[Cite as State v. Fantauzzi, 2012-Ohio-1136.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO

        PLAINTIFF-APPELLEE,                               CASE NO. 7-11-16

        v.

ALEXIS FANTAUZZI                                          OPINION

        APPELLANT-DEFENDANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 11CR0043

                                      Judgment Affirmed

                            Date of Decision: March 19, 2012




APPEARANCES:

        William F. Hayes for Appellant

        John H. Hanna for Appellee
CASE NO. 7-11-16


SHAW, P.J.

       {¶1} Defendant-Appellant, Alexis Fantauzzi (“Fantauzzi”), appeals the

September 6, 2011 judgment of the Henry County Court of Common Pleas

sentencing him to three years of community control and ninety-eight days in the

Correctional Center Northwest Ohio with credit for ninety-eight days served upon

his plea of guilty to R.C. 2913.51, receiving stolen property, a felony of the fourth

degree.

       {¶2} On June 1, 2011, Fantauzzi was arrested on the charge of criminal

mischief. On June 28, 2011 Fantauzzi was indicted on the charge of receiving

stolen property in violation of R.C. 2913.51(A), a felony of the fourth degree as

the property was a motor vehicle.

       {¶3} On July 11, 2011, the day of the scheduled arraignment, Fantauzzi

entered a written negotiated plea whereby Fantauzzi would plead guilty to R.C.

2913.51, receiving stolen property, a felony of the fourth degree. In exchange the

State agreed to recommend a sentence of community control with local

incarceration. Under the terms of the deal, Fantauzzi would stay in the local jail

until sentencing which was set for September 6, 2011 and then he would be

released with credit for time served.




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       {¶4} After negotiations the court went through the required Criminal Rule

11 dialogue and accepted Fantauzzi’s guilty plea.        The court then ordered a

presentence investigation and set sentencing for September 6, 2011.

       {¶5} At sentencing on September 6, 2011 the court imposed a period of

community control of three years and ordered as a condition of the community

control that Fantauzzi serve 98 days in jail. He was then given credit for 98 days

served. On September 21, 2011, the court filed a judgment entry terminating

Fantauzzi’s community control due to the fact that he had moved out of state.

       {¶6} Fantauzzi filed this appeal and asserts one assignment of error for our

review.

                          ASSIGNMENT OF ERROR

       APPELLANT’S    PLEA   WAS  NOT   KNOWINGLY,
       INTELLIGENTLY     AND   VOLUNTARILY   MADE
       DEPRIVING APPELLANT OF HIS CONSTITUTIONAL
       RIGHT TO A TRIAL.

       {¶7} Fantauzzi alleges that the court failed to comply with Criminal Rule

11(C)(2)(a) during the plea colloquy by not informing him of the possibility of

post-release control. Because of this, Fantauzzi argues, his plea was not entered

knowingly, intelligently and voluntarily. Specifically, Fantauzzi claims that he

was not informed that if he was immediately sent to prison, that upon his release

he may be subject to a period of post-release control.



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CASE NO. 7-11-16


       {¶8} “Pursuant to Crim. R. 11(C)(2)(a), a trial court is required to inform an

offender of a number of nonconstitutional issues, including the maximum penalty

involved, before accepting a defendant’s guilty plea.” State v. Fleming, 6th Dist.

No OT-07-024, 2008-Ohio-3844, ¶ 10 (analyzing post-release control as one of

those issues) citing State v. Harrington, 2d Dist. No. 06-CA-29, 2007-Ohio-1335,

¶ 11. Nonconstitutional aspects of the plea colloquy are subject to review under a

standard of substantial compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-

Ohio-4415, ¶ 12 citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “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 (1990).

      {¶9} Failure to adequately inform a defendant of his nonconstitutional

rights at a plea hearing will not invalidate a plea unless the defendant thereby

suffered prejudice. Griggs at ¶ 12 citing Nero at 107. For Fantauzzi to establish

prejudice, he would have to demonstrate that his plea would not have been made

otherwise. Id.

      {¶10} In his Criminal Rule 11 dialogue Fantauzzi was informed that if he

violated community control and was sent to prison, he could be placed on post-

release control upon his release from prison. Nevertheless, he now argues that he

was not advised that if he were to be sent to prison immediately without


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CASE NO. 7-11-16


community control, that he might be subject to post-release control upon being

released from prison.

        {¶11} First, we observe that even if the plea dialogue was not in strict

compliance with Crim. R. 11, the trial court was in substantial compliance as

Fantauzzi was subjectively aware of the implications of his plea related to post-

release control. Fantuazzi was specifically informed that he could be subject to

post-release control if he was sent to prison. Fantauzzi signed a written plea

agreement alerting him to that fact. The pertinent portion of the written plea

agreement reads,

        [a]fter prison release, I may have up to (3) years of post-release
        control.1 The parole board could return me to prison for up to
        nine months for each violation of those conditions, for a total of
        50% of my stated term. If the violation is a new felony, I could
        receive a new prison term of the greater of one year or the time
        remaining on post release control.

(Doc. No. 7).

        {¶12} Fantauzzi was also informed at the plea hearing that if sent to prison,

he could be subject to post-release control.

        THE COURT: If in fact you were referred or sentenced to any
        prison term as a result of the violation you’re not entitled to
        good time if you’re serving a prison term as a violation of
        Community Control and after you’re released you could be
        placed upon post-release control for up to three years, that is a
        may. The Parole Authority could return you to prison for up to
        nine months if you violate the conditions of post-release control
1
 The sentence as typed in the written plea agreement has ‘may/will’ with ‘will’ scratched out and ‘3/5’
with ‘5’ scratched out so that it reads as written above.

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CASE NO. 7-11-16


       to a maximum of fifty percent of any additional prison time. If
       the violation would be a new felony, you could receive a new
       prison term of the greater of one year or the time remaining on
       the post-release control. Now that is kind of complicated but did
       you follow that.

       Mr. Fantauzzi: Yes.

(July 11, 2011 Tr. at 11-12). Furthermore, the plea dialogue covers the fact that

Fantauzzi read and claimed to have understood the written plea agreement and that

his attorney had gone over it with him. (July 11, 2011 Tr. at 9).

       {¶13} The Sixth District Court of Appeals found that a defendant was

sufficiently notified of non-mandatory post-release control where he had read and

signed a similar written plea agreement and the trial court had the defendant

acknowledge that he had read and signed the written plea agreement. Fleming,

supra at ¶¶ 9-24. Here the trial court went a step further than the court in Fleming

and addressed the possibility of post-release control in the plea dialogue with

Fantauzzi. In sum, Fantauzzi was aware of the possibility of being subject to post-

release control following any potential prison term prior to entering his plea.

       {¶14} Moreover, Fantauzzi concedes in his brief that post-release control is

not mandatory in his case. All of the cases that Fantauzzi cites in support of his

argument that his plea should be vacated stand for the principle that if Fantauzzi

was not advised at all of a mandatory term of post release control then his plea

should be vacated. See State v. Sarkozy, 117 Ohio St.3d 86 (2008) at syllabus;


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CASE NO. 7-11-16


State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, ¶ 10. That is simply not

the case here. Fantauzzi was clearly informed that he may be subject to post-

release control after any prison term and that any post-release control was not

mandatory.

       {¶15} Furthermore, Fantauzzi is unable to establish any prejudice.

Ultimately Fantauzzi was not sentenced to any period of post-release control.

Thus, the record is devoid of how any further notification regarding post-release

control would have altered Fantauzzi’s decision to plead guilty. Fantauzzi’s plea

was given in exchange for local incarceration and credit for time served—a

sentence that found him in a local jail for just over three months on a charge that

could have resulted in an 18 month prison sentence.         Though at sentencing

Fantauzzi tried to negotiate with the trial court to lessen the amount of community

control he would receive, he originally entered his plea knowing the implications

as evidenced by his written plea agreement and the plea dialogue at the hearing.

As it turns out, Fantauzzi only served 15 days of the three years of community

control before the court terminated the community control due to his relocation out

of state.

       {¶16} There is no indication that Fantauzzi would have made a different

decision had he been informed that if he was somehow sent to prison immediately

without community control he could eventually be subject to post-release control


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upon release from prison, especially in light of the fact that a prison sentence was

not imposed. Moreover, at this point, Fantauzzi has no possibility of going to

prison or being placed on post-release control as his community control has been

terminated.

       {¶17} For these reasons, Fantauzzi’s assignment of error is overruled and

the judgment is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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