[Cite as State v. Bell,
2012-Ohio-851.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vsCase No. 11-COA-019
TERRI L. BELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Common
Pleas Court, Case No. Trial Court Number
10-CRI-118
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA FRANCESCONI ROGERS ERIN N. POPLAR
Ashland County Prosecutor Erin Poplar Law, LLC
110 Cottage St. 1636 Eagle Way
Ashland, Ohio 44805 Ashland, Ohio 44805
ANDREW N. BUSH
Assistant Prosecuting Attorney
110 Cottage St.
Ashland, Ohio 44805
Ashland County, Case No. 11-COA-019 2
Hoffman, J.
(¶1) Defendant-appellant Terri L. Bell appeals her sentence entered by the
Ashland County Court of Common Pleas on one count of illegal assembly or possession
of chemicals for the manufacture of drugs, in violation of R.C. 2925.041(A), a third
degree felony. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE
(¶2) On March 10, 2011, Appellant entered a plea of guilty to the
aforementioned charge. At the change of plea hearing, the following exchange
occurred on the record, prior to the trial court accepting Appellant’s plea:
(¶3) “The Court: Well, if I accept your plea, Ma’am, do understand that the
maximum stated prison term that I could impose is two, three, four, or five years?
(¶4) “Ms. Bell: Yes.
(¶5) “The Court: Do you understand because of the nature of this charge, it
does carry a mandatory prison term of two years?
(¶6) “Ms. Bell: Yes.
(¶7) “The Court: It also has a maximum potential fine of $10,000, but there is a
mandatory minimum fine of $5,000. Do you understand that?
(¶8) “Ms. Bell: Yes, I do.
(¶9) “The Court: And because it’s a drug-related offense, it carries a license
suspension for six months and no more than five years. Do you understand that?
(¶10) “Ms. Bell: Yes, sir, I do.
Ashland County, Case No. 11-COA-019 3
(¶11) “The Court: You also understand that the court can impose additional
financial sanctions to the fines, day fines, court costs, or costs of any sanctions
imposed?
(¶12) “Ms. Bell: Yes, sir, I do.
(¶13) “The Court: Do you understand, Ma’am, that if you are new on felony
probation or parole or community control sanctions or any type of post-release control,
this plea would possibly result in a revocation proceeding and a new sentence could be
imposed consecutively?
(¶14) “I am not inquiring as to whether or not you are, but you need to be aware
if you are, that that is a consequence?
(¶15) “Ms. Bell: Yes, I do understand.
(¶16) “The Court: You understand that because there is a mandatory prison
term, that any prison term served would not be served with time credit?
(¶17) “Ms. Bell: Yes.”
(¶18) Tr. at 17-18.
(¶19) The trial court then conducted a sentencing hearing on April 29, 2011, the
following exchange occurred on the record at the hearing:
(¶20) “Mr. Sullivan: Your Honor, was it the Court’s intention to impose the
mandatory minimum?
(¶21) “The Court: The Court is imposing three years mandatory.
(¶22) “Mr. Sullivan: It’s my understanding, Judge - - could we approach on this?
(¶23) “The Court: Yes, you may.
(¶24) Thereupon, a sidebar was held.
Ashland County, Case No. 11-COA-019 4
(¶25) “The Bailiff: Go off the Record?
(¶26) “The Court: No, this needs to be on the Record.
(¶27) “Mr. Sullivan: I understand that the mandatory minimum is two years - -
(¶28) “The Court: My understanding is that [sic] mandatory minimum is two
years and the Court has the option to impose whatever the appropriate sentence is for
an F-3, and that sentence is mandatory. Whatever the court imposes.
(¶29) “Mr. Sullivan: It’s not the Court’s intention to impose the mandatory
minimum?
(¶30) “The Court: I am imposing three years mandatory. If she wants to appeal
that then she can.
(¶31) “My understanding of the Sentencing statutes and I am not saying that I
am an expert at three months on the bench, but my understanding is for purposes of
Sentencing, when there is a mandatory sentence, the fact there is a minimum
mandatory, what that means is that is a minimum sentence that the court has to impose.
It’s a mandatory sentence, meaning there is no credit for good time and those kinds of
things. That is not meaning that a three, four, five year Sentence is not also mandatory.
(¶32) “There is a difference between mandatory time and non-mandatory time,
whether it’s two years, three years, four years.
(¶33) “And my understanding is that this charge carries with it a mandatory
sentence, period. It’s one of those F-3 Sentences, but that Sentence, whatever it is, is
mandatory.
(¶34) “Again, if I am wrong, I guess you can appeal it and we all will find out, but
that is what the Sentence is.
Ashland County, Case No. 11-COA-019 5
(¶35) “Let me know if you guys have a discussion at the Prosecutor’s Office, let
me know if I am off base about that.
(¶36) “Mr. Bush: I will (Inaudible).
(¶37) The Court: That is my understanding. Anything further, Attorney Sullivan?
(¶38) “Mr. Sullivan: No, Your Honor.
(¶39) “The Court: Anything further, Attorney Bush?
(¶40) “Mr. Bush: No, Your Honor.
(¶41) “The Court: This matter is concluded.”
(¶42) Tr. at 12-15.
(¶43) Via Judgment Entry of May 3, 2011, the trial court sentenced Appellant to
a mandatory three year prison sentence. Appellant was also ordered to pay a
mandatory minimum fine in the amount of $5,000, plus court costs.
(¶44) Appellant now appeals, assigning as error:
(¶45) “I. THE TRIAL COURT ERRED AND DID NOT INFORM APPELLANT OF
THE MAXIMUM PENALTY INVOLVED AS REQUIRED BY OHIO CRIMINAL RULE
11(C)(2)(A) AT APPELLANT’S CHANGE OF PLEA HEARING BECAUSE THE COURT
DID NOT CLEARLY INFORM APPELLANT THAT ANY PRISON SENTENCE SHE
MAY RECIEVE [SIC] OVER THE MANDATORY MINIMUM PRISON TERM OF TWO
YEARS WOULD ALSO BE MANDATORY TIME.
(¶46) “II. THE TRIAL COURT ERRED AND [SIC] WHEN IT IMPOSED THE
MANDATORY MINIMUM FINE ON APPELLANT PURSUANT TO OHIO REVISED
CODE SECTIONS 2925.041 AND 2929.18 BECAUSE SHE HAD ALREADY BEEN
Ashland County, Case No. 11-COA-019 6
FOUND TO BE INDIGENT AND HAD COMPLETED AND FILED AN AFFIDAVIT OF
INDIGENCY PRIOR TO SENTENCING.
(¶47) “III. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HER COURT-APPOINTED
COUNSEL DID NOT REQUEST THAT THE COURT REFRAIN FROM IMPOSING A
MANDATORY FINE ON APPELLANT PURSUANT TO OHIO REVISED CODE
SECTIONS 2925.041 AND 2929.18.”
I
(¶48) Appellant entered a plea of guilty to one count of assembly or possession
of chemicals for the manufacture of drugs, in violation of R.C. 2925.041, which reads, in
pertinent part:
(¶49) “(A) No person shall knowingly assemble or possess one or more
chemicals that may be used to manufacture a controlled substance in schedule I or II
with the intent to manufacture a controlled substance in schedule I or II in violation of
section 2925.04 of the Revised Code.
(¶50) “…
(¶51) “(C) Whoever violates this section is guilty of illegal assembly or
possession of chemicals for the manufacture of drugs. Except as otherwise provided in
this division, illegal assembly or possession of chemicals for the manufacture of drugs is
a felony of the third degree, and, except as otherwise provided in division (C)(1) or (2) of
this section, division (C) of section 2929.13 of the Revised Code applies in determining
Ashland County, Case No. 11-COA-019 7
whether to impose a prison term on the offender. If the offense was committed in the
vicinity of a juvenile or in the vicinity of a school, illegal assembly or possession of
chemicals for the manufacture of drugs is a felony of the second degree, and, except as
otherwise provided in division (C)(1) or (2) of this section, division (C) of section
2929.13 of the Revised Code applies in determining whether to impose a prison term on
the offender. If the violation of division (A) of this section is a felony of the third degree
under this division and if the chemical or chemicals assembled or possessed in violation
of division (A) of this section may be used to manufacture methamphetamine, there
either is a presumption for a prison term for the offense or the court shall impose a
mandatory prison term on the offender, determined as follows:
(¶52) “(1) Except as otherwise provided in this division, there is a presumption
for a prison term for the offense. If the offender two or more times previously has
been convicted of or pleaded guilty to a felony drug abuse offense, except as
otherwise provided in this division, the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the third degree that is not
less than two years. If the offender two or more times previously has been convicted of
or pleaded guilty to a felony drug abuse offense and if at least one of those previous
convictions or guilty pleas was to a violation of division (A) of this section, a violation of
division (B)(6) of section 2919.22 of the Revised Code, or a violation of division (A) of
section 2925.04 of the Revised Code, the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the third degree that is not less
than five years.…”
(¶53) (Emphasis added.)
Ashland County, Case No. 11-COA-019 8
(¶54) Revised Code Section 2925.01 defines “drug abuse offense” and “felony
drug abuse offense” as:
(¶55) “(H) ‘Drug abuse offense’ means any of the following:
(¶56) “(1) A violation of division (B) of section 2913.02 that constitutes theft of
drugs, or a violation of section 2925.02, 2925.03, 2925.11, 2925.12, 2925.13, 2925.22,
2925.23, 2925.31, 2925.32, 2925.36, or 2925.37 of the Revised Code;
(¶57) “(2) A violation of an existing or former law of this or any other state or of
the United States that is substantially equivalent to any section listed in division (H)(1) of
this section;
(¶58) “(3) An offense under an existing or former law of this or any other state,
or of the United States, of which planting, cultivating, harvesting, processing, making,
manufacturing, producing, shipping, transporting, delivering, acquiring, possessing,
storing, distributing, dispensing, selling, inducing another to use, administering to
another, using, or otherwise dealing with a controlled substance is an element;
(¶59) “(4) A conspiracy or attempt to commit, or complicity in committing or
attempting to commit, any offense under division (H)(1), (2), or (3) of this section.
(¶60) “(I) ‘Felony drug abuse offense’ means any drug abuse offense that would
constitute a felony under the laws of this state, except a violation of section 2925.11 of
the Revised Code.
(¶61) The record demonstrates Appellant had previously entered a plea or been
convicted of multiple felony drug abuse offenses, to wit: illegal processing of drug
documents (x2), in violation of R.C. 2925.23; deception to obtain a dangerous drug, in
violation of R.C. 2925.22; deception to obtain a dangerous drug (x2); aggravated
Ashland County, Case No. 11-COA-019 9
trafficking in drugs, in violation of R.C. 2925.03, and trafficking in LSD, in violation R.C.
2925.03. As a result, subsection (C)(1) requires the trial court impose as a mandatory
prison term one of the prison terms prescribed for a felony of the third degree that is not
less than two years.
(¶62) The trial court stated on the record the maximum stated prison term was
two, three, four or five years. Accordingly, the statute instructs the trial court to select
one of the prescribed terms for a third degree felony not less than two years, and then
directs the selected term shall be mandatory. Accordingly, we find the trial court could
sentence Appellant to a mandatory three years in prison, which is within the range of
prescribed terms for the offense.
(¶63) Having determined the trial court properly concluded Appellant could be
sentenced to a mandatory three year prison sentence, we now must determine if the
trial court properly advised Appellant of the maximum penalty at the change of plea
hearing.
(¶64) Appellant asserts the trial court did not clearly inform her any prison
sentence imposed exceeding the mandatory minimum prison term of two years would
also be mandatory time, ineligible for jail time credit or judicial release.
(¶65) Criminal Rule 11(C)(2)(A), reads:
(¶66) “(C) Pleas of guilty and no contest in felony cases
(¶67) “(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
Ashland County, Case No. 11-COA-019 10
(¶68) “(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 at the sentencing hearing.”
(¶69) Appellant asserts the trial court failed to inform Appellant of the maximum
penalty involved as required by Criminal Rule 11(C)(2)(a). We agree.
(¶70) As set forth above in the Statement of the Case, the trial court stated at
the change of plea hearing the charge carried a mandatory prison term of two years.
Later, at the sentencing hearing, the trial court imposed a three year mandatory prison
term. Review of the colloquy at the change of plea hearing, as quoted supra,
demonstrates Appellant was not informed the trial court could elect a greater
mandatory term other than a mandatory two year prison sentence. Appellant was not
advised a selected prison term of over two years would be mandatory making Appellant
ineligible for judicial release.
(¶71) As such, we find Appellant was not properly advised as required by
Crim.R. 11. Appellant’s first assignment of error is sustained.
II. and III.
(¶72) In light of our disposition of Appellant’s first assignment of error, we find
any discussion of Appellant’s second and third assignments of error to be premature.
Ashland County, Case No. 11-COA-019 11
(¶73) The judgment of the Ashland County Court of Common Pleas is reversed
and the matter remanded to the trial court for further proceedings in accordance with the
law and this Opinion.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
Ashland County, Case No. 11-COA-019 12
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TERRI L. BELL :
:
Defendant-Appellant : Case No. 11-COA-019
For the reasons stated in our accompanying Opinion, the judgment of the
Ashland County Court of Common Pleas is reversed and the matter remanded to the
trial court for further proceedings in accordance with the law and our Opinion. Costs to
the state of Ohio.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
