State v. Morgan , 104 N.E.3d 941 ( 2018 )

[Cite as State v. Morgan, 2018-Ohio-319.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2017-CA-29
:
v. : T.C. NO. 2016-CR-132
:
ISSAC MORGAN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
Rendered on the 26th day of January, 2018.
...........
ANDREW PICKERING, Atty. Reg. No. 68770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ANDREW SCHLUETER, Atty. Reg. No. 86701, 5540 Far Hills Avenue, Suite 202, Dayton,
Ohio 45429
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Issac Morgan appeals his conviction and sentence for
one count of rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree. The
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rape count was accompanied by a mandatory three-year firearm specification. Morgan
was also sentenced to a mandatory five years of post-release control and informed that
he was classified as a Tier III sex offender. Morgan filed a timely notice of appeal with
this Court on March 20, 2017.
{¶ 2} On March 15, 2016, Morgan was indicted for two counts of rape, two counts
of kidnapping, and one count of felonious assault. Each count was accompanied by a
mandatory three-year firearm specification. At his arraignment on March 18, 2016,
Morgan pled not guilty to all of the charges in the indictment.
{¶ 3} Thereafter on January 26, 2017, Morgan pled guilty to one count of rape and
the accompanying firearm specification in exchange for dismissal of the remaining counts.
After accepting Morgan’s guilty plea, the trial court ordered the probation department to
generate a presentence investigation report (PSI).
{¶ 4} On February 16, 2017, the trial court sentenced Morgan to ten years in prison
for the rape count and to a mandatory three years in prison for the firearm specification.
The trial court ordered that the sentence for the firearm specification be served prior to
and consecutive to the sentence for the rape count, for an aggregate sentence of thirteen
years imprisonment. The trial court also designated Morgan as a Tier III sex offender.
{¶ 5} It is from this judgment that Morgan now appeals.
{¶ 6} Morgan’s sole assignment of error is as follows:
{¶ 7} “APPELLANT’S GUILTY PLEA WAS NOT MADE KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY.”
{¶ 8} In his sole assignment of error, Morgan contends that the trial court erred
because it did not substantially comply with Crim.R. 11(C)(2) when it failed to inform him
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that he was not eligible for community control sanctions because of the mandatory nature
of his sentence for his rape conviction.
{¶ 9} In State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, we
stated the following:
In determining whether to accept a defendant's guilty plea, the trial
court must determine whether the defendant knowingly, intelligently, and
voluntarily entered the plea. State v. Johnson, 40 Ohio St. 3d 130, 532
N.E.2d 1295 (1988), at syllabus. “If a defendant's guilty plea is not knowing
and voluntary, it has been obtained in violation of due process and is void.”
State v. Brown, 2d Dist. Montgomery Nos. 24520 & 24705, 2012–Ohio–199,
¶ 13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23
L. Ed. 2d 274 (1969). In order for a plea to be given knowingly and
voluntarily, the trial court must follow the mandates of Crim. R. 11(C). Brown
at ¶ 13.
Crim.R. 11(C)(2) requires the court to (a) determine that the
defendant is making the plea voluntarily, with an understanding of the
nature of the charges and the maximum penalty, and, if applicable, that the
defendant is not eligible for probation or for the imposition of community
control sanctions; (b) inform the defendant of and determine 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 sentencing; and (c) inform the defendant and determine that he
understands that, by entering the plea, the defendant is waiving the rights
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to a jury trial, to confront witnesses against him, to have compulsory process
for obtaining witnesses, and to require the state to prove his guilt beyond a
reasonable doubt at a trial at which he cannot be compelled to testify
against himself. State v. Brown, 2d Dist. Montgomery No. 21896, 2007–
Ohio–6675, ¶ 3. See also State v. Clark, 119 Ohio St. 3d 239, 2008–Ohio–
3748, 893 N.E.2d 462, ¶ 27.
The Supreme Court of Ohio has urged trial courts to literally comply
with Crim.R. 11. Clark at ¶ 29. However, because Crim.R. 1 1(C)(2)(a) and
(b) involve non-constitutional rights, the trial court need only substantially
comply with those requirements. E.g., 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.” Id. In contrast, the
trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the
waiver of federal constitutional rights. Clark at ¶ 31.
Furthermore, when nonconstitutional 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.
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. at ¶ 15. Where the trial court completely fails to comply
with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not
implicated. State v. Sarkozy, 117 Ohio St. 3d 86, 2008–Ohio–509, 881
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N.E.2d 1224, ¶ 22.
Id. at ¶¶ 4-7.
{¶ 10} At Morgan’s plea hearing, the trial court stated the following in pertinent part:
The Court has been handed a written plea of guilty to Count One, the
rape offense, with the three-year firearm specification. The rape carries a
possible maximum penalty of 11 years in prison, $20,000 fine, restitution if
any were found to be due and owing, and court costs. Prison is a
mandatory sentence for the firearm specification, and that’s three years,
which must be consecutive to any prison sentence the Defendant gets for
the rape charge, which means a total possible maximum penalty of 14 years
in prison.
{¶ 11} The following exchange also occurred between the trial court and Morgan,
to wit:
The Court: Did you understand the possible maximum penalty I read into
the record?
Morgan: Yes, sir.
{¶ 12} While the record establishes that the trial court informed Morgan of the
maximum possible sentence for rape and that he was subject to a mandatory three years
in prison for the firearm specification, it is undisputed that at no point during the plea
hearing did the trial court inform Morgan that he was subject to a mandatory prison
sentence if it accepted his guilty plea for the rape offense. Morgan asserts that the trial
court failed to comply with Crim.R. 11(C)(2)(a) because it failed to advise him that a prison
sentence was mandatory for the rape charge that he was pleading guilty to and failed to
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inform him that he was ineligible for community control sanctions in lieu of a prison term
for this offense.
{¶ 13} R.C. 2929.13(F)(2) requires that the sentencing court impose a prison term
for “[a]ny rape, regardless of whether force was involved and regardless of the age of the
victim * * *.” Because Morgan pleaded guilty to one count of rape, the trial court had to
sentence him to prison, and he was ineligible to be sentenced to community control
sanctions. See State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 12
(finding that the trial court did not substantially comply with the notification requirement of
Crim.R. 11(C)(2)(a) by wholly failing to advise the defendant that he was subject to
mandatory prison terms for three rape convictions to which he pled guilty, which made
him ineligible for community control sanctions in lieu of prison thus rendering his guilty
pleas unknowing, involuntary, and unintelligently made); State v. Givens, 12th Dist. Butler
No. CA2014–02–047, 2015–Ohio–361, ¶ 15–16 (trial court's failure to advise defendant
that guilty plea to robbery charge carried a mandatory prison term that rendered him
ineligible for community control or judicial release rendered the plea invalid so as to
require reversal of the conviction and sentence); State v. Smith, 5th Dist. Licking No. 13–
CA–44, 2014–Ohio–2990, ¶ 11–12 (trial court's failure to notify defendant who pled no
contest to rape charges of the amount of mandatory prison time and the time during which
he would be ineligible for community control resulted in invalid plea that required
reversal); State v. Rand, 10th Dist. Franklin No. 03AP–745, 2004–Ohio–5838, ¶ 23 (trial
court committed reversible error when it accepted defendant's guilty plea because it
misinformed him that his sentence was not mandatory).
{¶ 14} In the instant case, the State argues that the trial court substantially
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complied with Crim.R. 11(C)(2) because it expressly informed Morgan that he was subject
to a mandatory three-year prison term for the firearm specification attached to the rape
count. However, a conviction for the firearm specification was contingent upon the trial
court accepting Morgan’s guilty plea to the rape count. Furthermore, it is undisputed that
the trial court failed to inform Morgan that he was subject to a mandatory prison term if it
accepted his guilty plea to the rape count. The trial court also failed to inform Morgan
that because the prison time was mandatory for a rape conviction, he was ineligible for
community control sanctions in lieu of prison. In fact, the record establishes that the trial
court did not even mention the possibility or impossibility of community control at the plea
hearing.
{¶ 15} “When a defendant on whom a mandatory prison sentence must be
imposed enters a plea of guilty or no contest, the court must, before accepting the plea,
determine the defendant's understanding that the defendant is subject to a mandatory
sentence and that the mandatory sentence renders the defendant ineligible for probation
or community control sanctions.” Balidbid, at ¶ 10. Even if Morgan and his counsel
“believed the community control was unlikely, such an understanding would not constitute
substantial compliance, given the mandatory nature of his [rape] sentence.” Id. at ¶ 12.
{¶ 16} Here, Morgan was neither advised that he was subject to a mandatory
sentence upon his conviction for rape, nor did the trial court inform him that he would be
ineligible for community control if he was convicted. We also note that Morgan’s plea
form did not affirmatively state that his prison sentence for the rape count was mandatory.
Rather, the plea form states for Morgan’s rape conviction as follows: “PRISON TERM IS
MANDATORY n/a.” Assuming “n/a” is understood to be an acronym for “not applicable,”
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as is it commonly understood to be, Morgan’s plea form suggests that a mandatory prison
sentence is “not applicable” for his rape conviction, and is therefore, an incorrect
statement of law which went unnoticed by the trial court and the parties.
{¶ 17} Thus, we conclude that in light of the foregoing analysis, the trial court failed
to substantially comply with Crim.R. 11(C)(2)(a) and an additional analysis of prejudice is
unnecessary. The trial court failed to inform Morgan that he was subject to a mandatory
prison term before it accepted his guilty plea to the rape count. The trial court also failed
to inform Morgan that because the prison time was mandatory for a rape conviction, he
was ineligible for community control sanctions in lieu of prison. Furthermore, the plea
form signed by Morgan incorrectly stated that a mandatory prison term was “not
applicable” to his conviction for rape. Accordingly, we find that Morgan’s guilty plea was
not made knowingly, intelligently, and voluntarily.
{¶ 18} Morgan’s sole assignment of error is sustained.
{¶ 19} Morgan’s sole assignment of error having been sustained, the trial court's
judgment is reversed, and the matter will be remanded for proceedings consistent with
this opinion.
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HALL, J. and TUCKER, J., concur.
Copies mailed to:
Andrew Pickering
Andrew Schlueter
Hon. Richard J. O’Neill