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

“So you would have trial judges just sit there and read from a script to the defendant, which is a universal script and then put the paper down, and that’s it?”

Chief Justice O’Connor to the assistant county prosecutor

“So, where’s the evidence in the record of prejudice here?”

Justice DeWine, to defense counsel

On July 18, 2018, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Dustin Bishop, 2017-1715. The 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 sat 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, the trial court imposed a nine month sentence for the drug possession. Because Bishop was on post release control (“PRC”) when he committed the drug offense, the trial court revoked PRC and imposed a consecutive one-year prison sentence for the PRC violation. However, the trial court 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, 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 Supreme Court accepted the case on certified conflict and jurisdictional appeal and consolidated the two.

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.”

Read the oral argument preview of the case here.

Conflict Cases

State v. Dotson, 2015-Ohio-2392 ( 8th 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 knowingly, intelligently, and voluntarily.)

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. Further, the record must affirmatively show that the defendant was prejudiced by claimed error in plea colloquy.)

State v. Landgraf, 2014-Ohio-5448 (2nd 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.)

At Oral Argument

Arguing Counsel

Michael J. Scarpelli, Assistant Prosecutor, Montgomery County, for Appellant State of Ohio

Carl Bryan, Dayton, for Appellee Dustin Bishop

State’s Argument

When accepting a guilty plea, Criminal Rule 11 requires a trial court to notify the defendant of the maximum penalty involved. The literal language of that rule, which this court has repeatedly urged trial courts to comply with, refers only to the maximum penalty for the charge or charges to which the defendant is entering the guilty plea, which does not include other advisements. In fact, if the trial court  goes beyond the plain text of Rule 11, and gives a confusing or incorrect additional advisement, that can result in a plea being vacated.

While the 2nd district’s interpretation of Rule 11 might be better policy, the literal text of that rule as it now stands does not require that advisement. Furthermore, the right to effective assistance of counsel would dictate that trial counsel at least ask the defendant if he is on post-release control and then advise him as to the possible effects of pleading guilty in this new case as to his supervision status.

As to the question of whether Mr. Bishop was prejudiced by the failure to advise him of the implications of his plea on his previous sentence, the record simply does not show that he was. The court should answer the certified question in the negative, and reverse the court of appeals.

Finally, this case is not moot. Even though it may now be so as to Mr. Bishop, the court is duty bound to answer the certified conflict presented here today. The matter is also capable of repetition, yet evading review, and of great public importance and interest, and thus not moot, as precedent sets forth in State v. Brooks.

Bishop’s Argument

The effect of the plea in this case was to vest the trial court immediately with the authority to terminate Mr. Bishop’s PRC and sentence him to a consecutive term. He was not informed of this. When a defendant who is on post release control appears before a trial court to enter a plea to a new felony, Criminal Rule 11 requires the trial court to inform the defendant  of the penalty provisions of R.C. 2929.141 in order for that plea to be given knowingly, voluntarily, and intelligently. When the court accepts a plea without these advisements, that plea is not knowing, intelligent and voluntary, which violates due process. And where, as here, there is no compliance at all, prejudice need not be shown. Additionally, Mr. Bishop was prejudiced because he was never advised about the effect of his plea, of the increased sentencing power that would be automatically vested in the court at the time he pled.

What the defendant wants to know at the time he pleads is, how much time will I serve? There’s a lot that goes into the decision to plead. In this case there was no addressing the fact that Mr. Bishop was on post release control, and that upon his plea the court would have increased sentencing power. At the time he entered his plea, he had no idea that was a possibility. It makes no difference that he was told of that possibility when he was originally sentenced.  Each colloquy must be separately examined.

What Was On Their Minds

Mootness

In a footnote in its merit brief, the state indicated that after the court of appeals issued its decision, and while this case was pending in the Supreme Court of Ohio, Bishop went before the trial court again, entered a new guilty plea to the heroin possession charge, and was sentenced to time served, making the issue before the court moot as to Bishop.  The state argued, however, that the issue was capable of repetition, yet evading review, and should still be decided.  This caused a barrage of questions from Justice DeWine to Mr. Scarpelli, using up nearly half of the state’s argument time, starting with is this case moot? Justice DeWine continued, commenting that this issue would not evade review if not decided now. What about the fact that while this appeal was pending, there was a guilty plea entered—did the court have any jurisdiction to do that? After the notice of appeal had been filed? Didn’t that divest the trial court of jurisdiction? And if the trial court had no jurisdiction, what happens to that guilty plea? DeWine commented that every case the court accepts is of public importance or a constitutional issue, but that is not an exception to the mootness doctrine. Was the prosecutor arguing that any issue of public importance was never moot? Doesn’t the court only hear actual cases or controversies? It was very heavy going for Mr. Scarpelli during this lengthy exchange.

Perhaps in the spirit of fairness, Justice Fischer asked Mr. Bryan if he also believed the trial court had jurisdiction to accept the plea for the possession charge, commenting that the plea that was taken while the case was pending at the Supreme Court.  But he took only a minute to ask.

The Colloquy on the Original Plea

Presumably Mr. Bishop would have been told at the time he was sentenced that if he violated post release control, he could serve additional time, commented Justice O’Donnell. Didn’t he receive that advisement when he was originally sentenced? Is it the defense position that he is entitled to it again? He went on to comment that courts couldn’t chase around to all 88 counties to see if a defendant had ever pled guilty or was on probation somewhere. Hadn’t Mr. Bishop been to prison? And gotten out?

Knowing, Voluntary and Intelligent Plea

On what basis can it be determined that the defendant understood the effects of his guilty plea, asked Justice French?

Was it mandatory for the judge to revoke the PRC, asked Chief Justice O’Connor?  Isn’t what the judge is going to do usually known, so counsel can advise the client and in making the decision as a prosecutor? What about all the other admonitions or advisements that have to be given to a defendant on a plea, such as deportation in immigration cases? Isn’t it all under the umbrella of a knowing and voluntary plea? Isn’t it up to the court to determine what goes in with each defendant, what needs to be known, what needs to be considered before a plea is entered?

What is the practice statewide on this issue, asked Justice O’Donnell?

Prejudice

Doesn’t the defendant still have to show prejudice, asked Justice DeWine? Hasn’t the court already held that? Should the court now hold that prejudice is presumed, meaning but for the incorrect advisements, the plea would not have been made?

How It Looks From The Bleachers

To Professor Emerita Bettman

To me, the defense has the better argument here, and I’d like to agree with my student contributor Michael Goldman, but I’m not sure Mr. Bryan has the votes to prevail.  I suspect not, although Judge Brown, subbing for Justice DeGenaro, asked no questions, Justice Kennedy was silent, as usual, and Justice Fischer was mostly silent.

There clearly is a split among the justices who talked. Justice DeWine was fixated on mootness and lack of jurisdiction. He was merciless on these issue, pounding on Mr. Scarpelli  (a former student, and I believe, making his first appearance at the high court) and using about half the state’s time on it.  So, I predict Justice DeWine will either find this moot, or he will go with the state and find no prejudice to the defendant. Justice Fischer has similar concerns, although more briefly addressed to Mr. Bryan, who was also better able to pivot on the issue. Still, the question of the trial court’s jurisdiction to sentence while this appeal was pending has legs, as they say.

Chief Justice O’Connor seemed most sympathetic to the defense position (although I think all of the justices would agree that what the Second District required by way of advisements would certainly be a best practice), suggesting that Criminal Rule 11 colloquies were not cookie-cutter affairs, but should be tailored to the situation.  I think Justice O’Donnell will take the position that Bishop was told at his first sentencing hearing if he violated post release control, he could serve additional time, and that was sufficient. I’m guessing Justice Kennedy will agree with that.

To Student Contributor Michael Goldman

I believe this will be a closely decided case. The State consistently reminded the Court that Rule 11 does not mandate advisement of PRC penalties and that only the General Assembly has the power to mandate such advisement by the court. Bishop on the other hand focused on the fact that the defendant did not fully understand the effect of the guilty plea and believed that it was up to the trial judge to advise every defendant of all collateral penalties that would result from a guilty plea.

Justice DeWine and Justice Fischer seemed to think that the trial court did not have jurisdiction to accept the possession plea while the appeal was pending. This issue was quickly mentioned by the State in a footnote and not briefed by Bishop, so it is unclear what effect it may have on the outcome of the case. Justice DeWine also seemed to favor the merits of the State’s case because Bishop was unable to prove that he was prejudiced by the trial court’s lack of advisement about the PRC issue.  Justice O’Donnell seemed to favor the State’s merits as well because Bishop was presumably advised of the consequences of violating PRC during the original trial that put him on PRC.

Justice French on the other hand seemed to favor the merits of Bishop’s argument because Bishop did not fully understand the effect of his guilty plea. Chief Justice O’Connor also seemed to agree with the merits of Bishop’s argument and asked a line of questions indicating that she believed it is up to the judge accepting a plea to adequately advise a defendant of all penalties including PRC violations.

This will most likely be a closely split decision, but I think the court will rule in favor of Bishop. It is better policy to mandate that a defendant be fully advised of the effects of a guilty plea especially when prison time is a possibility. Moreover, Crim. R. 11 mandates that the court shall not accept a plea of guilty unless the defendant fully understands the maximum penalty involved. It makes logical sense to read “maximum penalty involved” to include all collateral penalties such as PRC violations resulting in prison time.