[Cite as State v. Gibson, 2014-Ohio-5573.]




               IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 : C.A. CASE NO.     2013 CA 112

v.                                                         : T.C. NO.    13CR88

JAMES GIBSON                                               :   (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                   :

                                                           :

                                             ..........

                                             OPINION

            Rendered on the           19th        day of          December        , 2014.

                                             ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

PATRICK D. WALSH, Atty. Reg. No. 0085482, P. O. Box 543, Springboro, Ohio 45066
     Attorney for Defendant-Appellant

                                             ..........




DONOVAN, J.
                                                                                             2

       {¶ 1}    Defendant-appellant James Gibson appeals his conviction and sentence for

two counts of gross sexual imposition (GSI), in violation of R.C. 2907.05(A)(4), both

felonies of the third degree. Gibson filed a timely notice of appeal with this Court on

December 20, 2013.

       {¶ 2}    On February 4, 2013, Gibson was charged by indictment with three counts

of rape, in violation of R.C. 2907.02(A)(1)(b) (victim under the age of thirteen years of age).

 All three counts contained a specification that the victim, A.M., was under the age of ten

years old when the rapes allegedly occurred.

       {¶ 3}    In return for a plea made pursuant to North Carolina v. Alford, 400 U.S. 25,

91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the State offered to amend the indictment to reflect

that Counts I and II had both been reduced to two counts of GSI, while dismissing Count III.

 On November 1, 2013, the trial court amended the indictment, and Gibson entered an

Alford plea to two counts of GSI , in violation of R.C. 2907.05(A)(4). On November 22,

2013, the trial court imposed a sentence of five years for each GSI conviction and ordered

that the sentences be served consecutively for an aggregate prison term of ten years.

       {¶ 4}    It is from this judgment that Gibson now appeals.

       {¶ 5}    Because it is dispositive of the instant appeal, we will address Gibson’s

second assignment of error out of order. Gibson’s second assignment is as follows:

       {¶ 6}    “THE PLEA HEARING DEMONSTRATED PLAIN ERROR AND

INEFFECTIVE ASSISTANCE OF COUNSEL.”

       {¶ 7}    In his second assignment, Gibson contends that his plea was not made in a

knowing, voluntary, and intelligent fashion. Specifically, Gibson argues that he did not
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understand the implications of entering a plea because he mistakenly believed that he could

withdraw the plea at any time without the approval of the trial court. Additionally, Gibson

argues that the Crim. R. 11(C) colloquy was deficient because the trial court incorrectly

informed him that if he was convicted of or plead guilty to the underlying charge of rape of a

child under ten years of age, he would automatically be subject to a mandatory life sentence.

 Gibson asserts that he, therefore, entered an Alford plea to the two counts of GSI under

false pretenses, and his counsel was ineffective for failing to object to the misinformation he

received from the trial court.

       {¶ 8}    In State v. Gossard, 2d Dist Montgomery No. 19494, 2003-Ohio-3770, we

stated the following regarding the nature of an Alford plea:

               *** A plea of guilty to a criminal offense charged is a complete

       admission of criminal liability that is sufficient to support a conviction by the

       court. However, the plea must be knowingly, intelligently, and voluntarily

       made. Crim. R. 11(C). * * * Compliance with the requirements of Crim.R.

       11(C) portrays those qualities, subject to any further, specific qualification.

               An Alford plea represents a qualification to the assurances created by

       a proper Crim.R. 11(C) inquiry.        It permits a plea of guilty when the

       defendant nevertheless denies a necessary foundation of criminal liability,

       either with respect to the truth of the act or omission charged or the degree of

       culpability which the offense requires. “An individual accused of a crime

       may voluntarily, knowingly, and understandingly consent to the imposition of

       a prison sentence even if he is unwilling or unable to admit his participation
                                                                                     4

in the acts constituting the crime.” [North Carolina v.] Alford, 400 U.S. [25,

37, 91 S.Ct. 160, 27 L.Ed. 162 (1970).]

       Interpreting and applying Alford, the Supreme Court of Ohio has held:

“Where the record affirmatively discloses that: (1) defendant's guilty plea was

not the result of coercion, deception or intimidation; (2) counsel was present

at the time of the plea; (3) counsel's advice was competent in light of the

circumstances surrounding the indictment; (4) the plea was made with the

understanding of the nature of the charges; and, (5) defendant was motivated

either by a desire to seek a lesser penalty or a fear of the consequences of a

jury trial, or both, the guilty plea has been voluntarily and intelligently made.”

State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), syllabus. * * *

       ***

       The proper taking of a guilty plea requires "a meaningful dialogue

between the court and the defendant." Garfield Heights v. Brewer (1980), 17

Ohio App.3d 218, State v. Bowling (March 10, 1987), Montgomery App. No.

9925. In [State v.] Padgett, [67 Ohio App.3d 332, 586 N.E.2d 1194 (2d

Dist. 1990)] we explained that where a defendant protests innocence but

nevertheless is willing to plead guilty, the trial court “must determine that the

defendant has made a rational calculation to plead guilty notwithstanding his

belief that he is innocent.” Padgett, supra, at 338-39. At a minimum, this

requires an “inquiry of the defendant concerning his reasons for deciding to

plead guilty notwithstanding his protestations of innocence; it may require, in
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        addition, inquiry concerning the state's evidence in order to determine that the

        likelihood of the defendant's being convicted of offenses of equal or greater

        magnitude than the offenses to which he is pleading guilty is great enough to

        warrant an intelligent decision to plead guilty.” Id.

                The essence of an Alford plea is that a Defendant's decision to enter

        the plea against his protestations of factual innocence is clearly and

        unequivocally supported by evidence that he exercised that calculus for the

        purpose of avoiding some more onerous penalty that he risks by, instead,

        going to trial on the charges against him.

Id. at ¶s 6-8, 11-12.

        {¶ 9}    At the plea hearing in the instant case, the trial court had the following

discussion with Gibson regarding his decision to enter an Alford plea to two counts of GSI:

                The Court: And my understanding is that you’re entering this guilty

        plea pursuant to North Carolina [v.] Alford, whereby you’re denying your

        guilt in this case; but you’re, nevertheless, entering a guilty plea for another

        purpose; is that correct?

                Gibson: Yes, sir.

                Q: Do you have anything you want to say or explain to the Court?

                A: I was entering the plea because I want to try to at least get less

        time. I don’t want to go to prison for life or something.

                Q: The indictment is – or consists of three counts of rape, and the

        victim was less than thirteen years of age, and there’s a specification on each
                                                                                              6

       count that the victim was under the age of [ten]. If you were convicted of

       one or all of those offenses, it would require a mandatory life sentence. Is

       that correct?

               The State: That’s correct, with the possibility of parole after fifteen

       years on those terms, Your Honor.

               The Court: And you are telling the Court that you don’t want to go to

       trial and risk that possible outcome?

               Gibson: That’s true.

       {¶ 10} Gibson was originally indicted for three counts of rape of a child under the

age of thirteen, in violation of R.C. 2907.02(A)(1)(b) which states in pertinent part that “[n]o

person shall engage in sexual conduct with another who is not the spouse of the offender ***

when *** [t]he other person is less than thirteen years of age, whether or not the offender

knows the age of the other person.” As mentioned previously, each of the rape counts in

Gibson’s indictment was accompanied by a specification that the victim, A.M., was under

the age of ten at the time the offenses occurred.

       {¶ 11} R.C. 2907.02(B) states in pertinent part:

               *** [I]f the victim under division (A)(1)(b) of this section is less than

       ten years of age, in lieu of sentencing the offender to a prison term or term of

       life imprisonment pursuant to section 2971.03 of the Revised Code, the court

       may impose upon the offender a term of life without parole. If the court

       imposes a term of life without parole, pursuant to this division, division (F) of

       section 2971.03 of the Revised Code applies, and the offender automatically
                                                                                              7

       is classified a tier III sex offender/child victim offender, as described in that

       division.

       {¶ 12} In accordance with R.C. 2907.02(B), R.C. 2971.03(B)(1)(b) states in

pertinent part:

                  [I]f a person is convicted of or pleads guilty to a violation of division

       (A)(1)(b) of section 2907.02 of the Revised Code committed on or after

       January 2, 2007, if division (A)1 of this section does not apply regarding the

       person, and if the court does not impose a sentence of life without parole

       when authorized pursuant to division (B) of section 2907.02 of the Revised

       Code, the court shall impose upon the person an indefinite prison term

       consisting of one of the following:

                  (b) If the victim was less than ten years of age, a minimum term of

       fifteen years and a maximum of life imprisonment.

       {¶ 13} Thus, pursuant to the aforementioned statutory provisions, in a situation

where a defendant has pleaded guilty to or been convicted of rape of a child who is less than

ten years of age, a sentence of life imprisonment is not mandatory as stated by the trial court

in the present case.       Rather, the trial court has three distinct choices regarding the

sentencing of a defendant convicted of rape of a child under ten years of age: 1) pursuant to

R.C. 2907.02(B), the trial court can impose a sentence of life imprisonment without the

possibility of parole; 2) pursuant to R.C. 2971.03(B)(1)(b), the trial court can sentence the


           1
            Division (A) of R.C. 2971.03 only applies when a defendant has been convicted
   of or pleads guilty to an indictment containing a sexually violent predator specification or
   a sexual motivation specification, neither of which were present in the instant case.
                                                                                                8

defendant to life imprisonment with the possibility of parole after fifteen years; or 3) the trial

court can sentence the defendant to an indefinite prison term with a minimum of fifteen

years.    Accordingly, the trial court erred when it misinformed Gibson that he would

automatically receive a life sentence if he was convicted of rape as charged in the

indictment. We cannot say that Gibson’s Alford plea was made in a knowing, voluntary,

and intelligent fashion when the trial court informed him that he faced a mandatory term of

life imprisonment with the possibility of parole after fifteen years . As evidenced in the

record of the plea hearing, Gibson’s main concern in entering the Alford plea was to avoid

receiving a mandatory sentence of life in prison. On this issue, the trial court, the State, and

Gibson’s own counsel, who did not object to the court’s misstatement regarding sentencing

for the rape counts, failed to adequately and correctly apprise him of the effect of his plea.

Under these circumstances, Gibson was unable to subjectively understand the implications

of his pleas and the rights that he was waiving. As a result, Gibson’s Alford pleas to the

two counts of GSI were not knowingly, intelligently, nor voluntarily made.

         {¶ 14} Gibson’s second assignment of error is sustained.

         {¶ 15} Gibson’s first assignment of error is as follows:

         {¶ 16} “THE      TRIAL     COURT       ABUSED       ITS    DISCRETION         IN   THE

SENTENCING OF MR. GIBSON.”

         {¶ 17} In his first assignment, Gibson contends that the trial court abused its

discretion in imposing maximum, consecutive sentences under the circumstances presented

in this case.

         {¶ 18} In light of our disposition with respect to Gibson’s second assignment of
                                                                                     9

error, his first assignment is rendered moot.

       {¶ 19} Gibson’s second assignment of error having been sustained, his conviction

and subsequent sentence are reversed and vacated, and this matter is remanded for

proceedings consistent with this opinion.

                                         ..........

FAIN, J. and HALL, J., concur.



Copies mailed to:

Ryan A. Saunders
Patrick D. Walsh
Hon. Douglas M. Rastatter
