[Cite as State v. Russell, 2018-Ohio-2571.]




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

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 27473
                                                    :
 v.                                                 :   Trial Court No. 2016-CR-4028/2
                                                    :
 JAYTAVION L. RUSSELL                               :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                              Rendered on the 29th day of June, 2018.

                                               ...........

ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LAURA M. WOODRUFF, Atty. Reg. No. 0084161, 28 N. Wilkinson Street, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

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


FROELICH, J.

        {¶ 1} After he was bound over to adult court from juvenile court, Jaytavion Russell

pled guilty in the Montgomery County Court of Common Pleas to one count of failure to

comply with an order or signal of a police officer, a felony of the third degree. The trial

court sentenced him to 18 months in prison, suspended his driver’s license for five years,

and ordered him to pay restitution of $2,500 to one of the complainants (joint and severally

with his co-defendant) and court costs.

        {¶ 2} Russell’s original appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he had

thoroughly examined the record, but found no non-frivolous issues for appeal. Upon our

initial review, we found that a non-frivolous issue existed, and we appointed new counsel.

We instructed that new counsel “should review the entire record and raise any issues that

he or she finds have arguable merit.”1

        {¶ 3} Russell, with new counsel, now raises two assignments challenging the trial

court’s order of restitution and claiming that his plea was not made knowingly, intelligently,

and voluntarily because the court failed to properly notify him about his post-release

control obligation. For the following reasons, the trial court’s judgment will be affirmed in

part and reversed in part, and the matter will remanded for resentencing on restitution

only.


1
  In her brief, counsel states that she “was not provided with a transcript of the
bindover/amenability hearing or juvenile court decision,” and those items apparently were
not reviewed by either counsel. Although the filings in the juvenile court, including the
juvenile court’s bindover order, are part of the appellate record, the appellate record does
not include transcripts of the probable cause and amenability hearings. It is the
obligation of the appellant to ensure that all necessary transcripts are included in the
record. See App.R. 9(B).
                                                                                          -3-


                         I. Background and Procedural History

       {¶ 4} On September 8, 2016, the State filed a delinquency complaint against

Russell in juvenile court, alleging that he (1) failed to comply with an order or signal of a

police officer, in violation of R.C. 2921.331(B)/(C)(5)(a)(ii), a felony of the third degree;

(2) received stolen property, in violation of R.C. 2913.51(A), a felony of the fourth degree;

(3) sold alcohol to an underage person, in violation of R.C. 4301.69(E), a misdemeanor

of the first degree; and (4) committed falsification, in violation of R.C. 2921.13, a

misdemeanor of the second degree. (J.C. No. 2016-5633). In a separate case, Russell

was charged with delinquency based on an allegation that he committed breaking and

entering at a liquor and wine store, a felony of the fifth degree. (J.C. No. 2016-5631.)

Russell was 16 years old at the time of the offenses.

       {¶ 5} In both juvenile cases, the State requested that Russell be bound over to

adult court under the discretionary transfer provisions. In October 2016, the juvenile

court determined that probable caused existed that Russell committed breaking and

entering, receiving stolen property, and failure to comply with an order and signal of a

police officer. The State dismissed the remaining two charges. In December 2016, the

juvenile court conducted an amenability hearing and concluded that Russell was not

amenable to care or rehabilitation in the juvenile system and that the safety of the

community required that he be subject to adult sanctions; the juvenile court transferred

the cases to adult court.

       {¶ 6} On January 10, 2017, Russell was indicted on breaking and entering, a felony

of the fifth degree (Count 1), and failure to comply with an order or signal of a police

officer, a felony of the third degree (Count 2). Russell subsequently pled guilty in adult
                                                                                             -4-


court to failure to comply, and the State agreed to dismiss the breaking and entering

charge. The parties further agreed that Russell would pay restitution for the breaking and

entering, and that his prison sentence, if one were imposed, would be no more than 24

months. The parties did not have an agreement regarding the amount of restitution; no

amount was listed on the plea form. The trial court initially informed Russell that his

sentence would include a mandatory three-year term of post-release control, but after

further consideration of that issue, the court told Russell that it was actually a discretionary

term of post-release control.

       {¶ 7} At sentencing, the trial court sentenced Russell to 18 months in prison and

ordered him to pay restitution, jointly and severally with his co-defendant, to one of the

complainants. The trial court did not inform Russell of the amount of restitution at

sentencing. However, the trial court’s written judgment entry included an order that

Russell pay $2,500 in restitution, joint and severally with his co-defendant. The trial court

again informed Russell that he was subject to a non-mandatory period of up to three years

of post-release control at the discretion of the Parole Board.

       {¶ 8} Russell appeals from his conviction.

                                        II. Restitution

       {¶ 9} In his first assignment of error, Russell claims that the trial court “erred in

ordering restitution in violation of R.C. § 2929.18(A)(1).”

       {¶ 10} R.C. 2929.18 authorizes the trial court to order a defendant to pay restitution

to the victim of the defendant’s offense in an amount based on the victim’s economic

loss. If the trial court imposes restitution, at sentencing, the court must determine the

amount of restitution to be made by the offender. R.C. 2929.18(A)(1). We have held
                                                                                           -5-


that a trial court’s “failure to establish the amount of restitution at the sentencing hearing

constitutes plain error requiring remand.” State v. Collins, 2d Dist. Montgomery No.

21182, 2006-Ohio-3036, ¶ 4. See also, e.g., State v. Miller, 2d Dist. Clark No. 08CA90,

2010-Ohio-4760 (trial court committed plain error when it ordered defendant to pay

restitution, but failed to determine, at the sentencing hearing, the amount of restitution to

be paid).

       {¶ 11} At the sentencing hearing, the trial court ordered Russell to pay restitution

to one victim, jointly and severally with his co-defendant. The court found that Russell

had the present and future ability to pay that restitution. However, the court did not

indicate the amount of restitution to be paid. The trial court further stated that it would

not order restitution with respect to a second victim. The court’s written sentencing entry

included an order that Russell pay $2,500 in restitution.

       {¶ 12} The State asserts that the amount of the restitution was “implied by the

record.” It argues that Russell agreed to pay restitution as part of his plea, and that the

information in the presentence investigation report (PSI) supported the amount of

restitution ordered in the judgment entry. The State notes that Russell did not question

the trial court about the amount of restitution at sentencing.

       {¶ 13} The State asserts that this case is analogous to State v. Baker, 2d Dist.

Montgomery No. 27379, 2018-Ohio-511. In Baker, the trial court sentenced Baker to

community control sanctions, which included the requirement that she pay restitution of

$10,235 to one victim and $24,476.95 to another. On direct appeal, we reversed the

restitution order, finding that there was insufficient evidence in the PSI from which the

court could determine, with any degree of certainty, the amount of the actual loss of one
                                                                                             -6-


of the victims. We remanded that matter to the trial court for a hearing on restitution.

On remand, the court conducted a hearing and informed the parties that it was going to

take the matter under advisement. The court subsequently filed an amended judgment

entry, which ordered restitution to that victim in the amount of $2,800.

       {¶ 14} On appeal from the amended judgment entry, Baker claimed, in part, that

the trial court abused its discretion in failing to enter restitution in open court. We rejected

Baker’s argument, reasoning:

       When reading R.C. 2929.18(A)(1) in its entirety, we do not agree with Baker

       that the court was required to pronounce the exact amount of restitution at

       the restitution hearing to satisfy the “in open court” requirement.          The

       original order requiring restitution was made in open court and a full

       evidentiary hearing was held on remand, providing a basis for the cogent

       order. While the remand was essentially a re-sentencing, Baker had notice

       that the court would impose restitution, and at the start of the restitution

       hearing, the court made clear that it intended to review the entire record

       prior to ordering the dollar amount of restitution, including the transcript and

       the PSI, and counsel for Baker did not object.

Baker at ¶ 17.

       {¶ 15} We find Baker to be factually distinguishable. In Baker, the trial court had

originally announced the amount of restitution in open court, and Baker had the

opportunity to object to that amount. The amended restitution order on appeal in Baker

was determined after a hearing, in which the State presented two exhibits and Baker

called two witnesses. The court informed the parties that it would consider the entire
                                                                                      -7-


record, including the trial transcript, before rendering a decision, and there was no

objection to this procedure. In contrast, Russell and the State had no agreement on the

amount of restitution, and the court did not inform Russell of the amount he would be

required to pay at sentencing, which denied him the opportunity to object to the amount

and to request a hearing.

       {¶ 16} We find this case to be analogous to Miller, 2d Dist. Clark No. 08CA90,

2010-Ohio-4760, in which the trial court informed the defendant at sentencing that he was

required to pay restitution, but no amount of restitution was imposed. The trial court’s

original judgment entry also did not specify an amount, and we ordered Miller to show

cause why his appeal from the judgment entry should not be dismissed for lack of a final

appealable order. The trial court subsequently filed an amended judgment entry, which

specified the amount of restitution.

       {¶ 17} On appeal from the amended judgment entry, Miller argued that the trial

court erred, because he was not physically before the court for pronouncement of the

amount of restitution that the court had ordered in the amended judgment entry. The

State responded that Miller was not prejudiced, because the restitution order was for the

amount that had been recommended in the PSI, which the court and the parties had

reviewed prior to sentencing.

       {¶ 18} We rejected the State’s argument, reasoning that “[u]ntil an amount of

restitution was imposed by the court, [Miller] had no right to the hearing to which he is

entitled by R.C. 2929.18(A)(1), should he dispute the amount ordered.         Further, a

defendant’s physical presence is always required, absent an express waiver.” Miller at

¶ 34. We reversed the trial court’s restitution order and remanded for resentencing on
                                                                                           -8-

that issue. Accord State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-

5601; State v. Brodman, 3d Dist. Hardin Nos. 6-02-05 and 6-02-06, 2002-Ohio-5584, ¶ 7.

       {¶ 19} Russell is the same procedural posture as the defendant in Miller. The trial

court ordered restitution at sentencing without informing him of the amount and later

specified the amount in a written judgment entry.         And, Russell is challenging the

restitution order on direct appeal from that judgment entry. As in Miller, the trial court’s

imposition of an unspecified amount of restitution constituted plain error.

       {¶ 20} Russell’s first assignment of error is sustained.

                           III. Voluntariness of Russell’s Plea

       {¶ 21} In his second assignment of error, Russell claims that the trial court failed

to comply with the requirements of Crim.R. 11 and R.C. 2929.19 and, consequently, his

plea was not entered knowingly, intelligently, and voluntarily.

       {¶ 22} At the outset, the State asserts that Russell’s assignment of error is moot,

because Russell has been released from prison and he was not placed on post-release

control. We do not agree that the issue is moot.          Russell’s assignment of error is

directed to the validity of his plea, not the validity of any post-release control obligation.

Should we conclude that Russell’s plea was not entered knowingly, intelligently, and

voluntarily, the effect would be to undo his conviction, not merely the trial court’s

imposition at sentencing of a discretionary term of post-release control. In other words,

Russell seeks to return the case to a status as if no plea had been entered.

       {¶ 23} Crim.R. 11(C)(2) requires the court to address the defendant personally and

(a) determine that the defendant is making the plea voluntarily, with an understanding of

the nature of the charges and the maximum penalty, and, if applicable, that the defendant
                                                                                            -9-


is not eligible for probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect of the plea and

that the court, upon acceptance of the plea, may proceed with judgment and sentencing;

and (c) inform the defendant and determine that he or she understands that, by entering

the plea, the defendant is waiving the rights to a jury trial, to confront witnesses against

him or her, to have compulsory process for obtaining witnesses, and to require the State

to prove guilt beyond a reasonable doubt at a trial at which he or she cannot be compelled

to testify against himself or herself. State v. Brown, 2d Dist. Montgomery No. 21896,

2007-Ohio-6675, ¶ 3.

       {¶ 24} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474 (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.” Id. In contrast, the trial court must strictly

comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights.

Clark at ¶ 31.

       {¶ 25} Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that

the plea would otherwise not have been entered. Id. at ¶ 15.
                                                                                        -10-


      {¶ 26} The parties agree that the trial court erred at the plea hearing when it

informed Russell that his three-year term of post-release control would be discretionary,

rather than mandatory. The Supreme Court of Ohio has held that the “incorrect recitation

of the law fails to meet the substantial compliance standard.” Clark at ¶ 39. “[T]he trial

judge must convey accurate information to the defendant so that the defendant can

understand the consequences of his or her decision and enter a valid plea.” Id. at ¶ 26.

      {¶ 27} Nevertheless, the Ohio Supreme Court has distinguished between a trial

court’s complete failure to comply with a non-constitutional requirement and a court’s

partial compliance with such a requirement:

      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, e.g., by mentioning mandatory postrelease control

      without explaining it, 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, e.g., by not informing the defendant of a mandatory

      period of postrelease control, the plea must be vacated.         “A complete

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

(Citations omitted; emphasis sic.) Clark at ¶ 32.

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

the Ohio Supreme Court found that the trial court’s failure to address post-release control

constituted a complete failure to comply with Crim.R. 11 and thus the defendant was not
                                                                                         -11-


required to demonstrate prejudice. The supreme court contrasted the trial court’s action

from partial compliance, stating: “The trial court did not merely misinform Sarkozy about

the length of his term of postrelease control. Nor did the court merely misinform him as

to whether postrelease control was mandatory or discretionary. Rather, the court failed

to mention postrelease control at all during the plea colloquy.” Sarkozy at ¶ 22.

       {¶ 29} In accordance with Sarkozy, this court has held that “partial compliance with

Crim.R. 11 is established when the trial court discusses post-release control at the plea

hearing but misinforms the defendant as to whether post-release control is mandatory or

discretionary, as long as the defendant subjectively understands the implications of his

plea and the rights he is waiving.” State v. Knox, 2d Dist. Montgomery No. 25774, 2015-

Ohio-4198, ¶ 11, citing State v. Mugrage, 9th Dist. Summit No. 26062, 2012-Ohio-4802,

¶ 15 and State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, 2011-Ohio-2055, ¶

22.   In Knox, we rejected the defendant’s claim that his plea was not knowingly,

intelligently, and voluntarily made, because the defendant “failed to point to anything in

the record that could lead us to conclude that his plea would have been otherwise if he

had known that post-release control was mandatory, rather than discretionary.” Knox at

¶ 12. See also State v. Hastings, 2d Dist. Montgomery Nos. 27212 and 27213, 2018-

Ohio-422 (analogizing to Knox and finding that the defendant was required to show

prejudice where the trial court “merely indicated that post-release control for Hastings’

attempted burglary charge was discretionary when it was in fact mandatory.”).

       {¶ 30} We note that this court recently vacated a plea as not knowingly,

intelligently, and voluntarily entered when the trial court used conflicting language at the

plea hearing as to whether the defendant’s post-release control was discretionary or
                                                                                          -12-

mandatory and the plea form likewise used inconsistent language. State v. Lawson, 2d

Dist. Miami No. 2016-CA-20, 2018-Ohio-1222. However, in Lawson, both the defendant

and the State agreed not only that the trial court failed to substantially comply with Crim.R.

11(C)(2)(a), but also that Lawson’s plea should be vacated. Lawson at ¶ 15. Given the

State’s concession of error and of the need for vacation of Lawson’s plea, Lawson is not

inconsistent with our prior authority that a demonstration of prejudice is required when a

trial court indicates at a plea hearing that post-release control is discretionary when it is,

in fact, mandatory.

       {¶ 31} In this case, we find nothing in the record to suggest that Russell would not

have entered his plea had he been informed that his post-release control obligation was

mandatory. In fact, when the trial court informed Russell of the maximum penalty that

he faced, the court initially informed him that his sentence included “a mandatory period

of post release control for a period of three years.”         After the court substantially

completed its plea colloquy and Russell and his attorney had signed the plea form, the

trial court reconsidered whether post-release control in the case was mandatory. The

court concluded it was not, and defense counsel agreed.            The trial court then told

Russell:

       THE COURT: Sir, I had previously read to you that the – that there [would]

       be a mandatory period of post release control of three years. Do you

       understand that will be non-mandatory?

       THE DEFENDANT: Yes, ma’am.

       THE COURT: All right. That will be up to the parole board to decide if

       you’re on post release control. Do you understand that?
                                                                                        -13-


       THE DEFENDANT: Yes, ma’am.

The court then asked Russell for his plea, and Russell pled guilty.

       {¶ 32} Upon review of the record, we find no indication that Russell was prejudiced

by the trial court’s mistaken notification that his post-release control was discretionary.

The record strongly suggests that Russell would also have entered his guilty plea had the

trial simply asked him -- after he had been told that post-release control would be

mandatory and after he had signed the plea form -- what plea he wished to enter.

       {¶ 33} Russell’s second assignment of error is overruled.

                                      IV. Conclusion

       {¶ 34} The trial court’s judgment will be affirmed in part and reversed in part, and

the matter will be remanded to the trial court for resentencing on restitution only.

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

DONOVAN, J. and TUCKER, J., concur.

Copies mailed to:

Alice B. Peters
Laura M. Woodruff
Hon. Mary Katherine Huffman
