State v. Hastings , 2018 Ohio 422 ( 2018 )

[Cite as State v. Hastings, 2018-Ohio-422.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 27212 and 27213
:
v. : Trial Court Case Nos. 2014-CR-3848
: and 2016-CR-910
MATTHEW T. HASTINGS :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 2nd day of February, 2018.
...........
MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
Attorney for Defendant-Appellant
.............
WELBAUM, P.J.
-2-
{¶ 1} Defendant-appellant, Matthew T. Hastings, appeals from the conviction and
sentence he received in the Montgomery County Court of Common Pleas after pleading
guilty to aggravated burglary and vandalism in Case No. 2014-CR-3848, and attempted
burglary, aggravated burglary, and felonious assault in Case No. 2016-CR-910. In
support of his appeal, Hastings claims that his guilty plea in Case No. 2016-CR-910 is
invalid because the trial court indicated at his plea hearing that post-release control for
the attempted burglary charge was discretionary when it was in fact mandatory. For the
reasons outlined below, we conclude that Hastings’ guilty plea was not invalidated by the
trial court’s misstatement at the plea hearing; therefore, the judgment of the trial court will
be affirmed. However, the matter will be remanded for the sole purpose of entering a
nunc pro tunc order correcting the sentencing entry in Case No. 2014-CR-3848 to reflect
the correct terms of post-release control that were imposed at the sentencing hearing.
Facts and Course of Proceedings
{¶ 2} On July 20, 2016, Hastings pled guilty in Case No. 2014-CR-3848 to one
count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree,
and one count of vandalism of property in violation of R.C. 2909.05(A), a felony of the
fourth degree. Hastings also pled guilty in Case No. 2016-CR-910 to one count of
attempted burglary in violation of R.C. 2923.02(A) and R.C. 2911.12(A)(2), a felony of the
third degree; one count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony
of the first degree; and one count of felonious assault in violation of R.C. 2903.11(A)(2),
a felony of the second degree. As part of a plea agreement, the parties agreed that
-3-
Hastings’ aggregate prison sentence would not exceed 15 years.
{¶ 3} At Hastings’ plea hearing, the trial court made all of the advisements required
by Crim.R. 11. When the trial court advised Hastings of the maximum possible penalty
he faced for each of his offenses, the trial court stated the following with regards to post-
release control:
Sir, upon completing any prison sentence, I do need to tell you that you will
be required to serve a period of five years post-release control on the
felonies of the first degree. You’ll be required to serve a period of three
years on the felony of the second degree. And you may be required to
serve a period of three years post-release control on the remaining
offenses.
(Emphasis added.) Plea Hearing Trans. (July 20, 2016), p. 7.
{¶ 4} The trial court’s statement that Hastings “may be required to serve a period
of three years post-release control on the remaining offenses” encompassed Hastings’
third-degree-felony charge of attempted burglary in Case No. 2016-CR-910.
Accordingly, the trial court effectively indicated that the attempted burglary charge carried
a discretionary term of post-release control.
{¶ 5} The plea form signed by Hastings, however, indicates that the attempted
burglary charge carried a three-year mandatory term of post-release control. The
discrepancy between the post-release control notification in the plea form and the trial
court’s advisement at the plea hearing went unnoticed by the parties. Accordingly, the
trial court accepted Hastings’ guilty pleas in both cases and scheduled the matter for
sentencing.
-4-
{¶ 6} On August 3, 2016, the trial court imposed sentences for both Case Nos.
2014-CR-3848 and 2016-CR-910. In Case No. 2014-CR-3848, the trial court sentenced
Hastings to a prison term of 11 years for aggravated burglary and a concurrent prison
term of 18 months for vandalism. In Case No. 2016-CR-910, the trial court sentenced
Hastings to 36 months in prison for attempted burglary, 11 years in prison for aggravated
burglary, and 8 years in prison for felonious assault, all to be served concurrently. The
trial court also ordered the sentences in Case No. 2014-CR-3848 to be served
concurrently with the sentences in Case No. 2016-CR-910, for an aggregate prison term
of 11 years.
{¶ 7} At the sentencing hearing and in the corresponding sentencing entry, the trial
court advised Hastings that for Case No. 2016-CR-910, his attempted burglary and
felonious assault offenses each carried a three-year mandatory term of post-release
control, while his aggravated burglary offense carried a five-year mandatory term of post-
release control. For Case No. 2014-CR-3848, the trial court advised Hastings at the
sentencing hearing that he would be required to serve a five-year mandatory term of post-
release control for aggravated burglary and a three-year discretionary term of post-
release control for vandalism. However, these terms of post-release control were
inadvertently flipped in the corresponding sentencing entry. Accordingly, the sentencing
entry for Case No. 2014-CR-3848 provides that a three-year discretionary term of post-
release control applies to the aggravated burglary offense and a five-year mandatory term
of post-release control applies to the vandalism offense.
{¶ 8} On August 5, 2016, Hastings filed a notice of appeal from his conviction and
sentence in both Case Nos. 2014-CR-3848 and 2016-CR-910. Following the
-5-
appointment of counsel, the two cases were consolidated for appeal. On December 12,
2016, Hastings’ appellate counsel filed a brief under the authority of Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that there were no issues
with arguable merit to present on appeal.
{¶ 9} On April 3, 2017, we rejected Hastings’ Anders brief after determining that
an appealable issue existed concerning the validity of Hastings’ guilty plea in Case No.
2016-CR-910. We found that the validity of the plea was at issue because the trial court
advised Hastings at the plea hearing that post-release control for his third-degree-felony
offense of attempted burglary was discretionary, when in fact, the offense is an “offense
of violence” for which a three-year mandatory term of post-release control applies. See
R.C. 2901.01(A)(9)(a) and (d); R.C. 2967.28(B)(3). As a result, we held that Hastings
should be given the benefit of having counsel argue on his behalf as to whether the trial
court’s misstatement at the plea hearing amounts to a complete or partial failure to comply
with Crim.R. 11, and if necessary, whether the statement resulted in any prejudice that
requires the vacation of his guilty plea.
{¶ 10} We also found that the trial court’s sentencing entry in Case No. 2014-CR-
3848 improperly advised Hastings regarding post-release control since it flipped the terms
of post-release control that applied to the aggravated burglary and vandalism offenses.
However, we concluded that the post-release control error in the sentencing entry could
be corrected with a nunc pro tunc order since the trial court imposed the proper terms of
post-release control at the sentencing hearing. See State ex rel. Womack v. Marsh, 128
Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 14-15; State v. Qualls,131 Ohio St.3d
499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 30.
-6-
{¶ 11} Based on the aforementioned errors, we appointed new appellate counsel
for Hastings and ordered counsel to file an appellate brief on Hastings’ behalf framing the
necessary assignments of error arising from the aforementioned issues, as well as any
other issues that counsel may deem appropriate. Thereafter, Hastings’ newly appointed
counsel filed an appellate brief raising a single assignment of error, which is now ripe for
review.
Assignment of Error
{¶ 12} Hastings’ sole assignment of error is as follows:
THE TRIAL COURT’S MISSTATEMENT AT THE PLEA HEARING IN
CASE NUMBER 2016-CR-910 REGARDING POST RELEASE CONTROL
FOR ATTEMPTED BURGLARY AMOUNTS TO A COMPLETE OR
PARTIAL FAILURE TO COMPLY WITH RULE 11(C)(2)(a) OF THE OHIO
RULES OF CRIMINAL PROCEDURE WHICH REQUIRES VACATION OF
THE GUILTY PLEA AND RESULTING SENTENCE.
{¶ 13} Under his sole assignment of error, Hastings contends that his guilty plea
in Case No. 2016-CR-910 is invalid and should be vacated because the trial court
erroneously advised him at the plea hearing that post-release control for the charge of
attempted burglary was discretionary when it was in fact mandatory.
{¶ 14} In order to be constitutionally valid and comport with due process, a guilty
plea must be entered knowingly, intelligently, and voluntarily. State v. Bateman, 2d Dist.
Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be knowing, intelligent, and
-7-
voluntary, the trial court must comply with Crim.R. 11(C).” (Citation omitted.) State v.
Russell, 2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6. “Crim.R. 11(C) governs the
process that a trial court must use before accepting a felony plea of guilty or no contest.”
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. “By following
this rule, a court ensures that the plea is knowing, intelligent, and voluntary.” State v.
Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-3793, ¶ 12, citing State v. Redavide,
2d Dist. Montgomery No. 26070, 2015-Ohio-3056, ¶ 12.
{¶ 15} Pursuant to Crim.R. 11(C)(2)(a), the court must determine “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.” When post-release control applies, the trial court is required to inform the
defendant of its applicability due to this rule. State v. Threats, 2016-Ohio-8478, 78
N.E.3d 211, ¶ 21 (7th Dist.), citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224, ¶ 7-10, 22.
{¶ 16} Unlike the advisements required in Crim.R. 11(C)(2)(c), which involve
constitutional rights and necessitate strict compliance by the trial court, the non-
constitutional advisements in Crim.R. 11(C)(2)(a) only require substantial compliance.
Cole at ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Under
the substantial compliance standard, “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.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
-8-
¶ 31, quoting Nero at 108.
{¶ 17} If there is no substantial compliance with regard to a non-constitutional right,
the reviewing court is to ascertain whether there was partial compliance or a total failure
to comply with the rule. Id. at ¶ 32. If there is partial compliance, the plea cannot be
vacated unless the defendant shows that he was prejudiced. Id. “The test for prejudice
is ‘whether the plea would have otherwise been made.’ ” Id., quoting Nero at 108.
(Other citation omitted.) “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.” Id., citing Sarkozy at paragraph two of the syllabus. “ ‘A complete
failure to comply with the rule does not implicate an analysis of prejudice.’ ” Id., quoting
Sarkozy at ¶ 22.
{¶ 18} We have held that “if a trial court fails to reconcile its correct oral statement
on the length of post-release control with an incorrect statement on post-release control
in a plea form, the trial court only partially complies with Crim.R. 11.” State v. Lockard,
2d Dist. Clark No. 2014-CA-152, 2015-Ohio-4294, ¶ 11, citing State v. Brown, 2d Dist.
Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 23. (Footnote omitted.) Under that
circumstance, the defendant is required to demonstrate that he was prejudiced by the
incorrect information in order to vacate his plea. Brown at ¶ 23.
{¶ 19} In contrast, we have found no substantial compliance and no need to
undergo a prejudice analysis where the plea form contained an abbreviated, but generally
correct recitation of the incarceration consequences of violating post-release control, but
the trial court affirmatively misstated those consequences at the plea hearing. State v.
Wilborn, 2d Dist. Montgomery No. 25581, 2013-Ohio-5168, ¶ 18-19. In Wilborn, the trial
-9-
court affirmatively misstated that if the defendant were to violate post-release control, he
would not be subject to additional incarceration once he completed his mandatory ten-
year prison sentence. Id. at ¶ 17. We rejected the State’s argument that the trial court
partially complied with Crim.R. 11 despite this misstatement. Id. at ¶ 15-17. In so
holding, we distinguished a mere omission in a trial court’s notification concerning post-
release control from an affirmative misstatement. Id. at ¶ 17, citing State v. Ramey, 2d
Dist. Montgomery No. 24944, 2012-Ohio-3978, ¶ 12-13. Specifically, we explained that
“[a]n affirmative mis-statement by the trial court is more likely to mislead a defendant,
since it may override correct information the defendant may have obtained from other
sources. A defendant may reasonably conclude that the trial court is a more authoritative
source of information relating to the consequences of his plea than any other source.”
Id.{¶ 20} Hastings relies heavily on Wilborn for the proposition that the trial court’s
misstatement in this case amounts to a complete failure to comply with Crim.R. 11, which
obviates the need to establish prejudice to vacate his guilty plea. However, unlike
Wilborn, the trial court in this case merely indicated that post-release control for Hastings’
attempted burglary charge was discretionary when it was in fact mandatory. Despite the
trial court’s misstatement, Hastings was nevertheless put on notice that he would be
required to serve a term of post-release control for attempted burglary, whereas in
Wilborn, the defendant was completely misadvised as to the consequences for violating
post-release control. Accordingly, we find that the trial court’s misstatement is
distinguishable from the misstatement in Wilborn.
{¶ 21} The present case is more analogous to State v. Knox, 2d Dist. Montgomery
-10-
No. 25774, 2015-Ohio-4198 wherein we held the following:
[T]he trial court inaccurately informed Knox, at the time of his plea, that the
mandatory term of his post-release control was discretionary, when in fact
it was mandatory for Knox’s Burglary offenses, which violated R.C.
2911.12(A)(3). R.C 2967.28(B) specifically requires a trial court to include
a period of post-release control for third-degree felonies that constitute an
“offense of violence.” R.C. 2901.01(A)(9)(a), which identifies offenses of
violence, specifically includes a violation of R.C. 2911.12(A)(3). At the
sentencing hearing, the trial court also incorrectly stated that post-release
control was discretionary, when in fact it was mandatory for the Burglary
offenses in violation of R .C. 2911.12(A)(3). The termination entry conflicts
with the statements made at the plea and sentencing hearing because it
provides that the convictions for Burglary offenses carried mandatory terms
for post-release control, and that post-release control was discretionary for
the two third-degree felony convictions. It has been 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. Mugrage, 9th Dist. Summit No. 26062, 2012-
Ohio-4802, ¶ 15; State v. McMahon, 12th Dist. Fayette No. CA2009-06-008,
[2010]-Ohio-2055, ¶ 22. In the case before us, Knox repeatedly
acknowledged that he understood the effects of his plea, and after further
-11-
explanation of post-release control, he agreed that he understood it.
Based on this record, we conclude that the trial court partially complied with
Crim. R. 11, by informing Knox that he could be placed on post-release
control.
(Emphasis added.) Knox at ¶ 11.
{¶ 22} We further held in Knox that:
When partial compliance is met, the defendant must be able to show that
he was prejudiced by the error to such an extent that he would not have
entered the plea if accurate consequences of his plea were disclosed.
“The trial court’s imperfect advisement to appellant that she was subject to
a discretionary period of post-release control afforded her sufficient notice
that such control might be imposed. Since appellant had notice that her
sentence might include post-release control, she cannot show prejudice as
her plea was made with knowledge of that possibility.” State v. Wright, 6th
Dist. Sandusky No. S-09-23, 2010-Ohio-2620, ¶ 29.
Knox at ¶ 12.
{¶ 23} Under the authority of Knox, we find that the trial court partially complied
with Crim.R. 11 by informing Hastings that he could be placed on post-release control.
Despite the trial court mistakenly indicating that post-release control was discretionary for
Hastings’ attempted burglary charge, the record of the plea hearing indicates that
Hastings otherwise subjectively understood the implications of his guilty plea and the
rights he was waiving. Accordingly, Hastings’ guilty plea cannot be vacated unless he
shows that he was prejudiced by the trial court’s error.
-12-
{¶ 24} Here, Hastings has failed to point to anything in the record indicating that
he would not have pled guilty in Case No. 2016-CR-910 had he known that post-release
control for his attempted burglary offense was mandatory rather than discretionary. We
note that pursuant to R.C. 2967.28(F)(4)(c):
If an offender is subject to more than one period of post-release control, the
period of post-release control for all of the sentences shall be the period of
post-release control that expires last, as determined by the parole board or
court. Periods of post-release control shall be served concurrently and
shall not be imposed consecutively to each other.
(Emphasis added.)
{¶ 25} Since multiple terms of post-release control must be served concurrently,
and Hastings was correctly informed at the plea hearing that he would be required to
serve a five-year mandatory term of post-release control for his first-degree felonies, the
duration of his post-release control term amounts to five mandatory years regardless of
whether the three-year term of post-release control for attempted burglary is mandatory
or discretionary. See State v. Heard, 2d Dist. Montgomery No. 27454, 2018-Ohio-314,
¶ 27 (holding that regardless of whether the trial court erred in imposing a three-year term
of post-release control for appellant’s fifth-degree-felony drug trafficking offense, pursuant
to R.C. 2967.28(F)(4)(c), appellant remains subject to a five-year mandatory term of post-
release control for his accompanying first-degree-felony drug possession offense).
Consequently, Hastings cannot establish any prejudice resulting from the trial court’s
misstatement at the plea hearing, as he was aware that he would be required to serve
five mandatory years of post-release control when he entered his guilty pleas.
-13-
{¶ 26} Hastings’ sole assignment of error is overruled.
Conclusion
{¶ 27} Having overruled Hastings’ sole assignment of error, the judgment of the
trial court in Case No. 2016-CR-910 is affirmed. Although Hastings’ appellate counsel
did not address the error in the sentencing entry for Case No. 2014-CR-3848 that we
identified in our Anders review, we hereby order the sentencing entry for that case to be
corrected nunc pro tunc by the trial court to reflect the actual terms of post-release control
that were imposed at the sentencing hearing, i.e., a five-year mandatory term of post-
release control for aggravated burglary and a three-year discretionary term of post-
release control for vandalism. The judgment in Case No. 2014-CR-3848 is otherwise
affirmed.
.............
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
Gary C. Schaengold
Hon. Dennis J. Adkins