[Cite as State v. Grove, 2019-Ohio-1627.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P. J.
                                              :       Hon. John W. Wise, J
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 2018AP100033
PAUL GROVE                                    :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Tuscarawas
                                                  County Court of Common Pleas, Case No.
                                                  2017CR090204




JUDGMENT:                                         Reversed and Remanded



DATE OF JUDGMENT ENTRY:                           April 29, 2019


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

AMANDA MILLER                                     DONOVAN HILL
Assistant Prosecuting Attorney                    116 Cleveland Avenue North
125 East High Avenue                              Canton, OH 44702
New Philadelphia, OH 44663
Gwin, P.J.
Tuscarawas County, Case No. 2018 AP 100033                                              2


      {¶1}   Appellant Paul E. Grove, Jr. [“Grove”] appeals his conviction and sentence

after a negotiated guilty plea in the Tuscarawas County Court of Common Pleas.

                                 Facts and Procedural History

      {¶2}   The Tuscarawas County Grand Jury indicted Grove on one count of

Aggravated Vehicular Homicide, in violation of R.C. 2903.06(A)(1)(a), two counts of

Aggravated Vehicular Assault, in violation of R.C. 2903.08(A)(1)(a), one count of

Operating a Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a

Combination of Them, in violation of R.C. 4511.19(A)(1)(d), one count of Operating a

Motor Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them,

in violation of R.C. 4511.19(A)(1)(a), one count of Operating a Motor Vehicle or

Agricultural Tractor Without Being in Control of it, in violation of R.C. 4511.202(B), one

count of Violation of Lanes of Travel on Roadways, in violation of R.C. 4511.33 (A) and/or

(B), and one count of Violation of Speed Limits, in violation of R.C, 4511.21 (D)(1) The

matter proceeded to hearing on August 13, 2018 where Grove pled guilty to all counts.

      {¶3}   The trial court sentenced Grove as follows: Aggravated Vehicular Homicide:

Eight years. Aggravated Vehicular Assault: Sixty Months, consecutive with the sentence

imposed on Count One. Aggravated Vehicular Assault: Sixth Months, consecutive with

the sentence imposed on Counts One and Two Operating a Motor Vehicle Under the

Influence of Alcohol, a Drug of Abuse, or a Combination of Them: 180 days, concurrent

to the sentence imposed on Counts One, Two, and Three. The trial court's total sentence

imposed amounted to eighteen (18) years.



                                      Assignment of Error
Tuscarawas County, Case No. 2018 AP 100033                                                     3


       {¶4}   Grove raises one assignment of error,

       {¶5}   “I.    APPELLANT’S PLEA WAS NOT VOLUNTARY, INTELLIGENT AND

KNOWING.”

                                          Law and Analysis

       {¶6}   Grove argues that the Plea form, as well as the Trial Court's colloquy both

failed to accurately depict the mandatory sentencing under the charge of Aggravated

Vehicular Homicide and instead expressly stated that he might receive community control

sanctions.

       STANDARD OF APPELLATE REVIEW

       {¶7}   The entry of a plea of guilty is a grave decision by an accused to dispense

with a trial and allow the state to obtain a conviction without following the otherwise difficult

process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,

368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete

admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not

simply stating that he did the discreet acts described in the indictment; he is admitting

guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102

L.Ed.2d 927(1989).

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

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need

only "substantially comply" with the rule when dealing with 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 State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.
Tuscarawas County, Case No. 2018 AP 100033                                              4

Griggs, 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 at ¶ 19-20.

103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.

      ISSUE FOR APPEAL

      Whether the trial court was required to inform Grove before accepting his guilty

plea that Aggravated Vehicular Homicide under R.C. 2903.06 required the trial court

impose a mandatory prison sentence.

      {¶9}   R.C. 2903.06, Aggravated Vehicular Homicide provides, in relevant part,

             (B)(1) Whoever violates division (A)(1) or (2) of this section is guilty

      of aggravated vehicular homicide and shall be punished as provided in

      divisions (B)(2) and (3) of this section.
Tuscarawas County, Case No. 2018 AP 100033                                                      5


               (2)(a) Except as otherwise provided in division (B)(2)(b) or (c) of this

     section, aggravated vehicular homicide committed in violation of division

     (A)(1) of this section is a felony of the second degree and the court shall

     impose a mandatory prison term on the offender as described in division

     (E) of this section.

                                              ***

               (E)(1) The court shall impose a mandatory prison term on an

     offender who is convicted of or pleads guilty to a violation of division (A)(1)

     of this section. Except as otherwise provided in this division, the mandatory

     prison term shall be a definite term from the range of prison terms provided

     in division (A)(1)(b) of section 2929.14 of the Revised Code for a felony of

     the first degree or from division (A)(2)(b) of that section for a felony of the

     second degree, whichever is applicable, except that if the violation is

     committed on or after the effective date of this amendment1, the court shall

     impose as the minimum prison term for the offense a mandatory prison term

     that is one of the minimum terms prescribed for a felony of the first degree

     in division (A)(1)(a) of section 2929.14 of the Revised Code or one of the

     terms prescribed for a felony of the second degree in division (A)(2)(a) of

     that section, whichever is applicable. If division (B)(2)(c)(i), (ii), (iii), (iv), (v),

     (vi), (vii), or (viii) of this section applies to an offender who is convicted of or

     pleads guilty to the violation of division (A)(1) of this section, the court shall

     impose the mandatory prison term pursuant to division (B) of section



     1   R.C. 2903.06 was amended effective March 22, 2019.
Tuscarawas County, Case No. 2018 AP 100033                                              6


     2929.142 of the Revised Code. The court shall impose a mandatory jail

     term of at least fifteen days on an offender who is convicted of or pleads

     guilty to a misdemeanor violation of division (A)(3)(b) of this section and

     may impose upon the offender a longer jail term as authorized pursuant to

     section 2929.24 of the Revised Code. (Emphasis added).

     {¶10} R.C. 2929.14 provides, in relevant part,

               (2)(a) For a felony of the second degree committed on or after the

     effective date of this amendment2, the prison term shall be an indefinite

     prison term with a stated minimum term selected by the court of two, three,

     four, five, six, seven, or eight years and a maximum term that is determined

     pursuant to section 2929.144 of the Revised Code, except that if the section

     that criminalizes the conduct constituting the felony specifies a different

     minimum term or penalty for the offense, the specific language of that

     section shall control in determining the minimum term or otherwise

     sentencing the offender but the minimum term or sentence imposed under

     that specific language shall be considered for purposes of the Revised Code

     as if it had been imposed under this division.

               (b) For a felony of the second degree committed prior to the effective

     date of this amendment, the prison term shall be a definite term of two,

     three, four, five, six, seven, or eight years. (Emphasis added).




     2   R.C. 2929.14 was amended effective March 22, 2019.
Tuscarawas County, Case No. 2018 AP 100033                                                 7


      {¶11} In the case at bar, the Crim.R. 11(C) and (F) plea agreement signed by

Grove does not state that any of the felony counts to which he would plead carry

mandatory time. The box indicating “Mandatory” is blank for each felony charge.

      {¶12} Prior to accepting Grove’s plea, the trial court advised him,

             THE COURT: And, so before I can accept your plea, I need to make

      sure you understand what that range of sentencing is for, for each charge.

      On the felony of the second degree, the possible prison term is two, three,

      four, five, six, seven or eight years and a possible fine of up to fifteen

      thousand dollars. For counts two and three, the range of sentencing is a

      possible prison term of twelve, eighteen, twenty-four, thirty, thirty-six, forty-

      two, forty-eight, fifty-four or sixty months, with a fine of up to, should that, I

      think that should be ten thousand dollars. On count three there's a type-o.

                                            ***

                    THE COURT: You are advised that a felony conviction may

      prevent you from owning or possessing firearms under Ohio or Federal law.

      Also, if the Court selects a prison term on multiple counts, those can be

      imposed consecutively, meaning one right after the other, even if the law

      does not require it. You're also advised that, in addition to the mandatory

      fine that I've mentioned, the Court can impose the, the optional fines on

      these charges and other supervision fees. The Court can impose the

      payment of restitution to a victim, if we have a restitution request. And the

      other financial sanction is required that the Court impose, the Court costs

      or the costs of prosecution. If you fail to pay that judgment, the Court can
Tuscarawas County, Case No. 2018 AP 100033                                        8


     later order community service hours to be performed and credited at an

     hourly rate towards the amount due. If you are currently on probation,

     parole, community control or post-release control supervision, a plea to a

     new charge could result in revocation proceedings and any new sentence

     could be imposed consecutively. If you are not a United States citizen, a

     conviction could result in deportation. Do you understand those possible

     penalties?

            THE DEFENDANT: Yes ma'am.

            THE COURT: Okay. On the post-release control, I don't think we

     have - -

            MS. MILLER: Actually, the mandatory three year box should be

     checked your honor.

            THE COURT: Okay. And, oh they've changed, okay. For the felony

     three, if there's an, if there —

            MS. MILLER: We, we don't, our system doesn't let us check that for

     the serious physical harm. It's not an offense of violence, the F-3s, so.

            THE COURT: Okay. It used to say for serious physical harm.

            MS. MILLER: It used to.

            THE COURT: It doesn’t now?

            MS. MILLER: Our system doesn’t check it.

                                         ***

            THE COURT: Okay. Okay. So the next section describes post-

     release control and this is a period of, of supervision that comes after
Tuscarawas County, Case No. 2018 AP 100033                                                9


      release from prison, which is why it’s called post-release. Most people refer

      to it as parole. If you serve a prison term for the felonies of the second and

      third degree, you would face, for the felony of the second degree, a

      mandatory period of post-release control for three years. And for the felony

      of the third degree, it would be a maximum term of three years post-release

      control. It appears that it would be optional, but, either way, if you’re under

      supervision of the Adult Parole Board, they’ll have rules for you to follow,

      they’ll have somebody that you’re accountable to. If you fail to follow the

      rules, they can place you under greater restrictions or return you to prison

      for up to nine months for each violation, for a total of one-half of the original

      prison term. If you commit a new felony while you’re under post-release

      control, you risk having the sentence on your new felony increased by one

      year or the time remaining on that three year term of post-release control,

      whichever is greater. Do you understand the post-release control?

Change of Plea, T. Aug. 13, 2018 at 5-7. The trial court further advised Grove of the

mandatory driver’s license suspension. Id. at 7.

      {¶13} This Court has held that a trial court must, before accepting the plea,

determine the defendant’s understanding that the defendant is subject to a mandatory

sentence and that the mandatory sentence renders the defendant ineligible for probation

or community control sanctions. State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-

Ohio-2990, ¶ 12; State v. Lee, 5th Dist. Licking No. 2011CA0087, 2012-Ohio-3055, ¶31;

State v. McCuen, 5th Dist. Muskingum No. CT2004-0038, 2005-Ohio-3346, ¶11. Accord,

State v. Walters, 4th Dist. Adams No. 15CA1009, 2016-Ohio-5783, ¶13.
Tuscarawas County, Case No. 2018 AP 100033                                             10


      {¶14} Addressing a trial court’s failure to notify a defendant before accepting his

plea that post-release control time was mandatory, the Ohio Supreme Court found,

             We disagree with the court of appeals’ finding of substantial

      compliance with Crim.R. 11. Rather, we find that there was no compliance

      with Crim.R. 11. The trial court did not merely misinform Sarkozy about the

      length of his term of post-release control.      Nor did the court merely

      misinform him as to whether post-release control was mandatory or

      discretionary. Rather, the court failed to mention post-release control at all

      during the plea colloquy. Because the trial court failed, before it accepted

      the guilty plea, to inform the defendant of the mandatory term of post-

      release control, which was a part of the maximum penalty, the court did not

      meet the requirements of Crim.R. 11(C)(2)(a). A complete failure to comply

      with the rule does not implicate an analysis of prejudice.

117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, 22. In the case at bar, the trial

court did not mention the mandatory prison sentence required for Aggravated Vehicular

Homicide. As is true with post-release controls, a complete failure to inform Grove of the

mandatory prison sentence did not meet the requirements of Crim.R. 11(C)(2)(a).

Therefore, Grove is not required to demonstrate prejudice.

      {¶15} In State v. Straley, the Court noted,

             The State next contends that any error by the trial court in failing to

      advise Straley that he would be subject to mandatory prison terms for the

      three counts of second-degree felony sexual battery charges and its failure

      to sentence him to the required mandatory terms did not prejudice him
Tuscarawas County, Case No. 2018 AP 100033                                            11


      because he understood that he would be serving an aggregate prison term

      of 35 years and 10 months.

             We reject the State’s contention because Straley did not understand

      that R.C. 2929.13(F)(3) required a mandatory prison term for the 21 years

      of the sentence associated with the second-degree felony sexual battery

      charges.

4th Dist. Highland No. 17CA4, 2018-Ohio-3080, ¶25-26. In the case at bar, the trial court

further informed Grove,

             THE COURT: And Ms. Miller, on behalf of the State of Ohio, has told

      the Court what she expects the recommendations to be at the time of

      sentencing. Other than those things she talked about, do you think that

      anyone representing the Prosecutor's office or the State of Ohio promised

      you anything else that we have not discussed today?

             THE DEFENDANT: No, I have not heard that.

             THE COURT: And do you understand that her recommendation on

      sentencing could be more severe if you engage in additional criminal activity

      prior to sentencing?

             THE DEFENDANT: Yes, understood ma'am.

             THE COURT: And do you also understand that I have not made a

      promise of a specific sentence in exchange for your plea?

             THE DEFENDANT: I understand that.

Change of Plea, T. Aug. 13, 2018 at 9. In the case at bar, Grove was not told that any

portion of the eight-year prison sentence he would serve was mandatory. Likewise, the
Tuscarawas County, Case No. 2018 AP 100033                                         12


sentencing entry filed by the trial court does not mention that any prison sentence

imposed upon Grove is “mandatory” prison time. Accordingly, Grove’s pleas were not

made knowingly, intelligently, and voluntarily.

       {¶16} Grove’s sole assignment of error is sustained. The plea of guilty and

sentence is vacated and the matter will be remanded to the trial court for further

proceedings.

       {¶17} The judgment of the Tuscarawas County Court of Common Pleas is

reversed and this cause is remanded to that court for further proceedings according to

law and consistent with this opinion.


By Gwin, P.J.,

Wise, John, J., and

Delaney, J., concur
