State v. MooreState v. Moore
Rose & Dobyns Co., LPA, Scott B. Evans, 97 N. South Street, Wilmington, Ohio 45177, for defendant-appellant
O P I N I O N
BRESSLER, J.
{¶1} Defendant-appellant, Teresa J. Moore, appeals her sentence following her conviction in the Clinton County Court of Common Pleas for felonious assault.
{¶2} Appellant was arrested on May 15, 2009 after she used matches and a lighter to burn, as a form of punishment, the fingertips of a child she was babysitting. On June 9, 2009, appellant was indicted on one count each of felonious assault in violation of
{¶3} Subsequently, appellant entered a guilty plea to one count of felonious assault in violation of
{¶4} Appellant appeals her sentence and raises the following assignment of error.
{¶5} “THE TRIAL COURT ERRED IN FAILING TO PROPERLY ADVISE APPELLANT OF THE PROVISIONS OF POST-RELEASE CONTROL AT THE APPELLANT‘S PLEA HEARING.”
{¶6} In her assignment of error, appellant argues the trial court incorrectly advised appellant that she is subject to a mandatory five-year period of postrelease control following her release from prison. Appellant argues her guilty plea and sentence should be vacated based on this error.
{¶7} At appellant‘s sentencing hearing, the trial court advised appellant as follows, with respect to the term of postrelease control:
{¶8} “Now, when you get out of prison * * * it‘s not over because this does carry with it a mandatory period of supervision by the Ohio Adult Parole Authority. And I believe it is 5 years in this case * * *. So when you get out after that six-year term [of imprisonment] is completed, there will be a five-year period of supervision that will be
{¶9} Also, the trial court‘s Judgment Entry of Sentence includes the following language:
{¶10} “Upon completion of the prison term, the offender shall be subject to a period of post release control as determined by the Parole Board pursuant to [
{¶11} Appellant is correct that the trial court erred in imposing a mandatory five-year period of postrelease control. Appellant was convicted of felonious assault in violation of
{¶12} However, appellant is incorrect in her assertion that the proper remedy for the trial court‘s error is vacating her guilty plea and sentence.
{¶13} Also, we note that the state is misplaced in its assertion that the proper remedy to correct the trial court‘s error is a nunc pro tunc entry by the trial court. As the Ohio Supreme Court recently indicated in State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶76, ”
{¶14} Appellant also argues that she was not properly informed of the mandatory
{¶15} Next, appellant implies, but does not expressly argue, that her guilty plea was not knowing and voluntary because she was not properly notified as to the term of postrelease control. To uphold a guilty plea, there must be substantial compliance with the Crim.R. 11(C)(2)(a) requirement to disclose the maximum penalties. State v. Nero (1990), 56 Ohio St.3d 106, 108. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” Id., citing State v. Stewart (1977), 51 Ohio St.2d 86.
{¶16} When a trial court does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, the reviewing court must then determine whether the court partially complied or failed to comply with the rule. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶32. If the trial court completely failed to comply with the rule, the plea must be vacated. Id. However, if the trial court merely partially complied with the rule, the plea may be vacated only if the defendant demonstrates a prejudicial effect. Id. The test for prejudice is “whether the plea would have otherwise been made.” Nero, 56 Ohio St.3d at 108, citing Stewart, 51 Ohio St.2d at 93.
{¶17} We find that the trial court partially complied, but did not substantially comply with Crim.R. 11 as it relates to appellant‘s nonconstitutional right to have her full
{¶18} Appellant‘s assignment of error is sustained in part and overruled in part.
{¶19} Accordingly, this matter is remanded for resentencing in accordance with the procedures set forth in
{¶20} Judgment reversed as to sentencing only and cause remanded for resentencing.
YOUNG, P.J., and POWELL, J., concur.