         [Cite as State v. Jones, 2014-Ohio-4497.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NOS. C-130825
                                                                     C-130826
        Plaintiff-Appellee,                          :
                                                         TRIAL NOS. B-1303988
  vs.                                                :              B-1305104

RICO JONES,                                          :
                                                             O P I N I ON.
    Defendant-Appellant.                             :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed from are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 10, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Presiding Judge.

       {¶1}    Defendant-appellant Rico Jones appeals from the judgments of the

Hamilton County Court of Common Pleas convicting him, upon his guilty pleas, of

multiple offenses.     Because the trial court failed to advise Jones of postrelease

control during the plea colloquy, we vacate the judgments and remand for further

proceedings.

                               I.     Background Facts

       {¶2}    In the case numbered B-1303988, Jones was indicted on attempted-

murder, felonious-assault, having-weapons-under-a-disability, and drug charges.

He was tried before a jury on the attempted-murder and felonious-assault charges

and was acquitted. He pled guilty to the remaining offenses. In the case numbered

B-1305104, Jones was indicted on additional drug charges. He pled guilty to those

offenses. As part of the penalty for all of the offenses to which Jones entered guilty

pleas, he was subject to a period of postrelease control of up to three years after his

release from prison, if the parole board would determine that it would be necessary,

and to sanctions for violating the terms of that postrelease control.        See R.C.

2967.28(C).

       {¶3}    The trial court held the plea hearing for both cases on October 23,

2013. During the plea colloquy, the trial court informed Jones of the maximum

terms of incarceration and the maximum fines for the offenses and then asked Jones,

“Do you understand that those are the maximum penalties that you could get?”

Jones responded affirmatively.       The court failed to explain or even mention

postrelease control.

       {¶4}    The trial court subsequently accepted Jones’s guilty pleas and

convicted him, in the case numbered B-1303988, of having weapons under a



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disability, trafficking in heroin, and trafficking in cocaine, and in the case numbered

B-1305104, of possession of heroin and possession of cocaine. The court imposed

consecutive prison terms for all of the offenses. Jones now appeals, raising two

assignments of error.

                                    II.    Analysis

       {¶5}   In his first assignment of error, Jones argues that the trial court erred

by accepting his guilty pleas where the court failed to determine that he understood

the maximum penalties involved, as required by Crim.R. 11(C)(2).

       {¶6}   The enforcement of a plea that is not made knowingly, intelligently,

and voluntarily violates both the United States and Ohio Constitutions. State v.

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996), cited in State v. Clark, 119

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25, and State v. Sarkozy, 117

Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7.

       {¶7}   To ensure that a defendant’s pleas are made knowingly, intelligently,

and voluntarily, the trial court must engage the defendant in a colloquy pursuant to

Crim.R. 11. Clark at ¶ 26. Pursuant to the rule, in felony cases, the court must

personally address the defendant and inform him of the constitutional rights he is

waiving and of several nonconstitutionally-based matters, including the “ ‘maximum

penalty’ ” involved. Crim.R. 11(C)(2); Clark at ¶ 27; Sarkozy at ¶ 8-10.

       {¶8}   A reviewing court must apply a “multitiered analysis” for evaluating

compliance with Crim.R. 11.       Clark at ¶ 30.      The Ohio Supreme Court has

summarized this analysis as follows:

              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.”     However, if the trial judge imperfectly explained



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       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. 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.

                 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, * * * the

       plea may be vacated only if the defendant demonstrates a prejudicial

       effect.    The test for prejudice is “whether the plea would have

       otherwise been made.” If the trial judge completely failed to comply

       with the rule * * * the plea must be vacated. “A complete failure to

       comply with the rule does not implicate an analysis of prejudice.”

(Emphasis in original.) (Internal citations omitted.) Clark at ¶ 31-32.

       {¶9}      In this case, the trial court did not mention to Jones during the plea

colloquy that postrelease control could be imposed following the expiration of his

prison terms and that there were sanctions for violating the terms of postrelease

control, although it did inform Jones of the constitutional rights that he was waiving.

       {¶10} Jones contends that the trial court completely failed to comply with

Crim.R. 11 with respect to postrelease control and, therefore, his pleas must be

vacated, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, a case involving mandatory postrelease control. In Sarkozy, the trial court

failed to mention postrelease control during the plea colloquy, and, as a result, the



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Supreme Court determined that the plea was invalid, without requiring a showing of

prejudice. Id.

       {¶11} The state argues that Sarkozy is distinguishable for two reasons and,

therefore, Jones’s pleas cannot be vacated absent an analysis of prejudice. First, the

state suggests that Sarkozy does not apply to defendants who are subject only to a

discretionary term of postrelease control. Second, the state argues that there was

some compliance because the trial court informed Jones of “probation” and “parole”

during the plea colloquy, and because the plea form that Jones signed mentioned

postrelease control. We are not persuaded by the state’s argument that these facts

implicate an analysis of prejudice that was not warranted in Sarkozy.

       {¶12} Postrelease control is a “period of supervision by the adult parole

authority after a prisoner’s release from imprisonment.” R.C. 2967.02(N). With the

exception of unclassified felonies not relevant here, when a trial court imposes a

prison term for a felony offense, postrelease control, mandatory or discretionary, is

part of the sentence for that offense. See State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 23; Woods v. Telb, 89 Ohio St.3d 504, 511, 733 N.E.2d

1103 (2000). And because postrelease control is a sanction imposed in addition to a

prison term that extends a defendant’s punishment beyond his maximum term of

imprisonment, it is part of the maximum penalty for the offense. See Sarkozy at ¶ 22.

       {¶13} Admittedly, for some offenders postrelease control is mandatory upon

their release from prison. R.C. 2967.28(B). Other offenders, such as Jones, will be

placed on postrelease control only if the parole board determines, before the

offender’s release from prison, that a period of postrelease control is necessary, in

accordance with R.C. 2967.28(D). R.C. 2967.28(C).




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       {¶14} But whether mandatory or discretionary, postrelease control is an

additional penalty for the offense that the defendant must consider in determining

whether to waive his constitutional rights and enter a guilty plea. And R.C. 2943.032

makes no distinction between the two when it provides that the trial court “shall

inform the defendant personally” of potential postrelease-control sanctions prior to

accepting a guilty plea or a no-contest plea involving “a felony.”

       {¶15} Thus, we reject the state’s argument that Sarkozy does not apply to

cases involving discretionary postrelease control. See State v. Holmes, 5th Dist.

Licking No. 09CA70, 2010-Ohio-428, ¶ 10, citing State v. Souris, 9th Dist. Summit

C.A. No. 24550, 2009-Ohio-3562, ¶ 7.

       {¶16} We are also unpersuaded by the state’s argument that the trial court’s

reference to “probation” and “parole” during the plea colloquy distinguishes this case

from Sarkozy. The relevant part of the plea colloquy provides as follows:

       The Court: * * * Do you understand that if you do not serve your entire

       sentence that you may be placed on probation or parole?

       The Defendant: Yes, I do.

       The Court: And no promise of probation has been made at this time; is

       that correct?

       The Defendant: That’s correct.

       The Court: And that if you are placed on probation or parole and then

       violate that probation, you could be sent back to serve whatever

       remains of the sentence that you would have?

       The Defendant: I understand.

       The Court:      And that if you violate your probation or parole by

       committing another crime or disobeying any rules of the Court, the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       probation or parole authority could bring you back to court. Do you

       understand that?

       The Defendant: Yes, I do.

       The Court: And that any time that you would get on probation or

       parole violation would have to be served consecutive to. That means in

       addition to any time you might get on the new offense.

       The Defendant: I understand.

       {¶17} “Probation” and “parole” are very different from postrelease control,

and the trial court’s reference to either term was inappropriate in this case.

“Probation” as described by the trial court no longer exists in Ohio in the context of

felony sentencing. See State v. King, 1st Dist. Hamilton No. C-010330, 2002 Ohio

App. LEXIS 367, * 6 (Feb. 1, 2002). “Parole” is a form of supervised release that

applies to offenders upon release from confinement before the end of a sentence, but

not to offenders such as Jones who are sentenced to a stated prison term. See R.C.

2967.01(E), and 2967.13(F); Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, at ¶ 36. Neither “probation” nor “parole” extends the penalty for the offense.

Ultimately, nothing in the trial court’s discussion of probation and parole conveyed

to Jones that he was subject to the additional sanction of postrelease control.

       {¶18} Finally, our analysis is not affected by the court’s inclusion of

information about postrelease control on the plea form signed by Jones. The court in

Sarkozy reiterated that Crim.R. 11 required the court to inform the defendant of the

maximum penalty, including postrelease control, during the “plea colloquy.” See

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶ 22. The trial

court did not meet that requirement at all in this case, as the court during the plea

colloquy did not mention postrelease control.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} The state advocates that we follow the decision of the Tenth District

Court of Appeals in State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-

6231, a case in which the trial court did not mention postrelease control during the

2006 plea colloquy but had included information about postrelease control on the

plea form.   In Williams, however, the defendant had acknowledged at the plea

hearing that he had reviewed the plea form with his attorney, who had explained the

rights that he was waiving and the possible consequences of entering the plea. Id. at

¶ 2.    Because the Williams court was satisfied that the record demonstrated

substantial compliance with Crim.R. 11, after considering the trial court’s specific

exchange with the defendant concerning the plea form, the court distinguished the

case from Sarkozy and affirmed the denial of Williams’s 2010 Crim.R. 32.1 motion

challenging the validity of his plea. Id. at ¶ 37-39. Accord State v. Knowles, 10th

Dist. Franklin No. 10AP-119, 2011-Ohio-4477, ¶ 19; State v. Williams, 5th Dist.

Licking No. 08CA113, 2009-Ohio-3447, ¶ 16 and 26.

       {¶20} We do not find Williams persuasive. As a preliminary matter, this

court would not have reached the merits of the claim in Williams, which was not

raised in a direct appeal from the judgment of conviction. We would have held that

the claim was barred by res judicata, because it did not depend for its resolution

upon material outside the record, and thus could have been (but was not) raised on

direct appeal, and because the claimed error, if demonstrated, would not have

rendered the judgment of conviction void. See Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus; State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Moreover, in this case,

unlike in Williams, the trial court did not ask Jones if he had reviewed the plea form

and if his attorney had discussed it with him and had explained the possible



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                     OHIO FIRST DISTRICT COURT OF APPEALS



consequences of the plea. Ultimately, the court did not inquire into Jones’s

understanding of the form. For these reasons, we decline to follow Williams.

       {¶21} Because the trial court did not advise Jones of postrelease control

during the plea colloquy, Jones need not make a demonstration of prejudice. See

Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E. 2d 1224, at ¶ 22.

       {¶22} We hold that Jones’s guilty pleas must be vacated, because the trial

court did not meet the requirements of Crim.R. 11 where the court failed to advise

Jones during the plea colloquy that his sentences would include a discretionary term

of postrelease control. See id. at paragraph two of the syllabus. Accordingly, we

sustain the first assignment of error.

       {¶23} In his second assignment of error, Jones challenges the sentences

imposed by the trial court on the ground that the court did not make the necessary

findings to support the sentences as required by R.C. 2929.13(B)(1)(b)(i)-(iv) and

R.C. 2929.14(C)(4), and failed to consider the relevant factors set forth in R.C.

2929.11 and 2929.12. But the trial court’s failure to advise Jones at the plea hearing

of postrelease control mandates that we reverse the trial court’s judgment and vacate

Jones’s guilty pleas. Therefore, we find that this assignment of error is moot, and we

do not address it. See App.R. 12(A)(1)(c).

                                   III.   Conclusion

       {¶24} Because we have sustained the first assignment of error, we reverse the

trial court’s judgments, vacate Jones’s guilty pleas, and remand this cause for further

proceedings consistent with the law and this opinion.

                                             Judgments reversed and cause remanded.

DINKELACKER and FISCHER, JJ., concur.


Please note:


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             OHIO FIRST DISTRICT COURT OF APPEALS



The court has recorded its own entry on the date of the release of this opinion.




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