[Cite as State v. Nix, 2019-Ohio-3886.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                           No. 106894
                 v.                             :

BOBBY NIX, II,                                 :

                 Defendant-Appellant.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: September 26, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-623461-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jennifer M. Meyer, Assistant Prosecuting
                 Attorney, for appellee.

                 The Law Office of R. Tadd Pinkston L.L.C., and R. Tadd
                 Pinkston, for appellant.

EILEEN A. GALLAGHER, J.:

                   In this reopened appeal, defendant-appellant Bobby Nix II,

challenges the knowing, intelligent and voluntary nature of his guilty plea because

he claims the trial court failed to inform him that any sentence imposed for a

violation of postrelease control was required to be served consecutive to any other
sentence. We sustain his assigned error, reverse his conviction, vacate his guilty

plea, and remand.

               Nix pled guilty to a single fifth-degree felony count of drug possession

and was sentenced to 11 months in prison. In exchange, the state dismissed one

fourth-degree felony count of drug trafficking and one fifth-degree felony count of

possession of criminal tools. Nix was on postrelease control in a separate case at the

time, and the trial court terminated Nix’s postrelease control and imposed the

remainder of the term and ordered it to be served consecutive to the 11-month

sentence pursuant to R.C. 2929.141. However, the court did not specify the length

of this sentence. Nix appealed his conviction in the first case to this court, assigning

one error for review. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702

(“Nix I”). This court overruled the assigned error and affirmed. Id. at ¶ 9-10.

               On February 14, 2019, Nix filed an application to reopen his appeal

pursuant to App.R. 26(B) in which he claimed that appellate counsel was ineffective

for not arguing that Nix did not enter his plea knowingly, intelligently and

voluntarily when the trial court failed to explain the maximum penalty. He also

argued that appellate counsel was ineffective for not arguing that the trial court

failed to properly terminate postrelease control before imposing a prison sentence.

On May 1, 2019, we granted the application in part and reopened the appeal in order

to allow Nix argue the following assignment of error:

      The appellant had not knowingly, voluntarily, and intelligently [pled]
      guilty to the possession charge because the trial court had not informed
      him of all the maximum penalties involved including R.C. 2929.141
       time that must be consecutive to the prison time for the new offense
       thus violating VI [sic] amendment to the U.S. Constitution.

State v. Nix, 8th Dist. Cuyahoga No. 106894, 2019-Ohio-1640, ¶ 4, 14, 18 (“Nix II”).

               As we previously stated in the decision reopening the appeal,

       [b]efore accepting a felony guilty plea, a trial court must engage the
       defendant personally and explain the rights set forth in CrimR. 11(C) to
       ensure that the defendant is entering a guilty plea knowingly,
       intelligently, and voluntarily. State v. Clark, 119 Ohio St.3d 239, 2008-
       Ohio-3748, 893 N.E.2d 462, ¶ 25-27. Crim.R. 11(C)(2)(a) requires a
       sentencing court to explain, among other things, “the nature of the
       charges and of the maximum penalty involved * * *.” The failure to do
       so may render a guilty plea less than knowing, voluntary, and
       intelligent, and thus subject to revocation. State v. Veney, 120 Ohio
       St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621.

Id. at ¶ 8.

               Nix claims that his plea was not entered knowingly, intelligently and

voluntarily because the trial court failed to properly explain the maximum penalty

he faced.

               There are two types of rights a trial court must explain that are

contained within Crim.R. 11(C) — constitutional and nonconstitutional. Clark at

¶ 30. Nix’s contention in this appeal centers around the nonconstitutional right of

an explanation of the maximum penalty a defendant faces by pleading guilty.

Crim.R. 11(C)(2)(a). While a court must strictly comply with the explanation of

constitutional rights, nonconstitutional rights are subject to a review for substantial

compliance. Therefore, this court must examine the plea colloquy to determine

whether the trial court substantially complied with the responsibility to explain the

maximum penalty Nix faced. 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). The lead opinion in State v. Bishop, 156 Ohio St.3d

156, 2018-Ohio-5132, 124 N.E.3d 766, provides further guidance:

       A trial court need only substantially comply with the nonconstitutional
       advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,
       2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. But “[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, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
       N.E.2d 462, at ¶ 32. “If the trial judge partially complied, e.g., by
       mentioning mandatory postrelease control without explaining it, the
       plea may be vacated only if the defendant demonstrates a prejudicial
       effect.” Id. But if the trial court completely failed to comply with the
       rule, the plea must be vacated. Id. Complete failure “‘to comply with
       the rule does not implicate an analysis of prejudice.’” Id., quoting State
       v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

Id. at ¶ 19.

               When discussing the potential penalties Nix faced as a result of his

potential guilty plea, the following exchange took place during the plea colloquy:

       THE COURT: Mr. Nix, you may face additional penalties in those other
       cases [for which you are on community control sanctions, probation, or
       parole,] including prison time which may run consecutive on any
       prison time you may receive in this case, do you understand?

       DEFENDANT NIX: Yes, Your Honor.

(Tr. 16.)

               The trial court mentioned the additional sanction that may be

imposed as a result of pleading guilty to a new felony while on postrelease control

and mentioned that the sanction may be imposed consecutive to any other sentence.
However, the court failed to inform Nix that this additional sanction, if imposed,

was required to be imposed consecutive to any other sentence. R.C. 2929.141(A)(1).

The trial court’s advisement about the nature of postrelease control during the plea

colloquy is also unhelpful to demonstrate a subjective understanding of this

consequence. When explaining postrelease control during the plea colloquy, the

trial court stated:

       If you fail to meet the terms and conditions of any post-release control
       supervision imposed upon you in your case, then the Adult Parole
       Authority pursuant to Revised Code Section 2967.28 can modify
       and/or extend your supervision, make it more restrictive, incarcerate
       you for up to one-half the original sentence imposed by the court,
       charge you with a new offense called escape, another felony where you
       would face additional prison time, and if you were to commit a new
       crime while you were post-release control, you can face the maximum
       penalties under the law for the new crime committed[.]

(Tr. 25-26.)

               Under R.C. 2929.141(A), a trial court has discretion to continue

postrelease control, impose some form of community control sanction or impose

additional prison time for a violation of postrelease control when a defendant is

convicted of a new felony while on postrelease control. Once the court decides to

impose a prison sentence, that sentence must be served consecutively to the

sentence imposed for a new felony conviction. R.C. 2929.141(A)(1). An appropriate

advisement of the maximum penalty includes the required consecutive nature of this

sentence because

       [w]hen consecutive sentences are mandatory, the consecutive
       sentences directly affects the length of the sentence, thus becoming a
       crucial component of what constitutes the “maximum” sentence, and
       the failure to advise a defendant that a sentence must be served
      consecutively does not amount to substantial compliance with Crim.R.
      11(C)(2).

State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 7, citing State

v. Ricks, 53 Ohio App.2d 244, 246-247, 372 N.E.2d 1369 (9th Dist.1977).

               In Norman, this court found that a trial court failed to comply with

an explanation of the maximum penalty under Crim.R. 11(C)(2) where it failed to

inform a defendant that any prison sentence imposed for a charge of failure to

comply, pursuant to R.C. 2921.331(D), was required to be served consecutive to any

other sentence. We held that “compliance with the ‘maximum’ penalty provision of

Crim.R. 11(C)(2) requires the court to inform the defendant, prior to taking a guilty

plea, that a charge carries a mandatory consecutive sentence.” Id. at ¶ 12. The trial

court failed to advise the defendant at all of the consecutive nature of this sentence.

Id. at ¶ 13. Similar to the present case, a trial court is not required to impose a prison

sentence for a charge of failure to comply, but once it does, that sentence must be

consecutive to any other sentence. R.C. 2921.331(D). The failure to inform Norman

of the required consecutive nature of this sentence resulted in the vacation of

Norman’s plea.

               More recently, this court examined what constitutes substantial

compliance when informing defendants of the maximum penalties where they face

a mandatory prison sentence. State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619 (8th

Dist.). There, we held that:

      where a defendant faces a mandatory prison sentence as a result of a
      guilty or no contest plea, the trial court must determine, prior to
      accepting a plea, that the defendant understands that he or she is
      subject to a mandatory prison sentence and that as a result of the
      mandatory prison sentence, he or she is not eligible for probation or
      community control sanctions.

Id. at ¶ 19. We found a lack of substantial compliance and went on to analyze

whether the trial court partially complied or failed to comply with this aspect of the

maximum penalty requirement of Crim.R. 11(C)(2). In Tutt, the trial court failed to

state that Tutt faced a mandatory prison sentence for two counts in the case. Id. at

¶ 31. We found that the trial court completely failed to comply and vacated the guilty

pleas affected by the failure. Id. at ¶ 31, 34.

               These cases do not deal with the mandatory, consecutive nature of a

sentence under R.C. 2929.141(A), but two cases from the Second District with

similar facts do. In State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-

5067, a plea agreement form that explained the maximum penalty a defendant faced

included the advisement that “‘I understand that if I am now * * * under post-release

control from prison, this plea may result in revocation proceedings and any new

sentence could be imposed consecutively.’” Id. at ¶ 18. Branham raised the issue in

the context of an invalid consecutive sentence. In State v. Landgraf, 2d Dist. Clark

No. 2014 CA 12, 2014-Ohio-5448, a similar form with the same language was used

to explain the potential penalty that could be imposed under R.C. 2929.141.

               In both cases, the Second District vacated the guilty pleas because the

plea agreement form and the trial court failed to inform the defendants of the

mandatory nature of consecutive sentences that could be imposed for a violation of
postrelease control. The Second District found that an advisement that a sentence

for a violation of postrelease control could result in consecutive sentences was

insufficient. Branham at ¶ 13-14; Landgraf at ¶ 24.1

                 These cases are similar in that the forms used in Branham and

Landgraf, and the advisement given to Nix used discretionary language to describe

the nature of the consecutive sentence that must be imposed after a trial court

decides to impose a prison sentence under R.C. 2929.141(A)(1).               Therefore,

Branham and Landgraf are persuasive to the outcome of this case.

                 Nix does not rely upon these cases, but instead cites to the recent

decision in Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766.

                 Bishop resolved an interdistrict split: whether an advisement about

the court’s ability to impose sentence under R.C. 2929.141(A)(1) was necessary when

a defendant on postrelease control pleads guilty or no contest to new felony charges.

A plurality of justices, joined by one justice concurring in judgment only, found that

an advisement is necessary. Three justices held that Crim.R. 11(C)(2)(a) “requires a

trial court to advise a criminal defendant on postrelease control for a prior felony,

during his plea hearing in a new felony case, of the trial court’s authority under R.C.

2929.141 to terminate the defendant’s existing postrelease control and to impose a

consecutive prison sentence for the postrelease-control violation.” Id. at ¶ 21. The

lead opinion also found that because the possibility of a consecutive prison sentence




      1   In Landgraf, two judges concurred in judgment only based on stare decisis.
under R.C. 2929.141(A)(1) was not mentioned, the defendant did not need to show

prejudice. Id. at ¶ 18, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990), citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977).

              The state argues that the trial court substantially complied with

Crim.R. 11 and cites to pre-Bishop cases holding that a trial court does not have to

advise a criminal defendant of the consequences of violating postrelease control

when pleading guilty to a new felony. State v. Turner, 8th Dist. Cuyahoga No.

101578, 2015-Ohio-1148, ¶ 7 (collecting cases). Bishop overruled these cases. Such

an advisement is required. After a review of the record and based on the totality of

the circumstances, we find that the trial court did not substantially comply with

Crim.R. 11(C)(2). Therefore, we must go on to determine whether the trial court

partially complied or completely failed to comply.

              In line with Branham, Landgraf, Tutt, and Norman, the failure of the

trial court to explicitly advise Nix of the mandatory nature of the consecutive

sentence that could be imposed under R.C. 2929.141(A)(1) is misleading enough to

constitute a failure to comply with the trial court’s obligation to explain the

maximum penalty. This is especially true given the low-level felony offenses with

which Nix was charged. The consequences that a potentially lengthy consecutive

sentence would have on the maximum penalty Nix faced is substantial and nothing

in the record from the change-of-plea hearing indicates Nix subjectively understood

that. The trial court failed to advise Nix of the mandatory nature of the consecutive
sentence that could be imposed under R.C. 2929.141(A)(1). As a result, we find that

Nix did not enter his plea knowingly, intelligently and voluntarily.

              Nix’s assignment of error is sustained; his conviction is reversed, his

guilty plea is vacated and the case is remanded for further proceedings consistent

with this opinion.

      It is ordered that appellant recover from appellee the costs herein taxed.

      It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas 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.




EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR
