STATE OF OHIO, Plaintiff-Appellee -vs- MARK C. BUMGARDNER, Defendant-Appellant
Case No. 15AP0014
COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 6, 2017
[Cite as State v. Bumgardner, 2017-Ohio-50.]
Hon. Sheila G. Farmer, P.J.; Hon. W. Scott Gwin, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County Court of Common Pleas, Case No.14CR0023; JUDGMENT: Affirmed
For Plaintiff-Appellee
MARK HOWDYSHELL
19 East Main Street
McConnelsville, OH 43756
For Defendant-Appellant
PETER CULTICE
58 North Fifth Street
Zanesville, OH 43701
{¶1} Appellant Mark Bumgardner appeals the October 13, 2015 judgment entry of the Morgan County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} An indictment was filed against appellant on June 18, 2014 stating he violated
{¶3} Appellant signed a jury waiver on February 26, 2015. Appellant signed a plea of guilty on April 14, 2015 stating he entered the plea with the understanding of the nature of the charge and the consequences, including the penalty of the plea. Further, that he had been fully advised by the court of all of his constitutional rights. In the plea form, appellant acknowledged he voluntarily waived all of his constitutional rights.
{¶4} The trial court held a plea hearing on April 14, 2015. During the plea hearing, the trial court informed appellant of the maximum prison term and fines for the violation. The trial court further questioned appellant, “And do you understand that after you are released from incarceration, if that is what happens, that you would be placed on post-release control or probation under standard rules for a definite period of three years? You understand that?” Appellant responded, “Yes, sir.”
{¶5} The trial court further asked appellant if he was currently on probation or community control. Appellant stated he was currently on community control. The trial
{¶6} In an April 20, 2015 change of plea entry issued by the trial court, the trial court stated it explained the possible penalties that might be imposed if appellant were found guilty and appellant said he understood and wanted the court to proceed with and accept his plea. The trial court found appellant “entered the guilty plea freely, knowingly, intelligently and voluntarily and fully understanding the nature of the charges and accusations against him and all the possible consequences and penalties resulting therefrom.” The trial court ordered a pre-sentence investigation report and set the sentencing hearing for June 10, 2015. Appellant filed a motion to continue the sentencing hearing. The trial court granted the motion and continued the hearing until June 30, 2015. Appellant filed a second motion to continue and requested the trial court defer the
{¶7} The trial court held a hearing on October 8, 2015. First, appellant pled guilty to a probation violation in a previous case, No. 11-CR-0062, as a result of his plea in the instant case. When the trial court asked appellant whether there were sufficient facts to find that he was guilty of the probation violation, appellant stated “Yes, sir.” In the previous case, appellant pled guilty to one count of having weapons while under disability and received a sentence of five years of community control. In exchange for his plea to Count 1 of the probation violation in the previous case, Counts 2 and 3 of the probation violation were dismissed.
{¶8} The trial court asked appellant whether there was any legal reason why the court should not sentence him that day on either case, and appellant responded, “No, sir.” When asked whether he had anything to say, appellant stated he was sorry for what he did and he needs to stop hanging out with friends that have bad habits. Appellant stated he would be happy to do a prison term of nine months for his family and a few friends. The trial court sentenced appellant to eighteen months in prison on the instant case and eighteen months in prison for the violation of his community control in the 2011 case, to be served consecutively to each other.
{¶9} At the conclusion of the sentencing hearing, the trial court informed appellant he was ordering appellant to serve three years of post-release control. Further, that if he violates his post-release control, he would be brought back to court and could be sent back to prison for violating post-release control for nine months for each violation with a maximum of repeated violations of one-half of what his maximum sentence was. Finally,
{¶10} The trial court issued a sentencing entry on October 13, 2015. The trial court sentenced appellant to eighteen months in prison to be served consecutively to the sentence in the previous case, No. 11-CR-0062. In the sentencing entry, the trial court stated it advised appellant that, upon his release from prison, he will be placed under post-release control supervision for a term of three (3) years, which may be reduced by the parole board. Further, that the trial court informed appellant if he violates the terms of his post-release control supervision he may be returned to prison as a sanction for such violation and any new offense which is committed while under post-release control supervision may be punished with a sentence consecutive to any post-release control sanction.
{¶11} Appellant appeals the October 13, 2015 judgment entry of the Morgan County Court of Common Pleas and assigns the following as error:
{¶12} “I. THE TRIAL COURT VIOLATED OHIO CRIMINAL RULE 11 WHEN THE TRIAL COURT FAILED TO FULLY ADVISE DEFENDANT/APPELLANT OF THE CONSEQUENCES OF VIOLATING THE TERMS AND CONDITIONS OF HIS THREE YEAR POST-RELEASE CONTROL TERM, AND, AS A RESULT, DEFENDANT/APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTER A PLEA OF GUILTY.”
{¶13} In his assignment of error, appellant argues the trial court did not substantially comply with Criminal Rule 11(C) because the trial court failed to explain the details of post-release control at the hearing and in the plea form and thus his plea was not knowing, intelligently or voluntarily entered into. Appellee contends the trial court substantially complied with
{¶14}
{¶15} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the Ohio Supreme Court held as follows:
* * * if a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of post-release 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 post-release control, the court fails to comply with
Crim.R. 11 and the reviewing court must vacate the plea and remand the cause.
{¶16} Thus, pursuant to Sarkozy, if the trial court judge completely fails to comply with
If 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.
{¶17} 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. Id. If there is partial compliance, such as mentioning mandatory post-release control without explaining it, the plea is only to be vacated if the
{¶18} 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. Under the substantial-compliance standard, we analyze the totality of the circumstances surrounding appellant‘s plea and determine whether he subjectively understood the effect of his plea.
{¶19} Appellant argues the instant case is analogous to three other cases in which this Court found the trial court did not substantially comply with
{¶20} This Court has previously found no manifest injustice occurred when an appellant was not informed during the plea hearing of the term of post-release control, but was notified through the plea form. State v. Alexander, 5th Dist. Stark No. 2013CA00151, 2014-Ohio-2351. Additionally, in State v. Aleshire, we did not vacate a plea despite the trial court‘s failure to advise the defendant of post-release control when, under the totality of the circumstances, the sentencing colloquy and entry advised the defendant of the proper post-release control. 5th Dist. Licking No. 2007-CA-1, 2008-Ohio-5688; see also State v. Brown, 2nd Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199 (finding
{¶21} We find, under the totality of the circumstances, appellant subjectively understood the implications of his plea and the rights he was waving. In this case, there is not a complete absence of post-release control colloquy prior to the trial court‘s acceptance of appellant‘s plea. While the plea form does not contain any information regarding post-release control, during the plea hearing, the trial court specifically asked appellant, “And do you understand that after you are released from incarceration, if that is what happens, that you would be placed on post-release control or probation under standard rules for a definite period of three years? You understand that?” Appellant responded, “Yes, sir.” Further, when asked by the trial court, appellant confirmed he was currently on community control. The trial court asked appellant if he understood that if he pled guilty to the charge in this case, it could be a violation of his community control and he could be subject to a penalty for that also. Appellant stated, “Yes, sir.” In the present case, the trial court specifically notified appellant of three years of post-release control and appellant acknowledged he understood.
{¶22} The trial court also specifically informed appellant he was subject to post-release control at the sentencing hearing. At no time during the plea or the sentencing phase did appellant ask any questions regarding the penalties involved for the charge to which he was pleading guilty. Upon being informed both at the plea hearing and at the sentencing hearing he was subject to a three-year period of post-release control, appellant
{¶23} Further, at the sentencing hearing, the trial court asked appellant if there was any legal reason why the court should not sentence him and appellant replied, “No, sir.” At the sentencing hearing, when the trial court asked appellant if he understood that if he violates his post-release control, he could be sent back to prison for nine months for each violation with a maximum of repeated violations of one-half of what his maximum sentence was or if his new violation is a felony, for either twelve months or his time remaining on post-release control, appellant said “Yes, sir.” The sentencing entry specifically states appellant will be placed on three years of post-release control and that appellant was informed of the consequences of violating post-release control. Appellant concedes that the sentencing entry provides if he violates his post-release control he would be returned to prison. Thus, under the totality of the circumstances, we find appellant subjectively understood the implications of his plea and the rights he was waving.
{¶24} Additionally, since this is a case of partial compliance with regard to a non-constitutional right rather than a complete failure to comply with
{¶25} Appellant has not demonstrated that, but for the trial court‘s error, he would not have entered the guilty plea and gone to trial instead. Thus, he has not shown
{¶26} Accordingly, we hold that the trial court substantially complied with the requirements of
By Gwin, J.,
Farmer P.J., and
Baldwin, J., concur