[Cite as State v. Cartwright, 2011-Ohio-4424.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :      JUDGES:
                                                 :
                                                 :     Hon. W. Scott Gwin, P.J.
                        Plaintiff-Appellee       :     Hon. John W. Wise, J.
                                                 :     Hon. Patricia A. Delaney, J.
-vs-                                             :
                                                 :      Case No. 11CA000001
WILLIAM P. CARTWRIGHT                            :
                                                 :
                                                 :
                       Defendant-Appellant       :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Knox County Court of
                                                     Common Pleas, Case No. 07CR08-0116


JUDGMENT:                                            AFFIRMED IN PART; REVERSED AND
                                                     REMANDED IN PART



DATE OF JUDGMENT ENTRY:                              August 29, 2011



APPEARANCES:

For Appellant:                                          For Appellee:

MARK A. ZANGHI                                          JOHN C. THATCHER
One Public Square                                       KNOX COUNTY PROSECUTOR
Mount Vernon, OH 43050
                                                        CHARLES T. MCCONVILLE
                                                        117 E. High St., Suite 234
                                                        Mount Vernon, OH 43050

Delaney, J.
       {¶1}   Defendant-Appellant William P. Cartwright appeals the June 18, 2008

sentencing entry and the January 3, 2011 denial of Appellant’s motion to withdraw his

guilty plea by the Knox County Court of Common Pleas. Plaintiff-Appellee is the State

of Ohio.

                             STATEMENT OF THE CASE1

       {¶2}   Appellant was indicted by the Knox County Grand Jury on September 11,

2007 on one count of Aggravated Vehicular Homicide, a second-degree felony in

violation of R.C. 2903.06(A)(1)(a); one count of Aggravated Vehicular Homicide, a third-

degree felony in violation of R.C. 2903.06(A)(2)(a); one count of Vehicular Homicide, a

first-degree misdemeanor in violation of R.C. 2903.06(A)(3)(a); one count of Vehicular

Manslaughter, a second-degree misdemeanor, in violation of R.C. 2903.06(A)(4); one

count of Aggravated Vehicular Assault, a third-degree felony, in violation of R.C.

2903.08(A)(1)(a); one count of Vehicular Assault, a fourth-degree felony in violation of

R.C. 2903.06(A)(2)(a); one count of Driving While Intoxicated, a first-degree

misdemeanor, in violation of R.C. 4511.19(A)(1)(a); and one count of Driving While

Intoxicated, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(f).

       {¶3}   On May 23, 2008, Appellant entered a guilty plea to Count One of the

Indictment, Aggravated Vehicular Homicide, a second-degree felony in violation of R.C.

2903.06(A)(1)(a), and Count Eight of the Indictment, Driving While Intoxicated, a first-

degree misdemeanor in violation of R.C. 4511.19(A)(1)(f). The trial court dismissed the

remaining counts of the indictment upon a motion by the State.

       {¶4}   The trial court held a sentencing hearing on June 16, 2008. The trial court

sentenced Appellant to serve a mandatory term of imprisonment of seven years for
Count One and a definite term of imprisonment of six months on Count Eight. The

sentences were to be served concurrently.                          At the hearing, the trial court informed

Appellant that he would be subject to up to five years of postrelease control. (T. 11).

           {¶5}      The June 18, 2008 sentencing entry incorrectly states that Appellant

entered a guilty plea to “One Count of Aggravated Vehicular Homicide, in violation of

Ohio Revised Code Section 2903.06(A)(1), a felony of the First Degree as contained

within Count One of the Indictment * * *.”                          The sentencing entry then states that

Appellant will serve a five-year term of postrelease control.

           {¶6}      On November 24, 2010, Appellant filed a pro se motion to withdraw his

guilty plea. The State opposed the motion. The trial court denied Appellant’s motion on

January 3, 2011.

           {¶7}      It is from these decisions Appellant now appeals. The State did not file a

responsive brief.

           {¶8}      Appellant raises two Assignments of Error:

           {¶9}       “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A POST-RELEASE

CONTROL SANCTION OF FIVE YEARS FOR A FELONY OF THE SECOND DEGREE

THAT IS NOT A SEX OFFENSE.

           {¶10} “II. THE APPELLANT’S GUILTY PLEAS TO COUNT ONE AND EIGHT

OF THE INDICTMENT WERE NOT OFFERED KNOWINGLY, VOLUNTARILY AND

INTELLIGENTLY.”

                                                              I.

           {¶11} Appellant argues in his first Assignment of Error that the trial court erred

when it imposed a mandatory five year term of postrelease control. We agree.

1
    A statement of the facts is unnecessary for the disposition of this appeal.
       {¶12} Appellant entered a guilty plea to Count One of the indictment,

Aggravated Vehicular Homicide, a second-degree felony in violation of R.C.

2903.06(A)(1)(a).   Under R.C. 2967.28(B)(2), an offender sentenced to prison for a

felony of the second degree that is not a felony sex offense shall be subject to post

release control for three years.

       {¶13} Appellant is entitled to a de novo sentencing hearing that “is limited to

proper imposition of postrelease control.” State v. Fischer, 128 Ohio St.3d 92, 942

N.E.2d 332, 2010–Ohio–6238, paragraph two of the syllabus.

       {¶14} Appellant’s first Assignment of Error is sustained.

                                           II.

       {¶15} Appellant contends in his second Assignment of Error that the trial court

abused its discretion in denying his motion to withdraw his guilty plea because Appellant

states he was not properly informed of his postrelease control at his plea hearing on

May 23, 2008. We disagree.

       {¶16} Crim.R. 32.1 governs withdrawal of guilty plea and states “[a] motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed;

but to correct manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea.” The right to withdraw

a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
       {¶17} At Appellant’s plea hearing, the trial court informed Appellant that he may

have up to five years of post release control. As stated above, a sentence for a second-

degree felony is subject to a mandatory term of three years post release control.

Appellant argues that the trial court incorrectly informed him of the length of post

release control and the discretionary nature of the post release control. If Appellant had

known post release control was mandatory, Appellant states he would not have entered

a guilty plea.

       {¶18} We find these facts to be almost identical to those in State v. Green, 5th

Dist. No. 2010CA00198, 2011-Ohio-1636. In that case, the appellant was convicted of

a first-degree felony. The trial court informed the appellant that he was subject to post

release control of “up to five years” whereas post release control for a first-degree

felony is subject to a mandatory five-year term. The appellant argued the trial court

failed to comply with the maximum sentence component of Crim.R. 11(C)(2)(a).

Because the appellant was only informed of a discretionary period of post release

control, he did not enter his plea knowingly, intelligently, or voluntarily. Id. at ¶23-25.

       {¶19} In overruling the appellant’s Assignment of Error, we held:

       {¶20} “In State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-3748,

¶ 30–32, the Supreme Court of Ohio explained the following:

       {¶21} “’If a trial court fails to literally comply with Crim.R. 11, reviewing courts

must engage in a multitiered analysis to determine whether the trial judge failed to

explain the defendant's constitutional or nonconstitutional rights and, if there was a

failure, to determine the significance of the failure and the appropriate remedy.
       {¶22} “’When a trial judge fails to explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid ‘under a presumption that it

was entered involuntarily and unknowingly.’ Griggs, 103 Ohio St.3d 85, 2004-Ohio-

4415, 814 N.E.2d 51, ¶ 12; see also Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474, citing

Boykin, 395 U.S. at 242–243, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, if the trial judge

imperfectly explained 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.   Id.   Under this standard, a slight 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. Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.

       {¶23} “’When the trial judge does not substantially comply with Crim.R. 11 in

regard to a nonconstitutional right, reviewing courts must determine whether the trial

court partially complied or failed to comply with the rule.      If the trial judge partially

complied, e.g., by mentioning mandatory postrelease control without explaining it, the

plea may be vacated only if the defendant demonstrates a prejudicial effect. See Nero,

56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86,

93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy, 117 Ohio

St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is ‘whether the

plea would have otherwise been made.’ Nero at 108, 564 N.E.2d 474, citing Stewart,

Id. If the trial judge completely failed to comply with the rule, e.g., by not informing the

defendant of a mandatory period of postrelease control, the plea must be vacated. See

Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d, 1224, paragraph two of the
syllabus. ‘A complete failure to comply with the rule does not implicate an analysis of

prejudice.’ Id. at ¶ 22, 881 N.E.2d 1224.’” State v. Green, supra, ¶26-29.

          {¶24}   In the case sub judice, the trial court informed Appellant of postrelease

control at his plea hearing on May 23, 2008, albeit incorrectly. Appellant stated in his

affidavit with his motion to withdraw his guilty plea that, “[h]ad I known that Post Release

Control was mandatory for five years at the time I plead guilty, Had I been advised of

mandatory prison time, I would not have plead guilty.”

          {¶25} As in State v. Green, we find Appellant has failed to show a prejudicial

effect.    Appellant has not shown that but for the trial court’s error in stating that

postrelease control may be up to five years as opposed to a mandatory three years,

Appellant would not have entered the guilty plea and gone to trial instead. We do not

find a manifest injustice has occurred to mandate the trial court’s withdrawal of

Appellant’s guilty plea.

          {¶26} Appellant’s second Assignment of Error is overruled.

          {¶27} The judgment of the Knox County Court of Common Pleas is affirmed in

part and reversed and remanded in part for further proceedings consistent with this

Opinion.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                          HON. PATRICIA A. DELANEY
                                          HON. W. SCOTT GWIN



                                          HON. JOHN W. WISE


                      IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                               FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                                            :
                     Plaintiff-Appellee     :
                                            :
-vs-                                        :   JUDGMENT ENTRY
                                            :
WILLIAM P. CARTWRIGHT                       :
                                            :
                                            :   Case No. 11CA000001
                    Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Knox County Court of Common Pleas is affirmed in part and reversed and remanded in

part. Costs assessed to Appellee.




                                          HON. PATRICIA A. DELANEY



                                          HON. W. SCOTT GWIN
HON. JOHN W. WISE
