[Cite as State v. Bryant, 2012-Ohio-3189.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               MEIGS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 11CA19
                               :
     vs.                       : Released: July 5, 2012
                               :
LEWIS G. BRYANT,               : DECISION AND JUDGMENT
                               : ENTRY
    Defendant-Appellant.       :
_____________________________________________________________
                         APPEARANCES:

Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant
State Public Defender, Columbus, Ohio, for Appellant.

Colleen S. Williams, Meigs County Prosecutor, and Amanda Bizub-
Franzmann, Assistant County Prosecutor, Pomeroy, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1} Appellant, Lewis Bryant, appeals his conviction and sentence

entered in the Meigs County Court of Common Pleas after he pled guilty to

two felony counts of trafficking in crack cocaine. On appeal, Appellant

contends that 1) the trial court imposed sentences that are both contrary to

law and not authorized by law when it ordered that his sentences for

violations of R.C. 2925.03 were partially mandatory, and that he would be

eligible for judicial release after serving the mandatory portion of those
Meigs App. No. 11CA19                                                           2


sentences; and 2) that his guilty plea was not knowing, intelligent, and

voluntary.

      {¶2} In light of our conclusion under Appellant’s second assignment

of error that the misrepresentation of Appellant’s eligibility for judicial

release rendered the plea unknowing and unintelligent, and therefore

unenforceable, Appellant’s second assignment of error is sustained.

Accordingly, we reverse the judgment of the trial court, vacate the

Appellant’s plea, and remand the cause for further proceedings. Further, as

our decision to sustain Appellant’s second assignment of error is dispositive

of Appellant’s appeal, Appellant’s first assignment of error has been

rendered moot and we do not address it.

                                    FACTS

      {¶3} On November 4, 2010, Appellant pled guilty to one count of

trafficking in crack cocaine, in violation of R.C. 2925.03, a felony of the

second degree, and one count of trafficking in crack cocaine, in violation of

R.C. 2925.03, a felony of the third degree. As part of his plea agreement,

Appellant was advised by both his counsel as well as the State that the

recommended sentence would be six years for the second degree felony and

four years for the third degree felony, to be served consecutively. During

the plea hearing there was extensive discussion between counsel, the State
Meigs App. No. 11CA19                                                                                        3


and the trial court regarding the way in which Appellant’s sentence would be

structured. Ultimately, it was agreed by all that Appellant would be

sentenced to a combined term of ten years, five of which would be

mandatory, and that Appellant would be eligible to apply for judicial release

after serving the five mandatory years.1 A review of the transcript reveals

that Appellant agreed to enter guilty pleas with the understanding he would

be eligible for judicial release after five years.

            {¶4} Appellant was sentenced the same day he entered his pleas, on

November 4, 2010, and a sentencing entry was filed on March 7, 2011. It is

from this sentencing entry that Appellant now brings his timely appeal,

assigning the following errors for our review.

                                 ASSIGNMENTS OF ERROR

“I.         THE TRIAL COURT IMPOSED SENTENCES THAT ARE BOTH
            CONTRARY TO LAW AND NOT AUTHORIZED BY LAW
            WHEN IT ORDERED THAT LEWIS BRYANT’S SENTENCES
            FOR VIOLATIONS OF R.C. 2925.03 WERE PARTIALLY
            MANDATORY, AND THAT MR. BRYANT WOULD BE
            ELIGIBLE FOR JUDICIAL RELEASE AFTER SERVING THE
            MANDATORY PORTION OF THOSE SENTENCES.

      II.      LEWIS BRYANT’S GUILTY PLEA WAS NOT KNOWING,
               INTELLIGENT, AND VOLUNTARY.”


1
 Specifically, Appellant was sentenced to six years on the second degree felony, with a provision that three
of the years would be mandatory, and he was sentenced to four years on the third degree felony, with the
provision that two of the years would be mandatory. Apparently it was the intention that the mandatory
portions of each sentence were to be served first and consecutively to one another, in order that Appellant
could apply for judicial release after five years, although this was not expressly set forth in the transcript.
Meigs App. No. 11CA19                                                          4


                        ASSIGNMENT OF ERROR II

      {¶5} As Appellant’s second assignment of error is dispositive of

Appellant’s appeal, we address it first, out of order. In his second

assignment of error, Appellant contends that there was a mutual mistake

regarding Appellant’s eligibility for judicial release, resulting in Appellant’s

pleas not being knowing, intelligent or voluntary, and ultimately rendering

Appellant’s pleas void. The State candidly concedes that Appellant’s pleas

are invalid due to the “improper explanation of judicial release.” Based

upon the following, we agree and therefore sustain Appellant’s second

assignment of error.

      {¶6} A plea of guilty or no contest in a criminal case “must be made

knowingly, intelligently, and voluntarily. Failure on any of those points

renders enforcement of the plea unconstitutional under both the United

States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d

525, 527, 1996-Ohio-179, 660 N.E.2d 450 (1996) ( Internal citations

omitted). Crim.R. 11(C)(2) provides that “felony defendants are entitled to

be informed of various constitutional and nonconstitutional rights, prior to

entering a plea.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814

N.E.2d 51 (2004), ¶ 6. The failure to adequately inform a defendant of his
Meigs App. No. 11CA19                                                            5


constitutional rights invalidates a guilty plea “under a presumption that it

was entered involuntarily and unknowingly.” Id. at ¶ 12.

      {¶7} However, the failure to accurately explain nonconstitutional

rights is reviewed under the substantial compliance standard. Id. “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)

(Internal citation omitted). Under Crim.R. 11(C)(2), a trial court is not

required to advise a defendant regarding eligibility for judicial release. See

State v. Sherman, 5th Dist. No. 2009-CA-132, 2010-Ohio-3959, (Aug. 19,

2010), ¶ 17; State v. Smith, 5th Dist. No. CT2007-0073, 2008-Ohio-3306,

(June 30, 2008), ¶ 17. Therefore, the failure to include such information in

the court's colloquy does not violate a defendant's Crim.R. 11 rights.

       {¶8} Nevertheless, an “incorrect recitation of the law fails to meet the

substantial-compliance standard. If a trial judge chooses to offer an

expanded explanation of the law in a Crim.R. 11 plea colloquy, the

information conveyed must be accurate.” State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, (July 31, 2008), ¶ 39. See, also, State v.

Sherman, supra, ¶ 41 (although trial court is not obligated to discuss a

defendant's eligibility for judicial release during a plea colloquy, such
Meigs App. No. 11CA19                                                             6


information, if conveyed, must be accurate). When a defendant's guilty plea

is induced by erroneous representations as to the applicable law, including

eligibility for judicial release, the plea is not knowingly, intelligently, and

voluntarily made. Sherman, supra, at ¶ 38-41; State v. Mitchell, 11th Dist.

No. 2004-T-0139, 2006-Ohio-618, (Feb. 10, 2006), ¶ 15. See, also, Engle,

supra, at 528 (allowing withdrawal of no-contest plea that was predicated on

inaccurate representations as to defendant's right to appeal the trial court's

ruling on a motion in limine).

      {¶9} However, in addition to the demonstration that the court has not

substantially complied with the requirements of Crim.R. 11(C)(2), “there

must be some showing of prejudicial effect before a guilty plea may be

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

(1977). The test for determining prejudice is whether the plea would

otherwise have been made. Nero, supra, at 108, citing Stewart, supra, at 93,

and Crim.R. 52(A). Thus, in cases involving misstatements as to judicial

release, an appellant “must demonstrate * * * that but for the

misrepresentation regarding judicial release, he would not have entered the

plea.” Mitchell, supra, at ¶ 15.

      {¶10} Here, Appellant pled guilty to two counts of felony trafficking

in crack cocaine. Count one was a second degree felony, in violation of
Meigs App. No. 11CA19                                                                               7


former R.C. 2925.03(C)(4)(e)2, which required the trial court to “impose as a

mandatory prison term one of the prison terms prescribed for a felony of the

second degree.” Count two was a third degree felony, in violation of former

R.C. 2925.03(C)(4)(d), which also required that the court impose as a

mandatory prison term, “one of the prison terms prescribed for a felony of

the third degree.” Thus, both of the offenses to which Appellant pleaded

guilty required mandatory prison terms. As such, the trial court sentenced

Appellant to a six year mandatory term of imprisonment for the second

degree felony and a four year mandatory term of imprisonment for the third

degree felony, which as will be more fully explained infra, were both within

the permissible sentencing range. However, despite R.C. 2925.03’s

directive that the trial court impose mandatory sentences within the

permissible ranges, the trial court inexplicably decided to make only five

years of Appellant’s total ten year sentence mandatory, and informed

Appellant that he would be eligible to apply for judicial release in five years.

The parties and the court stipulated to this structuring of Appellant’s

sentences and agreed that Appellant would be eligible to apply for judicial

release after serving five years.




2
    We apply a former version of R.C. 2925.03, which had an effective date of September 30, 2008.
Meigs App. No. 11CA19                                                                                8


         {¶11} Former R.C. 2929.01, which sets forth definitions, provides in

section (X)3 as follows:

         “Mandatory prison term” means any of the following:

         (1) Subject to division (X)(2)4 of this section, the term in prison

         that must be imposed for the offenses or circumstances set forth

         in divisions (F)(1) to (8) or (F)(12) to (14) of section 2929.13

         and division (D) of section 2929.14 of the Revised Code.

         Except as provided in sections 2925.02, 2925.03, 2925.04,

         2925.05, and 2925.11 of the Revised Code, unless the

         maximum or another specific term is required under section

         2929.14 or 2929.142 of the Revised Code, a mandatory prison

         term described in this division may be any prison term

         authorized for the level of offense.

The pertinent provision of R.C. 2929.135, as referenced in R.C. 2929.01(X)

above, provides as follows:

         (F) Notwithstanding divisions (A) to (E) of this section, the

         court shall impose a prison term or terms under sections

         2929.02 to 2929.06, section 2929.146, section 2929.142, or


3
  We apply a former version of R.C. 2929.01, which had an effective date of April 7, 2009.
4
  (X)(2) is inapplicable as it only applies to certain third or fourth degree felony OVI offenses.
5
  Again, we apply a prior version of R.C. 2929.13, with an effective date of April 7, 2009.
6
  R.C. 2929.14 is the only pertinent provision to the matter herein.
Meigs App. No. 11CA19                                                                          9


           section 2971.03 of the Revised Code and except as specifically

           provided in section 2929.20 or 2967.191 of the Revised Code

           or when parole is authorized for the offense under section

           2967.13 of the Revised Code shall not reduce the term or terms

           pursuant to section 2929.20, section 2967.193, or any other

           provision of Chapter 2967, or Chapter 5120. of the Revised

           Code for any of the following offenses:

           ***

           (5) A first, second, or third degree felony drug offense for

           which section * * * 2925.03 * * * of the Revised Code, * * *

           requires the imposition of a mandatory prison term[.]

           (Emphasis added).

           {¶12} Former R.C. 2929.147 provides in section (A)(2) that “[f]or a

felony of the second degree, the prison term shall be two, three, four, five,

six, seven, or eight years.” It further provides in (A)(3) that “[f]or a felony

of the third degree, the prison term shall be one, two, three, for, or five

years.” Finally, R.C. 2929.20 governs judicial release. The version of the

statute that was in effect at the time Appellant committed his offense had an

effective date of April 7, 2009, and provided as follows:


7
    We apply a former version of R.C. 2929.14, which has an effective date of April 7, 2009.
Meigs App. No. 11CA19                                                        10


      (A) As used in this section, “eligible offender” means any

      person serving a stated prison term of ten years or less when

      either of the following applies:

      (1) The stated prison term does not include a mandatory prison

      term.

      (2) The stated prison term includes a mandatory prison term,

      and the person has served the mandatory prison term.

Former R.C. 2929.20 further provides as follows:

      (C)(3) If the stated prison term is five years or more but not

      more than ten years, the eligible offender may file the motion

      not earlier than five years after the eligible offender is delivered

      to a state correctional institution or, if the prison term includes

      a mandatory prison term or terms, not earlier than five years

      after the expiration of all mandatory prison terms. (Emphasis

      added).

Thus, under this version of the statute, because Appellant was sentenced to a

six year mandatory term of imprisonment, as well as a four year mandatory

term of imprisonment, he does not meet the definition of an eligible

offender. Even characterizing Appellant’s sentences as the parties

stiplulated during the plea hearing, as five years of mandatory time, with an
Meigs App. No. 11CA19                                                            11


additional five years, under R.C. 2929.20(C)(3), Appellant would not be

eligible to apply for judicial release until five years after he completed his

five years of mandatory sentences, which would be ten years. Clearly this is

five years later than what was represented to him by his counsel, the State,

and the trial court during his plea hearing.

      {¶13} We note however, that R.C. 2929.20 was revised after

Appellant was sentenced. While the current version of R.C. 2929.20 has an

effective date of September 30, 2011, it purports to apply retroactively.

Specifically, the current version of R.C. 2929.20 provides as follows:

      (A) As used in this section:

      (1)(a) Except as provided in division (A)(1)(b) of this section,

      “eligible offender” means any person who, on or after April 7,

      2009, is serving a stated prison term that includes one or more

      nonmandatory prison terms.

The current statute further provides in section (C)(3) as follows:

      If the aggregated nonmandatory prison term or terms is five

      years, the eligible offender may file the motion not earlier than

      four years after the eligible offender is delivered to a state

      correctional institution or, if the prison term includes a

      mandatory prison term or terms, not earlier than four years
Meigs App. No. 11CA19                                                          12


      after the expiration of all mandatory prison terms. (Emphasis

      added).

We recognize that the trial court could not have applied the current version

of the judicial release statute, which was not even effective at the time

Appellant was sentenced. However, even characterizing Appellant’s

sentences as stipulated in the plea agreement, as five years mandatory and

five years nonmandatory, Appellant would not have been eligible for judicial

release for nine years, which is four years longer than what was represented

to him during his plea negotiations.

      {¶14} In State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871,

914 N.E.2d 429 (4th Dist. 2009), ¶ 16, we concluded that we could “not

allow a plea agreement to stand when it was obtained on the basis of a

misrepresentation to the accused that he would be released from prison

earlier than what the law permits.” In reaching this conclusion, we

determined that such a misunderstanding could not “form the basis of a valid

plea agreement.” Id. at ¶ 17. As a result, we reversed Johnson’s conviction

and sentence, vacated the plea agreement and remanded the matter. Id.

      {¶15} This Court was faced with a similar fact pattern in State v.

Persons, 4th Dist. No. 02CA6, 2003-Ohio-4213, (Aug. 1, 2003). Much like

the facts sub judice, Persons was incorrectly advised as to his eligibility for
Meigs App. No. 11CA19                                                             13


judicial release by his counsel, the State and the trial court. Id. at ¶ 10. In

that case, we noted as follows:

      When an erroneous understanding of the applicable law induces

      a defendant’s guilty plea, the plea generally is not entered

      knowingly and intelligently. See State v. Engle (1996), 74 Ohio

      St.3d 525, 527-28, 660 N.E.2d 450; State v. Cook, Putnam App.

      No. 12-01-15, 2002-Ohio-2846; State v. Bush, Union App. No.

      14-2000-44, 2002-Ohio-6146. Id. at ¶ 12.

In Persons, we ultimately concluded that “[b]ecause appellant was

misinformed as to a material term of the plea agreement,” he “did not enter

his guilty pleas knowingly or intelligently,” Id. at ¶ 16. As a result, we held

Person’s guilty pleas were void. Id.

      {¶16} We conclude that the facts sub judice require the same result as

Johnson and Persons. All parties involved herein were misinformed as to

Appellant’s eligibility for judicial release, which hardly constitutes

substantial compliance with Crim.R. 11. Further, we conclude that

Appellant suffered prejudice as a result when he was induced to enter into

pleas of guilt on two felony charges with the understanding that 1) only five

years of his combined sentences were mandatory; 2) he was an eligible

offender for judicial release; and 3) he would be eligible to apply for judicial
Meigs App. No. 11CA19                                                           14


release after serving five years of his ten year sentence. Clearly this was not

an accurate understanding on Appellant’s part.

      {¶17} In light of the foregoing, we cannot conclude that Appellant’s

pleas were entered into knowingly or intelligently and as such, Appellant’s

guilty pleas are void. Accordingly, Appellant’s second assignment of error

is sustained, the decision of the trial court is reversed, Appellant’s guilty

pleas are vacated, and this matter is remanded to the trial court for further

proceedings.

                        ASSIGNMENT OF ERROR I

      {¶18} In his first assignment of error, Appellant contends that the trial

court imposed sentences that are both contrary to law and not authorized by

law when it ordered that his sentences for violation of R.C. 2925.03 were

partially mandatory, and he would be eligible for judicial release after

serving the mandatory portion of those sentences. In light of our disposition

of Appellant’s second assignment of error, which reversed the decision of

the trial court and vacated Appellant’s guilty pleas, this assignment of error

has been rendered moot. As such, we decline to address it. See App.R.

12(A)(1)(c).

                           JUDGMENT VACATED AND REMANDED.
Meigs App. No. 11CA19                                                          15


                           JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE VACATED AND
REMANDED and that the Appellant recover of Appellee costs herein taxed.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Meigs County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Harsha, J. and Kline, J.: Concur in Judgment and Opinion.

                          For the Court,

                          BY: _________________________
                              Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
