STATE OF OHIO, Plaintiff-Appellee -vs- LOUIS HARRIS, Defendant-Appellant
Case No. 12 CA 82
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 17, 2013
2013-Ohio-2056
Hon. William B. Hoffman, P. J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 438; JUDGMENT: Affirmed
For Plaintiff-Appellee
KENNETH W. OSWALT PROSECUTING ATTORNEY JUSTIN T. RADIC ASSISTANT PROSECUTOR 20 South Second Street, Fourth Floor Newark, Ohio 43055
For Defendant-Appellant
WILLIAM T. CRAMER 470 Olde Worthington Road Suite 200 Westerville, Ohio 43082
{¶1} Defendant-Appellant Louis Harris appeals his judgment entry of sentence entered on October 10, 2012, in the Licking County Common Pleas Court following a plea of guilty.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On August 24, 2012, Appellant Louis Harris was indicted on two counts of aggravated robbery, in violation of
{¶4} Appellant eventually pled guilty to one count of robbery and one count of burglary. During the plea negotiations, the State alleged Appellant and co-defendant Stephan Ash broke into a home in Newark, Ohio, brandished a firearm, and robbed the people in the home. Appellant agreed with the facts as alleged. (T. at 10-12).
{¶5} The State conceded that the robbery and burglary charges merged under
{¶6} By Judgment Entry filed October 10, 2012, the trial court sentenced Appellant to four years, plus a mandatory consecutive three years for the firearm specification. The State subsequently dismissed the other two counts due to lack of cooperation from a witness, not as part of a plea bargain. (T. at 11-12).
{¶8} By Judgment Entry dated October 22, 2012, the trial court appointed appellate counsel to represent Appellant on appeal.
{¶9} By Judgment Entry dated October 23, 2012, the trial court appointed new trial counsel to represent Appellant for any further representation at the trial court level.
{¶10} The trial court interpreted Appellant‘s letter as also setting forth a motion to withdraw his plea pursuant to
{¶11} On October 25, 2012, Appellate counsel filed the Notice of Appeal in this case.
{¶12} On November 5, 2012, Appellate counsel filed a motion with this Court to remand the case back to the trial court to rule on the motion to withdraw the plea.
{¶13} By Judgment entry filed November 8, 2012, the trial court issued an entry declining to rule on the motion due to lack of jurisdiction.
{¶14} On December 10, 2012, this Court subsequently denied the motion for a remand.
{¶15} Appellant’s appeal is now before this Court, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶16} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS,
I.
{¶17} In Appellant’s sole Assignment of Error, Appellant argues that the trial court erred in failing to inform him during sentencing of the actual penalty for violating post-release control. We disagree.
{¶18}
{¶19} “* * * 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.”
{¶20} Post-release control constitutes a portion of the maximum penalty. State v. Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011-Ohio-1202.
{¶21} Appellant argues that the trial court failed to substantially comply with
{¶22} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, the Ohio Supreme Court held:
{¶23} “* * * 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
{¶24} “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.
{¶25} In determining whether the trial court has satisfied its duties under
{¶26} In Clark, supra, decided after Sarkozy, the Ohio Supreme Court concluded that:
{¶27} “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.” Id. at ¶ 31.
{¶28} 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
{¶29} 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 because the notification of post-release control impacts the right to be informed of the maximum penalty. Under the substantial-compliance standard, we analyze the totality of circumstances surrounding Alexander‘s plea and determine whether he subjectively understood the effect of his plea.
{¶30} In the case sub judice, with regard to post-release control, the trial court addressed Appellant as follows:
{¶31} “Do you also understand, Mr. Harris, that as a result of these convictions, that at the completion of your sentence you would be placed on a period of mandatory post-release control, and if you were to violate the terms of post-release control -- a period of five years of post-release control -- you‘d be subject to being returned to the penitentiary for more incarceration even though you‘ve served out your entire sentence? Do you understand that?” (T. at 14-15).
{¶32} The plea form, signed by Appellant, informed Appellant as follows:
{¶33} “I know any prison term stated will be the term served without good time credit. After release from prison, I will have 5 years of post-release control. A violation of any post-release control rule or condition can result in a more restrictive sanction while I am under post-release control, an increased duration of supervision or control, up to the maximum term and re-imprisonment even though I have served the entire stated prison term upon me by the Court for all offenses. If I violate conditions of supervision while
{¶34} Additionally, the October 10, 2012, Judgment Entry of Sentence stated the following:
{¶35} “The Court advised the defendant of a mandatory period of five (5) years of post-release control, not subject to reduction by the Adult Parole Authority, following any prison sentence imposed, and further the consequences for violating conditions of post-release control imposed by the Parole Board under
{¶36} In Sarkozy and Jones, there was no mention of post-release control at the plea hearing. In the present case, the trial court notified Appellant that he was subject to a mandatory post-release control period of 5 years. Further, the
{¶37} Based on the foregoing, we find, under the totality of the circumstances, the trial court substantially complied with the requirements of
{¶38} We find Appellant’s sole Assignment of Error not well-taken and overrule same.
{¶39} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
By: Wise, J. Hoffman, P. J., and Delaney, J., concur.
JUDGES
STATE OF OHIO, Plaintiff-Appellee -vs- LOUIS HARRIS, Defendant-Appellant
Case No. 12 CA 82
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
Costs assessed to Appellant.
JUDGES