STATE OF OHIO v. MONDELL ALEXANDER
Case No. 2012CA00115
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
October 15, 2012
[Cite as State v. Alexander, 2012-Ohio-4843.]
Hon. Patricia A. Delaney, P.J.; Hon. W. Scott Gwin, J.; Hon. William B. Hoffman, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CR1653; JUDGMENT: AFFIRMED
For Appellant:
MONDELL ALEXANDER #594-547
M.C.I.
P.O. Box 57
Marion, OH 43301
For Appellee:
JOHN D. FERRORO
STARK COUNTY PROSECUTOR
KATHLEEN O. TATARSKY
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
{¶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
{¶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
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 toR.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 toone-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:
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
{¶13}
* * * 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}
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
{¶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-
{¶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
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 toR.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 toone-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
{¶23} Alexander‘s sole Assignment of Error is overruled.
{¶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.
PAD:kgb
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
STATE OF OHIO, Plaintiff - Appellee v. MONDELL ALEXANDER, Defendant - Appellant
JUDGMENT ENTRY
Case No. 2012CA00115
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