[Cite as State v. Howell, 2019-Ohio-1806.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  MONROE COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                       SHELLY L. HOWELL,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MO 0018


                                    Criminal Appeal from the
                         Court of Common Pleas of Monroe County, Ohio
                                       Case No. 2017-047

                                        BEFORE:
                 Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. James L. Peters, Monroe County Prosecutor, 101 North Main Street, Room 15,
 P.O. Box 430, Woodsfield, Ohio 43793-0430, for Plaintiff-Appellee

 Atty. Desirae Dipiero, 8256 E. Market Street, Suite 111, Warren, Ohio 44484, for
 Defendant-Appellant.

                                             Dated: May 7, 2019


 WAITE, P.J.
                                                                                     –2–


       {¶1}   Appellant Shelly L. Howell appeals a September 28, 2017 Monroe County

Common Pleas Court judgment entry convicting her of one count of trafficking in heroin.

Appellant argues that the trial court failed to adequately advise her of her term of

postrelease control and the penalties she might face should she violate postrelease

control. Based on this, she argues that she did not enter her plea knowingly, voluntarily,

and intelligently. For the reasons provided, Appellant’s argument is without merit and the

judgment of the trial court is affirmed.

                              Factual and Procedural History

       {¶2}   On August 3, 2016, Appellant and a codefendant were arrested after the

Monroe County Sheriff’s Department conducted a controlled buy of narcotics.           On

February 24, 2017, Appellant was indicted on one count of trafficking in heroin, a felony

of the fourth degree in violation of R.C. 2925.03. Appellant pleaded guilty to the sole

count as charged. The state agreed to recommend probation conditioned on successful

completion of the residential drug and alcohol treatment program at the Eastern Ohio

Correctional Center (“EOCC”).

       {¶3}   On September 28, 2017, the trial court sentenced Appellant to three years

of community control and required completion of the EOCC treatment program. Relevant

to this appeal, the trial court imposed a three-year discretionary term of postrelease

control. This timely appeal followed.

                                ASSIGNMENT OF ERROR


       THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE APPELLANT

       OF THE TERM OF HER OPTIONAL POSTRELEASE CONTROL AND THE

       PENALTIES FOR A VIOLATION THEROF [SIC].                   AS A RESULT,



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       APPELLANT WAS NOT ADVISED OF THE MAXIMUM PENALTY AND

       HER     PLEA     WAS      NOT     KNOWINGLY,         VOLUNTARILY,        AND

       INTELLIGENTLY MADE.


       {¶4}   Appellant argues that the trial court failed to adequately advise her of the

applicable postrelease control term. Because the court failed to specify the number of

years she would be subject to postrelease control and of the consequences for a violation,

she contends that she did not enter her plea knowingly, intelligently, and voluntarily.

       {¶5}   In response, the state argues that the court did not sentence Appellant to a

prison term, and so was not required to advise her of postrelease control. Regardless,

the trial court advised Appellant at the plea hearing of her postrelease control term and

the consequences she might face if she violated postrelease control.

       {¶6}   Before a trial court may accept a defendant’s guilty plea, the court must

inform the defendant of five constitutional rights. State v. Rowbotham, 173 Ohio App.3d

642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 7 (7th Dist.), citing State v. Ballard, 66 Ohio

St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus. The constitutional

rights are outlined within Crim.R. 11(C)(2)(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.




Case No. 17 MO 0018
                                                                                          –4–


       {¶7}   The trial court must also notify the defendant of her nonconstitutional rights.

The court’s dialogue regarding nonconstitutional rights is reviewed for substantial

compliance. Rothbotham, supra, at ¶ 18. The nonconstitutional rights are described

within Crim.R. 11(C)(2):


       (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.


Advisement as to postrelease control falls within a defendant’s nonconstitutional rights.

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26.

       {¶8}   “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].” Sarkozy, supra, at ¶ 20. If the trial court completely

neglects to advise a defendant of a nonconstitutional right, the plea is vacated without a

prejudice analysis. State v. Cruz-Ramos, 2019-Ohio-779, -- N.E.3d -- (7th Dist.), citing

Sarkozy at ¶ 22, 25. However, if the trial court partially complies with the rule, the plea

will only be vacated if prejudice is shown. Id. citing State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. In order to establish prejudice, the defendant

must show that the plea would not have been otherwise entered. State v. Cologie, 7th



Case No. 17 MO 0018
                                                                                        –5–


Dist. Belmont No. 17 BE 0009, 2017-Ohio-9217, ¶ 11, citing State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15; State v. Nero, 56 Ohio St.3d 106, 108,

564 N.E.2d 474 (1990).

       {¶9}   At the plea hearing, the trial court stated:


       If you serve any prison time for this felony four charge to which you’re going

       to be pleading guilty, after your prison time is served, you may be put on

       Post Release Control at the time of your release.


       Post Release Control is when the Parole Board decides after a prison

       sentence that they want to supervise an individual, and they have terms and

       conditions, rules and regulations that they have to follow, and failure to

       abide by your Post Release Control could basically end up in additional

       prison sentence for you.


(7/10/17 Hrg. Tr., pp. 8-9.)

       {¶10} The trial court clearly raised the issue of postrelease control. While it

appears the trial court’s discussion of this matter falls short, we need not reach the issue

of whether the trial court’s advisement regarding postrelease control rose to the level of

substantial compliance with the Crim.R. 11 requirements because Appellant has not

alleged any claim of prejudice and a review of this record does not reveal any possible

prejudice. One factor regarding prejudice is the length of sentence. This record shows

Appellant would face a significantly harsher penalty if her plea is vacated. Based on the

terms of her plea agreement, she was sentenced to three years of probation conditioned

on successful drug and alcohol treatment. The possible penalty without the benefit of a



Case No. 17 MO 0018
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plea agreement is six to eighteen months of incarceration, a $5,000 fine, a possible

driver’s license suspension, and a three-year optional postrelease control term. Perhaps

in recognition of this, at no time in her appeal does Appellant even raise the issue of

prejudice. Without proving that she suffered prejudice, Appellant’s plea will not be

vacated.     Accordingly, Appellant’s sole assignment of error is without merit and is

overruled.

                                        Conclusion

       {¶11} Appellant argues that the trial court failed to adequately advise her of the

possible term of postrelease control for a violation. Appellant has not argued that she

suffered any prejudice for this alleged failure. Appellant’s arguments are without merit

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 17 MO 0018
[Cite as State v. Howell, 2019-Ohio-1806.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
