State v. BurksState v. Burks
Jonathan N. Garver
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103-1125
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Appellant, Godfrey Burks (“Burks“), appeals his convictions for aggravated burglary under
{¶2} Burks was originally charged in an eight-count indictment with assorted offenses ranging from kidnapping, aggravated burglary, felonious assault, aggravated robbery, and robbery to the violation of a protection order. On February 7, 2008, Burks withdrew his not-guilty plea and entered a plea to one count of aggravated burglary, a felony of the first degree under
{¶3} At the time of the plea, the trial court advised Burks as follows:
“THE COURT: “* * * your sentence will include up to three years - - pardon me, up to five years post release control. That means if you go to prison, even when you get out, you have to report to the Parole Board. If you don‘t do that, they can ship you back to prison for up to half your original sentence. Do you understand all that?”
{¶4} “THE DEFENDANT: Yes, sir.”
“THE COURT: Remember, that sentence will include another five years of post release control. That means when you get out of prison, you will be required to report regularly to the parole board. And if you don‘t do that, they could ship you back to prison for up to half your original sentence.”
{¶6} Burks appeals his plea and sentence in one assigned error, as follows:
{¶7} “The trial court failed to comply with the mandatory requirements of
{¶8} Burks argues that he was denied due process because the trial court accepted his guilty plea without fully advising him about the terms and conditions of postrelease control as set forth in
{¶10} The postrelease control statute at issue,
“Advice as to possible extension of prison term
“Prior to accepting a guilty plea or a plea of no contest to an indictment, information, or complaint that charges a felony, the court shall inform the defendant personally that, if the defendant pleads guilty or no contest to the felony so charged or any other felony and if the court imposes a prison term upon the defendant for the felony, all of the following apply:
“(A) The parole board may extend the stated prison term if the defendant commits any criminal offense under the law of this state or the United States while serving the prison term.
“(B) Any such extension will be done administratively as part of the defendant‘s sentence in accordance with section 2967.11 of the Revised Code and may be for thirty, sixty, or ninety days for each violation.
“(C) All such extensions of the stated prison term for all violations during the course of the term may not exceed one-half of the term‘s duration.
“(D) The sentence imposed for the felony automatically includes any such extension of the stated prison term by the parole board.
“(E) If the offender violates the conditions of a post-release control sanction imposed by the parole board upon the completion of the stated prison term, the parole board may impose upon the offender a residential sanction that includes a new prison term up to nine months.”
{¶12} When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio -509.
{¶13}
“In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
“(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
“(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
“(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.”
State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474.
{¶15} 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 nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice. The test for prejudice is whether the plea would have otherwise been made. Under the substantial-compliance standard, a reviewing court reviews the totality of circumstances surrounding the defendant‘s plea and determines whether he subjectively understood the effect of his plea. Sarkozy, supra.
{¶16} There is no debate that the language of
{¶17} In this instance, there was no showing that Burks was prejudiced by the failure to read all five subsections of the statute. Also, there is no indication he would not have pled had these additional sections been read to him. There is no requirement that a court recite every possible manner in which a violation of postrelease control can, or will, occur. The constitutional safeguards are protected when it is clear from the record that the defendant was advised of, and clearly understood, the maximum penalty.
{¶18} Appellant‘s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR