[Cite as State v. Lawson, 2018-Ohio-1222.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2016-CA-20
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-440
                                                   :
 LARAMIE D. LAWSON                                 :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                               OPINION

                            Rendered on the 30th day of March, 2018.

                                              ...........

ANTHONY KENDELL, Atty. Reg. No. 0067242, Miami County Prosecutor’s Office, 201
West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

ALEX KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, Ohio
45213
      Attorney for Defendant-Appellant

                                             .............
                                                                                         -2-


WELBAUM, P.J.

       {¶ 1} Defendant-appellant, Laramie D. Lawson, appeals from his conviction and

sentence following a guilty plea to one count of failure to comply with the order or signal

of a police officer. In support of his appeal, Lawson contends that his guilty plea was not

knowingly, intelligently, and voluntarily entered because the trial court failed to properly

advise him of the maximum possible penalty that could be imposed as required by Crim.R.

11(C)(2)(a).   Specifically, Lawson claims that the trial court’s advisements regarding

post-release control at the plea hearing and in the written plea form contained conflicting

language that made it unclear as to whether post-release control was mandatory or

discretionary. Lawson also contends that his trial counsel was ineffective in failing to

object to the trial court’s unclear post-release control advisements.

       {¶ 2} The State concedes error with regard to Lawson’s guilty plea not being

knowingly, intelligently, and voluntarily entered.   Accordingly, the State submits that

Lawson’s guilty plea should be vacated and that the matter should be remanded to the

trial court for further proceedings.     However, the State maintains that Lawson’s

ineffective assistance claim is not ripe for review and rendered moot by the vacation of

his guilty plea.

       {¶ 3} For the reasons outlined below, we agree that Lawson’s guilty plea was not

knowingly, intelligently, and voluntarily entered, thereby rendering Lawson’s ineffective

assistance claim moot. Accordingly, the judgment of the trial court will be reversed,

Lawson’s guilty plea will be vacated, and the matter will be remanded to the trial court for

further proceedings.
                                                                                            -3-


                            Facts and Course of Proceedings

       {¶ 4} On September 9, 2016, Lawson pled guilty to one count of failure to comply

with the order or signal of a police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(i),

a felony of the third degree. At Lawson’s plea hearing, the trial court notified Lawson of

the maximum possible penalty he could receive for the offense and, in doing so, stated

the following with regard to post-release control:

       THE COURT:            Now anyone facing a potential prison sentence must

                             be advised Post Release Control [sic]. If at some time

                             you were to receive a prison sentence in this case, you

                             may be required to serve a period of Post Release

                             Control as part of your sentence, after you are released

                             from prison.     Now in your case, because it’s an

                             offense of violence, it’s going to be a three year

                             mandatory term of Post Release Control.           Do you

                             understand that?

       MR. LAWSON:           Yes.

       THE COURT:            Okay. So if you were to receive a prison sentence in

                             this case, you’re going to have a period of PRC for

                             three years afterwards—up to three years afterwards.

                             Do you understand that?

       MR. LAWSON:           Yes.

(Emphasis added.) Trans. (Sept. 9, 2016), p. 11-12

       {¶ 5} The written plea form reviewed and signed by Lawson also provided the
                                                                                          -4-


following notification regarding post-release control:

       In addition, a period of control or supervision by the Adult Parole Authority

       after release from prison is [mandatory/optional] in this case. The control

       period may be a maximum of: * * * F-2, F-3 an offense of violence—3 years

       mandatory[.]

(Emphasis added.) Petition to Enter Plea of Guilty (Sept. 12, 2016), Miami County Court

of Common Pleas Case No. 2016-CR-440, Docket No. 5, p. 3. The word “optional” was

circled on the plea form, indicating that post-release control was not mandatory.

       {¶ 6} After Lawson entered his guilty plea, the trial court accepted the plea, ordered

a presentence investigation report, and scheduled the matter for sentencing on October

11, 2016. At sentencing, the trial court sentenced Lawson to a 30-month prison term

with 73 days of jail-time credit and a mandatory three-year term of post-release control.

       {¶ 7} Following his conviction and sentence, Lawson filed a notice of appeal and

was appointed appellate counsel. Lawson’s appellate counsel then filed a brief under

the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

which indicated there were no issues with arguable merit to present on appeal. After

conducting an Anders review, this court determined that an appealable issue existed with

respect to the validity of Lawson’s guilty plea given the trial court’s post-release control

advisements. Specifically, we explained that:

              Although the trial court in this case advised Lawson at the plea

       hearing that post-release control was mandatory, the trial court thereafter

       stated that post-release control would last “up to three years,” thus

       indicating that Lawson could possibly receive less than three years of post-
                                                                                       -5-


       release control. In addition, the plea form signed by Lawson provided that

       post-release control was optional, as the word “optional” was circled on the

       form instead of “mandatory.”       The plea form also used discretionary

       language stating that the control period “may be a maximum of * * * 3 years

       mandatory.”     Therefore, the record establishes that the post-release

       control advisements at the plea hearing and in the plea form are unclear as

       they contained both discretionary and mandatory language.

              Lawson should be given the benefit of having counsel argue whether

       the trial court’s post-release control advisements at the plea hearing and in

       the plea form amount to a complete or partial failure to comply with Crim.R.

       11(C)(2)(a), and if necessary, whether the statements resulted in any

       prejudice that requires the vacation of his guilty plea.

Decision and Entry (July 12, 2017), 2d Dist. Miami Appellate Case No. 2016-CA-20, p.

7-8.

       {¶ 8} Based on the foregoing reasoning, we rejected Lawson’s Anders brief and

appointed new appellate counsel to file a brief on Lawson’s behalf addressing the validity

of his guilty plea and any other issue that counsel deemed appropriate for appeal.

Thereafter, Lawson’s new appellate counsel filed a brief raising the following two

assignments of error for review:

       I.     Because the trial court advised Mr. Lawson that post-release control

              was both mandatory and optional during his plea colloquy and Mr.

              Lawson’s written plea stated that post-release control was optional,

              Mr. Lawson’s plea in Case Number 2016-CR-440 was not knowingly,
                                                                                          -6-


              voluntarily, and intelligently given.

       II.    Counsel provided ineffective assistance during Mr. Lawson’s plea

              proceedings in violation of Mr. Lawson’s sixth and fourteenth

              amendment rights under both the Ohio and United States

              Constitutions.

       {¶ 9} In response to Lawson’s newly filed appellate brief, the State filed a notice of

conceded error with respect to Lawson’s first assignment of error. However, the State

maintains that Lawson’s second assignment of error alleging ineffective assistance of

counsel was not ripe for review and rendered moot. We agree with the State.



                     Lawson Did Not Knowingly, Intelligently, and

                            Voluntarily Enter His Guilty Plea

       {¶ 10} As noted above, under his first assignment of error, Lawson contends that

his guilty plea was not knowingly, intelligently, and voluntarily entered because the trial

court failed to properly advise him about the mandatory nature of his post-release control.

       {¶ 11} “To be constitutionally valid and comport with due process, a guilty plea

must be entered knowingly, intelligently, and voluntarily.” State v. Bateman, 2d Dist.

Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be knowing, intelligent, and

voluntary, the trial court must comply with Crim.R. 11(C).” (Citation omitted.) State v.

Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6. “Crim.R. 11(C) governs the

process that a trial court must use before accepting a felony plea of guilty or no contest.”

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. “By following
                                                                                        -7-


this rule, a court ensures that the plea is knowing, intelligent, and voluntary.” (Citation

omitted.) State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12.

       {¶ 12} Pursuant to Crim.R. 11(C)(2)(a), the trial court must determine “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.” When “post-release control applies, the trial court is required to inform the

defendant of its applicability due to this rule.” State v. Threats, 2016-Ohio-8478, 78

N.E.3d 211, ¶ 21 (7th Dist.), citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,

881 N.E.2d 1224, ¶ 7-10, 22.

       {¶ 13} The trial court, however, need only substantially comply with the

advisements required by Crim.R. 11(C)(2)(a). Cole at ¶ 12, citing State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474 (1990). Under the substantial compliance 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.” State v. Clark, 119 Ohio

St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting Nero at 108.

       {¶ 14} If there is no substantial compliance, we are to ascertain whether the trial

court “partially complied or failed to comply with the rule.” (Emphasis sic.) Id. at ¶ 32.

If there is partial compliance, the plea cannot be vacated unless the defendant shows that

he or she was prejudiced. Id. (providing as an example the situation where a court

mentions, but does not explain, mandatory post-release control). “The test for prejudice

is ‘whether the plea would have otherwise been made.’ ” Id., quoting Nero at 108.
                                                                                          -8-


(Other citation omitted.) However, “[i]f 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.” Id., citing Sarkozy at paragraph two of the syllabus. “ ‘A

complete failure to comply with the rule does not implicate an analysis of prejudice.’ ” Id.,

quoting Sarkozy at ¶ 22.

       {¶ 15} Here, it is undisputed that Lawson was required to serve a mandatory term

of post-release control for his offense. Both Lawson and the State maintain that the trial

court did not effectively advise Lawson that his term of post-release control was

mandatory due to the conflicting language used by the trial court at the plea hearing and

in the written plea form. As a result, Lawson and the State agree that the trial court did

not substantially comply with Crim.R. 11(C)(2)(a).        The parties further agree that

Lawson’s plea must be vacated because the trial court completely failed to comply with

the portion of Crim.R. 11(C)(2)(a) that requires the trial court to inform Lawson of the

maximum possible penalty for his offense, which, in this case, included a mandatory term

of post-release control.

       {¶ 16} Having reviewed the record, we agree with the parties on this issue.

Accordingly, we conclude that Lawson’s plea must be vacated because it was not

knowingly, intelligently, and voluntarily entered.

       {¶ 17} Lawson’s first assignment of error is sustained.



                    Lawson’s Ineffective Assistance Claim is Moot

       {¶ 18} As previously discussed, under his second assignment of error, Lawson

contends that his trial counsel was ineffective in failing to object to the unclear post-
                                                                                        -9-


release control advisements made by the trial court at the plea hearing and in the written

plea form. However, in light of our holding under Lawson’s first assignment of error, we

agree with the State and find that the ineffective assistance claim raised by Lawson is no

longer ripe for review and is rendered moot.

       {¶ 19} Lawson’s second assignment of error is overruled.



                                        Conclusion

       {¶ 20} Having sustained Lawson’s first assignment of error, the judgment of the

trial court is reversed, Lawson’s guilty plea is vacated, and the matter is remanded to the

trial court for further proceedings.



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



DONOVAN, J. and HALL, J., concur.



Copies mailed to:

Anthony Kendell
Alex Kochanowski
Laramie D. Lawson
Hon. Jeannine N. Pratt
