[Cite as State v. Hahn, 2019-Ohio-3451.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. John W. Wise, P.J.
        Plaintiff-Appellee                  :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
TYSON J. HAHN                               :       Case No. CT2018-0057
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. CR2018-0001




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   August 26, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

TAYLOR P. BENNINGTON                                JAMES A. ANZELMO
27 North Fifth Street                               446 Howland Drive
P.O. Box 189                                        Gahanna, OH 43230
Zanesville, OH 43702
Muskingum County, Case No. CT2018-0057                                                    2



Wise, Earle, J.

        {¶ 1} Defendant-Appellant Tyson J. Hahn appeals the May 17, 2018 Sentencing

Entry of the Muskingum County Court of Common Pleas. Plaintiff-appellee is the state of

Ohio.

                          FACTS AND PROCEDURAL HISTORY

        {¶ 2} On April 16, 2018, appellant entered a plea of guilty to one count of theft of

a motor vehicle, a felony of the fourth degree. During the hearing, counsel for appellant

indicated he had gone over in detail, a written plea form signed by appellant. Counsel

indicated he had explained to appellant "maximum penalties, post release control, and

any rights he is waiving by entering this plea * * *."

        {¶ 3} During its subsequent plea colloquy with appellant, the trial court

ascertained appellant was on post-release control (PRC) for a prior offense committed in

Clark County, Ohio. Given that information, the trial court advised appellant "You

understand that a plea of guilty here and a finding of guilty on this case could lead to a

violation of your post-release control and could lead to new and additional prison time

based solely on that?" Appellant indicated he understood this possibility.

        {¶ 4} Appellant was sentenced on May 14, 2018 following a presentence

investigation. Based on appellant's extensive criminal history and lack of remorse, the

trial court sentenced appellant to 18 months for theft of a motor vehicle, revoked his post-

release control, and imposed the 1,236 days appellant had remaining on post-release

control to be served consecutive to the sentence for theft of a motor vehicle. Before the

trial court could completely conclude sentencing, appellant verbally lashed out at and

verbally threatened the trial court judge and was removed from the court room.
Muskingum County, Case No. CT2018-0057                                                                           3


        {¶ 5} On May 17, 2018, the trial court issued its sentencing judgment entry

reflecting the forgoing sentence and ordering appellant to pay court costs. It is from this

judgment that appellant appeals raising two assignments of error:

                                                        I

        {¶ 6} "TYSON           HAHN        DID     NOT       KNOWINGLY,           INTELLIGENTLY                AND

VOLUNTARILY PLEAD GUILTY TO DRUG POSSESSION (sic), IN VIOLATION OF HIS

DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATE CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF

THE OHIO CONSTITUTION."

                                                        II

        {¶ 7} "TYSON HAHN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,

IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

                                                        I

        {¶ 8} In his first assignment of error, appellant argues his plea was not knowingly,

intelligently and voluntarily made because the trial court failed to adequately inform him

that pursuant to R.C 2929.141(A)(1), the sentence for his post-release control violation

must be served consecutive to his sentence for theft of a motor vehicle.1 We disagree.

        {¶ 9} Pursuant to Crim.R. 11, guilty pleas to be made knowingly, intelligently and

voluntarily. Literal compliance with Crim. R. 11 is preferred, however, the trial court need

only “substantially comply” with the rule when addressing the non-constitutional elements

of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing


1
  Throughout this assignment of error, appellant references his plea to drug possession. However, the record
indicates appellant pled guilty to theft of a motor vehicle.
Muskingum County, Case No. CT2018-0057                                                  4

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

noted the following test for determining substantial compliance with Crim.R. 11:



             Though failure to adequately inform a defendant of his constitutional

             rights would invalidate a guilty plea under a presumption that it was

             entered involuntarily and unknowingly, failure to comply with non-

             constitutional rights will not invalidate a plea unless the defendant

             thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d 106,]

             108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea

             would have otherwise been made. Id. Under the substantial-

             compliance standard, we review the totality of circumstances

             surrounding [the defendant's] plea and determine whether he

             subjectively understood [the effect of his plea]. See, State v. Sarkozy,

             117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224 at ¶ 19-20.



      {¶ 10} State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51 at ¶ 12.

      {¶ 11} R.C. 2929.141 governs commission of an offense by person under post-

release control. Subsection (A)(1) states as follows:



             (A) Upon the conviction of or plea of guilty to a felony by a person on

             post-release control at the time of the commission of the felony, the

             court may terminate the term of post-release control, and the court

             may do either of the following regardless of whether the sentencing
Muskingum County, Case No. CT2018-0057                                                 5


             court or another court of this state imposed the original prison term

             for which the person is on post-release control:

             (1) In addition to any prison term for the new felony, impose a prison

             term for the post-release control violation. The maximum prison term

             for the violation shall be the greater of twelve months or the period

             of post-release control for the earlier felony minus any time the

             person has spent under post-release control for the earlier felony. In

             all cases, any prison term imposed for the violation shall be reduced

             by any prison term that is administratively imposed by the parole

             board as a post-release control sanction. A prison term imposed for

             the violation shall be served consecutively to any prison term

             imposed for the new felony. The imposition of a prison term for the

             post-release control violation shall terminate the period of post-

             release control for the earlier felony.



      {¶ 12} Emphasis added. Thus, while revocation of an offender’s PRC is

discretionary, any sentence imposed as a result of revocation must be served

consecutively.

      {¶ 13} In support of his argument, appellant relies on two cases; State v. Branham,

2nd Dist. Clark No. 2013 CA 49, 2014-Ohio-5067 and State v. Reffit, 5th Dist. Muskingum

No. CT2018-0017, 2018-Ohio-4364. We examine each in turn.

      {¶ 14} In Branham, the trial court addressed Branham as follows:
Muskingum County, Case No. CT2018-0057                                             6


           The record of the plea hearing reveals the following discussion

           regarding Branham's PRC status:

           The Court: The Court has been handed a written plea of guilty to an

           amended     charge    of   gross   sexual imposition   under [R.C.]

           2907.05(A)(1), which is a felony of the fourth degree. The document

           further indicates that the State will take no action on any PRC

           violations, and the parties understand that a presentence

           investigation will be conducted prior to disposition on June the 2nd.

           ***

           ***

           The Court: Are you on probation, parole, community control, or post-

           release control?

           Branham: Parole.

           Defense Counsel: PRC, I think, is what it is.

           The Court: Post-release control?

           Branham: Yeah, PRC.

           The Court: And what offense were you in prison for that you were

           released on PRC?

           Branham: Rape.

           The Court: Have you discussed your case and possible defenses

           with your attorney?

           A: Yes.
Muskingum County, Case No. CT2018-0057                                                     7


              Q: Are you satisfied with the advice and representation that your

              attorney's given you?

              A: Yes, sir.

              Q: Is this your signature on the plea form?

              A: Yes.

              Q: Before you signed the document, did you read it, go over it with

              your attorney?

              A: Yes, sir.

              Q: Did you understand everything in the document?

              A: Yes, sir, I did.

              ***

              Q: In your plea agreement, it says the State will not—how is that

              worded—take action on [the] PRC violation.

              You understand the Prosecutor, first of all, does not represent the

              Parole Authority and cannot speak for the Parole Authority. Second,

              the prosecutor's office does not speak for the Court. So their

              agreement not to proceed with [the] PRC violation does not mean

              that I will not sentence you for a PRC violation.

              Do you understand that?

              A: Yes, sir, I understand.



       {¶ 15} Branham, supra at ¶¶ 10-11. Based on this exchange, the Second District

found "* * * the trial court failed to inform Branham during the plea colloquy that, pursuant
Muskingum County, Case No. CT2018-0057                                                       8


to the explicit language in R.C. 2929.141(A)(1), if it revoked his PRC, imposition of

consecutive sentences for the violation was, in fact, mandatory upon imposition of a

prison term for GSI."

       {¶ 16} Branham is factually distinguishable from the instant matter as the trial court

never advised Branham of the implications his plea would have on his PRC.

       {¶ 17} The facts in State v. Reffitt, 5th Dist. Muskingum No CT2018-0017, 2018-

Ohio-4364, also differ from the case currently before us.

       {¶ 18} Reffitt was on PRC for a burglary charge when he committed a new offense,

possession of drugs. He elected to plead guilty to possessing drugs in exchange for a

jointly recommended sentence of six months. Additionally, the prosecution requested that

the trial court refrain from sanctioning Reffitt for violating his PRC. Reffitt supra ¶ 2. The

trial court informed Reffitt that it was under no obligation to follow the jointly recommended

sentence. It then properly advised Reffitt that once released from prison on the drug

charge and placed on PRC, if he committed a new offense additional prison time could

be added to the sentence for the newly committed offense. Id. ¶ 3. The trial court did not,

however, address the impact of Reffitt's plea to the drug charge upon his PRC for the

prior burglary offense. After accepting Reffitt's plea, the trial court sentenced Reffit to six

months on the drug charge, revoked his PRC, sentenced him to the balance of time left

on PRC, and ordered him to serve the sentence consecutive to the sentence for the drug

offense. Id. ¶ 4.

       {¶ 19} Turning to the instant matter, the trial court here advised appellant: "You

understand that a plea of guilty here and a finding of guilty on this case could lead to a
Muskingum County, Case No. CT2018-0057                                                     9


violation of your post-release control and could lead to new and additional prison time

based solely on that?" Plea Transcript at 5.

       {¶ 20} In State v. Nicholson, 5th Dist. Muskingum No. CT2015-0016, 2016-Ohio-

50 and State v. Wills, 5th Dist. Muskingum No. CT2015-0009, 2015-Ohio-4599, we found

advising each appellant of the consecutive nature of a post release control sentence with

the language "could be added" is sufficient and tantamount to saying "consecutive to."

We concluded that with that language, the appellants in both cases had been adequately

advised of post-release control and its ramifications. Wills, at ¶ 13; Nicholson citing Wills

at ¶¶ 14-15.

       {¶ 21} Recently, the Supreme Court of Ohio stated:



               A trial court need only substantially comply with the nonconstitutional

               advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d

               176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18. But “[w]hen 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.”

               (Emphasis sic.) Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

               N.E.2d 462, at ¶ 32. “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.” Id. But if the trial court completely failed to comply with the

               rule, the plea must be vacated. Id. Complete failure " 'to comply with
Muskingum County, Case No. CT2018-0057                                                     10

               the rule does not implicate an analysis of prejudice.' " Id., quoting

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

               1224, ¶ 22.



       {¶ 22} State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766

(2018) ¶ 19.

       {¶ 23} We find here as we did in Wills, supra, that the trial court's use of "new and

additional prison time" to be tantamount to saying "consecutive to." We conclude,

therefore, that the trial court substantially complied with Crim.R. 11.

       {¶ 24} The first assignment of error is overruled.

                                              II

       {¶ 25} In his Second Assignment of Error, appellant argues he received ineffective

assistance of trial counsel because his defense attorney did not request a waiver of court

costs. We disagree.

       {¶ 26} To prevail on a claim of ineffective assistance of counsel, appellant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced appellant, i.e., a reasonable probability that but for counsel's errors, the result

of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–688,

694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable probability” is

“probability sufficient to undermine confidence in the outcome.” Strickland at 694, 104

S.Ct. 2052.
Muskingum County, Case No. CT2018-0057                                                      11

       {¶ 27} We addressed this issue in State v. Davis, 5th Dist. Licking No. 17-CA-55

2017-Ohio-9445, and determined the following at ¶ 27:



              We find no merit in Appellant's allegation that he received ineffective

              assistance of counsel as a result of his attorney failing to request that

              the trial court waive court costs. Because R.C. 2947.23(C) grants

              appellant the ability to seek waiver of costs at any time, including

              after sentencing, appellant has not been prejudiced by the failure of

              his counsel to request a waiver at sentencing.



       {¶ 28} In support of his ineffective assistance argument, appellant cites State v.

Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. Springer conflicts with our

decision in Davis, and the matter has been accepted for review by the Supreme Court of

Ohio upon our certification of a conflict. We held in State v. Ramsey, 5th Dist. Licking No.

17-CA-76, 2018-Ohio-2365, as we hold here; “[u]nless a decision is rendered on the issue

to the contrary in the future, this Court will continue to abide by its decision in Davis.” Id.

See also State v. Somers, 5th Dist. Muskingum No. CT2018-0013, 2018-Ohio-4625;

State v. Bowen, 5th Dist. Muskingum No. CT2017-0103, 2018-Ohio-4220, State v. Ross,

5th Dist. Muskingum No. CT2018-0047, 2019-Ohio-2472, State v. Bryan, 5th Dist.

Muskingum No. CT2018-0058, 2019-Ohio-2980.

       {¶ 29} The final assignment of error is overruled.
Muskingum County, Case No. CT2018-0057                                 12


      {¶ 30} The judgment of the Muskingum County Court of Common Pleas is

affirmed.



By Wise, Earle, J.

Wise, John, P.J. and

Baldwin, J. concur.




EEW/rw
