[Cite as State v. Green,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Juilie A. Edwards, J. -vs- : : MARCUS A. GREEN : Case No. 2010CA00198 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2000CR0890(A)

JUDGMENT: Affirmed/Reversed in Part & Remanded

DATE OF JUDGMENT ENTRY: March 31, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO MARCUS A. GREEN, PRO SE Prosecuting Attorney Inmate No. A397-368 Grafton Correctional Institution RONALD MARK CALDWELL 2500 South Avon Beldon Road Assistant Prosecuting Attorney Grafton, OH 44044 110 Central Plaza South Suite 510 Canton, OH 44702 Stark County, Case No. 2010CA00198 2

Farmer, J.

{¶1} On September 1, 2000, the Stark County Grand Jury indicted appellant,

Marcus Green, on one count of murder with a firearm specification in violation of R.C.

2903.02 and R.C. 2941.145, and one count of tampering with evidence in violation of

R.C. 2921.12. Thereafter, the murder count was reduced to involuntary manslaughter

in violation of R.C. 2903.04.

{¶2} On November 3, 2000, appellant pled guilty to both counts. By judgment

entry filed November 8, 2000, the trial court sentenced appellant to a total term of

seventeen years in prison.

{¶3} On June 16, 2010, appellant filed a motion to withdraw his guilty pleas and

a motion to correct a void sentence and request for resentencing based upon a defect in

the imposition of postrelease control. By judgment entries filed July 6, 2010, the trial

court denied both motions.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "THE TRIAL COURT ERRED BY DISMISSING DEFENDANT-

APPELLANT'S MOTION TO CORRECT A VOID SENTENCE AND REQUEST FOR

RESENTENCING, WHERE THE TRIAL COURT INCORRECTLY STATED, AT

DEFENDANT-APPELLANT'S CHANGE OF PLEA AND SENTENCING HEARING AND

RECORDED IN THE JUDGMENT ENTRY THAT POST-RELEASE CONTROL WAS A

DISCRETIONARY PERIOD OF UP TO A MAXIMUM OF 5 YEARS CONTRARY TO

THE PROVISIONS OF R.C. 2967.28." Stark County, Case No. 2010CA00198 3

II

{¶6} "THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-

APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA WHERE THE NEGOTIATED

PLEA AGREEMENT WAS RENDERED NULL AND VOID, AS THE AGREED

SENTENCE AS STATED IN THE NEGOTIATED PLEA AGREEMENT TERMS AND

CONDITIONS WAS UNAUTHORIZED BY LAW AND THE SENTENCE IMPOSED BY

THE TRIAL COURT WAS OUTSIDE OF THE TERMS AND CONDITIONS, AS WELL

AS BEING UNAUTHORIZED BY LAW, IN ITSELF. THE PLEA AGREEMENT WOULD

BE UNENFORCEABLE AND IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS

OF DUE PROCESS AND EQUAL PROTECTION UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION."

I

{¶7} Appellant claims the trial court erred in denying his motion to correct a

void sentence and request for resentencing. We agree.

{¶8} "In 1996, the General Assembly imposed a duty on trial courts to notify an

offender at the sentencing hearing of the imposition of postrelease control and of the

authority of the parole board to impose a prison term for a violation; the General

Assembly also required that a court include any postrelease-control sanctions in its

sentencing entry. See former R.C. 2929.14(F) and former R.C. 2929.19(B)(3)(b)

through (d) and (B)(4), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7470, 7486-

7487." State v. Singleton,

,

.

{¶9} The Singleton court at paragraph one of the syllabus held, "[f]or criminal

sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose Stark County, Case No. 2010CA00198 4

postrelease control, trial courts shall conduct a de novo sentencing hearing in

accordance with decisions of the Supreme Court of Ohio." Appellant sub judice was

sentenced on November 8, 2000.

{¶10} In his motion to correct a void sentence and request for resentencing filed

June 16, 2010, appellant argued during his sentencing, the trial court erred in imposing

postrelease control because he was informed postrelease control was mandatory "up to

a maximum of 5 years" when in fact five years was the mandatory time:

{¶11} "The trial court in defendant's sentencing entry only journalized the post

release control period for 'maybe the Maximum term of five years.' (sic) on page (2) of

the sentencing entry. As required by R.C. 2967.28 the period for a first degree felony is

the maximum of five mandatory years, the notice given by the trial court indicates that

defendant can and would be given post release control by the parole board for any

period of 1, 2, 3 or 5 years of post release control which is contrary to law and therefore

void in this case."

{¶12} In the trial court's judgment entry on sentencing filed November 8, 2000,

postrelease control was imposed as follows:

{¶13} "The Court has further notified the defendant that post release control is

mandatory in this case up to a maximum of 5 years, as well as the consequences for

violating conditions of post release control imposed by the Parole Board under Revised

Code Section 2967.28. The defendant is ordered to serve as part of this sentence any

term of post release control imposed by the Parole Board, and any prison term for

violation of that post release control." Stark County, Case No. 2010CA00198 5

{¶14} Attached to this judgment entry is appellant's plea of guilty which is signed

by appellant and includes the following language:

{¶15} "I have been advised by my attorney and the court that in addition to my

sentence, a period of control or supervision by the Adult Parole Authority after my

release from prison is mandatory in this case. The control period may be a maximum

term of five years. A violation of any post-release control rule or condition can result in

a more restrictive sanction while released, an increased duration of supervision or

control, up to the maximum set out above and/or re-imprisonment even though I have

served the entire stated prison sentence imposed upon me by this court for all offenses

set out above. Re-imprisonment can be imposed in segments of up to 9 months but

cannot exceed a maximum of ½ of the total term imposed for all of the offenses set out

above. If I commit another felony while subject to this period of control or supervision I

may be subject to an additional prison term consisting of the maximum period of

unserved time remaining on post release control as set out above or 12 months

whichever is greater. This prison term must be served consecutively to any term

imposed for the new felony I am convicted of committing."

{¶16} There is no doubt that appellant was notified of mandatory postrelease

control and assented to it. However, appellant argues his sentence is void because he

was not informed that the mandatory term was five years as opposed to "up to" five

years. R.C. 2967.28(B)(1). We agree with appellant's argument. The trial court failed

to satisfy "our existing precedent - that it notify the offender of the mandatory nature of

the term of postrelease control and the length of that mandatory term and incorporate

that notification into its entry." State v. Bloomer,

,

, Stark County, Case No. 2010CA00198 6

¶69.1 As such, appellant's sentence is void. See, State v. Jordan,

,

; State v. Bezak,

,

; State v.

Simpkins,

,

.

{¶17} Upon review, we find the trial court erred in denying appellant's motion to

correct a void sentence and request for resentencing. Appellant is entitled to a de novo

sentencing hearing as mandated in

We note the new sentencing

hearing "is limited to proper imposition of postrelease control." State v. Fischer,

,

, paragraph two of the syllabus.

{¶18} Assignment of Error I is granted.

II

{¶19} Appellant claims the trial court erred in denying his Crim.R. 32.1 motion to

withdraw his guilty plea as postrelease control was not included in the plea agreement.

We disagree.

{¶20} Crim.R. 32.1 governs withdrawal of guilty plea and states "[a] motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed;

but to correct manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea." The right to withdraw

a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith (1977),

. In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983),

.

1 We note in State v. Miller, Stark App. No. 2010CA00175,

, this court, on nearly identical facts, found such an error to be harmless. Stark County, Case No. 2010CA00198 7

{¶21} Although appellant now argues the plea agreement omitted any reference

to postrelease control (Appellant's Brief at 9-12), in his motion to withdraw guilty plea

filed June 16, 2010, appellant argued he was prejudiced because he was not properly

informed of postrelease control:

{¶22} "In the instant case, the defendant's plea agreement (at pg. 2) states that

'the control period may be a maximum of five years.' (emphasis added). This

notification in the agreed upon sentence constitutes a notification of a discretionary

period of post release control for a period of 1, 2, 3, or 5, years of supervised released

by the parole authority after defendant's release from incarceration.

{¶23} "In fact, R.C. 2967.28 (B)(1) requires that for a first degree felony the term

of post release control is for a period of mandatory five years, thus, the agreed upon

sentence did not comply with the maximum penalty component of Crim. Rule 11

(C)(2)(a) and R.C. 2967.28 (B)(1). See State v. Cleveland, (9th dist.)

.

{¶24} "***

{¶25} "When defendant's agreed upon sentence only informed him of a

discretionary period of post release control, it failed to comply with the mandates of

Crim. Rule 11 (C)(2)(a) and R.C. 2967.28 (B)(1). Thus, the defendant did not enter his

plea knowingly, intelligently or voluntarily, because he was not fully informed of the

maximum penalty involved in his case, before he pleaded guilty to the amended

charges."

{¶26} In State v. Clark,

,

, ¶30-32, the

Supreme Court of Ohio explained the following: Stark County, Case No. 2010CA00198 8

{¶27} "If a trial court fails to literally comply with Crim.R. 11, reviewing courts

must engage in a multitiered analysis to determine whether the trial judge failed to

explain the defendant's constitutional or nonconstitutional rights and, if there was a

failure, to determine the significance of the failure and the appropriate remedy.

{¶28} "When a trial judge fails to explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid 'under a presumption that it

was entered involuntarily and unknowingly.' Griggs,

, 2004-Ohio-

4415,

, ¶12; see also Nero, 56 Ohio St.3d at 107,

, citing

Boykin, 395 U.S. at 242-243,

,

. However, if 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. Nero,

,

.

{¶29} "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,

,

, citing State v. Stewart (1977),

,

,

, and Crim.R. 52(A); see also Sarkozy,

,

,

. The test for prejudice is 'whether the Stark County, Case No. 2010CA00198 9

plea would have otherwise been made.'

, citing Stewart,

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. See

Sarkozy,

,

,

, paragraph two of the

syllabus. 'A complete failure to comply with the rule does not implicate an analysis of

prejudice.' Id. at ¶22."

{¶30} As cited under Assignment of Error I, postrelease control language was

included in the plea agreement, albeit incorrectly. We note a transcript of the November

3, 2000 plea/sentencing hearing was not provided for our review.

{¶31} Appellant has not demonstrated that but for the trial court's error, he would

not have entered the guilty plea and gone to trial instead. Appellant has not shown "a

prejudicial effect." We do not find a manifest injustice mandating a withdrawal of

appellant's guilty plea.

{¶32} Upon review, we find the trial court did not abuse its discretion in denying

appellant's Crim.R. 32.1 motion to withdraw his guilty plea.

{¶33} Assignment of Error II is denied. Stark County, Case No. 2010CA00198 10

{¶34} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.

_s/ Sheila G. Farmer__________________

_s/ W. Scott Gwin____________________

_s/ Julie A. Edwards__________________

JUDGES

SGF/sg 203 Stark County, Case No. 2010CA00198 11

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MARCUS A. GREEN : : Defendant-Appellant : CASE NO. 2010CA00198

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed in part and

reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion. Costs to be divided equally between the parties.

s/ Sheila G. Farmer__________________

_s/ W. Scott Gwin____________________

_s/ Julie A. Edwards__________________

JUDGES Stark County, Case No. 2010CA00198 12