[Cite as State v. Landgraf,

.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2014 CA 12

v. : T.C. NO. 13CR644

ERNEST LANDGRAF, JR. : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 12th day of December , 2014.

..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

CHARLES W. MORRISON, Atty. Reg. No. 0084368, 1105 Wilmington Avenue, Dayton, Ohio 45420 Attorney for Defendant-Appellant

.......... 2

FROELICH, P.J.

{¶ 1} Ernest Landgraf, Jr., pled guilty in the Clark County Court of Common Pleas

to theft of a motor vehicle, a fourth-degree felony; as part of the plea, the State dismissed

one count of breaking and entering. At the time of the offenses, Landgraf was on

post-release control related to a prior felony committed in Montgomery County. At

sentencing, the trial court imposed 18 months in prison for the theft, terminated Landgraf’s

post-release control in the Montgomery County case, and ordered him to serve a prison term

for the amount of time remaining on his post-release control, to be served consecutively to

the 18-month sentence.

{¶ 2} Landgraf appeals from his conviction, claiming that his plea was not made

knowingly, intelligently, and voluntarily, because he was not informed of the potential

additional, consecutive prison term that could be applied under R.C. 2929.141 for the

post-release control violation. For the following reasons, the trial court’s judgment will be

reversed, the plea will be vacated, and the matter will be remanded for further proceedings.

I. Procedural History

{¶ 3} In February 2012, Landgraf was convicted on his guilty plea in the

Montgomery County Court of Common Pleas of tampering with coin machines, a

fifth-degree felony. 1 State v. Landgraf, Montgomery C.P. No. 2011 CR 1475 (Feb. 22,

2012). The trial court in that case sentenced him to seven months in prison and notified

1 In September 2014, the trial court ordered the record in this case to be supplemented with a certified copy of the termination entry from State v. Landgraf, Montgomery County C.P. No. 2011 CR 1475. Our understanding of what occurred in Landgraf’s Montgomery County case is based on that judgment entry and information in the presentence investigation report for this case. 3

him that, at the discretion of the parole board, he may be placed on post-release control for

three years upon his release from prison. The judgment entry further indicated that

Landgraf was notified of the consequences of violating post-release control, including that

“[i]f the violation of the [post-release control] sanction is a felony, in addition to being

prosecuted and sentenced for the new felony, the defendant may receive from the court a

prison term for the violation of the post-release control itself.” Landgraf served his prison

term and was placed on three years of post-release control.

{¶ 4} On September 4, 2013, while on post-release control, Landgraf broke into

Dan McFaddon Auto Sales in New Carlisle, Ohio, and took a 1999 Dodge Dakota from the

lot. Landgraf was indicted for breaking and entering and theft of a motor vehicle arising

from that incident.

{¶ 5} On January 6, 2014, Landgraf pled guilty to theft of a motor vehicle, in

exchange for which the State dismissed the breaking and entering charge. The plea form

indicated that Landgraf faced a maximum prison term of 18 months and a maximum fine of

$5,000. The plea form further stated, in part, “I understand that if I am now on felony

probation, parole, under a community control sanction, or under post release control from

prison, this plea may result in revocation proceedings and any new sentence could be

imposed consecutively. I know any prison term stated will be served without good time

credit.”

{¶ 6} At the plea hearing, the trial court did not inquire whether Landgraf was on

community control, parole, or post-release control, and no mention was made of the fact that

Landgraf was on post-release control at the time of the offense. The trial court did ask 4

Landgraf if he had a chance to review the plea form with his attorney and if he understood

everything in it. Landgraf responded affirmatively, and he acknowledged signing the plea

form.

{¶ 7} The court orally informed Landgraf that theft of a motor vehicle carried a

maximum penalty of 18 months in prison and a $5,000 fine. Landgraf indicated that he

understood. The court also told Landgraf that, if he were sentenced to prison for the theft,

he could be placed on post-release control for three years and of the consequences of

violating post-release control. Landgraf stated he understood this, as well. The court

explained the constitutional rights that he was waiving by entering a guilty plea and inquired

whether he was entering his plea voluntarily. The court found that Landgraf had entered his

plea knowingly, intelligently, and voluntarily, and found him guilty on his guilty plea. The

court ordered a presentence investigation.

{¶ 8} The trial court sentenced Landgraf on January 27, 2014. At that time, the

prosecutor highlighted Landgraf’s criminal history and told the court that it “appears” that

Landgraf was on post-release control at the time of the offense and continued to be on

post-release control. The presentence investigation report stated, “It was verified from the

Adult Parole Authority Parole Officer * * * that the defendant has been on PRC since

September, 2012 for a period of 3 years in Case No. 11 CR 1475 from Montgomery

County.” The state argued that Landgraf was “not a good candidate for community

control.”

{¶ 9} The trial court sentenced Landgraf to the maximum 18 months in prison and

ordered him to pay restitution and court costs. The court also ordered Landgraf’s 5

post-release control in Montgomery C.P. No. 2011 CR 1475 to be terminated and that he

serve “a prison term for the amount of time you have remaining on post-release control,” to

be served consecutively to the 18-month sentence. The remaining portion of his

post-release control appears to have been 23 months.

II. Voluntariness of Plea

{¶ 10} Landgraf’s sole assignment of error states: “The trial court erred in accepting

appellant’s guilty plea as it was not knowingly, intelligently and voluntarily tendered.”

{¶ 11} An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was made knowingly, intelligently, and voluntarily.

State v. Russell, 2d Dist. Montgomery No. 25132,

. “If a defendant’s

guilty plea is not knowing and voluntary, it has been obtained in violation of due process and

is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705,

, citing 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). Brown at ¶ 13.

{¶ 12} Crim.R. 11(C)(2) requires the court to address the defendant personally and

(a) determine that the defendant is making the plea voluntarily, with an understanding of the

nature of the charges and the maximum penalty, and, if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions; (b) inform the

defendant of and determine that the defendant understands the effect of the plea of guilty and

that the court, upon acceptance of the plea, may proceed with judgment and sentencing; and

(c) inform the defendant and determine that he understands that, by entering the plea, the 6

defendant is waiving the rights to a jury trial, to confront witnesses against him, to have

compulsory process for obtaining witnesses, and to require the State to prove his guilt

beyond a reasonable doubt at a trial at which he cannot be compelled to testify against

himself. State v. Brown, 2d Dist. Montgomery No. 21896,

.

{¶ 13} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark,

,

,

.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero,

,

(1990). “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications of his

plea and the rights he is waiving.”

In contrast, the trial court must strictly comply with

Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at

¶ 31.

{¶ 14} Furthermore, when non-constitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney,

,

,

. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15.

{¶ 15} Landgraf argues that the trial court’s Crim.R. 11 colloquy was deficient in

that the trial court failed to fully explain the maximum penalties that he faced. Specifically,

Landgraf asserts that the trial court was required to explain that he was “immediately subject

to an additional, consecutive prison term as a consequence of pleading guilty to the felony 7

theft offense while under post release control.” He further states that the language of plea

form failed to adequately inform him of the possible maximum penalty he faced under R.C.

2929.141.

{¶ 16} R.C. 2929.141 addresses sentencing on a felony committed by a person

under post-release control at the time of the offense. It provides, in relevant part:

(A) Upon the conviction of or plea of guilty to a felony by a person on

post-release control at the time of the commission of the felony, the court

may terminate the term of post-release control, and the court may do either of

the following regardless of whether the sentencing court or another court of

this state imposed the original prison term for which the person is on

post-release control:

(1) In addition to any prison term for the new felony, impose a prison

term for the post-release control violation. The maximum prison term for

the violation shall be the greater of twelve months or the period of

post-release control for the earlier felony minus any time the person has spent

under post-release control for the earlier felony. In all cases, any prison term

imposed for the violation shall be reduced by any prison term that is

administratively imposed by the parole board as a post-release control

sanction. A prison term imposed for the violation shall be served

consecutively to any prison term imposed for the new felony. The

imposition of a prison term for the post-release control violation shall

terminate the period of post-release control for the earlier felony. 8

(2) Impose a sanction under sections 2929.15 to 2929.18 of the

Revised Code for the violation that shall be served concurrently or

consecutively, as specified by the court, with any community control

sanctions for the new felony.

{¶ 17} We recently vacated a defendant’s plea and reversed his conviction where

the trial court failed to inform the defendant that, if a prison term were imposed for the new

felony and the court elected to terminate his post-release control, the time must be served

consecutively. State v. Branham, 2d Dist. Clark No. 2013 CA 49,

.

{¶ 18} In Branham, the defendant was on post-release control for a rape conviction

when he committed a new felony, and he pled guilty to a reduced charged of gross sexual

imposition, a fourth-degree felony. Identical to Landgraf’s plea form, the plea form in

Branham included a statement that “I understand that if I am now * * * under post-release

control from prison, this plea may result in revocation proceedings and any new sentence

could be imposed consecutively.” The plea agreement in Branham also included the State’s

promise not to take any action on the post-release control violation.

{¶ 19} At the plea hearing, Branham acknowledged that he was on post-release

control. The court inquired whether Branham had signed the plea form, had read and

discussed it with his attorney before signing it, and had understood it; Branham stated that he

had. The court explained to Branham that the State did not speak for the parole board when

it agreed to take no action on the post-release control violation, and the court told Branham

that it could still sentence him for the post-release control violation. Branham stated that he

understood. 9

{¶ 20} On appeal, Branham argued that the trial court erred in imposing consecutive

sentences for the new felony and the post-release control violation. We agreed on the

ground that the trial court had failed to inform Branham during the plea colloquy that,

pursuant to the explicit language in R.C. 2929.141(A)(1), if it revoked his post-release

control, the imposition of consecutive sentences for the violation was mandatory upon

imposition of a prison term for the new felony. Branham at ¶ 12.

{¶ 21} We rejected the State’s assertion that the plea form adequately informed

Branham that the court would impose consecutive sentences upon the termination of his

post-release control. We stated:

Significantly, although the plea form signed by Branham included a provision

which informed him of the effect that his PRC violation could have on

sentencing, it did not contain any language putting him on notice that

consecutive sentences were mandatory upon a prison sentence on the GSI.

Rather, the general provision in the plea form merely states that the trial court

“could” impose consecutive sentences in the event of a violation of felony

probation, parole, community control sanction, or post-release control from

prison. The use of the word “could” in this context is misleading.

Branham at ¶ 13. We thus concluded that the trial court “not only should have told

Branham that it was not bound by the State’s recommendation, but also if a new prison term

was imposed [on the gross sexual imposition] and the court elected to revoke his PRC, the

time must be served consecutively. The trial court did not have the discretion to use the

word ‘could’ as the language in the plea form suggests.” Id. at ¶ 14. 10

{¶ 22} Landgraf raises these same issues in the context of the voluntariness of his

plea, and we find Branham to be relevant to our resolution of that issue. In this case, the

trial court did not inquire at the plea hearing whether Landgraf was on post-release control at

the time of his offense, and the trial court did not address any of the consequences that

Landgraf faced under R.C. 2929.141 if Landgraf were to plead guilty to a new felony.

{¶ 23} In our view, Crim.R. 11 required the trial court to inform Landgraf that, if

he pled guilty to theft of a motor vehicle (a new felony), the court could terminate his

previously-imposed post-release control and, if a prison term were imposed for the theft of a

motor vehicle charge, the trial court could also impose a prison term for the post-release

control violation, which would be served consecutively to the prison term imposed on the

new felony (theft of a motor vehicle). In addition, the trial court should have notified

Landgraf of the maximum prison term he faced for violating the post-release control

imposed by the Montgomery County court.

{¶ 24} The plea form was insufficient to notify Landgraf of the consequences of

pleading guilty to a felony committed while under post-release control. The plea form

stated that “this plea may result in revocation proceedings and any new sentence could be

imposed consecutively. I know any prison term stated will be served without good time

credit.” (Emphasis added.) As we stated in Branham, this language is misleading in that it

suggests that the trial court had the discretion whether to impose a consecutive sentence for

the post-release control violation.

{¶ 25} Finally, the State cites to the termination entry in Landgraf’s Montgomery

County case (for which post-release control was imposed) to support its assertion that 11

Landgraf had sufficient notice of the consequences of violating community control. The

termination entry stated, in part: “If the violation of the [post-release control] sanction is a

felony, in addition to being prosecuted and sentenced for the new felony, the defendant may

receive from the court a prison term for the violation of the post-release control itself.” The

notification in Montgomery C.P. No. 2011 CR 1475 did not indicate the potential maximum

prison term for the post-release control violation or that the prison terms for the new felony

and the violation would be consecutive sentences. Moreover, the notification provided in

Montgomery C.P. No. 2011 CR 1475 occurred nearly two years before Landgraf was

sentenced in this case.

{¶ 26} Landgraf’s assignment of error is sustained.

III. Conclusion

{¶ 27} The judgment of the trial court is reversed, the plea is vacated, and this

matter is remanded for further proceedings.

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HALL, J., concurring:

{¶ 28} I disagree with the analysis about the nature of a plea with the potential of

mandatory consecutive sentencing for committing a new felony violation while on

post-release control. Landgraf at least twice was notified that a felony violation of

post-release control (PRC) could result in an additional sentence. First, the entry imposing

PRC in Montgomery County C.P. No. 2011 CR 1475 informed him that if he committed a

new felony while on supervision, “in addition to being prosecuted and sentenced for a new

felony, the defendant may receive from the court a prison term for the violation of the 12

post-release control itself.” Second, the plea form in this case stated: “I understand that if I

am now on felony probation, parole, under a community control sanction, or under post

release control from prison, this plea may result in revocation proceedings and any new

sentence could be imposed consecutively.” The plea form, although arguably incomplete, is

not incorrect or misleading. In an attempt to cover the potential sentencing permutations for

different kinds of supervision where an additional sentence may be consecutive (i.e.,

community control), the form encompasses PRC where, if imposed, the additional sentence

must be consecutive. Admittedly, it would be more clear if the form, and court colloquy,

included notification that in the case of PRC an additional sentence, if imposed, must be

consecutive. But one who knowingly accepts the risk that a discretionary potential sentence

may be imposed consecutively should not be heard to complain when it is imposed

consecutively.

{¶ 29} However, I join in the reversal, vacation of the plea, and remand because this

court previously has decided the case of State v. Branham, 2d Dist. Clark No. 2013 CA 49,

, which held that if a trial court imposes an additional prison term for a PRC

violation then it is required to have informed the defendant at the time of his plea that the

additional sentence must be served consecutively. Id. at ¶ 14. That is the law in this district,

and the doctrine of stare decisis dictates adherence to it.

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WELBAUM, J., concurring:

{¶ 30} I concur with Judge Froelich and Judge Hall that State v. Branham, 2d Dist.

Clark No. 2013 CA 49,

, is controlling. For that reason only, I join in the 13

judgment of the court. I further concur with the analysis of Judge Hall’s concurring

opinion.

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Copies mailed to:

Ryan A. Saunders Charles W. Morrison Hon. Douglas M. Rastatter