[Cite as State v. Taylor, 2018-Ohio-1528.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                        No. 17AP-329
v.                                                  :                (C.P.C. No. 16CR-5963)

Clarence E. Taylor,                                 :               (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                       Rendered on April 19, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee. Argued: Valerie Swanson.

                 On brief: Timothy Young, Ohio Public Defender, and
                 Stephen P. Hardwick, for appellant. Argued: Stephen P.
                 Hardwick.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

        {¶ 1} Defendant-appellant, Clarence E. Taylor, appeals a judgment of conviction
entered by the Franklin County Court of Common Pleas. Although we find no error in
connection with the trial court's acceptance of Taylor's guilty pleas, we reverse the judgment
and remand with instructions to enter a new judgment entry that reflects the dismissal of
the repeat violent offender specification to the aggravated robbery conviction.
FACTS AND PROCEDURAL HISTORY
        {¶ 2} On October 26, 2016, an indictment was returned against Taylor for
(1) aggravated robbery (R.C. 2911.01), with a three-year firearm specification and a repeat
No. 17AP-329                                                                                2

violent offender specification; (2) robbery (R.C. 2911.02), with a three-year firearm
specification and a repeat violent offender specification; (3) robbery (R.C. 2911.02), with a
three-year firearm specification; and, (4) having weapons while under disability (R.C.
2923.13). Taylor pled not guilty and the case proceeded to trial.
       {¶ 3} Following the first day of trial, Taylor agreed to plead guilty to Count 1,
aggravated robbery, a first-degree felony, with a three-year firearm specification, and to
aggravated menacing, a stipulated lesser-included offense of Count 4. As part of the plea
agreement, the state asked the trial court to dismiss two lesser-included charges of robbery
as well as any remaining specifications. During the trial court's plea colloquy with Taylor,
the trial court addressed the issue of post-release control as follows:
              THE COURT: Finally, if I accept your guilty plea and you are
              sent to prison, you will be placed on post-release control
              whereby the Adult Parole Authority will supervise your
              behavior upon your release for up to five years. If you were to
              violate the terms of your release, the Adult Parole Authority can
              extend your time on post-release control or return you to
              prison for up to one half of your original sentence. Do you
              understand?

              DEFENDANT TAYLOR: Yes, ma'am.

(Jan. 17, 2017 Tr. at 140-41.)
       {¶ 4} The trial court also confirmed that prior to signing the guilty plea form, Taylor
read and reviewed the form with his attorney. The guilty plea form reflects an "X" in the
box indicating that post-release control will be "Five Years - Mandatory." Additionally,
Taylor signed a document titled "NOTICE (Prison Imposed)" that states Taylor will have a
period of post-release control of five years after his release from prison.
       {¶ 5} After completing the colloquy, the trial court accepted Taylor's guilty pleas to
aggravated robbery, a felony of the first degree, with the three-year firearm specification,
and to aggravated menacing, a misdemeanor of the first degree. The trial court further
orally ordered "a nolle on Count Two and Three and the remaining specifications." Id. at
145.
       {¶ 6} The trial court's judgment entry reflects Taylor's guilty pleas to these charges
and states that "a Nolle Prosequi shall be entered as to Counts Two and Three and the
Specifications as to Count Three of the indictment." (Apr. 12, 2017 Jgmt. Entry at 1.) The
No. 17AP-329                                                                              3

judgment entry does not address the repeat violent offender specification attached to the
aggravated robbery charge in Count 1 of the indictment.
       {¶ 7} Taylor appeals assigning the following errors:
              [1.] The trial court erred by accepting an involuntary guilty
              plea.

              [2.] The trial court erred by failing to include in its judgment
              entry that a nolle prosequi had been ordered for the repeat-
              violent-offender specification in Count 1.

LEGAL ANALYSIS
       {¶ 8} As noted by the Supreme Court of Ohio in State v. Clark, 119 Ohio St.3d 239,
2008-Ohio-3748:
              A criminal defendant's choice to enter a plea of guilty or no
              contest is a serious decision. The benefit to a defendant of
              agreeing to plead guilty is the elimination of the risk of
              receiving a longer sentence after trial. But, by agreeing to plead
              guilty, the defendant loses several constitutional rights. The
              exchange of certainty for some of the most fundamental
              protections in the criminal justice system will not be permitted
              unless the defendant is fully informed of the consequences of
              his or her plea. Thus, unless a plea is knowingly, intelligently,
              and voluntarily made, it is invalid.

(Citations omitted.) Id. at ¶ 25, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996).
       {¶ 9} "To ensure that pleas conform to these high standards, the trial judge must
engage the defendant in a colloquy before accepting his or her plea. See State v. Ballard
(1981), 66 Ohio St.2d 473, paragraph one of the syllabus; Crim.R. 11(C), (D), and (E). It
follows that, in conducting this colloquy, the trial judge must convey accurate information
to the defendant so that the defendant can understand the consequences of his or her
decision and enter a valid plea." Id. at ¶ 26.
       {¶ 10} Before accepting Taylor's plea, the trial court was bound by the requirements
of Crim.R. 11(C)(2).
              Under this rule, the trial judge may not accept a plea of guilty
              or no contest 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
No. 17AP-329                                                                                  4

              of community control sanctions at the sentencing hearing," (2)
              informing the defendant of the effect of the specific plea and
              that the court may proceed with judgment and sentencing after
              accepting it, and ensuring that the defendant understands
              these facts, and (3) informing the defendant that entering a
              plea of guilty or no contest waives the constitutional rights to a
              jury trial, to confrontation, to compulsory process, and to the
              requirement of proof of guilt beyond a reasonable doubt and
              determining that the defendant understands that fact.

Id. at ¶ 27; Crim.R. 11(C)(2)(a) through (c).
       {¶ 11} "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 is
entered involuntarily and unknowingly.' " Id. at ¶ 31, quoting State v. Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, ¶ 12. "However, if the trial judge imperfectly explained
nonconstitutional rights such as the right to be informed of the maximum possible penalty
and effect of the plea, a substantial compliance rule applies. 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." (Citation omitted.) Clark at ¶ 31, quoting
State v. Nero, 56 Ohio St.3d 106, 108 (1990).
       {¶ 12} "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 post-release control without explaining it, the plea may be
vacated only if the defendant demonstrates a prejudicial effect." Clark at ¶ 32. The test for
prejudice is " 'whether the plea would have otherwise been made.' " Id., quoting Nero at
108; State v. Rodriguez, 10th Dist. No. 17AP-78, 2017-Ohio-9130, ¶ 17. If a trial judge
completely fails to comply with the rule, e.g., by not informing the defendant of a mandatory
period of post-release control, the plea must be vacated. Clark at ¶ 32, citing State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, paragraph two of the syllabus. " 'A complete
failure to comply with the rule does not implicate an analysis of prejudice.' " Clark at ¶ 32,
quoting Sarkozy at ¶ 22.
       {¶ 13} In his first assignment of error, Taylor contends that the trial court erred by
accepting an involuntary guilty plea. We disagree.
No. 17AP-329                                                                                 5

       {¶ 14} Taylor does not challenge the trial court's explanation of his constitutional
rights. Rather, he challenges the trial court's explanation of the maximum possible penalty
and effect of his plea–a nonconstitutional right. In its plea colloquy with Taylor, the trial
court stated that his guilty plea would result in a period of post-release control "up to" five
years. By suggesting that Taylor could receive less than the mandatory five years of post-
release control, we agree with Taylor that the trial court failed to substantially comply with
Crim.R. 11. State v. Lang, 8th Dist. No. 92099, 2010-Ohio-433, ¶ 11 (advising defendant
that he was subject to three years of post-release control instead of the mandatory five years
of post-release control was not substantial compliance). However, given that the trial court
informed Taylor that there would be period of post-release control, we find that the trial
court partially complied. State v. Knox, 2d Dist. No. 25774, 2015-Ohio-433, ¶ 11 (partial
compliance with Crim.R. 11 is established when trial court discusses post-release control at
the plea hearing, but misinforms the defendant as to whether post-release control is
mandatory or discretionary); Rodriguez at ¶ 21 (partial compliance with Crim.R. 11 is
established when trial court discusses post-release control at the plea hearing, but
incorrectly tells defendant that the period of post-release control is 3 years rather than the
mandatory 5 years). Therefore, Taylor must demonstrate that he was prejudiced by the
inaccurate statement to invalidate his plea. Clark at ¶ 32; Lang at ¶ 12; Rodriguez at ¶ 21.
       {¶ 15} Taylor points to nothing in the record that suggests his guilty plea was
influenced in any way by the trial court's inaccurate suggestion that he might receive less
than the mandatory five years of post-release control. As noted by the state, the guilty plea
form Taylor signed indicates that Taylor will receive a mandatory five-year period of post-
release control. Taylor stated during his plea colloquy that he had read the guilty plea form
and reviewed it with his counsel, who answered any questions he might have had. Taylor
also signed a document titled "NOTICE (Prison Imposed)" that states he will have a five-
year period of post-release control. Nothing in the record indicates that Taylor had any
questions or expressed any concerns regarding the length of post-release control. Taylor
points to nothing in the record that suggests his guilty plea was influenced in any way by
the trial court's inaccurate suggestion that he could receive less than the mandatory five-
year term of post-release control. Because we find that Taylor has not demonstrated
prejudice, we overrule his first assignment of error. Rodriguez at ¶ 24.
No. 17AP-329                                                                               6

       {¶ 16} In his second assignment of error, Taylor contends that the trial court erred
by failing to include in its judgment entry a nolle prosequi for the repeat violent offender
specification in Count 1. The state concedes this error.
       {¶ 17} As part of the negotiated plea, Taylor entered a guilty plea to aggravated
robbery, with a three-year firearm specification and aggravated menacing as a lesser-
included offense of Count 4. The trial court orally granted a nolle prosequi to the remaining
charges and specifications in the indictment. However, the judgment entry only reflects a
nolle prosequi as to Counts 2 and 3 and the specifications contained in Count 3 of the
indictment. We agree with the parties that the trial court erred by failing to include in its
judgment entry a nolle prosequi for the repeat violent offender specification associated with
Count 1. Therefore, we sustain Taylor's second assignment of error, reverse the judgment,
and remand this case with instructions to issue a new judgment entry that includes the
dismissal of the repeat violent offender specification associated with Count 1 of the
indictment.
                                    Judgment reversed; case remanded with instructions.

                             BROWN, P.J., and HORTON, J., concur.
