State v. Wright
| Decision Date | 25 September 2015 |
| Docket Number | Appellate Case No. 26471 |
| Citation | 2015 Ohio 3919 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JAMES E. WRIGHT Defendant-Appellant |
(Criminal Appeal from Common Pleas Court)
OPINIONMATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ENRIQUE RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 North Dixie Drive, Suite B, Vandalia, Ohio 45377 Attorney for Defendant-Appellant
{¶ 1} In this case, Defendant-Appellant, James Wright, appeals from his conviction for Petty Theft, and from the revocation of his community control in two prior criminal cases. Wright contends that the trial court erred by accepting a guilty plea to Petty Theft that was not knowingly, intelligently, or voluntarily given. Wright also contends that the trial court erred by failing to conduct a revocation hearing that was consistent with due process. Finally, Wright contends that the trial court erred in calculating his jail time credit and in reflecting the proper nature of his plea in the termination entry in one of the criminal cases.
{¶ 2} We conclude that the trial court did not err in accepting Wright's guilty plea, or in revoking Wright's community control based on Wright's violation of community control sanctions. However, the trial court did err by stating in the termination entry in Case No. 2011-CR-1514 that Wright had entered a guilty plea, when Wright pled no contest to the charge in that case. Accordingly, the judgment of the trial court will be affirmed, but the case will be remanded so the trial court can correct its clerical error in Case No. 2011-CR-1514.
{¶ 3} This case involves three criminal proceedings initiated against Wright. In September 2011, Wright was sentenced to community control in Montgomery County Common Pleas Court Case No. 2011-CR-1514, after pleading no contest to Domestic Violence, a fourth-degree felony. Various conditions were imposed, including 180 days detention in the Montgomery County Jail, attendance at job corps, no contact with thevictim, and so forth. Wright was on a "no breaks" status, and was told that if he violated any condition of community control or the law, other sanctions could be imposed, including a prison term of 18 months.
{¶ 4} Wright was released from jail on November 21, 2011, after receiving jail credit for time previously served. He was continued on community control, and on May 10, 2012, his supervision was modified from intensive to basic, based on positive strides. Subsequently, on March 28, 2013, Wright was arrested for a first-degree misdemeanor Theft. Wright's probation officer filed an offender arrest notice with the court on April 12, 2013, informing the court of the arrest, but recommending that no action be taken at that time.
{¶ 5} On May 13, 2013, the court filed an order suspending Wright's probationary period for community control and issuing an arrest warrant, based on representations that Wright's whereabouts had been unknown since April 19, 2013. Wright was then arrested on May 16, 2013, and a notice of preliminary hearing on supervision violations was filed on May 22, 2013. Among the alleged violations were that Wright had two theft charges pending in Dayton Municipal Court; that he had been declared an absconder on May 13, 2013; and that he had been terminated from the Stop the Violence Program on May 10, 2013.
{¶ 6} On June 5, 2013, Wright was reinstated to active community control, subject to the same conditions previously ordered. Wright was subsequently indicted on August 7, 2013, in Montgomery County Common Pleas Court Case 2013-CR-1346, on one count of Theft and one count of Breaking and Entering, both fifth-degree felonies. On August 26, 2013, a notice of revocation hearing and order was filed in the 2011 criminal case,giving Wright notice of matters that constituted violations of community control, including the indictment in the 2013 felony case and his unsuccessful termination from the Volunteers of America Program on August 21, 2013. After continuances, a revocation hearing was set for October 8, 2013.
{¶ 7} On September 17, 2013, Wright pled guilty to one count of Theft in the 2013 case, and the Breaking and Entering charge was dismissed. Sentencing was set for October 8, 2013. On that date, Wright was sentenced to community control sanctions, including intensive probation supervision for up to five years; a drug and alcohol assessment; and completion of treatment at Eastway. Wright was also placed on "no breaks" status, and was told that if he violated any community control sanction or law, the court could impose additional sanctions, including a prison term of 12 months, to run concurrent with the prison term in the 2011 criminal case. In the 2011 criminal case, Wright was continued on his community control sanctions, subject to the previous sanctions that had been imposed.
{¶ 8} Subsequently, on May 27, 2014, an order of arrest was filed in the 2011 and 2013 cases, indicating that Wright had violated the terms of his probation by failing to report to the adult probation department, and further stating that Wright's whereabouts were unknown. On July 2, 2014, the court found that Wright was an absconder and ordered his arrest. Wright was then arrested in late July 2014. After a notice of revocation hearing and order was filed in both cases on August 7, 2014, Wright was ordered to appear on August 12, 2014.
{¶ 9} The notices contained allegations about seven violations of rules, including that Wright had been arrested on May 19, 2014 on a Theft complaint and had failed toreport it to the probation office. He had also failed to appear on May 20, 2014, in Dayton Municipal Court on an Attempted Petty Theft charge, and a bench warrant was issued for his arrest. In addition, the notices alleged that Wright had failed to report to the probation office as required; had failed to report changes of address and was an absconder; had stopped showing up at work and had given no notice; had admitted to relapsing with crack cocaine, despite treatment; had failed to comply with treatment; and had stolen checks and stolen property in his possession. Ultimately, hearings on the revocation proceedings were set for October 28, 2014.
{¶ 10} On October 27, 2014, a bill of information was filed in Montgomery County Common Pleas Court Case 2014-CR-3193, alleging that Wright had committed Petty Theft on May 19, 2014. On October 28, 2014, Wright waived indictment for the petty theft charge, consented that the charge be presented by a bill of information, and waived his right to three-day service of the bill of information. Wright also pled guilty to the Petty Theft charge on October 28, 2014.
{¶ 11} The revocation proceedings and plea were all heard by the same judge on October 28, 2014. At the hearing, the trial court advised Wright of his constitutional rights concerning the Petty Theft plea, accepted the plea, and found Wright guilty. The court then sentenced Wright to six months on the Petty Theft charge, and found that the sentence merged into the sentence on the two prior cases. In addition, the court revoked community control and sentenced Wright to 12 months in prison on the 2011 and 2013 convictions, with the sentences to be served concurrently for a total of 12 months in prison. The court also stated that Wright would be awarded 313 days of jail time credit. Wright now appeals from his Petty Theft conviction and the revocation of his communitycontrol.
{¶ 12} Wright's First Assignment of Error states that:
The Trial Court Committed Prejudicial Error by Accepting a Plea of Guilty that Was Not Knowingly and Freely Given in Violation of Rule 11(E) of the Ohio Rules of Criminal Procedure.
{¶ 13} Under this assignment of error, Wright contends that his guilty plea to the charge of Petty Theft in Case No. 2014-CR-3193 was not knowingly and freely given because he was not informed of the fact that his plea might result in revocation of community control. Wright acknowledges that a trial court generally does not have a duty to inform a defendant of how his guilty pleas may affect other criminal matters. However, Wright contends that the circumstances of the present case indicate that he was unaware that his plea would lead to a revocation minutes later. In this regard, Wright points to the fact that he asked for more time before sentencing, and stated that he was not ready at that point to plead guilty to the probation violation.
{¶ 14} We conclude that Wright's appeal concerning his misdemeanor conviction is moot because Wright failed to request a stay of the sentence, and he has completed his sentence. Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17-23. Specifically, the misdemeanor sentence of 180 days was merged into the sentences for the earlier convictions, which were only one year in length. Wright was credited with 313 days of jail credit, which means that he would have been released from imprisonment, at the latest, less than two months after being sent to prison in late October2014. The State has also asserted that Wright is not on probation or post-release control, and Wright has not challenged this assertion.
{¶ 15} However, even if the plea issue were not moot, we would reject Wright's argument. Wright correctly notes that Petty Theft is considered a petty offense under Crim.R. 2(D), and the trial court, therefore, only had to comply with Crim.R. 11(E). This rule states that:
In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas...
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