[Cite as State v. Schultz, 2013-Ohio-2218.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 12 CA 24
ANGELA K. SCHULTZ

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CR 44


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 28, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GREGG MARX                                     THOMAS R. ELWING
PROSECUTING ATTORNEY                           60 West Columbus Street
JOCELYN S. KELLY                               Pickerington, Ohio 43147
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 12 CA 24                                                     2

Wise, J.

       {¶1}   Appellant Angela K. Schultz appeals her conviction, in the Fairfield County

Court of Common Pleas, following her plea of guilty to one count of aggravated

vehicular homicide. Appellee is the State of Ohio. The relevant facts leading to this

appeal are as follows.

       {¶2}   On October 4, 2011, appellant drove from a bar with a blood alcohol level

that was almost triple the per se legal limit. At the time, appellant had three prior OVI

convictions, one conviction of physical control under the influence, and a suspended

driver’s license. Her vehicle ultimately collided with a car driven by Sara Renko, a

twenty-two year-old mother. Sara was killed in the crash. Sentencing Tr. at 6-10.

       {¶3}   On January 31, 2012, appellant was charged with one count of

aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1), a felony of the

second degree.      The bill of information also charged a specification under R.C.

2941.1415, alleging appellant had been convicted or had pleaded guilty to three or more

violations of division (A) or (B) of R.C. 4511.19, or an equivalent offense.

       {¶4}   On March 28, 2012, appellant entered a plea of guilty to both the offense

of aggravated vehicular homicide and the accompanying specification.

       {¶5}   On April 4, 2012, appellant appeared before the trial court for a contested

sentencing hearing. At the hearing, the State argued the trial court should impose the

maximum term of eleven years for the offense plus the specification.           Counsel for

appellant argued for the minimum sentence of five years. The trial court imposed the

maximum penalty of three years for the R.C. 2941.1415 specification, consecutive to

eight years in prison for the offense of aggravated vehicular homicide, for a total of
Fairfield County, Case No. 12 CA 24                                                    3


eleven years in prison. The court also imposed a lifetime suspension of appellant's

driver's license under R.C. 2903.06(B)(2)(d).

       {¶6}   Appellant filed a notice of appeal on April 25, 2012. She herein raises the

following sole Assignment of Error:

       {¶7}   “I. THE TRIAL COURT ERRED IN ACCEPTING MS. SHULTZ’S [SIC]

GUILTY PLEAS WHICH WERE NOT MADE KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY IN VIOLATION OF THE RIGHT TO DUE PROCESS GUARANTEED

BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”

                                                I.

       {¶8}   In her sole assignment of error, appellant challenges the trial court’s

acceptance of her plea of guilty to the charge of aggravated vehicular homicide and the

accompanying specification.

       {¶9}   Ohio Criminal Rule 11(C) addresses pleas of guilty and no contest in

felony cases. It reads, in pertinent part:

       {¶10} “* * *

       {¶11} "(2) In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally and doing all of the following:

       {¶12} "(a) Determining 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.
Fairfield County, Case No. 12 CA 24                                                       4


       {¶13} "(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.

       {¶14} "(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's guilt beyond a

reasonable doubt at a trial at which the defendant cannot be compelled to testify against

himself or herself.

       {¶15} "* * *”

       {¶16} In regard to the specific constitutional rights referenced in Crim.R.

11(C)(2)(c), supra, the Ohio Supreme Court has set forth the following rule of law: “A

trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant

before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the

right to confront one's accusers, (3) the right to compulsory process to obtain witnesses,

(4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the

privilege against compulsory self-incrimination. When a trial court fails to strictly comply

with this duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897

N.E.2d 621, 2008–Ohio–5200, syllabus.

       {¶17} However, generally, in accepting a guilty plea, a trial court must

“substantially comply” with Crim.R. 11(C), which we review based on the totality of the

circumstances. See State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474;

State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In other words, “[f]or
Fairfield County, Case No. 12 CA 24                                                      5


nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required; the trial

court must substantially comply, provided no prejudicial effect occurs before a guilty

plea is accepted.” State v. Osley, Lucas App.No. L–11–1236, 2013-Ohio-1267, ¶ 17,

citing State v. Stewart, (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.

      {¶18} In the case sub judice, appellant asserts the trial court misinformed her

concerning the mandatory nature of her sentence, the availability and aspects of

community control, the possibility of judicial release, the nature of post-release control,

and the possibility of jail time credit. Appellant further asserts the trial court erred in

failing to inform appellant of the lifetime suspension of her driver's license before the

acceptance of her plea.

      {¶19} We note the following colloquy occurred on the record during the March

28, 2012 plea hearing:

       {¶20} “THE COURT: All right. Do you understand that in the event that the

Court orders a prison term to be served here, that even after completing that prison

term, you may be subject to a period of post-release control for a period of three years

after completion of that prison term?

       {¶21} “If, during that period of supervision, you violate any one or more of the

terms and conditions of post-release control, the Court has the authority to send you to

prison to serve out the balance of your sentence. Also, if you would commit any new

offense, felony offense, and be convicted of that offense during the period of post-

release control, you could be ordered to serve that sentence consecutively to any other

term of imprisonment which results from violating post-release control.

       {¶22} “Do you understand that?
Fairfield County, Case No. 12 CA 24                                                      6


       {¶23} “THE DEFENDANT: Yes, Your Honor.

       {¶24} “The Court: Unless the Court is not permitted by law to do so, you could

be placed on community control, at least with regard to the underlying offense. And the

Court could suspend the further execution of that sentence and place you under the

supervision of the Court for up to a five-year period of time under certain terms and

conditions. But if you violate any one or more of the terms and conditions of community

control, the Court has the authority to send you to prison to serve out the balance of that

sentence. This provision with regard to community control would only apply to the

extent that you would be eligible for release on judicial release.

       {¶25} “Do you understand that?

       {¶26} “THE DEFENDANT: Yes, Your Honor.

       {¶27} “The Court: In the event that the Court orders you to go to prison and

serve out a prison term, you may be eligible to earn days of credit toward that prison

term through participation in an education program, vocational training, employment in

prison industries, treatment for substance abuse, or any other constructive program

developed by the Department of Rehabilitation and Corrections. These days of credit

may not exceed eight percent of any prison term.              And these credits are not

automatically earned, but are subject to administrative review by the Department of

Rehabilitations and Corrections, and can be taken away for certain rule violations.”

       {¶28} Plea Tr. at 8-10.

       {¶29} Following the trial court's acceptance of appellant's plea, the following

exchange also occurred on the record:
Fairfield County, Case No. 12 CA 24                                                      7


       {¶30} “[ASSISTANT PROSECUTOR] MR. MEADE: Yes, Your Honor, three

matters. This may be overkill, but three matters I’d ask the Court to place on record as

having notified Ms. Schultz, so as to protect the record.

       {¶31} “First off, the Court, of course, did advise Ms. Schultz of the mandatory

nature and the maximum of both the specification and whatever sentence is imposed on

the underlying aggravated vehicular homicide charge, and did advise the maximum

possible penalty that the court may impose for the underlying vehicular homicide

charge.

       {¶32} “However, I’d ask the court to also advise Ms. Schultz of the minimum

mandatory. Of course, since this is a mandatory period of incarceration for a second-

degree felony on the charge, as opposed to the specification, the charge alone, of

course, the minimum sentence would be two years for a - - plus, of course, whatever

the specification.

       {¶33} “Secondly, Your Honor, I’d ask the Court advise Mr. [sic.] Schultz that it

appears that a PRC, post-release control, for a conviction on a second-degree felony in

this matter would actually be mandatory, I believe, for a period of three years, as

opposed to optional.

       {¶34} “And finally, from my review of the statute, it would appear that, at least at

this point in time - - the law may be changed in the interim, but at this point, a felony

violation of Section 2903.06, if the section requires an imposition of a prison term, as it

does in this case, would not qualify Ms. Renko [sic] for potential days of credit.

       {¶35} “* * *
Fairfield County, Case No. 12 CA 24                                                     8


       {¶36} "THE COURT: All right. Ms. Schultz, the Court would advise you that the

minimal penalty that applies to the offense of aggravated vehicular homicide is a period

of two years of actual mandatory incarceration. The maximum period of mandatory

incarceration is eight years.

       {¶37} “The Court will also advise you that as far as the matter of earned credit,

that this is a matter that is, at this point, under some study by the Department of

Rehabilitations and Corrections, and you will be granted such earned prison credit as is

authorized by law.

       {¶38} “And with regard to the second point, Mr. Meade, what was that?

       {¶39} “MR. MEADE: That PRC, I believe, would be mandatory.

       {¶40} “THE COURT: The Court would also advise you the post-release control is

for a mandatory three-year period of time after completion of the prison term.

       {¶41} “Do you understand all those matters?

       {¶42} “THE DEFENDANT: Yes, Your Honor.

       {¶43} “THE COURT: All right. With understanding that, do you still wish to enter

your plea of guilty?

       {¶44} “THE DEFENDANT: Yes.

       {¶45} “THE COURT: All right. For the reasons already stated, the Court accepts

your plea of guilty and finds that it was knowingly, voluntarily and intelligently made in

this matter.”

       {¶46} Plea Tr. at 14-15; 16-17 (emphases added).

       {¶47} We also note the trial court explained that a period of "actual mandatory

incarceration" meant appellant would not be eligible, during such period of incarceration,
Fairfield County, Case No. 12 CA 24                                                       9


to be placed on community control, to be granted release pursuant to an order of judicial

release, or otherwise be released from incarceration. See Plea Tr. 7-8, 16.

       {¶48} Upon review, although some of the court’s initial recitations may have

caused some confusion via its references to, inter alia, the possibility of community

control sanctions and judicial release, we find the trial court sufficiently corrected these

concerns and substantially complied with the pertinent aspects of Crim.R. 11(C),

particularly by advising appellant of the mandatory terms and conditions pertaining to

her guilty plea.

       {¶49} Finally, although the trial court failed to inform appellant of the lifetime

suspension of her driver’s license until after the acceptance of her plea, we do not find

vacation of appellant’s plea is warranted on that basis. In State v. Harris, 132 Ohio St.3d

318, 2012-Ohio-1908, the Ohio Supreme Court held that “[w]hen a trial court fails to

include a mandatory driver's license suspension as part of an offender's sentence, that

part of the sentence void, [and] [r]esentencing of the offender is limited to the imposition

of the mandatory driver's license suspension.” Id., at paragraph one of the syllabus.

Thus, had the trial court in the case sub judice failed to include appellant’s mandatory

lifetime license suspension in her sentence, reversal would be warranted for

resentencing. However, in regard to the propriety of appellant’s plea itself, we note in

State v. Green, Franklin App.No. 10AP-934, 2011-Ohio-6451, the Tenth District Court of

Appeals determined that even where a trial court did not personally inform a defendant

that his convictions for two counts of aggravated vehicular homicide (felonies of the third

degree) subjected him to a possible lifetime driver's license suspension, the trial court

nonetheless substantially complied with Crim.R. 11 where the defendant had signed a
Fairfield County, Case No. 12 CA 24                                                    10

plea agreement before entering his guilty plea informing him of such a possibility. Id. at

¶11.

       {¶50} In the case sub judice, appellant signed a document titled "Waiver upon

Plea of Guilty or No Contest." See Plea Tr. at 13. This document stated, inter alia, that

appellant understood the maximum penalties for aggravated vehicular homicide, and

the document informed appellant that the penalties included "a mandatory lifetime

suspension of my Ohio Driver's License or ability to obtain one." It was signed by

appellant and witnessed by her counsel and counsel for the State. Appellant also told

the trial court that she had no questions about the document. See id.

       {¶51} We therefore extend the rationale of Green in this matter and hold that

appellant’s plea was valid even though the court did not inform her, during the plea

hearing, regarding the lifetime license suspension penalty.

       {¶52} Accordingly, appellant's sole Assignment of Error is overruled.

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

Fairfield County, Ohio, is affirmed.

By: Wise, J.

Farmer, J., concurs.

Hoffman, P. J., concurs in part and dissents in part.

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                JUDGES
JWW/d 0429
Fairfield County, Case No. 12 CA 24                                                  11

Hoffman, J., concurring in part and dissenting in part

      {¶54} I concur in the majority’s analysis of Appellant’s assigned error as it

pertains to the sufficiency of the trial court’s colloquy concerning community control,

post release control and judicial release.     However, I respectfully dissent from the

majority’s conclusion regarding the sufficiency of the trial court’s colloquy concerning

the mandatory lifetime driver’s license suspension.

      {¶55} I find the majority’s reliance on State v. Harris 132 Ohio St.3d 318, 2012-

Ohio-1908, misplaced. The issue in Harris concerned the illegality of the sentence

imposed; not the sufficiency of the Crim.R. 11 plea colloquy.

      {¶56} The record herein does not reflect Appellant was orally advised by the trial

court prior to the plea about the possibility of any license suspension, let alone a

mandatory lifetime license suspension.        I find such failure does not constitute

substantial compliance with the rule. I disagree with the result reached by the Tenth

District in State v. Green, Franklin App. No. 10AP-934, 2011-Ohio-6451.




                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
Fairfield County, Case No. 12 CA 24   12
Fairfield County, Case No. 12 CA 24                                             13


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
ANGELA K. SCHULTZ                          :
                                           :
       Defendant-Appellant                 :         Case No. 12 CA 24




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
