Merit Decision: Plea-hearing Requirements for Defendants on Postrelease Control. State v. Bishop.

By Marianna Bettman on December 31, 2018

“By any fair reading of Crim.R. 11(C)(2), the potential R.C. 2929.141(A) sentence was part of the ‘maximum penalty involved’ in this case.”

Justice French, lead opinion

“…The lead opinion’s analysis cannot be squared with the language of the postrelease-control statute or our decisions recognizing that a sanction for a postrelease-control violation is not punishment for the commission of a new offense.”

Justice Kennedy, dissent

On December 21, 2108, the Supreme Court of Ohio handed down a merit decision in State v. Bishop, Slip Opinion 2018-Ohio-5132. The case involved the following certified conflict question:

“[w]hether a criminal defendant on [postrelease control] 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 [postrelease control] and to impose a consecutive prison sentence for the [postrelease-control] violation.”

In an opinion written by Justice French, joined by Chief Justice O’Connor and Justice O’Donnell, the court answered yes to the certified question. Justice DeWine concurred in judgment only, with an opinion. Justice Kennedy dissented with an opinion. Justice Fischer dissented with an opinion joined by Tenth District Court of Appeals Judge Susan Brown, sitting for the recused Justice DeGenaro. The case was argued July 18, 2018.

Case Background

While he was on postrelease control (“PRC”) for a previous felony conviction, appellee Dustin Bishop was indicted on one count of heroin possession, a fifth degree felony, and one count of possession of drug paraphernalia, a misdemeanor. Bishop pled guilty to drug possession in exchange for dismissal of the misdemeanor drug-paraphernalia charge.

At Bishop’s plea hearing, the trial court informed Bishop that he could be placed on PRC for the possession offense, and that if he committed a new felony while on PRC, he could be sentenced to one year in prison or the time he had remaining on PRC, whichever was longer. But the judge did not inform Bishop that once he pled guilty to the possession offense, the court had the discretion under R.C. 2929.141 to terminate the existing PRC and impose a prison term that would run consecutively to the prison term imposed for the possession offense. The trial court accepted Bishop’s guilty plea and subsequently sentenced Bishop to nine months in prison for the possession offense, and one year in prison for the PRC violation, to run consecutively to the possession offense sentence.

Bishop’s Appeal

On appeal, in a unanimous opinion, the Second District Court of Appeals reversed, finding that the trial court erred by failing to advise Bishop at the time of his guilty plea, that he could have to serve an additional consecutive sentence for his current PRC violation.

The Supreme Court accepted the case on certified conflict and jurisdictional appeal and consolidated the two.

Read the oral argument preview here and the analysis here.

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 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 (C)(2)(a)(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.)

Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28 (1987) (The Supreme Court of Ohio may resolve a matter, even if it is moot with respect to the parties, if the instant matter is of great public interest).

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. Nero, 56 Ohio St.3d 106 (1990) (If the trial court substantially complied with Crim.R. 11, the defendant must show prejudice on appeal.)

State v. Clark, 2008-Ohio-3748 (Due process requires that a defendant’s plea be made knowingly, intelligently, and voluntarily; otherwise, the defendant’s plea is invalid.)

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.)

Mootness

Mark Twain: “Never argue with a man who buys ink by the barrel.”

According to a footnote in the State’s merit brief, after the state had appealed the court of appeals’ judgment to the Supreme Court of Ohio, but before the high court accepted jurisdiction, the trial court accepted Bishop’s new guilty plea to the same possession offense, and sentenced him to time served. So, did that make this case moot? A lot of ink gets spilled on this issue.

Justices French, O’Donnell, DeWine, Fischer, the Chief, and Judge Brown all agree that there is nothing in the record that confirms that the trial court did accept a new guilty plea. So, based on this record, they all agree the case is not moot. (Justice Kennedy said nothing on this topic). So why address this at all, let alone at the length some went to?

Here are the positions on mootness:

Lead Opinion

Even if the case is moot as to these parties, the court can resolve an issue of great general or public interest, including certified conflict cases. This (arguably unnecessary) addition to the lead opinion is what led Justice DeWine to concur in judgment only and to write separately. He disagrees with the lead opinion’s dictum on mootness.

Justice DeWine’s Position

DeWine agrees the case isn’t moot because there is nothing in the record to confirm that the trial court accepted the guilty plea after the notice of appeal was filed in the case, but even if it did, its order would be void because it had no jurisdiction at that point. The filing of the notice of appeal by the state divested the trial court of jurisdiction to resentence Bishop.

In both cases of great general interest and certified conflict cases, courts are to decide only actual cases and controversies where “the judgment can be carried into effect,” and not give advisory opinions, While “capable of repetition yet evading review” is an exception to the mootness doctrine, there is no reason to believe that the issue in this case,–plea-hearing requirements for defendants currently on PRC—will evade review.

“If a case becomes moot, there is no controversy for us to decide, and we should dismiss it,” wrote DeWine. But this one isn’t moot, he concludes.

Justice Fischer’s Position

Justice Fischer agrees the record in the case shows the case isn’t moot. And he agrees with Justice DeWine that even if the trial court had accepted Bishop’s guilty plea, and resentenced him pursuant to remand, the court lacked jurisdiction to do so.

Onward, to the Merits

Analysis

The Conflict

The Second District has held that a trial court must inform a defendant who is on PRC and who pleads guilty to a new felony that the trial court has the discretion to revoke PRC and impose a prison term which will run consecutively to any prison term the court imposes for the new felony. This is the view ultimately accepted by the lead opinion.

The Fifth and Eighth Districts have held that Crim. R. 11 does not require the trial court to inform the defendant of the possible effects of his guilty plea to a new offense on his PRC violation. This is the position taken by the dissenters.

Lead Opinion

Executive Summary

The potential sentence for a PRC violation is part of the “maximum penalty involved” when a defendant pleads guilty to a new felony, and the defendant must be so advised.

Understanding the Maximum Penalty Involved

Criminal Rule 11(C)(2)(a) requires that a pleading defendant understand the nature of the charge and the maximum penalty involved. R.C. 2929.141 provides that when a defendant who is on PRC is convicted of or pleads guilty to a new felony, the trial judge may, but is not required to, terminate the PRC and convert it into additional prison time, which if imposed must be served consecutively to the prison time for the new felony. This additional penalty is called a judicial sanction.

The state argues that a trial court does not need to inform a defendant of this judicial sanction, relying on State v. Johnson, rather than the language of the statute and the rule. The lead opinion rejects this argument because Crim.R.11(C)(2)(a) has been amended since Johnson, and the facts in Johnson are dissimilar to those in Bishop–Johnson was told of the potential sentence for each individual offense, but was just not told the sentences for each could run consecutively, while Bishop was not told he was also subject to a separate, consecutive 12-month sentence for his PRC violation.

More significantly, sentences imposed under R.C. 2929.141(A) do not stand alone—they may be imposed only upon conviction for or a guilty plea to a new felony, making the sentence for the new felony and the sentence for committing a new felony while on PRC “inextricably intertwined,” and thus undeniably part of the maximum penalty in this case.

No Prejudice Need Be Shown Here

Generally, a trial court need only substantially comply with the non-constitutional advisements in Crim. R. 11 (C)(2)(a). But when there has not been substantial compliance, the reviewing court must decide whether there was partial compliance or a complete failure to comply with the rule. In the event of a complete failure to comply with the rule, the plea must be vacated, and that is what happened here. The trial court completely failed to inform Bishop of the possibility of a consecutive prison sentence, so Bishop need not show prejudice.

Bottom Line

The certified question is answered in the affirmative and the judgment of the Second District is affirmed.

Justice Kennedy’s Dissent

In A Nutshell

This is Kennedy’s position in a nutshell. And she goes deep into the weeds to get there.

“… a postrelease-control violation does not result in a criminal ‘charge’ because it is not a new criminal offense and involves only a possible judicial sanction separate from the punishment that may be imposed for the new felony. Therefore, because the trial court is not required to advise the accused about the judicial sanction that may be imposed pursuant to R.C. 2929.141(A), I dissent and would answer the certified question in the negative and reverse the judgment of the Second District Court of Appeals.”

Facts Significant to Kennedy

At the plea hearing, neither Bishop nor his lawyer told the trial court Bishop was on PRC when he committed the new felony, and there was no objection to the court’s failure to inform Bishop about the possible judicial sanction that might subject him to a consecutive prison term for the PRC violation, There was also no objection at sentencing when the judge did impose the 12-month consecutive sentence as a sanction for the PRC violation.

Pertinent Language

There is no ambiguity in Crim. R. 11(C)(2)(a). As has become one of her trademarks, Justice Kennedy supplies definitions for undefined words, in this case, “plea,” “charges,” and “maximum penalty,” in concluding that the Rule only required the trial court to advise Bishop of the maximum penalty for the charged offense—here possession of heroin–which was up to 12 months in prison and a $2500 fine. The trial court did exactly that at the plea hearing. And, consistent with Johnson, the trial judge had no duty to explain what might happen later in the judge’s discretion. There is no charge brought for a violation of PRC because a PRC violation is not a separate crime, and it is not part of the charge resolved by a guilty plea to a new felony. It is part of the original sentence that imposed the PRC. It is not punishment for the commission of a new offense.

Beware the Parade of Consequential Horribles

The reasoning of the lead opinion could also apply to an offender who violates community-control sanctions by committing a new offense. It could add fuel to the long-standing debate about whether failure to impose PRC properly results in a sentence that is void or voidable. And since the trial court usually doesn’t know that an offender was on PRC at the time of the offense unless the defendant or counsel volunteers that information, the court wouldn’t know it was supposed to give the advisement now required. This provides further incentive for the accused to conceal this information. Bad, bad lead opinion for second-guessing the legislature’s policy choice that the violation of PRC is not a crime.

Justice Fischer’s Dissent

In a Nutshell

“When a defendant pleads guilty to a new felony offense while on postrelease control for a prior felony, Crim.R. 11(C)(2)(a) does not require a trial court to advise that defendant at the plea hearing for the new felony offense of the court’s sentencing discretion under R.C. 2929.141(A) to terminate the defendant’s existing postrelease control and impose a consecutive prison sentence for the postrelease-control violation.”

Interplay Between Crim. R. 11(C)(2)(a) and R.C. 2929.141(A)

Justice Fischer disagrees with the lead opinion’s ultimate conclusion that by any fair reading of Crim. R. 11(C)(2), the potential 2929.141(A) sentence is part of the maximum penalty involved in the case, nor does he think the case law supports that conclusion. To him, Crim. R. 11(C)(2) does not require the advisement of the trial court’s discretionary authority under R.C. 2929.141(A).

While acknowledging the amendment of Crim. R. 11(C)(2) since Johnson, Fischer doesn’t think the facts in that case had any bearing on the court’s interpretation of “maximum penalty involved,” which meant the penalty for the crime for which the plea was offered, not “any and all possible future consequences of the plea.” To him, “the maximum penalty involved” means the maximum penalty for the offense to which the defendant pleads guilty (here, possession of heroin, if you are lost) not any collateral punishments or consequences of that plea (here, the judicial sanction of a consecutive prison term for the PRC violation). And he agrees with Justice Kennedy that the legislature made it clear that the judicial sanction permitted under R.C. 2929.141(A) is imposed for the violation of a defendant’s existing PRC, not for the offense itself.

Fischer would find that the trial court did comply with Crim. R. 11(C)(2) by notifying Bishop of the maximum penalty for possession of heroin, including a fine and jail time, and did not need to inform him of its discretionary authority to impose the judicial sanction for violating the terms of his PRC, imposed as part of his prior felony conviction.

Additionally, Fischer adds in his own dicta that neither party argued that some statute, constitutional mandate, or rule other than Crim. R. 11(C)(2) independently requires the advisements about judicial sanctions for a PRC violation either at sentencing or some other time, and that a defendant is not foreclosed from doing so.

Burdening the Trial Courts

Like Justice Kennedy, Justice Fischer writes his own parade of horribles for trial courts as a result of this decision. What happens when the court is unaware of the defendant’s existing PRC? Or the sanction is not imposed by the judge who sentenced the defendant to PRC in the first place? Or occurs in a different jurisdiction? All trial judges will now have to be aware of every defendant’s existing PRC. Must they do their own investigation on this before a guilty plea? Will prosecutors have to provide the trial court with that information? Or the defendant? Like Kennedy, Fischer thinks the practical reality of the lead opinion’s holding is to allow for the potential abuse of the plea system by defendants, particularly that of invited error.

Subbing Judge Susan Brown joined this dissenting opinion.

Case Syllabus

None

Concluding Observations

I don’t really have many. I thought Bishop had the better argument, but didn’t think he had the votes, mostly because I thought the case would get bogged down in mootness (which the opinion did, but it turned out this was one big red herring.)