[Cite as State v. O'Grady, 2016-Ohio-1275.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                     Court of Appeals No. S-15-015

        Appellee                                  Trial Court No. 14 CR 983

v.

Jason M. O’Grady                                  DECISION AND JUDGMENT

        Appellant                                 Decided: March 25, 2016

                                              *****

        Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and
        Norman P. Solze, Assistant Prosecuting Attorney, for appellee.

        Christopher M. Marcinko, for appellant.

                                              *****

        JENSEN, P.J.

        {¶ 1} Appellant, Jason O’Grady, appeals the judgment of the Sandusky County

Court of Common Pleas sentencing him to eight years in prison and suspending his

driver’s license, for life, following his plea of guilty to aggravated vehicular homicide.
For the reasons set forth below, we reverse the judgment, vacate the plea and sentence,

and remand the matter for further proceedings.

       {¶ 2} An indictment was issued against O’Grady after an October 24, 2014, one-

vehicle motorcycle accident which resulted in the death of his passenger, Tianna V.

Graham. Count 1 of the indictment alleged O’Grady violated R.C. 4511.19(A)(1)(A),

operating a vehicle under the influence, a misdemeanor. Count 2 of the indictment

alleged O’Grady violated R.C. 4511.19(A)(2), operating a vehicle under the influence, a

misdemeanor. Count 3 of the indictment alleged O’Grady violated R.C. 4510.14, driving

under OVI suspension, a misdemeanor of the first degree. Count 4 of the indictment

alleged O’Grady violated R.C. 2903.06(A)(1), aggravated vehicular homicide, a felony of

the second degree. Counsel was appointed and O’Grady entered pleas of not guilty to all

charges in the indictment.

       {¶ 3} O’Grady entered into plea negotiations with the state. O’Grady agreed to

enter a plea of guilty to Count 4 of the indictment in exchange for the state’s dismissal of

the remaining charges. A plea hearing was held December 23, 2015, and the following

colloquy took place:

              THE COURT: * * * Mr. O’Grady, I need to talk to you. I need to

       make sure you’re making a knowing, intelligent and voluntary waiver of all

       your Constitutional rights in entering this plea. Do you understand?

              THE DEFENDANT: Yes, Ma’am.




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              THE COURT: Okay. Then I’m going to start here with the form.

     You can follow along and – I’ve got it in writing there. If you want to read

     along with the – the Court, that’s fine. I won’t be reading it verbatim, but

     I’ll read a lot of it into the record. It states, you Jason O’Grady * * * desire

     to enter a plea of guilty to the crime of aggravated vehicular homicide in

     Count 4 under the indictment, which you’ve been advised is a second

     degree felony, a violation of 2903.06(A)(1). Is that what you wish to do

     today?

              THE DEFENDANT: Yes, ma’am.

              ***

              THE COURT: Okay. You could be imprisoned for a term of two to

     eight years for each count of a second degree felony; do you understand

     that?

              THE DEFENDANT: Yes, ma’am.

              ***

              THE COURT: Okay. You’re also subject to financial sanctions,

     including a fine of $15,000 for each count of a second degree felony;

     restitution of the victim of your crime, if any; reimbursement of the cost of

     this case and could include reimbursement of the costs incurred in your

     community sanction, if any; do you understand?

              THE DEFENDANT: Yes, ma’am.




3.
The court then discussed the constitutional rights O’Grady would be giving up by

entering a plea of guilty. The court instructed O’Grady that “[i]f a prison term is imposed

in this case, you’re subject to a period of Post-Release Control for three years after your

prison term, and if you violate Post Release Control, you could be sentenced to an

additional term of prison up to nine months for each violation up to a maximum of half of

the original sentence.” At the request of the state, the court took an allocution from the

defendant regarding the facts of his plea. Thereafter, the trial court accepted the guilty

plea and found O’Grady guilty of aggravated vehicular homicide. He was remitted to the

Adult Probation Department for a presentence investigation.

       {¶ 4} A sentencing hearing was held on April 8, 2015. However, before the court

issued its sentence, the state brought two “preliminary matters” to the court’s attention as

follows:

              [STATE]: Yes, your Honor. Thank you. Defendant changed his

       plea to Count 4, aggravated vehicular homicide, as a felony of the second

       degree. The penalty section of the indictment indicates that a term of two

       to eight years imprisonment and * * * up to five -- $15,000. The – the last

       sentence indicates the Court shall impose a mandatory prison term on the

       offender as described in section – in Division E of this section. There is a

       mandatory prison time as part of this sentencing structure by the statute.

       The – the Change of Plea, which we entered in this Court last time we were

       here did not have that specific language in Paragraph 1, the penalty section.




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       It says, “I could be imprisoned for a term of * * * two to eight years for

       each charge of the second degree,” so it did not carry over that language as

       it usually does.

              I have spoken with [O’Brien’s attorney], and I believe she’s spoken

       with the Defendant. I believe he’s prepared to waive any defect in Change

       of Plea form and acknowledge that he understands that any prison term

       would be – imposed would be mandatory.

              Secondly, there is no indication in the Change of Plea form that there

       is a lifetime license suspension as part of this penalty, and I believe he’s

       also going to acknowledge that he understands that and waives any defect

       in the Change of Plea form regarding the lifetime suspension, and then we

       would ask to be heard prior to sentencing.

       {¶ 5} O’Grady was sentenced to eight years in the Ohio Department of

Rehabilitation and Corrections and his driver’s license was suspended for life. He now

appeals and asserts a single assignment of error for our review:

              The appellant’s plea of guilty must be vacated as it was not entered

       with full advice of the consequences as required by Crim.R. 11 and the Due

       Process Clause of the Constitution of the United States and could not have

       been knowing and voluntary.

       {¶ 6} In his sole assignment of error, O’Grady contends that the trial court did not

substantially comply with Crim.R. 11(C) when it failed to notify him, prior to accepting




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his guilty plea, of the lifetime driver’s license suspension and the mandatory nature of the

2-8 year prison sentence.

       {¶ 7} In response, the state contends that while the trial court did not, at the plea

hearing, specifically explain that the prison sentence would be mandatory, it did advise

O’Grady of the mandatory nature of the prison sentence at the sentencing hearing. The

state did not address O’Grady’s argument concerning the trial court’s failure to notify

him of the lifetime driver’s license suspension prior to sentencing.

       {¶ 8} Crim.R. 11(C)(2) states, in relevant part, as follows:

              In felony cases the court * * * shall not accept a plea of guilty or no

       contest without first addressing the defendant personally and doing all of

       the following:

              (a) Determining that the defendant is making the plea voluntarily,

       with understanding of the nature of the charges and of the maximum

       penalty involved, and if applicable, that the defendant is not eligible for

       probation or for the imposition of community control sanctions.

              (b) Informing the defendant of and determining that the defendant

       understands the effect of the plea of guilty or no contest, and that the court,

       upon acceptance of the plea, may proceed with judgment and sentence.

              (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant is waiving the rights to jury trial,

       to confront witnesses against him or her, to have compulsory process for




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       obtaining witnesses in the defendant’s favor, and to require the state to

       prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

       defendant cannot be compelled to testify against himself or herself.

       {¶ 9} As noted by O’Grady, this court has previously held that “[i]nforming a

defendant in a written plea agreement of an operator’s license suspension as the result of

a guilty plea constitutes substantial compliance with Crim.R. 11, irrespective of whether

an oral notice is also given.” State v. Minton, 6th Dist. Ottawa Nos. OT-13-030, OT-13-

031, 2014-Ohio-2218, ¶ 11. In so holding, we distinguished Minton from the Second

District Court of Appeal’s decision in State v. Walz, 2d Dist. Montgomery No. 23783,

2012-Ohio-4627, a case directly on point.

       {¶ 10} In Walz, the sentencing court made no mention of a mandatory license

suspension during the plea colloquy or on the plea form. When a due process argument

was made on appeal, the Second District Court of Appeals held “[t]he trial court’s failure

in this regard prejudiced Walz to the extent that his plea was rendered in less than a

knowing, intelligent, and voluntary manner, thus requiring that his conviction * * * be

reversed.” The Walz court explained:

              A trial court must strictly comply with Crim.R. 11 as it pertains to the

       waiver of federal constitutional rights. These include the right to trial by

       jury, the right of confrontation, and the privilege against self-incrimination.

       * * * However, substantial compliance with Crim.R. 11(C) is sufficient

       when waving non-constitutional rights. * * * The non-constitutional rights




7.
       that a defendant must be informed of are the nature of the charges with an

       understanding of the law in relation to the facts, the maximum penalty, and

       that after entering a guilty plea or a no contest plea, the court may proceed to

       judgment and sentence. Walz at ¶ 11 (citations omitted).

We agree with Walz and extend the Second District’s reasoning and holding to the case

before us.

       {¶ 11} The same consideration applies to the trial court’s failure, before accepting

a guilty plea, to notify O’Grady of the mandatory nature of the prison sentence he would

be receiving. During the plea hearing the trial court stated, “[y]ou could be imprisoned

for a term of two to eight years for each count of a second degree felony.” Later, when

discussing postrelease control, the sentencing court indicated, “[i]f a prison term is

imposed in this case, you’re subject to a period of Post Release Control for three years

after your prison term.” Neither statement accurately reflected the mandatory nature of

the penalty.

       {¶ 12} Pursuant to the above, we find that O’Grady’s plea was rendered in less

than a knowing, intelligent, and voluntary manner. O’Grady’s assignment of error is

found well-taken.

       {¶ 13} The judgment of conviction is reversed. O’Grady’s plea and sentence are

vacated, and the matter is remanded to the trial court for further proceedings. The costs

of this appeal are assessed to appellee under App.R. 24.

                                                                         Judgment reversed.




8.
                                                                      State v. O’Grady
                                                                      C.A. No. S-15-015




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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