[Cite as State v. Reffitt, 2018-Ohio-4364.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. John W Wise, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. CT2018-0017
SHAWN E. REFFITT                                :
                                                :
                      Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Muskingum
                                                    County Court of Common Pleas, Case No.
                                                    CR2018-0012



JUDGMENT:                                           Reversed and Remanded



DATE OF JUDGMENT ENTRY:                             October 25, 2018


APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

D. MICHAEL HADDOX               JAMES ANZELMO
PROSECUTING ATTORNEY            446 Howland Drive
BY: GERALD ANDERSON             Gahanna, OH 43230
ASSISTANT PROSECUTING ATTORNEY
27 North Fifth St. P.O. Box 189
Zanesville, OH 43702-7123
[Cite as State v. Reffitt, 2018-Ohio-4364.]


Gwin, J.,

        {¶1}     Defendant-appellant Shawn Reffitt [“Reffitt”] appeals the entry of his

negotiated guilty plea in the Muskingum County Court of Common Pleas.

                                              Facts and Procedural History

        {¶2}     Reffitt was indicted for Possession of Drugs a fifth degree felony in violation

of R.C. 2925.11. Reffitt was on post-release control for a burglary offense at the time.

The term of post-release control started in April 2017, and it was a three-year term. On

February 26, 2018, Reffitt entered a guilty plea on the drug possession charge. The

prosecution and defense informed the court that Reffitt agreed to plead guilty to the drug

charge in exchange for a jointly recommended sentence of six months in prison. In

addition, despite Reffitt committing the drug offense while on post-release control, the

prosecution requested that the court not sanction Reffitt for violating post-release control.

        {¶3}     The court noted that it did not have to follow the jointly recommended

sentence, and Reffitt indicated that he understood this point. The court also stated that,

after Reffitt serves the sentence for the drug charge, he could be placed on post-release

control. The court informed Reffitt that, if he committed an offense while on post-release

control, "additional" prison time for the post-release control violation "could be added to"

the sentence for the newly committed offense.

        {¶4}     Thereafter, the court accepted Reffitt's guilty plea. The court sentenced

Reffitt to six months in prison, pursuant to the parties' joint recommendation. The court

terminated Reffitt's post-release control, and it sentenced Reffitt to prison for the balance

of the term of post-release control. The court ordered Reffitt to serve the sentence for the

post-release control violation consecutive to the sentence for the drug offense in
Muskingum County, Case No. CT2018-0017                                                         3


accordance with R.C. 2929.141(A) (1). The trial court also ordered Reffitt to pay court

costs.

                                        Assignments of Error

         {¶5}   Reffitt raises two Assignments of Error,

         {¶6}   “I.   SHAWN REFFITT DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY PLEAD GUILTY TO DRUG POSSESSION, IN VIOLATION OF HIS DUE

PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE

OHIO CONSTITUTION.

         {¶7}   “II. SHAWN REFFITT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO.”

                                                   I.

         {¶8}   In his First Assignment of Error, Reffitt maintains that his plea was not

knowingly, voluntarily or intelligently entered. Reffitt argues the trial court did not inform

him prior to accepting his guilty plea that pursuant to R.C. 2929.141(A)(1) a sentence for

a post-release control violation must be served consecutively to the sentence for the drug

abuse charge.

         STANDARD OF APPELLATE REVIEW

         {¶9}   The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete
Muskingum County, Case No. CT2018-0017                                                    4


admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

       {¶10} 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. 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, the Ohio Supreme Court noted the following test for determining substantial

compliance with Crim.R. 11:

              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 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 at ¶ 19-20.

103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.
Muskingum County, Case No. CT2018-0017                                                  5


      ISSUE FOR APPEAL

      Whether the trial court was required to inform Reffitt before accepting his guilty

plea to an offense he committed while on post release control that pursuant to R.C.

2929.141(A)(1) a sentence for a post release control violation must be served

consecutively to the sentence for the newly committed offense.

      {¶11} R.C. 2929.141(A)(1) mandates that the sentence for violating post-release

control is required to be served consecutive to any sentence imposed for the new felony.

When an offender pleads guilty to a new felony offense while on post-release control,

R.C. 2929.141 provides,

             (A) Upon the conviction of or plea of guilty to a felony by a person on

      post-release control at the time of the commission of the felony, the court

      may terminate the term of post-release control, and the court may do either

      of the following regardless of whether the sentencing court or another court

      of this state imposed the original prison term for which the person is on post-

      release control:

             (1) In addition to any prison term for the new felony, impose a prison

      term for the post-release control violation. The maximum prison term for

      the violation shall be the greater of twelve months or the period of post-

      release control for the earlier felony minus any time the person has spent

      under post-release control for the earlier felony. In all cases, any prison

      term imposed for the violation shall be reduced by any prison term that is

      administratively imposed by the parole board as a post-release control

      sanction.   A prison term imposed for the violation shall be served
Muskingum County, Case No. CT2018-0017                                                 6


      consecutively to any prison term imposed for the new felony.             The

      imposition of a prison term for the post-release control violation shall

      terminate the period of post-release control for the earlier felony.

             (2) Impose a sanction under sections 2929.15 to 2929.18 of the

      Revised Code for the violation that shall be served concurrently or

      consecutively, as specified by the court, with any community control

      sanctions for the new felony.

      {¶12} In State v. Gilbert, the court observed,

             Under R.C. 2929.141(A)(1), a trial court is authorized to terminate

      post-release control and impose a sentence representing the time

      remaining on his term of post-release control. State v. Barron, 2d Dist.

      Montgomery No. 25059, 2012–Ohio–5787, ¶ 16. Only the trial court itself

      may make the decision to sentence for a post-release control violation.

      State v. Branham, 2d Dist. Clark No. 2013–CA–49, 2014–Ohio–5067. Once

      the court decides to impose a sentence for such a violation, it is bound by

      R.C. 2929.141 when determining the time to be served. Id. The court is

      not required by the statute to make any findings prior to terminating post-

      release control. Barron at ¶ 16. The court also is not required to explain or

      justify why it has elected to impose a prison sentence for the violation. Id.

2nd Dist. Clark No. 2015–CA–117, 2016–Ohio–5539, ¶ 9–10.                 Accord, State v.

McAndrew, 5th Dist. Ashland No. 17-COA-015, 2017-Ohio-8993, ¶9.

      1. Notification not required at initial sentencing hearing.
Muskingum County, Case No. CT2018-0017                                                         7


       {¶13} The Supreme Court has recently resolved a conflict on the parameters of

the notifications required at the initial sentencing hearing. In State v. Gordon, Gordon,

was indicted on two counts of rape in violation of R.C. 2907.02(A)(1)(b) (victims less than

13 years of age), with a factual allegation that Gordon purposely compelled the victims to

submit by force or threat of force. Gordon was also charged with three counts of gross

sexual imposition in violation of R.C. 2907.05(A)(4) (victims less than 13 years of age).

A jury found him guilty on all counts. At sentencing, the trial court imposed an aggregate

sentence of 55 years to life in prison. The trial court imposed the mandatory term of post-

release control at the sentencing hearing and provided Gordon with notification of his

post-release control term in the sentencing entry. The entry also advised Gordon that if

he were convicted of a “new felony offense while on post-release control, the sentencing

court [could] impose a prison term for the new felony offense as well as an additional

consecutive prison term for the post-release control violation of twelve months or

whatever time remains on [his] post-release control period, whichever is greater.”

       {¶14} Gordon was accepted as a certified conflict between judgments of the Ninth

District and Fifth District Courts of Appeals. The Ninth District certified the issue in conflict

as follows:

              “Whether      the    post-release     control    notification    of   R.C.

       2929.19(B)(2)(e) must include notification of the penalty provisions in R.C.

       2929.141(A)(1)–(2), specifically, whether a trial court must inform an

       offender at the time of sentencing that the commission of a felony during a

       period of post-release control permits a trial court to impose a new prison
Muskingum County, Case No. CT2018-0017                                                    8


      term for the violation to be served consecutively with any prison term for the

      new felony.”

150 Ohio St.3d 1441, 2017–Ohio–7843, 82 N.E.3d 1175, quoting the court of appeals’

journal entry. Gordon, 2018-Ohio-1975, ¶1. The Ohio Supreme Court held in Gordon,

             R.C. 2929.19(B)(2)(e) sets forth one of the notification duties that trial

      courts have at sentencing hearings. R.C. 2929.19(B)(2)(e) unambiguously

      requires that the court notify the offender that if the offender violates post-

      release control, the parole board may impose a prison term of up to one-

      half of the stated prison term originally imposed upon the offender. R.C.

      2929.19(B)(2)(e) does not impose any other notification requirements on

      trial courts.

             Applying the plain language of the unambiguous statute, R.C.

      2929.19(B)(2)(e) does not require that the trial court inform the offender of

      the penalty provisions contained in R.C. 2929.141(A)(1) and (2) (provisions

      that apply only when an offender is convicted of committing a new felony

      while serving a period of post-release control).

State v. Gordon, 2018-Ohio-1975, ––– N.E. 3d ––––, ¶ 11-12. The question in the case

at bar is not whether Reffitt was advised when he entered his plea to the Burglary charge,

but rather, whether the trial court was required to advise him before accepting his guilty

plea to the Drug Possession charge he committed while he was on post-release control

for the Burglary charge.

      2. Notification should be given when sentenced for new felony conviction

while on post-release control.
Muskingum County, Case No. CT2018-0017                                                     9

       {¶15} In support, Reffitt relies on State v. Branham, 2d Dist. Clark No. 2013 CA

49, 2014–Ohio–5067. In Branham, the defendant signed a plea form advising him that

his guilty plea could result in revocation of his post-release control and that any new

sentence imposed for the post-release control violation could be imposed consecutively.

At the defendant’s plea hearing in Branham, the trial court simply told him that he could

be sentenced for the post-release control violation. Branham at ¶11–14. On appeal, the

court vacated the plea and reversed, holding that the trial court was required to inform the

defendant that if it revoked post-release control, a consecutive sentence for the post

release control violation was mandatory under R.C. 2929.141(A)(1).

       {¶16} The Second District again addressed the notification question in State v.

Landgraf, 2d Dist. Clark No. 2014 CA 12, 2014–Ohio–5448. In Landgraf, “the trial court

did not inquire at the plea hearing whether [the defendant] was on post-release control at

the time of his offense, and the trial court did not address any of the consequences that

[the defendant] faced under R.C. 2929.141 if [he] were to plead guilty to a new felony.”

Landgraf at ¶ 22. On appeal, the court held that Crim.R. 11 obligated the trial court to

advise the defendant that it could terminate his post-release control, that it could impose

a prison sentence for the post-release control violation, and that any prison sentence it

decided to impose for the post-release control violation would be required to be served

consecutively.   Id. at ¶ 23.     Although the plea form in Landgraf addressed the

consequences of the defendant pleading guilty to a felony committed while on post

release control, the court found the form insufficient because it stated that any prison term

imposed for the post-release control violation could be imposed consecutively, not that it
Muskingum County, Case No. CT2018-0017                                                      10

was required to be imposed consecutively. Id. at ¶ 24. See, State v. Bishop, 2nd Dist.

No. 27496, 2017-Ohio-8332, ¶6.

        {¶17} In the case at bar, the plea form signed by Reffitt indicates that “if I am now

on felony probation, parole, under a community control sanction, or under post-release

control from prison, this plea may result in revocation proceedings and any new sentence

could be imposed consecutively.” (Emphasis added). During the plea colloquy, the trial

judge told Reffitt,

               Do you understand if you commit a new felony while on post-release

        control, in addition to any sentence you receive for that new felony,

        additional time could be added to that sentence in the form of time you have

        left on post-release control, or one year, whichever is greater?

T. at 6 (emphasis added).

        {¶18} In the case at bar, the trial court should have informed Reffitt that if a prison

term was imposed on the Drug Possession charge and the court elected to revoke his

post-release control on the Burglary charge, the time must be served consecutively. R.C.

2929.141(A)(1) does not give the trial court any discretion.

        {¶19} We find that in fairness when a defendant is facing a consecutive sentence

he or she should be explicitly made aware of that consequence. Telling a defendant that

by entering a plea to the new offense the trial court will impose an additional prison

sentence for the post-release control violation consecutive to the new offense assures all

parties that the defendant is knowingly, intelligently and voluntarily entering his or her

plea.

        {¶20} Reffitt’s First Assignment of Error is sustained.
Muskingum County, Case No. CT2018-0017                                                    11


                                                 II.

       {¶21} In his Second Assignment of Error, Reffitt argues that he was denied

effective assistance of counsel because his attorney did not file a motion to waive the

imposition of court costs.

       {¶22} In light of our disposition of Reffitt’s First Assignment of Error, we find

Reffitt’s Second Assignment of Error to be moot. However, we would note that the

General Assembly amended R.C. 2947.23 by adding the following provision, “[t]he court

retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution

* * * at the time of sentencing or at any time thereafter.” In State v. Beasley, Oh. Sup. Ct.

Case No. 2014-0313, 2018-Ohio-493, the Ohio Supreme Court noted that in light of this

new provision, a case does not need to be remanded to the trial court in order for the

defendant to obtain an order waiving, suspending, or modifying costs. Id. at ¶ 264 –265.
Muskingum County, Case No. CT2018-0017                                            12


       {¶23} The judgment of the Muskingum County Court of Common Pleas is

reversed, the plea is vacated, and this matter is remanded for proceedings consistent

with the law and this opinion.

By Gwin, J.,

Wise, P.J., and

Delaney, J., concur
