STATE OF OHIO, PLAINTIFF-APPELLEE, v. ALEXIS FANTAUZZI, APPELLANT-DEFENDANT.
CASE NO. 7-11-16
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
March 19, 2012
[Cite as State v. Fantauzzi, 2012-Ohio-1136.]
Appeal from Henry County Common Pleas Court Trial Court No. 11CR0043 Judgment Affirmed
William F. Hayes for Appellant
John H. Hanna for Appellee
{¶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
{¶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
{¶3} On July 11, 2011, the day of the scheduled arraignment, Fantauzzi entered a written negotiated plea whereby Fantauzzi would plead guilty to
{¶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
{¶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
{¶11} First, we observe that even if the plea dialogue was not in strict compliance with
[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
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;
{¶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
{¶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