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Ohio Supreme Court: Plea Defendant Must Be Informed of Maximum Penalty for Postrelease-Control Violation Prior to Pleading Guilty to a New Felony

by David Reutter

The Supreme Court of Ohio held that a plea court must “advise a criminal defendant on postrelease control for a prior felony, during his plea hearing in a new felony case, of the trial court’s authority under R.C. 2929.141 to terminate the defendant’s existing postrelease control and to impose a consecutive prison sentence for the postrelease-control violation.”

That ruling came in an appeal filed by Dustin Bishop, who was on postrelease control for a prior felony when he was indicted on one count of possession of heroin and one count of possession of drug paraphernalia. He pleaded guilty to the possession count, and the State dismissed the paraphernalia count.

At the plea hearing, Bishop was informed that he could be placed on postrelease control for the possession offense. He also was informed that if he committed a new felony while on postrelease control that he could be sentenced to one year in prison or time remaining on his postrelease control, whichever was longer. However, he was not informed that by pleading to the possession charge that the court could violate his postrelease control and sentence him to a prison term that was consecutive to the possession charge sentence. The court subsequently sentenced Bishop to nine months imprisonment on the possession charge and a consecutive one-year term for the postrelease control violation.

Bishop appealed. The appellate court sustained his argument that his plea was not knowingly, intelligently, and voluntarily entered because the plea court did not inform Bishop of its authority under R.C. 2929.141 to terminate his postrelease control and order him to serve a prison term consecutively to any term of imprisonment imposed for the felony offense to which he was pleading guilty. Because that ruling conflicted with two other district courts of appeals’ rulings, the matter was conflict certified.

Despite the fact that Bishop was resentenced to time served following the appellate court’s ruling, the Ohio Supreme Court found the issue was of great or general public interest and “it was appropriate to resolve the question of law presented.” The court said of specific relevance is Crim.R. 11(c), which requires that a defendant be advised of “the nature of the charges, and of the maximum penalty.”

While Bishop was advised he could receive a maximum sentence of 12 months, the plea court “did not tell Bishop that he was also subject to a separate consecutive 12-month sentence for his postrelease control violation.” Additionally, R.C. 2929.141 allows a court to terminate the postrelease-control term and convert it to more prison time when a defendant who is already on postrelease control pleads guilty to a new felony. Thus, the plea to the new felony made that felony “inextricably intertwined” with the postrelease control violation. As such, Bishop should have been informed of the “maximum penalty.”

The Court ruled Bishop did not have to show prejudice because the plea court violated Crim.R. 11(c) by “completely fail[ing] to inform Bishop that a consecutive prison sentence under R.C. 2929.141 was possible.” 

Accordingly, the Court affirmed the court of appeals’ judgment. See: State v. Bishop, 2018-Ohio-5132 (Ohio 2018). 

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