[Cite as State v. Floyd, 2017-Ohio-687.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NO. CA2016-09-077
        Plaintiff-Appellee,                      :
                                                                OPINION
                                                 :               2/27/2017
    - vs -
                                                 :

ROBERT J. FLOYD,                                 :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR32021



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Robert J. Floyd, appeals from his conviction and sentence

he received in the Warren County Court of Common Pleas after he pled guilty to possession

of heroin. For the reasons outlined below, we reverse and remand for further proceedings.

        {¶ 2} On June 6, 2016, the Warren County Grand Jury returned an indictment

charging Floyd with one count of possession of heroin and one count of aggravated

possession of fentanyl, both fifth-degree felonies in violation of R.C. 2925.11(A). The
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charges arose after police discovered Floyd to be in possession of heroin and fentanyl while

in Warren County on April 29, 2016.

       {¶ 3} On June 24, 2016, Floyd was arraigned, released on bond upon his own

recognizance, and placed under the supervision of Warren County Pretrial Services. As part

of this supervision, Floyd was ordered to undergo random drug testing. However, after

testing positive for drugs, the trial court revoked Floyd's bond and ordered him be held in the

Warren County Jail, without bail, pending further order of the trial court.

       {¶ 4} On July 11, 2016, Floyd entered into a plea agreement and pled guilty to

possession of heroin in exchange for the aggravated possession of fentanyl charge being

dismissed. However, prior to accepting Floyd's guilty plea, it is undisputed that the trial court

did not notify or even mention to Floyd during the plea colloquy that he would be subject to

an optional period of up to three years of postrelease control if he was sentenced to prison.

Rather, that information was contained in the change of plea form.

       {¶ 5} On August 18, 2016, the trial court held a sentencing hearing. As part of this

hearing, Floyd notified the trial court that he had refused to undergo an assessment for

inpatient drug treatment at a community-based-correctional facility, instead advocating for his

placement on community control so that he could maintain his current employment and

prepare for the birth of his daughter. The trial court refused. Thereafter, in an effort to

fashion a sentence that would adequately address Floyd's substance abuse issues, the trial

court sentenced Floyd to three years of community control subject to a number of rules and

conditions. As the trial court stated when explaining these rules and conditions:

              Require him to serve six months in the Warren County jail as a
              condition of community control and then I'm going to terminate
              community control at the end of his six months which is how long
              the [drug] treatment – probably a little longer than the [drug]
              treatment would have been.

       {¶ 6} The trial court also suspended Floyd's driver's license for a period of six months
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and ordered him to pay a $125 lab fee. The trial court then denied Floyd's request to credit

him with the 61 days of jail time he served after his bond was revoked. There was again no

mention of postrelease control.

       {¶ 7} On August 22, 2016, the trial court issued its judgment entry of sentence that

provided, in pertinent part:

           COMMUNITY CONTROL SENTENCE. The Court finds the Defendant is
       amenable to an available community control sanction and that prison is not consistent
       with the purposes and principles of R.C. §2929.11.

       It is hereby ORDERED that Defendant be sentenced to three (3) years of community
       control on basic probation. The Defendant shall be monitored by the Warren County
       Adult Probation Department, is subject to the rules and conditions filed herein and
       shall receive the following sanction(s):
                  180 days in the Warren County Jail, without work release.
                  Fine in the amount of $____ ($____ of which is mandatory;
                  License suspension of 6 MONTHS;
                  Community service of ____;
                  Electronically monitored house arrest for a term of ___ days;
                  Restitution in the amount of ($___);
                  Reimbursement in the amount of ($___) to ___;
                  Completion of inpatient treatment program as arranged by probation
                  Other: REIMBURSEMENT FOR LAB FEE TO FRANKLIN PD $125.00;
               AFTER SERVING 6 MONTHS IN JAIL, DEFENDANT SHALL BE
               TERMINATED UNSUCCESSFUL FROM COMMUNITY CONTROL.


The trial court's judgment entry of sentence further provided that Floyd would be subject to

an optional period of up to three years of postrelease control. Specifically, the trial court's

judgment entry of sentence stated Floyd was "also subject to an optional period of post-

release control with a maximum term of up to 3 years (felony cases only)." (Emphasis sic.)

       {¶ 8} Floyd now appeals from his conviction and sentence, raising four assignments

of error for review.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT FAILED TO GIVE POST RELEASE CONTROL

WARNINGS BEFORE ACCEPTING A PLEA.
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       {¶ 11} In his first assignment of error, Floyd argues his guilty plea was not entered

knowingly, intelligently, and voluntarily since the trial court failed to personally notify him

during its plea colloquy that if he was sentenced to prison he would be subject to an optional

period of up to three years of postrelease control. We agree.

       {¶ 12} When a defendant enters a guilty plea in a criminal case, the plea must be

knowingly, int0elligently, and voluntarily made. State v. Mosley, 12th Dist. Warren No.

CA2014-12-142, 2015-Ohio-3108, ¶ 6. "Failure on any of those points 'renders enforcement

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

Constitution.'" State v. McQueeney, 148 Ohio App.3d 606, 2002-Ohio-3731, ¶ 18 (12th

Dist.), quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996). To ensure that a defendant's

guilty plea is knowingly, intelligently and voluntarily made, the trial court must engage the

defendant in a plea colloquy pursuant to Crim.R. 11(C). State v. Henson, 12th Dist. Butler

No. CA2013-12-221, 2014-Ohio-3994, ¶ 10.

       {¶ 13} As relevant here, pursuant to Crim.R. 11(C)(2), the trial court may not accept a

defendant's guilty plea without first addressing the defendant personally and:

              (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.

              (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.

              (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.


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       {¶ 14} A guilty plea is invalid if the trial court does not strictly comply with Crim.R.

11(C)(2)(c), which requires the trial court to verify the defendant understands the

constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119,

2015-Ohio-1485, ¶ 9. On the other hand, the trial court need only substantially comply with

the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Id. Under the

substantial compliance standard, the appellate court must review the totality of the

circumstances surrounding the defendant's plea and determine whether the defendant

subjectively understood the effects of his plea. State v. Givens, 12th Dist. Butler No.

CA2014-02-047, 2015-Ohio-361, ¶ 12.

       {¶ 15} In this case, Floyd does not dispute that the trial court strictly complied with

Crim.R. 11(C)(2)(c), which requires the trial court to verify the defendant understands the

constitutional rights that he is waiving. Floyd also does not dispute that he was notified of the

nonconstitutional requirements of Crim.R. 11(C)(2)(b). Rather, Floyd argues the trial court

completely failed to comply with Crim.R. 11(C)(2)(a) by not notifying him of the maximum

penalty he faced during the plea colloquy when it did not personally inform him that if he was

sentenced to prison that he would be subject to an optional period of up to three years of

postrelease control.

       {¶ 16} Pursuant to Crim.R. 11(C)(2)(a), because postrelease control is part of a

defendant's potential maximum sentence, postrelease control is a penalty that the trial court

must inform a defendant of before accepting the defendant's guilty plea. State v. Whitesell,

12th Dist. Butler No. CA2005-04-100, 2006-Ohio-1781, ¶ 11. As further explained by the

General Assembly in R.C. 2943.032:

              Prior to accepting a guilty plea or a plea of no contest to an
              indictment, information, or complaint that charges a felony, the
              court shall inform the defendant personally that, if the defendant
              pleads guilty or no contest to the felony so charged or any other
              felony, if the court imposes a prison term upon the defendant for
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              0the felony, and if the offender violates the conditions of a post-
              release control sanction imposed by the parole board upon the
              completion of the stated prison term, the parole board may
              impose upon the offender a residential sanction that includes a
              new prison term of up to nine months.

       {¶ 17} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, the Ohio Supreme

Court held 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." Id. at

paragraph two of the syllabus.       That rule has since been expanded to include both

mandatory and discretionary postrelease control terms. As the First District Court of Appeals

stated in State v. Jones, 1st Dist. Hamilton Nos. C-130825 and C-130826, 2014-Ohio-4497:

              But whether mandatory or discretionary, postrelease control is an
              additional penalty for the offense that the defendant must
              consider in determining whether to waive his constitutional rights
              and enter a guilty plea. And R.C. 2943.032 makes no distinction
              between the two when it provides that the trial court "shall inform
              the defendant personally" of potential postrelease-control
              sanctions prior to accepting a guilty plea or a no-contest plea
              involving "a felony."

0Id. at ¶ 14; State v. Souris, 9th Dist. Summit No. 24550, 2009-Ohio-3562, ¶ 7 ("[e]ven if

post-release control is discretionary, a defendant must be informed of the possibility of post-

release control before a court may accept his plea").

       {¶ 18} As noted above, it is undisputed that the trial court failed to notify or even

mention to Floyd during the plea colloquy that he would be subject to an optional period of up

to three years of postrelease control if he was sentenced to prison. Thus, in accordance with

Sarkozy and its progeny, as well as with the provisions found in R.C. 2943.032, we find the

trial court completely failed to comply with the nonconstitutional requirements found in

Crim.R. 11(C)(2)(a) requiring it to notify the defendant of the maximum penalty that could be

imposed prior to the defendant entering a guilty plea during its plea colloquy. "A complete


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failure to comply with the rule does not implicate an analysis of prejudice." Sarkozy at ¶ 22.

"However, because the error here resulted from the court's failure to comply with the Crim.R.

11(C)(2)(a) requirements for accepting a plea, rather than as a result of ignoring a statutory

mandate for imposing sentence, the plea was merely voidable and not void." State v.

Gannon, 4th Dist. Lawrence No. 15CA16, 2016-Ohio-1007, ¶ 17.

       {¶ 19} The state argues that Sarkozy is distinguishable from the case at bar since the

Ohio Supreme Court in that case said nothing about what information, if any, was contained

in the change of plea form. The state's argument is similar to that used by the Tenth District

Court of Appeals in State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231.

In that case, which dealt with a post-sentence motion to withdraw guilty plea when the trial

court failed to explicitly notify the appellant of postrelease control during the plea colloquy,

the Tenth District found Sarkozy distinguishable "in that the Sarkozy decision does not

indicate there were any references to post-release control at all during the plea colloquy, not

even a plea form that set forth the applicable post-release control information, as is present

in the instant case." Id. at ¶ 40. In this case, however, unlike in Williams, neither the trial

court nor any of the parties made any reference to the change of plea form during the plea

colloquy. As a result, we do not find the Tenth District's argument expressed in Williams

persuasive or applicable to the case at bar.

       {¶ 20} This case is similar to that of the First District's decision in Jones. In that case,

the appellant, Rico Jones, pled guilty to a variety of charges that subjected him to an optional

period of up to three years of postrelease control if he was sentenced to prison. Id., 2014-

Ohio-4497 at ¶ 2. However, at the plea colloquy, the trial court failed to explain or even

mention postrelease control to Jones. Id. at ¶ 3. Jones then appealed arguing that his guilty

plea was not entered knowingly, intelligently, and voluntarily since the trial court completely

failed to notify him or even mention postrelease control at the plea colloquy. Id. at ¶ 10.
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       {¶ 21} Relying on the Ohio Supreme Court's decision in Sarkozy, the First District

agreed and vacated Jones' guilty plea upon finding the trial court completely failed to comply

with the nonconstitutional requirements found in Crim.R. 11(C)(2)(a) requiring it to notify

Jones of the maximum potential penalty he faced; namely, the possibility that he could be

placed on postrelease control for a period of up to three years if he was sentenced to prison.

In so holding, the First District rejected the state's claim that Jones' plea was entered

knowingly, intelligently, and voluntarily since the change of plea form that Jones signed

included information about postrelease control. Specifically, as the First District stated:

              [O]ur analysis is not affected by the court's inclusion of
              information about postrelease control on the plea form signed by
              Jones. The court in Sarkozy reiterated that Crim.R. 11 required
              the court to inform the defendant of the maximum penalty,
              including postrelease control, during the "plea colloquy." The
              trial court did not meet that requirement at all in this case, as the
              court during the plea colloquy did not mention postrelease
              control.

(Emphasis sic and internal citation omitted.) Id. at ¶ 18.

       {¶ 22} We agree with the First District's analysis in Jones as that holding complies with

both R.C. 2943.032 and the Ohio Supreme Court's decision in Sarkozy. As a result, although

Floyd was not prejudiced by this omission since he was only sentenced to community control,

because the trial court completely failed to comply with the nonconstitutional requirements

found in Crim.R. 11(C)(2)(a) at the plea colloquy, this "does not implicate an analysis of

prejudice." Sarkozy at ¶ 22. In reaching this decision, we note that the state cites to several

decisions from this court where we indicated a trial court may look to written documentation

to support a finding of substantial compliance with the nonconstitutional requirements

contained in Crim.R. 11(C)(2)(a) and (b). However, none of those cases dealt with the exact

issue raised herein; i.e., the consequences for when a trial court completely fails to notify or

even mention postrelease control during its plea colloquy with a defendant entering a guilty


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plea to a felony.

       {¶ 23} For instance, the state cites to this court's decision in Whitesell. However, not

only was that decision released prior to the Ohio Supreme Court's decision in Sarkozy, unlike

in this case, the trial court in Whitesell "spoke at length about post-release control, and

appellant was clearly aware before he pled guilty that post-release control could be imposed

as part of his sentence." Id., 2006-Ohio-1781 at ¶ 23. Our decision in Whitesell is therefore

clearly distinguishable from the case at bar. The same is true regarding our more recent

decision in State v. Snead, 12th Dist. Clermont No. CA2014-01-014, 2014-Ohio-2895, which

affirmed the trial court's decision dismissing a petition for postconviction relief where the

appellant, Robert Snead, alleged he was not properly advised of postrelease control at his

sentencing hearing, not the plea colloquy like the case at bar. Id. at ¶ 21.

       {¶ 24} As this court has stated, "a court may not rely on defense counsel or a written

document to supplant its duty to delineate the repercussions of pleading guilty[.]" State v.

Brandenburg, 12th Dist. Butler No. CA2007-07-155, 2008-Ohio-3593, ¶ 41.                 That is

particularly true here when considering the requirements of R.C. 2943.032 and the Ohio

Supreme Court's decision in Sarkozy. Therefore, based on the facts and circumstances of

this case, because Floyd's guilty plea was not entered knowingly, intelligently, and voluntarily,

we sustain Floyd's first assignment of error.

       {¶ 25} Assignment of Error No. 2:

       {¶ 26} THE TRIAL COURT FAILED TO GIVE POST RELEASE CONTROL

WARNINGS AT SENTENCING.

       {¶ 27} Assignment of Error No. 3:

       {¶ 28} THE TRIAL COURT REFUSED TO GIVE JAIL TIME CREDIT.

       {¶ 29} Assignment of Error No. 4:


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       {¶ 30} THE TRIAL COURT IMPROPERLY TERMINATED COMMUNITY CONTROL

AS UNSUCCESSFUL.

       {¶ 31} In his second, third, and fourth assignments of error, Floyd makes various

arguments regarding the trial court's imposed sentence. In light of our decision regarding

Floyd's first assignment of error, the trial court's sentence must be vacated, thereby rendering

these matters moot.

       {¶ 32} Judgment reversed and remanded for further proceedings.


       RINGLAND and PIPER, JJ., concur.




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