[Cite as State v. Stump,
2016-Ohio-2723.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103109
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DYLAN C. STUMP
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-592564-A and CR-15-592569-A
BEFORE: Kilbane, P.J., Boyle, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Joan Bascone
Anthony Thomas Miranda
Frank Romeo Zeleznikar
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Dylan C. Stump, a.k.a. Dylan Harrison (“Stump”),
appeals from his fifth-degree-felony domestic violence convictions resulting from his
guilty plea in two different cases. At appellate oral argument, the state of Ohio conceded
that Stump’s domestic violence convictions are first-degree misdemeanors and not
fifth-degree felonies. As a result, we vacate Stump’s guilty plea and sentence in both
cases and remand for further proceedings.
{¶2} In Case No. CR-15-592564-A, Stump was charged with felonious assault,
with a pregnant victim specification, and domestic violence, with a furthermore clause
that Stump knew the victim was pregnant at the time of the offense. In
CR-15-592569-A, Stump was charged with domestic violence, with a pregnant victim
specification. The charges arise from the physical altercations between Stump and his
pregnant girlfriend on August 27 and August 28, 2014.
{¶3} Pursuant to a plea agreement, Stump pled guilty to amended counts of
domestic violence in both cases. In Case No. CR-15-592564-A, the felonious assault
count was amended to domestic violence and the pregnant victim specification was
deleted. The remaining domestic violence count was nolled. In Case No.
CR-15-592569-A, the domestic violence count was amended by the deletion of the
pregnant victim specification. The trial court referred the matter for a presentence
investigation report prior to sentencing. At the sentencing hearing, the trial court
sentenced Stump to 11 months in prison in each case, to be served consecutively, for a
total of 22 months in prison.
{¶4} Stump now appeals, raising the following three assignments of error for
review.
Assignment of Error One
The trial court erred when it failed to advise [Stump] at the time of his plea
that he was not eligible for community control sanctions and that he was
facing a mandatory term of imprisonment by pleading guilty.
Assignment of Error Two
Trial counsel was ineffective when counsel did not advise [Stump] that he
faced a mandatory prison sentence, and then argued for a sentence that was
less than the minimum sentence that could have been imposed by law.
Assignment of Error Three
The trial court erred when it imposed consecutive terms of imprisonment
without making the statutorily required findings.
Guilty Plea
{¶5} In the first assignment of error, Stump challenges his guilty plea, claiming
the court did not advise him that he was facing a mandatory prison term and defense
counsel was ineffective for not advising him that he was ineligible for community control
sanctions and for requesting community control sanctions as his sentence.
{¶6} The underlying purpose of Crim.R. 11(C) is to convey certain information
to a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480,
423 N.E.2d 115
(1981). “The standard for reviewing whether the trial court accepted a plea in
compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th
Dist. Cuyahoga No. 92796,
2009-Ohio-6827, ¶ 26, citing State v. Stewart,
51 Ohio St.2d
86,
364 N.E.2d 1163 (1977). A de novo standard of review “requires an appellate court
to review the totality of the circumstances and determine whether the plea hearing was in
compliance with Crim.R. 11(C).”
Id.
{¶7} In the matter before us, Stump was initially charged in Case
No. CR-15-592564-A with felonious assault, with a pregnant victim specification, and
domestic violence, with a furthermore clause that Stump knew the victim was pregnant at
the time of the offense. In Case No. CR-15-592569, Stump was charged with domestic
violence, with a pregnant victim specification. Both domestic violence counts were
charged as fifth-degree felonies.
{¶8} In Case No. CR-15-592564-A, Stump pled guilty to domestic violence,
instead of felonious assault, with the deletion of the pregnant victim specification, and the
remaining domestic violence count was nolled. In Case No. CR-15-592569-A, he pled
guilty to an amended count of domestic violence with the deletion of the pregnant victim
specification. Both domestic violence counts were in violation of R.C. 2919.25(A),
which provides that “[n]o person shall knowingly cause or attempt to cause physical harm
to a family or household member.”
{¶9} Stump notes that the only form of fifth-degree felony domestic violence is
when the defendant is aware that the victim is pregnant as set forth in R.C.
2919.25(D)(5). This section provides that “if the offender knew that the victim of the
violation was pregnant at the time of the violation, a violation of division (A) … of this
section is a felony of the fifth degree, and the court shall impose a mandatory prison term
on the offender pursuant to division (D)(6) of this section[.]” Id. R.C. 2919.25(D)(6)
provides that a violation pursuant to R.C. 2919.25(D)(5) requires the court to “impose a
mandatory prison term on the offender of at least six months.” Consequently, Stump
argues his plea was not knowingly, voluntarily, and intelligently made because he was
under the misapprehension that he is eligible for community control sanction when, in
fact, he is required to serve a mandatory term of six months of imprisonment on each
count for fifth-degree felony domestic violence.
{¶10} However, when the pregnancy specification was deleted from both domestic
violence counts in violation of R.C. 2919.25(A), Stump actually pled guilty to a
first-degree misdemeanor as set forth in R.C. 2919.25(D)(2). As previously noted, the
state conceded this at oral argument. R.C. 2919.25(D)(2) provides that “a violation of
division (A) … of this section is a misdemeanor of the first degree.” Id. Under R.C.
2929.24(A)(1), the trial court cannot impose a jail term of more than 180 days for
first-degree misdemeanors.
{¶11} Throughout the plea hearing and sentencing, the trial court, the state, and
defense counsel repeatedly and incorrectly referred to both counts as fifth-degree felonies,
instead of first-degree misdemeanors. Both the prosecutor and defense counsel advised
the court at the plea hearing that the charges as amended were fifth-degree felonies.
During the plea colloquy, the trial court stated:
COURT: Based upon the statements of the prosecuting attorney and your
lawyer, I believe it is your intention to plead guilty in each of your cases to
amended indictments.
In case number 592564, it’s my understanding that you’ll plead guilty to
amended Count 1, to domestic violence, in violation of 2919.25(A), a
felony of the fifth degree. Is that your understanding?
[STUMP]: Yes, ma’am.
COURT: And in case number 592569, it’s my understanding that you’ll
plead guilty to Count 1, domestic violence, deleting the pregnant victim
specification.
[STUMP]: Yes, ma’am.
COURT: And that’s in violation of 2919.25(A), a felony of the fifth
degree.
And that pregnant victim specification is deleted in case number 592564, as
well. Right?
[STUMP]: Yes, ma’am.
COURT: Do you understand that felonies of the fifth degree carry with
them, maximum penalty of anywhere from six to twelve months in monthly
increments and a fine of up to $2,500?
[STUMP]: Yes, ma’am.
COURT: Since you’re pleading guilty to two separate cases, do you
understand that if you are sent to prison your sentence could be run
concurrently, where your sentence would be served at the same time, or
consecutively? So that means if it’s consecutive, your maximum prison
sentence could be two years. Do you understand?
[STUMP]: Yes, ma’am.
…
COURT: You could also be placed under a community control sentence
for up to five years. If you violate the terms of the sentence you could
receive a more restrictive sentence, including prison time.
[STUMP]: Yes ma’am.
{¶12} After the court accepted Stump’s guilty pleas, defense counsel requested
that Stump be referred for a presentence investigation report and be placed on a personal
bond. Defense counsel stated:
[DEFENSE COUNSEL]: I know if you do give [Stump a personal bond],
Your Honor, he would be out probably four or five weeks. And I think at
sentencing that would be a great opportunity for him to prove to the court
that he would ultimately be a suitable candidate for community control
sanctions.
{¶13} Then at sentencing, defense counsel asked the court to sentence Stump to
community control sanction. He stated:
[DEFENSE COUNSEL]: I would ask this Court to consider him a
candidate for Community Controlled Sanctions. If he’s granted that
privilege, he certainly would be well aware there would be a No Contact
Order that he can’t have any contact with the victim here.
He needs to become a productive member of society, and he would be able
to live with his father if he’s released. So we’re asking the Court to grant
him the privilege of Community Controlled Sanctions, so that he could
show the Court what I think most importantly, one, that he needs to show
that he can be a productive member of society; and two, that he can do it
himself.
And I think he’s locked in, at this point, and he’s desirous of showing
himself that he can ask the Court to give him that opportunity. Thank you.
{¶14} It is clear from the guilty plea hearing that Stump pled guilty to amended
charges of domestic violence, without the pregnant victim specification, in violation of
R.C. 2919.25(A). As amended, the offenses Stump pled to are first-degree
misdemeanors, yet when accepting his plea the court found him guilty of a greater offense
than what he admitted to committing. He was convicted of fifth-degree felony domestic
violence even though the pregnancy specifications were deleted from both offenses.
The deletion of this specification rendered each offense a first-degree misdemeanor.
{¶15} A “‘universally recognized requirement of due process’” is the requirement
that the defendant receive “‘real notice of the true nature of the charge against him.’”
Henderson v. Morgan, 426 U.S. 637, 645,
96 S.Ct. 2253,
49 L.Ed.2d 108 (1976), quoting
Smith v. O’Grady,
312 U.S. 329, 334,
61 S.Ct. 572,
85 L.Ed. 859 (1941). If a defendant
does not have notice of the correct charge against him, then his due process rights are
violated.
Id. “A violation of a defendant’s due process rights is per se prejudicial, as it
is a constitutional right.” State v. Davis, 4th Dist. Highland No. 06CA21,
2007-Ohio-3944, ¶ 34. Moreover, a “‘failure to comply with the requirements of
Crim.R. 11 is plain error.”’ State v. Johnson, 8th Dist. Cuyahoga No. 91884,
2009-Ohio-2268, ¶ 11, quoting State v. Hlinovsky, 7th Dist. Belmont No. 99 BA 65,
2001-Ohio-3247.
{¶16} Because the guilty plea proceedings do not support any inference that Stump
pled guilty to a first-degree misdemeanor with a maximum of 180 days of imprisonment
on each count and Stump was, in fact, sentenced to 22 months in prison (which is
contrary to law as it is outside the permissible statutory range for first-degree
misdemeanors), we find that his guilty plea is invalid. Under the facts of this case,
where the misstatements permeated the plea proceedings, Stump could not have
knowingly, intelligently, and voluntarily pled guilty to first-degree misdemeanor domestic
violence.
{¶17} Accordingly, the trial court’s error constitutes plain error and the first
assignment of error is sustained.
Ineffective Assistance of Counsel and Sentence
{¶18} In the second assignment of error, Stump argues counsel was ineffective for
failing to advise that he faced a mandatory prison sentence and for requesting community
control sanction. In the third assignment of error, he argues that the trial court erred
when it imposed consecutive sentences without making the statutorily required findings.
However, our disposition of the first assignment of error renders these remaining
assignments of error as moot and they need not be addressed. App.R. 12(A)(1)(c).
{¶19} Therefore, Stump’s guilty plea and sentence is vacated in both Case Nos.
CR-15-592564-A and CR-15-592569-A. The matters are remanded for further
proceedings consistent with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
