Opinion
No. 106894
05-01-2019
STATE OF OHIO, Plaintiff-Appellant, v. BOBBY NIX II, Defendant-Appellee
Appearances: Bobby Nix, II, pro se. Khalilah A. Lawson, for appellee.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION GRANTED Cuyahoga County Court of Common Pleas
Case No. CR-17-623461-A
Application for Reopening
Motion No. 525685
Appearances:
Bobby Nix, II, pro se. Khalilah A. Lawson, for appellee. EILEEN A. GALLAGHER, J.:
{¶ 1} Applicant, Bobby Nix, II, filed a timely application to reopen his appeal in State v. Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702, pursuant to App.R. 26(B). He argues that appellate counsel was ineffective for failing to argue that Nix's plea was entered less than knowingly, intelligently and voluntarily where the trial court failed to explain that, by pleading guilty, Nix could face a consecutive prison sentence for a violation of postrelease control. He also argues that the trial court failed to properly terminate postrelease control before imposing a prison term. We grant the application.
Background
{¶ 2} Nix was charged by information and charged with one count each of drug trafficking, drug possession and possessing criminal tools. To resolve these charges, he entered into a plea agreement with the state. In exchange for his guilty plea to a single charge of drug possession, the state agreed to dismiss the charges of drug trafficking and possessing criminal tools. As a result, Nix received an 11-month prison sentence. The trial court also imposed a prison sentence of the remainder of the postrelease control sentence in a separate case to be served consecutive to the 11-month sentence.
{¶ 3} Pro se, Nix filed a motion for leave to file a delayed appeal and notice of appeal, which this court granted. Id. at ___ 7. The court also appointed counsel for Nix. On appeal, appellate counsel raised a single assignment of error: "his sentence should be vacated because the trial court failed to notify him of his appellate rights after sentencing, in violation of Crim.R. 32(B)." Id. at ___ 3. This court overruled this assigned error, affirming his conviction and sentence. We noted that the remedy for a failure to inform defendants of their appellate rights was to have the court reenter judgment and reinstate the time within which the defendant may appeal. Id. at ___ 6.
{¶ 4} Nix then timely filed an application to reopen his appeal pursuant to App.R. 26(B) raising two proposed assignments of error:
I. Appellate counsel was ineffective for failing to raise the appellant had not knowingly, voluntarily, and intelligently plead guilty to the possession charge because the trial court had not informed him of all the maximum penalties involved including [R.C.] 2929.141 time that must be consecutive to the prison time for the new offense thus violating VI [sic] amendment to the U.S. Constitution.The state has failed to file a brief in opposition. For ease of discussion, these proposed assigned errors will be addressed out of order.
II. Appellate counsel was ineffective for failing to raise the trial court failed to follow the statutory provisions pursuant to R.C. 2929.141 in termination of the appellant's existing postrelease control before imposing the remainder of the postrelease control as a consecutive prison sentence to the new felony prison sentence violating Due Process Clause of the 14th Amendment under the U.S. Constitution.
Law and Analysis
Standard for Ineffective Assistance of Appellate Counsel
{¶ 5} Pursuant to App.R. 26(B), an appellant in a criminal matter may move to reopen an appeal based on a claim of ineffective assistance of appellate counsel. App.R. 26(B)(1). The test for ineffective assistance of trial counsel, found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the appropriate standard to assess whether appellate counsel was ineffective under App.R. 26(B)(5). The applicant "must prove that his counsel were deficient for failing to raise the issue he now presents, as well as showing that had he presented those claims on appeal, there was a 'reasonable probability' that he would have been successful." State v. Spivey, 84 Ohio St. 3d 24, 25, 701 N.E.2d 696 (1998). To prevail on an application to reopen, defendant must make "a colorable claim" of ineffective assistance of appellate counsel under the standard established in Strickland.
Imposition of Sentence Under R.C. 2929.141
{¶ 6} Nix asserts that appellate counsel was ineffective for not arguing that the trial court erred when it imposed sentence for a violation of postrelease control. He claims that the court was required to first state that it was terminating postrelease control and only then state that it was imposing sentence for a violation of postrelease control. However, the sentence imposed for a violation of postrelease control, itself, terminates the period of postrelease control. R.C. 2929.141(A)(1) provides in part that "[t]he imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony." Therefore, by operation of law, the period of postrelease control was terminated when the court imposed sentence. Appellate counsel cannot be said to be ineffective for failing to argue this issue. Knowing, Intelligent, and Voluntary Guilty Plea Under Crim.R. 11
{¶ 7} Nix argues his appellate attorney was ineffective for failing to argue that Nix entered his plea less than knowingly, intelligently, and voluntarily where the trial court informed him that his plea "may" result in a consecutive sentence for a violation of postrelease control in another case when a consecutive sentence is required under R.C. 2929.141.
{¶ 8} Before accepting a felony guilty plea, a trial court must engage the defendant personally and explain the rights set forth in CrimR. 11(C) to ensure that the defendant is entering a guilty plea knowingly, intelligently, and voluntarily. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ___ 25-27. Crim.R. 11(C)(2)(a) requires a sentencing court to explain, among other things, "the nature of the charges and of the maximum penalty involved * * *." The failure to do so may render a guilty plea less than knowing, voluntary, and intelligent, and thus subject to revocation. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.
{¶ 9} Here, Nix's claim centers around an explanation of the maximum penalty. This is a nonconstitutional right, subject to a substantial compliance analysis. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect." (Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). A demonstration of prejudice generally includes a showing that the plea would otherwise not have been entered. Veney at ___ 15. Even for nonconstitutional rights, however, where a court completely fails to comply with the explanation of rights necessitated by Crim.R. 11, a defendant need not show prejudice. Clark at ___ 32. If the court partially complies, then a defendant is required to show prejudice. Id.
{¶ 10} At the change of plea hearing, the trial court explained the potential penalties Nix faced. As part of that colloquy, the trial court explained,
THE COURT: Mr. Nix, you may face additional penalties in those other cases [for which you are on postrelease control,] including prison time which may run consecutive on any prison time you may receive in this case, do you understand?(Tr. 16.)
DEFENDANT NIX: Yes, Your Honor.
{¶ 11} Within the parameters of R.C. 2929.141, a trial court has discretion to impose additional prison time for a violation of postrelease control, but once the court decides to impose a prison sentence, that sentence must be imposed consecutive to other sentences. R.C. 2929.141(A)(1). While Nix's appeal was pending, the Ohio Supreme Court issued a decision, explaining that
when a defendant who is on postrelease control is convicted of or pleads guilty to a new felony, the trial court may terminate the postrelease-control term and convert it into additional prison time. R.C. 2929.141(A)(1). This additional penalty is often referred to as a "judicial sanction." See, e.g., State v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 25. The additional term can be as long as the greater of 12 months or the amount of time that remained on the existing postrelease-control term. R.C. 2929.141(A)(1). The court is not required to impose an additional prison term for the violation. See id. But if it does, the defendant must serve the additional term consecutively to the prison term for the new felony. Id.State v. Bishop, Slip Opinion No. 2018-Ohio-5132, ¶ 13.
{¶ 12} In a divided opinion, the Bishop court resolved a split between the Second Appellate District and the Fifth and Eighth Appellate Districts. The court determined that Crim.R. 11(C)(2)(a) "requires a trial court to advise a criminal defendant on postrelease control for a prior felony, during his plea hearing in a new felony case, of the trial court's authority under R.C. 2929.141 to terminate the defendant's existing postrelease control and to impose a consecutive prison sentence for the postrelease-control violation." Bishop at ___ 21.
{¶ 13} Here, the trial court informed Nix that he faced additional prison time as a result of his guilty plea, and this additional sentence may be imposed consecutive to any other prison term. The court failed to make clear the mandatory, consecutive nature of any sentence imposed pursuant to R.C. 2929.141. This presents a colorable claim of ineffective assistance of appellate counsel. This is especially true where the assignment of error that was raised on appeal essentially resulted in Nix raising no prejudicial error at all. State v. Eaton, 8th Dist. Cuyahoga No. 100147, 2015-Ohio-170, ¶ 12. This court finds that there is a reasonable probability that had appellate counsel presented this assigned error, the results of the appeal may have been different. There exists a genuine issue as to whether Nix was deprived of the effective assistance of appellate counsel and whether counsel should have asserted the above issue after the Bishop decision was issued during the pendency of the appeal. As a result, his application is well taken.
{¶ 14} The appeal will be limited to Nix's first proposed assignment of error. The issue to be decided is whether appellant knowingly, voluntarily, and intelligently pled guilty to drug possession based on the trial court's explanation of the possible sentence under R.C. 2929.141.
{¶ 15} The court appoints Richard Tadd Pinkston, 125 East Erie Street, Painesville, Ohio 44077, 440-250-3200, to represent Nix. Counsel is instructed to apply for compensation within 30 days after journalization of this court's final decision in the reopened appeal. Loc.App.R. 46(C).
{¶ 16} The clerk of the court of appeals is instructed to reassemble the record in 8th Dist. Cuyahoga No. 106894 as it existed during this court's original review of the judgment in State v. Nix, Cuyahoga C.P. No. CR-17-623461-A.
{¶ 17} Nix's brief on the merits is due 20 days from the date of this entry. Appellee's brief is due within 20 days of the filing of Nix's brief. Nix's reply brief, if any, is due within 10 days of the filing of appellee's brief. All briefs shall conform to the appellate rules, including the local rules.
{¶ 18} Application for reopening is granted. EILEEN A. GALLAGHER, PRESIDING JUDGE ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR