[Cite as State v. Shough, 2013-Ohio-3329.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :      JUDGES:
                                             :
                                             :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :      Hon. Sheila G. Farmer, J.
                                             :      Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
BENNIE SHOUGH                                :      Case No. 13-CA-3
                                             :
                                             :
        Defendant - Appellant                :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Case No.
                                                    12 CR 00296



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 29, 2013



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH W. OSWALT                                   WILLIAM T. CRAMER
Licking County Prosecutor                           470 Olde Worthington Rd., Ste. 200
                                                    Westerville, OH 43082
By: JUSTIN T. RADIC
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, OH 43055
Licking County, Case No. 13-CA-3                                                      2



Baldwin, J.

      {¶1}    Defendant-appellant Bennie Shough appeals his sentence from the

Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}    On June 4, 2012, the Licking County Grand Jury indicted appellant on

one count of aggravated possession of drugs (methamphetamine) in violation of R.C.

2925.11(A)(C)(1)(a), a felony of the fifth degree, one count of possession of cocaine in

violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth degree, and one count of

possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of

the fourth degree. At his arraignment on July 31, 2012, appellant entered a plea of not

guilty to the charges.

      {¶3}    Subsequently, on December 13, 2012, appellant withdrew his former not

guilty plea and entered a plea of no contest to the charges contained in the indictment.

The trial court found appellant guilty of the charges. Appellee recommended that

appellant’s total sentence not exceed nine (9) months on all counts. Pursuant to a

Judgment Entry filed on December 14, 2012, the trial court sentenced appellant to an

aggregate prison sentence of eighteen (18) months. The trial court also ordered that

appellant’s sentence run consecutively with any sentence imposed in Case No. 12 CR

00469. The trial court, in its Judgment Entry, also sentenced appellant to a period of

three (3) years of post-release control and denied appellant’s post-sentence oral motion

to withdraw his plea. Appellant had made such motion on the basis that he did not

receive the recommended sentence.

      {¶4}    Appellant now raises the following assignments of error on appeal:
Licking County, Case No. 13-CA-3                                                         3


      {¶5}    THE TRIAL COURT RENDERED APPELLANT’S NO CONTEST PLEA

INVOLUNTARY        AND     VIOLATED       APPELLANT’S        STATE      AND     FEDERAL

CONSTITUTIONAL RIGHTS BY IMPOSING A SENTENCE THAT EXCEEDED THE

AGREED-UPON SENTENCING RECOMMENDATION.

      {¶6}    THE TRIAL COURT VIOLATED APPELLANT’S STATE AND FEDERAL

CONSTITUTIONAL RIGHTS, CRIM.R. 11, AND R.C. 2943.032, WHEN IT FAILED TO

EXPLAIN THE MAXIMUM PENALTY DURING THE PLEA COLLOQUY BY OMITTING

THE PENALTY FOR VIOLATING POST-RELEASE CONTROL.

                                                I

      {¶7}    Appellant, in his first assignment of error, argues that his no contest plea

was not voluntary because the trial court imposed a sentence that exceeded the agreed

upon sentencing recommendation. We disagree.

      {¶8}    Crim.R. 11(C)(2) reads as follows:

      {¶9}    “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:

      {¶10}   “(a) 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 defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

      {¶11}   “(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.
Licking County, Case No. 13-CA-3                                                         4


      {¶12}   “(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's guilt beyond a

reasonable doubt at a trial at which the defendant cannot be compelled to testify against

himself or herself.”

      {¶13}   In accepting a plea, a trial court must substantially comply with Crim.R. 11.

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Substantial compliance

with Crim.R. 11(C) is determined upon a review of the totality of the circumstances.

State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). Furthermore, it is well

established that a trial court is not bound to accept a sentence recommendation

proposed by the prosecution. See, e.g., Akron v. Ragsdale, 61 Ohio App.2d 107, 109,

399 N.E.2d 119 (9th Dist. 1978).

      {¶14}   A trial court does not err by imposing a sentence greater than “that

forming the inducement for the defendant to plead guilty when the trial court forewarns

the defendant of the applicable penalties, including the possibility of imposing a greater

sentence than what is recommended by the prosecutor.” State v. Buchanan, 154 Ohio

App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, paragraph 13, citing State v. Pettiford,

12th Dist. Fayette No. CA2001–08–014, at 3, 2002 WL 652371 (Apr. 22, 2002). Crim.R.

11 “does not contemplate that punishment will be a subject of plea bargaining, this

being a matter either determined expressly by statute or lying with the sound discretion

of the trial court.” State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d 539 (10th Dist.

1982).
Licking County, Case No. 13-CA-3                                                         5


      {¶15}   In the case sub judice, the following colloquy took place on the record:

      {¶16}   Q.      Do you agree with those facts that have been set forth by the state,

Mr. Shough?

      {¶17}   A.      Yes, sir.

      {¶18}   Q.      Have you discussed the facts and circumstances of your case,

along with all of your possible defenses or affirmative defenses, fully and completely

with your attorney?

      {¶19}   A.      Yes, sir.

      {¶20}   Q.      Are you satisfied with the advice your attorney has given you today

and throughout the course of these proceedings?

      {¶21}   A.      Yes, sir.

      {¶22}   Q.      Do you understand, Mr. Shough, nobody can make you change

your plea here today?

      {¶23}   A.      Yes, sir.

      {¶24}   Q.      Are you changing your plea freely and voluntarily, knowing what

your rights are?

      {¶25}   A.      Yes, sir.

      {¶26}   Q.      Have there been any threats or promises or anything offered to you

or given to you today to make you do this?

      {¶27}   A.      No, sir.

      {¶28}   Q.      Do you understand, Mr. Shough, that should the court permit you to

change your plea here today, should the Court then enter a guilty finding, generally all

that would remain to be done is to proceed with sentencing, and that sentence could
Licking County, Case No. 13-CA-3                                                            6


consist of a term of two years at a state penitentiary, a fine of $5,250, a suspension of

your driver’s license, and three years of post-release control?

      {¶29}   A.     Yes, sir.

      {¶30}   Q.     Do you understand that’s the maximum possible entire sentence?

Do you understand that?

      {¶31}   A.     Yes, sir.

      {¶32}   Transcript at 11-14.

      {¶33}   Upon review of the record and the totality of the circumstances

surrounding the plea in this case, we find that the trial court sufficiently explained the

potential incarceration period, and we hold that the trial court did not err in finding

appellant entered a voluntary, knowing, and intelligent plea. See State. v Deresse, 5th

Dist. Licking No. 09 CA 11, 2009-Ohio-6725.

      {¶34}   Appellant’s first assignment of error is, therefore, overruled.

                                                 II

      {¶35}   Appellant, in his second assignment of error, argues that the trial court

erred by failing to inform him, at the plea hearing, of the penalty for violating post-

release control. We disagree.

      {¶36}   Post-release control constitutes a portion of the maximum penalty. State v.

Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011–Ohio–1202. In State v. Sarkozy,

117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the Ohio Supreme Court held in

paragraph 25 as follows:

              “ * * * if a trial court fails during a plea colloquy to advise a defendant that

      the sentence will include a mandatory term of postrelease control, the defendant
Licking County, Case No. 13-CA-3                                                          7


       may dispute the knowing, intelligent, and voluntary nature of the plea either by

       filing a motion to withdraw the plea or upon direct appeal. Further, we hold that if

       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.”

      {¶37}   Crim.R. 11 requires guilty pleas to be made knowingly, intelligently and

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only “substantially comply’ with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Dunham, 5th Dist. Richland No.2011–CA–121,

2012–Ohio–2957, citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115

(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v.

Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, paragraph 12, the Ohio

Supreme Court noted the following test for determining substantial compliance with

Crim.R. 11:

      {¶38}   “Though failure to adequately inform a defendant of his constitutional

rights would invalidate a guilty plea under a presumption that it was entered involuntarily

and unknowingly, failure to comply with non constitutional rights will not invalidate a plea

unless the defendant thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d

106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have

otherwise been made.’ Id. Under the substantial-compliance standard, we review the

totality of circumstances surrounding [the defendant's] plea and determine whether he

subjectively understood [the effect of his plea]”.
Licking County, Case No. 13-CA-3                                                         8


      {¶39}   In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished between constitutional and non-

constitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462. The trial court must strictly comply with those provisions of Crim.R. 11(C) that

relate to the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244. In

Clark, supra, decided after Sarkozy, the Ohio Supreme Court concluded that:

      {¶40}   “[I]f the trial judge [ in conducting a plea colloquy] imperfectly explained

non-constitutional rights such as the right to be informed of the maximum possible

penalty and the effect of the plea, a substantial-compliance rule applies….Under this

standard, a slight deviation from the text of the governing rule is permissible, and so

long as the totality of the circumstances indicates that the ‘defendant subjectively

understands the implications of his plea and the rights he is waiving’, the plea may be

upheld.” Id. at ¶ 31.

      {¶41}   Thus, in Clark, the Ohio Supreme Court concluded that the right to be

informed of the maximum possible penalty and the effect of the plea are subject to the

substantial compliance test. 119 Ohio St.3d at 244, ¶ 31. (Citations omitted).

      {¶42}   The present case involves the notification of post-release control during a

plea colloquy. As such, we review the trial court's plea colloquy under the substantial-

compliance standard because the notification of post-release control impacts the right to

be informed of the maximum penalty. Under the substantial-compliance standard, we

analyze the totality of circumstances surrounding appellant’s plea and determine

whether he subjectively understood the effect of his plea.
Licking County, Case No. 13-CA-3                                                          9


      {¶43}     In the case sub judice, the trial court, at the plea hearing, advised

appellant that if he violated the terms of post-release control, “you’re subject to being

returned to the penitentiary for more incarceration even though you’ve served out your

entire sentence.” Transcript at 13-14. The plea form signed by appellant on December

13, 2012 states, in relevant part, as follows: “If I violate conditions of supervision while

under post release control, the Parole Board could return me to prison for up to nine

months for each violation, for repeated violations up to ½ of my originally stated prison

term. If the violation is a new felony, I could receive a prison term of the greater of one

year or the time remaining on post release control, which would be consecutive to any

other prison term imposed for the new offense.”

      {¶44}     As conceded by appellant, this Court, under similar circumstances, has

found substantial compliance with Crim.R. 11(C). See State v. Alexander, 5th Dist.

Stark No. 2012CA00115, 2012-Ohio-4843. See also State v. Harris, 5th Dist. Licking

No. 12 CA 82, 2013-Ohio-2056.

      {¶45}     Based on the foregoing, we find that, under the totality of circumstances,

the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) at the

plea hearing.

      {¶46}     Appellant’s second assignment of error is, therefore, overruled.
Licking County, Case No. 13-CA-3                                                 10


      {¶47}    Accordingly, the judgment of the Licking County Court of Common Pleas

is affirmed.


By: Baldwin, J.

Gwin, P. J. and

Farmer, J. concur.




                                       HON. CRAIG R. BALDWIN



                                       HON. W. SCOTT GWIN



                                       HON. SHEILA G. FARMER




CRB/dr
[Cite as State v. Shough, 2013-Ohio-3329.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :
                                                :
        Plaintiff - Appellee                    :
                                                :
-vs-                                            :      JUDGMENT ENTRY
                                                :
BENNIE SHOUGH                                   :
                                                :
        Defendant - Appellant                   :      CASE NO. 13-CA-3


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Cost

assessed to appellant.




                                             HON. CRAIG R. BALDWIN



                                             HON. W. SCOTT GWIN



                                             HON. SHEILA G. FARMER
