[Cite as State v. Yarochovitch, 2017-Ohio-4293.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104572




                                      STATE OF OHIO
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                              OLEH YAROCHOVITCH
                                                         DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED



                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-15-599568-A, CR-15-600628-A, and CR-15-601090-A

        BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: June 15, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
BY: Paul Kuzmins
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anna Woods
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Oleh Yarochovitch, asks this court to vacate his guilty pleas in

three cases because the trial court failed to fulfill its obligations under Crim.R. 11. After

a thorough review of the record and law, this court vacates appellant’s guilty pleas, and

remands.

                           I. Factual and Procedural History

       {¶2} Appellant, along with two others, were charged with crimes related to a string

of burglaries against mostly elderly victims.      The three would break into a home,

sometimes when an occupant was present but doing yard work outside, and steal

valuables. In one incident, security camera footage captured the license plate number of

the car used during the break-ins. This led police to appellant and his accomplices.

After search warrants were executed, police found valuables belonging to some of the

victims in the possession of appellant and his codefendants.

       {¶3} During pretrials, the state and appellant negotiated a plea agreement that

would allow him to plead guilty to reduced and amended charges. On April 12, 2016, in

Cuyahoga C.P. No. CR-15-599568-A, appellant pled guilty to one count of escape, a

fifth-degree felony violation of R.C. 2921.34(A)(1); one count of breaking and entering, a

fifth-degree felony violation of R.C. 2911.13(A); and one count of theft, a fifth-degree

felony violation of R.C. 2913.02(A)(1).        In Cuyahoga C.P. No. CR-15-600628-A,

appellant pled guilty to one count of burglary, a second-degree felony violation of R.C.
2911.12(A)(2); one count of theft, a fourth-degree felony violation of R.C.

2913.02(A)(1); and one count of receiving stolen property, a fifth-degree felony violation

of R.C. 2913.51(A). Finally, in Cuyahoga C.P. No. CR-15-601090-A, appellant pled

guilty to two counts of burglary, second-degree felony violations of R.C. 2911.12(A)(2);

seven counts of theft, fifth-degree felony violations of R.C. 2913.02(A)(1); one count of

theft, a fourth-degree felony violation of R.C. 2913.02(A)(2); and one count of theft, a

first-degree misdemeanor violation of R.C. 2913.02(A)(1).            At the change of plea

hearing, appellant asserts, and the state concedes, that the court did not inform appellant

about postrelease control for any of these charges.

       {¶4} Sentencing occurred on May 10, 2016. The court imposed a total sentence

spanning all three cases of 14 years and 11 months.1 The court also imposed a period of

postrelease control in each case. Appellant then filed the instant appeal assigning one

error for review:

       I. The appellant’s plea was not knowingly, voluntarily and intelligently
       made where the trial court failed to advise the appellant that he would be
       subject to post[]release control upon release from prison.

                                  II. Law and Analysis

       {¶5} Appellant argues that the complete failure of the trial court to advise him of

postrelease control at the plea hearing renders his pleas invalid.



       1The court’s sentencing entries swapped sentences between two cases. This
court remanded the matter for the trial court to correct this error with only limited
success, but enough to provide final orders of sentence in each case capable of
invoking this court’s jurisdiction.
       {¶6} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently,    and voluntarily.    Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).

Crim.R. 11(C)(2) places a burden on the trial court to inform a criminal defendant of

certain rights, and instilling in the defendant an understanding of the effects of his or her

plea. Without doing so, the court shall not accept a plea of guilty or no contest. Id.

Where the advisement involves constitutional rights, the court must strictly comply;

where the rights involved are nonconstitutional, substantial compliance is sufficient.

State v. Taylor, 8th Dist. Cuyahoga No. 101609, 2015-Ohio-1643, ¶ 8-9. The maximum

penalty a defendant may face is a nonconstitutional right, where a review for substantial

compliance may be appropriate.

       {¶7} The jurisprudence of the Supreme Court of Ohio has made clear this burden,

and the result that must occur where the court fails to properly inform a criminal

defendant of a mandatory term of postrelease control. State v. Sarkozy, 117 Ohio St.3d

86, 2008-Ohio-509, 881 N.E.2d 1224. There, the court held that “[i]f the trial court fails

during the plea colloquy to advise a defendant that the sentence will include a mandatory

term of postrelease control, the court fails to comply with Crim.R. 11, and the reviewing

court must vacate the plea and remand the cause.” Id. at paragraph two of the syllabus.

       {¶8} There is a distinction in appellate review based on whether a court

substantially complies with informing the defendant of a nonconstitutional right or
completely fails to inform a defendant of such. “If the trial court partially complied, the

plea may be vacated only if the defendant demonstrates a prejudicial effect, i.e., that the

defendant would not have otherwise entered the plea.           However, if the trial court

completely failed to comply, the plea must be vacated.” (Citations omitted.) State v.

Goodson, 8th Dist. Cuyahoga Nos. 101830 and 101831, 2016-Ohio-1535, ¶ 10. Where a

court completely fails to mention postrelease control, a prejudice analysis is inapplicable.

Sarkozy at ¶ 22.

       {¶9} Here, the trial court failed to mention any term of postrelease control at the

plea hearing or possible penalties associated with violations thereof when postrelease

control was mandatory for the second-degree felonies in CR-15-601090-A and

CR-15-600628-A.2 See R.C. 2967.28. Therefore, Sarkozy dictates that this court must

vacate appellant’s guilty pleas and remand the cause to the trial court.

       {¶10} The state asks this court to consider an exception to the rule enunciated in

Sarkozy.   The state asserts that appellant will never be on postrelease control, so no

prejudice can result or will result in this case from a lack of information regarding

postrelease control.    The state argues that because appellant may be subject to

deportation, he will be deported upon release from prison and not placed on postrelease



       2 The holding in Sarkozy has been extended by other courts to include
discretionary periods of postrelease control, which include the majority of the
remaining charges across the three cases. State v. Jones, 1st Dist. Hamilton Nos.
C-130825 and C-130826, 2014-Ohio-4497, ¶ 14; State v. Souris, 9th Dist. Summit
No. 24550, 2009-Ohio-3562, ¶ 7; State v. Floyd, 12th Dist. Warren No.
CA2016-09-077, 2017-Ohio-687, ¶ 17.
control.   This amounts to a prejudice argument.

       {¶11}     The state further argues that matters regarding postrelease control were

addressed during the plea colloquy and that appellant had no questions. The discussion

that did take place during the plea colloquy was in regard to appellant’s violation of

conditions of what he termed “probation” at the plea hearing.               The state argues that

appellant knew he would be placed on postrelease control as a result of these

convictions.3 There is nothing in the record to support that statement. Additionally,

the state’s arguments miss the mark.

       {¶12}     The requirements set forth in Crim.R. 11 are a mandatory duty the trial

court must fulfill before accepting a guilty plea. It is incumbent on the trial court to set

forth the maximum penalties a defendant faces as a part of ensuring that a guilty plea is

knowingly, intelligently, and voluntarily made. The court’s responsibility is not fulfilled

where the court fails to mention the imposition of postrelease control. Sarkozy, 117

Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶ 22. Where a court completely

fails to mention any period of applicable mandatory postrelease control during the plea

colloquy, a prejudice analysis is not implicated. Id.          A complete failure results in an

inability for the court to fulfill its obligations under Crim.R. 11. The Sarkozy court


       3 At oral arguments, the state asserted that appellant was on postrelease control for the very
same offense for which postrelease control was mandatory in the present case. The state argues,
therefore, that appellant knew postrelease control would be a part of his sentence.
However, this cuts against the state’s argument that appellant will be immediately
deported and not placed on postrelease control when he was not immediately
deported following the previous conviction, but was on postrelease control when he
committed the offenses that form the basis for this appeal.
rejected a substantial compliance argument made by the state and the need for defendants

to show prejudice when a court completely fails to advise them of postrelease control.

Id. This court cannot impute knowledge to a defendant, as the state asks, when it is the

trial court’s obligation to specifically convey that information.      Therefore, appellant’s

sole assignment of error is sustained.

                                      III. Conclusion

        {¶13}   The trial court failed to inform appellant that he would be subject to

postrelease control during the plea colloquy.        This constitutes a complete failure to

advise appellant of the maximum penalties and requires this court to vacate appellant’s

guilty pleas.   The fact that appellant may be subject to deportation does not abrogate the

application of the holding of the Supreme Court of Ohio in Sarkozy.        The trial court did

not fulfill its obligation to inform appellant of postrelease control prior to accepting his

plea.

        {¶14} This cause is vacated and remanded to the trial court for further proceedings

consistent with this opinion.

        It is ordered that appellant recover of said 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.
FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
