State v. MunyanState v. Munyan
For Plaintiff-Appellee:
KENNETH OSWOLT 0037208
Licking County Prosecutor
20 S. Second Street, 4th Fl.
Newark, Ohio 43055
For Defendant-Appellant:
THOMAS S. GORDON 0072634
8026 Woodstream Dr., N.W.
Canal Winchester, Ohio 43110
Delaney, J.
{¶1} Defendant-Appellant, James Munyan, appeals from his plea and conviction of twelve counts of rape, one count of complicity to rape, and nineteen counts of gross sexual imposition. The State of Ohio is Plaintiff-Appellee.
{¶2} Between February 3, 2007, and January 20, 2008, Appellant engaged in multiple instances of sexual conduct with A.B., his nine-year-old stepdaughter, who resided with him at the time. Additionally, Appellant engaged in sexual activity with his stepson, D.B., between October 24, 2007, and January 20, 2008. At the time, D.B. was 12 years old. Moreover, Appellant forced D.B. and his brother, L.B., to engage in sexual activity with each other. Finally, Appellant also had sexual contact with a ten-year old friend of his stepchildren, H.S.
{¶3} Appellant was indicted on twelve counts of rape, all felonies of the first degree, in violation of
{¶4} Appellant pled guilty to the indictment and signed several different plea forms, wherein he acknowledged:
{¶5} “After release from prison, I will have (5) years of post-release control. If I violate post-release control, I could be returned to prison for up to nine (9) months.”
{¶6} Additionally, at his plea hearing, the prosecutor stated, “All offenses within this indictment carry a mandatory term of five years of post-release control when the Defendant is released from prison.” Moreover, the trial court informed Appellant, “Do
{¶7} The trial court then sentenced Appellant to thirty-six years in prison. In the trial court‘s judgment entry, with respect to postrelease control, the court stated the following:
{¶8} “The court sentences the defendant to a period of five (5) years of post-release control following any prison sentence imposed, and further the consequences for violating conditions of post-release control imposed by the Parole Board under
{¶9} Appellant raises one Assignment of Error:
{¶10} “I. DID THE TRIAL COURT ERR WHEN IT FAILED TO INFORM MR. MUNYAN NOT ONLY OF THE EXACT LENGTH OF TIME HE WOULD BE PLACED ON POSTRELEASE CONTROL IF RELEASED FROM THE PENITENTIARY, BUT THE MAXIMUM PENALTIES FOR VIOLATING POSTRELEASE CONTROL?”
{¶11} In his sole assignment of error, Appellant argues that the trial court violated Criminal Rule 11 by failing to inform Appellant of how long he would be subject to postrelease control and that if he violated postrelease control, he would be subject to an additional term of incarceration. We disagree.
{¶12}
{¶13} “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶14} “(a) Determining 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.”
{¶15} Appellant relies on the Ohio Supreme Court‘s decision in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, wherein the Court held that a trial court must inform a defendant of mandatory postrelease control as part of the requirements of
{¶16} Some compliance with respect to postrelease control notification triggers a substantial compliance analysis and a resultant prejudice analysis. See State v. Alfarano, 1st Dist. No. C-061030, 2008-Ohio-3476. The Supreme Court itself has addressed this issue with respect to substantial compliance with
{¶17} “When the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. See Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 364 N.E.2d 1163, and
{¶19} Specifically, the trial court advised Appellant that he would be subject to postrelease control once he was released from any prison term that it might impose. Likewise, the court advised him of the potential of reincarceration for violating postrelease control. While the trial court did not verbally inform Appellant of the actual term of postrelease control nor of the term of reincareration, the written plea agreement accurately stated that Appellant would serve a mandatory five-year term of postrelease control, the prosecutor stated that Appellant would serve a mandatory five-year term of postrelease control, and the judgment entry accurately stated that Appellant would serve a mandatory five-year term of post-release control and delineated the different penalties for violations of post-release control.
{¶20} Moreover, prior to accepting Appellant‘s plea, the trial court asked Appellant if he had reviewed the plea form with counsel, and if he had any questions regarding the written plea agreement. Appellant replied that he had reviewed the form and did not have any questions. Thus, Appellant had notice that he would receive a maximum of five years’ post-release control, and that if he violated the terms of his postrelease control, he could serve up to 50 percent of his original prison sentence. Under these circumstances, we hold that the trial court substantially complied with
{¶22} As a result of the foregoing, we overrule Appellant‘s sole assignment of error and affirm the judgment of Licking County Court of Common Pleas.
By: Delaney, J.
Hoffman, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE