[Cite as State v. Hendershot, 2017-Ohio-8112.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                         JUDGES:
STATE OF OHIO                                    :       Hon. W. Scott Gwin, P.J.
                                                 :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee      :       John W. Wise, J.
                                                 :
-vs-                                             :
                                                 :       Case No. CT2016-0061
HEATH HENDERSHOT                                 :
                                                 :
                    Defendant-Appellant          :       OPINION




CHARACTER OF PROCEEDING:                             Criminal appeal from the Muskingum
                                                     County Court of Common Pleas, Case No.
                                                     CR2016-0117

JUDGMENT:                                            Affirmed in part; Reversed and Remanded
                                                     in part


DATE OF JUDGMENT ENTRY:                              October 5, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

D. MICHAEL HADDOX                                    Heath A. Hendershot
Prosecuting Attorney                                 #A727-644
By: Gerald V. Anderson II                            Noble Correctional Institution
27 North Fifth St., Box 189                          15708 McConnelsville Road
Zanesville, OH 43702-0189                            Caldwell, OH 43724
Muskingum County, Case No. CT 2016-0061                                                   2

Gwin, P.J.

       {¶1} Appellant Heath Hendershot appeals the judgment entries of the

Muskingum County Court of Common Pleas. Appellee is the State of Ohio.

                                   Facts & Procedural History

       {¶2} This case deals with controlled buys involving a confidential informant

working with the Central Ohio Drug Enforcement Task Force. The confidential informant

made several controlled buys from appellant. During the last controlled buy, appellant

spotted the police cruisers there to arrest him, began driving erratically at a high rate of

speed, and rolled his vehicle. However, he was still able to drive the vehicle and then

fled the scene, lost control of his vehicle again, and sideswiped a tree on the side of the

road. Appellant exited the vehicle, left the vehicle in gear, and the vehicle stopped in the

yard of a residence. Appellant ran on foot through the woods, removed money and

narcotics from his pocket and threw them into a creek, and ran a short distance until he

was apprehended.

       {¶3} Appellant was indicted in January of 2016 with one count of trafficking drugs

(heroin), in violation of R.C. 2925.03(A)(1), a felony of the fifth degree; one count of

trafficking in drugs (methamphetamine), in violation of R.C. 2925.03(A)(1), a felony of the

fourth degree; two counts of trafficking in drugs (methamphetamine) in violation of R.C.

2925.03(A)(1), each a felony of the third degree, one with a forfeiture specification and

one with a school specification; one count of trafficking in drugs (methamphetamine), in

violation of R.C. 2925.03(A)(2), a felony of the third degree; one count of possession of

drugs (heroin), in violation of R.C. 2925.11(A), a felony of the third degree; one count of

tampering with evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree;
Muskingum County, Case No. CT 2016-0061                                                   3


and one count of failure to comply (risk of harm) in violation of R.C. 2921.331(B), a felony

of the third degree.

        {¶4} On June 1, 2016, appellant and his counsel signed a “plea of guilty” form,

withdrawing his former not guilty pleas and entering pleas of guilty to the eight offenses

listed in the indictment. Under “post release control,” the box was checked that provided

post-release control was optional for up to three years. On the plea form, there is a chart

entitled “maximum penalty,” above which it states, “I understand that the maximum

penalty for each offense is as follows.”     The chart separately lists each offense or

specification, maximum stated prison term, maximum fine, mandatory fine, license

suspension, if the prison term is mandatory consecutive, and if the prison term is

mandatory. Each of the eight counts appellant pled guilty to is listed separately on the

chart and, for each count, the license suspension is listed as, “6 mos. up to 5 years.”

        {¶5} The plea of guilty form also provided the parties agreed to a joint

recommendation that appellant be sentenced to an aggregate prison term of nine years,

and that the parties stipulated to the judicial findings necessary for the imposition of

consecutive sentences. Also on the form, appellant confirmed he understood by pleading

guilty he gives up: his right to a jury trial, where he could confront and have his attorney

question witnesses against him and where he could use the power of the court to call

witnesses to testify for him; and his right to have the prosecutor prove his guilt beyond a

reasonable doubt on every element of each charge.

        {¶6} Appellant also appeared at a plea hearing on June 1, 2016. The trial court

went through each charge and the possible penalties for each charge, excluding the

license suspensions. The trial court informed appellant it is mandatory upon his release
Muskingum County, Case No. CT 2016-0061                                                     4


from prison that the Adult Parole Authority place him on three years of post-release

control. The trial court specifically told appellant the plea form was inaccurate as it stated

post-release control was optional for up to three years; however, it was mandatory due to

the F-3 with the risk of harm.

         {¶7} The trial court inquired with regard to the plea form, “You understand what

I told you is what’s accurate? The plea form with – only in that regard, that small

circumstances of optional versus mandatory, the plea form is inaccurate with regard to

that. Do you understand that?” Appellant responded, “yes” and confirmed he wanted to

go forward with his pleas of guilty knowing post-release control was mandatory for three

years.

         {¶8} Appellant stated he: understood the nature of charges against him, the

possible defenses he has to the charges, was satisfied with the assistance of his attorney,

was not under the influence of alcohol or drugs, understood the joint recommendation of

sentence, stipulated to the judicial findings necessary for consecutive sentences, was not

promised anything else and was not threatened to plead guilty, understood he was giving

up constitutional rights, understood he was giving up his right to have a jury or bench trial,

understood he was giving up his right to confront and have his attorney cross-examine

witnesses, understood he was giving up the right to use the power of the court to

subpoena or compel witnesses to come in to court and testify on his behalf, understood

he was giving up his right not to take the witness stand, understood he was giving up his

right to require the State of Ohio to prove each and every element of each offense beyond

a reasonable doubt, and understood he limited his right to appeal by pleading guilty.
Muskingum County, Case No. CT 2016-0061                                                     5


        {¶9} Appellant pled guilty to each of the eight charges, as well as the

specifications. The trial court accepted his pleas of guilty on each count and each

specification. The trial court ordered a pre-sentence investigation.

        {¶10} The trial court issued a judgment entry on June 1, 2016. In the entry, the

court found appellant had his constitutional rights fully explained to him pursuant to

Criminal Rule 11. The trial court found appellant, in open court and having been advised

of all constitutional rights, made a knowing, intelligent, and voluntary waiver of those

rights; and that appellant understands the nature of the charges, the effect of a guilty plea,

as well as the maximum penalty which can be imposed for each offense to which he has

entered a plea of guilty. The court found appellant’s plea to be voluntary, accepted his

plea of guilty, and found appellant guilty of the eight counts listed. The court deferred

sentence and ordered a pre-sentence investigation.

        {¶11} The trial court held a sentencing hearing on August 1, 2016. Counsel for

appellant requested the trial court impose the joint sentencing recommendation of nine

years in prison. When the trial court asked appellant, “do you know of any reason why

the Court should not proceed to sentencing at this time,” appellant responded, “no, your

honor.” When asked if he had anything to say, appellant apologized for the acts he

committed, stated his drug use did not justify his unlawfulness, and detailed the programs

he sought to complete while in prison. Appellant stated he knows he is “part of the

problem putting drugs in this community and people,” but wants to be part of the solution

taking drugs out of the community.

        {¶12} The trial court stated it thoroughly reviewed the presentence investigation.

The trial court followed the jointly recommended sentence of an aggregate prison term of
Muskingum County, Case No. CT 2016-0061                                                       6


nine years. The trial court ordered appellant to pay court costs and ordered appellant to

forfeit $780 in currency. The trial court waived the mandatory fines due to appellant’s

indigent status.

        {¶13} The trial court informed appellant that, upon his release from prison, the

Adult Parole Authority had the option of placing him on post-release control for up to three

years. The trial court also reviewed the consequences for violating post-release control.

        {¶14} At the conclusion of the sentencing hearing, the trial court asked appellant

if he understood when he went over. Appellant responded, “Yes, your Honor.” When

asked if he had any questions about his sentence, appellant said, “No, your honor.”

        {¶15} The trial court issued a sentencing entry on August 3, 3016, finding

appellant had been afforded all of his rights pursuant to Criminal Rule 32. The trial court

listed the offenses appellant was convicted of and stated the parties stipulated to the

judicial findings necessary for the imposition of consecutive sentences. The trial court

sentenced appellant to: twelve months on Count 1; twelve months on Count 2; thirty-six

months on Count 3; thirty-six months on Count 4; thirty months on Count 5; twelve months

on Count 6; thirty months on Count 7, and thirty-six months on Count 8. The trial court

ordered Counts 1, 2, 5, 6, and 7 be served concurrently with each other; and Counts 3,

4, and 8 be served consecutively with each other, but concurrently with the sentence

imposed for Counts 1, 2, 5, 6, and 7, for an aggregate prison sentence of nine years.

        {¶16} The trial court stated it notified appellant that post-release control is optional

for up to three years, as well as notifying appellant the consequences for violating post-

release control.
Muskingum County, Case No. CT 2016-0061                                                     7


            {¶17} On December 29, 2016, this Court granted appellant’s motion for delayed

appeal and ordered the instant appeal shall proceed as if it were filed as a timely appeal

of right.

            {¶18} Appellant assigns the following as error:

            {¶19} “I.   APPELLANT WAS        DENIED          DUE   PROCESS   OF    LAW,   AS

GUARANTEED BY BOTH THE UNITED STATES AND OHIO CONSTITUTIONS,

BECAUSE HIS GUILTY PLEA WAS NOT ENTERED KNOWINGLY, INTELLIGENTLY,

AND VOLUNTARILY DUE TO THE TRIAL COURT’S ERROR IN FAILING TO ADVISE

AS TO A DRIVER’S LICENSE SUSPENSION.

            {¶20} “II. APPELLANT WAS DENIED DUE PROCESS OF LAW, AS

GUARANTEED BY BOTH THE UNITED STATES CONSTITUTION AND OHIO

CONSTITUTIONS BECAUSE HIS GUILTY PLEA WAS NOT ENTERED KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY DUE TO THE TRIAL COURT’S ERROR IN

FAILING TO ADVISE AS TO THE APPLICABLE PERIOD OF POST-RELEASE

CONTROL.

            {¶21} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO IMPOSE THE

STATUTORY MANDATED SENTENCE.”

                                                 I. & III.

            {¶22} Appellant’s first and third assignments of error are related; thus, we will

address them together.

            {¶23} In his first assignment of error, appellant argues his plea was not knowing,

intelligent, or voluntary pursuant to Criminal Rule 11(C), because the trial court failed to

advise him of the maximum penalty, that his driver’s license would be suspended for not
Muskingum County, Case No. CT 2016-0061                                                       8


less than six months, nor more than five years. Appellant thus contends his guilty pleas

should be vacated.

          {¶24} Despite appellant’s assertion in his brief in his first assignment of error that

he would not have pled guilty to the charges had he known about the mandatory license

suspensions associated with them, he argues in his third assignment of error that when

the trial court did not actually impose the mandatory license suspension, the trial court

erred. Appellant requests this Court vacate his sentence and remand this case to the trial

court for a new sentencing hearing that complies with the statutorily mandated sentence

with the correct license suspension imposed.

          {¶25} Criminal Rule 11(C)(2) details the trial court’s duty in a felony plea hearing

to address the defendant personally and to convey certain information to the defendant

and makes clear the trial court shall not accept a guilty plea without performing these

duties.      State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428.

Crim.R.11(C)(2)(a) states the trial court must determine, “* * * that the defendant is making

the plea voluntarily, with the understanding of the nature of the charges and of the

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

for the imposition of community control sanctions at the sentencing hearing.”

          {¶26} In regard to the specific constitutional rights referenced in Crim.R.11(C)(2),

the Ohio Supreme Court has set forth the following rule of law, “a trial court must strictly

comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony

plea that the plea waives: (1) the right to a jury trial; (2) the right to confront one’s

accusers; (3) the right to compulsory process to obtain witnesses; (4) the right to require

the state to prove guilt beyond a reasonable doubt, and (5) the privilege against
Muskingum County, Case No. CT 2016-0061                                                     9

compulsory self-incrimination.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621. When a trial court fails to strictly comply with this duty, a defendant’s

plea is invalid. Id.

        {¶27} For non-constitutional rights, “scrupulous adherence to Crim.R. 11(C) is not

required; the trial court must substantially comply, provided no prejudicial effect occurs

before a guilty plea is accepted.” State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163

(1977); State v. Schultz, 5th Dist. Fairfield No. 12 CA 24, 2013-Ohio-2218. We review

whether a trial court substantially complied with Crim.R. 11(C) based on the totality of the

circumstances. State v. Nero, 56 Ohio St.3d 108, 564 N.E.2d 474 (1990). Substantial

compliance means that, under the totality of the circumstances, a defendant subjectively

understand the implications of his plea and the rights he is waving. Id.

        {¶28} In this case, appellant challenges a non-constitutional right, the alleged

failure to orally notify him of the license suspension, a component of the maximum penalty

for the charges. State v. Schultz, 5th Dist. Fairfield No. 12 CA 24, 2013-Ohio-2218.

Appellant contends the trial court’s failure to orally explain to him the mandatory license

suspension caused his plea to be not knowingly, intelligently, or voluntarily entered. We

disagree.

        {¶29} In this case, although the trial court did not orally inform appellant that his

convictions subjected him to a mandatory license suspension, the trial court substantially

complied with Crim.R. 11 where appellant signed a plea agreement before entering his

guilty plea that informed him of the license suspension. State v. Schultz, 5th Dist. Fairfield

No. 12 CA 24, 2013-Ohio-2218; State v. Green, 10th Dist. Franklin No. 10AP-934, 2011-

Ohio-6451; State v. Fry-McMurray, 7th Dist. Mahoning No. 15 MA 0111, 2016-Ohio-6998.
Muskingum County, Case No. CT 2016-0061                                                    10


        {¶30} On June 1, 2016, appellant and his counsel signed a “plea of guilty” form.

This form stated appellant understood the maximum penalties and included a chart that

separately listed each offense, the maximum stated prison term, maximum fine,

mandatory fine, license suspension, and whether the prison term is mandatory

consecutive and/or mandatory. Each of the eight counts appellant pled guilty to is listed

separately and, for each count, the plea agreement specifically sets forth the possible

range of driver’s license suspension, as under the “driver’s license suspension” column

for each count, it states, “6 mos. up to 5 years.” Appellant also confirmed to the trial court

he understood what was contained in the plea form.

        {¶31} Furthermore, there is no indication from the record that appellant would not

have pled as he did if the trial court would have advised him orally of the license

suspension and thus appellant has shown no prejudice.            State v. Brown, 5th Dist.

Delaware No. 13 CA 13, 2013-Ohio-5515 (finding no prejudice and no violation of Crim.R.

11(C) when the trial court failed in the plea colloquy and admission of guilt form to include

mandatory driver’s license suspension, but when the transcript did not indicate appellant

changed his mind about entering the plea after he was informed of the suspension); State

v. Johnson, 10th Dist. Franklin No. 16AP-173; State v. Fry-McMurray, 7th Dist. Mahoning

No. 15 MA 0111, 2016-Ohio-6998. As this Court has previously stated, “a defendant must

show prejudice before a plea will be vacated for a trial court’s error involving Crim.R.

11(C) procedure when no constitutional aspects of the plea colloquy are at issue.” State

v. Brown, 5th Dist. Delaware No. 13 CA 13, 2013-Ohio-5515.

        {¶32} The test for prejudice is “whether the plea would have otherwise been

made.” State v. Nero, 56 Ohio St.3d 108, 564 N.E.2d 474 (1990). The trial court did not
Muskingum County, Case No. CT 2016-0061                                                   11


actually impose any driver’s license suspension on appellant when sentencing him.

However, in this appeal, in his third assignment of error, appellant affirmatively asks this

Court to remand his case to the trial court for a sentencing hearing for the trial court to

impose the statutorily mandated license suspension. If appellant is asking for the license

suspension to be imposed, he is clearly not prejudiced by the trial court’s failure to orally

advise him of such suspension.        The record reveals appellant indicated during his

colloquy with the trial court that he waived certain rights, understood the nature of the

charges against him and the range of possible penalties, and acknowledged no one had

threatened him or promised him anything to change his plea.             Further, during the

sentencing hearing, appellant stated he did not know of any reason why the court should

not proceed to sentencing, apologized for the acts he committed, stated his drug use did

not justify his unlawfulness, and stated he knows he is part of the problem putting drugs

in the community. Upon review of the totality of the circumstances, we find the trial court

did not err in finding appellant’s plea was voluntary, knowing, and intelligent.

        {¶33} In his third assignment of error, appellant contends the trial court erred when

it failed to impose the mandatory license suspension pursuant to R.C. 2925.03(D)(2) and

R.C. 2921.331(E).      The license suspension in R.C. 2929.03(D)(2) deals with the

suspension of the license of “professionally licensed person.” There is no indication that

this section is applicable to appellant.

        {¶34} Appellant pled guilty to one count of failure to comply with order or signal of

police officer in violation of R.C. 2921.331(B), which provides that “no person shall

operate a motor vehicle so as willfully to elude or flee a police officer after receiving a

visible or audible sign from a police officer to bring the person’s motor vehicle to a stop.”
Muskingum County, Case No. CT 2016-0061                                                  12


His violation was a felony of the third degree because the operation of the motor vehicle

by the offender caused a substantial risk of serious physical harm to persons or property.

R.C. 2921.331(B)(5)(a)(ii).

       {¶35} R.C. 2925.331(E) provides that for a felony violation of division (B) of this

section, the court “shall impose a class two suspension from the range specified in

division (A)(2) of section 4510.02 of the Revised Code.” R.C. 4510.02(A)(2) states a

class two suspension is a definite period of three years to life. Thus, at the time of his

sentencing, the trial court was required to sentence appellant to a mandatory license

suspension, but the trial court did not do so. In this appeal, appellant brings this lack of

license suspension to this Court’s attention and asks us to remand his case to the trial

court to impose the mandatory license suspension.

       {¶36} As previously held by the Ohio Supreme Court and this Court, because a

mandatory driver’s license suspension is a statutorily mandated term, the failure to

include this term in a criminal sentence renders it void in part and reversal of a case is

warranted for resentencing. Id.; State v. Schultz, 5th Dist. Fairfield No. 12 CA 24, 2013-

Ohio-2218; State v. Hempfield, 5th Dist. Licking No. 11-CA-103, 2012-Ohio-2619.

       {¶37} However, appellant argues he is entitled to a de novo sentencing hearing

upon this remand. We disagree. In State v. Harris, 132 Ohio St.3d 218, 2012-Ohio-1908,

927 N.E.2d 509, the Ohio Supreme Court held when a trial court fails to include a

mandatory driver’s license suspension as part of an offender’s sentence, that part of the

sentence is void. However, resentencing of the offender is limited to the imposition of the

mandatory driver’s license suspension. Id.
Muskingum County, Case No. CT 2016-0061                                                  13


       {¶38} With regards to appellant’s first and third assignments of error, we conclude

the trial court substantially complied with the requirements of Rule 11 and his pleas were

entered knowingly, intelligently, and voluntarily; further, appellant did not show prejudice

from any failure of the trial court.   Further, because the mandatory driver’s license

suspension pursuant to R.C. 2925.331(E) is a statutorily mandated term, the failure of the

trial court to include this term in appellant’s sentence renders appellant’s sentence void

in part and the matter is remanded to the trial court to conduct a resentencing hearing

limited to the imposition of the mandatory license suspension.             Appellant’s first

assignment of error is overruled and his third assignment of error is sustained.

                                                II.

       {¶39} In his second assignment of error, appellant argues his plea was not

knowing, voluntary, and intelligent because the trial court failed to fully inform appellant

of the maximum penalty as the trial court failed to inform him of the length of his post-

release control. Specifically, appellant contends the trial court erred in informing him

during his plea colloquy that he was subject to three years of mandatory post-release

control when post-release control was actually discretionary for three years.

       {¶40} Appellee contends the trial court substantially complied with Crim.R. 11(C)

with regards to post-release control and thus appellant’s plea was knowing, intelligent,

and voluntarily entered into; however appellee concedes the trial court erred in sentencing

appellant to three years of discretionary post-release control at the sentencing hearing

and in the sentencing entry.

       {¶41} This Court has previously found post-release control constitutes a portion

of the maximum penalty involved with the charges. State v. Jones, 5th Dist. Richland
Muskingum County, Case No. CT 2016-0061                                                 14


Nos. 10CA75, 10CA76, 2011-Ohio-1202. Though appellant contends the trial court did

not comply with Crim.R. 11(C) with regards to post-release control, we disagree.

       {¶42} During the plea colloquy, the trial court informed appellant it is mandatory

upon his release from prison that the Adult Parole Authority place him on three years of

post-release control.   The trial court specifically told appellant his plea form was

inaccurate as it stated post-release control was optional for up to three years, but post-

release control was actually mandatory due to his plea of guilty to a R.C.

2921.331(B)(5)(a)(ii) violation (“substantial risk of serious physical harm to persons or

property”), an offense of violence pursuant to R.C. 2901.01(A)(9)(c); see also R.C.

2967.28(B).

       {¶43} The trial court inquired of appellant with regard to the plea form, “You

understand what I told you is what’s accurate? The plea form – only in that regard, that

small circumstance of optional versus mandatory, the plea form is inaccurate with regard

to that. Do you understand that?” Appellant responded, “yes,” and told the trial court he

wanted to go forward with his plea of guilty to that charge knowing post-release control

was mandatory for three years. Appellant specifically agreed to go forward with his plea

with the knowledge that post-release control was mandatory for three years. Accordingly,

we find his plea was knowing, intelligent, and voluntary.

       {¶44} However, as appellee states in its brief, the trial court incorrectly imposed

three years of discretionary post-release control at both the sentencing hearing and in the

sentencing entry rather than required three years of mandatory post-release control.

       {¶45} R.C. 2929.191 sets forth a procedure by which the trial court can correct a

judgment of conviction when the trial court failed to properly notify a defendant about the
Muskingum County, Case No. CT 2016-0061                                                   15


requisite post-release control both at the sentencing hearing and in the final sentencing

entry. R.C. 2929.191 applies to sentenced offenders whose sentence has not been

completed. Under these circumstances, the trial court may, after holding a hearing, issue

a nunc pro tunc correction to the judgment entry of conviction. State v. McCrae, 5th Dist.

Muskingum No. CT2016-0047, 2016-Ohio-8182. The court’s placement of the nunc pro

tunc entry on the journal has the same effect as if the court had included the correct

notification in the original sentencing entry and had notified the offender of the applicable

term of post-release control at the original sentencing hearing. The offender has the right

to be present at the hearing, but the court may permit the offender to appear at the hearing

by video conferencing equipment. State v. Miller, 5th Dist. Stark No. 2013CA00115,

2014-Ohio-18; State v. Minor, 5th Dist. Richland No. 15CA81, 2016-Ohio-914. The new

sentencing hearing to which an offender is entitled is limited to proper imposition of post-

release control. Id.

        {¶46} In this case, the trial court determined at the plea hearing that, because of

the R.C. 2921.331(B)(5)(a)(ii) violation (“substantial risk of serious physical harm to

persons or property”), the three years of post-release control was mandatory, not

discretionary. However, in the sentencing entry and at the sentencing hearing, the trial

court stated the three year term of post-release control was discretionary. Appellee

concedes the trial court erred in failing to sentence appellant to a mandatory three year

term of post-release and agrees the post-release control portion of appellant’s sentence

should be vacated and remanded for a sentencing hearing on post-release control.

        {¶47} Accordingly, we vacate the post-release control portion of appellant’s

sentence and remand the matter for a hearing limited to the proper imposition of post-
Muskingum County, Case No. CT 2016-0061                                                   16

release control. See State v. Blankenship, 5th Dist. Delaware No. 16 CAA 0024, 2017-

Ohio-7267.

        {¶48} Based on the foregoing, appellant’s first assignment of error is overruled.

Appellant’s second assignment of error is overruled in part and sustained in part.

Appellant’s third assignment of error is sustained. Accordingly, the trial court’s judgment

entry is affirmed in part and reversed and remanded in part. The matter is remanded to

the trial court to conduct a resentencing hearing limited to: the imposition of the mandatory

license suspension and the proper imposition of post-release control.

By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs in part, dissents in part
Muskingum County, Case No. CT 2016-0061                                                   17

Hoffman, J., concurring in part and dissenting in part

       {¶49} I concur in the majority’s analysis and disposition of Appellant’s second and

third assignments of error.     I respectfully dissent from the majority’s disposition of

Appellant’s first assignment of error.

       {¶50} While the “plea of guilty” form indicated a license suspension for each of the

eight counts as “6 mos. up to 5 years”, the trial court’s Crim.R. 11 plea colloquy did not

include any discussion of a license suspension. As noted in the majority opinion, one of

the charges mandates a three year to lifetime license suspension.

       {¶51} I have previously stated the failure to advise a defendant of a mandatory

lifetime license suspension does not constitute substantial compliance with Crim.R 11.

(See my dissenting opinion in State v. Schultz, 5th Dist. Fairfield No. 12 CA 24, 2013-

Ohio-2218).1

       {¶52} I would sustain Appellant’s first assignment of error, reverse Appellant’s

convictions and remand the case for further proceedings.2




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN




1
  I did not participate in this Court’s decision in State v. Brown, 5th Dist. Licking No. 13-
CA-13, 2013-Ohio-5515. I note, in Brown, the trial court did orally advise the defendant
there would be a suspension of his driver’s license.
2
  Such would render Appellant’s assignments of error two and three moot.
