State v. Evans

1

2023-Ohio-2373

STATE OF OHIO, Plaintiff-Appellee, v. COREY M.S. EVANS, Defendant-Appellant.

No. 22 CO 0031

Court of Appeals of Ohio, Seventh District, Columbiana

June 30, 2023

Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 21 CR 499

Atty Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee

Atty Christopher Bazeley, for Defendant-Appellant.

BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.

OPINION AND JUDGMENT ENTRY

WAITE, J.

{¶1} Appellant Corey M.S. Evans was involved in a high-speed single-vehicle crash in which his passenger was killed. He was charged with aggravated vehicular homicide, and he pleaded guilty to the charge. On appeal, he first argues that he was not given the appropriate notice about his indefinite eight-to-twelve-year prison term. The state agrees. On this basis, the matter is remanded to the trial court for a resentencing hearing that must include notification to Appellant of his rights under R.C. 2929.19(B)(2)(c).

{¶2} In Appellant's second and third assignments of error he raises due process arguments related to the Reagan-Tokes Act. These arguments have already been rejected in State v. Rose, 7th Dist. Jefferson No. 21 JE 0014, 2022-Ohio-3529. His fourth assignment alleges error in the imposition of postrelease control, but Appellant has misread the record in this regard. In his fifth and final assignment of error he argues his guilty plea was not made knowingly because the court failed to notify him about community control. The record reveals, however, that Appellant was aware of the consequences of his plea and that the trial court substantially complied with the notice requirements.

{¶3} Accordingly, Appellant's first assignment of error has merit. Appellant's conviction is affirmed, but his sentence is reversed and remanded to the trial court for a full resentencing.

Case History and Facts

{¶4} On February 25, 2021, at approximately 6:30 p.m., Appellant, driving a Chevy Cavalier, was involved in a rollover crash on State Rt. 154 in Middletown Township in Columbiana County. The passenger in the vehicle was a 15-year-old girl. At the time, Appellant was street racing at over 90 mph on a curvy road. He struck a guardrail, a ditch, an embankment, and a utility pole. The vehicle overturned a number of times. The passenger suffered catastrophic head injuries and died.

{¶5} Appellant admitted to consuming alcohol and marijuana on the day of the accident, and that he had started using methamphetamines ("meth") the week before. He was found to have meth in his system after the crash. Appellant did not have a valid driver's license at the time of the accident. Appellant had previously been involved in a similar accident in 2018 that involved a police chase of 70 mph in a 25 mph zone, in which a 15-year old passenger was badly injured. He had been drinking and smoking marijuana in that incident as well. Appellant also had a long history of criminal activity that involved other traffic violations, domestic violence, improper handling of a firearm, and possession of a drug abuse instrument. Appellant's counsel took no issue with the prosecutor's presentation of the facts of this case, which we have summarized here. (8/24/22 Tr., p. 14.)

{¶6} On September 15, 2021, Appellant was indicted on the following charges: aggravated vehicular homicide in violation of R.C. 2903.06(A)(1), a first degree felony; aggravated vehicular homicide pursuant to R.C. 2903.06(A)(2), a second degree felony; and two first degree misdemeanors, operating a vehicle while under the influence of methamphetamines in violation of R.C. 4511.19(A)(1)(j)(ix); and operating a vehicle while under the influence of alcohol under R.C. 4511.19(A)(1)(a).

{¶7} On April 20, 2022, the court held a change of plea hearing and accepted Appellant's guilty plea to counts two, three, and four. Count one, which was the first degree felony count of aggravated vehicular homicide, was to be dismissed at sentencing. On April 20, 2022, the court filed a Judicial Advice to Defendant, reviewing many aspects and consequences of the plea, including the fact that a prison term was mandatory. Appellant filed an acknowledgement that he received this form and understood what was in it.

{¶8} Sentencing was held on July 18, 2022. Appellant was sentenced to 8 to 12 years in prison on count two (aggravated vehicular homicide, felony two); and 180 days in jail for count three (operating a vehicle while under the influence of methamphetamines, misdemeanor one). Count four was merged into count three, and count one was dismissed.

{¶9} The sentencing judgment entry was filed on July 19, 2022. This appeal followed on August 15, 2022. Appellant presents five assignments of error on appeal.

Effect of a Guilty Plea

{¶10} "A valid guilty plea by a counseled defendant * * * generally waives the right to appeal all prior nonjurisdictional defects * * *." State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 15. "A guilty plea waives any right to appeal a ruling on a motion to suppress or any other trial court error, except for errors in the plea itself." State v. Hackathorn, 7th Dist. Belmont No. 21 BE 0013, 2022-Ohio-1612, ¶ 22. "A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself." State v. Kuhner, 3rd Dist. No. 13-03-12, 154 Ohio App.3d 457, 2003-Ohio-4631, 797 N.E.2d 992, ¶ 4.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE EVANS OF THE R.C. 2929.19(B)(2)(c) FACTORS AT SENTENCING.

{¶11} This assignment of error concerns sentencing and is not waived by Appellant's guilty plea. Appellant argues that the trial court failed to advise him of the notifications contained in R.C. 2929.19(B)(2)(c), which states:

(2) Subject to division (B)(3) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following:

* * *

(c) If the prison term is a non-life felony indefinite prison term, notify the offender of all of the following:

(i) That it is rebuttably presumed that the offender will be released from service of the sentence on the expiration of the minimum prison term imposed as part of the sentence or on the offender's presumptive earned early release date, as defined in section 2967.271 of the Revised Code, whichever is earlier;

(ii) That the department of rehabilitation and correction may rebut the presumption described in division (B)(2)(c)(i) of this section if, at a hearing held under section 2967.271 of the Revised Code, the department makes specified determinations regarding the offender's conduct while confined, the offender's rehabilitation, the offender's threat to society, the offender's restrictive housing, if any, while confined, and the offender's security classification;

(iii) That if, as described in division (B)(2)(c)(ii) of this section, the department at the hearing makes the specified determinations and rebuts the presumption, the department may maintain the offender's incarceration after the expiration of that minimum term or after that presumptive earned early release date for the length of time the department determines to be reasonable, subject to the limitation specified in section 2967.271 of the Revised Code;

(iv) That the department may make the specified determinations and maintain the offender's incarceration under the provisions described in divisions (B)(2)(c)(i) and (ii) of this section more than one time, subject to the limitation specified in section 2967.271 of the Revised Code;

(v) That if the offender has not been released prior to the expiration of the offender's maximum prison term imposed as part of the sentence, the offender must be released upon the expiration of that term.

{¶12} It is clear that a prison term in this case was mandatory and that Appellant would serve an indefinite, non-life term. Therefore, R.C. 2929.19(B)(2)(c) applies and the notifications listed in the statute were required to be given to Appellant at the sentencing hearing. "[A] trial court's failure to do so requires reversal of the sentence and a remand to the trial court for the sole purpose of conducting a new sentencing hearing consistent with R.C. 2929.19(B)(2)(c)." State v. Gatewood, 2d Dist. Clark No. 2021-CA-20, 2022-Ohio-2513, ¶ 13; State v. Greene, 1st Dist. Hamilton No. C-220160, 2022-Ohio-4536, ¶ 9.

{¶13} R.C. 2929.19(B)(2)(c) was part of the Reagan-Tokes Act revisions to the criminal code and is relatively new legislation. The effective date of the revised statute was March 22, 2019. While this is the first time we have been asked to review whether the five notices in R.C. 2929.19(B)(2)(c) must be given orally at sentencing, every district that has looked at the question so far has come to that conclusion. State v. Jackson, 1 st Dist. Hamilton No. C-200332, 2022-Ohio-3449; Gatewood, supra; State v. Bobo, 8th Dist. No. 111362, 2022-Ohio-3555, 198 N.E.3d 580. Appellee concedes error on this issue and agrees that the case should be remanded for a new sentencing hearing.

{¶14} It is apparent to us that the trial court failed to inform Appellant at sentencing of the requisite notifications pursuant to R.C. 2929.19(B)(2)(c). Hence, Appellant's first assignment of error has merit and the matter is remanded for a full resentencing hearing that must include oral notice to Appellant of the statutory notifications.

ASSIGNMENT OF ERROR NO. 2

THE HEARING PROVISION IN R.C. 2967.271 IS VAGUE AND VIOLATES EVANS'...