[Cite as State v. Brown,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO : C.A. CASE NOS. 24520 Plaintiff-Appellee : 24705

vs. : T.C. CASE NO. 2010-CR-3205

DAVID D. BROWN : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 20th day of January, 2012.

. . . . . . . . .

Timothy J. Cole, Assistant Prosecuting Attorney, Atty. Reg. No. 0084117, P.O. Box 972, 301 West Third Street, Dayton, OH 45422 Attorney for Plaintiff-Appellee

Scott N. Blauvelt, Atty. Reg. No. 0068177, 246 High Street, Hamilton, OH 45011 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} This appeal consolidates the issues in two separate

appeals filed by Defendant David D. Brown.

{¶ 2} Defendant entered a plea of guilty to unlawful sexual

conduct with a minor, R.C. 2907.04(A). Defendant also executed 2

a form waiving his right to trial and acknowledging his guilty

plea. Defendant was sentenced pursuant to law. A judgment of

conviction was journalized on February 11, 2011.

{¶ 3} On February 17, 2011, Defendant filed a pro se motion

to withdraw his guilty plea. The motion states, in pertinent part:

“I would like to take my charge to trial and be appointed a new

public defender so that I may have the opportunity to a fair trail

[sic] in an effort to prove that my charge is inaccurate.” (Dkt.

20.)

{¶ 4} The trial court had not ruled on his motion to withdraw

his guilty plea when, on March 7, 2011, Defendant filed a notice

of appeal from the February 11, 2007 judgment of conviction. That

appeal was docketed as Case No. 24520.

{¶ 5} Defendant filed a motion in Case No. 24520, asking that

it be remanded for the limited purpose of allowing the trial court

to rule on his motion to withdraw his guilty plea. Defendant’s

motion was granted.

{¶ 6} The trial court held a hearing to determine Defendant’s

motion to withdraw his plea. Defendant argued that he is innocent

of the charge to which he pled guilty and, when he entered his

plea, believed he would be given probation instead of the five-year

prison term the court had imposed.

{¶ 7} The trial court overruled Defendant’s motion to withdraw 3

his guilty plea on May 25, 2011. Defendant filed a notice of appeal

form that final order, which was docketed as Case No. 24705.

{¶ 8} Case Nos. 24520 and 24705 have been consolidated for

purposes of our appellate review.

FIRST ASSIGNMENT OF ERROR

{¶ 9} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT DAVID

D. BROWN IN ACCEPTING A GUILTY PLEA THAT WAS NOT KNOWING,

INTELLIGENT AND VOLUNTARY.”

{¶ 10} Before the court accepted Defendant’s guilty plea, the

court advised Defendant that “the court could also sentence you

to a prison term of one, two, three, four, or five years, plus

a mandatory period of post-release control for a period of five

years.” (Tr. 5.) When the court asked Defendant whether he

understood that and other potential punishments the court had

explained, Defendant responded: “Yes, ma’am.” (Tr. 6.)

{¶ 11} The “Waivers and Plea” form Defendant executed contains

a blank space regarding any mandatory postrelease control that

will be imposed for the particular offense or offenses concerned.

In the form Defendant signed (Dkt. 13), the numeral “3" was

inserted to indicate the number of years of mandatory postrelease

control to which Defendant would be subject. At the outset of

the plea hearing, when the court asked Defendant whether he was

“able to read and understand that plea form,” Defendant replied: 4

“Yes, ma’am.” (Tr. 4.)

{¶ 12} Defendant contends that the variance between the five

years of postrelease control which the court pronounced, which

was correct, and the three years of postrelease control stated

in the “Waivers and Plea” form he signed is a defect that prevents

his plea of guilty to unlawful sexual conduct with a minor from

being knowing, intelligent, and voluntary.

{¶ 13} In determining whether to accept a guilty plea, the trial

court must determine whether the defendant knowingly,

intelligently, and voluntarily entered the plea. State v. Johnson

(1988),

, at syllabus. If a defendant’s guilty

plea is not knowing and voluntary, it has been obtained in violation

of due process and is void. Boykin v. Alabama (1969),

,

. In order for a plea to be given knowingly

and voluntarily, the trial court must follow the mandates of Crim.R.

11(C).

{¶ 14} Crim.R. 11(C)(2) provides:

{¶ 15} “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:

{¶ 16} “(a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and 5

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.

{¶ 17} “(b) Informing the defendant of and determining that

the defendant understands the effect of the plea of guilty or no

contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

{¶ 18} “(c) Informing the defendant and determining that the

defendant understands that by the plea the defendant is waiving

the rights to jury trial, to confront witnesses against him or

her, to have compulsory process for obtaining witnesses in the

defendant’s favor, and to require the state to prove the defendant’s

guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.”

{¶ 19} The constitutional rights that are waived by a

defendant’s plea of guilty or no contest are the right to confront

his accusers, the privilege against self-incrimination, and the

right to a jury trial. State v. Ballard (1981),

. In State v. Clark,

,

, at

¶31-32, the Supreme Court explained the effects of failing to comply

with Crim.R. 11(C):

{¶ 20} “When a trial judge fails to explain the constitutional

rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest 6

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,

,

.

{¶ 21} “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,

,

,

. 7

The test for prejudice is ‘whether the 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.”

{¶ 22} The facts of the present case constitute a situation

in which the trial court partially complied with Crim.R. 11 with

regard to a nonconstitutional right. Clark. It is undisputed

that the trial court correctly notified Defendant of the

mandatory, five-year period of post-release control during the

plea colloquy. What the trial court failed to do, however, is

reconcile its correct verbal pronouncement with the erroneous

three-year period of post-release control stated on the plea form.

{¶ 23} The plea form used by the trial court is not mandated

by Crim.R. 11 or the statutes governing post-release control.

While the error contained on the form cannot be ignored, we believe

that the trial court’s correct oral explanation of the five-year

period of post-release control during the plea colloquy makes this

situation one of partial compliance with Crim.R. 11 with regard

to a nonconstitutional right rather than one of complete failure 8

to comply with Crim.R. 11 regarding that right. Therefore, in

order to succeed on his claim that his plea was not voluntary,

knowing, and intelligent, Defendant must demonstrate that he was

prejudiced by the trial court’s failure to correct the

misinformation on the plea form. Clark.

{¶ 24} Defendant has at no time claimed that he would not have

otherwise pled guilty if he had been made fully aware that the

three-year period of post-release control noted on the plea form

was incorrect. Therefore, Defendant has not shown that he was

prejudiced by the trial court’s failure to reconcile the plea form

with the plea colloquy. Clark; Nero.

{¶ 25} The first assignment of error is overruled.

SECOND ASSIGNMENT OF ERROR

{¶ 26} “THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PLAIN ERROR WHEN IT DENIED APPELLANT’S MOTION TO WITHDRAW HIS GUILTY

PLEA.”

{¶ 27} Defendant argues that the trial court erred in denying

his motion to withdraw his guilty plea when his guilty plea was

not knowing and voluntary, because the plea form noted a mandatory

three-year period of post-release control that was less than the

mandatory five-year period of post-release control to which he

was subject and ultimately sentenced. Defendant concedes that

he failed to raise this error in the trial court. The grounds 9

for his motion to withdraw his guilty plea were, instead, that

he was innocent.

{¶ 28} “An appellate court need not consider an error which

a party complaining of the trial court's judgment could have called,

but did not call, to the trial court's attention at a time when

such error could have been avoided or corrected by the trial court.”

State v. Williams (1977),

, paragraph one of

the syllabus. Defendant forfeited all but plain error by failing

to raise this argument before the trial court. State v. Payne,

,

,

, at ¶23.

{¶ 29} Rule 52(B) of the Ohio Rules of Criminal Procedure

permits appellate courts to take notice of plain errors, but such

notice is to be taken “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long,

,

(1978). Based on our review of the record, we conclude Defendant

has not established the necessary exceptional circumstances and

manifest miscarriage of justice.

{¶ 30} The second assignment of error is overruled.

THIRD ASSIGNMENT OF ERROR

{¶ 31} “APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL PURSUANT TO THE SIXTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.” 10

{¶ 32} Counsel’s performance will not be deemed ineffective

unless and until counsel’s performance is proved to have fallen

below an objective standard of reasonable representation and, in

addition, prejudice arises from counsel’s performance.

Strickland v. Washington (1984),

,

,

. To show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must affirmatively

demonstrate to a reasonable probability that were it not for

counsel’s errors, the result of the trial would have been different.

Id.; State v. Bradley (1989),

. Further, the

threshold inquiry should be whether a defendant was prejudiced,

not whether counsel’s performance was deficient. Strickland.

{¶ 33} As explained above, Defendant has failed to show that

he was prejudiced by the trial court’s failure to correct the error

on the plea form regarding the applicable period of mandatory

post-release control. Similarly, Defendant has failed to show

that he was prejudiced by his trial counsel’s failure to raise

the inconsistency to the trial court. Defendant nowhere alleged

that he would not otherwise have pled guilty had the plea form

stated a mandatory five-year period of post-release control rather

than a three-year period, or had his attorney or the trial court

brought the mistake to Defendant’s attention prior to his entry

of a guilty plea. 11

{¶ 34} Defendant argues that the trial court would have granted

his motion to withdraw his guilty plea had Defendant’s trial counsel

raised the error in the plea form at the May 20, 2011, hearing

on his motion. As explained in our discussion of the first

assignment of error, however, the inconsistency between the plea

form and the plea colloquy in this case would not have required

the trial court to grant Defendant’s motion to withdraw his guilty

plea. Clark,

, at ¶31-32.

{¶ 35} Defendant also argues that his trial counsel’s failure

to raise this error at the hearing on his motion to withdraw his

guilty plea prejudiced him at the appellate level by causing his

second assignment of error to be judged under a stricter, plain

error standard.

{¶ 36} Defendant did not file his motion to withdraw his guilty

plea until after he was sentenced. Consequently, the trial court

was not required to grant the motion unless Defendant could show

that the motion should be granted to correct a manifest injustice.

Crim.R. 32.1. Defendant has failed to show a manifest injustice.

{¶ 37} Without a showing of prejudice resulting from

deficiencies on the part of his trial counsel, Defendant cannot

succeed on his ineffective assistance of counsel claim. The third

assignment of error is overruled. The judgment of the trial 12

court will be affirmed.

FROELICH, J., And HALL, J., concur.

Copies mailed to:

Timothy J. Cole, Esq. Scott N. Blauvelt, Esq. Hon. Mary K. Huffman