         [Cite as State v. Morris, 2019-Ohio-3011.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NO. C-180520
                                                          TRIAL NO. B-1706912
        Plaintiff-Appellee,                           :
                                                             O P I N I O N.
  vs.                                                 :

STEPHEN MORRIS,                                       :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 26, 2019



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}    Defendant-appellant Stephen Morris appeals from the trial court’s
judgment convicting him, upon a guilty plea, of rape. In three assignments of error,

he argues that the trial court erred in denying his request for independent laboratory
testing of DNA evidence, that his trial counsel rendered ineffective assistance, and
that his plea was not entered knowingly or voluntarily because the trial court failed

to properly advise him about postrelease control.
       {¶2}    Finding Morris’s assignments of error to be without merit, we affirm

the trial court’s judgment.


                         Factual and Procedural Background


       {¶3}    The grand jury issued an indictment charging Morris with two counts

of rape in violation of R.C. 2907.02(A)(1)(b). The victim of these offenses was a 12-
year-old girl who became pregnant following the rape. DNA testing obtained by the
state showed that Morris was the father of the victim’s baby.
       {¶4}    Morris’s counsel made an oral motion for the DNA samples to be

retested at a private lab, but the trial court overruled the motion. Morris then
entered a guilty plea to one count of rape in return for the state dismissing the
second count. The trial court imposed a sentence of 10 years’ to life imprisonment.


                              Denial of Independent DNA Test


       {¶5}    In his first assignment of error, Morris argues that the trial court erred
by denying his request for independent laboratory testing of the DNA evidence.

       {¶6}    A guilty plea waives “any complaint as to claims of constitutional
violations not related to the entry of the guilty plea.” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 105; see State v. Watson, 1st Dist. Hamilton



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Nos. C-170598 and C-170648, 2018-Ohio-4971, ¶ 3 (a guilty plea “waives the right to
appeal all nonjurisdictional defects in the proceedings.”). By pleading guilty, Morris
waived the right to challenge the trial court’s denial of his request for an independent
DNA test. The first assignment of error is accordingly overruled.


                                Ineffective Assistance


       {¶7}   In a related second assignment of error, Morris argues that his counsel
was ineffective for failing to file a written motion for independent laboratory testing

of the DNA evidence.
       {¶8}   Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.
Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s
performance if there is a reasonable probability that the outcome of the proceedings
would have been different but for the deficient performance.              Strickland at

694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s
behavior fell within the acceptable range of reasonable professional assistance.
Strickland at 689; Bradley at 142.
       {¶9}   Here, counsel was not deficient for failing to file a written motion for
an independent DNA test. Counsel made an oral motion to have the DNA samples

retested, which sufficiently placed the issue before the court and which the court, in
fact, considered. Morris contends that counsel failed to zealously argue the issue
when the oral motion was raised, but the record belies this contention.          When
making the oral motion, counsel stated that after reviewing the initial reports and
speaking with the crime lab, he had no concerns with the chain of custody, the actual
testing, or qualifications of the lab analyst. Rather, he requested independent testing


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                     OHIO FIRST DISTRICT COURT OF APPEALS



to test the result. Counsel advocated for Morris while honestly assessing the issue
before the court, and his performance was not deficient.
       {¶10} Moreover, because the court in fact considered the motion, Morris can
show no prejudice from the lack of a written motion or more particularized

argument. The court considered the request and denied it.
       {¶11} The second assignment of error is overruled.


                            Plea was Knowing and Voluntary


       {¶12} In his third assignment of error, Morris argues that his plea was not
entered knowingly or voluntarily because the trial court failed to properly advise him

of the consequences of postrelease control.
       {¶13} The following discussion regarding postrelease control occurred
during the plea colloquy:

       THE COURT: I also need to advise you since I will be sending you to
       prison—I should check this. I apologize. As far as post-release control,
       on a life sentence, generally, I don’t have to say anything about that.
       But I am not sure. This is a sex offense. Let’s do it this way. There is a
       thing called post-release control. I am sure [defense counsel] has
       talked to you about it. Here is the deal. If I sentence you to prison,
       which I am going to do, upon your release from prison, if in fact you

       are released, you will be placed on post-release control for five years.
       Do you understand that?

       MORRIS: Yes.
       THE COURT: I also need to advise you, then, that if in fact you are—
       upon your release from prison, if you were to violate any of the
       conditions of the post-release control, you could be returned to the
       institution for a total of up to one-half of the original sentence. Do you
       understand that?


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               OHIO FIRST DISTRICT COURT OF APPEALS



MORRIS: Yes.
THE COURT: Thank you, sir. Anything on that, [defense counsel]?
DEFENSE COUNSEL: No, Your Honor.
PROSECUTOR: Just in this case, I think he could actually return for

life because it would be a parole violation.
THE COURT: I am not sure of that. You have to consider it because I
don’t know that anybody can answer that. It is not that we don’t know.
It depends on what would happen years from now. Technically, if you
were to go to prison, get out, be placed on post-release control, violate
the post-release control, there is a scenario where you could go back to
prison again for life. It could be, the way I am reading the statute and
the language right now, it could be half of that, whatever that means. I

am not sure. But I need to make sure that you are aware that there are
serious, serious, ramifications if you were to be released from prison,
you violated the post-release control. Do you understand that?
MORRIS: Yes.

THE COURT: Okay. I think that’s the best I can do for you. Not trying
to hide anything or anything like that. None of us can really give you

an answer better than that. I appreciate that, sir.
PROSECUTOR: I think the new felony rules still apply for post-release
control.
DEFENSE COUNSEL: Yes.
PROSECUTOR: You didn’t read that yet. Wanted to make sure you
didn’t skip that.
THE COURT: I didn’t say—

PROSECUTOR: If you commit a new felony while on post-release
control.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       THE COURT: I did say, if you violate any of the conditions of the post-
       release control, you could be returned to the institution for a total of
       up to one-half of the original sentence or that explanation that I just
       gave you. Do you understand that?

       MORRIS: Yes.
       THE COURT: Does that cover—
       PROSECUTOR: If you commit a new felony while on post-release
       control, you could be returned for one year or the remaining period of
       post-release control. You didn’t say that part.
       THE COURT: I don’t do that part. I don’t think I have to.
       DEFENSE COUNSEL: It is not a problem, Judge. I think he clearly
       understands the ramifications.
       {¶14} Morris contends that the trial court’s explanation of postrelease
control was confusing and inconsistent, rendering his plea unknowing and
involuntary.
       {¶15} Crim.R. 11(C) requires a trial court, before accepting a guilty plea to a
felony offense, to address the defendant and verify that the defendant is entering the
plea voluntarily, with an understanding of the effect of the plea, the nature of the
charges, and the maximum penalty available. The court must additionally inform

the defendant of various constitutional rights that the defendant is waiving by
entering a guilty plea. State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-Ohio-

2376, ¶ 5; State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d
180, ¶ 41.     It must also advise the defendant about any applicable period of
postrelease control and the sanctions that would be incurred for a postrelease control
violation. Giuggio at ¶ 5.
       {¶16} The trial court must strictly comply with Crim.R. 11 when it explains
the constitutional rights that are being waived. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Foster, 2018-Ohio-4006, 121


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                      OHIO FIRST DISTRICT COURT OF APPEALS



N.E.3d 76, ¶ 15 (1st Dist.). But the trial court need only substantially comply with
Crim.R. 11 when explaining the rule’s nonconstitutional provisions, including the
nature of the charges, the maximum penalty involved, postrelease control
obligations, and the effect of the plea. State v. Partee, 1st Dist. Hamilton No. C-

120432, 2013-Ohio-908, ¶ 2; Veney at ¶ 14. Substantial compliance “means that
under the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d
106, 108, 564 N.E.2d 474 (1990).
       {¶17} When a trial court fails to substantially comply with Crim.R. 11
regarding a nonconstitutional provision, a reviewing court must determine whether
the trial court partially complied or failed to comply with the rule. State v. Clark, 119
Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If the trial court partially

complied, the plea may only be vacated if the defendant demonstrates prejudice. Id.

A defendant shows prejudice by establishing that the plea would not have otherwise
been made if the defendant had been fully informed. Id., citing Nero at 108. But

where the trial court completely fails to comply with a nonconstitutional provision of
the rule, the plea must be vacated. Id.
       {¶18} Here, because Morris was convicted of rape, which is both a first-
degree felony and a felony sex offense, he was subject to a five-year period of
postrelease control pursuant to R.C. 2967.28(B)(1). The imposition of an indefinite
life sentence did not eliminate this portion of his required sentence. State ex rel.

Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 20;
State v. Miller, 1st Dist. Hamilton No. C-120109, 2012-Ohio-5964, ¶ 28.
       {¶19} Following our review of the record, we hold that the trial court
substantially complied with requirement that it advise Morris regarding any

applicable period of postrelease control. It correctly informed Morris that if he were
to be released from prison, he would be subject to a five-year period of postrelease

control, and that if the conditions of postrelease control were violated, Morris could


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                       OHIO FIRST DISTRICT COURT OF APPEALS



be returned to prison for up to one half of his original sentence.             The record
demonstrates that Morris subjectively understood that he would be subject to
postrelease control and that he was aware of the consequences for violating
postrelease control.
       {¶20} We find that Morris entered his plea knowingly and voluntarily, and
we overrule the third assignment of error.


                                       Conclusion


       {¶21} Having overruled Morris’s assignments of error, we accordingly affirm
the judgment of the trial court.

                                                                      Judgment affirmed.


CROUSE and WINKLER, JJ., concur.




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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