STATE OF OHIO v. MATTHEW T. HASTINGS
Appellate Case Nos. 27212 and 27213
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
February 2, 2018
2018-Ohio-422
Trial Court Case Nos. 2014-CR-3848 and 2016-CR-910 (Criminal Appeal from Common Pleas Court)
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellant
OPINION
Rendered on the 2nd day of February, 2018.
WELBAUM, P.J.
Facts and Course of Proceedings
{¶ 2} On July 20, 2016, Hastings pled guilty in Case No. 2014-CR-3848 to one count of aggravated burglary in violation of
{¶ 3} At Hastings’ plea hearing, the trial court made all of the advisements required by Crim.R. 11. When the trial court advised Hastings of the maximum possible penalty he faced for each of his offenses, the trial court stated the following with regards to post-release control:
Sir, upon completing any prison sentence, I do need to tell you that you will be required to serve a period of five years post-release control on the felonies of the first degree. You‘ll be required to serve a period of three years on the felony of the second degree. And you may be required to serve a period of three years post-release control on the remaining offenses.
(Emphasis added.) Plea Hearing Trans. (July 20, 2016), p. 7.
{¶ 4} The trial court‘s statement that Hastings “may be required to serve a period of three years post-release control on the remaining offenses” encompassed Hastings’ third-degree-felony charge of attempted burglary in Case No. 2016-CR-910. Accordingly, the trial court effectively indicated that the attempted burglary charge carried a discretionary term of post-release control.
{¶ 5} The plea form signed by Hastings, however, indicates that the attempted burglary charge carried a three-year mandatory term of post-release control. The discrepancy between the post-release control notification in the plea form and the trial court‘s advisement at the plea hearing went unnoticed by the parties. Accordingly, the trial court accepted Hastings’ guilty pleas in both cases and scheduled the matter for sentencing.
{¶ 7} At the sentencing hearing and in the corresponding sentencing entry, the trial court advised Hastings that for Case No. 2016-CR-910, his attempted burglary and felonious assault offenses each carried a three-year mandatory term of post-release control, while his aggravated burglary offense carried a five-year mandatory term of post-release control. For Case No. 2014-CR-3848, the trial court advised Hastings at the sentencing hearing that he would be required to serve a five-year mandatory term of post-release control for aggravated burglary and a three-year discretionary term of post-release control for vandalism. However, these terms of post-release control were inadvertently flipped in the corresponding sentencing entry. Accordingly, the sentencing entry for Case No. 2014-CR-3848 provides that a three-year discretionary term of post-release control applies to the aggravated burglary offense and a five-year mandatory term of post-release control applies to the vandalism offense.
{¶ 8} On August 5, 2016, Hastings filed a notice of appeal from his conviction and sentence in both Case Nos. 2014-CR-3848 and 2016-CR-910. Following the
{¶ 9} On April 3, 2017, we rejected Hastings’ Anders brief after determining that an appealable issue existed concerning the validity of Hastings’ guilty plea in Case No. 2016-CR-910. We found that the validity of the plea was at issue because the trial court advised Hastings at the plea hearing that post-release control for his third-degree-felony offense of attempted burglary was discretionary, when in fact, the offense is an “offense of violence” for which a three-year mandatory term of post-release control applies. See
{¶ 10} We also found that the trial court‘s sentencing entry in Case No. 2014-CR-3848 improperly advised Hastings regarding post-release control since it flipped the terms of post-release control that applied to the aggravated burglary and vandalism offenses. However, we concluded that the post-release control error in the sentencing entry could be corrected with a nunc pro tunc order since the trial court imposed the proper terms of post-release control at the sentencing hearing. See State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943 N.E.2d 1010, ¶ 14-15; State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 30.
Assignment of Error
{¶ 12} Hastings’ sole assignment of error is as follows:
THE TRIAL COURT‘S MISSTATEMENT AT THE PLEA HEARING IN CASE NUMBER 2016-CR-910 REGARDING POST RELEASE CONTROL FOR ATTEMPTED BURGLARY AMOUNTS TO A COMPLETE OR PARTIAL FAILURE TO COMPLY WITH RULE 11(C)(2)(a) OF THE OHIO RULES OF CRIMINAL PROCEDURE WHICH REQUIRES VACATION OF THE GUILTY PLEA AND RESULTING SENTENCE.
{¶ 13} Under his sole assignment of error, Hastings contends that his guilty plea in Case No. 2016-CR-910 is invalid and should be vacated because the trial court erroneously advised him at the plea hearing that post-release control for the charge of attempted burglary was discretionary when it was in fact mandatory.
{¶ 14} In order to be constitutionally valid and comport with due process, a guilty plea must be entered knowingly, intelligently, and voluntarily. State v. Bateman, 2d Dist. Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be knowing, intelligent, and
{¶ 15} Pursuant to Crim.R. 11(C)(2)(a), the court must determine “that the defendant is making the plea voluntarily, with 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.” When post-release control applies, the trial court is required to inform the defendant of its applicability due to this rule. State v. Threats, 2016-Ohio-8478, 78 N.E.3d 211, ¶ 21 (7th Dist.), citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7-10, 22.
{¶ 16} Unlike the advisements required in Crim.R. 11(C)(2)(c), which involve constitutional rights and necessitate strict compliance by the trial court, the non-constitutional advisements in Crim.R. 11(C)(2)(a) only require substantial compliance. Cole at ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Under the substantial compliance standard, “a slight deviation from the text of the rule is permissible; 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.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462,
{¶ 17} If there is no substantial compliance with regard to a non-constitutional right, the reviewing court is to ascertain whether there was partial compliance or a total failure to comply with the rule. Id. at ¶ 32. If there is partial compliance, the plea cannot be vacated unless the defendant shows that he was prejudiced. Id. “The test for prejudice is ‘whether the plea would have otherwise been made.‘” Id., quoting Nero at 108. (Other citation omitted.) “If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated.” Id., citing Sarkozy at paragraph two of the syllabus. “‘A complete failure to comply with the rule does not implicate an analysis of prejudice.‘” Id., quoting Sarkozy at ¶ 22.
{¶ 18} We have held that “if a trial court fails to reconcile its correct oral statement on the length of post-release control with an incorrect statement on post-release control in a plea form, the trial court only partially complies with Crim.R. 11.” State v. Lockard, 2d Dist. Clark No. 2014-CA-152, 2015-Ohio-4294, ¶ 11, citing State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 23. (Footnote omitted.) Under that circumstance, the defendant is required to demonstrate that he was prejudiced by the incorrect information in order to vacate his plea. Brown at ¶ 23.
{¶ 19} In contrast, we have found no substantial compliance and no need to undergo a prejudice analysis where the plea form contained an abbreviated, but generally correct recitation of the incarceration consequences of violating post-release control, but the trial court affirmatively misstated those consequences at the plea hearing. State v. Wilborn, 2d Dist. Montgomery No. 25581, 2013-Ohio-5168, ¶ 18-19. In Wilborn, the trial
{¶ 20} Hastings relies heavily on Wilborn for the proposition that the trial court‘s misstatement in this case amounts to a complete failure to comply with Crim.R. 11, which obviates the need to establish prejudice to vacate his guilty plea. However, unlike Wilborn, the trial court in this case merely indicated that post-release control for Hastings’ attempted burglary charge was discretionary when it was in fact mandatory. Despite the trial court‘s misstatement, Hastings was nevertheless put on notice that he would be required to serve a term of post-release control for attempted burglary, whereas in Wilborn, the defendant was completely misadvised as to the consequences for violating post-release control. Accordingly, we find that the trial court‘s misstatement is distinguishable from the misstatement in Wilborn.
{¶ 21} The present case is more analogous to State v. Knox, 2d Dist. Montgomery No. 25774, 2015-Ohio-4198 wherein we held the following:
[T]he trial court inaccurately informed Knox, at the time of his plea, that the mandatory term of his post-release control was discretionary, when in fact it was mandatory for Knox‘s Burglary offenses, which violated
R.C. 2911.12(A)(3) .R.C 2967.28(B) specifically requires a trial court to include a period of post-release control for third-degree felonies that constitute an “offense of violence.”R.C. 2901.01(A)(9)(a) , which identifies offenses of violence, specifically includes a violation ofR.C. 2911.12(A)(3) . At the sentencing hearing, the trial court also incorrectly stated that post-release control was discretionary, when in fact it was mandatory for the Burglary offenses in violation ofR .C. 2911.12(A)(3) . The termination entry conflicts with the statements made at the plea and sentencing hearing because it provides that the convictions for Burglary offenses carried mandatory terms for post-release control, and that post-release control was discretionary for the two third-degree felony convictions. It has been held that partial compliance with Crim. R. 11 is established when the trial court discusses post-release control at the plea hearing but misinforms the defendant as to whether post-release control is mandatory or discretionary, as long as the defendant subjectively understands the implications of his plea and the rights he is waiving. State v. Mugrage, 9th Dist. Summit No. 26062, 2012-Ohio-4802, ¶ 15; State v. McMahon, 12th Dist. Fayette No. CA2009-06-008, [2010]-Ohio-2055, ¶ 22. In the case before us, Knox repeatedly acknowledged that he understood the effects of his plea, and after furtherexplanation of post-release control, he agreed that he understood it. Based on this record, we conclude that the trial court partially complied with Crim. R. 11, by informing Knox that he could be placed on post-release control.
(Emphasis added.) Knox at ¶ 11.
{¶ 22} We further held in Knox that:
When partial compliance is met, the defendant must be able to show that he was prejudiced by the error to such an extent that he would not have entered the plea if accurate consequences of his plea were disclosed. “The trial court‘s imperfect advisement to appellant that she was subject to a discretionary period of post-release control afforded her sufficient notice that such control might be imposed. Since appellant had notice that her sentence might include post-release control, she cannot show prejudice as her plea was made with knowledge of that possibility.” State v. Wright, 6th Dist. Sandusky No. S-09-23, 2010-Ohio-2620, ¶ 29.
Knox at ¶ 12.
{¶ 23} Under the authority of Knox, we find that the trial court partially complied with Crim.R. 11 by informing Hastings that he could be placed on post-release control. Despite the trial court mistakenly indicating that post-release control was discretionary for Hastings’ attempted burglary charge, the record of the plea hearing indicates that Hastings otherwise subjectively understood the implications of his guilty plea and the rights he was waiving. Accordingly, Hastings’ guilty plea cannot be vacated unless he shows that he was prejudiced by the trial court‘s error.
If an offender is subject to more than one period of post-release control, the period of post-release control for all of the sentences shall be the period of post-release control that expires last, as determined by the parole board or court. Periods of post-release control shall be served concurrently and shall not be imposed consecutively to each other.
(Emphasis added.)
{¶ 25} Since multiple terms of post-release control must be served concurrently, and Hastings was correctly informed at the plea hearing that he would be required to serve a five-year mandatory term of post-release control for his first-degree felonies, the duration of his post-release control term amounts to five mandatory years regardless of whether the three-year term of post-release control for attempted burglary is mandatory or discretionary. See State v. Heard, 2d Dist. Montgomery No. 27454, 2018-Ohio-314, ¶ 27 (holding that regardless of whether the trial court erred in imposing a three-year term of post-release control for appellant‘s fifth-degree-felony drug trafficking offense, pursuant to
Conclusion
{¶ 27} Having overruled Hastings’ sole assignment of error, the judgment of the trial court in Case No. 2016-CR-910 is affirmed. Although Hastings’ appellate counsel did not address the error in the sentencing entry for Case No. 2014-CR-3848 that we identified in our Anders review, we hereby order the sentencing entry for that case to be corrected nunc pro tunc by the trial court to reflect the actual terms of post-release control that were imposed at the sentencing hearing, i.e., a five-year mandatory term of post-release control for aggravated burglary and a three-year discretionary term of post-release control for vandalism. The judgment in Case No. 2014-CR-3848 is otherwise affirmed.
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Alice B. Peters
Gary C. Schaengold
Hon. Dennis J. Adkins