[Cite as State v. Lockard, 2015-Ohio-4294.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

         STATE OF OHIO                              :
                                                    :
                Plaintiff-Appellee                  :   Appellate Case No. 2014-CA-152
                                                    :
         v.                                         :   Trial Court Case No. 2014-CR-535
                                                    :
         SCOTT R. LOCKARD                           :   (Criminal Appeal from
                                                    :    Common Pleas Court)
                Defendant-Appellant                 :
                                                    :

                                               ...........
                                              OPINION
                           Rendered on the 16th day of October, 2015.
                                               ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 130 West 2nd Street, Suite 2103,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant


                                              .............

HALL, J.

        {¶ 1} Scott Lockard appeals from a conviction based on his plea of guilty to two

firearm-related charges. He contends that he did not enter the plea knowingly,
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intelligently, and voluntarily. We agree and reverse his conviction.

                                      I. Background

       {¶ 2} Lockard was indicted on three counts: discharge of a firearm on or near

prohibited premises, in violation of R.C. 2923.162(A)(3), a third-degree felony (Count 1);

improperly discharging a firearm at or into a habitation or school safety zone, in violation

of R.C. 2923.161(A)(1), a second-degree felony (Count 2); improper handling of a firearm

in a motor vehicle, in violation of R.C. 2923.16(B), a fourth-degree felony (Count 3).

Counts 1 and 2 are each accompanied by a three-year firearm specification.

       {¶ 3} Under a plea agreement, the state dismissed Count 2 and Lockard pleaded

guilty to Counts 1 and 3 and the firearm specification accompanying the first count. The

trial court imposed a three-year prison term for Count 1, a one-year prison term for Count

3, and a mandatory three-year prison term for the firearm specification. The court ordered

Lockard to serve the terms consecutively for a total sentence of 84 months.

       {¶ 4} Lockard appealed.

                                        II. Analysis

       {¶ 5} Lockard’s first assignment of error alleges that the trial court erred by

accepting his guilty plea. He contends that he did not enter it knowingly, intelligently, and

voluntarily, because statements that the trial court made at the plea hearing conflict with

the plea form.



       {¶ 6} The plea form omits any reference to the firearm specification. The

specification is not in the list of offenses, although the heading of the list’s second column

is “OFFENSE/SPECIFICATION.” Nor is the firearm specification in the list of maximum
                                                                                         -3-


penalties. It would have been better if it was there too because the heading of the list’s

first column is “OFFENSE/SPECIFICATION.” Counts 1 and 3 are in both lists, and the

maximum prison terms stated for the counts are 36 months and 18 months, respectively,

for a total maximum of 54 months. The additional mandatory 3 years for the specification

is not listed. According to the plea form, because a prison term is not mandatory for either

principle offense, the court may impose community-control sanctions. Lastly, the form

states that if Lockard is sentenced to prison, he may be given three years of post-release

control, that is, post-release control is optional.1 The plea form is signed by the parties

and also by the trial court.

       {¶ 7} At the plea hearing, the trial court asked Lockard if he signed the plea form,

if he went over the form with his attorney, and if he understood everything in it. Lockard

answered yes to each question. The court told Lockard that the maximum penalty for

Count 1 is 36 months in prison and that the maximum for Count 2 is 18 months. The court

also told him that the firearm specification carries a mandatory 3-year prison term that he

must serve consecutive to any other term. As to post-release control, the trial court told

Lockard that because a prison sentence is mandatory he would be subject to mandatory

post-release control. The court then explained the constitutional rights that Lockard would

be giving up by pleading guilty and asked Lockard if he still wanted to plead guilty.

       {¶ 8} The trial court’s statements at the plea hearing are correct as to Lockard’s

nonconstitutional rights. But the court never reconciled those statements with the multiple


1 The form states that three years of post-release control is optional when a prison
sentence is imposed “for a third-degree felony that does not involve causing or
threatening physical harm or a fourth or fifth-degree felony.” The period of post-release
control is mandatory, says the form, if the third-degree felony “involved causing or
threatening physical harm.”
                                                                                            -4-


errors in the plea form. Lockard contends that the unreconciled conflict prevented him

from understanding that he was subject to a mandatory prison sentence, subject to

mandatory consecutive terms, ineligible for community control, and subject to mandatory

post-release control.

        {¶ 9} “A criminal defendant's choice to enter a plea of guilty or no contest is a

serious decision.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,

¶ 25. For this reason, a guilty plea is invalid unless it is made knowingly, intelligently, and

voluntarily. Id. “Ohio Crim.R. 11(C) was adopted in order to facilitate a more accurate

determination of the voluntariness of a defendant’s plea by ensuring an adequate record

for review.” (Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474

(1990). Under Crim.R. 11(C)(2), a trial judge may not accept a guilty plea without

addressing the defendant personally and (1) “[d]etermining 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,” (2) making sure

that the defendant understands the effect of the plea of guilty, and that, after accepting

the plea, the court may immediately proceed with judgment and sentence, and (3) making

sure that the defendant understands that by pleading guilty the defendant is waiving

certain constitutional rights. Civ.R. 11(C)(2)(a) through (c).

        {¶ 10} If the trial judge imperfectly explains the nonconstitutional rights, “such as

the right to be informed of the maximum possible penalty and the effect of the plea, a

substantial-compliance rule applies.” Clark at ¶ 31. 2 “Under this standard, a slight


2   Strict compliance is required with the constitutional rights mentioned in Crim.R.
                                                                                           -5-


deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicates that ‘the defendant subjectively understands the implications of

his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting Nero at 108.

If the trial judge does not substantially comply with Crim.R. 11 as to a nonconstitutional

right, a reviewing court “must determine whether the trial court partially complied [‘e.g.,

by mentioning mandatory postrelease control without explaining it’] or failed to comply

with the rule.” (Emphasis sic.) (Citation omitted.) Id. at ¶ 32.

       {¶ 11} We have held that if a trial court fails to reconcile its correct oral statement

on the length of post-release control with an incorrect statement on post-release control

in a plea form, the trial court only partially complies with Crim.R. 11. State v. Brown, 2d

Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 23.3 Here, though, the trial court

failed to reconcile conflicts as to more than just post-release control. Because the plea

form does not list the firearm specification, the form is inaccurate with respect to the

offenses and specifications to which Lockard pleaded guilty, the maximum possible total

penalty, and that a prison sentence is mandatory. We note that the 84-month total prison

sentence actually imposed on Lockard is longer than the 54-month total maximum

possible indicated by the form. The plea form also incorrectly suggests that Lockard could



11(C)(2)(c). See Clark at ¶ 31.
3 At the plea hearing in Brown, the trial court correctly told the defendant that post-release
control could be five years, not three years like the plea form said. “The plea form used
by the trial court is not mandated by Crim.R. 11 or the statutes governing post-release
control. While the error contained on the form cannot be ignored, we believe that the trial
court’s correct oral explanation of the five-year period of post-release control during the
plea colloquy makes this situation one of partial compliance with Crim.R. 11 with regard
to a nonconstitutional right rather than one of complete failure to comply with Crim.R. 11
regarding that right.” Brown at ¶ 23.
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be sentenced to community control.

       {¶ 12} We conclude that the accumulation of the material errors in the plea form

and the trial court’s failure to reconcile these errors at the plea hearing constituted a failure

to comply with Crim.R. 11. Fewer inconsistencies or less significant discrepancies might

result in partial or substantial compliance. But by not reconciling the multiple conflicts

about material aspects of the plea, the trial court failed to ensure that Lockard understood

his nonconstitutional rights. Therefore Lockard did not enter his guilty plea knowingly,

intelligently, and voluntarily.

       {¶ 13} The first assignment of error is sustained.

       {¶ 14} The second assignment of error alleges that Lockard was denied the

effective assistance of counsel because counsel failed to address the errors in the plea

form, and the third assignment of error alleges that the sentence imposed by the trial court

is unlawful. Both of these assignments of error are overruled as moot.

                                       III. Conclusion

       {¶ 15} Lockard did not enter his guilty plea knowingly, intelligently, and voluntarily.

Therefore the plea is invalid. The judgment of conviction is reversed. This case is

remanded for further proceedings consistent with this opinion.

                                       .............



FAIN, J., and DONOVAN, J., concur.


Copies mailed to:

Ryan A. Saunders
Michael T. Columbus
Hon. Douglas M. Rastatter
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