[Cite as State v. Harris, 2013-Ohio-2056.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 12 CA 82
LOUIS HARRIS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CR 438


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 17, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH W. OSWALT                              WILLIAM T. CRAMER
PROSECUTING ATTORNEY                           470 Olde Worthington Road
JUSTIN T. RADIC                                Suite 200
ASSISTANT PROSECUTOR                           Westerville, Ohio 43082
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12 CA 82                                                        2

Wise, J.

       {¶1}       Defendant-Appellant Louis Harris appeals his judgment entry of sentence

entered on October 10, 2012, in the Licking County Common Pleas Court following a

plea of guilty.

       {¶2}       Plaintiff-Appellee is the State of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶3}       On August 24, 2012, Appellant Louis Harris was indicted on two counts of

aggravated robbery, in violation of R.C. 2911.01, and two counts of aggravated

burglary, in violation of R.C. 2911.11, all with firearm specifications pursuant to R.C.

2941.145. The counts arose from two separate incidents, with one robbery and one

burglary charged for each incident.

       {¶4}       Appellant eventually pled guilty to one count of robbery and one count of

burglary. During the plea negotiations, the State alleged Appellant and co-defendant

Stephan Ash broke into a home in Newark, Ohio, brandished a firearm, and robbed the

people in the home. Appellant agreed with the facts as alleged. (T. at 10-12).

       {¶5}       The State conceded that the robbery and burglary charges merged under

R.C. 2941.25 and elected to proceed on the robbery.

       {¶6}       By Judgment Entry filed October 10, 2012, the trial court sentenced

Appellant to four years, plus a mandatory consecutive three years for the firearm

specification. The State subsequently dismissed the other two counts due to lack of

cooperation from a witness, not as part of a plea bargain. (T. at 11-12).
Licking County, Case No. 12 CA 82                                                               3


        {¶7}   Appellant sent a letter dated October 11, 2012, to the trial court

complaining about the performance of his trial attorney, and requesting permission to

"take back" his plea or appeal his case.

        {¶8}   By Judgment Entry dated October 22, 2012, the trial court appointed

appellate counsel to represent Appellant on appeal.

        {¶9}   By Judgment Entry dated October 23, 2012, the trial court appointed new

trial counsel to represent Appellant for any further representation at the trial court level.

        {¶10} The trial court interpreted Appellant's letter as also setting forth a motion to

withdraw his plea pursuant to Crim.R. 32.1, and by Court Order filed October 23, 2012,

scheduled a hearing on the motion to be held on November 7, 2012.

        {¶11} On October 25, 2012, Appellate counsel filed the Notice of Appeal in this

case.

        {¶12} On November 5, 2012, Appellate counsel filed a motion with this Court to

remand the case back to the trial court to rule on the motion to withdraw the plea.

        {¶13} By Judgment entry filed November 8, 2012, the trial court issued an entry

declining to rule on the motion due to lack of jurisdiction.

        {¶14} On December 10, 2012, this Court subsequently denied the motion for a

remand.

        {¶15} Appellant’s appeal is now before this Court, assigning the following error

for review:

                                ASSIGNMENT OF ERROR

        {¶16} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL CONSTITUTIONAL RIGHTS, CIV.R. 11(C)(2)(a), AND R.C. 2943.01 BY
Licking County, Case No. 12 CA 82                                                       4


FAILING TO PERSONALLY ADDRESS APPELLANT AND ENSURE THAT HE

UNDERSTOOD THE MAXIMUM PENALTY THAT HE FACED BY ENTERING A

GUILTY PLEA.”

                                            I.

      {¶17} In Appellant’s sole Assignment of Error, Appellant argues that the trial

court erred in failing to inform him during sentencing of the actual penalty for violating

post-release control. We disagree.

      {¶18} Crim.R. 11(C)(2) details the trial court's duty in a felony plea hearing to

address the defendant personally and to convey certain information to such defendant,

and makes clear that the trial court shall not accept a guilty plea or no contest plea

without performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70, 2010-Ohio-

428. Crim.R. 11(C)(2)(a) states the trial court must determine:

      {¶19} “* * * that the defendant is making the plea voluntarily, with the

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.”

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

Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011-Ohio-1202.

      {¶21} Appellant argues that the trial court failed to substantially comply with

Crim.R. 11 because the trial court did not specify the actual penalty for violating post-

release control, which would be up to nine months per violation, with a cumulative

maximum of one-half the original sentence. R.C. 2967.28(F)(3). Appellant claims that
Licking County, Case No. 12 CA 82                                                          5


without an explanation of those terms, Appellant could not subjectively understand the

implications of his plea.

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

Court held:

       {¶23} “* * * 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 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. 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. 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,

the Ohio Supreme Court noted the following test for determining substantial compliance

with Crim.R. 11:

       {¶24} “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
Licking County, Case No. 12 CA 82                                                        6


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]. See State v. Sarkozy, 117 Ohio St.3d

86, 2008–Ohio–509.

        {¶25} 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; State v.

Aleshire, 5th Dist. No. 2007-CA-1, 2008-Ohio-5688. 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, 2008-Ohio-3748.

        {¶26} In Clark, supra, decided after Sarkozy, the Ohio Supreme Court concluded

that:

        {¶27} “If a trial judge, in conducting a plea colloquy, imperfectly explains 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 on appellate review;

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.

        {¶28} 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
Licking County, Case No. 12 CA 82                                                           7


substantial compliance test. 119 Ohio St.3d at 244, 2008-Ohio-3748 at ¶ 31. (Citations

omitted).

       {¶29} 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 Alexander's plea and determine

whether he subjectively understood the effect of his plea.

       {¶30} In the case sub judice, with regard to post-release control, the trial court

addressed Appellant as follows:

       {¶31} "Do you also understand, Mr. Harris, that as a result of these convictions,

that at the completion of your sentence you would be placed on a period of mandatory

post-release control, and if you were to violate the terms of post-release control -- a

period of five years of post-release control -- you'd be subject to being returned to the

penitentiary for more incarceration even though you've served out your entire sentence?

Do you understand that?" (T. at 14-15).

       {¶32} The plea form, signed by Appellant, informed Appellant as follows:

       {¶33} “I know any prison term stated will be the term served without good time

credit. After release from prison, I will have 5 years of post-release control. A violation of

any post-release control rule or condition can result in a more restrictive sanction while I

am under post-release control, an increased duration of supervision or control, up to the

maximum term and re-imprisonment even though I have served the entire stated prison

term upon me by the Court for all offenses. If I violate conditions of supervision while
Licking County, Case No. 12 CA 82                                                         8


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

month for each violation, for repeated violations up to 1/2 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."

       {¶34} Additionally, the October 10, 2012, Judgment Entry of Sentence stated the

following:

       {¶35} “The Court advised the defendant of a mandatory period of five (5) years

of post-release control, not subject to reduction by the Adult Parole Authority, following

any prison sentence imposed, and further the consequences for violating conditions of

post-release control imposed by the Parole Board under Ohio Revised Code Section

2967.28, being the defendant is subject to being reincarcerated for a period of up to

nine months, with a maximum for repeated violations of 50% of the stated prison term. If

the violation is a new felony, the defendant may be returned to prison for the remaining

period of control or 12 months, whichever is greater, plus receive a prison term for the

new crime. The defendant was also advised if he is released early from the state

penitentiary pursuant to judicial release and placed on community control, if a violation

of community control occurs, the defendant could be subject to being returned to the

penitentiary for the balance of his sentence.”

       {¶36} In Sarkozy and Jones, there was no mention of post-release control at the

plea hearing. In the present case, the trial court notified Appellant that he was subject to

a mandatory post-release control period of 5 years. Further, the Crim.R. 11(C) form

signed by Alexander stated that post-release control was mandatory for a term of five
Licking County, Case No. 12 CA 82                                                     9


years and specifically stated that he could be returned “to prison for up to nine months

for each violation”.

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

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

informing Appellant of post-release control during his plea hearing so that Appellant

subjectively understood the implications of his plea. See State v. Alexander, 5th Dist.

No. 2012CA00115, 2012-Ohio-4843; State v. Kula, 5th Dist. Nos. 08-CA13, 08-CA14,

2009-Ohio-2911; State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477.

        {¶38} We find Appellant’s sole Assignment of Error not well-taken and overrule

same.

        {¶39} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
JWW/d 0423
Licking County, Case No. 12 CA 82                                             10


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
LOUIS HARRIS                               :
                                           :
       Defendant-Appellant                 :         Case No. 12 CA 82




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

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

       Costs assessed to Appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
