[Cite as State v. Mitchell, 2016-Ohio-4956.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103364



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE


                                               vs.

                                 MARLENE MITCHELL
                                                     DEFENDANT-APPELLANT




                              JUDGMENT:
                  AFFIRMED IN PART, AND REVERSED AND
                            MODIFIED IN PART


                                     Criminal Appeal from the
                                Cuyahoga County Common Pleas Court
                                    Case No. CR-15-594087-A

        BEFORE: Boyle, J., E.T. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

      {¶1} Defendant-appellant, Marlene Mitchell, appeals her conviction, raising the

following two assignments of error:

      I. The court erred in accepting appellant’s guilty plea and appellant’s guilty
      plea is void and invalid in light of the fact that the plea was not entered
      knowingly, voluntarily and intelligently in violation of appellant’s right to
      due process of law under the Fourteenth Amendment to the United States
      Constitution and Article I, Section 10 of the Ohio Constitution.

      II. The trial court erred when it imposed an unlawful sentence of
      “mandatory” post release control supervision for an offense which is only
      subject to discretionary supervision.

      {¶2} Finding some merit to the appeal, we affirm Mitchell’s conviction but

reverse and modify her sentence in part as it relates to the trial court’s erroneous

imposition of mandatory postrelease control upon Mitchell.

      A.     Procedural History and Facts

      {¶3} In January 2015, Mitchell was indicted on the following seven counts:

felonious assault, aggravated menacing, two counts of kidnapping, disrupting public

services, criminal damaging or endangering, and assault.       Under a plea agreement,

Mitchell withdrew her not guilty plea and pleaded guilty to an amended indictment on

Count 1 of aggravated assault in violation of R.C. 2903.12(A)(1) (a fourth-degree felony)

and Count 6 for assault in violation of R.C. 2903.13(A) (a first-degree misdemeanor).

The remaining counts of the indictment were nolled.

      {¶4} Following a presentence investigation and after considering the sentencing

guidelines, the trial court ultimately sentenced Mitchell to one year in prison on the
aggravated assault count and three years of community controlled sanctions on the assault

count, to be served consecutively. The trial court also informed Mitchell that she would

be subject to a mandatory period of three years of postrelease control following her

release from prison and notified Mitchell of the ramifications if she violated the terms of

her postrelease control.

       B. Guilty Plea

       {¶5} In her first assignment of error, Mitchell argues that her guilty pleas were

not knowingly, voluntarily, and intelligently made in compliance with Crim.R. 11(C).

We disagree.

       {¶6} Crim.R. 11 governs pleas and the advisements that must be given prior to

accepting a plea in a criminal case, with the procedures varying based on whether the

offense involved is a misdemeanor that is a petty offense, a misdemeanor that is a serious

offense, or a felony.      State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43,

2015-Ohio-2059, ¶ 10, citing State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877

N.E.2d 677, ¶ 11, and Crim.R. 2 (defining classifications of offenses). As explained by

the Ohio Supreme Court,

               For a petty offense, defined in Crim.R. 2(D) as “a misdemeanor
       other than [a] serious offense,” the court is instructed that it “may refuse to
       accept a plea of guilty or no contest, and shall not accept such pleas without
       first informing the defendant of the effect of the plea of guilty, no contest,
       and not guilty.” Crim.R. 11(E). If the misdemeanor charge is a serious
       offense, meaning that the prescribed penalty includes confinement for more
       than six months, Crim.R. 2(C), the court shall not accept a guilty or no
       contest plea “without first addressing the defendant personally and
       informing the defendant of the effect of the pleas of guilty, no contest, and
       not guilty and determining that the defendant is making the plea
       voluntarily.” Crim.R. 11(D).

                 The procedure set forth in Crim.R. 11(C)(2) for felony cases is more

       elaborate than that for misdemeanors. Before accepting a guilty plea in a

       felony case, a “trial court must inform the defendant that he is waiving his

       privilege against compulsory self-incrimination, his right to jury trial, his

       right to confront his accusers, and his right of compulsory process of

       witnesses.” State v. Ballard (1981), 66 Ohio St.2d 473, 20 O.O.3d 397,

       423 N.E.2d 115, paragraph one of the syllabus.           In addition to these

       constitutional rights, the trial court is required to determine that the

       defendant understands the nature of the charge, the maximum penalty

       involved, and the effect of the plea. Crim.R. 11(C)(2)(a) and (b).

Jones at ¶ 11-12.

       {¶7} Mitchell first challenges her guilty plea with respect to the first-degree

misdemeanor assault count, which is a petty offense under Crim.R. 2(D). See R.C.

2929.24(A)(1) (For assault, a first-degree misdemeanor, the maximum potential jail term

“shall be * * * not more than one hundred eighty days”). Mitchell argues that her plea is

invalid because the trial court failed to specifically inform her that she “was facing the

possibility of 180 days in jail.”

The record reflects that the trial court stated the following regarding the penalty for the

assault count:
       That is a misdemeanor of the 1st degree. Everything that I said with regard
       to probation in the felony case is exactly the penalty that I can impose for
       misdemeanor of the 1st degree except that the fine is only up to $1,000, not
       the amount that I mentioned for the felony. Other than that, it’s exactly the
       same.
       {¶8} While Mitchell acknowledges that the trial court stated earlier that it could

place her in the county jail up to 180 days for a probation violation of the felony count,

she nonetheless argues that the trial court’s explanation was confusing and insufficient to

adequately inform her of the maximum penalty with respect to the assault count as

required under Crim.R. 11(C)(2). Mitchell, however, confuses the trial court’s duty with

respect to a petty offense, which is not subject to Crim.R. 11(C)(2), but governed under

Crim.R. 11(E). Thus, even if we agreed that the trial court’s explanation was insufficient

as to the maximum penalty that she faced, it is not grounds for reversal. Indeed, despite

having done so, the trial court was not required to inform defendant of the maximum

penalty for the misdemeanor assault count. See State v. Hilderbrand, 4th Dist. Adams

No. 08CA864, 2008-Ohio-6526, ¶ 21 (“for misdemeanor petty offenses, there is no

requirement that a trial court advise a defendant of the maximum penalty involved”).

Instead, for a “petty offense” misdemeanor, such as Mitchell’s assault offense, the trial

court was required only to inform Mitchell of the effect of her guilty plea, i.e., that her

guilty plea was a complete admission of guilt. Jones at ¶ 14, 25; Crim.R. 11(E).

      {¶9} Next, Mitchell argues that the trial court failed to adequately state the

consequences of her guilty plea with respect to the felony count, thereby rendering her

plea not knowingly, intelligently, or voluntarily entered. Mitchell again challenges her
plea under Crim.R. 11(C)(2)(a), which is applicable to her felony count but involves

nonconstitutional requirements.

       {¶10} With respect to the nonconstitutional requirements of Crim.R. 11, set forth

in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether there was substantial

compliance with the rule. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 14-17.       “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).

“[I]f it appears from the record that the defendant appreciated the effect of his plea and

his waiver of rights in spite of the trial court’s error, there is still substantial compliance.”

 State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995).

       {¶11} Further, a defendant must show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of

the colloquy are at issue. Veney at ¶ 17. The test for prejudice is whether the plea

would have otherwise been made. Id.; see also State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462.

       {¶12} Mitchell contends that the court misled her “when the court stated it had to

choose between prison and probation” in discussing the fourth-degree felony count. The

record reflects that the trial court stated the following regarding the possible penalty:

             THE COURT: For sentencing on a felony of the 4th degree, I have
       two choices. I can put you on probation or I can put you in prison. I can’t
       mix the two up. It is either one or the other.
              If I put you on probation, I can do so up to five years, require you to
       participate in programs that I think would be beneficial to you and the
       community. And I can put you in the county jail, not prison, county jail, up
       to 180 days. I can also fine you up to $2,500.

              Do you understand that?

              THE DEFENDANT:              Yes, sir.

             THE COURT: My only other choice would be put you in prison, and
       that would be for a minimum of 6 months, a maximum of 18 months, and
       any month in between. I can also fine you up to $2,500.

       {¶13} Mitchell argues that, despite the trial court stating that it would not “mix the

two up,” the trial court ultimately imposed both a prison term and probation. But

Mitchell misconstrues the trial court’s statements with respect to the penalty for the

fourth-degree felony. Here, the trial court properly advised Mitchell that she would face

either a prison term or probation on that single count. The sentence imposed by the trial

court is consistent with that representation.         We fail to see how the trial court’s

explanation rendered Mitchell’s plea invalid under Crim.R. 11. Moreover, we note that

Mitchell does not even allege, let alone demonstrate, that she was prejudiced by these

statements.

       {¶14} Finding no merit to Mitchell’s challenge of her guilty pleas, we overrule the

first assignment of error.

       C. Postrelease Control

       {¶15} In her second assignment of error, Mitchell argues that the trial court

improperly imposed a mandatory three-year term of postrelease control as part of her

sentence. We agree.
       {¶16} If a defendant is subject to postrelease control, the trial court must notify

him or her of postrelease control at the sentencing hearing, and must include the

postrelease control terms in the sentence.         State v. Fischer,128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, ¶ 26.           When a judge fails to properly impose

postrelease control as part of a defendant’s sentence, that part of the sentence is void and

must be set aside. Id. However, the Ohio Supreme Court has recognized that in lieu of

resentencing, R.C. 2953.08(G)(2) also provides that an appellate court may “increase,

reduce or otherwise modify a sentence” to correct a defect in sentence. Id. at ¶ 29.

       {¶17} Having pled guilty to a felony of the fourth degree, the applicable period of

postrelease control is set forth in R.C. 2967.28(C), which provides in relevant part:

       Any sentence to a prison term for a felony of the third, fourth, or fifth
       degree that is not subject to division (B)(1) or (3) of this section shall
       include a requirement that the offender be subject to a period of post-release
       control of up to three years after the offender’s release from imprisonment,
       if the parole board, in accordance with division (D) of this section,
       determines that a period of post-release control is necessary for that
       offender.




       {¶18} Despite Mitchell being subject to a discretionary period of up to three years

of postrelease control, the record reflects that the trial court directly imposed a mandatory

term of postrelease control both at the sentencing hearing and in the journal entry. As a

result of this error, we sustain Mitchell’s second assignment of error. We do not agree,

however, that a remand for a limited sentencing hearing on postrelease control is

necessary in this case.
       {¶19} In State v. Hunter, 8th Dist. Cuyahoga No. 92032, 2009-Ohio-4194, this

court addressed a similar situation in which the trial court sentenced the defendant to a

mandatory three-year period of postrelease control for charges that were felonies of the

fifth degree. We held that the trial court usurped the authority of the Adult Parole

Authority that should have been the entity to determine whether appellant would be

subject to postrelease control pursuant to R.C. 2967.28.         Id. at ¶ 29.   Instead of

remanding the case to the trial court to correct, however, we exercised our authority under

R.C. 2953.08(G)(2) and chose to modify it by vacating the trial court’s order imposing

three years of postrelease control. Id.

       {¶20} Consistent with Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, other courts have also chosen to modify an appellant’s sentence that contains an

inaccurate pronouncement related to postrelease control, such as the defect contained in

the case, in lieu of remanding for a limited sentencing hearing. See, e.g., State v.

Anderson, 7th Dist. Mahoning No. 11 MA 125, 2012-Ohio-2759, ¶ 41; State v. Flanagan,

5th Dist. Licking No. 11-CA-83, 2012-Ohio-1516, ¶ 24; State v. Bedford, 184 Ohio

App.3d 588, 2009-Ohio-3972, 921 N.E.2d 1085, ¶ 5-8 (9th Dist.).

       {¶21} Here, consistent with Hunter and Fischer, we choose to do the same and

modify the sentence in accordance with R.C. 2953.08(G)(2), vacating the trial court’s

order imposing a mandatory three years of postrelease control and leaving that

determination to the discretion of the Adult Parole Authority.

       {¶22} Accordingly, Mitchell’s conviction is affirmed, and the sentence is affirmed
in part and modified in part to indicate that Mitchell’s sentence includes a discretionary

term of postrelease control of up to three years.

       It is ordered that the appellee and appellant share the 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 Cuyahoga

County Common Pleas Court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.      Case remanded

to the trial court for execution of sentence.



       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
