         [Cite as State v. Foster, 2018-Ohio-4006.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-170245
                                                          TRIAL NO. B-1601333
        Plaintiff-Appellee,                           :

  vs.                                                 :
                                                             O P I N I O N.
DORIAN FOSTER,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 3, 2018


Paula E. Adams, Assistant Hamilton County Prosecuting Attorney, for Plaintiff-
Appellee,

Hastings & Hastings, LLC, and Robert R. Hastings, Jr., for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Defendant-appellant Dorian Foster was indicted for the rape and gross

sexual imposition of his stepdaughter. Foster and the state entered into a plea

agreement. Foster pleaded guilty to rape. In exchange, the state dismissed the

gross-sexual-imposition charge. The trial court sentenced Foster to seven years in

prison and informed him of his duty to register as a Tier III sex offender. Foster filed

a motion for a delayed appeal, which this court granted.

       {¶2}    In two assignments of error, Foster argues that his guilty plea was not

knowingly, intelligently, and voluntarily made because he was not informed that the

rape offense carried a mandatory prison term, and that the Ohio Department of

Rehabilitation and Correction violated the separation-of-powers doctrine by

signifying in its records that his sentence is “mandatory.” Finding merit in neither

assignment of error, we affirm the judgment of the trial court.

                                       Plea Hearing

       {¶3}    The record reflects that the trial court asked Foster if he had reviewed

with defense counsel the entry withdrawing his plea of not guilty and entering a

guilty plea to rape, and if he had voluntarily signed the form. Foster replied that he

had. The trial court then reviewed the form with Foster, questioning him specifically

about his understanding of its contents. Foster acknowledged that he was pleading

guilty to rape, which was punishable as a first-degree felony that carried a minimum

sentence of three years in prison and a maximum sentence of 11 years in prison. The

trial court told Foster that the rape offense did not carry a mandatory prison term,

but that it did carry a maximum fine of $20,000. The trial court then informed

Foster that by pleading guilty to the rape offense he was subject to classification as a

Tier III sex offender.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   Thereafter the trial court stated, “You understand this is not a

probation offense, that I’m not considering probation on this case. Do we understand

each other?” Foster replied, “Yes.” The court went on to state, “And I’m thinking

about a penitentiary sentence of anywhere from 3 to 11 years. Do you understand

that?” Foster replied, “Yes.” Despite this exchange, the trial court read the portion

of the plea form stating that “at any point in this sentence, I can give you community

control. If you violate any of those conditions, I can give you a longer period of

community control probation. I can increase the restrictions on the community

control probation. Or sentence you anywhere from 3 to 11 years and community

control may last up to five years.”

       {¶5}   The trial court then stated, “I want to say this because I don’t want you

to walk out of this room thinking or having any miscalculations or being misguided.

I’m not thinking about probation. * * * Once I lay down a number, that’s going to be

it. Do we understand each other?”

       {¶6}    Foster inquired, “What is she saying?”

       {¶7}   The trial court then stated, “I’ll repeat that.    I’m not considering

probation at this particular time for you because of the nature of the charge. * * * Do

we understand each other, sir?” Foster replied, “Yes. Yes ma’am.”

       {¶8}   The trial court told Foster that he had not been very responsive during

the plea colloquy, and it was going to give him some time to consider whether he still

wanted to plead guilty to the rape offense. The trial court informed Foster that he

was entering into a blind plea because he did not know what sentence the court

would impose. The trial court told Foster it could impose a prison sentence of

anywhere from three to 11 years, and that if he decided to plead guilty it would order

a presentence investigation and a court clinic report, and it would listen to both the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



victim’s and the defendant’s families before selecting the proper term. The trial

court told Foster that it was not thinking about probation or even imposing a

minimum prison term and that it would not know how many years it was going to

impose until it had seen the presentence investigation and a court clinic evaluation.

The trial court then took a short recess.

        {¶9}   Following the recess, the trial court asked Foster if he still wished to

plead guilty. Foster told the trial court that, after speaking with his mother, he had

decided to proceed with the plea agreement. The trial court then resumed its plea

colloquy with Foster. In response to further questioning by the trial court, Foster

stated that he was satisfied with defense counsel, he was not under the influence of

drugs or alcohol, and he had voluntarily signed the guilty-plea form.

        {¶10} The trial court informed Foster that by pleading guilty he was waiving

certain constitutional rights, including his privilege against self-incrimination, the

right to a jury trial, the right to confront his accusers, and the right to require the

state to prove his guilt beyond a reasonable doubt. Foster acknowledged his waiver

of these constitutional rights, and that his guilty plea was a complete admission to

the charge. The assistant prosecuting attorney then read the facts as set forth in the

indictment. Thereafter, the trial court accepted Foster’s plea and found him guilty of

rape.

                                   Sentencing Hearing

        {¶11} At the sentencing hearing, the trial court told Foster that it had

reviewed both the court clinic report and the presentence-investigation report. The

trial court then listened to the victim’s cousin, grandmother, and aunt, and to

Foster’s parents.   The trial court sentenced Foster to seven years in prison for the

rape offense. The trial court did not inform Foster during the sentencing hearing



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that the seven-year prison sentence was mandatory. The sentencing entry, likewise,

did not state that Foster’s seven-year sentence for the rape offense was mandatory.

               Failure to Notify Regarding Mandatory Prison Term

       {¶12} In his first assignment of error, Foster argues his guilty plea was not

knowingly, intelligently, and voluntarily made because he was not informed at the

time that he pleaded guilty that the rape offense carried a mandatory prison sentence

that rendered him ineligible for community control, judicial release, and earned days

of credit.

       {¶13} A guilty plea is constitutionally valid only if it is entered knowingly,

voluntarily, and intelligently. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). To ensure a no-contest or guilty plea is made knowingly, intelligently, and

voluntarily, the trial court must engage the defendant in a colloquy pursuant to

Crim.R. 11(C) and inform him of certain constitutional and nonconstitutional rights.

Id.

       {¶14} The trial court must inform the defendant that by pleading guilty or

no contest, he is waiving the following constitutional rights: the privilege against self-

incrimination, the right to a jury trial, the right to confront his accusers, and the right

of compulsory process of witnesses. Crim.R. 11(C)(2)(c). The trial court must also

inform the defendant of certain nonconstitutional rights, including the nature of the

charges, the maximum penalty involved, the eligibility of the defendant for probation

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

       {¶15} A trial court must strictly comply with Crim.R. 11 when it explains the

constitutional rights set forth in Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473,

423 N.E.2d 115 (1981), paragraph one of the syllabus. When a trial court fails to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



explain these rights, the guilty or no-contest plea is invalid “under a presumption

that it was entered involuntarily and unknowingly.” State v. Griggs, 103 Ohio St.3d

85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

       {¶16} A trial court, however, need only substantially comply with Crim.R. 11

when explaining the nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b).

“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). When a

trial court fails to substantially comply with Crim.R. 11 with regard to a non-

constitutional right, the plea may be vacated only if the defendant shows prejudice.

“The test [for prejudice] is whether the plea would have otherwise been made.” Id.

       {¶17} A defendant who is required to serve a mandatory prison term is

ineligible for probation or community control.        See R.C. 2929.16(A).    Crim.R.

11(C)(2)(a) requires the trial court to inform a defendant about his eligibility for

probation or community control. In Nero, the Ohio Supreme Court held that “where

the circumstances indicate that the defendant knew he was ineligible for probation

and was not prejudiced by the trial court’s failure to comply with Crim.R. 11(C)(2)(a),

the trial court’s acceptance of the defendant’s guilty plea to the nonprobationable

crime of rape without personally advising the defendant that he was not eligible for

probation constituted substantial compliance with Crim.R. 11. (State v. Stewart,

[1977], 51 Ohio St.2d 86, 364 N.E.2d 1163 followed).” Nero at syllabus. In Nero, the

defendant’s attorney had told the trial court during the plea colloquy that he knew

his client would be incarcerated and the defendant had asked the trial court to give

him some time to straighten out his affairs. Id. at 108.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18} In State v. Farley, 1st Dist. Hamilton No. C-010478, 2002 WL 397909,

*1, (Mar. 15, 2002), this court held that the trial court had erred by accepting the

defendant’s guilty plea to an amended rape charge and one count of gross sexual

imposition where the trial court had failed to comply with Crim.R. 11(C)(2)(a). The

plea form the defendant had executed had not stated that the prison term for the

rape offense was mandatory, or that the defendant was ineligible for probation or

community control, and the trial court had failed to orally inform the defendant that

he was ineligible for probation or community control. Id. at *2

       {¶19} We acknowledged that to make a voluntary choice, a defendant must

act with a full understanding of the consequences of his plea. Because the prospect

of probation or community control would be a factor weighing heavily in favor of a

plea, we reasoned that the fact that a community-control sanction was statutorily

precluded could affect the defendant’s decision to enter a guilty plea. Id. We held

that under the totality of the circumstances, we could not conclude that the

defendant, at the time he had entered his guilty plea, had understood that he was

ineligible for community control or probation, and we could not be confident that he

would have entered his guilty plea had the trial court complied with the rule. Id.

       {¶20} Here, Foster’s written plea form had the word “none” written under

the heading for mandatory prison term. The plea form further provided that “if

granted community control/probation at any point in my sentence, I understand that

I will be subject to all conditions imposed by Community Control/Probation.”

       {¶21} At Foster’s plea hearing, the trial court incorrectly advised Foster that

the rape offense did not carry a mandatory prison term. But the trial court expressly

told Foster that community control was not a sentencing option and that it was

planning to impose a prison sentence upon him. Despite these express statements,



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                        OHIO FIRST DISTRICT COURT OF APPEALS



the trial court proceeded to read from the community-control explanation in the plea

form. The trial court then told Foster that it could not tell him the exact prison term

it would impose, but that it would be more than the statutory minimum of three

years. The trial court then gave Foster an opportunity to speak with his family about

the guilty plea. Following the trial court’s statements regarding its imposition of a

prison term upon Foster, Foster decided to plead guilty to the offense.

       {¶22} Although the trial court read from the community-control portion of

the plea form, Foster can demonstrate no prejudice from the trial court’s statements.

Here, unlike in Farley, the trial court had expressly told Foster multiple times during

the plea colloquy that community control was not a sentencing option and that it was

planning to impose a prison term. Under the totality of the circumstances in this

case, we cannot conclude that Foster’s guilty plea was not knowingly, voluntarily,

and intelligently made. See Nero, 56 Ohio St.3d 106, 564 N.E.2d 474.

       {¶23} The dissent, in arguing that the trial court failed to comply with

Crim.R. 11, ignores this court’s precedent and does not meaningfully explain why the

Supreme Court’s opinion in Nero mandates a different result. Instead, it relies on

case law from other appellate districts that is factually distinguishable. In the cited

cases from these districts, the plea form, like the form in Farley, contained no

information about a mandatory term or contained wrong information and likewise,

the trial court either gave wrong information about community control or no

information about community control at all. Those districts, like this court in Farley

concluded that under these circumstances, the defendant could not have appreciated

the effect of his plea. Here, however, the trial court expressly told Foster that he

would be going to prison. Thus, our conclusion is not inconsistent with the case law

cited by the dissent.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24} Foster additionally argues that his guilty plea was not knowingly,

voluntarily, and intelligently entered because the trial court failed to advise him that

he would be ineligible for judicial release and earned days of credit. A defendant who

is serving a mandatory prison term cannot apply for judicial release until the

expiration of all mandatory prison terms in his stated prison sentence. State v.

Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11; R.C. 2929.13(F)

and 2929.20(A)(1)(a) and (B). A defendant’s ineligibility for judicial release,

however, is not one of the items in Crim.R. 11(C)(2)(a) that the trial court is required

to determine a defendant’s understanding of when he or she enters a guilty plea.

State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, ¶ 13, citing

State v. Xie, 62 Ohio St.3d 521, 524-525, 584 N.E.2d 715 (1992). Thus, a trial court is

generally not required to inform a defendant about judicial release during the plea

colloquy unless judicial release is incorporated into a plea agreement or the

defendant can demonstrate that the trial court made some misstatement or

misrepresentation about judicial release that he relied upon when entering his plea.

State v. Kinney, 1st Dist. Hamilton No. C-160415, 2018-Ohio-404, ¶ 22-26 (following

Simmons and holding the defendant’s reliance upon the trial court’s erroneous

statements about his eligibility for judicial release rendered his guilty plea

involuntary).

       {¶25} Here, the plea form provided: “I understand the maximum penalty as

set out above and any mandatory prison term during which I am not eligible for

judicial release * * *.” The trial court never orally discussed judicial release during

the Crim.R. 11 plea colloquy. It was not a part of Foster’s plea agreement with the

state, and Foster has not argued that his eligibility for judicial release was a factor in

his decision to plead guilty.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} Likewise, Crim.R. 11 does not require a trial court to notify a defendant

that his sentence may or may not be reduced by the statutory provisions providing

for earned days of credit. Foster has cited no authority to the contrary. See State v.

Dowdy, 8th Dist. Cuyahoga No. 105396, 2017-Ohio-8320, ¶ 12; State v. Fisher, 6th

Dist. Lucas No. L-15-1262, 2016-Ohio-4750, ¶ 17. Foster’s guilty-plea form stated the

following with respect to such credit: “I understand that I may be eligible to earn

days of credit under the circumstances set forth in R.C. 2967.193 of the Ohio Revised

Code. I further understand that the days of credit are not automatically earned, but

must be earned in the matter specified by law.” This language in the plea form was

not an incorrect statement of law. The trial court did not discuss earned days of

credit during its plea colloquy with Foster. Foster does not argue that his eligibility

for earned days of credit was a factor in his decision to plead guilty. Thus, we

overrule the first assignment of error.

       {¶27} In his second assignment of error, Foster argues that the Ohio

Department of Rehabilitation and Correction violated the separation-of-powers

doctrine by administratively adding the designation “mandatory” to his records

without any judicial order requiring such action.

       {¶28} Foster claims this error is demonstrated by a Department of

Rehabilitation and Correction printout appended to his brief. But the printout was

not made a part of the record in the trial court, and thus, it is not part of our record

on appeal. See App.R. 9(A). Materials appended to briefs may not be considered

pursuant to App.R. 9(A) and 12(A)(1)(b). State v. Tekulve, 188 Ohio App.3d 792,

2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.) (holding that documents appended to

the defendant’s brief were not a part of the record on appeal). Foster, thus, cannot

demonstrate the error of which he complains. See State v. Ishmail, 54 Ohio St.2d



                                          10
                     OHIO FIRST DISTRICT COURT OF APPEALS



402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. We, therefore, overrule

his second assignment of error, and affirm the judgment of the trial court.

                                                                    Judgment affirmed.
MOCK, P.J., concurs.
ZAYAS, J., concurs in part and dissents in part.

ZAYAS, J., concurring in part and dissenting in part.

       {¶29} I concur with the majority’s resolution of Foster’s second assignment

of error. However, under the totality of the circumstances, I conclude that Foster

could not have understood the maximum penalty he was facing because he was

erroneously informed that the prison sentence was not mandatory and erroneously

informed that he was eligible for community control.         Although the trial court

informed him that it would not impose community control because of the nature of

the offense, the court did not advise him that he was facing a mandatory sentence,

rendering him ineligible for community control.

       {¶30} Unlike the majority, I am not persuaded that Nero governs the

outcome of this case. Nero is distinguishable from this case because it involved the

clause related to probation eligibility, and not the clause that requires that a

defendant understand the maximum penalty. Nero was correctly advised of the

maximum penalty he was facing. Here, Foster was incorrectly advised that he would

not be serving a mandatory prison term, and that he was eligible for community

control, judicial release, and to earn days of credit. Under these circumstances,

Foster could not have understood the maximum penalty he was facing. Therefore, I

respectfully dissent from that portion of the majority’s opinion.

                                      The Plea Form

       {¶31} The record indicates that Foster signed a written plea form before the

Crim.R. 11 colloquy.    While the written plea form correctly indicated that the



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                      OHIO FIRST DISTRICT COURT OF APPEALS



potential sentencing range was three to 11 years, it erroneously stated that none of

the time was mandatory. The form also stated, “I understand the maximum penalty

as set out above, and any mandatory prison term during which I am NOT eligible for

judicial release.” The form explained that if he were granted community control at

any point in his sentence, he would be subject to conditions, and the possible

penalties for violating those conditions. Finally, the form informed him that he may

be eligible to earn days of credit and “that the days of credit are not automatically

earned, but must be earned in the manner specified by Law.”

                                   The Plea Colloquy

       {¶32} Before accepting Foster’s guilty plea, the trial court engaged him in the

following colloquy.

       THE COURT: And a Felony 1 has a potential sentencing range, doesn’t

       it? It carries a minimum period of incarceration and a maximum

       period of incarceration. What’s the minimum?

       THE DEFENDANT: Three.

       THE COURT: What’s the maximum?

       THE DEFENDANT: Eleven.

       THE COURT: Very good. And no mandatory prison term, but it does

       have a maximum fine of $20,000.

                                        ***

       THE COURT: You understand that this is not a probation offense, that

       I’m not considering probation on this case. Do we understand each

       other?

       THE DEFENDANT: Yes.




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              OHIO FIRST DISTRICT COURT OF APPEALS



THE COURT: And I’m thinking about a penitentiary sentence of

anywhere from three to eleven years. Do you understand that?

THE DEFENDANT: Yes.

                                  ***

THE COURT: And also, I will read the community control. At any

point in this sentence, I can give you community control. If you violate

any of those conditions, I can give you a longer period of community

control probation. I can increase the restrictions on the community

control probation. Or sentence you anywhere from three to eleven

years and community control may last up to five years. I want to say

this because I don’t want you to walk out of this room thinking or

having any miscalculations or being misguided.         I’m not thinking

about probation. And because of the nature of the charge, more than

likely, I would not be thinking of post-release control either. Once I

lay down the number, that’s going to be it.

THE DEFENDANT: What is she saying?

THE COURT: I’ll repeat that. I’m not considering probation at this

particular time for you because of the nature of the crime. I’m also

telling you at this particular point in time, once I pass sentence, I more

than likely would not be thinking of a post-release control type of plea.

I don’t want you to think of any promise or any thoughts of post-

release control, do we understand each other, sir?

THE DEFENDANT: Yes. Yes, ma’am.

                                  ***




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       THE COURT: But I’m not thinking about probation. I know when you

       walked up to the podium from a discussion perhaps with your

       attorney, you were hopeful of that. I’m not going to promise you

       minimum. You probably were hopeful for that.

                                 Law and Analysis

       {¶33} To determine whether a plea was entered knowingly, intelligently and

voluntarily, “an appellate court examines the totality of the circumstances through a

de novo review of the record.” State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13

(8th Dist.). A trial court must substantially comply with Crim.R. 11(C)(2)(a) with

respect to the nonconstitutional rights and ensure the defendant understands the

maximum penalty involved and his ineligibility for community control. Nero, 56

Ohio St.3d at 108, 564 N.E.2d 474. “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.” Id. at 108.

       {¶34} In conducting the plea colloquy, the trial judge must convey accurate

information to the defendant so that the defendant can understand the consequences

of his decision and enter a valid plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 26; State v. Rand, 10th Dist. Franklin No. 03AP745, 2004-

Ohio-5838, ¶ 23 (the trial court committed reversible error when it accepted

defendant's guilty plea because it misinformed him that his sentence was not

mandatory); State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶

15-16 (trial court's failure to advise defendant that a guilty plea to a robbery charge

carried a mandatory prison term that rendered him ineligible for community control

or judicial release invalidated the plea and required reversal of the conviction and

sentence); State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-12



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                     OHIO FIRST DISTRICT COURT OF APPEALS



(trial court's failure to notify defendant who pled no contest to rape charges of the

amount of mandatory prison time and the time during which he would be ineligible

for community control resulted in invalid plea that required reversal).

       {¶35} Where a defendant faces a mandatory prison sentence as a result of a

plea, the trial court must determine, prior to accepting the 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. See, e.g., Tutt at ¶ 19; State v. Silvers, 181 Ohio

App.3d 26, 2009-Ohio-687, 907 N.E.2d 805, ¶ 13 (2d Dist.); State v. Hendrix, 12th

Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6; State v. Brigner, 4th Dist.

Athens No. 14CA19, 2015-Ohio-2526, ¶ 14. “The rationale for such a rule is that,

without an adequate understanding of mandatory prison time, a defendant cannot

fully understand the consequence of his or her plea as required by Crim.R. 11(C)(2).”

Tutt at ¶ 23.

       {¶36} In this case, the trial court affirmatively told Foster that a prison term

was not mandatory, and that he was eligible for community control at any point in

the sentence. Significantly, the judgment entry does not state that the prison term

was mandatory. The plea form also contains multiple incorrect and misleading

representations. The form incorrectly informed Foster that none of his sentence

would be mandatory, and that he was eligible for the imposition of community

control, judicial release, and may be eligible to earn days of credit. However, Foster

was not eligible for community control, judicial release, or to earn days of credit

because he was subject to a mandatory prison term. See Silvers at ¶ 12. Ordinarily, a

trial court is not obligated to inform a defendant about judicial release or earned

days of credit. Id. at ¶ 14. However, when the plea form contains incorrect and



                                          15
                      OHIO FIRST DISTRICT COURT OF APPEALS



misleading information about judicial release or earned days of credit, a trial court

must correct the misinformation. Id. at ¶ 15; Hendrix at ¶ 26.

       {¶37} At no point, either through the plea form or during the plea colloquy,

was Foster advised that the rape charge carried a mandatory prison term rendering

him ineligible for community control, judicial release, and earned days of credit. In

fact, he was expressly advised that a prison term was not mandatory. Foster could

not have understood that he was required to serve a mandatory sentence, which

meant he would serve the entire prison term, and was ineligible for judicial release

and to earn days of credit. See Hendrix at ¶ 26 (vacating a defendant's plea where

the colloquy and plea form misadvised the defendant and understated the sentence

with regard to earned credit, community control, and judicial release); Silvers at ¶ 15

(trial court failed to substantially comply with Crim.R. 11(C)(2)(a) when it did not

correct the information in the plea form and affirmatively notify the defendant that

he was ineligible for judicial release).

       {¶38} Although the trial court informed Foster that the court intended to

impose a prison term rather than community control, the court also informed him

that he was eligible for community control. Notably, at the plea hearing, the court

acknowledged that Foster was still hopeful for a sentence of community control when

he walked up to the podium. At no time did the court explain that he was ineligible

for community control because he was facing a mandatory prison term. “Ineligibility

for (as opposed to the unlikelihood of) the imposition of community control

sanctions is deemed to be a sufficiently important effect of a plea of guilty or no

contest that it is specifically incorporated in Crim.R. 11(C)(2)(a) as a subject that

must be specifically addressed by the trial court, concerning which the defendant's

understanding must be specifically determined by the trial court.” State v. Balidbid,



                                           16
                     OHIO FIRST DISTRICT COURT OF APPEALS



2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 12. Consequently, Foster could

not have subjectively understood that he was subject to a mandatory prison term on

the rape charge and ineligible for community control.

       {¶39} Under the totality of the circumstances, the trial court failed to

substantially comply with Crim.R. 11(2)(a). See Tutt, 2015-Ohio-5145, 54 N.E.3d

619, at ¶ 22 (trial court did not substantially comply with Crim.R. 11(C)(2)(a) when it

failed to expressly inform the defendant that the defendant was subject to a

mandatory prison term and was not eligible for community control);            State v.

Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 12 (“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”); Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-

361, at ¶ 15-17 (trial court’s failure to advise defendant that guilty plea to robbery

charge carried a mandatory prison term rendered plea invalid); State v. Smith, 5th

Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-12 (defendant’s no-contest pleas to

four counts of rape were not knowing, intelligent and voluntary where although the

trial court informed defendant at the plea hearing that the offenses “carr[ied] a term

of mandatory incarceration,” it failed to state the number of years that were

mandatory); Rand, 10th Dist. Franklin No. 03AP-745, 2004-Ohio-5838, at ¶ 21-23

(where the entry of guilty plea indicated that prison sentence was not mandatory and

the trial court failed to advise the defendant at plea hearing that the prison sentence

was, in fact, mandatory, the trial court did not substantially comply with Crim.R.

11(C)(2)(a)).

       {¶40} Having found the trial court did not substantially comply, the next step

is to determine whether the court partially complied or wholly failed to comply.



                                          17
                       OHIO FIRST DISTRICT COURT OF APPEALS



Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, at ¶ 11. If the court

partially complied, the plea will not be vacated unless the defendant establishes

prejudice.     Id.   If the court wholly failed to comply, the defendant need not

demonstrate prejudice, and the plea must be vacated. Id.

       {¶41} Because the trial court failed to inform Foster that the prison term was

mandatory, the court wholly failed to comply with Crim.R. 11(C)(2)(a), and he need

not demonstrate prejudice. See Tutt at ¶ 31; Givens at ¶ 15; State v. Dunham, 5th

Dist. Richland No. 2011-CA-121, 2012-Ohio-2957, ¶ 16-17. Accordingly, I would

sustain Foster’s first assignment of error, reverse the conviction, vacate the plea, and

remand the cause for further proceedings.


Please note:
       The court has recorded its own entry this date.




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