 2941.141(D). Appellant pled not guilty to the charges.

{¶ 8} On May 6, 2020, appellant's probation officer in 15CR-6418 sought revocation of appellant's community control based on the following violations: (1) failure to report to the probation department following release from prison; (2) indictment on two counts of WUD in 20CR-1611; and (3) a misdemeanor conviction in a separate case.

{¶ 9} At a plea hearing held in 20CR-1611 on November 9, 2020, the prosecutor advised the trial court that appellant would withdraw his not guilty pleas and enter a guilty plea to Count 1 with no firearm specification. As part of the plea agreement, the parties jointly recommended a prison term of 18 months. The parties also agreed to "argue out the sentence" for the community control violation in 15CR-6418. (Nov. 9, 2020 Plea/Bond Hearing at 3.) After ascertaining appellant's understanding of the joint sentencing recommendation, the trial court engaged in a Crim.R. 11 colloquy with appellant and obtained assurances from appellant and his counsel that appellant's guilty plea was being entered in a knowing, voluntary, and intelligent manner.

{¶ 10} The prosecutor then offered the following facts. Appellant was under weapons disability pursuant to his convictions in 15CR-6418. On March 30, 2020, police officers responding to a robbery call patted down appellant and found a gun on his person; another gun was found inside the house. Appellant told the officers that his DNA would probably be on both guns because he had handled them. Defense counsel offered no additions or exceptions to these facts.

{¶ 11} Appellant entered a guilty plea in accordance with the plea agreement. The trial court accepted appellant's guilty plea, imposed the jointly recommended 18-month sentence, and entered a nolle prosequi on the firearm specification in Count 1 and the WUD charge and firearm specification in Count 2. The trial court ordered a presentence investigation ("PSI") report and set sentencing for December 3, 2020.

{¶ 12} The sentencing hearing was continued until February 3, 2021, at which time the trial court addressed both 20CR-1611 and the revocation of community control in 15CR-6418. At the outset, the trial court related what had occurred in the 15CR-6418 case. To that end, the trial court averred that original defense counsel had argued that the split sentence recommended by the parties and imposed by the trial court was illegal pursuant to the Supreme Court of Ohio's decision in State v. Hitchcock , 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, which held that "unless otherwise authorized by statute, a trial court may not impose community-control sanctions on one felony count to be served consecutively to a prison term imposed on another felony count." Id. at ¶ 1. The trial court, original defense counsel, and the prosecutor subsequently exchanged informal emails regarding the issue.³ According to the trial court, the emails indicated that the eight-year prison term on Count 2 in 15CR-6418 was "still in play" and that the salient issue was whether appellant's community control could be revoked or whether appellant would have to be resentenced. (Feb. 3, 2021 Tr. at 5.) The trial court further noted that the matter had been continued to allow appellant's new counsel to review the facts of the case and the pertinent law.

{¶ 13} Following the trial court's averments regarding the history of 15CR-6418, the prosecutor acknowledged original defense counsel's citation to Hitchcock. However, the prosecutor argued that the Supreme Court's subsequent decision in State v. Harper , 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248 "changed the case law regarding * * * void or voidable sentence[s]," thus permitting the trial court to either revoke appellant's community control on Count 2 and impose the eight-year sentence or resentence him on Count 2. (Feb. 3, 2021 Tr. at 7). Defense counsel agreed with the prosecutor but argued that the trial court should consider the fact that the original trial judge had concluded that a prison term was unnecessary on Count 2; thus, the sentence imposed on Count 2 in 15CR-6418 should either be concurrent to any sentence imposed in 20CR-1611 or "set to be no time at all." Id. at 9.

{¶ 14} Thereafter, the trial court asked defense counsel to opine as to whether the court should treat Count 2 as a revocation or as "a whole new resentencing on the count." Id. Defense counsel responded, "I think it can be either/or, in my opinion. That's probably the safest way to do it." Id. at 10. The prosecutor contended that treating the matter as a revocation would be "cleaner; because then we don't have to go back, resentence on Count 1, even though it would have been time served, and then go from here." Id. Defense counsel then stipulated to the community control violation. Based upon that stipulation, the trial court found appellant in violation of his community control.

{¶ 15} Thereafter, the prosecutor, responding to defense counsel's assertion that the original trial judge concluded that prison was unnecessary on Count 2, related the background leading to the imposition of the split sentence in 15CR-6418. To that end, the prosecutor averred that after discussions with both counsel, the original judge proposed the split sentence as an alternative to imposing a sentence of over five years, which, at the time, would have barred appellant from eligibility for judicial release. The original trial judge reasoned that a four-year prison term followed...