Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty.,
Montgomery County Prosecutor's Office, Appellate
Division, Montgomery County Courts Building, Attorney for
BRYAN, Atty. Reg. Attorney for Defendant-Appellant
1} Dustin S. Bishop appeals from his conviction and
sentence on one count of drug possession, a fifth-degree
2} Bishop advances two assignments of error. First,
he contends the trial court erred in accepting a guilty plea
that he did not enter knowingly, intelligently, and
voluntarily. Second, he claims the trial court abused its
discretion in failing to address factual inaccuracies in his
presentence-investigation report as required by R.C.
3} The record reflects that Bishop pled guilty to
drug possession in exchange for dismissal of a misdemeanor
drug-paraphernalia charge. Following a pre-sentence
investigation, the trial court imposed a nine-month prison
sentence for the drug possession. Because Bishop was on
post-release control (PRC) when he committed the drug
offense, the trial court also revoked PRC and imposed a
consecutive one-year prison sentence for the PRC violation.
4} In his first assignment of error, Bishop
challenges the validity of his guilty plea. Specifically, he
contends the trial court never advised him that he faced a
consecutive prison term if it revoked his existing PRC. In
support, Bishop relies on State v. Branham, 2d Dist.
Clark No. 2013 CA 49, 2014-Ohio-5067, and State v.
Landgraf, 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448.
5} In Branham, the defendant signed a plea
form advising him that his guilty plea could result in
revocation of his PRC and that any new sentence imposed for
the PRC violation could be imposed consecutively. At the
defendant's plea hearing in Branham, the trial
court simply told him that he could be sentenced for the PRC
violation. Branham at ¶ 11-14. On appeal, this
court vacated the plea and reversed, holding that the trial
court was required to inform the defendant that if it revoked
PRC, a consecutive sentence for the PRC violation was
mandatory under R.C. 2929.141(A)(1).
6} In Landgraf, "the trial court did
not inquire at the plea hearing whether [the defendant] was
on post-release control at the time of his offense, and the
trial court did not address any of the consequences that [the
defendant] faced under R.C. 2929.141 if [he] were to plead
guilty to a new felony." Landgraf at ¶ 22.
On appeal, this court held that 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. Id. at ¶ 23. Although the plea
form in Landgraf addressed the consequences of the
defendant pleading guilty to a felony committed while on PRC,
this court found the form insufficient because it stated that
any prison term imposed for the PRC violation could
be imposed consecutively, not that it was
required to be imposed consecutively. Id.
at ¶ 24.
7} In the present case, the State concedes that
"Branham and Landgraf directly support
Bishop's first assignment of error[.]"
(Appellee's brief at 7). We agree. In fact, the
circumstances of the present case indicate less information
about consecutive PRC sentencing was provided than the
circumstances presented in either of the foregoing cases.
Unlike Branham, the trial court here did not mention
Bishop being on PRC, or the potential for revocation of his
existing PRC, or any sentencing implications of revoking his
existing PRC. Unlike Landgraf and Branham,
the plea form here did not mention PRC or any consequences of
Bishop pleading guilty while on PRC for a prior offense.
Consequently, we conclude, based on the authority of
Branham and Landgraf, that the trial court
committed prejudicial error in failing to advise Bishop, at
the time of his plea, that any additional sentence imposed
for his current PRC violation must be served consecutively.
See Landgraf at ¶ 29 (Hall, J., concurring)
("That is the law in this district, and the doctrine of
stare decisis dictates adherence to it."). Although the
State urges us to "overrule" the prior panel
opinions in Branham and Landgraf, we
decline to do so. Bishop's first assignment of error is
8} In his second assignment of error, Bishop
contends the trial court erred in failing to address alleged
factual inaccuracies in his PSI report at sentencing. In
light of our determination above that Bishop's plea must
be vacated, this assignment of error is overruled as moot.
9} Having sustained Bishop's first assignment of
error, we hereby reverse the trial court's judgment,
vacate his guilty plea, and remand the matter ...