[Cite as State v. Heisler, 2012-Ohio-1277.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 4-11-14

        v.

BLAINE W. HEISLER,                             OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 4-11-15

        v.

BLAINE W. HEISLER,                             OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                    CASE NO. 4-11-16

        v.

BLAINE W. HEISLER,                             OPINION

        DEFENDANT-APPELLANT.
Case Nos. 4-11-14, 15, 16, 17




STATE OF OHIO,

      PLAINTIFF-APPELLEE,                            CASE NO. 4-11-17

      v.

BLAINE W. HEISLER,                                   OPINION

      DEFENDANT-APPELLANT.



            Appeals from Defiance County Common Pleas Court
Trial Court Nos. 09-CR-10432, 11-CR-11151, 09-CR-10415 and 08-CR-10293

                                Judgments Affirmed

                      Date of Decision: March 26, 2012




APPEARANCES:

      Clayton J. Crates for Appellant

      Morris J. Murray and Russell R. Herman for Appellee




WILLAMOWSKI, J.

      {¶1} Defendant-Appellant, Blaine W. Heisler (“Heisler”), appeals the

judgment of the Defiance County Court of Common Pleas sentencing him to


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Case Nos. 4-11-14, 15, 16, 17


prison for violating the terms of his judicial release and also for failure to register

a change of address as required because of his previous conviction as a sexual

offender. On appeal, Heisler contends that the trial court erred when it failed to

inform him, before accepting his guilty plea, that the minimum sentence that could

be imposed was a mandatory three-year sentence and that the trial court failed to

consider all of the sentencing statutory guidelines. For the reasons set forth below,

the judgment is affirmed.

        {¶2} These four appeals involve the revocation of Heisler’s judicial release

and the re-imposition of the remainder of the sentences to be served in three

Defiance County cases from 2008 and 2009, Case Numbers 08 CR 10293, 09 CR

10415, and 09 CR 10432 (hereinafter, “the prior cases”).1                      Also included is the

conviction and sentencing for an additional offense in 2011, Case Number 11 CR

11151 (hereinafter, “the 2011 case”). On appeal, these four cases bear appellate

case numbers 4-11-14, 4-11-15, 4-11-16, and 4-11-17.                              They have been

consolidated for purposes of transcript filings, briefing, and oral argument.

        {¶3} On April 13, 2011, Heisler appeared before the trial court for a

hearing on his motion for judicial release. Heisler had previously been convicted

in four prior cases, which included convictions for receiving stolen property, gross

1
  The prior cases also involve a fourth case, Case No. 10 CR 10739, for failure to provide a change of
address, as part of the requirements of the registration mandates for his conviction as a sexual offender.
However, Heisler had completed serving the twelve month concurrent sentence in that case, so there was
no remaining sentence left to serve and it is not a part of this appeal.


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Case Nos. 4-11-14, 15, 16, 17


sexual imposition, misuse of a credit card, and failure to register as a sex offender,

all fourth or fifth degree felonies. As part of the original plea agreements, Heisler

was sentenced to a total of 45 months in prison but the State had agreed not to

oppose judicial release after one year.2

        {¶4} On April 25, 2011, the trial court granted Heisler’s motion for judicial

release and the balance of his 45-month sentence was reserved. He was admitted

to a period of three years of community control with the standard conditions of

supervision pursuant to R.C. 2929.20(K), as well as the special conditions that he

not consume any alcohol or associate with juveniles.3 The trial court had concerns

about granting judicial release because Heisler’s record while he was in prison was

far from exemplary.              However, the trial court ultimately gave Heisler the

opportunity for another chance after Heisler assured him that he had learned a lot

and was “not going to screw it up this time.” (Apr. 25, 2011 Tr., p. 5)

        {¶5} A month later, on May 26, 2011, Heisler appeared in court after he

had been taken into custody on suspicion of violating the terms of his judicial

release. The State advised the court that the probation violation was based upon

his failure to notify his probation officer of his change of address. The trial court

set a substantial cash bond, appointed counsel, and set the case for further hearing.

2
  Heisler was sentenced to 17 months in Case No. 08 CR, 10293; 17 months in Case No. 09 CR 10415; and
11 months in Case No. 09 CR 10432, with all three sentences to run consecutively, for a total of 45 months.
The 12 month sentence in Case No. 10 CR 10739 ran concurrent to the other sentences.
3
  The conviction for gross sexual imposition had originally been an indictment for unlawful sexual conduct
with a minor, which was reduced pursuant to a plea agreement.

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Case Nos. 4-11-14, 15, 16, 17


       {¶6} On June 6, 2011, Heisler appeared in court with his attorney and was

made aware that he had also been indicted for failure to provide notice of change

of address, in violation of R.C. 2950.05, a felony of the third degree, in the 2011

case. Heisler’s previous conviction as a sexual offender required him to register

and to provide written notice of his residence change pursuant to R.C. 2950.04 or

2950.041. Heisler was properly arraigned on the new charge and the case was set

for further pretrial.

       {¶7} On June 29, 2011, Heisler appeared in court for a probable cause

hearing on the judicial release violation as well as a pretrial for the 2011 case. The

State advised the court that a plea arrangement had been agreed upon and Heisler

would admit to violating the rules of judicial release and he had also agreed to

enter a guilty plea to the 2011 case for the new criminal charge of failing to

provide a change of address. The trial court advised Heisler as to the potential

penalties for a conviction in the 2011 case, which could result in a maximum five-

year prison term, and informed him that a conviction would also establish that he

had violated his conditions of judicial release in the prior cases, which could result

in in the revocation of his judicial release and the re-imposition of the entire

balance of the reserved 45 month prison term.

       {¶8} Thereafter, the trial court conducted a Crim.R. 11 plea colloquy and

accepted Heisler’s guilty plea to the 2011 criminal charge as well as his admission


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Case Nos. 4-11-14, 15, 16, 17


to the judicial release violation. A sentencing date of August 17th was set, the

trial court ordered an updated PSI and allowed Heisler to be released on his own

recognizance. The trial court admonished Heisler that he was still required to

comply with the conditions of his judicial release and warned that “if you need to

be taken into custody for further violation behaviors, we will just be moving your

sentencing and disposition up.” (Jun. 29, 2011 Tr., p. 17)

       {¶9} Prior to the sentencing date, Heisler was taken into custody and

appeared before the trial court on July 14, 2011. According to the State, Heisler

was found drinking alcohol and was in the presence of a fourteen-year-old

juvenile, both violations of the terms of his community control sanction. The trial

court then proceeded to sentence Heisler on his previously admitted judicial

release violation and his guilty plea to the 2011 case.

       {¶10} At this sentencing hearing, and prior to sentence being imposed, the

State specified that Heisler’s guilty plea in the 2011 case carried with it a

mandatory minimum sentence of three years, because this was the second time he

was convicted of failure to provide notice of a change of address under the SORN

laws. See R.C. 2950.99(A)(2)(b). (Jul. 14, 2011 Tr., p. 5) The indictment had

indicated that he had previously been convicted of failure to provide written notice

of his change of address. The trial court then imposed a mandatory three-year

sentence in the 2011 case that was to be served consecutive to the balance of what


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Case Nos. 4-11-14, 15, 16, 17


remained of the forty-five month sentence for the three prior cases. Heisler’s

aggregate sentence was 81 months in prison, less the time previously served.

       {¶11} It is from this judgment that Heisler now appeals, raising the

following two assignments of error for our review.

                            First Assignment of Error

       The trial court erred to the prejudice of [Heisler] by failing to
       advise [Heisler] prior to accepting his guilty plea that the
       criminal charge required a mandatory three year prison
       sentence and community control was not a sentencing option.

                           Second Assignment of Error

       The trial court erred to the prejudice of appellant by failing to
       consider all applicable statutes prior to pronouncing a
       consecutive sentence, thereby violating [Heisler’s] right to due
       process of law as guaranteed by the Fifth and Fourteenth
       Amendments of the United States Constitution and comparable
       provisions of the Ohio Constitution.

                          First Assignment of Error

       {¶12} In his first assignment of error, Heisler asserts that the trial court

failed to substantially comply with the provisions of Crim.R. 11 by failing to

inform him, before he pled guilty to the 2011 offense, that a mandatory three-year

sentence was the minimum possible sentence and that he would not be eligible for

community control sanctions. Heisler claims prejudicial error because the trial

court had stated that the offense was a third degree felony and “it carries a possible

basic prison term of one, two, three, four or a maximum of five years in a state


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Case Nos. 4-11-14, 15, 16, 17


prison.” (Jun. 29, 2011 Tr., p. 6) The judge also failed to inform him that he

would not be eligible for community control with a mandatory sentence. (Id. at

pp. 7-8) We note that this assignment of error is only applicable to Appellate Case

No. 4-11-15 pertaining to the new 2011 case for failure to provide a change of

address for his registration as a sexual offender (Defiance County Case No. 11-CR

11151).

       {¶13} Crim.R. 11(C)(2)(a) states:

       (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:

       (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.

       {¶14} A trial court must strictly comply with the provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights, including the right to a

trial by jury, the right to confront one's accusers, the privilege against self-

incrimination, and the right to compulsory process of witnesses. See, e.g., State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at the syllabus; State v. Ballard, 66

Ohio St.2d 473 (1981), at paragraph one of the syllabus.              However, the

nonconstitutional aspects of the plea colloquy, such as information concerning the

sentence as in the case before us now, are subject to review under a standard of

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Case Nos. 4-11-14, 15, 16, 17


substantial compliance. See State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “Substantial compliance

means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” Nero at 108;

State v. Carter, 60 Ohio St.2d 34 (1979). Failure to adequately inform a defendant

of his nonconstitutional rights at a plea hearing will not invalidate a plea unless the

defendant suffered prejudice. Griggs at ¶ 12, citing Nero at 107. Under the

substantial compliance standard, the burden is on the defendant to show prejudice,

which means showing that the plea would otherwise not have been entered. Nero

at 108; Veney at ¶ 15.

       {¶15} For Heisler to establish prejudice, he would have to demonstrate that

his plea would not have been made otherwise. See id.           The Supreme Court of

Ohio has held that “[a] defendant who has entered a guilty plea without asserting

actual innocence is presumed to understand that he has completely admitted his

guilt. In such circumstances, a court’s failure to inform the defendant of the effect

of his plea as required by Crim.R.11 is presumed not to be prejudicial.”

(Emphasis added.) Griggs at the syllabus. Heisler has never proclaimed his

innocence, so the burden was on him to overcome the presumption that the

shortcomings in the trial court’s colloquy were prejudicial.




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Case Nos. 4-11-14, 15, 16, 17


       {¶16} At the change of plea hearing, the trial court discussed the general

penalties applicable to a third degree felony, i.e., a potential sentence of one to five

years. The trial court did not specifically inform Heisler of the mandatory three-

year penalty applicable to him at this time, due to this being his second such

offense. However, it did inform Heisler that the maximum penalty could be five

years in prison and that the trial court could order the sentences to be served

consecutively. Heisler indicated that he understood these terms. The trial court

did not sentence Heisler to the five-year maximum, but instead sentenced him to

the three-year mandatory sentence. Therefore, Heisler cannot claim that he was

uninformed as to the possibility of having a three-year sentence and cannot claim

he was prejudiced in this respect.

       {¶17} The trial court also failed to state that Heisler would not be eligible

for community control for this 2011 sentence. However, given the totality of the

circumstances, it is evident from the record that Heisler was aware of the fact that

he was going to prison and that he would not be given community control. The

whole issue had been prompted by Heisler’s violation of his previous community

control, very shortly after he had been granted judicial release. The trial court had

repeatedly warned Heisler that any violation of the terms of his community control

sanctions pertaining to his judicial release would result in his return to prison.

Heisler cannot realistically claim that he was expecting to receive community


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Case Nos. 4-11-14, 15, 16, 17


control or that he was prejudiced by the trial court’s failure to specifically state

that fact again at the change of plea hearing.

       {¶18} At the sentencing hearing, even after the State specifically noted that

the sentence was a mandatory three-year sentence, Heisler and his attorney did not

object, show surprise, nor in any way indicate that they were not fully aware of the

potential consequences. In fact, Heisler’s attorney demonstrated their awareness

of the sentence, stating only that, “[u]nderstanding that Mr. Heisler is facing three

years on the newest SORN violation, we would request the Court to consider

running these cases concurrent with one another.” (Jul. 14, 2011 Tr., p. 7) Heisler

was given the opportunity to speak to the court, but he declined. (Id. at 6-7)

       {¶19} The cases cited by Heisler in support of his position that the trial

court’s failure to inform the defendant was a prejudicial error are generally

factually distinguishable in the “totality of the circumstances.” In many of those

cases, the defendants had been assured that they would be given a lesser sentence

or had been incorrectly led to believe that they would be eligible for community

control or judicial release. See, e.g., State v. Pape, 2nd Dist. No. 2000 CA 98,

2001-Ohio-1827 (plea colloquy was “fatally flawed” because defendant claimed

that his attorney told him he would be eligible for judicial release after serving 180

days, even though the sentence was mandatory); State v. Rand, 10th Dist. No.

03AP-745, 2004-Ohio-5838 (trial court erred in not allowing defendant to


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Case Nos. 4-11-14, 15, 16, 17


withdraw his guilty plea after the trial court attempted to modify the judgment

entry five years after it had erroneously told defendant the sentence was not

mandatory, and had wrongly stated in the judgment entry that it was not

mandatory); State v. Pringle, 6th Dist. No. L-98-1275, 1999 WL 436484

(prejudicial error occurred because the defendant had entered an Alford plea, and

he did not understand the full consequences of this special guilty plea.4)

        {¶20} In the case before us today, Heisler has not asserted that he was

misled concerning the sentence, nor that the State or anyone else had promised

him a lesser sentence or community control. The State had merely agreed that it

would join in the request to modify the bond to a personal recognizance bond and

to agree for the matter to be continued for sentencing during a PSI, but there “was

no other agreement at this point regarding the matter.” (Jun. 29, 2011 Tr., pp. 2-3)

The circumstances in this case are distinguishable from the cases cited above

wherein the appellate courts found that the defendants had met their burden of

demonstrating that they suffered prejudice.

        {¶21} Furthermore, Heisler has never made any attempt to withdraw his

guilty plea. He was informed of the mandatory nature of the sentence before the

trial court actually sentenced him, so he had the opportunity to tender a

presentence motion to withdraw his plea, which should be “freely and liberally


4
 The fact that Heisler pled guilty without asserting his innocence at the plea hearing, i.e., it was not an
Alford plea, raises the presumption that the omission was not prejudicial. Griggs, supra, at ¶ 12.

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Case Nos. 4-11-14, 15, 16, 17


granted.” See State v. Xie, 62 Ohio St.3d 521, 527, (1992). Neither has he

asserted that he has suffered a manifest injustice, entitling him to consideration for

a post-sentence withdrawal of his guilty plea. See Crim. R. 32.1.

       {¶22} Heisler had been in court numerous times over the previous several

months and years. He never claimed that he did not understand the procedures or

the implications and consequences of his plea; he has only asserted that the trial

court did not appropriately address the specifics of his sentence in the plea

colloquy. The trial court correctly informed Heisler that he could be facing a

maximum five-year sentence in the 2011 case and that the trial court could order

the sentence to be served consecutively. The trial court did err in that it failed to

inform Heisler that the minimum possible sentence was a three-year mandatory

sentence and, because it was “mandatory,” community control would not be an

option.   However, based upon the totality of the circumstances, we find no

evidence of any prejudice in the record, nor has Heisler met his burden of

demonstrating that he was prejudiced by the trial court’s plea colloquy. The first

assignment of error is overruled.

                            Second Assignment of Error

       {¶23} The second assignment of error alleges that the trial court erred in

imposing sentence without giving proper consideration to the felony sentencing

statute guidelines.   Heisler complains that the sentence was contrary to law


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Case Nos. 4-11-14, 15, 16, 17


because the trial court failed to sufficiently indicate that it considered the

sentencing factors in R.C. 2929.11 and 2929.12; and, the trial court abused its

discretion when it failed to properly apply the seriousness and recidivisms factors

set forth in R.C. 2929.12.

       {¶24} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 37. Courts,

nevertheless, are still required to comply with the sentencing laws unaffected by

Foster, such as R.C. 2929.11 and 2929.12, which require consideration of the

purposes and principles of felony sentencing and the seriousness and recidivism

factors. Mathis at ¶ 38. However, a sentencing court does not have to make any

specific findings to demonstrate its consideration of those general guidance

statutes. Foster at ¶ 42.

       {¶25} R.C. 2929.11 provides that sentences for a felony shall be guided by

the overriding purposes of felony sentencing: “to protect the public from future

crime by the offender and others and to punish the offender.” R.C. 2929.11(A).

In order to comply with those purposes and principles, R.C. 2929.12 instructs a

trial court to consider various factors set forth in the statute relating to the


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Case Nos. 4-11-14, 15, 16, 17


seriousness of the conduct and to the likelihood of the offender's recidivism. R.C.

2929.12(A) through (D). In addition, a trial court may consider any other factors

that are relevant to achieving the purposes and principles of sentencing. R.C.

2929.12(E).

       {¶26} Heisler does not dispute that the sentence he received was within the

statutory guidelines. However, he complains that the trial court failed to review or

analyze any of the enhancement or mitigating factors on the record before

imposing sentence.

       {¶27} First, as stated above, the trial court is not required to state its

considerations on the record. See, Mathis, supra. And, contrary to Heisler’s

assertions, the record is replete with examples of the court’s discussion of

Heisler’s risk of recidivism and other reasons why the trial court imposed the

sentences that it did. Heisler had been incarcerated for four prior cases and had

committed the additional 2011 case almost immediately upon his judicial release.

The trial court granted judicial release in the prior cases, even though his prison

record was poor; there was evidence of his improper communication with young

girls while he was in prison; the mother of one juvenile girl had asked that Heisler

remain incarcerated for the protection of her daughter and the public; Heisler had

problems with alcoholism and anger management; and, the trial court was not

optimistic as to his ability to comply with the terms of his community control


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Case Nos. 4-11-14, 15, 16, 17


sanction. (Apr. 13, 2011 and Apr. 25, 2011 Transcripts) At the hearings, the trial

court extensively discussed Heisler’s past behavior and the consequences of what

would happen if he did not comply with the terms of his judicial release and

community control sanction. (Id.) Nevertheless, one month later, he had already

violated the terms of his judicial release and was back before the trial court for the

2011 case. (May 26, 2011 Tr.)

       {¶28} At the plea hearing, he was released on his own recognizance but he

was reminded that the terms of his judicial release were still applicable and

warned of the consequences of failure to comply. (Jun. 29, 2011 Tr., pp. 16-18)

Four days later, on July 3, 2011, he was taken into custody when police found

Heisler and two juveniles drinking in a car, and one of the juveniles was a fourteen

year old female. Plus, there had been some damage to one of the city’s barricades

at the fireworks display. (Jul. 16, 2011 Tr., p. 6) The trial court then addressed

Heisler, stating:

       I believe we had had the discussion at the time the State acquiesced
       in his release on his own recognizance at the time of the most recent
       plea as to what would happen if there were further violation behavior
       pending the later scheduled disposition. Given the nature of his
       history, specifically including the sex offense, this most recent
       episode is particularly disturbing. (Id. at p. 8)

       {¶29} The trial court then proceeded to sentence Heisler, imposing the

balance of his original forty-five month prison sentence. The trial court also

imposed the minimum mandatory sentence in the 2011 sex offender registration

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Case Nos. 4-11-14, 15, 16, 17


case, but ordered that it be served consecutively. Based upon the trial court’s

extensive review of his record during Heisler’s six appearances before the court in

a three-month period, it cannot be said that the trial court did not carefully

consider all of the applicable factors before sentencing Heisler.

       {¶30} The record in this case shows that the trial court fully complied with

all of the requirements pertaining to consideration of the statutory sentencing

factors. In addition, the trial court’s judgment entry specifically stated that it had

“made reference to the information contained in the Pre-Sentence Investigation

Report and to the history of this cause as known to the court” and that it had

considered the statutory factors present. (Jul. 20, 2011 J.E.) Finding no error in

the trial court’s consideration of the relevant statutory requirement before

imposition of sentence, the second assignment of error is overruled.

       {¶31} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                                Judgments Affirmed

SHAW, P.J., concurs.

/jlr




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Case Nos. 4-11-14, 15, 16, 17


ROGERS, J., Dissenting.

      {¶32} I must respectfully dissent from the result reached by the majority. I

would first note that Appellant has filed notices of appeal in four separate cases:

three that were revocations of judicial release, cases numbered 08 CR 10293, 09

CR 10415, and 09 CR 10432; and the fourth was a new felony, case number 11

CR 11151. There are no assignments of error that apply to the first three cases of

revocation, nor any arguments as to error in those cases. Therefore, I would

summarily dismiss those three appeals, and I will limit my discussion to the fourth

case, appellate case number 4-11-17.

      {¶33} It is not disputed that at the time of the plea Appellant was never

advised that a prison term was mandatory or that he was not eligible for

community control.

      {¶34} Criminal Rule 11 provides, in pertinent part, as follows:

      (C) Pleas of guilty and no contest in felony cases.
            ***
      (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:
      (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. (Emphasis added.)




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Case Nos. 4-11-14, 15, 16, 17


      {¶35} Clearly the Rule mandates that the court “shall not accept a plea of

guilty” without “determining that the defendant is making the plea voluntarily,

with understanding of * * * the maximum penalty involved, and if applicable, that

the defendant is not eligible for * * * the imposition of community control

sanctions.” The word shall has no meaning unless it is applied as a mandatory

requirement with which the trial court must comply. State v. Wyerick, 182 Ohio

App.3d 500, 2009-Ohio-3153, ¶ 9 (3d Dist.).

      {¶36} The majority states that Heisler cannot “realistically claim that he

was expecting to receive community control, * * * .” However, the trial court’s

statement that there was a possible one to five years in prison, and the order for a

PSI would suggest to any defendant that the trial court is considering community

control. As a PSI is required before a trial court can grant community control but

is not necessary before a mandatory prison term is imposed, See State v. Sawyer,

1st Dist. No. C-080433, 2010-Ohio-1990, ¶ 10, the order of a PSI would lead a

defendant familiar with the criminal system to reasonably believe that he may

receive community control.

      {¶37} Although the majority states that there was no misunderstanding

because he was subject to the revocation of his judicial release and therefore not

entitled to community control on the new charge, I would disagree. Each case

must be considered separately, and revocation of judicial release on an older case


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Case Nos. 4-11-14, 15, 16, 17


while sentencing to community control on a new case is possible, unless of course,

there is a mandatory prison term on the new case.           Indeed, at that point in

Appellant’s case, revocation of judicial release in the prior cases had not been

ordered. The trial court still had all options available in each prior case. He was

even released on his own recognizance which could only lend credence to his

belief that community control was a distinct possibility.

       {¶38} The State cites to State v. Abuhashish, 6th Dist. No. WD-07-048,

2008-Ohio-3849, as authority for a finding of substantial compliance. However,

that case is distinguishable because there was a written plea agreement executed

by the defendant which correctly stated that there was a mandatory prison term,

and revocation of bond was discussed because of the mandatory term. The State

also cites to a prior case of this Court, State v. Harmon, 3d Dist. No. 08-04-01,

2004-Ohio-4012, which is also distinguishable. Harmon was an appeal of a post-

conviction motion to withdraw his plea based on the trial court’s failure to fully

advise of potential penalties. However, in Harmon the defendant was advised of

the misinformation at sentencing, was asked prior to sentencing if he wished to

withdraw his plea, but the defendant specifically said he did not wish to do so.

       {¶39} “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea

and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108 (1990). How


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Case Nos. 4-11-14, 15, 16, 17


can one argue that a defendant subjectively understands the implications of his

plea when he is misled into believing that community control is being considered

when in fact a prison term is mandatory?

      [A] trial court does not substantially comply with Crim.R.
      11(C)(2)(a) when it fails to inform the defendant that he is not
      eligible for probation or community control, and the circumstances
      do not show that the defendant knew he was not eligible. In such a
      case, an appellate court cannot say that the defendant’s plea was
      made knowingly, intelligently and voluntarily. The standard was
      and remains whether the plea represents a voluntary and intelligent
      choice among the alternative courses of action open to the defendant.
      To make a voluntary choice, the defendant must act with a full
      understanding of the consequences of his plea. Because the prospect
      of probation or community control would be a factor weighing
      heavily in favor of a plea, the fact that a community-control sanction
      is statutorily precluded can affect a defendant’s decision to enter a
      guilty plea. (Citations omitted.) State v. Farley, 1st Dist. No. C-
      0100478, 2002-Ohio-1142.

      {¶40} The Second District has reached a similar result.

      The effect of Howard’s plea was that he would be subject to a
      mandatory prison term that would render him ineligible for the
      imposition of community control sanctions. He could not have
      appreciated this effect of his plea, because he was misadvised by the
      trial court that he would be eligible for the imposition of community
      control sanctions. Ineligibility for (as opposed to the unlikelihood
      of) the imposition of community control sanctions is deemed to be a
      sufficiently important effect of a plea of guilty or no contest that it is
      specifically incorporated in Crim. R. 11(C)(2)(a) as a subject that
      must be specifically addressed by the trial court, concerning which
      the defendant’s understanding must be specifically determined by
      the trial court. State v. Howard, 2nd Dist. No. 06-CA-29, 2008-
      Ohio-419, ¶ 25.

      {¶41} The Twelfth District has also addressed this issue.


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Case Nos. 4-11-14, 15, 16, 17


       [W]e find, under the totality of the circumstances, appellant could
       not have subjectively understood that he was ineligible to serve a
       community control sanction instead of a prison term. The trial court
       affirmatively misinformed appellant and completely failed to comply
       with the rule. Appellant’s assignment of error is sustained. State v.
       Phillips, 12th Dist. No. CA2008-05-126, 2009-Ohio-1448, ¶ 19.

       {¶42} The majority also states that Appellant has failed to demonstrate

prejudice. I would argue that if community control is discussed as a distinct

possibility when, in fact the defendant is subject to a mandatory term of

imprisonment and is not eligible for community control, prejudice is self-evident.

In addition, the Ohio Supreme Court stated in State v. Sarkozy, 117 Ohio St.3d 86,

2008-Ohio-509, ¶ 22, that the total failure of the trial court to mention that the

defendant was subject to mandatory post-release control (which is part of the

maximum penalty) was a complete failure to comply with Crim. R. 11 and

required that the plea be vacated without consideration of the issue of prejudice. I

would find that logic applicable here. See Farley, Howard, and Phillips. The

Appellant was not only misinformed, he was actively (although unintentionally)

misled into believing that prison was not imminent or mandatory.

       {¶43} For the reasons stated above, I would dismiss the appeals as to cases

4-11-14, 15, and 16. Further, I would sustain the first assignment of error as to

case number 4-11-17, find the second assignment to be moot, vacate Appellant’s

plea, and remand for further proceedings on that case only.

/jlr

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