STATE OF OHIO v. OLEH YAROCHOVITCH
No. 104572
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 15, 2017
[Cite as State v. Yarochovitch, 2017-Ohio-4293.]
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon, J.
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
BY: Paul Kuzmins
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Anna Woods
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Oleh Yarochovitch, asks this court to vacate his guilty pleas in three cases because the trial court failed to fulfill its obligations under
I. Factual and Procedural History
{¶2} Appellant, along with two others, were charged with crimes related to a string of burglaries against mostly elderly victims. The three would break into a home, sometimes when an occupant was present but doing yard work outside, and steal valuables. In one incident, security camera footage captured the license plate number of the car used during the break-ins. This led police to appellant and his accomplices. After search warrants were executed, police found valuables belonging to some of the victims in the possession of appellant and his codefendants.
{¶3} During pretrials, the state and appellant negotiated a plea agreement that would allow him to plead guilty to reduced and amended charges. On April 12, 2016, in Cuyahoga C.P. No. CR-15-599568-A, appellant pled guilty to one count of escape,
{¶4} Sentencing occurred on May 10, 2016. The court imposed a total sentence spanning all three cases of 14 years and 11 months.1 The court also imposed a period of postrelease control in each case. Appellant then filed the instant appeal assigning one error for review:
I. The appellant’s plea was not knowingly, voluntarily and intelligently made where the trial court failed to advise the appellant that he would be subject to post[]release control upon release from prison.
II. Law and Analysis
{¶5} Appellant argues that the complete failure of the trial court to advise him of postrelease control at the plea hearing renders his pleas invalid.
{¶6} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
{¶7} The jurisprudence of the Supreme Court of Ohio has made clear this burden, and the result that must occur where the court fails to properly inform a criminal defendant of a mandatory term of postrelease control. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. There, the court held that “[i]f 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
{¶9} Here, the trial court failed to mention any term of postrelease control at the plea hearing or possible penalties associated with violations thereof when postrelease control was mandatory for the second-degree felonies in CR-15-601090-A and CR-15-600628-A.2 See
{¶10} The state asks this court to consider an exception to the rule enunciated in Sarkozy. The state asserts that appellant will never be on postrelease control, so no prejudice can result or will result in this case from a lack of information regarding postrelease control. The state argues that because appellant may be subject to deportation, he will be deported upon release from prison and not placed on postrelease
control. This amounts to a prejudice argument.
{¶11} The state further argues that matters regarding postrelease control were addressed during the plea colloquy and that appellant had no questions. The discussion that did take place during the plea colloquy was in regard to appellant’s violation of conditions of what he termed “probation” at the plea hearing. The state argues that appellant knew he would be placed on postrelease control as a result of these convictions.3 There is nothing in the record to support that statement. Additionally, the state’s arguments miss the mark.
{¶12} The requirements set forth in
rejected a substantial compliance argument made by the state and the need for defendants to show prejudice when a court completely fails to advise them of postrelease control. Id. This court cannot impute knowledge to a defendant, as the state asks, when it is the trial court’s obligation to specifically convey that information. Therefore, appellant’s sole assignment of error is sustained.
III. Conclusion
{¶13} The trial court failed to inform appellant that he would be subject to postrelease control during the plea colloquy. This constitutes a complete failure to advise appellant of the maximum penalties and requires this court to vacate appellant’s guilty pleas. The fact that appellant may be subject to deportation does not abrogate the application of the holding of the Supreme Court of Ohio in Sarkozy. The trial court did not fulfill its obligation to inform appellant of postrelease control prior to accepting his plea.
{¶14} This cause is vacated and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR