[Cite as State v. Alexander, 2012-Ohio-4843.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :     JUDGES:
                                                :
                                                :     Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                       :     Hon. W. Scott Gwin, J.
                                                :     Hon. William B. Hoffman, J.
-vs-                                            :
                                                :     Case No. 2012CA00115
MONDELL ALEXANDER                               :
                                                :
                                                :
       Defendant-Appellant                      :     OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2010CR1653



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             October 15, 2012




APPEARANCES:

For Appellant:                                        For Appellee:

MONDELL ALEXANDER #594-547                            JOHN D. FERRORO
M.C.I.                                                STARK COUNTY PROSECUTOR
P.O. Box 57
Marion, OH 43301                                      KATHLEEN O. TATARSKY
                                                      110 Central Plaza, South – Suite 510
                                                      Canton, OH 44702-1413
Delaney, P.J.

       {¶1} Defendant-Appellant Mondell Alexander appeals the May 22, 2012

judgment entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the

State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Alexander was indicted by the Stark County Grand Jury on two counts of

aggravated robbery, first-degree felonies in violation of R.C. 2911.01(A)(1).         Each

charge carried a firearm specification. Alexander entered a plea of not guilty to the

charges.

       {¶3} On January 5, 2011, Alexander appeared before the trial court and

changed his not guilty pleas to guilty. During the plea colloquy, the trial court stated,

“Do you understand that following any period of incarceration there would be a

mandatory period of supervision by the Parole Authority?”           (Sentencing Tr., 4.)

Alexander responded, “Yes, sir.” (Sent. Tr., 5.)

       {¶4} Alexander signed a Crim.R. 11(C) plea form on January 5, 2011. The

plea stated in pertinent part:

              Upon release from prison, the defendant will be ordered to serve a

       mandatory period of five years of post-release control, pursuant to R.C.

       2967.28(B). This period of post-release control will be imposed as part

       of defendant’s criminal sentence at the sentencing hearing, pursuant to

       R.C. 2929.19. If the defendant violates the conditions of post-release

       control, the defendant will be subject to an additional prison term of up to
       one-half of the stated prison term as otherwise determined by the Parole

       Board, pursuant to law.

       {¶5} The trial court accepted Alexander’s plea and proceeded to the

sentencing phase. (Sent. Tr., 6-7.) The trial court sentenced Alexander to ten years

in prison. The trial court notified Alexander that following any period of incarceration,

there would be a mandatory period of supervision by the Parole Authority for five

years and violations of any conditions would lead to periods of reimprisonment up to

one-half the sentence imposed. (Sent. Tr., 8.)

       {¶6} The change of plea and sentence was journalized on January 19, 2011.

The sentencing entry states that Alexander was subject to a mandatory five-year term

of post-release control.

       {¶7} Alexander did not file a direct appeal of his sentence.

       {¶8} On May 1, 2012, Alexander filed a Motion for Sentencing and Leave to

Withdraw Guilty Plea(s). In his motion, Alexander argued his sentence was void for

failure to give proper notification of post-release control during his plea hearing. The

trial court denied Alexander’s motion on May 29, 2012.

       {¶9} It is from this decision Alexander now appeals.

                              ASSIGNMENT OF ERROR

       {¶10} Alexander raises one Assignment of Error:

       {¶11} “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREIN

VIOLATING      DUE     PROCESS       WHEN      IT   DENIED     ‘WITHOUT      HEARING’

DEFENDANT’S MOTION FOR ‘SENTENCING’ AND FOR ‘LEAVE TO WITHDRAW

GUILTY PLEA.’ SEE: STATE V. BOSWELL, 121 OHIO ST.3D 575; AND, STATE V.
MONTEZ-JONES, 2011-OHIO-1202 (OHIO APP. 5 DIST.).                   SEE ALSO: CRIM.R.

11(C)(2)(A).”

                                       ANALYSIS

       {¶12} Alexander argues the trial court erred because his sentence is void due

to the trial court’s failure to properly notify Alexander of his post-release control during

his plea colloquy. Alexander’s contention that the trial court failed to properly inform

him of post-release control during the plea colloquy is an argument that the trial court

failed to comply with Crim.R. 11(C)(2). We will analyze Alexander’s Assignment of

Error under the requirements of Crim.R. 11.

       {¶13} Crim.R. 11(C)(2) details the trial court’s duty in a felony plea hearing to

address the defendant personally and to convey certain information to such

defendant, and makes clear that the trial court shall not accept a guilty plea or no

contest without performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70,

2010-Ohio-428, ¶10. Crim.R. 11(C)(2)(a) states the trial court must determine,

       * * * that the defendant is making the plea voluntarily, with the

       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.

       {¶14} Post-release control constitutes a portion of the maximum penalty. State

v. Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011-Ohio-1202, ¶ 20.

       {¶15} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,

¶ 25, the Ohio Supreme Court held,
              * * * if a trial court fails during a plea colloquy to advise a defendant

       that the sentence will include a mandatory term of postrelease control, the

       defendant may dispute the knowing, intelligent, and voluntary nature of

       the plea either by filing a motion to withdraw the plea or upon direct

       appeal. Further, we hold that if the trial court fails during the plea colloquy

       to advise a defendant that the sentence will include a mandatory term of

       postrelease control, the court fails to comply with Crim.R. 11 and the

       reviewing court must vacate the plea and remand the cause.

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

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only “substantially comply” with the rule when dealing with the non-constitutional

elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No. 2011-CA-121, 2012-Ohio-

2957, ¶ 11 citing 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, 103

Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, the Ohio Supreme Court noted

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

       involuntarily and unknowingly, failure to comply with non constitutional

       rights will not invalidate a plea unless the defendant thereby suffered

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

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

       been made.’ Id. Under the substantial-compliance standard, we review
       the totality of circumstances surrounding [the defendant's] plea and

       determine whether he subjectively understood [the effect of his plea].

See State v. Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224 at ¶ 19–20.

       {¶17} In determining whether the trial court has satisfied its duties under Crim.R.

11 in taking a plea, reviewing courts have distinguished between constitutional and non-

constitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d

462, ¶ 32; State v. Aleshire, 5th Dist. No. 2007–CA–1, 2008–Ohio–5688 at ¶ 10. The

trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to the

waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at 499,

2008–Ohio–3748, ¶ 31.

       {¶18} In Clark, a case decided after Sarkozy, the Ohio Supreme Court

concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly explains non-

constitutional rights such as the right to be informed of the maximum possible penalty

and the effect of the plea, a substantial-compliance rule applies on appellate review;

under this standard, a slight deviation from the text of the governing rule is permissible,

and 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. at ¶ 31, 881 N.E .2d 1224.        Thus, in Clark, the Ohio Supreme Court

concluded that the right to be informed of the maximum possible penalty and the effect

of the plea are subject to the substantial compliance test. 119 Ohio St.3d at 244, 893

N.E.2d at 469, 2008–Ohio–3748 at ¶ 31. (Citations omitted).

       {¶19} The present case involves the notification of post-release control during a

plea colloquy. As such, we review the trial court’s plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to

be informed of the maximum penalty. Under the substantial-compliance standard, we

analyze the totality of circumstances surrounding Alexander’s plea and determine

whether he subjectively understood the effect of his plea.

       {¶20} Alexander cites this Court to State v. Jones, 5th Dist. Nos. 10CA75,

10CA76, 10CA77, 2011-Ohio-1202, in support of his argument that the trial court

failed to properly inform him of his term of post-release control during the plea

colloquy. In Jones, the trial court failed to inform the defendant of the possibility of

post-release control prior to accepting the defendant’s plea. We found the defendant’s

plea was not made knowingly, intelligently, and voluntarily and in contravention of

Sarkozy. Id. at ¶ 21.

       {¶21} We find the facts of Jones to be distinguishable from the present case.

In this case, the trial court stated during the plea colloquy, “Do you understand that

following any period of incarceration there would be a mandatory period of supervision

by the Parole Authority?” (Sentencing Tr., 4.) Alexander responded, “Yes, sir.” (Sent.

Tr., 5.) Alexander signed a Crim.R. 11(C) form, which stated:

       Upon release from prison, the defendant will be ordered to serve a

       mandatory period of five years of post-release control, pursuant to R.C.

       2967.28(B). This period of post-release control will be imposed as part

       of defendant’s criminal sentence at the sentencing hearing, pursuant to

       R.C. 2929.19. If the defendant violates the conditions of post-release

       control, the defendant will be subject to an additional prison term of up to
      one-half of the stated prison term as otherwise determined by the Parole

      Board, pursuant to law.

      {¶22} In Sarkozy and Jones, there was no mention of post-release control at

the plea hearing. In the present case, the trial court notified Alexander that post-

release control was mandatory and the Crim.R. 11(C) form signed by Alexander stated

that post-release control was mandatory for a term of five years. We find, under the

totality of the circumstances, the trial court substantially complied with the

requirements of Crim.R. 11(C)(2)(a) in informing Alexander of post-release control

during his plea hearing so that Alexander subjectively understood the implications of

his plea. See State v. Knowles, 10th Dist. 10AP-119, 2011-Ohio-4477.

      {¶23} Alexander’s sole Assignment of Error is overruled.
CONCLUSION

       {¶24} The sole Assignment of Error of Defendant-Appellant Mondell Alexander

is overruled.

       {¶25} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.




                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. WILLIAM B. HOFFMAN




PAD:kgb
                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                            FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   2012CA00115
MONDELL ALEXANDER                       :
                                        :
   Defendant - Appellant                :
                                        :


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

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. WILLIAM B. HOFFMAN
