State v. Howell , 2019 Ohio 1806 ( 2019 )

[Cite as State v. Howell, 2019-Ohio-1806.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MONROE COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
SHELLY L. HOWELL,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 17 MO 0018
Criminal Appeal from the
Court of Common Pleas of Monroe County, Ohio
Case No. 2017-047
BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. James L. Peters, Monroe County Prosecutor, 101 North Main Street, Room 15,
P.O. Box 430, Woodsfield, Ohio 43793-0430, for Plaintiff-Appellee
Atty. Desirae Dipiero, 8256 E. Market Street, Suite 111, Warren, Ohio 44484, for
Defendant-Appellant.
Dated: May 7, 2019
WAITE, P.J.
–2–
{¶1} Appellant Shelly L. Howell appeals a September 28, 2017 Monroe County
Common Pleas Court judgment entry convicting her of one count of trafficking in heroin.
Appellant argues that the trial court failed to adequately advise her of her term of
postrelease control and the penalties she might face should she violate postrelease
control. Based on this, she argues that she did not enter her plea knowingly, voluntarily,
and intelligently. For the reasons provided, Appellant’s argument is without merit and the
judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On August 3, 2016, Appellant and a codefendant were arrested after the
Monroe County Sheriff’s Department conducted a controlled buy of narcotics. On
February 24, 2017, Appellant was indicted on one count of trafficking in heroin, a felony
of the fourth degree in violation of R.C. 2925.03. Appellant pleaded guilty to the sole
count as charged. The state agreed to recommend probation conditioned on successful
completion of the residential drug and alcohol treatment program at the Eastern Ohio
Correctional Center (“EOCC”).
{¶3} On September 28, 2017, the trial court sentenced Appellant to three years
of community control and required completion of the EOCC treatment program. Relevant
to this appeal, the trial court imposed a three-year discretionary term of postrelease
control. This timely appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE APPELLANT
OF THE TERM OF HER OPTIONAL POSTRELEASE CONTROL AND THE
PENALTIES FOR A VIOLATION THEROF [SIC]. AS A RESULT,
Case No. 17 MO 0018
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APPELLANT WAS NOT ADVISED OF THE MAXIMUM PENALTY AND
HER PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND
INTELLIGENTLY MADE.
{¶4} Appellant argues that the trial court failed to adequately advise her of the
applicable postrelease control term. Because the court failed to specify the number of
years she would be subject to postrelease control and of the consequences for a violation,
she contends that she did not enter her plea knowingly, intelligently, and voluntarily.
{¶5} In response, the state argues that the court did not sentence Appellant to a
prison term, and so was not required to advise her of postrelease control. Regardless,
the trial court advised Appellant at the plea hearing of her postrelease control term and
the consequences she might face if she violated postrelease control.
{¶6} Before a trial court may accept a defendant’s guilty plea, the court must
inform the defendant of five constitutional rights. State v. Rowbotham, 173 Ohio App. 3d
642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 7 (7th Dist.), citing State v. Ballard, 66 Ohio
St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus. The constitutional
rights are outlined within Crim.R. 11(C)(2)(c):
Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights to 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 guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
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{¶7} The trial court must also notify the defendant of her nonconstitutional rights.
The court’s dialogue regarding nonconstitutional rights is reviewed for substantial
compliance. Rothbotham, supra, at ¶ 18. The nonconstitutional rights are described
within Crim.R. 11(C)(2):
(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.
Advisement as to postrelease control falls within a defendant’s nonconstitutional rights.
State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26.
{¶8} “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].” Sarkozy, supra, at ¶ 20. If the trial court completely
neglects to advise a defendant of a nonconstitutional right, the plea is vacated without a
prejudice analysis. State v. Cruz-Ramos, 2019-Ohio-779, -- N.E.3d -- (7th Dist.), citing
Sarkozy at ¶ 22, 25. However, if the trial court partially complies with the rule, the plea
will only be vacated if prejudice is shown. Id. citing State v. Clark, 119 Ohio St. 3d 239,
2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. In order to establish prejudice, the defendant
must show that the plea would not have been otherwise entered. State v. Cologie, 7th
Case No. 17 MO 0018
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Dist. Belmont No. 17 BE 0009, 2017-Ohio-9217, ¶ 11, citing State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15; State v. Nero, 56 Ohio St. 3d 106, 108,
564 N.E.2d 474 (1990).
{¶9} At the plea hearing, the trial court stated:
If you serve any prison time for this felony four charge to which you’re going
to be pleading guilty, after your prison time is served, you may be put on
Post Release Control at the time of your release.
Post Release Control is when the Parole Board decides after a prison
sentence that they want to supervise an individual, and they have terms and
conditions, rules and regulations that they have to follow, and failure to
abide by your Post Release Control could basically end up in additional
prison sentence for you.
(7/10/17 Hrg. Tr., pp. 8-9.)
{¶10} The trial court clearly raised the issue of postrelease control. While it
appears the trial court’s discussion of this matter falls short, we need not reach the issue
of whether the trial court’s advisement regarding postrelease control rose to the level of
substantial compliance with the Crim.R. 11 requirements because Appellant has not
alleged any claim of prejudice and a review of this record does not reveal any possible
prejudice. One factor regarding prejudice is the length of sentence. This record shows
Appellant would face a significantly harsher penalty if her plea is vacated. Based on the
terms of her plea agreement, she was sentenced to three years of probation conditioned
on successful drug and alcohol treatment. The possible penalty without the benefit of a
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plea agreement is six to eighteen months of incarceration, a $5,000 fine, a possible
driver’s license suspension, and a three-year optional postrelease control term. Perhaps
in recognition of this, at no time in her appeal does Appellant even raise the issue of
prejudice. Without proving that she suffered prejudice, Appellant’s plea will not be
vacated. Accordingly, Appellant’s sole assignment of error is without merit and is
overruled.
Conclusion
{¶11} Appellant argues that the trial court failed to adequately advise her of the
possible term of postrelease control for a violation. Appellant has not argued that she
suffered any prejudice for this alleged failure. Appellant’s arguments are without merit
and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
D’Apolito, J., concurs.
Case No. 17 MO 0018
[Cite as State v. Howell, 2019-Ohio-1806.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Monroe County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.