COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69237 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DERRICK TRIPLETT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-307722 JUDGMENT: Affirmed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHEN L. MILES, ESQ. DANIEL SCULLY, ESQ. 20800 Center Ridge Road Assistant Public Defender Suite 217 100 Lakeside Place Rocky River, Ohio 44116 1200 West Third Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Defendant-Appellant, Derrick Triplett, appeals his conviction for aggravated robbery and robbery and assigns the following errors for our review: I. APPELLANT'S GUILTY PLEA WAS NOT FULLY VOLUNTARY SINCE IT WAS INDUCED BY THE TRIAL COURT'S INVOLVEMENT IN THE NEGOTIATIONS RESULTING IN THAT PLEA AND HENCE VIOLATED HIS RIGHT NOT TO INCRIMINATE HIMSELF AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. THE TRIAL COURT DID NOT SUBSTANTIALLY COMPLY WITH CRIM.R. 11(C)(2)(a) WHEN IT ACCEPTED THE APPELLANT'S GUILTY PLEA BY UNDERSTATING THE MAXIMUM POSSIBLE SENTENCE HE COULD HAVE RECEIVED AS A RESULT OF THAT PLEA. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Triplett was indicted for one count of aggravated burglary with specifications, two counts of aggravated robbery, and one count of robbery. On September 20, 1994, Triplett entered into a plea agreement, in which he would plead guilty to aggravated robbery and robbery, and the remaining charges would be dismissed. In stating the terms of the plea, the prosecutor stated as follows: "Besides what the State has put on the record, the State of Ohio is not aware of any other promises, threats or inducements. The only thing I would like to make sure of is that the Court is aware that in regards to the aggravated robbery, Count 2, that is a non- probationable felony, and it is up to the Court, it is within your discretion, of what the minimum side is, but you will have to -3- sentence him to a term of actual incarceration. The minimum side is 5 to 25 years. How the Court handles the robbery and everything else at sentencing, the State of Ohio would leave that up to your discretion at the time of sentencing." In response, defense counsel reiterated that the prosecutor would not attend the sentencing and would not take a position on sentencing. Before accepting his plea, the trial judge engaged Triplett in dialogue on the record to determine whether the plea was knowing, intelligent, and voluntary. In the course of this dialogue, the trial judge informed Triplett that the maximum terms were an indefinite term of 10 to 25 for aggravated robbery, an indefinite term of 8 to 15 for robbery, and the judge also informed Triplett that he could receive a maximum definite term of 2 years on an unrelated drug case. Thereafter, the trial judge summarized by indicating to Triplett that he could receive a maximum of 15 to 40 years of incarceration. On the scheduled day for sentencing, Triplett did not appear and a warrant was issued for his arrest. When the sentencing was finally held, defense counsel attempted to explain Triplett's absence and stated as follows: "[Five to twenty-five] was the agreed sentence at the time and I trust the court will not deviate too far from that five to twenty-five in light of the fact Mr. Triplett is remorseful, and we ask for some leniency in that respect." -4- The trial judge commented that: "The record should be clear that Mr. Triplett was required to show at a proper time and he did not. And therefore he misunderstood the court's position. He mistook kindness for weakness." Triplett was sentenced to two concurrent terms of 8 to 25 years for aggravated robbery and robbery, and two years on the unrelated drug case which was also ordered to be served concurrently. After announcing Triplett's sentence, the trial judge commented as follows: "Your conduct in this regard in disregarding the court's announced agreement with you has cost you an additional three years in prison. *** Now, it could have cost you an additional five years in prison. This may be a good lesson for you when you go through the system as to how you behave, because if you don't behave properly you will be in there for five years." The sentence was subsequently modified to a term of 8 to 25 for aggravated robbery and a term of 8 to 15 for robbery. There- after, Triplett moved to modify his sentence on the basis of the plea agreement. The motion was granted, but the trial court only modified one sentence as follows: "Motion to modify sentence is granted. Defendant is sentenced to five to twenty-five years and not eight to twenty-five years." In his first assignment of error, Triplett argues his plea was not voluntary because it was induced by the trial judge who failed to impose the promised sentence. Although a trial judge's partici- pation in plea bargaining is not prohibited under Crim.R. 11, it does call into question the voluntariness of the plea. Therefore, -5- when a trial judge participates in the plea bargaining process, it should be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea. State v. Byrd (1980), 63 Ohio St.2d 288. See, also, State v. Ball (1990), 66 Ohio App.3d 224 (held plea involuntary where trial judge participated in plea negotiations and defendant was not informed of the mandatory fine). Where the trial court promises a certain sentence, that promise becomes an inducement to enter a plea, and unless that sentence is given, that plea is not voluntary. State v. Simms (Dec. 6, 1984), Cuyahoga App.No. 47796, unreported. Thus, a trial court commits reversible error when it participates in plea negotiations but fails to impose the promised sentence. Id. See, also, State v. Walker (1989), 61 Ohio App.3d 768. However, in Walker, this court concluded that if the trial judge's partici- pation in the plea bargaining was limited to sentencing, the case could be remanded for imposition of the promised sentence. See Walker at 770. In this case, the record clearly demonstrates the trial judge participated in plea negotiations insofar as Triplett was promised a particular sentence. The promised sentence provided for indefinite terms of 5 to 25 years for aggravated robbery and 5 to 15 for robbery to be served concurrently. Although the trial judge did not indicate his involvement during the plea hearing itself, he did allude to it at sentencing. Furthermore, it appears the trial court attempted to rectify its failure to honor the plea. The trial court granted the first -6- 1 motion to modify even though it lacked jurisdiction to do so, but it only attempted to modify the sentence for aggravated robbery. Upon further consideration, while this appeal was pending, and 2 again without jurisdiction, the trial court attempted to modify the robbery sentence in an attempt to fully honor the plea agreement. Because the trial court lacked jurisdiction to modify the sentences, this case must be remanded for resentencing. From the trial judge's statements at sentencing and his attempts to modify the sentence, this court finds his participation in the plea agreement was limited to sentencing. Therefore, the previous sentences must be vacated, and the case is remanded for imposition of the promised sentence. See Walker at 770, supra. It should also be noted that when the trial court attempted to modify the sentence, it violated Civ.R. 43(A). It specifically requires that the defendant be present at every stage of the proceedings including resentencing. See, e.g. Columbus v. Rowland (9181), 2 Ohio App.3d 144. Accordingly, upon remand, Triplett should be present for resentencing. 1 A trial court has jurisdiction to correct a statutorily incorrect sentence, see State v. Beasley (1984), 14 Ohio St.3d 74, but once a valid sentence has been executed, a trial court no longer has the power to modify the sentence except as provided by the General Assembly. State v. Addison (1987), 40 Ohio App.3d 7. See, also, State v. Calvillo (1991), 76 Ohio App.3d 714, 717. 2 As a general rule, when an appeal is taken, the trial court is divested of jurisdiction, except to take action in aid of the appeal. State, ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94. -7- In his second assignment of error, Triplett argues the sentence was not in substantial compliance because he was not informed of the maximum sentence. The Supreme Court held failure to inform defendant of the maximum possible sentence was not a violation of Crim.R. 11(C)(2) and does not render the plea involuntary unless the defendant was prejudiced. State v. Johnson (1988), 40 Ohio St.3d 130, 134 (where the maximum possible sentence for each crime was stated by the trial court). "***[T]he test of prejudice is not whether appellee had knowledge of a maximum sentence involved, but the test of prejudice is whether the plea would otherwise have been made." Id. In this case, the trial court stated the maximum sentence for each offense correctly, but then misstated the potential maximum sentence for all of the cases by indicating a maximum term of 15 to 40 years instead of 20 to 42 years. Nonetheless, Triplett's reliance was not on the possible maximum sentence; his reliance was on getting the benefit of his plea agreement. Accordingly, we must conclude "***the plea would otherwise have been made," Id., and therefore, Triplett was not prejudiced. Judgment affirmed and remanded for resentencing in accordance with Triplett's plea agreement. -8- It is ordered that Appellee recover of Appellant its 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. Case remanded to the trial court for resentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., CONCUR. MCMONAGLE, J., DISSENTS IN PART AND CONCURS IN PART. (SEE ATTACHED DISSENTING AND CONCURRING OPINION.) PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69237 STATE OF OHIO : : Plaintiff-appellee : : vs. : DISSENTING AND CONCURRING : OPINION DERRICK TRIPLETT : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 13, 1997 TIMOTHY E. McMONAGLE, J., DISSENTING IN PART AND CONCURRING IN PART: Although I concur in part with the opinion of the majority and find no merit to the appellant's second assigned error, I am compelled to dissent with the majority's analysis of the appellant's first assigned error, which finds that the trial judge "promised" the appellant a lesser sentence requiring remand of this matter to the lower court for imposition of the "promised" sentence. The majority relies on State v. Simms and State v. Walker for its decision to remand this matter for resentencing. I find the facts of both Simms and Walker to be distinguishable from the matter sub judice. The Simms court found from the record that it was shown that the judge "frankly admitted" participation in the -2- plea agreement. The Walker court found the court's participation in the plea negotiations was "extensive." In dicta, the Walker court, at 770, determined that "had the trial court's active participation in the plea bargaining process been limited to sentencing discussions, [the court] would be inclined to remand the case for imposition of the minimum sentence." However, I find nothing in the record before us which demonstrates that the trial judge "actively participated" in plea negotiations or "promised" appellant Triplett a particular sentence. A careful review of the record fails to disclose any evidence that the court participated in the plea bargain agreement to such an extent that it could be said that the plea was not knowingly, intelligently or voluntarily made. Nothing in the record indicates that the court promised this appellant a certain sentence in exchange for his plea. Nothing in the record suggests that, but for the promise of the minimum sentence, this plea would not have been made. It cannot be said from the record before this court that the appellant's plea was induced by the trial court's active participation and was, therefore, involuntary. Accordingly, I do not believe that the appellant's sentence .