State v. Parker , 2018 Ohio 579 ( 2018 )

[Cite as State v. Parker, 2018-Ohio-579.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105361
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAMADII PARKER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-06-479730-A and CR-06-481212-A
BEFORE: McCormack, P.J., Boyle, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: February 15, 2018
ATTORNEY FOR APPELLANT
Christopher M. Kelley
55 Public Square, Ste. 2100
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Janna R. Steinruck
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant Ramadii Parker appeals the imposition of consecutive
sentences under R.C. 2921.331(D). For the reasons that follow, we reverse and remand
for resentencing.
Procedural and Substantive History
{¶2} This case is a consolidated appeal involving two separate criminal cases:
Cuyahoga C.P. Nos. CR-06-479730-A and CR-06-481212-A.
{¶3} Case No. CR-06-479730-A stems from an incident that occurred on
January 30, 2006. Police observed a hand-to-hand transaction between an unidentified
man standing on a street corner and Parker, who was seated inside a truck. When
officers, on foot and in a police vehicle, approached the men, Parker drove towards the
officers at a high rate of speed in an attempt to flee the scene. Officers in a police
vehicle began an unsuccessful pursuit of Parker that was ultimately terminated at East
125th and Carlyon.
{¶4} On April 18, 2006, a grand jury indicted Parker with a two-count indictment
in CR-06-479730-A: Count 1, failure to comply with order or signal of police, in
violation of R.C. 2921.331 with a furthermore clause, a felony of the third degree; and
Count 2, felonious assault, in violation of R.C. 2903.11(A)(1) with a furthermore clause,
a felony of the second degree.
{¶5} On May 8, 2006, Parker entered a plea of not guilty on both counts.
{¶6} Case No. CR-06-481212-A stems from an incident that occurred on May
16, 2006. Cleveland police stopped Parker for not having a rear-view mirror. Upon a
search of his vehicle, police discovered 38 grams of cocaine and arrested Parker.
{¶7} On May 26, 2006, a grand jury indicted Parker with a three-count
indictment in CR-06-481212-A: Count 1, possession of drugs, in violation of
R.C. 2925.11, a felony of the third degree; Count 2, drug trafficking, in violation of
R.C. 2925.03, a felony of the first degree; and Count 3, possessing criminal tools, in
violation of R.C. 2923.24, a felony of the fifth degree.
{¶8} On June 12, 2006, Parker entered a plea of not guilty to all three counts in
the indictment.
{¶9} Parker’s trial in CR-06-479730-A was set for June 26, 2006. Trial was
reset by the court once and continued at Parker’s request once. On August 3, 2006,
Parker appeared in court and waived his right to a speedy trial. At the state’s request,
trial was continued to August 16, 2006. Parker failed to appear for trial on August 16,
and a capias was issued.
{¶10} Parker was arrested on September 7, 2016.
{¶11} On November 3, 2016, Parker appeared with counsel before the trial court
and entered a change of plea in both cases.
{¶12} In CR-06-479730-A, Parker withdrew his not guilty plea and entered a
guilty plea to: Count 1, failure to comply with order or signal of police, in violation of
R.C. 2921.331; and an amended Count 2, attempted felonious assault, in violation of R.C.
2903.02/2903.11(A)(1), a felony of the third degree.
{¶13} In CR-06-481212-A, Parker withdrew his not guilty plea and entered a plea
of guilty to an amended Count 2, drug trafficking, in violation of R.C. 2925.03(A)(2), a
felony of the second degree, with forfeiture specifications pursuant to R.C. 2941.1417(A).
{¶14} After engaging Parker in a plea colloquy, the trial court accepted his guilty
pleas.
{¶15} On November 30, 2016, the trial court held a sentencing hearing and heard
from Parker, Parker’s counsel, and the prosecutor. At sentencing, the court initially
stated it was sentencing Parker to a mandatory two-year prison term and a mandatory fine
of $7,500 in CR-06-481212-A for drug trafficking. It then stated that the state satisfied
the requirements of R.C. 2921.331(B), that the defendant’s conduct in his failure to
comply was more serious than conduct normally constituting that offense, and that it was
sentencing Parker to one year for failure to comply, along with a life suspension of his
driver’s license. The license suspension was statutorily mandated in R.C. 2921.331(E)
because this was Parker’s second conviction for failure to comply. Finally, the trial
court stated that it was sentencing Parker to nine months in prison for amended Count 2,
attempted felonious assault, to run consecutive to the one year for failure to comply.
{¶16} The trial court explained this consecutive sentence by pointing to the
requirements of R.C. 2921.331(D). The total sentence based on the foregoing was 21
months. The trial court stated that it was electing to have the sentences for
CR-06-479730-A and CR-06-481212-A run concurrently, telling Parker, “this is your
break that I’m giving you.”
{¶17} After announcing this sentence, the trial court asked if there were any
objections to the sentence, specifically with respect to running the sentences from each
case concurrently.
{¶18} The state responded that the plain language of R.C. 2921.331(D) requires
any prison sentence for failure to comply be served consecutively to any other prison term
or mandatory prison term imposed. Therefore, according to the state, Parker would be
required to serve the sentences for each case consecutively.
{¶19} Parker’s counsel responded that R.C. 2921.331(D) was silent as to whether a
prison term for failure to comply must be served consecutive to a prison term in a
separate case. Therefore, according to Parker’s trial counsel, the trial court had the
statutory authority and discretion to run the two-year mandatory sentence in
CR-06-481212-A concurrent with his nine-month sentence for attempted felonious
assault in CR-06-479730-A, provided that his one-year sentence for failure to comply was
ordered to be served consecutively.
{¶20} Ultimately, the trial court was persuaded by the state’s interpretation of R.C.
2921.331(D) and, in “an abundance of caution,” ordered that Parker’s sentence on all
three charges be served consecutively, for a total prison term of 45 months.
{¶21} On January 11, 2017, Parker appealed his sentence.
Law and Analysis
{¶22} Parker brings two assignments of error before this court. First, Parker
argues that the trial court erred by failing to make the requisite findings under R.C.
2929.14(C)(4) for the imposition of consecutive sentences. Second, in the alternative,
Parker argues that his change of plea was not made knowingly and intelligently because
the trial court failed to substantially comply with Crim.R. 11(C)(2) by not informing
Parker of the maximum possible sentence he faced.
{¶23} Parker’s first assignment of error is premised on his assertion that the trial
court misinterpreted R.C. 2921.331(D) when it found itself obligated to impose
consecutive sentences for all three of Parker’s charges.
{¶24} Questions of statutory interpretation are questions of law, which are
reviewed de novo. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926,
928 N.E.2d 448, ¶ 6. In construing a statute, the primary goal “is to ascertain and give
effect to the intent of the legislature as expressed in the statute.” Hudson v.
Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 30.
{¶25} “The first rule of statutory construction is to look at the statute’s language to
determine its meaning. If the statute conveys a clear, unequivocal, and definite meaning,
interpretation comes to an end, and the statute must be applied according to its terms.”
Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d
400, ¶ 19, citing Lancaster Colony Corp. v. Limbach, 37 Ohio St.3d 198, 199, 524 N.E.2d
1389 (1988).
{¶26} The competing interpretations of R.C. 2921.331(D) before us in this case
differ as to whether the statute requires that the sentence for each of defendant’s counts
be served consecutive to one another when one count is failure to comply. At Parker’s
sentencing hearing and in its brief, the state effectively argued that whenever a defendant
is convicted of failure to comply, each sentence for all of that defendant’s counts must be
served consecutive to one another. Parker argues that the presence of a count of failure
to comply does not create a statutory mandate that all other sentences be served
consecutively to each other.
{¶27} R.C. 2921.331(D) provides:
If an offender is sentenced pursuant to division (C)(4) or (5) of this section
for a violation of division (B) of this section, and if the offender is
sentenced to a prison term for that violation, the offender shall serve the
prison term consecutively to any other prison term or mandatory prison term
imposed upon the offender.
{¶28} The requirements of R.C. 2921.331(D) were triggered in this case because
the trial court found that, pursuant to the factors listed in R.C. 2921.331(C)(5)(b),
Parker’s conduct was more serious than conduct normally constituting the offense of
failure to comply.
{¶29} It is undisputed that the plain language of R.C. 2921.331(D) means that the
trial court was statutorily required to impose a consecutive sentence for Parker’s failure to
comply offense. Put another way, Parker’s sentence for failure to comply cannot be
served concurrently to any other sentence.
{¶30} It is also undisputed that this requirement applies where a defendant is being
sentenced in two or more separate cases. State v. Spicer, 8th Dist. Cuyahoga Nos. 92384
and 92385, 2010-Ohio-61, ¶ 19. (“Although the statute does not specifically state
whether it was meant to apply to instances where a defendant is being sentenced on two
or more separate cases, we find that, pursuant to R.C. 2921.331(D), a term of
imprisonment for failure to comply must run consecutive to that of any other term of
imprisonment, no matter if the sentence is being imposed in the same or different case.”)
{¶31} Further, the requirement that a failure to comply sentence be consecutive
applies even if the defendant’s other offenses occurred in a different county and predate
the charge of failure to comply. State v. Perry, 8th Dist. Cuyahoga No. 101667,
2015-Ohio-1542, ¶ 11, citing State v. Jeffery, 5th Dist. Richland No. 10 CA 120,
2011-Ohio-2654, ¶ 48.
{¶32} Despite the foregoing implications of the R.C. 2921.331(D) mandate, none
of the case law cited by the state supports its interpretation of the statute as applied to
Parker’s case. In fact, Perry and other cases tend to support Parker’s interpretation of
the mandate.
{¶33} In Perry, the defendant pleaded guilty to one count of failure to comply and
one count of drug trafficking. The trial court imposed a prison term for failure to
comply and ordered it to be served consecutive to other Cuyahoga County cases and
consecutive to a Lake County prison term the defendant was already serving. Perry at ¶
11. The trial court did not require that each of the defendant’s other sentences be served
consecutively to each other; it only required that the failure to comply sentence be served
consecutively to his other sentences, two of which were to be served concurrently.
Perry at ¶ 4. This sentence was affirmed on appeal.
{¶34} Similarly, in Jeffery, the state successfully appealed the trial court’s decision
to sentence Jeffery to one year in prison for failure to comply, to be served concurrently
with previous sentences from two other counties. Jeffery, 5th Dist. Richland No. 10 CA
120, 2011-Ohio-2654, at ¶ 48. The Fifth District in that case did not, however, find that
Jeffery’s previous sentences needed to be served consecutively.
{¶35} The Twelfth District has also adopted Parker’s interpretation of the statute.
State v. Stegall, 12th Dist. Butler No. CA2015-01-012, 2015-Ohio-3934. In Stegall, the
defendant was convicted of the following: one count of aggravated robbery and a
corresponding firearm specification (Count 9), a second count of aggravated robbery
(Count 12), one count of receiving stolen property (Count 14), and one count of failure to
comply (Count 15). Id. at ¶ 3. The defendant was sentenced to ten years for Count 9,
ten years for Count 12, and 18 months for Count 14, to be served concurrently; three
years for the gun specification, to be served consecutively; and two years for failure to
comply, to be served consecutively. Id. at ¶ 12.
{¶36} Perhaps even more relevant to the instant case is a case in which the
defendant pleaded guilty in one case to charges of possession and trafficking of cocaine
and pleaded guilty in a second case to charges of involuntary manslaughter, failure to
comply, and aggravated vehicular assault. State v. Banks, 8th Dist. Cuyahoga Nos.
81679 and 81680, 2003-Ohio-1530. The trial court in that case sentenced Banks in the
first case to one year for possession and one year for trafficking, to be served
consecutively. Id. at ¶ 6. In the second case, the court sentenced him to ten years for
involuntary manslaughter, two years for failure to comply, and one year for aggravated
vehicular assault, to be served consecutively. Id. The sentences in each case were
ordered to be served consecutively to each other, for a total sentence of 15 years. Id.
When Banks appealed his sentence, this court found that the trial court did not err in
imposing consecutive sentences for his convictions for failure to comply and involuntary
manslaughter because of the R.C. 2921.331(D) mandate. Id. at ¶ 19. In analyzing the
consecutive sentences imposed for all of Banks’s other convictions, though, this court
found that the trial court failed to provide any reasons for the other consecutive sentences.
Id.
{¶37} After engaging both attorneys in a conversation about the statute, the trial
court in this case incorrectly held that it was obligated to impose consecutive sentences
for all three of Parker’s charges:
DEFENSE COUNSEL: Your Honor, could we just do the failure to
comply so that one year — and then run the nine months concurrent with
the other case?
THE COURT: Well, see, I don’t think I can do that. I think whenever the
failure to comply is there, it runs consecutive to any other charge, and I just
don’t — I don’t think I can do that * * *.
(Tr. 56.)
{¶38} Such a sentence, in which Parker’s sentences for drug trafficking and
attempted felonious assault were concurrent to each other and consecutive to the sentence
for failure to comply, would have been appropriate under R.C. 2921.331(D).
{¶39} Because we agree with Parker’s interpretation of R.C. 2921.331(D), we
must also agree with his argument that the trial court failed to make the requisite findings
under R.C. 2929.14(C)(4) to impose consecutive sentences.
{¶40} Under R.C. 2953.08, an appellate court may overturn the imposition of
consecutive sentences where “upon its review, [it] clearly and convincingly finds that ‘the
record does not support the sentencing court’s findings’ under R.C. 2929.14(C)(4), or the
sentence is ‘otherwise contrary to law.’” State v. Lunder, 8th Dist. Cuyahoga No.
101223, 2014-Ohio-5341, ¶ 10, quoting R.C. 2953.08(G)(2)(a)-(b). “[W]here a sentence
is void because it does not contain a statutorily mandated term, the proper remedy is,
likewise, to resentence the defendant.” State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, ¶ 10, citing State v. Beasley, 14 Ohio St.3d 74, 471
N.E.2d 774 (1984).
{¶41} Because the trial court here believed it was imposing consecutive sentences
pursuant to a mandate in R.C. 2921.331(D), it did not make the requisite findings under
R.C. 2929.14(C)(4) to impose consecutive sentences.
{¶42} R.C. 2929.14(C)(4) states:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
A trial court is required to make the findings mandated above at the sentencing hearing
and incorporate its findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶43} The requirements of R.C. 2929.14(C)(4) are only implicated when a trial
judge exercises his or her discretion to impose consecutive sentences. State v. Sergent,
148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 17. Therefore, the trial court
need not make these findings when consecutive sentences are required as a matter of law.
Thus, if the trial court had ordered Parker’s sentence for attempted felonious assault to
run concurrent to his sentence for trafficking, and then ordered his sentence for failure to
comply to run consecutive to both, it would not have been required to make R.C.
2929.14(C)(4) findings.
{¶44} Because R.C. 2921.331(D) did not require Parker’s sentences for all three
charges to be served consecutively, the trial court was required to comply with R.C.
2929.14(C)(4) before imposing consecutive sentences for trafficking and attempted
felonious assault. The trial court’s failure to comply with R.C. 2929.14(C)(4) renders
Parker’s sentences for these offenses contrary to law. Lunder, 8th Dist. Cuyahoga No.
101223, 2014-Ohio-5341, at ¶ 13. Therefore, we reverse and remand this case for
resentencing as to those offenses.
{¶45} Because we remand this case for resentencing, Parker’s second assignment
of error, in which he raises an alternative argument premised on the state’s interpretation
of R.C. 2921.331(D), is moot.
{¶46} We note that while Parker does not bring any challenge to his plea or
sentence related to his license suspension, a review of the plea hearing shows that the trial
court provided an inaccurate description of its options with respect to the suspension.
Specifically, the trial court stated that the license suspension was not mandatory.
Parker’s sentence, however, included a lifetime license suspension in accordance with the
mandate found in R.C. 2921.331(E). Even if Parker had raised this issue for our review,
it would not have changed the outcome of this appeal, because Parker would be unable to
show that he was prejudiced by the trial court as required to vacate his plea based on
Crim.R. 11.
{¶47} We acknowledge that the dissenting opinion would sua sponte consider
the validity of Parker’s plea. However, as noted in the dissent, Parker failed to raise this
issue before this court. App.R. 16 requires that the appellant’s brief shall include a
“statement of the assignments of error presented for review” and “[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented[.]” Id. at (A)(3) and (7). Furthermore, the court of appeals shall “[d]etermine
the appeal on its merits on the assignments of error set forth in the briefs under App.R.
16” and the “court may disregard an assignment of error presented for review if the party
raising it fails to * * * argue the assignment separately in the brief, as required under
App.R. 16(A).” App.R. 12(A)(1)(b) and (2). Therefore, pursuant to App.R. 12(A) and
16(A), we decline to sua sponte consider the validity of Parker’s plea.
{¶48} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
TIM McCORMACK, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
MARY J. BOYLE, J., DISSENTING:
{¶49} I respectfully dissent. I would find that Parker’s assignments of error are
rendered moot because the trial court failed to explain that he faced a lifetime suspension
of his driver’s license, thereby invalidating his plea.
{¶50} Although not raised in Parker’s brief, I would, sua sponte, find that Parker’s
plea was not knowing, intelligent, and voluntary because he did not understand that he
faced a lifetime suspension of his driver’s license before entering his guilty plea.
{¶51} While we generally determine an appeal’s merits based on the assignments
of error raised by an appellant pursuant to App.R. 12(A)(1)(b), we have, sua sponte,
previously raised and addressed Crim.R. 11 issues not raised by an appellant. See State
v. Petitto, 8th Dist. Cuyahoga No. 95276, 2011-Ohio-2391, ¶ 9 (reversing for the trial
court’s failure to ascertain whether the defendant understood the maximum penalty for his
offenses even though the defendant did not raise it in his appellate brief). The same has
been done by other appellate districts. See State v. Mullins, 12th Dist. Butler Nos.
CA2011-10-195 and CA2011-10-196, 2012-Ohio-5005, ¶ 13 (“[W]e notice and raise, sua
sponte, an error in the trial court’s addressing of appellant’s constitutional rights pursuant
to Crim.R. 11(C)[.]”); State v. Hankison, 4th Dist. Scioto No. 01CA2792,
2002-Ohio-6161, ¶ 20 (“We note that Hankison failed to articulate this argument in his
brief to this Court. We have raised this issue sua sponte because we find that failure to
comply with the mandates of Crim.R. 11, in this case, is plain error.”).
{¶52} We review whether the trial court accepted Parker’s plea in compliance with
Crim.R. 11(C) de novo. State v. Tutt, 8th Dist. Cuyahoga No. 102687, 2015-Ohio-5145,
¶ 13, citing State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606. A defendant
must enter into a plea knowingly, intelligently, and voluntarily for it to be constitutional
under the United States and Ohio Constitutions. State v. Engle, 74 Ohio St.3d 525, 527,
660 N.E.2d 450 (1996), citing Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71
L.Ed. 1009 (1927). To ensure the constitutionality of pleas, Crim.R. 11(C) sets forth
specific procedures that trial courts must follow when accepting guilty pleas, covering the
waiver of constitutional rights and the explanation of nonconstitutional rights. See State
v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990) (“Ohio Crim.R. 11(C) was
adopted in order to facilitate a more accurate determination of the voluntariness of a
defendant’s plea by ensuring an adequate record for review.”).
{¶53} A trial court must make findings and disclosures concerning a defendant’s
nonconstitutional rights. Specifically, a trial 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, and, if applicable, that the defendant is not eligible for probation
or for the imposition of community control sanctions at the sentencing
hearing [and] [i]nform[] the defendant of and determin[e] that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
Crim.R. 11(C)(2)(a) and (b). A trial court must only substantially comply with Crim.R.
11’s requirements when advising a defendant of his nonconstitutional rights. State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. ‘“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.’” State v. Mitchell,
8th Dist. Cuyahoga No. 103364, 2016-Ohio-4956, ¶ 10, quoting Nero. ‘“If it appears
from the record that the defendant appreciated the effect of his plea and his waiver of
rights in spite of the trial court’s error, there is still substantial compliance.’” Id., quoting
State v. Caplinger, 105 Ohio App.3d 567, 664 N.E.2d 959 (4th Dist.1995).
{¶54} In addition to showing noncompliance, “a defendant must show prejudice
before a plea will be vacated for a trial court’s error involving Crim.R. 11(C) procedure
when nonconstitutional aspects of the plea colloquy are at issue.” State v. Owens, 8th
Dist. Cuyahoga Nos. 100398 and 100399, 2014-Ohio-2275, ¶ 12, citing Veney. To
establish prejudice, a defendant must show that, had the trial court substantially complied
with Crim.R. 11(C)’s requirements, he would not have entered into the plea. State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, citing Nero, 56 Ohio
St.3d at 108, 564 N.E.2d 474.
{¶55} The right to be advised of the maximum penalties that a defendant faces is a
nonconstitutional right, and therefore, we review the record for substantial compliance.
State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601, 2010-Ohio-244, ¶ 8, citing
State v. Johnson, 8th Dist. Cuyahoga No. 91567, 2009-Ohio-3088.
{¶56} Many appellate districts have declined to vacate a defendant’s plea when a
court incorrectly informs a defendant of the length of the driver’s license suspension that
the defendant faces or fails to discuss the license suspension at the plea hearing. See
State v. Fry-McMurray, 7th Dist. Mahoning No. 15 MA 0111, 2016-Ohio-6998, ¶ 20;
State v. Small, 10th Dist. Franklin Nos. 14AP-659, 14AP-660, 14AP-661, and 14AP-663,
2015-Ohio-3640, ¶ 13. In those cases, the court found that the defendant’s failure to
object to the imposition of a longer license suspension at sentencing, the minimal
difference in length of the suspensions, and the dismissal of some charges against the
defendant in exchange for a guilty plea established that the defendant did not suffer
prejudice. Fry-McMurray at ¶ 28; Small at ¶ 13.
{¶57} Those cases are distinguishable, however, because in the instant case, the
trial court affirmatively told Parker that there was no license suspension. At the plea
hearing in the instant case, the court explained Parker’s constitutional rights, the potential
for consecutive sentences, and the potential prison terms and fines that he faced. The
following exchange took place after that explanation:
PROSECUTOR: And there’s also a mandatory operator’s driver’s
license suspension.
COURT: No.
PROSECUTOR: No?
COURT: No. Not anymore. * * * The legislature changed that
this year and I think it went into effect in September
where on felony drug charges no longer — it’s
optional, the Court can, but it’s certainly not
mandatory.
Despite the trial court’s statements at the plea hearing, however, Parker’s sentence
included a lifetime driver’s license suspension, which was mandatory under R.C.
2921.331(E) because it was Parker’s second conviction for failure to comply.
{¶58} Based on those facts, we find State v. Walz, 2d Dist. Montgomery No.
23783, 2012-Ohio-4627, to be more instructive than Fry-McMurray and Small. In Walz,
the appellant argued that he did not knowingly, intelligently, and voluntarily enter into a
guilty plea because the trial court failed to inform him that he faced a mandatory
three-year driver’s license suspension for the felonious assault count at the plea hearing.
At the plea hearing, the trial court did not discuss the mandatory license suspension. In
fact, after reciting the prison terms and fines that the appellant faced, the trial court stated
that “those are all of the potential penalties.” On review, the Second District found that
the appellant’s plea was not knowing, intelligent, or voluntary for his felonious assault
count because the trial court’s statement — “those are all of the penalties” — provided
the appellant with misinformation. Id. at ¶ 17. Specifically, the Second District stated
that “[w]hen material misinformation about a consequence of a guilty plea is conveyed to
a defendant, and the court by its silence fails to correct the mistake, the failure renders the
plea less than knowing, intelligent, and voluntary.” Id. at ¶ 16, citing State v. Engle, 74
Ohio St.3d 525, 660 N.E.2d 450 (1996).
{¶59} Like Walz, the record establishes that the court clearly provided Parker
misinformation; however, the facts of this case go one step further than Walz because the
trial court affirmatively informed Parker that there was no license suspension. The trial
court’s misstatement of the potential penalties that Parker faced certainly did not
substantially comply with Crim.R. 11 and resulted in prejudice to Parker. Therefore,
Parker’s plea was not knowing, intelligent, or voluntary. Accordingly, I would reverse
the court’s sentence and set aside Parker’s plea, thereby rendering Parker’s raised
assignments of error concerning his sentence and plea’s voluntariness moot.