State v. Alexander , 2012 Ohio 4843 ( 2012 )

[Cite as State v. Alexander, 2012-Ohio-4843.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 2012CA00115
MONDELL ALEXANDER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2010CR1653
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 15, 2012
APPEARANCES:
For Appellant: For Appellee:
MONDELL ALEXANDER #594-547 JOHN D. FERRORO
M.C.I. STARK COUNTY PROSECUTOR
P.O. Box 57
Marion, OH 43301 KATHLEEN O. TATARSKY
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
Delaney, P.J.
{¶1} Defendant-Appellant Mondell Alexander appeals the May 22, 2012
judgment entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Alexander was indicted by the Stark County Grand Jury on two counts of
aggravated robbery, first-degree felonies in violation of R.C. 2911.01(A)(1). Each
charge carried a firearm specification. Alexander entered a plea of not guilty to the
charges.
{¶3} On January 5, 2011, Alexander appeared before the trial court and
changed his not guilty pleas to guilty. During the plea colloquy, the trial court stated,
“Do you understand that following any period of incarceration there would be a
mandatory period of supervision by the Parole Authority?” (Sentencing Tr., 4.)
Alexander responded, “Yes, sir.” (Sent. Tr., 5.)
{¶4} Alexander signed a Crim.R. 11(C) plea form on January 5, 2011. The
plea stated in pertinent part:
Upon release from prison, the defendant will be ordered to serve a
mandatory period of five years of post-release control, pursuant to R.C.
2967.28(B). This period of post-release control will be imposed as part
of defendant’s criminal sentence at the sentencing hearing, pursuant to
R.C. 2929.19. If the defendant violates the conditions of post-release
control, the defendant will be subject to an additional prison term of up to
one-half of the stated prison term as otherwise determined by the Parole
Board, pursuant to law.
{¶5} The trial court accepted Alexander’s plea and proceeded to the
sentencing phase. (Sent. Tr., 6-7.) The trial court sentenced Alexander to ten years
in prison. The trial court notified Alexander that following any period of incarceration,
there would be a mandatory period of supervision by the Parole Authority for five
years and violations of any conditions would lead to periods of reimprisonment up to
one-half the sentence imposed. (Sent. Tr., 8.)
{¶6} The change of plea and sentence was journalized on January 19, 2011.
The sentencing entry states that Alexander was subject to a mandatory five-year term
of post-release control.
{¶7} Alexander did not file a direct appeal of his sentence.
{¶8} On May 1, 2012, Alexander filed a Motion for Sentencing and Leave to
Withdraw Guilty Plea(s). In his motion, Alexander argued his sentence was void for
failure to give proper notification of post-release control during his plea hearing. The
trial court denied Alexander’s motion on May 29, 2012.
{¶9} It is from this decision Alexander now appeals.
ASSIGNMENT OF ERROR
{¶10} Alexander raises one Assignment of Error:
{¶11} “WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREIN
VIOLATING DUE PROCESS WHEN IT DENIED ‘WITHOUT HEARING’
DEFENDANT’S MOTION FOR ‘SENTENCING’ AND FOR ‘LEAVE TO WITHDRAW
GUILTY PLEA.’ SEE: STATE V. BOSWELL, 121 OHIO ST.3D 575; AND, STATE V.
MONTEZ-JONES, 2011-OHIO-1202 (OHIO APP. 5 DIST.). SEE ALSO: CRIM.R.
11(C)(2)(A).”
ANALYSIS
{¶12} Alexander argues the trial court erred because his sentence is void due
to the trial court’s failure to properly notify Alexander of his post-release control during
his plea colloquy. Alexander’s contention that the trial court failed to properly inform
him of post-release control during the plea colloquy is an argument that the trial court
failed to comply with Crim.R. 11(C)(2). We will analyze Alexander’s Assignment of
Error under the requirements of Crim.R. 11.
{¶13} Crim.R. 11(C)(2) details the trial court’s duty in a felony plea hearing to
address the defendant personally and to convey certain information to such
defendant, and makes clear that the trial court shall not accept a guilty plea or no
contest without performing these duties. State v. Holmes, 5th Dist. No. 09 CA 70,
2010-Ohio-428, ¶10. Crim.R. 11(C)(2)(a) states the trial court must determine,
* * * that the defendant is making the plea voluntarily, with the
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.
{¶14} Post-release control constitutes a portion of the maximum penalty. State
v. Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011-Ohio-1202, ¶ 20.
{¶15} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224,
¶ 25, the Ohio Supreme Court held,
* * * if a trial court fails during a plea colloquy to advise a defendant
that the sentence will include a mandatory term of postrelease control, the
defendant may dispute the knowing, intelligent, and voluntary nature of
the plea either by filing a motion to withdraw the plea or upon direct
appeal. Further, we hold that if the trial court fails during the plea colloquy
to advise a defendant that the sentence will include a mandatory term of
postrelease control, the court fails to comply with Crim.R. 11 and the
reviewing court must vacate the plea and remand the cause.
{¶16} 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. Dunham, 5th Dist. No. 2011-CA-121, 2012-Ohio-
2957, ¶ 11 citing 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. Griggs, 103
Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, ¶ 12, 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.
{¶17} In determining whether the trial court has satisfied its duties under Crim.R.
11 in taking a plea, reviewing courts have distinguished between constitutional and non-
constitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008–Ohio–3748, 893 N.E.2d
462, ¶ 32; State v. Aleshire, 5th Dist. No. 2007–CA–1, 2008–Ohio–5688 at ¶ 10. The
trial court must strictly comply with those provisions of Crim.R. 11(C) that relate to the
waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244, 893 N.E.2d at 499,
2008–Ohio–3748, ¶ 31.
{¶18} In Clark, a case decided after Sarkozy, the Ohio Supreme Court
concluded that “[i]f a trial judge, in conducting a plea colloquy, imperfectly explains non-
constitutional rights such as the right to be informed of the maximum possible penalty
and the effect of the plea, a substantial-compliance rule applies on appellate review;
under this standard, a slight deviation from the text of the governing rule is permissible,
and 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.” Id. at ¶ 31, 881 N.E .2d 1224. Thus, in Clark, the Ohio Supreme Court
concluded that the right to be informed of the maximum possible penalty and the effect
of the plea are subject to the substantial compliance test. 119 Ohio St.3d at 244, 893
N.E.2d at 469, 2008–Ohio–3748 at ¶ 31. (Citations omitted).
{¶19} The present case involves the notification of post-release control during a
plea colloquy. As such, we review the trial court’s plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to
be informed of the maximum penalty. Under the substantial-compliance standard, we
analyze the totality of circumstances surrounding Alexander’s plea and determine
whether he subjectively understood the effect of his plea.
{¶20} Alexander cites this Court to State v. Jones, 5th Dist. Nos. 10CA75,
10CA76, 10CA77, 2011-Ohio-1202, in support of his argument that the trial court
failed to properly inform him of his term of post-release control during the plea
colloquy. In Jones, the trial court failed to inform the defendant of the possibility of
post-release control prior to accepting the defendant’s plea. We found the defendant’s
plea was not made knowingly, intelligently, and voluntarily and in contravention of
Sarkozy. Id. at ¶ 21.
{¶21} We find the facts of Jones to be distinguishable from the present case.
In this case, the trial court stated during the plea colloquy, “Do you understand that
following any period of incarceration there would be a mandatory period of supervision
by the Parole Authority?” (Sentencing Tr., 4.) Alexander responded, “Yes, sir.” (Sent.
Tr., 5.) Alexander signed a Crim.R. 11(C) form, which stated:
Upon release from prison, the defendant will be ordered to serve a
mandatory period of five years of post-release control, pursuant to R.C.
2967.28(B). This period of post-release control will be imposed as part
of defendant’s criminal sentence at the sentencing hearing, pursuant to
R.C. 2929.19. If the defendant violates the conditions of post-release
control, the defendant will be subject to an additional prison term of up to
one-half of the stated prison term as otherwise determined by the Parole
Board, pursuant to law.
{¶22} In Sarkozy and Jones, there was no mention of post-release control at
the plea hearing. In the present case, the trial court notified Alexander that post-
release control was mandatory and the Crim.R. 11(C) form signed by Alexander stated
that post-release control was mandatory for a term of five years. We find, under the
totality of the circumstances, the trial court substantially complied with the
requirements of Crim.R. 11(C)(2)(a) in informing Alexander of post-release control
during his plea hearing so that Alexander subjectively understood the implications of
his plea. See State v. Knowles, 10th Dist. 10AP-119, 2011-Ohio-4477.
{¶23} Alexander’s sole Assignment of Error is overruled.
CONCLUSION
{¶24} The sole Assignment of Error of Defendant-Appellant Mondell Alexander
is overruled.
{¶25} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
PAD:kgb
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 2012CA00115
MONDELL ALEXANDER :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN