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7th District appellate court vacates plea in meth case

TRACEY BLAIR
Legal News Reporter

Published: April 9, 2020

A defendant was not properly informed of his rights under Crim.R. 11 when he entered a guilty plea in a drug case, the 7th District Court of Appeals recently ruled.
David Joseph Allen appealed his Dec. 5, 2017, conviction in Belmont County Common Pleas Court for aggravated possession of a controlled substance. He argued that the trial court failed to notify him at the plea hearing of the maximum possible penalty he faced, that his sentence was mandatory, or that he was ineligible for probation or community control sanctions.
The 7th District vacated the plea and remanded the case.
Allen was originally also charged with three counts of the sale or offer to sell a controlled substance (methamphetamine), third-degree felonies with specifications that the offense was committed within 1,000 feet of a school.
Allen was sentenced to the maximum eight years in prison. The trial court also imposed post-release control, ordered restitution of drug money, and suspended his driver’s license for one year.
Allen argued the trial court’s sole reference to the maximum possible penalty was: “Do you understand what the maximum penalty could be?”
Because the court made only a limited reference to the maximum possible penalty without any explanation, made no reference to the mandatory nature of the prison term, and made no reference to his ineligibility for community control sanctions, he claimed the trial court wholly failed to comply with Crim.R. 11 and that he need not claim prejudice.
In her 3-0 opinion, appellate Judge Cheryl L. Waite noted that under Crim.R. 11(C)(2), the trial judge must enter into a colloquy with a defendant to review the rights that the defendant is waiving as a result of the guilty plea, and the consequences of such plea.
Waite compared Allen’s case to State v. Tutt, 2015-Ohio-5145.
“In Tutt, the trial court advised the defendant of the maximum possible penalty he faced but failed to inform him that his sentence was mandatory and that he was ineligible for community control,” Waite said in her opinion. “On appeal, the court contrasted the facts of the case from those in State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), where the court held that, based on the totality of the circumstances, it was apparent Mr. Nero understood he faced a mandatory sentence and was ineligible for community control sanctions because he acknowledged that he would face a prison sentence and asked for time to ‘straighten out [his] affairs.’
“In Tutt, the record was devoid of evidence that the appellant understood the mandatory nature of his prison sentence or that he was ineligible for community control sanctions. In addition, the Tutt court considered the nature of the offense. The appellant pleaded guilty to a serious drug offense but not a ‘heinous crime* * * for which a defendant would have no reason to expect the imposition of community control sanctions.’ The appellate court noted that this was not a case where the trial court merely misstated the advisement.”
The 7th District found Allen’s case was similar to Tutt’s in that each defendant faced a mandatory prison sentence and was ineligible for a community control sanction.
“The trial court in both cases completely neglected to so advise the defendants. Like Tutt, the instant record is devoid of any evidence that would allow us to find that, under the totality of the circumstances, appellant understood that he faced a mandatory prison sentence,” Waite wrote. “Unlike Nero, appellant did not concede at any point that he faced a prison sentence nor did he ask for time to get his affairs in order. Like Tutt, appellant faced a serious offense but not a particularly heinous offense (aggravated possession of methamphetamine). Importantly, in the instant matter the trial court completely failed to inform appellant of the maximum possible penalties that he faced. As such, this record clearly establishes the trial court failed in total to inform appellant of a nonconstitutional right. “
The appellate court further found that a prejudice analysis is not required because the trial court wholly failed to inform the defendant of a nonconstitutional right.
Appellate judges Carol Ann Robb and David D’Apolito concurred. The case is cited State v. Allen, 2020-Ohio-811.


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