The Akron Legal News

Plea vacated because court failed to inform defendant of mandatory sentence

ANNIE YAMSON
Special to the Legal News
Published: October 15, 2013

The 12th District Court of Appeals released an opinion recently vacating a defendant’s plea of admit to a repeat violent offender specification in the Preble County Court of Common Pleas.

The three-judge appellate panel vacated the plea after finding that the court did not properly inform the defendant that his sentence would be served prior and consecutive to his other sentences.

The defendant, William Whitaker, was indicted in January 2012 on two counts of kidnapping, two counts of felonious assault and one count of coercion.

The indictment also included the repeat violent offender specification.

According to the alleged facts in the indictment, Whitaker kidnaped the victim twice, on Nov. 28, 2011 and five days later on Dec. 3.

The victim, whose name was not released, was able to escape during the first incident but case summary stated that she was not so fortunate in the December kidnapping.

Police were able to locate Whitaker’s whereabouts after he called his mother and the victim’s mother to inform her that she would not see her daughter again.

As a result of the kidnapping, the victim suffered multiple severe injuries including several deep lacerations, broken bones and bruising and swelling on her body.

On July 20, 2012, Whitaker entered guilty pleas to both counts of kidnapping, the felonious assault charges and the coercion count.

He also entered a plea of admit to the repeat violent offender specification.

He was subsequently sentenced to an aggregate term of 43 years in prison.

Eight years were ordered to be served for each of the felonious assault charges, 11 years for each of the kidnapping charges and five years for the repeat violent offender specification.

All of the sentences were ordered to be served consecutively with the exception of a 90-day concurrent prison term for the coercion charge.

Upon appeal, Whitaker argued that his plea of admit to the repeat violent offender specification was not knowingly, intelligently and voluntarily made because, during the Crim.R. 11 colloquy, the trial court failed to advise him of his constitutional rights.

The appellate court disagreed.

“The record shows that the trial court advised (Whitaker) of his constitutional rights, in strict compliance with Crim.R. 11(C) at the outset of the plea hearing,” wrote Judge Michael Powell on behalf of the district court. “The trial court was not required to advise appellant again of his constitutional rights when addressing his plea to the RVO specification.”

Whitaker also claimed the trial court never informed him that his sentence for the repeat violent offender specification was not only mandatory, but that it was required to be served prior to and consecutively to the prison terms imposed for the underlying offenses.

This time, the appellate panel sided with Whitaker.

It found that that court told him that his sentence for the repeat violent offender specification would be “up to 10 year mandatory sentence, and whatever the court orders for that repeat violent offender spec will be mandatory.”

“Thus, contrary to appellant’s assertion, the trial court informed appellant that his sentence for the RVO specification was mandatory,” wrote Judge Powell.

However, before accepting the plea of admit, the court did not inform Whitaker that he would be required to serve the sentence prior to and consecutively to the prison terms for kidnapping and assault.

Judge Powell noted that the Ohio Supreme Court has held that “failure to inform a defendant who pleads guilty to more than one offense that the court may order him to serve any sentences imposed consecutively, rather than concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the plea involuntary.”

“In reaching its holding, the Supreme Court noted that the decision of whether the criminal defendant is to serve the sentences for all his crimes consecutively or concurrently is a matter of sentencing discretion, the exercise of which is committed to the trial court,” wrote Judge Powell.

The state’s highest court concluded that the possibility of consecutive sentences need not be addressed at a plea hearing since it is entirely within the trial court’s discretion whether or not to impose them.

However, Judge Powell stated that the Supreme Court’s holding does not apply when a consecutive sentence is statutorily required to be a part of the maximum penalty a defendant faces.

“Accordingly, compliance with the maximum penalty provision of Crim.R. 11(C)(2) requires the court to inform the defendant, prior to taking a guilty plea, that a charge carries a mandatory consecutive sentence,” Judge Powell wrote.

The appellate panel held that, whether Whitaker was to serve his RVO sentence consecutively or concurrently was not up to the trial court’s discretion. Rather, it was statutorily required that it be served consecutively.

“Thus, a consecutive prison term was a guaranteed consequence of appellant’s plea of admit to the RVO specification,” wrote Judge Powell.

Because the trial court never informed Whitaker that any sentence imposed for the RVO specification would have to be served prior to his other sentences, it failed to comply with Crim.R. 11(C)(2) and Whitaker’s plea of admit was, therefore, not intelligently made.

“Appellant’s plea of admit to the RVO specification is therefore vacated and the cause is remanded to the trial court for appellant to plea anew,” Judge Powell concluded. “Were appellant to deny the specification on remand, the trial court shall conduct further proceedings as necessary.”

Presiding Judge Stephen Powell and Judge Robin Piper concurred.

The case is cited State v. Whitaker, 2013-Ohio-4434.

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