[Cite as State v. Austin, 2019-Ohio-1983.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 105981
                 v.                                :

JAMES AUSTIN,                                      :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 23, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-16-608502-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and John D.R. Kirkland, Assistant Prosecuting
                 Attorney, for appellee.

                 John P. Parker, for appellant.


EILEEN T. GALLGHER, P.J.:

                   Defendant-appellant, James Austin, appeals from his convictions and

sentence following a guilty plea. He raises the following assignment of error for

review:
      The plea bargain must be vacated or specifically enforced because the
      appellant was promised an eight year sentence, which the court
      agreed to enter, and the court instead of honoring that agreement
      imposed eight years plus five years postrelease control. Appellant’s
      guilty pleas were thus not knowingly, voluntarily, and intelligently
      entered and Crim.R. 11 was violated as well as the Fifth, Sixth, and
      Fourteenth Amendments of the federal Constitution.

               After careful review of the record and relevant case law, we affirm

Austin’s convictions and sentence.

                      I. Procedural and Factual History

               In August 2016, Austin was named in a 23-count indictment,

charging him with three counts of aggravated burglary, three counts of kidnapping,

three counts of aggravated robbery, two counts of intimidation of a crime victim,

four counts of having weapons while under disability, and single counts of grand

theft, improper handling of a firearm in a motor vehicle, carrying a concealed

weapon, and receiving stolen property.

               In June 2017, the matter proceeded to a jury trial. In the midst of

trial, however, defense counsel informed the trial court that Austin wished to accept

a plea offer that was discussed with the state prior to trial. At that time, the state

advised the court that pursuant to a plea agreement, Austin would plead guilty to an

amended indictment and accept an agreed-upon sentence of eight years in prison.

               The trial court then proceeded with a Crim.R. 11 colloquy to ensure

Austin understood the constitutional and nonconstitutional rights he would be

waiving by pleading guilty. Relevant to this appeal, the trial court expressly advised

Austin of his postrelease control obligations, stating:
      TRIAL COURT: Do you also know for the felony of the first degree,
      those three F-1s, you shall be subject to five years postrelease control.
      That’s a parole period after incarceration. If you violated the terms of
      postrelease control you may look at additional time of up to half of
      your original sentence and/or a charge of felony escape if you are
      violated by the parole authority or the Department of Correction. * * *
      Do you understand?

      AUSTIN: Yes.

               The trial court then asked Austin whether any threats or promises had

been made to him in exchange for his change of plea. When Austin responded that

he was promised “eight years,” the trial court explained that while the court was not

required to do so, it would “accept the agreed mandatory eight years aggregate

sentence” as a condition of the plea.

               Following the court’s Crim.R. 11 advisements, Austin retracted his

former plea of not guilty and entered a plea of guilty to aggravated burglary, a felony

of the first degree, with a three-year firearm specification (amended Count 1);

aggravated burglary, a felony of the first degree, with a one-year firearm

specification and notice of prior conviction specification (amended Count 5);

kidnapping, a felony of the first degree (amended Count 6); two counts of

intimidation of a crime victim or witness, a felony of the third degree (Counts 9 and

16); having weapons while under disability, a felony of the third degree (Count 10);

and carrying a concealed weapon, a felony of the fourth degree, with forfeiture

specifications (Count 22). The remaining counts were nolled.

               Upon accepting Austin’s guilty pleas, the trial court proceeded

directly with sentencing and imposed the aggregate eight-year prison term. In
addition, the court imposed five years of mandatory postrelease control on Austin’s

first-degree felony offenses, and discretionary postrelease control for a period of up

to three years on his remaining counts.

              Austin now appeals.

                              II. Law and Analysis

              In his sole assignment of error, Austin argues his plea agreement with

the state must be vacated because his guilty plea was not knowingly, voluntarily, and

intelligently made. Austin contends that the trial court failed to advise him that, in

addition to the agreed-upon sentence of eight years in prison, he was subject to a

mandatory period of postrelease control.

              In considering whether a plea was entered knowingly, intelligently,

and voluntarily, “an appellate court examines the totality of the circumstances

through a de novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No.

99950, 2014-Ohio-606, ¶ 7.

              Crim.R. 11(C) provides that a trial court must inform a defendant of

certain constitutional and nonconstitutional rights before accepting a felony plea of

guilty or no contest. The purpose of Crim.R. 11(C) is to convey relevant information

to the defendant so that he or she can make a voluntary and intelligent decision

regarding whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480,

423 N.E.2d 115 (1981).

              Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case,

the trial court must conduct an oral dialogue with the defendant to ensure (1) that
the plea is voluntary, with the understanding of the nature of the charges and the

maximum penalty involved and, if applicable, that the defendant is not eligible for

community control sanctions; (2) that the defendant understands the effect of his or

her plea; and (3) that the defendant understands the constitutional rights he or she

waives by pleading guilty, including the rights to jury trial, to confront witnesses

against him, 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. Crim.R. 11(C)(2)(a)-(c); see, e.g., State v. Hussing, 8th Dist. Cuyahoga

No. 97972, 2012-Ohio-4938, ¶ 18.

               The trial court must strictly comply with those provisions of Crim.R.

11(C) that relate to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus; Ballard at paragraph one of the

syllabus. The constitutional rights include the rights to a jury trial, to confront

witnesses, to have compulsory process to obtain 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. Crim.R. 11(C)(2)(c); State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-

Ohio-4907, ¶ 21. When the trial court fails to explain the constitutional rights set

forth in Crim.R. 11(C)(2)(c), it is presumed the plea was entered involuntarily and is

therefore invalid. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 31.
              As to the nonconstitutional rights, substantial compliance is

sufficient. Id.; State v. Hedenberg, 8th Dist. Cuyahoga No. 102112, 2015-Ohio-4673,

¶ 12; Veney at ¶ 14. “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). Furthermore, a trial court’s failure to properly advise a defendant of his

nonconstitutional rights will not invalidate a plea unless the defendant

demonstrates prejudice. Id. “The test for prejudice is whether the plea would have

otherwise been made.” Id.

              The nonconstitutional rights listed in Crim.R. 11 include the

defendant’s right to be informed of the “maximum penalty involved.” State v. Tutt,

2015-Ohio-5145, 54 N.E.3d 619, ¶ 19 (8th Dist.). Postrelease control constitutes a

portion of the maximum penalty involved in an offense for which a prison term will

be imposed. State v. Griffin, 8th Dist. Cuyahoga No. 83724, 2004-Ohio-4344, ¶ 13;

State v. Jones, 8th Dist. Cuyahoga No. 77657, 2001 Ohio App. LEXIS 2330 (May 24,

2001). Thus, to substantially comply with Crim.R. 11(C)(2)(a), this court has found

that the trial court must advise a defendant of any mandatory postrelease control

period at the time of the defendant’s plea. State v. Bell, 8th Dist. Cuyahoga No.

96446, 2011-Ohio-5667, ¶ 10, citing State v. Conrad, 8th Dist. Cuyahoga No. 88934,

2007-Ohio-5717. “‘Without an adequate explanation by the trial court of postrelease

control, a defendant cannot fully understand the consequences of his plea as

required by Criminal Rule 11(C).’” Id., quoting Griffin at ¶ 13.
              In this case, Austin argues the trial court did not comply with the

requirements of Crim.R. 11(C) because it failed “to inform [him] that postrelease

control was mandatory.” Austin therefore contends his guilty pleas were not

knowingly, voluntarily, and intelligently entered. Austin asserts that, had the trial

court advised him that postrelease control was a condition of his plea agreement,

“he would not have accepted the plea” and would “have continued with his jury trial

which was nearly completed.”

              In support of his argument, Austin relies on the Ohio Supreme

Court’s decision in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, and this court’s decision in State v. Yarochovitch, 2017-Ohio-4293, 92 N.E.3d

304 (8th Dist.).

              In Sarkozy, the defendant argued “that because he was not advised of

postrelease control before he entered his plea, the trial court did not determine that

he was entering his guilty plea voluntarily, with an understanding of the nature of

the charges and of the maximum penalty involved, as required by Crim.R. 11.” Id.

at ¶ 12. Upon review, the Ohio Supreme Court determined that the defendant could

not have subjectively understood that postrelease control was part of his sentence

when the trial court failed to advise him of postrelease control and its ramifications

during the plea colloquy. Id. at ¶ 25. Thus, the court vacated the defendant’s plea,

stating:

      [I]f 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.”

Id.

               Similarly, the appellant in Yarochovitch argued “that the complete

failure of the trial court to advise him of postrelease control at the plea hearing

renders his pleas invalid.” Yarochovitch at ¶ 5. This court agreed, stating:

       The requirements set forth in Crim.R. 11 are a mandatory duty the trial
       court must fulfill before accepting a guilty plea. It is incumbent on the
       trial court to set forth the maximum penalties a defendant faces as a
       part of ensuring that a guilty plea is knowingly, intelligently, and
       voluntarily made. The court’s responsibility is not fulfilled where the
       court fails to mention the imposition of postrelease control. Where a
       court completely fails to mention any period of applicable mandatory
       postrelease control during the plea colloquy, a prejudice analysis is
       not implicated. A complete failure results in an inability for the court
       to fulfill its obligations under Crim.R. 11.

Id. at ¶ 13.
               After careful review, we find Sarkozy and Yarochovitch to be

distinguishable from the circumstances presented in this case. As stated, the trial

courts in Sarkozy and Yarochovitch both completely failed to mention postrelease

control during the Crim.R. 11 colloquy. Sarkozy at ¶ 22; Yarochovitch at ¶ 9. Thus,

the trial courts in those cases failed to substantially comply with their obligation to

explain the maximum penalties the defendants could receive as a result of their

guilty pleas, and the defendants’ guilty pleas had to be vacated.

               In contrast, the trial court in this case specifically advised Austin that

he “shall be subject to five years postrelease control” on his first-degree felony

offenses. See Lakewood v. Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987)
(“[t]he word ‘shall’ has been consistently interpreted to make mandatory the

provision in which it is contained.”). The court further advised Austin of the

consequences for violating the terms of his postrelease control. In response, Austin

verbally confirmed that he understood the court’s postrelease-control advisement.

(Tr. 531-532.)

                 Viewing the Crim.R. 11 colloquy in its entirety, it is clear Austin

subjectively understood that a mandatory five-year period of postrelease control

would necessarily be part of his sentence. While Austin noted during the plea

hearing that he was promised an eight-year sentence, no objection was raised

following the postrelease-control advisement and Austin did not seek to withdraw

his plea once postrelease control was imposed at sentencing.            Under these

circumstances, we find the trial court, at the very least, substantially complied with

the nonconstitutional requirements of Crim.R. 11(C)(2)(a).      Accordingly, we find

Austin’s guilty pleas were knowingly, intelligently, and voluntarily made.

                 In addition, we find no merit to Austin’s vague assertion that the

imposition of postrelease control breached the agreed upon terms of his plea

agreement with the state. We recognize that “[a] plea agreement is a contract

between the state and a criminal defendant and is subject to contract-law

principles.” State v. Grove, 8th Dist. Cuyahoga No. 103042, 2016-Ohio-2721, ¶ 36,

citing State v. Butts, 112 Ohio App.3d 683, 686, 679 N.E.2d 1170 (8th Dist.1996);

Baker v. United States, 781 F.2d 85, 90 (6th Cir.1986). As this court has explained:
      “When a plea rests in any significant degree on a promise or
      agreement of the prosecutor, so that it can be said to be part of the
      inducement or consideration, such promise must be fulfilled.”
      Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427
      (1971). “When an allegation is made that a plea agreement has been
      broken, the defendant must merely show that the agreement was not
      fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d 687 (6th
      Dist.1988). A prosecutor’s failure to comply with the terms of the plea
      agreement may, in some circumstances, render a defendant’s plea
      involuntary and undermine the constitutionality of a conviction based
      upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52
      L.Ed.2d 136 (1977).

State v. Parham, 8th Dist. Cuyahoga No. 105983, 2018-Ohio-1631, ¶ 24. In order

to determine whether a plea agreement has been breached, courts must examine

what the parties reasonably understood at the time the defendant entered his guilty

plea. State v. Latimore, 8th Dist. Cuyahoga No. 92490, 2010-Ohio-1052, ¶ 7.

              In this case, we find no language in the transcript to support Austin’s

position that the trial court’s imposition of postrelease control breached a term of

his plea agreement with the state. Here, the state carefully outlined the terms of the

agreement and indicated that Austin would be pleading to amended charges in

exchange for an agreed-upon sentence of eight years in prison.            The state’s

description of the plea agreement contained no explicit promises that postrelease

control would not be imposed. See Groves at ¶ 36 (“The terms of a plea agreement

must therefore be explicit.”). Moreover, Austin has not presented any persuasive

arguments on appeal to suggest the state had the authority to contractually modify

the court’s imposition of the statutorily mandated period of postrelease control. See

State v. Lewis, 7th Dist. Columbiana No. 09CO9, 2008-Ohio-6373, ¶ 15. See also
R.C. 2967.28 and 2929.14(D). Under these circumstances, we find nothing in the

record that can be reasonably construed as creating a contractual obligation that

prevented the trial court from imposing postrelease control.

              Austin’s sole assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
