Columbus v. Carmichael , 2023 Ohio 1386 ( 2023 )

[Cite as Columbus v. Carmichael, 2023-Ohio-1386.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Columbus, :
Plaintiff-Appellant, :
v. : No. 22AP-306
(M.C. No. 2021CRB-015703)
Michael Carmichael, :
(ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on April 27, 2023
On brief: Collin P. Finn, for appellee. Argued: Collin P.
Finn.
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias-Hunter and Orly Ahroni, for appellant. Argued: Orly
Ahroni.
APPEAL from the Franklin County Municipal Court
EDELSTEIN, J.
{¶ 1} Plaintiff-appellant, City of Columbus (“the City”), appeals the judgment of the
Franklin County Municipal Court sentencing defendant-appellee, Michael Carmichael, to
180 days in jail, with two days of jail-time credit and 178 days suspended. For the following
reasons, we reverse the trial court judgment and remand with instructions.
I. Facts and Procedural History
{¶ 2} On November 1, 2021, the City filed a criminal complaint against Mr.
Carmichael, charging him with one count of having weapons while under disability, a first-
degree misdemeanor in violation of Columbus City Code (“C.C.C.”) 2323.13(A)(1)(f).
{¶ 3} Upon information that Mr. Carmichael wished to plead guilty to the charged
offense, the trial court held a plea hearing on March 10, 2022. During the hearing, the trial
No. 22AP-306 2
court engaged in a colloquy to determine whether Mr. Carmichael was knowingly,
intelligently, and voluntarily pleading guilty. They discussed as follows:
THE COURT: Mr. Carmichael, I have a document in front of
me entitled advice and waiver of trial by jury. Did you review
this with your attorney?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you understand everything he was
explaining to you before you signed it?
THE DEFENDANT: Yes.
THE COURT: Counsel, do you believe that your client is
proceeding knowingly, intelligently and voluntarily in this
matter?
[DEFENSE COUNSEL]: Yes, Your Honor.
(Mar. 10, 2022 Hearing Tr. at 2-3.)
{¶ 4} The document referenced by the trial court, entitled “Advice of Rights and
Waiver of Trial by Jury” (“the Waiver”), informed Mr. Carmichael that a guilty plea
constitutes a complete admission of the crime and he would be waiving certain
constitutional rights by pleading guilty. The document also notified Mr. Carmichael that
he could face a maximum possible jail sentence of 180 days “and/or” a maximum possible
fine of $1,000 by pleading guilty to a first-degree misdemeanor.
{¶ 5} After reviewing the Waiver and briefly engaging with Mr. Carmichael, the
trial court accepted his plea of guilty to the first-degree misdemeanor weapons under
disability charge. Before the hearing concluded, Mr. Carmichael’s attorney noted on the
record that Mr. Carmichael wished to avoid jail time. (Id. at 4.)
{¶ 6} On April 28, 2022, Mr. Carmichael appeared with counsel for a sentencing
hearing.1 During the hearing, defense counsel again noted that Mr. Carmichael wished to
avoid a jail sentence. (Apr. 28, 2022 Hearing Tr. at 3.) The trial court imposed a 180-day
jail sentence, with two days of jail-time credit and 178 days suspended. The court imposed
1It is not clear from the record whether an attorney from the Columbus City Attorney's Office was present at
the sentencing hearing, as no one entered an appearance on behalf of the government.
No. 22AP-306 3
two years of community control and a $100 fine, the payment of which was suspended. On
May 26, 2022, a nunc pro tunc sentencing entry was filed.
{¶ 7} Also on May 26, 2022, the City sought leave from this court to file an appeal
from the trial court’s sentencing entry. This court granted leave on October 27, 2022.
II. Assignment of Error
{¶ 8} The City of Columbus presents the following sole assignment of error for our
review:
[I.] The trial court erred by imposing a sentence that is contrary
to law.
III. Legal Analysis
A. Standard of Review
{¶ 9} The City challenges the trial court’s imposition of a community control
sentence in lieu of jail time without having entered an objection during the sentencing
hearing. Generally, where a party fails to object during the trial court proceedings, we
review the assigned error under a plain error standard of review. See, e.g., Columbus v.
Coleman, 10th Dist. No. 22AP-79, 2022-Ohio-4478, citing Crim.R. 52(B).
{¶ 10} The City asks us to undertake something other than plain error review
because the record does not reflect that a prosecutor was present to object to the sentence.
(Brief of Appellant at 2, citing State v. Johnson, 10th Dist. No. 13AP-549, 2013-Ohio-4990,
¶ 6.) However, because the assigned error rises to the level of plain error, we need not
address which standard of review applies under such circumstances.
{¶ 11} To warrant reversal under plain error review, this court must find: (1) “an
error, i.e., a deviation from a legal rule;” (2) the error is plain or obvious; and (3) the error
affected the outcome of the trial court proceedings. See State v. Barnes, 94 Ohio St.3d 21,
27 (2002). A sentence that is contrary to law satisfies this three-part test. See id.; State v.
Hunt, 8th Dist. No. 97925, 2012-Ohio-3578, ¶ 10.
No. 22AP-306 4
B. Mr. Carmichael’s community control sentence is contrary to law
because Columbus City Code 2323.13(B) requires the imposition of at
least 180 days in jail.
{¶ 12} Mr. Carmichael pleaded guilty to a violation of C.C.C. 2323.13(A)(1)(f), which
states that no person who was previously convicted of certain weapons control offenses may
knowingly acquire, have, carry, or use a firearm or dangerous ordnance. Violation of this
code section is a first-degree misdemeanor offense and is “punishable by up to one year in
jail with a mandatory minimum jail term of at least one hundred eighty (180) consecutive
days during which mandatory jail term the defendant shall not be eligible for work
release[.]” C.C.C. 2323.13(B).
{¶ 13} As Mr. Carmichael concedes in his brief before this court, the trial court did
not have discretion to impose a community control sentence for this offense. Because the
court’s error in imposing a sentence that is contrary to law is plain and it affected the
outcome of the proceedings, we find the City has satisfied its burden to demonstrate plain
error and sustain the sole assignment of error in this case.
C. The record suggests Mr. Carmichael’s guilty plea was not knowing,
intelligent, and voluntary.
{¶ 14} Although not explicitly raised on appeal, we express our concern with the
consequences of our decision vacating Mr. Carmichael’s sentence without also vacating his
guilty plea.
{¶ 15} A plea of guilty or no contest “must be made knowingly, intelligently, and
voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527 (1996). Before accepting a guilty plea
in a misdemeanor case involving a serious offense, the trial court must “inform[] the
defendant of the effect of the plea[] * * * and determin[e] that the defendant is making the
plea voluntarily.” Crim.R. 11(D).
{¶ 16} The trial court did not inform Mr. Carmichael of the effect of his plea–that he
would face a mandatory minimum sentence of 180 days in jail. And the record does not
show he otherwise subjectively understood that he would be subject to a mandatory jail
term. The signed Waiver informed Mr. Carmichael that a first-degree misdemeanor is
punishable by “up to 180 days” in jail “and/or” a maximum possible fine of $1,000. During
his plea hearing, the trial court asked only whether Mr. Carmichael understood the
No. 22AP-306 5
information contained in the Waiver. (Mar. 10, 2022 Hearing Tr. at 2-3.) In fact, trial
counsel affirmatively noted on the record that Mr. Carmichael wished to avoid jail time,
suggesting Mr. Carmichael and his attorney believed a community control sanction was
possible. (Id. at 4.)
{¶ 17} Mr. Carmichael has not asked this court to vacate his guilty plea, and we
decline to do so sua sponte. However, we take this opportunity to note our concern with
Mr. Carmichael’s understanding of the effect of his guilty plea.
IV. Conclusion
{¶ 18} Having sustained the City’s sole assignment of error, we reverse the judgment
of the Franklin County Municipal Court and remand to that court for proceedings
consistent with law and this decision.
Judgment reversed;
cause remanded.
BOGGS and LELAND, JJ., concur.