[Cite as State v. Frye, 2012-Ohio-5101.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :       C.A. CASE NO. 24796

vs.                                                  :       T.C. CASE NO. 2011-CR-1827

KEVIN D. FRYE, SR.                                   :       (Criminal appeal from the
                                                              Common Pleas Court)
        Defendant-Appellant                          :

                                                 .........

                                             OPINION

                 Rendered on the           2nd      day of       November       , 2012.

                                                 .........

MICHELE D. PHIPPS, Assistant Prosecuting Attorney, Atty. Reg. No. 0069829, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1626 Westbrook Drive, Beavercreek, Ohio 45434
     Attorney for Defendant-Appellant

                                                 .........


FROELICH, J

        {¶ 1}      Kevin D. Frye appeals from a judgment of the Montgomery County Court of

Common Pleas, which found him guilty on his guilty pleas of escape, assault on a peace

officer, theft, and possession of cocaine. He was sentenced to an aggregate term of three and
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one-half years of imprisonment: two years for escape and twelve months for assault on a

peace officer, to be served consecutively; six months each for theft and possession of cocaine,

to be served concurrently with each other but consecutively to the sentences for escape and

assault      For the following reasons, the judgment of the trial court will be reversed in part,

and the matter will be remanded for reconsideration of the sentence for escape.

          {¶ 2}     The facts of the case are as follows:

          {¶ 3}    On May 28, 2011, Dayton Police officers responded to a robbery complaint.

The victim described to the police the person who had taken her purse and fled in a white

sedan. She was able to give the officers the license plate number of the sedan, which led the

officers to a home where the officers saw a man matching the woman’s description of the

robber exiting the garage and entering the house. The police went to the door, where they

requested and received permission to search the home. The suspect, Kevin Frye, was found

hiding under insulation in the attic. Frye was placed under arrest and patted down, and he

was found to be in possession of cocaine.

          {¶ 4}     In the cruiser, Frye complained that the handcuffs were too tight and that he

was too hot. The officers checked the cuffs and opened the rear windows to allow fresh air to

circulate.    Frye was able to remove the handcuffs.        He then reached through the open

window to the outside handle of the door, opened the door, and got out of the cruiser. The

officers tried to subdue Frye with tasers. Initially, Frye resisted, but the officers were able to

get him back into custody and to transport him to jail.

          {¶ 5}     On June 28, 2011, Frye was indicted on one count each of escape [R.C.

2921.34(A)(1)], possession of cocaine, resisting arrest, and two counts of assault on a police
                                                                                               3


officer. Frye pled guilty to escape, possession, theft, and assault on a police officer; the

remaining counts were dismissed. The trial court sentenced Frye to an aggregate term of

three and one-half years in prison.

        {¶ 6}    Frye appeals from his conviction. Frye’s first appellate attorney filed a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in

which he asserted that he found no potentially meritorious issues for appellate review.

However, in our independent review of the case, an issue came to our attention that was not,

in our view, wholly frivolous. Specifically, we noted that the trial court stated during the plea

colloquy and at the sentencing hearing that it was required to order Frye’s sentence for escape

to be served consecutively to any other sentence he was ordered to serve; however, it appeared

from the language of R.C. 2929.14(C)(2) that the mandate for consecutive sentencing applied

only when a defendant escaped from a jail, prison, or other residential detention facility, and

not to an escape from a police officer’s custody. We appointed new counsel and ordered

additional briefing on this issue and any others which counsel believed to have arguable merit.

 State v. Frye, 2d Dist. Montgomery No. 24796, Decision & Entry (Mar. 27, 2012). The

matter is now ready for our consideration.

        {¶ 7}    Frye raises two assignments of error on appeal. The first assignment of

error states:

                The trial court erred when during the plea hearing it stated that

        defendant’s sentence for escape, ORC 2929.14 and 2921.34, was required

        to be served consecutively to any other sentence imposed.
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        {¶ 8}     Frye contends that the trial court erroneously concluded that his sentence for

escape was required to run consecutively to any other sentence that he received.

        {¶ 9}     R.C.2921.34(A) defines the offense of escape. R.C. 2929.14(C)(2) states, in

relevant part:

        If an offender who is an inmate in a jail, prison, or other residential detention

        facility violates * * * division (A)(1) or (2) of section 2921.34 of the Revised

        Code, * * *, or if an offender who is an inmate in a jail, prison, or other

        residential detention facility or is under detention at a detention facility

        commits another felony while the offender is an escapee in violation of

        division (A)(1) or (2) of section 2921.34 of the Revised Code, any prison term

        imposed upon the offender for one of those violations shall be served by the

        offender consecutively to the prison term or term of imprisonment the offender

        was serving when the offender committed that offense and to any other prison

        term previously or subsequently imposed upon the offender.

        {¶ 10}    Because R.C. 2929.14(C)(2) does not require a consecutive sentence of

imprisonment under the circumstances presented in this case, i.e., where Frye was not an

inmate in a jail, prison, or other residential detention facility, the trial court did err in its

assumption that a consecutive sentence was required.             The State agrees with this

interpretation of the statute, as applied to these facts.

        {¶ 11}    We disagree with Frye’s assertion that due to this error, he was not

“adequately instruct[ed]” about his sentence and his plea was rendered unknowing and

involuntary. At worst, the trial court inadvertently misled Frye into believing that he faced a
                                                                                              5


longer possible prison sentence than was available. As we discussed in State v. Carnicom, 2d

Dist. Miami No. 2003-CA-4, 2003-Ohio-4711, where the trial court also overstated a potential

sentence, we fail to see how a defendant is prejudiced by such a misapprehension on his part.

He cannot earnestly argue that he pled guilty based on a mistaken belief that he faced an

unduly long or consecutive sentence, and that he would not have entered the plea if he had

known that the possible sentence was, in fact, shorter. Id. at ¶ 16. And Frye does not argue

in his brief that he would not have pled guilty had he known that the consecutive sentence was

not mandatory. We see no prejudice to Frye in the entering of his plea.

       {¶ 12}     However, we cannot know whether the trial court would have imposed the

sentence that it did if it had not misunderstood the nature of the requirement set forth in R.C.

2929.14(C)(2). The trial court did not properly exercise its discretion in deciding whether to

make the sentence for escape consecutive to or concurrent with the other sentences, because it

did not realize that it possessed such discretion in this regard. Accordingly, we will remand

to the trial court for it to reconsider the sentence on the conviction for escape.

       {¶ 13}     The first assignment of error is sustained.

       {¶ 14}     Frye’s second assignment of error states:

                Appellant was denied effective assistance of counsel in violation of

       the Fifth, Sixth, and Fourteenth Amendments to the United States

       Constitution and Article I, Section 10 of the Ohio Constitution.

       {¶ 15}     Frye contends that he was denied the effective assistance of counsel because,

at the plea hearing, his attorney expressly agreed with the trial court’s assessment that the

sentence on the count of escape had to be served consecutively to the other sentences, and
                                                                                              6


counsel did not thereafter correct this misperception at the sentencing hearing. In light of our

disposition of the first assignment of error, Frye’s second assignment of error is moot.

       {¶ 16}    The judgment of the trial court will be reversed with respect to the sentence

imposed for escape. We will remand to the trial court for reimposition of this sentence,

keeping in mind that a consecutive sentence is permissible, but not required. In all other

respects, the judgment of the trial court will be affirmed.

                                           .........



FAIN, J., and HENDON, J., concur.
(Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).

Copies mailed to:

Michele D. Phipps, Esq.
Chris Beck, Esq.
Hon. Mary Katherine Huffman
