Update: On December 21, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here. 

On July 18, 2018, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Dustin Bishop, 2017-1715. The main issue in the case is whether a criminal defendant on post-release control (“PRC”) for a prior felony must be advised, during his plea hearing in a new felony case, of the trial court’s ability under R.C. 2929.141 to impose a consecutive prison sentence for the PRC violation.  Judge Susan D. Brown of the Tenth District Court of Appeals will sit for Justice DeGenaro, who has recused herself from the case.

Case Background

Appellee Dustin Bishop pled guilty to drug possession in exchange for dismissal of a misdemeanor drug-paraphernalia charge. Following a pre-sentence investigation, Montgomery County Court of Common Pleas Judge Timothy N. O’Connell imposed a nine-month sentence for the drug possession. Because Bishop was on PRC when he committed the drug offense, Judge O’Connell revoked PRC and imposed a consecutive one-year prison sentence for the PRC violation. However,  Judge O’Connell never advised Bishop that he could face a consecutive prison term for the violation of his PRC as a result of his guilty plea.

On appeal, in a unanimous opinion written by Judge Michael Hall, joined by Judges Mary Donovan and Michael Tucker, the Second District Court of Appeals reversed Bishop’s guilty plea, holding that Crim.R. 11 obligated the trial court to advise the defendant that it could impose a prison sentence for the PRC violation, and that any prison sentence it decided to impose for the PRC violation would be required to be served consecutively. The court relied heavily on the holding of State v. Landgraf, 2014-Ohio-5448 (2^nd Dist.)

The state appealed. All the justices, with Justice DeGenaro not participating, agreed to accept the case on conflict certification. The certified question is,

“Whether a criminal defendant on PRC for a prior felony must be advised, during his plea hearing in a new felony case, of the trial court’s ability under R.C. 2929.141 to terminate his existing PRC and to impose a consecutive prison sentence for the PRC violation.”

The court also accepted the state’s jurisdiction appeal and consolidated the two cases.

Conflict Cases

State v. Dotson, 2015-Ohio-2392 ( 8^th Dist.) (Crim.R. 11 does not require the trial court to inform a defendant of its authority under R.C. 2929.141 to impose an additional, consecutive prison term.)

State v. Hicks, 2010-Ohio-2985 (5th Dist.)  (Crim.R. 11 imposes no requirement on the trial court to inform defendant of the possible effects of his plea on his PRC violation.)

Key Statutes and Precedent

R.C. 2929.141 (A)(1) (Upon a plea of guilty to a felony by a person on PRC at the time of the commission of the felony, the court may impose a prison term for violation of PRC that is served consecutively to any prison term imposed for the new felony.)

Crim.R. 11 (In felony cases the court shall not accept a plea of guilty without first addressing the defendant personally and determining that defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and informing the defendant of and determining that the defendant understands the effect of the plea of guilty.)

Boykin v. Alabama, 395 U.S. 238 (1969) (Due process requires a plea be made knowing, intelligent, and voluntary.)

State v. Johnson, 40 Ohio St. 3d 130 (1988) (The reasonable interpretation of Crim.R. 11(C)(2)(a) is that the term “maximum penalty” refers only to the single crime for which the plea is offered.)

State v. Landgraf, 2014-Ohio-5448 (2^nd Dist.) (Crim.R. 11 obligated the trial court to advise the defendant that it could terminate his PRC, that it could impose a prison sentence for the PRC violation, and that any prison sentence it decided to impose for the PRC violation would be required to be served consecutively.)

State’s Argument

The court should answer the certified question in the negative.

R.C. 2929.141 is a sentencing statute that does not expressly impose any obligations on a trial court during a plea colloquy. Crim.R. 11(C)(2) requires a trial court, prior to accepting a defendant’s guilty plea, to inform the defendant of the maximum penalty involved for the charge(s) to which the defendant is offered a plea. All that is required is for the defendant to be informed of the maximum penalty for the single crime for which the plea is offered.

Applying this Court’s interpretation of the term “maximum penalty” to Bishop’s case requires reversal of the Second District’s decision. The “charge” to which Bishop was pleading guilty in this case was one count of heroin possession, and the trial court properly informed Bishop of the maximum possible penalties for that particular charge.

The State does not disagree that it would be good practice for a trial court to advise a defendant who is on PRC that the court has the discretion under R.C. 2929.141 to terminate PRC and impose an additional, consecutive prison term before accepting the defendant’s plea of guilty to a new felony. However, any such change must come from the General Assembly or the Supreme Court of Ohio.

Bishop’s Argument

The court should answer the certified question in the affirmative.

The penalty provisions of R.C. 2929.141 are subject to the knowing, voluntary, and intelligent standard required by due process. Accordingly, advisement by the trial court of those penalty provisions is constitutionally required. Because R.C. 2929.141 automatically enhances the sentencing power of a trial court for a pleading defendant who is on PRC, it necessarily involves a greater potential maximum penalty and a greater potential restraint on one’s liberty. Knowledge of this fact is the only way a defendant can grasp the maximum penalty in order to make a reasoned decision whether to plead or not. Without proper advisement by the trial court, the defendant cannot plead knowingly, intelligently, and voluntarily. This violates due process.

In addition, Crim.R. 11(C)(2) by its terms requires a trial court to advise the defendant of the penalty provisions of R.C. 2929.141. Crim.R. 11(C)(2) requires courts to address defendants personally. Part of accepting the plea is a determination that the defendant understands the maximum penalty involved, which includes the provisions of R.C. 2929.141.

In Bishop’s case, the trial judge discussed the potential twelve-month maximum prison term for the single charge to which Bishop was pleading, but Bishop was never informed of the possibility of anything greater. In Bishop’s mind, 12 months was the worst he could do. The trial judge failed entirely to inform Bishop of the judge’s authority to terminate PRC and impose a consecutive term of imprisonment. Therefore, the trial court did not comply with Crim.R. 11(C)(2)’s requirement that pleas can only be accepted if the defendant understands the maximum penalty involved.

State’s Proposed Proposition of Law

When a defendant who is on active PRC for a prior offense appears before a trial court to enter a guilty plea to a new felony, the trial court is not obligated to inform the defendant of the penalty provisions of R.C. 2929.141 in order for the defendant’s plea to be given knowingly, intelligently, and voluntarily

Bishop’s Proposed Counter Proposition of Law

When a Defendant who is on PRC for a prior offense appears before a trial court to enter a guilty plea to a new felony, the trial court is obligated to inform the defendant of the penalty provisions of R.C. 2929.141 in order for the defendant’s plea to be given knowingly, intelligently, and voluntarily.

Student Contributor: Michael Goldman