State v. Fantauzzi , 2012 Ohio 1136 ( 2012 )

[Cite as State v. Fantauzzi, 2012-Ohio-1136.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO
PLAINTIFF-APPELLEE, CASE NO. 7-11-16
v.
ALEXIS FANTAUZZI OPINION
APPELLANT-DEFENDANT.
Appeal from Henry County Common Pleas Court
Trial Court No. 11CR0043
Judgment Affirmed
Date of Decision: March 19, 2012
APPEARANCES:
William F. Hayes for Appellant
John H. Hanna for Appellee
CASE NO. 7-11-16
SHAW, P.J.
{¶1} Defendant-Appellant, Alexis Fantauzzi (“Fantauzzi”), appeals the
September 6, 2011 judgment of the Henry County Court of Common Pleas
sentencing him to three years of community control and ninety-eight days in the
Correctional Center Northwest Ohio with credit for ninety-eight days served upon
his plea of guilty to R.C. 2913.51, receiving stolen property, a felony of the fourth
degree.
{¶2} On June 1, 2011, Fantauzzi was arrested on the charge of criminal
mischief. On June 28, 2011 Fantauzzi was indicted on the charge of receiving
stolen property in violation of R.C. 2913.51(A), a felony of the fourth degree as
the property was a motor vehicle.
{¶3} On July 11, 2011, the day of the scheduled arraignment, Fantauzzi
entered a written negotiated plea whereby Fantauzzi would plead guilty to R.C.
2913.51, receiving stolen property, a felony of the fourth degree. In exchange the
State agreed to recommend a sentence of community control with local
incarceration. Under the terms of the deal, Fantauzzi would stay in the local jail
until sentencing which was set for September 6, 2011 and then he would be
released with credit for time served.
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{¶4} After negotiations the court went through the required Criminal Rule
11 dialogue and accepted Fantauzzi’s guilty plea. The court then ordered a
presentence investigation and set sentencing for September 6, 2011.
{¶5} At sentencing on September 6, 2011 the court imposed a period of
community control of three years and ordered as a condition of the community
control that Fantauzzi serve 98 days in jail. He was then given credit for 98 days
served. On September 21, 2011, the court filed a judgment entry terminating
Fantauzzi’s community control due to the fact that he had moved out of state.
{¶6} Fantauzzi filed this appeal and asserts one assignment of error for our
review.
ASSIGNMENT OF ERROR
APPELLANT’S PLEA WAS NOT KNOWINGLY,
INTELLIGENTLY AND VOLUNTARILY MADE
DEPRIVING APPELLANT OF HIS CONSTITUTIONAL
RIGHT TO A TRIAL.
{¶7} Fantauzzi alleges that the court failed to comply with Criminal Rule
11(C)(2)(a) during the plea colloquy by not informing him of the possibility of
post-release control. Because of this, Fantauzzi argues, his plea was not entered
knowingly, intelligently and voluntarily. Specifically, Fantauzzi claims that he
was not informed that if he was immediately sent to prison, that upon his release
he may be subject to a period of post-release control.
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CASE NO. 7-11-16
{¶8} “Pursuant to Crim. R. 11(C)(2)(a), a trial court is required to inform an
offender of a number of nonconstitutional issues, including the maximum penalty
involved, before accepting a defendant’s guilty plea.” State v. Fleming, 6th Dist.
No OT-07-024, 2008-Ohio-3844, ¶ 10 (analyzing post-release control as one of
those issues) citing State v. Harrington, 2d Dist. No. 06-CA-29, 2007-Ohio-1335,
¶ 11. Nonconstitutional aspects of the plea colloquy are subject to review under a
standard of substantial compliance. 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.”
State v. Nero, 56 Ohio St.3d 106, 108 (1990).
{¶9} Failure to adequately inform a defendant of his nonconstitutional
rights at a plea hearing will not invalidate a plea unless the defendant thereby
suffered prejudice. Griggs at ¶ 12 citing Nero at 107. For Fantauzzi to establish
prejudice, he would have to demonstrate that his plea would not have been made
otherwise. Id.{¶10} In his Criminal Rule 11 dialogue Fantauzzi was informed that if he
violated community control and was sent to prison, he could be placed on post-
release control upon his release from prison. Nevertheless, he now argues that he
was not advised that if he were to be sent to prison immediately without
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community control, that he might be subject to post-release control upon being
released from prison.
{¶11} First, we observe that even if the plea dialogue was not in strict
compliance with Crim. R. 11, the trial court was in substantial compliance as
Fantauzzi was subjectively aware of the implications of his plea related to post-
release control. Fantuazzi was specifically informed that he could be subject to
post-release control if he was sent to prison. Fantauzzi signed a written plea
agreement alerting him to that fact. The pertinent portion of the written plea
agreement reads,
[a]fter prison release, I may have up to (3) years of post-release
control.1 The parole board could return me to prison for up to
nine months for each violation of those conditions, for a total of
50% of my stated term. If the violation is a new felony, I could
receive a new prison term of the greater of one year or the time
remaining on post release control.
(Doc. No. 7).
{¶12} Fantauzzi was also informed at the plea hearing that if sent to prison,
he could be subject to post-release control.
THE COURT: If in fact you were referred or sentenced to any
prison term as a result of the violation you’re not entitled to
good time if you’re serving a prison term as a violation of
Community Control and after you’re released you could be
placed upon post-release control for up to three years, that is a
may. The Parole Authority could return you to prison for up to
nine months if you violate the conditions of post-release control
1
The sentence as typed in the written plea agreement has ‘may/will’ with ‘will’ scratched out and ‘3/5’
with ‘5’ scratched out so that it reads as written above.
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CASE NO. 7-11-16
to a maximum of fifty percent of any additional prison time. If
the violation would be a new felony, you could receive a new
prison term of the greater of one year or the time remaining on
the post-release control. Now that is kind of complicated but did
you follow that.
Mr. Fantauzzi: Yes.
(July 11, 2011 Tr. at 11-12). Furthermore, the plea dialogue covers the fact that
Fantauzzi read and claimed to have understood the written plea agreement and that
his attorney had gone over it with him. (July 11, 2011 Tr. at 9).
{¶13} The Sixth District Court of Appeals found that a defendant was
sufficiently notified of non-mandatory post-release control where he had read and
signed a similar written plea agreement and the trial court had the defendant
acknowledge that he had read and signed the written plea agreement. Fleming,
supra at ¶¶ 9-24. Here the trial court went a step further than the court in Fleming
and addressed the possibility of post-release control in the plea dialogue with
Fantauzzi. In sum, Fantauzzi was aware of the possibility of being subject to post-
release control following any potential prison term prior to entering his plea.
{¶14} Moreover, Fantauzzi concedes in his brief that post-release control is
not mandatory in his case. All of the cases that Fantauzzi cites in support of his
argument that his plea should be vacated stand for the principle that if Fantauzzi
was not advised at all of a mandatory term of post release control then his plea
should be vacated. See State v. Sarkozy, 117 Ohio St.3d 86 (2008) at syllabus;
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State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, ¶ 10. That is simply not
the case here. Fantauzzi was clearly informed that he may be subject to post-
release control after any prison term and that any post-release control was not
mandatory.
{¶15} Furthermore, Fantauzzi is unable to establish any prejudice.
Ultimately Fantauzzi was not sentenced to any period of post-release control.
Thus, the record is devoid of how any further notification regarding post-release
control would have altered Fantauzzi’s decision to plead guilty. Fantauzzi’s plea
was given in exchange for local incarceration and credit for time served—a
sentence that found him in a local jail for just over three months on a charge that
could have resulted in an 18 month prison sentence. Though at sentencing
Fantauzzi tried to negotiate with the trial court to lessen the amount of community
control he would receive, he originally entered his plea knowing the implications
as evidenced by his written plea agreement and the plea dialogue at the hearing.
As it turns out, Fantauzzi only served 15 days of the three years of community
control before the court terminated the community control due to his relocation out
of state.
{¶16} There is no indication that Fantauzzi would have made a different
decision had he been informed that if he was somehow sent to prison immediately
without community control he could eventually be subject to post-release control
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upon release from prison, especially in light of the fact that a prison sentence was
not imposed. Moreover, at this point, Fantauzzi has no possibility of going to
prison or being placed on post-release control as his community control has been
terminated.
{¶17} For these reasons, Fantauzzi’s assignment of error is overruled and
the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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