State v. ReeseState v. Reese
Dated: December 14, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Charles Reese, appeals from his convictions in the Wayne County Court of Common Pleas. This Court affirms.
I
{¶2} Charles Reese was indicted on two separate occasions for different felony offenses. On May 12, 2008, he was indicted for employing deception to obtain a dangerous drug in violation of
{¶3} On December 1, 2008, the trial court consolidated his cases and held a hearing at which Reese pleaded guilty to all remaining charges against him. In February 2009, Reese was sentenced to 18 months on the fourth-degree felony and 12 months on each of the fifth-degree
II
Assignment of Error Number One
“THE SENTENCING COURT COMMITTED PLAIN ERROR BY ACCEPTING CHARLES REESE‘S GUILTY PLEAS WITHOUT PERSONALLY INFORMING HIM OF THE POTENTIAL MAXIMUM PENALTIES HE COULD RECEIVE FROM VIOLATIONS OF POST RELEASE CONTROL, AS REQUIRED BY
Assignment of Error Number Two
“THE SENTENCING COURT COMMITTED PLAIN ERROR BY ACCEPTING CHARLES REESE‘S GUILTY PLEAS WITHOUT PERSONALLY INFORMING HIM OF THE POTENTIAL MAXIMUM PENALTIES HE COULD RECEIVE FROM VIOLATIONS OF POST RELEASE CONTROL, AS REQUIRED BY CRIM.R. 11(C); CONSEQUENTLY, MR. REESE‘S PLEAS WERE NOT KNOWING AND VOLUNTARY.”
{¶4} In both of his assignments of error, Reese argues that it was plain error for the trial court to fail to inform him of the provisions outlined in
{¶5} Initially, we note that Reese relies on the codification of the rule of lenity as set forth in
{¶6}
“(2) In felony cases the court may refuse to accept a plea of guilty *** and shall not accept a plea of guilty *** without first addressing the defendant personally and ***:
“(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved[.]”
“The Supreme Court of Ohio has established two separate standards of review with respect to constitutional and nonconstitutional rights in determining whether a trial court has satisfied its [Crim.R. 11 obligations].” State v. Anderson (1995), 108 Ohio App.3d 5, 8-9. “If nonconstitutional rights are involved, the trial court‘s acceptance of a guilty plea will be affirmed so long as the court substantially complied with the requirements of
“[I]f the trial judge imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies. Under this 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. 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. The test for prejudice is whether the plea would have otherwise been made.” (Emphasis in original.) (Internal citations and quotations omitted.) State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, at ¶31-32.
Reese does not argue that he was not properly informed of the maximum prison sentence or terms of post-release control to which he was subject for each of his offenses. Instead, he asserts that he was not properly informed of the nonconstitutional right set forth in
“Prior to accepting a guilty plea *** to an indictment *** that charges a felony, the court shall inform the defendant personally that, if the defendant pleads guilty *** to the felony so charged *** and if the court imposes a prison term upon the defendant for the felony, all of the following apply:
“***
“(E) If the offender violates the conditions of a post-release control sanction imposed by the parole board upon the completion of the stated prison term, the parole board may impose upon the offender a residential sanction that includes a new prison term up to nine months.”
Terms of post-release control are part of a defendant‘s actual sentence. See Woods v. Telb (2000), 89 Ohio St.3d 504, 511. Therefore, “a trial court must inform the offender at sentencing or at the time of a plea hearing that post-release control is part of the offender‘s sentence.” Id. at 513.
{¶7} A review of the transcript from Reese‘s plea hearing reveals the following exchange relative to his argument on appeal:
“[Court:] If you receive a prison sentence, Mr. Reese, upon your release you‘ll be under the supervision of the Adult Parole Authority for a period of up to three years. If you violate any condition the Parole Board imposes you could be sent back to prison even though you served your entire sentence. Any questions about that?
“[Reese:] No, sir.”
{¶8} Here, the trial court personally informed Reese that he was subject to a discretionary period of post-release control for a period of up to three years which was accurate, given that his offenses were fourth- and fifth-degree felonies.
{¶9} In light of the foregoing, we consider the trial court‘s failure to verbally inform Reese as to the specific terms of re-incarceration he might face for post-release control violations to be a “slight” deviation from
{¶10} Furthermore, Reese has failed to cite to any other authority for the proposition that before accepting his plea, the trial court was required to exercise strict compliance under
III
{¶11} Reese‘s first and second assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
MOORE, P. J.
CONCUR
APPEARANCES:
CLARKE W. OWENS, Attorney at Law, for Appellant.
MARTIN FRANTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting Attorney, for Appellee.