State v. Heisler , 2012 Ohio 1277 ( 2012 )

[Cite as State v. Heisler, 2012-Ohio-1277.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-14
v.
BLAINE W. HEISLER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-15
v.
BLAINE W. HEISLER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-16
v.
BLAINE W. HEISLER, OPINION
DEFENDANT-APPELLANT.
Case Nos. 4-11-14, 15, 16, 17
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-17
v.
BLAINE W. HEISLER, OPINION
DEFENDANT-APPELLANT.
Appeals from Defiance County Common Pleas Court
Trial Court Nos. 09-CR-10432, 11-CR-11151, 09-CR-10415 and 08-CR-10293
Judgments Affirmed
Date of Decision: March 26, 2012
APPEARANCES:
Clayton J. Crates for Appellant
Morris J. Murray and Russell R. Herman for Appellee
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Blaine W. Heisler (“Heisler”), appeals the
judgment of the Defiance County Court of Common Pleas sentencing him to
-2-
Case Nos. 4-11-14, 15, 16, 17
prison for violating the terms of his judicial release and also for failure to register
a change of address as required because of his previous conviction as a sexual
offender. On appeal, Heisler contends that the trial court erred when it failed to
inform him, before accepting his guilty plea, that the minimum sentence that could
be imposed was a mandatory three-year sentence and that the trial court failed to
consider all of the sentencing statutory guidelines. For the reasons set forth below,
the judgment is affirmed.
{¶2} These four appeals involve the revocation of Heisler’s judicial release
and the re-imposition of the remainder of the sentences to be served in three
Defiance County cases from 2008 and 2009, Case Numbers 08 CR 10293, 09 CR
10415, and 09 CR 10432 (hereinafter, “the prior cases”).1 Also included is the
conviction and sentencing for an additional offense in 2011, Case Number 11 CR
11151 (hereinafter, “the 2011 case”). On appeal, these four cases bear appellate
case numbers 4-11-14, 4-11-15, 4-11-16, and 4-11-17. They have been
consolidated for purposes of transcript filings, briefing, and oral argument.
{¶3} On April 13, 2011, Heisler appeared before the trial court for a
hearing on his motion for judicial release. Heisler had previously been convicted
in four prior cases, which included convictions for receiving stolen property, gross
1
The prior cases also involve a fourth case, Case No. 10 CR 10739, for failure to provide a change of
address, as part of the requirements of the registration mandates for his conviction as a sexual offender.
However, Heisler had completed serving the twelve month concurrent sentence in that case, so there was
no remaining sentence left to serve and it is not a part of this appeal.
-3-
Case Nos. 4-11-14, 15, 16, 17
sexual imposition, misuse of a credit card, and failure to register as a sex offender,
all fourth or fifth degree felonies. As part of the original plea agreements, Heisler
was sentenced to a total of 45 months in prison but the State had agreed not to
oppose judicial release after one year.2
{¶4} On April 25, 2011, the trial court granted Heisler’s motion for judicial
release and the balance of his 45-month sentence was reserved. He was admitted
to a period of three years of community control with the standard conditions of
supervision pursuant to R.C. 2929.20(K), as well as the special conditions that he
not consume any alcohol or associate with juveniles.3 The trial court had concerns
about granting judicial release because Heisler’s record while he was in prison was
far from exemplary. However, the trial court ultimately gave Heisler the
opportunity for another chance after Heisler assured him that he had learned a lot
and was “not going to screw it up this time.” (Apr. 25, 2011 Tr., p. 5)
{¶5} A month later, on May 26, 2011, Heisler appeared in court after he
had been taken into custody on suspicion of violating the terms of his judicial
release. The State advised the court that the probation violation was based upon
his failure to notify his probation officer of his change of address. The trial court
set a substantial cash bond, appointed counsel, and set the case for further hearing.
2
Heisler was sentenced to 17 months in Case No. 08 CR, 10293; 17 months in Case No. 09 CR 10415; and
11 months in Case No. 09 CR 10432, with all three sentences to run consecutively, for a total of 45 months.
The 12 month sentence in Case No. 10 CR 10739 ran concurrent to the other sentences.
3
The conviction for gross sexual imposition had originally been an indictment for unlawful sexual conduct
with a minor, which was reduced pursuant to a plea agreement.
-4-
Case Nos. 4-11-14, 15, 16, 17
{¶6} On June 6, 2011, Heisler appeared in court with his attorney and was
made aware that he had also been indicted for failure to provide notice of change
of address, in violation of R.C. 2950.05, a felony of the third degree, in the 2011
case. Heisler’s previous conviction as a sexual offender required him to register
and to provide written notice of his residence change pursuant to R.C. 2950.04 or
2950.041. Heisler was properly arraigned on the new charge and the case was set
for further pretrial.
{¶7} On June 29, 2011, Heisler appeared in court for a probable cause
hearing on the judicial release violation as well as a pretrial for the 2011 case. The
State advised the court that a plea arrangement had been agreed upon and Heisler
would admit to violating the rules of judicial release and he had also agreed to
enter a guilty plea to the 2011 case for the new criminal charge of failing to
provide a change of address. The trial court advised Heisler as to the potential
penalties for a conviction in the 2011 case, which could result in a maximum five-
year prison term, and informed him that a conviction would also establish that he
had violated his conditions of judicial release in the prior cases, which could result
in in the revocation of his judicial release and the re-imposition of the entire
balance of the reserved 45 month prison term.
{¶8} Thereafter, the trial court conducted a Crim.R. 11 plea colloquy and
accepted Heisler’s guilty plea to the 2011 criminal charge as well as his admission
-5-
Case Nos. 4-11-14, 15, 16, 17
to the judicial release violation. A sentencing date of August 17th was set, the
trial court ordered an updated PSI and allowed Heisler to be released on his own
recognizance. The trial court admonished Heisler that he was still required to
comply with the conditions of his judicial release and warned that “if you need to
be taken into custody for further violation behaviors, we will just be moving your
sentencing and disposition up.” (Jun. 29, 2011 Tr., p. 17)
{¶9} Prior to the sentencing date, Heisler was taken into custody and
appeared before the trial court on July 14, 2011. According to the State, Heisler
was found drinking alcohol and was in the presence of a fourteen-year-old
juvenile, both violations of the terms of his community control sanction. The trial
court then proceeded to sentence Heisler on his previously admitted judicial
release violation and his guilty plea to the 2011 case.
{¶10} At this sentencing hearing, and prior to sentence being imposed, the
State specified that Heisler’s guilty plea in the 2011 case carried with it a
mandatory minimum sentence of three years, because this was the second time he
was convicted of failure to provide notice of a change of address under the SORN
laws. See R.C. 2950.99(A)(2)(b). (Jul. 14, 2011 Tr., p. 5) The indictment had
indicated that he had previously been convicted of failure to provide written notice
of his change of address. The trial court then imposed a mandatory three-year
sentence in the 2011 case that was to be served consecutive to the balance of what
-6-
Case Nos. 4-11-14, 15, 16, 17
remained of the forty-five month sentence for the three prior cases. Heisler’s
aggregate sentence was 81 months in prison, less the time previously served.
{¶11} It is from this judgment that Heisler now appeals, raising the
following two assignments of error for our review.
First Assignment of Error
The trial court erred to the prejudice of [Heisler] by failing to
advise [Heisler] prior to accepting his guilty plea that the
criminal charge required a mandatory three year prison
sentence and community control was not a sentencing option.
Second Assignment of Error
The trial court erred to the prejudice of appellant by failing to
consider all applicable statutes prior to pronouncing a
consecutive sentence, thereby violating [Heisler’s] right to due
process of law as guaranteed by the Fifth and Fourteenth
Amendments of the United States Constitution and comparable
provisions of the Ohio Constitution.
First Assignment of Error
{¶12} In his first assignment of error, Heisler asserts that the trial court
failed to substantially comply with the provisions of Crim.R. 11 by failing to
inform him, before he pled guilty to the 2011 offense, that a mandatory three-year
sentence was the minimum possible sentence and that he would not be eligible for
community control sanctions. Heisler claims prejudicial error because the trial
court had stated that the offense was a third degree felony and “it carries a possible
basic prison term of one, two, three, four or a maximum of five years in a state
-7-
Case Nos. 4-11-14, 15, 16, 17
prison.” (Jun. 29, 2011 Tr., p. 6) The judge also failed to inform him that he
would not be eligible for community control with a mandatory sentence. (Id. at
pp. 7-8) We note that this assignment of error is only applicable to Appellate Case
No. 4-11-15 pertaining to the new 2011 case for failure to provide a change of
address for his registration as a sexual offender (Defiance County Case No. 11-CR
11151).
{¶13} Crim.R. 11(C)(2)(a) states:
(2) In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and doing
all of the following:
(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.
{¶14} A trial court must strictly comply with the provisions of Crim.R.
11(C)(2) that relate to the waiver of constitutional rights, including the right to a
trial by jury, the right to confront one's accusers, the privilege against self-
incrimination, and the right to compulsory process of witnesses. See, e.g., State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at the syllabus; State v. Ballard, 66
Ohio St.2d 473 (1981), at paragraph one of the syllabus. However, the
nonconstitutional aspects of the plea colloquy, such as information concerning the
sentence as in the case before us now, are subject to review under a standard of
-8-
Case Nos. 4-11-14, 15, 16, 17
substantial compliance. See State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,
¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990). “Substantial compliance
means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.” Nero at 108;
State v. Carter, 60 Ohio St.2d 34 (1979). Failure to adequately inform a defendant
of his nonconstitutional rights at a plea hearing will not invalidate a plea unless the
defendant suffered prejudice. Griggs at ¶ 12, citing Nero at 107. Under the
substantial compliance standard, the burden is on the defendant to show prejudice,
which means showing that the plea would otherwise not have been entered. Nero
at 108; Veney at ¶ 15.
{¶15} For Heisler to establish prejudice, he would have to demonstrate that
his plea would not have been made otherwise. See id. The Supreme Court of
Ohio has held that “[a] defendant who has entered a guilty plea without asserting
actual innocence is presumed to understand that he has completely admitted his
guilt. In such circumstances, a court’s failure to inform the defendant of the effect
of his plea as required by Crim.R.11 is presumed not to be prejudicial.”
(Emphasis added.) Griggs at the syllabus. Heisler has never proclaimed his
innocence, so the burden was on him to overcome the presumption that the
shortcomings in the trial court’s colloquy were prejudicial.
-9-
Case Nos. 4-11-14, 15, 16, 17
{¶16} At the change of plea hearing, the trial court discussed the general
penalties applicable to a third degree felony, i.e., a potential sentence of one to five
years. The trial court did not specifically inform Heisler of the mandatory three-
year penalty applicable to him at this time, due to this being his second such
offense. However, it did inform Heisler that the maximum penalty could be five
years in prison and that the trial court could order the sentences to be served
consecutively. Heisler indicated that he understood these terms. The trial court
did not sentence Heisler to the five-year maximum, but instead sentenced him to
the three-year mandatory sentence. Therefore, Heisler cannot claim that he was
uninformed as to the possibility of having a three-year sentence and cannot claim
he was prejudiced in this respect.
{¶17} The trial court also failed to state that Heisler would not be eligible
for community control for this 2011 sentence. However, given the totality of the
circumstances, it is evident from the record that Heisler was aware of the fact that
he was going to prison and that he would not be given community control. The
whole issue had been prompted by Heisler’s violation of his previous community
control, very shortly after he had been granted judicial release. The trial court had
repeatedly warned Heisler that any violation of the terms of his community control
sanctions pertaining to his judicial release would result in his return to prison.
Heisler cannot realistically claim that he was expecting to receive community
-10-
Case Nos. 4-11-14, 15, 16, 17
control or that he was prejudiced by the trial court’s failure to specifically state
that fact again at the change of plea hearing.
{¶18} At the sentencing hearing, even after the State specifically noted that
the sentence was a mandatory three-year sentence, Heisler and his attorney did not
object, show surprise, nor in any way indicate that they were not fully aware of the
potential consequences. In fact, Heisler’s attorney demonstrated their awareness
of the sentence, stating only that, “[u]nderstanding that Mr. Heisler is facing three
years on the newest SORN violation, we would request the Court to consider
running these cases concurrent with one another.” (Jul. 14, 2011 Tr., p. 7) Heisler
was given the opportunity to speak to the court, but he declined. (Id. at 6-7)
{¶19} The cases cited by Heisler in support of his position that the trial
court’s failure to inform the defendant was a prejudicial error are generally
factually distinguishable in the “totality of the circumstances.” In many of those
cases, the defendants had been assured that they would be given a lesser sentence
or had been incorrectly led to believe that they would be eligible for community
control or judicial release. See, e.g., State v. Pape, 2nd Dist. No. 2000 CA 98,
2001-Ohio-1827 (plea colloquy was “fatally flawed” because defendant claimed
that his attorney told him he would be eligible for judicial release after serving 180
days, even though the sentence was mandatory); State v. Rand, 10th Dist. No.
03AP-745, 2004-Ohio-5838 (trial court erred in not allowing defendant to
-11-
Case Nos. 4-11-14, 15, 16, 17
withdraw his guilty plea after the trial court attempted to modify the judgment
entry five years after it had erroneously told defendant the sentence was not
mandatory, and had wrongly stated in the judgment entry that it was not
mandatory); State v. Pringle, 6th Dist. No. L-98-1275, 1999 WL 436484(prejudicial error occurred because the defendant had entered an Alford plea, and
he did not understand the full consequences of this special guilty plea.4)
{¶20} In the case before us today, Heisler has not asserted that he was
misled concerning the sentence, nor that the State or anyone else had promised
him a lesser sentence or community control. The State had merely agreed that it
would join in the request to modify the bond to a personal recognizance bond and
to agree for the matter to be continued for sentencing during a PSI, but there “was
no other agreement at this point regarding the matter.” (Jun. 29, 2011 Tr., pp. 2-3)
The circumstances in this case are distinguishable from the cases cited above
wherein the appellate courts found that the defendants had met their burden of
demonstrating that they suffered prejudice.
{¶21} Furthermore, Heisler has never made any attempt to withdraw his
guilty plea. He was informed of the mandatory nature of the sentence before the
trial court actually sentenced him, so he had the opportunity to tender a
presentence motion to withdraw his plea, which should be “freely and liberally
4
The fact that Heisler pled guilty without asserting his innocence at the plea hearing, i.e., it was not an
Alford plea, raises the presumption that the omission was not prejudicial. Griggs, supra, at ¶ 12.
-12-
Case Nos. 4-11-14, 15, 16, 17
granted.” See State v. Xie, 62 Ohio St.3d 521, 527, (1992). Neither has he
asserted that he has suffered a manifest injustice, entitling him to consideration for
a post-sentence withdrawal of his guilty plea. See Crim. R. 32.1.
{¶22} Heisler had been in court numerous times over the previous several
months and years. He never claimed that he did not understand the procedures or
the implications and consequences of his plea; he has only asserted that the trial
court did not appropriately address the specifics of his sentence in the plea
colloquy. The trial court correctly informed Heisler that he could be facing a
maximum five-year sentence in the 2011 case and that the trial court could order
the sentence to be served consecutively. The trial court did err in that it failed to
inform Heisler that the minimum possible sentence was a three-year mandatory
sentence and, because it was “mandatory,” community control would not be an
option. However, based upon the totality of the circumstances, we find no
evidence of any prejudice in the record, nor has Heisler met his burden of
demonstrating that he was prejudiced by the trial court’s plea colloquy. The first
assignment of error is overruled.
Second Assignment of Error
{¶23} The second assignment of error alleges that the trial court erred in
imposing sentence without giving proper consideration to the felony sentencing
statute guidelines. Heisler complains that the sentence was contrary to law
-13-
Case Nos. 4-11-14, 15, 16, 17
because the trial court failed to sufficiently indicate that it considered the
sentencing factors in R.C. 2929.11 and 2929.12; and, the trial court abused its
discretion when it failed to properly apply the seriousness and recidivisms factors
set forth in R.C. 2929.12.
{¶24} Ever since the Ohio Supreme Court’s ruling in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make findings or
give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, ¶ 37. Courts,
nevertheless, are still required to comply with the sentencing laws unaffected by
Foster, such as R.C. 2929.11 and 2929.12, which require consideration of the
purposes and principles of felony sentencing and the seriousness and recidivism
factors. Mathis at ¶ 38. However, a sentencing court does not have to make any
specific findings to demonstrate its consideration of those general guidance
statutes. Foster at ¶ 42.
{¶25} R.C. 2929.11 provides that sentences for a felony shall be guided by
the overriding purposes of felony sentencing: “to protect the public from future
crime by the offender and others and to punish the offender.” R.C. 2929.11(A).
In order to comply with those purposes and principles, R.C. 2929.12 instructs a
trial court to consider various factors set forth in the statute relating to the
-14-
Case Nos. 4-11-14, 15, 16, 17
seriousness of the conduct and to the likelihood of the offender's recidivism. R.C.
2929.12(A) through (D). In addition, a trial court may consider any other factors
that are relevant to achieving the purposes and principles of sentencing. R.C.
2929.12(E).
{¶26} Heisler does not dispute that the sentence he received was within the
statutory guidelines. However, he complains that the trial court failed to review or
analyze any of the enhancement or mitigating factors on the record before
imposing sentence.
{¶27} First, as stated above, the trial court is not required to state its
considerations on the record. See, Mathis, supra. And, contrary to Heisler’s
assertions, the record is replete with examples of the court’s discussion of
Heisler’s risk of recidivism and other reasons why the trial court imposed the
sentences that it did. Heisler had been incarcerated for four prior cases and had
committed the additional 2011 case almost immediately upon his judicial release.
The trial court granted judicial release in the prior cases, even though his prison
record was poor; there was evidence of his improper communication with young
girls while he was in prison; the mother of one juvenile girl had asked that Heisler
remain incarcerated for the protection of her daughter and the public; Heisler had
problems with alcoholism and anger management; and, the trial court was not
optimistic as to his ability to comply with the terms of his community control
-15-
Case Nos. 4-11-14, 15, 16, 17
sanction. (Apr. 13, 2011 and Apr. 25, 2011 Transcripts) At the hearings, the trial
court extensively discussed Heisler’s past behavior and the consequences of what
would happen if he did not comply with the terms of his judicial release and
community control sanction. (Id.) Nevertheless, one month later, he had already
violated the terms of his judicial release and was back before the trial court for the
2011 case. (May 26, 2011 Tr.)
{¶28} At the plea hearing, he was released on his own recognizance but he
was reminded that the terms of his judicial release were still applicable and
warned of the consequences of failure to comply. (Jun. 29, 2011 Tr., pp. 16-18)
Four days later, on July 3, 2011, he was taken into custody when police found
Heisler and two juveniles drinking in a car, and one of the juveniles was a fourteen
year old female. Plus, there had been some damage to one of the city’s barricades
at the fireworks display. (Jul. 16, 2011 Tr., p. 6) The trial court then addressed
Heisler, stating:
I believe we had had the discussion at the time the State acquiesced
in his release on his own recognizance at the time of the most recent
plea as to what would happen if there were further violation behavior
pending the later scheduled disposition. Given the nature of his
history, specifically including the sex offense, this most recent
episode is particularly disturbing. (Id. at p. 8)
{¶29} The trial court then proceeded to sentence Heisler, imposing the
balance of his original forty-five month prison sentence. The trial court also
imposed the minimum mandatory sentence in the 2011 sex offender registration
-16-
Case Nos. 4-11-14, 15, 16, 17
case, but ordered that it be served consecutively. Based upon the trial court’s
extensive review of his record during Heisler’s six appearances before the court in
a three-month period, it cannot be said that the trial court did not carefully
consider all of the applicable factors before sentencing Heisler.
{¶30} The record in this case shows that the trial court fully complied with
all of the requirements pertaining to consideration of the statutory sentencing
factors. In addition, the trial court’s judgment entry specifically stated that it had
“made reference to the information contained in the Pre-Sentence Investigation
Report and to the history of this cause as known to the court” and that it had
considered the statutory factors present. (Jul. 20, 2011 J.E.) Finding no error in
the trial court’s consideration of the relevant statutory requirement before
imposition of sentence, the second assignment of error is overruled.
{¶31} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW, P.J., concurs.
/jlr
-17-
Case Nos. 4-11-14, 15, 16, 17
ROGERS, J., Dissenting.
{¶32} I must respectfully dissent from the result reached by the majority. I
would first note that Appellant has filed notices of appeal in four separate cases:
three that were revocations of judicial release, cases numbered 08 CR 10293, 09
CR 10415, and 09 CR 10432; and the fourth was a new felony, case number 11
CR 11151. There are no assignments of error that apply to the first three cases of
revocation, nor any arguments as to error in those cases. Therefore, I would
summarily dismiss those three appeals, and I will limit my discussion to the fourth
case, appellate case number 4-11-17.
{¶33} It is not disputed that at the time of the plea Appellant was never
advised that a prison term was mandatory or that he was not eligible for
community control.
{¶34} Criminal Rule 11 provides, in pertinent part, as follows:
(C) Pleas of guilty and no contest in felony cases.
***
(2) In felony cases the court may refuse to accept a plea of guilty or
a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and doing
all of the following:
(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. (Emphasis added.)
-18-
Case Nos. 4-11-14, 15, 16, 17
{¶35} Clearly the Rule mandates that the court “shall not accept a plea of
guilty” without “determining that the defendant is making the plea voluntarily,
with understanding of * * * the maximum penalty involved, and if applicable, that
the defendant is not eligible for * * * the imposition of community control
sanctions.” The word shall has no meaning unless it is applied as a mandatory
requirement with which the trial court must comply. State v. Wyerick, 182 Ohio
App.3d 500, 2009-Ohio-3153, ¶ 9 (3d Dist.).
{¶36} The majority states that Heisler cannot “realistically claim that he
was expecting to receive community control, * * * .” However, the trial court’s
statement that there was a possible one to five years in prison, and the order for a
PSI would suggest to any defendant that the trial court is considering community
control. As a PSI is required before a trial court can grant community control but
is not necessary before a mandatory prison term is imposed, See State v. Sawyer,
1st Dist. No. C-080433, 2010-Ohio-1990, ¶ 10, the order of a PSI would lead a
defendant familiar with the criminal system to reasonably believe that he may
receive community control.
{¶37} Although the majority states that there was no misunderstanding
because he was subject to the revocation of his judicial release and therefore not
entitled to community control on the new charge, I would disagree. Each case
must be considered separately, and revocation of judicial release on an older case
-19-
Case Nos. 4-11-14, 15, 16, 17
while sentencing to community control on a new case is possible, unless of course,
there is a mandatory prison term on the new case. Indeed, at that point in
Appellant’s case, revocation of judicial release in the prior cases had not been
ordered. The trial court still had all options available in each prior case. He was
even released on his own recognizance which could only lend credence to his
belief that community control was a distinct possibility.
{¶38} The State cites to State v. Abuhashish, 6th Dist. No. WD-07-048,
2008-Ohio-3849, as authority for a finding of substantial compliance. However,
that case is distinguishable because there was a written plea agreement executed
by the defendant which correctly stated that there was a mandatory prison term,
and revocation of bond was discussed because of the mandatory term. The State
also cites to a prior case of this Court, State v. Harmon, 3d Dist. No. 08-04-01,
2004-Ohio-4012, which is also distinguishable. Harmon was an appeal of a post-
conviction motion to withdraw his plea based on the trial court’s failure to fully
advise of potential penalties. However, in Harmon the defendant was advised of
the misinformation at sentencing, was asked prior to sentencing if he wished to
withdraw his plea, but the defendant specifically said he did not wish to do so.
{¶39} “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea
and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108 (1990). How
-20-
Case Nos. 4-11-14, 15, 16, 17
can one argue that a defendant subjectively understands the implications of his
plea when he is misled into believing that community control is being considered
when in fact a prison term is mandatory?
[A] trial court does not substantially comply with Crim.R.
11(C)(2)(a) when it fails to inform the defendant that he is not
eligible for probation or community control, and the circumstances
do not show that the defendant knew he was not eligible. In such a
case, an appellate court cannot say that the defendant’s plea was
made knowingly, intelligently and voluntarily. The standard was
and remains whether the plea represents a voluntary and intelligent
choice among the alternative courses of action open to the defendant.
To make a voluntary choice, the defendant must act with a full
understanding of the consequences of his plea. Because the prospect
of probation or community control would be a factor weighing
heavily in favor of a plea, the fact that a community-control sanction
is statutorily precluded can affect a defendant’s decision to enter a
guilty plea. (Citations omitted.) State v. Farley, 1st Dist. No. C-
0100478, 2002-Ohio-1142.
{¶40} The Second District has reached a similar result.
The effect of Howard’s plea was that he would be subject to a
mandatory prison term that would render him ineligible for the
imposition of community control sanctions. He could not have
appreciated this effect of his plea, because he was misadvised by the
trial court that he would be eligible for the imposition of community
control sanctions. Ineligibility for (as opposed to the unlikelihood
of) the imposition of community control sanctions is deemed to be a
sufficiently important effect of a plea of guilty or no contest that it is
specifically incorporated in Crim. R. 11(C)(2)(a) as a subject that
must be specifically addressed by the trial court, concerning which
the defendant’s understanding must be specifically determined by
the trial court. State v. Howard, 2nd Dist. No. 06-CA-29, 2008-
Ohio-419, ¶ 25.
{¶41} The Twelfth District has also addressed this issue.
-21-
Case Nos. 4-11-14, 15, 16, 17
[W]e find, under the totality of the circumstances, appellant could
not have subjectively understood that he was ineligible to serve a
community control sanction instead of a prison term. The trial court
affirmatively misinformed appellant and completely failed to comply
with the rule. Appellant’s assignment of error is sustained. State v.
Phillips, 12th Dist. No. CA2008-05-126, 2009-Ohio-1448, ¶ 19.
{¶42} The majority also states that Appellant has failed to demonstrate
prejudice. I would argue that if community control is discussed as a distinct
possibility when, in fact the defendant is subject to a mandatory term of
imprisonment and is not eligible for community control, prejudice is self-evident.
In addition, the Ohio Supreme Court stated in State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509, ¶ 22, that the total failure of the trial court to mention that the
defendant was subject to mandatory post-release control (which is part of the
maximum penalty) was a complete failure to comply with Crim. R. 11 and
required that the plea be vacated without consideration of the issue of prejudice. I
would find that logic applicable here. See Farley, Howard, and Phillips. The
Appellant was not only misinformed, he was actively (although unintentionally)
misled into believing that prison was not imminent or mandatory.
{¶43} For the reasons stated above, I would dismiss the appeals as to cases
4-11-14, 15, and 16. Further, I would sustain the first assignment of error as to
case number 4-11-17, find the second assignment to be moot, vacate Appellant’s
plea, and remand for further proceedings on that case only.
/jlr
-22-