[Cite as State v. Jones, 2017-Ohio-7722.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105282


                                      STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.


                                     MILTON J. JONES

                                                       DEFENDANT-APPELLANT




                      JUDGMENT:
  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                   Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                        Case Nos. CR-16-604475-C and CR-16-604781-A

        BEFORE:            Boyle, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 21, 2017
ATTORNEY FOR APPELLANT

Sarah R. Cofta
P.O. Box 16425
Cleveland, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: John D. Kirkland
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:
       {¶1} Defendant-appellant, Milton J. Jones, appeals his sentence. He raises two

assignments of error for our review:

       1. The trial court erred to the prejudice of Appellant, who did not
       knowingly, intelligently, and voluntarily enter into his guilty plea.

       2. The trial court erred when it failed to properly notify Appellant of
       postrelease control during his sentencing.

       {¶2} Finding merit to his second assignment of error, we remand to the trial

court to properly impose Jones’s sentence with respect to his terms of postrelease

control.

I. Procedural History and Factual Background

       {¶3} In March 2016, a Cuyahoga County Grand Jury indicted Jones with one

count of receiving stolen property in Cuyahoga C.P. No. CR-16-604475-C. In April

2016, a Cuyahoga County Grand Jury indicted Jones for the following 15 counts in

Cuyahoga C.P. No. CR-16-604781-A: two counts of aggravated robbery, three counts

of robbery, four counts of felonious assault, three counts of kidnapping, one count of

carrying a concealed weapon, one count of discharge of a firearm on or near prohibited

premises, and one count of criminal damaging or endangering. Based on discussions

with the state’s prosecutor, Jones eventually agreed to withdraw his not guilty pleas and

plead to an amended indictment for both cases.              Specifically, in Case No.

CR-16-604475-C, Jones pleaded guilty to the indictment, as charged, and in Case No.

CR-16-604781-A, Jones pleaded guilty to one count of aggravated robbery, with a

one-year firearm specification, and one count of felonious assault.       At the state’s
request, the trial court nolled the remaining counts in Case No. CR-16-604781-A.        At

the plea hearing, the trial court informed Jones that he faced a potential three-year term

of postrelease control for pleading to receiving stolen property, a felony of the fourth

degree, as well as a mandatory five-year term of postrelease control for pleading to

aggravated robbery, a felony of the first degree.

       {¶4} At sentencing, the trial court held a sentencing hearing on both cases,

sentencing Jones to a total prison term of four years and nine months. In Case No.

CR-16-604475-C, the trial court imposed a nine-month sentence, to be served

consecutively to his sentence for his other case.    In Case No. CR-16-604781-A, the trial

court imposed a four-year sentence: one year for his firearm specification, three years for

the underlying count of aggravated robbery, and four years for the count of felonious

assault, which was to run concurrent with the other two counts. In addition to his terms

of incarceration, the trial court also instructed Jones that he faced “up to five years,

mandatory” of postrelease control for his aggravated robbery conviction.

       {¶5} It is from this judgment that Jones appeals.

II. Jones’s Guilty Plea

       {¶6} In his first assignment of error, Jones claims that he did not knowingly,

intelligently, and voluntarily plead guilty to the amended charges and that the trial

court’s acceptance of his plea prejudiced him.      We disagree.

       {¶7} We review whether the trial court accepted Jones’s plea in compliance

with Crim.R. 11(C) de novo.        State v. McGinnis, 8th Dist. Cuyahoga No. 99918,
2014-Ohio-2385, ¶ 11, citing State v. Cardwell, 8th Dist. Cuyahoga No. 92796,

2009-Ohio-6827. “In other words, this court will conduct our own independent review

of the record without any deference to the trial court.” State v. Avery, 4th Dist. Scioto

No. 14CA3613, 2015-Ohio-4251, ¶ 5.

       {¶8} “The underlying purpose of Crim.R. 11(C) is to convey certain information

to a defendant so that he or she can make a voluntary and intelligent decision regarding

whether to plead guilty.”        State v. Chiles, 8th Dist. Cuyahoga No. 103179,

2016-Ohio-1225, ¶ 8.     To satisfy the rule, a trial court must ensure that a defendant

knowingly, intelligently, and voluntarily enters a plea of guilty and fully understands its

consequences.    State v. Bowen, 52 Ohio St.2d 27, 28, 368 N.E.2d 843 (1977). If a

plea is not made knowingly, intelligently, and voluntarily, it is unconstitutional to

enforce that plea under both the United States and Ohio Constitutions. State v. Engle,

74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).       The record must reflect that the trial

court satisfied Crim.R. 11’s requirements through oral dialogue with the defendant at the

plea hearing. Chiles at ¶ 9; State v. Martin, 8th Dist. Cuyahoga Nos. 92600 and 92601,

2010-Ohio-244, ¶ 5. Specifically, Crim.R. 11(C)(2) states:

       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.
       (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.

       (c) Informing the defendant and determining that the defendant
       understands that by 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 in the defendant’s favor, and to require the state to
       prove the defendant’s guilty beyond a reasonable doubt at a trial at which
       the defendant cannot be compelled to testify against himself or herself.

       {¶9} While a court must strictly comply with the provisions concerning

constitutional rights set forth in Crim.R. 11(C)(2)(c), a court must only substantially

comply with the provisions concerning nonconstitutional rights set forth in Crim.R.

11(C)(2)(a) and (b).    State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 31; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.

Under the substantial-compliance test, “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.” Clark at ¶ 31, quoting State v. Nero, 56 Ohio St.3d 106, 564

N.E.2d 474 (1990); see also State v. Caplinger, 105 Ohio App.3d 567, 572, 664 N.E.2d

959 (4th Dist.1995), citing Nero (“In other words, if it appears from the record that the

defendant appreciated the effect of his plea and waiver of rights in spite of the trial

court’s error, there is still substantial compliance.”).

       {¶10} In addition to showing that the trial court failed to substantially comply

with Crim.R. 11(C)(2)(a) and (b)’s requirements, “a defendant who challenges his guilty

plea on the basis that it was not knowingly, intelligently, and voluntarily made must
show a prejudicial effect.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 15, quoting Nero. To show prejudice, a defendant must establish that he

would not have plead guilty had the court substantially complied with Crim.R. 11(C)’s

requirements. Nero at 108.

      {¶11} Jones first claims that the record does not clearly demonstrate the trial court

substantially complied with Crim.R. 11(C)(2)(a) because he answered “No” when asked

if he discussed his case’s facts with his attorney. We disagree.

      {¶12} In Avery, 4th Dist. Scioto No. 14CA3613, 2015-Ohio-4251, the appellant

argued that the trial court erred in accepting her guilty plea because she did not

knowingly, intelligently, and voluntarily plead guilty. At trial, the court asked the

appellant if she was satisfied with her attorney’s performance at the plea hearing, to

which the appellant replied, “Not really.” Id. at ¶ 6.     After the court informed the

appellant that it was halting the proceeding and determined that it could not accept the

guilty plea, the appellant’s attorney informed the court that the appellant had

misunderstood its question, which the appellant confirmed.         As a result, the court

proceeded with the hearing, and, when asked again if she was satisfied with her

attorney’s efforts, the appellant replied in the affirmative.      On appeal, the Fourth

District Court of Appeals rejected the appellant’s argument, noting that the trial court

properly waited to go forward with the hearing until the appellant and her attorney

assured the court that she simply misunderstood the question and corrected her earlier

answer.   Id. at ¶ 13.
       {¶13} Similarly, in State v. Wilson, 10th Dist. Franklin No. 04AP-1013,

2005-Ohio-4673, the appellant argued that he did not knowingly, intelligently, and

voluntarily enter into his plea after expressing reservations about his attorney’s

performance during the plea hearing.        When the appellant indicated that he was “not

sure what to say” about his attorney’s performance during the plea hearing, the court

informed the appellant that it was going to call up the jury and stop the plea deal. Id. at

¶ 5.   After a short discussion with his attorney, both the appellant and his attorney

explained to the court that he was willing to go forward with the plea and retracted his

earlier statements concerning his attorney’s performance.    On appeal, the Tenth District

Court of Appeals rejected the appellant’s argument, noting that it was “directly

contradicted by his testimony during his plea hearing.”         Id. at ¶ 12.      The court

specifically noted that, after conferring with his attorney, the appellant “told the trial

court that he was satisfied with his attorney’s advice, counsel, and competence, and that

he was pleading of his own free will and to the best of his own judgment.” Id.

       {¶14} Here, comparable to both Avery and Wilson, the record demonstrates that

the trial court substantially complied with its obligations under Crim.R. 11(C). At the

plea hearing, the trial court spoke with Jones about his level of education, whether he

was under the influence of drugs or alcohol, and whether he was currently on community

control sanctions or postrelease control.    The following exchange took place:

       THE COURT:           Have you discussed with your attorney the facts of
                            your case and listened to his advice, or her [advice]?

       JONES:               No.
       THE COURT:           Yes?

       JONES:               Yes.

       [DEFENSE
       ATTORNEY]:           Have you talked with us?

       JONES:               Yes.

       THE COURT:           Are you satisfied with the representations you have
                            received from your attorneys?

       JONES:               Yes.

Similar to Avery, the court did not continue with the plea until Jones’s counsel clarified

the question and Jones affirmed that he spoke with his attorneys.        Similar to Wilson,

Jones stated that he was satisfied with his attorneys’ representations.         Moreover,

subsequent to that exchange, the court explained each of the constitutional rights that

Jones was waiving as well as the potential punishments for each conviction, and when

asked if he had any questions about his cases, Jones stated, “No.” In fact, at no point

during the hearing — including the above-mentioned exchange — did Jones or his

attorneys express concern over his understanding of the offenses or his attorneys’

performances.    Therefore, contrary to Jones’s claim, we find that the record clearly

reflects that he knowingly, intelligently, and voluntarily pleaded guilty.

       {¶15} Jones additionally argues that, considering his low intelligence, the totality

of the circumstances show that he did not understand the consequences of his guilty plea.

 Again, we disagree.
       {¶16} In State v. Beckwith, 8th Dist. Cuyahoga No. 75927, 2000 Ohio App.

LEXIS 3162 (July 13, 2000), the defendant raised a similar argument, claiming that his

plea was not knowingly, intelligently, or voluntarily made because of his “limited

intelligence.” Id. at *5.   The court rejected the defendant’s argument, noting that the

first time he raised his intelligence issue was at sentencing for mitigation purposes and

that there was nothing in the record to support that he was unable to understand the

implications of his plea. Id. at *6. In concluding its opinion, the court stated:

       The proceedings in this case were not so subtle that an eighteen-year-old
       with a ninth grade education would have had any trouble understanding.
       * * * Nothing that defendant said or did gave any indication to the trial
       court that he failed to understand the guilty plea proceedings, nor does
       defendant now provide any support for this belated claim.

Id. at *8.

       {¶17} Jones’s totality-of-the-circumstances argument also fails. First, similar to

Beckwith, concerns over Jones’s mental abilities were raised only at sentencing,

apparently in an effort to mitigate his convictions. Those comments made by Jones’s

attorney have no bearing on his subjective understanding at the plea hearing, especially

considering the absence of any evidence that Jones was confused or unwilling to enter

the plea deal. Besides Jones’s single innocent misunderstanding to the trial court’s

question concerning his counsel — which he subsequently corrected upon further

explanation by his attorney, Jones indicated that he understood exactly what he was

agreeing to.      Jones neither asked the court any questions nor expressed any

reservations about pleading guilty. In addition, Jones was 19 years old at the time he
pleaded guilty and previously obtained his GED. While the court psychiatric clinic

placed Jones in the “‘low average’ range of intellectual functioning[,]” the Clinic noted

that he does not suffer from mental illness. Jones has offered no proof besides his own

attorney’s mitigating statements at sentencing to establish any confusion or

misunderstanding. See Avery, 4th Dist. Scioto No. 14CA3613, 2015-Ohio-4251, ¶ 13

(“If appellant continued to be confused, or if she misunderstood the proceedings in

general, there must be some onus on her part to make that fact known.”).       Contrary to

his assertions, the totality of the circumstances reflects that Jones understood what he

was doing and that the court substantially complied with Crim.R. 11.

      {¶18} Furthermore, Jones fails to demonstrate how the court’s alleged Crim.R. 11

violation prejudiced him. Jones’s mere allegation that he “was prejudiced because his

pleas would not have otherwise been made, if the court had fully complied with Crim.R.

11” is completely refuted by the record.    In addition to the fact that, in return for his

guilty plea, Jones avoided going to trial on the remaining 13 counts in Case No.

CR-16-604781-A, the record shows that Jones had every intent to plead guilty to the

amended charges.    Therefore, in addition to the fact that he failed to show that the trial

court did not substantially comply with Crim.R. 11, Jones also failed to demonstrate

prejudice.

      {¶19} Jones’s first assignment of error is overruled.

III. Postrelease Control
       {¶20} In his second assignment of error, Jones argues that the trial court erred by

improperly notifying him of postrelease control during sentencing.      The state concedes

this error and does not oppose remanding the issue to correct the imposition of

postrelease control.   We agree.

       {¶21} When applicable, a sentencing court’s failure to impose a mandatory term

of postrelease control and notify a defendant of the terms of postrelease control renders

that portion of the sentence void, and it must be set aside. State v. Fischer, 128 Ohio

St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26; State v. Mitchell, 8th Dist. Cuyahoga

No. 103364, 2016-Ohio-4956, ¶ 16, citing Fischer.          When the postrelease control

portion of a sentence is void, a defendant is only entitled to a hearing limited to the

“proper imposition of postrelease control[,]” not an entirely new sentencing hearing.

Fischer at ¶ 29.    We have addressed this issue many times before, and this case is no

different. See State v. Palmer, 8th Dist. Cuyahoga No. 95140, 2011-Ohio-1244, ¶ 19

(“[I]t is insufficient for the court to inform the defendant at sentencing that he ‘may be’

subject to postrelease control when postrelease control is mandatory.”); State v. Jones,

8th Dist. Cuyahoga No. 94216, 2010-Ohio-4136, ¶ 5 (vacating the defendant’s sentence

because the court did not impose the mandatory term of postrelease control when it told

the defendant that he was subject to “up to” five years of postrelease control).

       {¶22} R.C. 2967.28 sets forth the time periods of postrelease control.          The

statute says, in relevant part:

       Each sentence to a prison term for a felony of the first degree * * * shall
       include a requirement that the offender be subject to a period of postrelease
           control imposed by the parole board after the offender’s release from
           imprisonment. * * * [A] period of postrelease control required by this
           division for an offender shall be one of the following periods: (1) For a
           felony of the first degree * * *, five years[.]

 R.C. 2967.28(B)(1). If the offense does not fall under section (B) of the statute, then an

 offender is “subject to a period of postrelease control of up to three years after the

 offender’s release from imprisonment, if the parole board * * * determines that a period

 of postrelease control is necessary for that offender.”        R.C. 2967.28(C).

           {¶23} Here, Jones pleaded guilty to aggravated robbery and felonious assault,

 felonies of the first and second degree, in Case No. CR-16-604781-A and receiving

 stolen property, a felony of the fourth degree, in Case No. CR-16-604475-C. As a

 result, Jones was subject to a mandatory five-year term of postrelease control in Case

 No. CR-16-604781-A and a three-year discretionary term of postrelease control in Case

 No. CR-16-604475-C. At the sentencing hearing, however, the court did not impose

 the three-year discretionary term.       In addition, concerning Case No. CR-16-604781-A,

 the court informed Jones that he “must be on postrelease control for a period of time of

 up to five years, mandatory.”1

           {¶24} Both Jones and the state acknowledge the trial court’s error.             We agree

 with the state that the proper remedy is to remand the case for a limited resentencing

 hearing to correct Jones’s sentence concerning his terms of postrelease control.


       1
          Despite the court’s statements at sentencing, its journal entries for both cases properly
indicated the statutory terms of postrelease control, including that the term for Jones’s conviction in
Case No. CR-16-604781-A was a mandatory five years.
       {¶25} Jones’s second assignment of error is sustained.

       {¶26} Judgment affirmed in part and reversed in part.       We remand for the trial

court to resentence Jones in accordance with R.C. 2967.28.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed in part, any bail pending appeal is terminated.    Case remanded to the trial

court for resentencing.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
