[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 :
:
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OPINION
Rendered on the 19th day of December , 2014.
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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
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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
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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
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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
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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
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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.
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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
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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.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Ryan A. Saunders
Patrick D. Walsh
Hon. Douglas M. Rastatter