Pleas and Post-Release Controls
The law on post-release controls vis-a-vis sentencing has become pretty settled, especially following the Supreme Court's decision last summer in State v. Bezak: the trial judge has to advise the defendant orally of PRC at the time of sentencing, and also include that in the journal entry. If the judge doesn't do both, the imposition of PRC isn't valid. Yesterday, in State v. Sarkozy, the Supreme Court went a long way in resolving whether the failure of the trial court to notify the defendant of PRC at the plea hearing invalidates the plea. The quick and dirty:
Just the facts, ma'am. Sarkozy had pled guilty to attempted murder, aggravated robbery, and kidnapping, along with a bevy of gun specs. He wound up getting twenty-seven years, and on appeal argued that the judge had failed to advise him of post-release controls during the plea.
The defendant argued: Criminal Rule 11(C)(2) requires a defendant to have an "understanding of the nature of the charges and the maximum penalty involved." (My emphasis, here and throughout.) If the defendant isn't advised that he'll be placed on PRC, and that violations of PRC can enhance his original sentence by as much as 50%, he obviously hasn't been informed of the maximum sentence.
The state argued: Since notification of PRC involves a non-constitutional right, only "substantial" compliance with Rule 11 is necessary. That's a tough sell, because here there was no compliance with the rule, at least as far as PRC was concerned: the trial court never even mentioned it.
The Court ruled: Sarkozy wins, the plea gets vacated. A trial court must advise a defendant of PRC at the time of the plea. If it doesn't, the issue can be raised either in a motion to vacate the plea or on appeal.
So that settles that, right? To a large extent, yes. There were cases floating around in which some courts of appeals had held that the defendant still had to show prejudice, meaning that he had to show that he wouldn't have entered the plea if he'd known about PRC. Sarkozy almost surely kills that argument.
Sarkozy does leave a few issues unsettled. Although it's rare here in Cuyahoga County, other counties make frequent use of written plea agreements. If the plea agreement contains the information about PRC, is the judge also required to mention it orally in the plea colloquy? It seems so; after all, the syllabus of Sarkozy says
If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct appeal.
You could make the argument that this has to be read in the context of the case, and since a written plea agreement wasn't at issue here, Sarkozy really doesn't address the situation where the information's contained in the written agreement but not given orally.
I think that's a real stretch, though. Sarkozy's based on the idea that PRC is part of the maximum sentence, and Rule 11 requires the trial court to "address the defendant personally" and ensure that he understands what that is. (Again, my emphasis.) I don't think you get around the requirement of including PRC in the plea colloquy, any more than you could rely solely upon a written plea agreement to advise a defendant of the specific prison terms he's facing.
The other question is what happens if the trial court advises the defendant of PRC, but gives him the wrong information, telling him, for example, that PRC is discretionary when it's mandatory, or telling him that it's a three-year period when it's five years, or telling him that it's "up to" five years when it's actually a full five years? Back in 2006, in Watkins v. Collins, the Court had held that incorrect information about PRC at the time of sentencing didn't void the sentence. The same argument could be made here: as long as the judge tells the defendant something about PRC at the plea, the plea is valid.
On the other hand, Watkins was based on the idea that all the court had to do was give the defendant notice at the sentencing hearing that he'd be placed on PRC. Again, Sarkozy is based on the idea that PRC is part of the maximum sentence. No one would argue that a judge had adequately informed a defendant of the penalty for a "brandishing" firearm specification if he told the defendant the penalty was "up to three years in prison."
In short, while Sarkozy possibly leaves some room for interpretation, I don't think there's much play here: if a trial judge doesn't orally and accurately inform the defendant of PRC at the time of the plea, that plea's going to be vacated or reversed.
It's a good decision by the Supreme Court: it's the right one, and it clarifies what had been a confusing area of law. A shout out to John Martin and the crew down at the Cuyahoga County Public Defender's Office for their excellent appellate work on this one.