[Cite as State v. Taylor-Hollingsworth, 2020-Ohio-278.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                  No. 18AP-873
v.                                                   :        (C.P.C. No. 18CR-4855)

Richard J. Taylor-Hollingsworth,                     :       (REGULAR CALENDAR)

                 Defendant-Appellant.                :



                                           D E C I S I O N

                                   Rendered on January 30, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee. Argued: Steven L. Taylor.

                 On brief: James Sweeney Law, LLC, and James S. Sweeney,
                 for appellant. Argued: James S. Sweeney.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Richard J. Taylor-Hollingsworth, appeals a judgment
of the Franklin County Court of Common Pleas entered on October 17, 2018, sentencing
him on a guilty plea to 16 years in prison for aggravated robbery, felonious assault, and
associated firearm specifications. Because the trial court completely omitted to advise
Hollingsworth during the plea colloquy that the sentence would include a mandatory term
of post-release control, it failed to comply with Crim.R. 11, and thus we vacate the plea and
remand the case to the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 28, 2018, Hollingsworth was indicted for aggravated robbery,
felonious assault, and having a weapon while under disability, as well as firearm
specifications and repeat violent offender specifications associated with the aggravated
No. 18AP-873                                                                                            2


robbery and felonious assault counts.1 (Sept. 28, 2018 Indictment.) A short time later,
Hollingsworth pled guilty to aggravated robbery, felonious assault, and the firearm
specifications, in exchange for dismissal of the weapon under disability count and the
repeat violent offender specifications. (Oct. 10, 2018 Plea Form at 1-2.)
        {¶ 3} Among other notices not relevant to this appeal, Holingsworth's plea form
indicated that he would be subject to five years of mandatory post-release control in relation
to the first-degree felony (aggravated robbery), and a mandatory three years in relation to
the second-degree felony (felonious assault). Id. at 2. The form also included the following
notice regarding post-release control:
                I understand that the Adult Parole Authority will administer
                post-release control pursuant to R.C. 2967.28 and that any
                violation of a post-release control condition could result in
                more restrictive non-prison sanctions, a longer period of
                supervision or control up to a specified maximum, and/or
                reimprisonment for up to nine months. The prison term(s) for
                all post-release control violations may not exceed one-half of
                the prison term originally imposed. I understand that if the
                violation of post-release control constitutes a felony, I may be
                prosecuted, convicted and sentenced on that new felony. The
                court in that new felony case may terminate the term of post-
                release control in this case and either: (1) in addition to any
                prison term imposed for the new felony, impose a consecutive
                prison term for the post-release control violation of either 12
                months or the amount of time left on post-release control,
                whichever is greater, or (2) impose community control
                sanctions for the post-release control violation to be served
                concurrently or consecutively to any community control
                sanctions imposed for the new felony.

(Oct. 10, 2018 Plea Form at 2.) Hollingsworth was also provided with a separate written
notice that set forth the terms of post-release control and contained a certification, "I hereby
certify that the Court read to me, and gave me in writing, the notice set forth herein."
(Oct. 10, 2018 Notice Prison Imposed.) Hollingsworth's attorney signed the form but,
according to a notation on the form, Hollingsworth declined to sign it. Id.
        {¶ 4} Regarding the penalty that could be imposed if Hollingsworth pled guilty, the
trial court orally informed Hollingsworth:


1The indictment was apparently a reindictment of an earlier case in order to modify certain language in the
original indictment. (Oct. 10, 2018 Plea & Sentencing Tr. at 4, filed Dec. 26, 2018.)
No. 18AP-873                                                                                 3


              On the aggravated robbery, it's possible to get up to 11 years on
              the aggravated robbery plus it's mandatory for a three-year
              firearm specification to be served consecutively.

              On the felonious assault, it's possible to get up to eight years of
              incarceration. Again, it's mandatory for the three-year firearm
              specification to be served consecutively. It's also possible to get
              a fine up to $20,000 on the agg. rob and up to $15,000 on the
              felonious assault.

(Oct. 10, 2018 Plea & Sentencing Tr. at 5.) The trial court did not orally mention post-
release control.
       {¶ 5} The trial court then accepted Hollingsworth's guilty plea and sentenced him
to serve 16 years in prison, 10 years for the aggravated robbery, 7 concurrent years for the
felonious assault, and 3 consecutive years for each of the 2 firearm specifications. Id. at 7,
15-16; Oct. 17, 2018 Jgmt. Entry at 2. Hollingsworth did not object at any point in the
sentencing and he has not filed a motion to withdraw his plea.
       {¶ 6} Hollingsworth now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 7} Hollingsworth assigns a single error for review:
              DEFENDANT-APPELLANT'S GUILTY PLEA WAS NOT
              KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY
              MADE.

III. DISCUSSION
   A. Standard of Review
       {¶ 8} Hollingsworth argues that his plea was invalid because the trial court failed
to advise him as required by Crim.R. 11 of the nature of the charges and the maximum
penalties involved.     (Hollingsworth's Brief at 2-7.) See also Crim.R. 11(C)(2)(a).
Specifically, Hollingsworth argues that the trial court failed to orally advise him of the term
of post-release control. (Hollingsworth's Brief at 2-7.) Because Hollingsworth did not raise
the post-release control notification issue at any juncture in the trial court, the State argues
that it should be considered forfeited and only reviewed under a plain error analysis.
(State's Brief at 22-32.) See also, e.g., State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,
¶ 22; State v. Johnson, 40 Ohio St.3d 130, 132 (1988). The State argues that Hollingsworth
must show "clear outcome determination" as a result of the error. (Emphasis sic.) (State's
No. 18AP-873                                                                                 4


Brief at 28-30.) However, courts have declined to apply that strict standard when the issue
is squarely presented.
       {¶ 9} Further, Crim.R. 52(B) provides that, "[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." Approximately five years after this rule was adopted, in 1978, the Supreme Court of
Ohio held that "a jury instruction violative of R.C. 2901.05(A) does not constitute a plain
error or defect under Crim. R. 52(B) unless, but for the error, the outcome of the trial clearly
would have been otherwise." State v. Long, 53 Ohio St.2d 91, 96-97 (1978). Thus, jury
verdicts generally may not be inquired into. Evid.R. 606(B). The rule against inquiry into
verdicts and the inherent difficulty in proving a hypothetical, make it virtually impossible
to prove that a jury would "clearly" have reached a different decision "but for the error."
Long at 96-97. Despite the difficulty of applying Long literally, the language of Long has
been widely applied in a variety of contexts in Ohio law.
       {¶ 10} However, in 2015, the Supreme Court brought this plain error jurisprudence
in line with the federal system when it explained the exact burden the accused bears in
showing that an error affected the outcome:
              [E]ven if the error is obvious, it must have affected substantial
              rights, and "[w]e have interpreted this aspect of the rule to
              mean that the trial court's error must have affected the
              outcome of the trial." [State v. Barnes, 94 Ohio St.3d 21, 27,
              2002 Ohio 68, 759 N.E.2d 1240 (2002).] The accused is
              therefore required to demonstrate a reasonable probability
              that the error resulted in prejudice—the same deferential
              standard for reviewing ineffective assistance of counsel claims.
              United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124
              S.Ct. 2333, 159 L.Ed.2d 157 (2004) (construing Fed.R.Crim.P.
              52(b), the federal analog to Crim.R. 52(B), and also noting that
              the burden of proving entitlement to relief for plain error
              "should not be too easy").

(Emphasis sic.) Rogers at ¶ 22. The Supreme Court adopted the language of the United
States Supreme Court in order to clarify that an accused need only show a reasonable
probability (rather than a clear proof) that but for an error, the outcome of the trial would
have been otherwise. As the Supreme Court put it two years after Rogers:
              Even if the error is obvious, it must have affected substantial
              rights, and "[w]e have interpreted this aspect of the rule to
              mean that the trial court's error must have affected the
No. 18AP-873                                                                                  5


              outcome of the trial." [Barnes, 94 Ohio St.3d at 27.] We
              recently clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-
              Ohio-2459, 38 N.E.3d 860, that the accused is "required to
              demonstrate a reasonable probability that the error resulted in
              prejudice—the same deferential standard for reviewing
              ineffective assistance of counsel claims." (Emphasis sic.) Id. at
              ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,
              81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

(Emphasis added.) State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, ¶ 33; but see id. at
¶ 66 (Fischer, J., dissenting) (indicating that he would revert to the "clearly would have
been otherwise" language).
       {¶ 11} As the State recognizes, the language of Long has sometimes continued to be
repeated, even post Rogers. (State's Brief at 28-29 (citing cases).) Cases that repeat this
language tend to be cases in which the standard was not at issue and where the author
(possibly relying on old boilerplate) failed to cite or consider Rogers. See, e.g., State v.
Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 39; State v. Cepec, 149 Ohio St.3d 438,
2016-Ohio-8076, ¶ 67. However, the last Supreme Court case to use the language, "clearly
would have been otherwise," was Clinton in 2017. Conversely, more recent Supreme Court
cases from 2018 have used the language of Rogers. See State v. Tench, 156 Ohio St.3d 85,
2018-Ohio-5205, ¶ 218; State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, ¶ 130.
       {¶ 12} In light of the history we have recounted, the essential impossibility of
meeting the proof required by Long (were its language construed strictly), the guidance
from the United States Supreme Court, and recent cases of the Supreme Court of Ohio, we
believe the sounder legal standard is that enunciated by Rogers and confirmed as an
intentional clarification by Thomas: an accused seeking to show that an obvious error
affected his or her substantial rights (and thereby, the outcome of the criminal proceeding)
must "demonstrate a reasonable probability that the error resulted in prejudice," such that
there is a "probability of a different result [that] is sufficient to undermine confidence in the
outcome of the proceeding." (Internal quotation marks omitted and emphasis sic.) Myers,
2018-Ohio-1903, at ¶ 130; see also United States v. Dominguez Benitez, 542 U.S. 74, 81-83
(2004); Tench at ¶ 218; Thomas at ¶ 33; Rogers at ¶ 22.
       {¶ 13} However, the Supreme Court of Ohio has also held that a trial court's failure
to comply with the Crim.R. 11 notifications may be raised by motion to withdraw a plea or
on direct appeal and that, "[i]f the trial court fails during the plea colloquy to advise a
No. 18AP-873                                                                                6


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." State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, paragraph one and two of
the syllabus. Sarkozy did not expressly consider what standard of review would apply in
the event a defendant failed to raise the issue in the trial court by any means. Sarkozy at
¶ 5, 17-18. Yet, it did make clear, both in the portion of the syllabus quoted and later in the
decision, that "[a] complete failure to comply with the rule does not implicate an analysis
of prejudice." Sarkozy at ¶ 22.
       {¶ 14} We therefore apply plain error analysis as set forth by Rogers. But we
proceed with the understanding that, if the trial court "complete[ly] failed to comply with
the rule," Sarkozy has carved out an exception to the general plain error standard and has
mandated reversal without consideration of prejudice.
   B. Whether the Trial Court Committed Plain Error in Failing to Orally
      Advise Hollingsworth of Post-Release Control in Connection with his
      Guilty Plea
       {¶ 15} Crim.R. 11 requires a court to engage in a colloquy with the defendant in
relevant part as follows:
              (2) In felony cases the court * * * shall not accept a plea of guilty
              or no contest without first addressing the defendant personally
              and doing all of the following:

              (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.

(Emphasis added.) Crim.R. 11(C)(2)(a); see also R.C. 2943.032(A) (requiring the court to
"inform the defendant personally" of the consequences should the defendant violate post-
release control conditions). The Supreme Court has clarified that this requirement also
includes information regarding post-release control:
              1. If a trial court fails during a plea colloquy to advise a
              defendant that the sentence will include a mandatory term of
              postrelease control, the defendant may dispute the knowing,
              intelligent, and voluntary nature of the plea either by filing a
              motion to withdraw the plea or upon direct appeal.
No. 18AP-873                                                                               7


              2. If 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.

Sarkozy at paragraphs one and two of the syllabus.
       {¶ 16} As was true in Sarkozy, the trial court here complied with Crim.R. 11(C)(2)(a)
insofar as it advised Hollingsworth of the maximum prison penalty and maximum financial
penalty. Compare Sarkozy at ¶ 21 with Oct. 10, 2018 Plea & Sentencing Tr. at 5. Unlike
the defendant in Sarkozy, Hollingsworth was advised of post-release control in writing.
(Oct. 10, 2018 Plea Form at 2; Oct. 10, 2018 Notice Prison Imposed.) Yet, the trial court
simply did not, "during the plea colloquy," "address[] the defendant personally" and "advise
[the] defendant that the sentence will include a mandatory term of postrelease control."
Sarkozy at paragraph two of the syllabus; Crim.R. 11(C)(2). Under Sarkozy, this constitutes
"[a] complete failure to comply with the rule," "does not implicate an analysis of prejudice,"
and thus we, as the reviewing court, "must vacate the plea and remand the cause." Sarkozy
at ¶ 22, paragraph two of the syllabus.
       {¶ 17} Although we recognize that this Court has previously found written notice to
be sufficient on occasions, even after Sarkozy, we find such cases to be distinguishable. See
State v. Williams, 10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 12-25, 40 (discussing cases
and distinguishing Sarkozy); State v. Knowles, 10th Dist. No. 10AP-119, 2011-Ohio-4477,
¶ 9, 18-19 (same). For example, in Williams, although the defendant was not orally advised
during his plea hearing of post-release control, he did receive a written notice of post-
release control in his plea form and (unlike in this case) he "acknowledged he reviewed the
plea form with his attorney who explained the rights he was waiving and the possible
consequences of entering the plea." Williams at ¶ 2. Likewise, in Knowles, the defendant
signed a plea form that properly advised him of a five-year period of mandatory post-release
control and sanctions for violating the post-release control. Knowles at ¶ 18. Then, unlike
in this case, "[d]uring the plea hearing, [Knowles] acknowledged reading the plea form and
discussing it with counsel, and he further indicated he understood the document." Id. In
short, in cases where this Court has found written notice to be sufficient after Sarkozy, the
No. 18AP-873                                                                                               8


written notice at least has been orally discussed and acknowledged by the defendant during
the plea. Here, not even that occurred.2
        {¶ 18} For the reasons stated, we distinguish Williams and Knowles and follow
Sarkozy. We therefore sustain Hollingsworth's assignment of error.
IV. CONCLUSION
        {¶ 19} As Hollingsworth did not raise the issue in the trial court, we would apply
plain error review. However, because we find that the trial court "complete[ly]" failed to
mention post-release control or even reference the written notice during the plea
proceedings, we apply the Sarkozy exception which requires us to disregard questions of
prejudice. Finding that the trial court did not orally advise Hollingsworth regarding post-
release control, we reverse, vacate Hollingsworth's plea, and remand to the Franklin County
Court of Common Pleas.
                                                                   Judgment reversed, plea vacated,
                                                                              and cause remanded.
                           BEATTY BLUNT and NELSON, JJ., concur.

NELSON, J., concurring.
        {¶ 20} I agree that the outcome in this case is governed by the binding precedent of
the Supreme Court of Ohio in Sarkozy, and I would begin and end our analysis there. I join
in the judgment of the court.




2 Of course, cases in which the written notice was accompanied by some oral discussion of post-release control

are even easier to distinguish. See, e.g., State v. Chandler, 10th Dist. No. 10AP-369, 2010-Ohio-6534, ¶ 14
(oral mention of five-year period of post-release control during plea hearing).
