State v. Riddle

• Decision Date: 31 March 2017
• Docket Number: No. 2016–CA–6,2016–CA–6
• Citation: 2017 Ohio 1199,88 N.E.3d 475
• Parties: STATE of Ohio, Plaintiff–Appellee v. Robert C. RIDDLE, Defendant–Appellant
• Court: Ohio Court of Appeals

88 N.E.3d 475

2017 Ohio 1199

STATE of Ohio, Plaintiff–Appellee

v.Robert C. RIDDLE, Defendant–Appellant

No. 2016–CA–6

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

March 31, 2017

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami County Prosecutor's Office, 201 West Main Street, Troy, Ohio 45373, Attorney for Plaintiff–Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402, Attorney for Defendant–Appellant

OPINION

FROELICH, J.

{¶ 1} Robert C. Riddle pled guilty in the Miami County Court of Common Pleas to one count of aggravated robbery and one count of breaking and entering. The trial court sentenced him to concurrent sentences totaling ten years in prison.

{¶ 2} On appeal, Riddle claims that his guilty plea was not knowingly, intelligently, and voluntarily made, because the trial court failed to inform him at his plea hearing of all of the possible consequences of violating post-release control. Riddle also claims that his trial counsel rendered ineffective assistance by advising him to plead guilty to aggravated robbery. Because Riddle's trial counsel rendered ineffective assistance, the conviction for aggravated robbery will be reversed, and the matter will be remanded for further proceedings on that charge; Riddle's conviction for breaking and entering will be affirmed.

I. Facts and Procedural History

{¶ 3} On October 5, 2015, Riddle pled guilty as charged in a bill of information to one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree, and to one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of the fifth degree. Riddle was promised nothing by the State in exchange for his guilty plea.

{¶ 4} During the plea hearing, Riddle waived the reading of the bill of information on the record. The State, however, recited the facts on which Riddle's charges were based. As to the aggravated robbery charge, the State presented the following facts:

On August 29th, 2015, the Piqua Police Department was dispatched to the Walmart * * * in the City of Piqua and Miami County, Ohio, in reference to a robbery in progress. The victim in that case * * * was in the parking lot of the Walmart parking lot in her vehicle. The defendant approached her vehicle, held a gun to her throat and advised her that he was going to get in the car and she was going to drive him up the highway. The quote that she provided the police was "Get in the car and drive me up the highway. I have a gun bitch and I will kill you." She reported to the police feeling the pressure of the gun to her neck. That [defendant] did get the keys from her, but she managed to push the gun away and—and fought back and the defendant then dropped the keys and—and he ran off. That is the—the substance of the—the incident at Walmart for which the Aggravated Robbery charge is based. There were also two independent witnesses * * * who were in the parking lot of Walmart as well who witnessed the events and reported similar events to the police as well.

{¶ 5} The prosecutor described the Piqua Police Department's investigation of the matter, including how Riddle was tracked by a canine to Willowbrook Hunt Club¹ and ultimately located at his residence. The prosecutor further stated that Riddle "cooperated with [the police], spoke with the officers and did admit to the offenses described. That he had gone to Walmart, held a gun to a female. He did advise that the gun he used was not a real gun and that he had thrown it into a ditch. It was later recovered and found to be, in fact, a fake gun." (Emphasis added.)

{¶ 6} Following the State's recitation of facts, the trial court asked Riddle whether those were the facts to which he wished to enter a guilty plea. Riddle responded, "Yes, sir."

{¶ 7} Thereafter, the trial court advised Riddle of the maximum penalties for the charged offenses and that he would be subject to post-release control following his release from prison. The trial court also advised that post-release control would be mandatory for a period of five years on the aggravated robbery charge and discretionary for a period of three years on the breaking and entering charge. The court told Riddle that, if he violated post-release control, "the Adult Parole Authority can return you to prison in increments of nine months at a time, but not more than fifty percent or one-half of your original sentence." Riddle's plea form further stated that, if he committed another felony while on post-release control, he "may be subject to an additional prison term consisting of the maximum period of un-served time remaining on post-release control as set out above or 12 months, whichever is greater. This prison term must be served consecutively to any term imposed for the new felony I am convicted of committing."

{¶ 8} At the conclusion of the hearing, Riddle entered a plea of guilty to the aggravated robbery and breaking and entering counts, as charged in the bill of information. The trial court accepted Riddle's plea, finding it was knowingly, intelligently, and voluntarily entered. At a subsequent sentencing hearing, the trial court imposed a 10–year prison term for aggravated robbery and a concurrent 12–month prison term for breaking and entering.

{¶ 9} Riddle appeals from his conviction, raising two assignments of error for review.

II. Post–Release Control Notification During Plea Hearing

{¶ 10} Riddle's first assignment of error states:

MR. RIDDLE's PLEA WAS NOT MADE KNOWINGLY INTELLIGENTLY AND VOLUNTARILY.

{¶ 11} In his first assignment of error, Riddle contends that his guilty plea was not knowingly, intelligently, and voluntarily entered, because the trial court failed to inform him of the possible consequences of violating post-release control at the plea hearing. Riddle claims that, as a result, the trial court did not advise him of the maximum possible penalty as mandated by Crim.R. 11(C)(2)(a) and that his guilty plea should therefore be vacated. We disagree.

{¶ 12} " Crim.R. 11(C)(2)(a) provides that, before accepting a guilty plea, a court must ‘[d]etermin[e] that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.’ " State v. Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-119, 2013 WL 209184, ¶ 6. "The ‘maximum penalty’ includes any mandatory post-release control sanction[.]" Id. at ¶ 7. "Thus if the defendant will be subject to a period of post-release control, to comply with Crim.R. 11 the court must inform the defendant of post-release control." Id.

{¶ 13} "The Supreme Court of Ohio has urged trial courts to literally comply with Crim.R. 11." State v. Jennings, 2d Dist. Clark No. 2013 CA 60, 2014-Ohio-2307, 2014 WL 2475587, ¶ 6, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. "However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial court need only substantially comply with those requirements." Id., citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." (Citations omitted.) Nero at 108, 564 N.E.2d 474.

{¶ 14} "Furthermore, when non-constitutional rights are at issue, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made generally must show a prejudicial effect." Jennings at ¶ 7, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. "Prejudice in this context means that the plea would otherwise not have been entered." Id.

{¶ 15} Many Ohio appellate courts have reviewed issues concerning the completeness of a post-release control explanation (aside from the mandatory/discretionary and three/five year reversible errors) under a substantial compliance analysis. See, e.g., State v. Allen, 10th Dist. Franklin Nos. 11AP-640, 2012-Ohio-2986, 2012 WL 2523728, ¶ 23 ; State v. McDuffie, 8th Dist. Cuyahoga No. 96721, 2011-Ohio-6436, 2011 WL 6287985, ¶ 22, 24 ; State v. Reese, 9th Dist. Wayne Nos. 09CA0020, 2009-Ohio-6507, 2009 WL 4755449, ¶ 9 ; State v. Munyan, 5th Dist. Licking No. 08-CA-88, 2009-Ohio-2348, 2009 WL 1397241, ¶ 18–20.

{¶ 16} In Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-119, 2013 WL 209184, this court discussed whether the trial court had complied with Crim.R. 11 when it advised the defendant of the correct term of post-release control and notified the defendant that the prison term for violation of post-release control could be "up to one half of the Court's stated prison term," but failed to notify the defendant about the nine-month-per-violation limitation for a violation of post-release control in R.C. 2943.032.² We held that the trial court's notice substantially complied with Crim.R. 11. Id. at ¶ 8. We further concluded that the trial court's failure to mention the nine-month limitation did not render the defendant's plea other than knowing, intelligent, and voluntary. We reached this conclusion based on the following reasoning:

Jones does not assert, let alone demonstrate, that he was prejudiced—that he would not have pleaded guilty had the trial court told him that the maximum possible prison term for a single violation of a post-release control condition is 9 months. We fail to see how this defendant, facing a potential of many years of re-incarceration for post release control violations, would have failed to enter his pleas if he knew those many years could only be imposed in nine month increments.

Id. at ¶ 11.

{¶ 17} More recently, we held in State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-Ohio-3056, 2015 WL 4601060, that a plea is not rendered invalid based on the trial court's failure to fully explain the sanctions that could be imposed for a post-release control violation. Id. at ¶ 19. W...