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State of Ohio v. Clarence L. Oliver

October 14, 2011

STATE OF OHIO APPELLEE
v.
CLARENCE L. OLIVER APPELLANT



Trial Court No. 09 CR 1475

The opinion of the court was delivered by: Handwork, J.

Cite as State v. Oliver,

DECISION AND JUDGMENT

{¶1} This is an appeal from a judgment issued by the Sandusky County Court of Common Pleas, following appellant's guilty plea pursuant to a plea agreement. Because we conclude that appellant's guilty plea was not entered knowingly or intelligently, we reverse and remand.

{¶2} Appellant, Clarence Oliver, was originally indicted on three offenses:

Count One--felonious assault, in violation of R.C. 2903.11(A)(1), Count Two--felonious assault, in violation of R.C. 2903.11(A)(2), and Count Three--possession of a firearm in a liquor permit premises, in violation of R.C. 2923.121(A). The charges stemmed from a bar fight incident which involved a group of 13 people. Allegedly, during the altercation, appellant threw a broken glass, striking an employee, who was injured. Appellant also was carrying an unloaded firearm.

{¶3} Pursuant to a plea agreement, appellant pled guilty to a lesser included offense of attempted felonious assault, in violation of R.C. 2903.11(A)(2) and 2923.02

and the firearm charge. According to the plea hearing, the remaining count was to be dismissed.*fn1 The court sentenced appellant to the maximum allowed term of five years for the attempted felonious assault conviction, and to one year incarceration for the firearm charge, to be served concurrently.

{¶4} Appellant now appeals arguing the following three assignments of error:

{¶5} "FIRST ASSIGNMENT OF ERROR: Appellant's guilty plea was not made knowingly and voluntarily because the trial court misinformed appellant about his eligibility for judicial release. The trial court therefore erred in accepting appellant's plea of guilty.

{¶6} "SECOND ASSIGNMENT OF ERROR: The mandatory sentencing considerations of Ohio Revised Code § 2929.11(A) were frustrated in this case, in that the trial court at the time of sentencing expressed its intent to consider a motion for judicial release but imposed a sentence under which judicial release was a legal impossibility.

{¶7} "THIRD ASSIGNMENT OF ERROR: For the reasons set forth in the First Assignment of Error, appellant's guilty plea was not made knowingly and voluntarily, and therefore his conviction was entered in violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution."

{¶8} We will address all three assignments of error together. In his first and third assignments of error, appellant contends that his guilty pleas were not knowingly and intelligently made because the trial court misrepresented his eligibility for judicial release. Specifically, appellant argues in his second assignment of error, that the statute which purportedly permits judicial release, creates a legal impossibility for such release for an offender sentenced to exactly five years. Appellant argues that the trial court misled him by representing at the plea hearing that he would be eligible for judicial release and then imposing a sentence of five years that renders him ineligible for judicial release.

{¶9} We initially note that, contrary to appellee's suggestion, appellant's failure to file a motion to withdraw his plea in the trial court does not preclude him from challenging the knowing, intelligent, and voluntary nature of his plea in this court. A defendant may seek to vacate his guilty plea either by filing a motion to withdraw the plea in the trial court or upon direct appeal. State v. Sarkozy, 117 Ohio St.3d 86, 2008- Ohio-509, paragraph one of the syllabus. See, also, State v. Ealom, 8th Dist. No. 91455, 2009-Ohio-1365, ¶ 5, fn. 1 (applying Sarkozy where ...


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