[Cite as State v. Pope, 2014-Ohio-3212.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. Nos.        26928
                                                                        27096
        Appellee

        v.
                                                       APPEAL FROM JUDGMENT
PHILLIP L. POPE                                        ENTERED IN THE
                                                       COURT OF COMMON PLEAS
        Appellant                                      COUNTY OF SUMMIT, OHIO
                                                       CASE No.   CR 12 12 3456

                                 DECISION AND JOURNAL ENTRY

Dated: July 23, 2014



        MOORE, Judge.

        {¶1}     Defendant-Appellant, Phillip L. Pope, appeals from the February 25, 2013

judgment entry of the Summit County Court of Common Pleas. We affirm, in part, reverse, in

part, and remand for the trial court to correct the sentencing entry.

                                                  I.

        {¶2}     Mr. Pope was indicted for (1) aggravated murder, in violation of R.C. 2903.01(A),

with a firearm specification, (2) discharge of a firearm on or near prohibited premises, in

violation of R.C. 2923.162(A)(3)/(C)(4), with a firearm specification, (3) having weapons while

under disability, in violation of R.C. 2923.13(A)(3), (4) murder, in violation of R.C. 2903.02(A),

with a firearm specification, (5) murder, in violation of R.C. 2903.02(B), with a firearm

specification, (6) felonious assault, in violation of R.C. 2903.11(A)(1)/(A)(2), with a firearm

specification, (7) felonious assault, in violation of R.C. 2903.11(A)(2), with a firearm

specification, (8) attempted aggravated murder, in violation of R.C. 2903.01(A)/R.C. 2923.02,
                                                 2


with a firearm specification, (9) attempted murder, in violation of R.C. 2903.02(B)/R.C. 2923.02,

with a firearm specification, and (10) attempted murder, in violation of R.C. 2903.02(A)/R.C.

2923.02.

       {¶3}    Mr. Pope pleaded not guilty to all of the charges.

       {¶4}    In February of 2013, Mr. Pope changed his plea to guilty of murder, in violation

of R.C. 2903.02(A), an unclassified felony, and to a firearm specification, pursuant to R.C.

2941.145. Prior to accepting his guilty plea, the trial court advised Mr. Pope that “should [he] be

released by the adult parole authority, [he] will be under their supervision at that point and [he]

will have to serve a period of [postrelease] control as part of [his] sentence, and that would be for

a mandatory five-year term[.]” The trial court then dismissed the remaining charges in the

indictment and accepted Mr. Pope’s guilty plea. Mr. Pope was sentenced to a mandatory period

of three (3) year’s incarceration for the firearm specification, to be served consecutively with an

indeterminate period of incarceration of not less than fifteen (15) years to life for murder. The

trial court further indicated that Mr. Pope would be eligible for parole after serving eighteen (18)

years of his life sentence.

       {¶5}    Mr. Pope did not timely appeal from the trial court’s sentencing entry. However,

he filed two motions for delayed appeal, and this Court granted both motions. The appeals were

then consolidated. He now raises three assignments of error for our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ACCEPTING [][MR.] POPE’S GUILTY PLEA WITHOUT COMPLYING
       WITH THE REQUIREMENTS OF [CRIM.R.11(C)(2)(A)].
                                                    3


        {¶6}     In his first assignment of error, Mr. Pope argues that the trial court erred in

accepting his guilty plea without substantially complying with Crim.R.11(C)(2)(a). Specifically,

Mr. Pope argues that the trial court erred by advising him that, should he be released from prison,

he would be subject to a mandatory five-years of postrelease control for murder, in violation of

R.C. 2903.02(A), an unclassified felony. Based upon State v. Clark, 119 Ohio St.3d 239, 2008-

Ohio-3748, Mr. Pope argues that his plea was not entered knowingly, intelligently, and

voluntarily, and that he was prejudiced by the trial court’s misstatement regarding postrelease

control because “he would not have [pleaded] guilty,” but, instead, would have exercised his

right to go to trial.

        {¶7}     The State responds by arguing that Mr. Pope cannot demonstrate prejudice

because “[t]here is nothing in the record to suggest that [Mr.] Pope would not have entered his

guilty plea had the trial court not erroneously informed him that he was subject to a mandatory

five-year term of [postrelease] control.”

        {¶8}     “The basic tenets of due process at the federal and state level dictate that a guilty

plea must be knowingly, intelligently, and voluntarily given.” State v. Firl, 9th Dist. Summit No.

22689, 2005-Ohio-5501, ¶ 6, citing State v. Sherrard, 9th Dist. Lorain No. 02CA008065, 2003-

Ohio-365, ¶ 6, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). “To ensure this standard is

met, trial courts must conduct an oral dialogue with the defendant pursuant to Crim.R. 11(C)(2).”

Firl at ¶ 6, citing Engle at 527.

        {¶9}     Crim.R. 11(C)(2)(a) states that:

        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:

        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
                                                 4


       defendant is not eligible for probation or for the imposition of community control
       sanctions at the sentencing hearing.

       {¶10} Literal compliance with Criminal Rule 11 is preferred. Clark, 2008-Ohio-3748, at

¶ 29. (“Literal compliance with Crim.R. 11, in all respects, remains preferable to inexact plea

hearing recitations.” (quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 19, fn. 2,

citing State v. Nero, 56 Ohio St.3d 106, 108 (1990))). Nonetheless, in the face of a failure to

literally comply, “reviewing courts must engage in a multitiered analysis to determine whether

the trial judge failed to explain the defendant’s constitutional or nonconstitutional rights and, if

there was a failure, to determine the significance of the failure and the appropriate remedy.”

Clark at ¶ 30. “When a trial judge fails to explain the constitutional rights set forth in Crim.R.

11(C)(2)(c), the guilty or no-contest plea is invalid ‘under a presumption that it was entered

involuntarily and unknowingly.’” Id. at ¶ 31, quoting Griggs at ¶ 12, citing Nero at 107.

“However, if the trial judge imperfectly explained nonconstitutional rights such as the right to be

informed of the maximum possible penalty and the effect of the plea, a substantial-compliance

rule applies.” Clark at ¶ 31, citing Griggs at ¶ 12.    Substantial compliance, as defined by the

Supreme Court of Ohio, means that “under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.” Nero at 108.

       {¶11} Further, “[w]hen the trial judge does not substantially comply with Crim.R. 11 in

regard to a nonconstitutional right, reviewing courts must determine whether the trial court

partially complied or failed to comply with the rule.” (Emphasis sic.) Clark at ¶ 32. “If the trial

judge partially complied * * * the plea may be vacated only if the defendant demonstrates a

prejudicial effect.” Id. citing Nero at 108. “The test for prejudice is ‘whether the plea would

have otherwise been made.’” Clark at ¶ 32, quoting Nero at 108.
                                                 5


        {¶12}    Clark is the primary case relied upon by Mr. Pope to support the motion to

vacate his plea. In Clark at ¶ 33, the defendant pleaded guilty to aggravated murder with a

firearm specification. During the plea colloquy, the trial court correctly conveyed that Mr. Clark

“faced maximum sentences of life in prison without the possibility of parole” for aggravated

murder and “three years in prison for the associated gun specification.” Id. However, on appeal,

the Supreme Court of Ohio determined that the trial court had incorrectly explained the

“concepts of postrelease control and parole” by “[u]sing terms that varied in their meaning

throughout the proceedings[.]” Id. at ¶ 34. The Court held that the trial judge informed Mr.

Clark that, upon serving 28 years in prison, “he would be subject to a hybrid of the two concepts

that does not exist under Ohio law.” Id. In reversing and remanding the matter back to the

Eleventh District Court of Appeals, the Supreme Court of Ohio stated:

        The trial judge was not required to discuss postrelease control or parole in [Mr.]
        Clark’s plea colloquy under Crim.R. 11(C)(2), as [Mr.] Clark was not eligible for
        postrelease control, given his plea to an unclassified felony. * * *

        Such an incorrect recitation of the law fails to meet the substantial-compliance
        standard. If a trial judge chooses to offer an expanded explanation of the law in a
        Crim.R. 11 plea colloquy, the information conveyed must be accurate. The rule is
        in place to ensure that defendants wishing to plead guilty or no contest do so
        knowingly, intelligently, and voluntarily.          Because of the substantial
        misinformation that the trial judge provided to the defendant in this case, the
        defendant could not have entered his plea knowingly, intelligently, and
        voluntarily. The fact that the trial court provided some correct information as
        well does not alter this conclusion, because the [correct] information was not
        provided in such a manner as to remedy the erroneous information.

        Despite the failure to substantially comply with Crim.R. 11, the trial judge did not
        simply ignore his duties under Crim.R.11(C)(2)(a). Because the trial judge
        partially complied with the rule, [Mr.] Clark must show that he was prejudiced by
        the trial court’s misinformation to successfully vacate his plea. * * *

Id. at ¶ 38.

        {¶13} Upon remand, the Eleventh District upheld Mr. Clark’s plea, and concluded that

he failed to demonstrate prejudice because he “presented no evidence and point[ed] to no
                                                6


evidence in the record suggesting that his plea would have been otherwise had he known the

actual conditions of parole.” State v. Clark, (“Clark II”), 11th Dist. Ashtabula No. 2006-A-0004,

2008-Ohio-6768, ¶ 16.

       {¶14} In the present matter, Mr. Pope pleaded guilty to murder, an unclassified felony.

As such, pursuant to R.C. 2967.28(B) and (C), Mr. Pope is not eligible for postrelease control.

See Clark II, 2008-Ohio-3748, ¶ 38. Rather, he is eligible to apply for parole after serving

eighteen years of his life sentence. However, during the Crim.R. 11(C) plea colloquy, after

correctly apprising Mr. Pope of the nature of his sentence and his constitutional rights, the trial

court stated:

       ***

       [THE COURT]: You understand that should you be released by the adult parole
       authority, you will be under their supervision at that point and you will have to
       serve a period of post[]release control as part of your sentence, and that would be
       for a mandatory five-year term?

       [MR. POPE]: Yes.

       ***

       [THE COURT]: You understand that when you’re placed on post[]release
       control, the adult parole authority would be authorized to return you to prison for
       up to nine months for any single violation, up to a maximum of 50 percent of your
       prison sentence for all violations?

       And if you would be convicted of a new felony while on post[]release control, in
       addition to being punished for the new offense, the Judge could add an additional,
       consecutive prison term of one year or whatever time remains on your
       post[]release control term?

       [MR. POPE]: Yes.

       ***

The record indicates that the trial court failed to substantially comply with Crim.R. 11(C)(2)(a)

because it “described a decidedly different form of release [(postrelease control)] from the one
                                                  7


[Mr. Pope] actually faced under the law [(parole)][.]” Clark at ¶ 38-39. However, because the

trial court partially complied with Crim.R. 11(C)(2)(a), Mr. Pope must still demonstrate that he

was prejudiced by the trial court’s misstatement regarding postrelease control.

       {¶15} Similar to Clark II, the record before us does not contain any evidence that, but

for the belief that he would be subject to postrelease control, Mr. Pope would have proceeded to

trial. See Nero at 108. Mr. Pope does not direct us to any part of the record suggesting that, had

he known he was not eligible for postrelease control, he would not have pleaded guilty to

murder.

       {¶16} Instead, the transcript of the plea hearing demonstrates that Mr. Pope accepted full

and complete responsibility for his actions. During the plea hearing, Mr. Pope’s attorney stated:

“[t]his is his fault and nobody else’s fault,” and “[i]t’s his fault and that’s why he is entering this

plea at this time. It’s his responsibility and nobody else’s; is that right,” to which Mr. Pope

responded, “[r]ight.” Further, there was no discussion on the record that Mr. Pope’s decision to

plead guilty in any way hinged on whether he was eligible for postrelease control. In fact, prior

to the Crim.R. 11(C) colloquy, the prosecutor explained that Mr. Pope’s “sentence would be []

15 years to life on the murder, and the additional 3 years on the gun specification, for a total of

18 years to life; so, basically life in prison with parole eligibility after 18 years,” and Mr. Pope’s

attorney replied “[w]hat the Prosecution has stated is correct.”

       {¶17} While Mr. Pope did not file a motion to withdraw his plea or otherwise place

before the court any evidentiary documents, he bases his argument regarding prejudice upon the

suggestion that he would not have pleaded guilty had he known he was ineligible for postrelease

control. We note that there is nothing in the record to support this assertion, and Mr. Pope does
                                                  8


not explain how the ineligibility for postrelease control was prejudicial under the circumstances

reflected in the record.

       {¶18} Therefore, based upon the record before us, we cannot conclude that Mr. Pope

was prejudiced by the trial court’s statement regarding postrelease control.

       {¶19} Accordingly, Mr. Pope’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       [THE] TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       SENTENCING [MR.] POPE TO FIVE YEARS OF MANDATORY POST-
       RELEASE CONTROL UNDER R.C. 2967.28 FOR AN UNCLASSIFED
       FELONY.

       {¶20} In his second assignment of error, Mr. Pope argues that, pursuant to R.C. 2967.28,

the trial court erred in sentencing him to five years’ mandatory postrelease control. We agree.

       {¶21} As stated above, R.C. 2967.28 governs the imposition of postrelease control. See

State v. Reed, 9th Dist. Wayne No. 12CA0051, 2013-Ohio-3970, ¶ 77. “The statute does not

permit the imposition of post[]release control on unclassified felonies.” Id. “Thus, an individual

sentenced for * * * murder is not subject to post[]release control.” Id., citing State v. Brown, 9th

Dist. Wayne No. 11CA0054, 2013-Ohio-2945, ¶ 62; see also Clark II, 2008-Ohio-6768, ¶ 19.

       {¶22} Here, the trial court sentenced Mr. Pope to fifteen years to life for murder, an

unclassified felony, and also indicated that he would be subject to five years’ mandatory

postrelease control after being released from prison. Because R.C. 2967.28 does not permit the

imposition of postrelease control on unclassified felonies, that portion of Mr. Pope’s sentencing

entry is void. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26.

       {¶23} Accordingly, Mr. Pope’s second assignment of error is sustained, and the matter

is remanded to the trial court to correct the sentencing entry.
                                                 9


                                ASSIGNMENT OF ERROR III

       [MR.] POPE WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
       FAILED TO OBJECT AT HIS SENTENCING HEARING THAT THE TRIAL
       COURT COULD NOT [IMPOSE] POST-RELEASE CONTROL UPON [MR.]
       POPE FOR HIS CONVICTION OF MURDER, AN UNCLASSIFIED FELONY.

       {¶24} In his third assignment of error, Mr. Pope argues that he was denied effective

assistance of counsel because his attorney failed to object to the imposition of postrelease

control. However, given the resolution of Mr. Pope’s second assignment of error, we conclude

his third assignment of error is moot and decline to address it. See App.R. 12(A)(1)(c).

                                                III.

       {¶25} In overruling Mr. Pope’s first assignment of error, sustaining his second

assignment of error, and concluding that his third assignment of error is moot, the judgment of

the Summit County Court of Common Pleas is affirmed, in part, reversed, in part, and remanded

for further proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                10


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.




                                                     CARLA MOORE
                                                     FOR THE COURT




WHITMORE, J.
BELFANCE, P. J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
