[Cite as State v. Baker, 2020-Ohio-4199.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 20 COA 011
DEAONTE D. BAKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 19 CRI 111


JUDGMENT:                                       Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        August 25, 2020



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTOPHER R. TUNNELL                         MATTHEW J. MALONE
PROSECUTING ATTORNEYT                          LAW OFFICE of MATTHEW J. MALONE
COLE F. OBERLI                                 10 East Main Street
ASSISTANT PROSECUTOR                           Ashland, Ohio 44805
110 Cottage Street
Ashland, Ohio 44805
Ashland County, Case No. 20 COA 011                                                      2


Wise, J.

       {¶1}   Appellant, Deaonte Baker, appeals his conviction and sentence after a

negotiated guilty plea in the Ashland County Court of Common Pleas. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 10, 2019, Appellant was indicted with one count of Complicity to

Aggravated Burglary in violation of R.C. 2923.03(A)(2) and R.C. 2911.11(A)(1), a felony

in the first degree, one count of Complicity of Aggravated Robbery in violation of R.C.

2923.03(A)(2) and R.C. 2911.02(A)(2), a felony in the second degree, and one count of

Complicity to Kidnapping in violation of R.C. 2923.03(A)(2) and R.C. 2905.01(A)(2), a

felony in the second degree. A repeat violent offender specification under R.C.

2941.149(A) was attached to each of these three counts. Appellant was also indicted with

one count of Complicity to Tampering With Evidence in violation of R.C. 2923.03(A)(2)

and R.C. 2921.12(A)(1), a felony in the third degree. At the time of the crimes, Appellant

was on post-release control.

       {¶3}   On October 3, 2019, Appellant retained his own counsel.

       {¶4}   On December 31, 2019, Appellant entered a plea of guilty to Complicity to

Aggravated Burglary and Complicity to Aggravated Robbery. The remaining counts were

dismissed as part of a negotiated plea agreement.

       {¶5}   Prior to entering the guilty plea Appellant signed a Waiver of Constitutional

Rights and Plea form which contained the following advisement: “the Court further finds

that the Defendant understands that if he is on felony probation, parole, under a

community control sanction, or under post release control from prison, this plea may result
Ashland County, Case No. 20 COA 011                                                     3


in revocation proceedings and any new sentence could be imposed consecutively.” See

Waiver of Constitutional Rights and Plea, December 31, 2019.

      {¶6}   At the Change of Plea hearing, the trial court entered into a colloquy with

Appellant relating to the current charges stating, “following your release from prison you

would then be subject to further Post-Release control for a period of five years, it would

be mandatory.” Change of Plea Transcript, pp. 16-18. The trial court also explained that

if Appellant committed a brand new felony while on this post-release control, the

sentencing court could revoke the post-release control and the related sanction would be

imposed consecutive to any new or additional prison sentence for the new felony.

      {¶7}   On February 10, 2020, the trial court sentenced Appellant to serve a

minimum prison term of five years and an indefinite term of seven and one-half years on

Count One, Complicity to Aggravated Burglary and three years on Count Two, Complicity

to Robbery. The trial court imposed those sentences to be served consecutively.

      {¶8}   In addition, the trial court revoked Appellant’s post-release control and

ordered that a three-year prison sentence be imposed, also consecutive to Count One

and Count Two. The aggregate prison term is eleven to thirteen and one-half years.

                                  ASSIGNMENT OF ERROR

      {¶9}   On March 11, 2020, Appellant filed a notice of appeal. He herein raises the

following Assignment of Error:

      {¶10} “I. APPELLANT’S PLEAS WERE NOT KNOWINGLY, INTELLIGENTLY,

AND VOLUNTARILY ENTERED BECAUSE THE TRIAL COURT FAILED TO COMPLY

WITH CRIMINAL RULE 11 BEFORE ACCEPTING APPELLANT’S GUILTY PLEAS.”
Ashland County, Case No. 20 COA 011                                                            4


                                                   I.

       {¶11} In Appellant’s sole Assignment of Error, Appellant argues his plea was not

knowingly, intelligently, and voluntarily entered as 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 imposed for the

new felony. We agree.

       {¶12} 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

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 States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927 (1989).

       {¶13} Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and

voluntarily. Literal compliance with Crim.R. 11 is preferred; however, the trial court only

needs to “substantially comply” with the rule when addressing 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 adopted 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
Ashland County, Case No. 20 COA 011                                                          5


       involuntarily and unknowingly, failure to comply with non-constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

       prejudice. [State v. Nero, 56 Ohio St.3d 106,] 108, 564 N.E.2d 474 [(1990)].

       The test for prejudice is ‘whether the plea would have otherwise been

       made.’ Id. Under the substantial-compliance standard, we review the totality

       of the circumstances surrounding [the defendant’s] plea and determine

       whether he subjectively understood [the effect of the plea]. See, State v.

       Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.

       {¶14} State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814, N.E.2d 51 at ¶12.

       {¶15} Crim.R. 11 requires a trial court to inform a defendant on post-release

control who is pleading guilty to a new felony offense of the trial court’s authority to revoke

the defendant’s post-release control and impose an additional prison term known as a

“judicial sanction.” State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766

at ¶13. The trial court is not required to impose a judicial sanction, but if it does, the

additional term must be served consecutively to the prison term for the new felony. Id.

       {¶16} In Bishop, the defendant pled guilty to a felony drug possession charge

while on post-release control. Id. at ¶3. The trial court sentenced the defendant to serve

a nine-month sentence for the possession offense, and a one-year sentence under R.C.

2929.141 to be served consecutively to his sentence on the possession offense. Id. at ¶4.

The trial court did not instruct the defendant that any judicial sanction imposed for violating

his current parole must be served consecutive to any prison sentence imposed for the

felony drug possession charge. Id. at ¶20. The Ohio Supreme Court found the defendant

did not need to show prejudice as this was not a partial compliance because the trial court
Ashland County, Case No. 20 COA 011                                                      6


failed to inform the defendant that a consecutive prison sentence under R.C. 2929.141(A)

was possible. Id.

       {¶17} This Court held, “when a defendant is facing a consecutive sentence he or

she should be explicitly made aware of that consequence.” State v. Reffitt, 5th Dist.

Muskingum No. CT2018-0017, 2018-Ohio-4364, ¶19.

       {¶18} In Reffitt, the defendant pled guilty to a Drug Possession charge while on

post-release control for a Burglary charge. The plea form signed by the defendant stated,

“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.” Id. at ¶17. The trial court judge told the

defendant,

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

       control, in addition to any sentence you receive for the 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?

       {¶19} Id.

       {¶20} This Court found that this language is insufficient because it stated that any

prison term imposed for the post-release control violation could be imposed

consecutively, not that it was required to be imposed consecutively. Id. at ¶16. The trial

court should have informed the defendant that if a prison term was imposed on the Drug

Possession charge and the trial court chose to revoke his post-release control and impose

a judicial sanction, the judicial sanction sentence must be served consecutively. Id. at

¶18. R.C. 2929.141(A)(1) does not grant the trial court any discretion. Id.
Ashland County, Case No. 20 COA 011                                                         7


       {¶21} In the case sub judice, Appellant signed similar paperwork with misleading

language suggesting that the trial court has the discretion to impose any sentence relating

to the revocation of post-release control consecutively. They do not. Appellant was given

a full explanation of the consequences of a felony conviction while on post-release control

with regards to his current charges, but not with respect to his current post release control.

This does not constitute partial compliance with Crim.R. 11. We conclude the trial court

completely failed to inform Appellant at the Change of Plea hearing that a consecutive

prison sentence under R.C. 2929.141(A) was possible. Appellant is not required to show

that he was prejudiced by the trial court’s error.

       {¶22} Appellant’s First Assignment of Error is sustained.

       {¶23} For the foregoing reasons, the judgment of the Court of Common Pleas of

Ashland County, Ohio, is reversed, the plea is vacated, and this matter is remanded for

further proceedings consistent with the law and this opinion.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.


JWW/br 0824
