[Cite as State v. Hastings,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 27212 and 27213 : v. : Trial Court Case Nos. 2014-CR-3848 : and 2016-CR-910 MATTHEW T. HASTINGS : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

...........

OPINION

Rendered on the 2nd day of February, 2018.

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MATHIAS H. HECK, JR., by ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellant

.............

WELBAUM, P.J. -2-

{¶ 1} Defendant-appellant, Matthew T. Hastings, appeals from the conviction and

sentence he received in the Montgomery County Court of Common Pleas after pleading

guilty to aggravated burglary and vandalism in Case No. 2014-CR-3848, and attempted

burglary, aggravated burglary, and felonious assault in Case No. 2016-CR-910. In

support of his appeal, Hastings claims that his guilty plea in Case No. 2016-CR-910 is

invalid because the trial court indicated at his plea hearing that post-release control for

the attempted burglary charge was discretionary when it was in fact mandatory. For the

reasons outlined below, we conclude that Hastings’ guilty plea was not invalidated by the

trial court’s misstatement at the plea hearing; therefore, the judgment of the trial court will

be affirmed. However, the matter will be remanded for the sole purpose of entering a

nunc pro tunc order correcting the sentencing entry in Case No. 2014-CR-3848 to reflect

the correct terms of post-release control that were imposed at the sentencing hearing.

Facts and Course of Proceedings

{¶ 2} On July 20, 2016, Hastings pled guilty in Case No. 2014-CR-3848 to one

count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony of the first degree,

and one count of vandalism of property in violation of R.C. 2909.05(A), a felony of the

fourth degree. Hastings also pled guilty in Case No. 2016-CR-910 to one count of

attempted burglary in violation of R.C. 2923.02(A) and R.C. 2911.12(A)(2), a felony of the

third degree; one count of aggravated burglary in violation of R.C. 2911.11(A)(1), a felony

of the first degree; and one count of felonious assault in violation of R.C. 2903.11(A)(2),

a felony of the second degree. As part of a plea agreement, the parties agreed that -3-

Hastings’ aggregate prison sentence would not exceed 15 years.

{¶ 3} At Hastings’ plea hearing, the trial court made all of the advisements required

by Crim.R. 11. When the trial court advised Hastings of the maximum possible penalty

he faced for each of his offenses, the trial court stated the following with regards to post-

release control:

Sir, upon completing any prison sentence, I do need to tell you that you will

be required to serve a period of five years post-release control on the

felonies of the first degree. You’ll be required to serve a period of three

years on the felony of the second degree. And you may be required to

serve a period of three years post-release control on the remaining

offenses.

(Emphasis added.) Plea Hearing Trans. (July 20, 2016), p. 7.

{¶ 4} The trial court’s statement that Hastings “may be required to serve a period

of three years post-release control on the remaining offenses” encompassed Hastings’

third-degree-felony charge of attempted burglary in Case No. 2016-CR-910.

Accordingly, the trial court effectively indicated that the attempted burglary charge carried

a discretionary term of post-release control.

{¶ 5} The plea form signed by Hastings, however, indicates that the attempted

burglary charge carried a three-year mandatory term of post-release control. The

discrepancy between the post-release control notification in the plea form and the trial

court’s advisement at the plea hearing went unnoticed by the parties. Accordingly, the

trial court accepted Hastings’ guilty pleas in both cases and scheduled the matter for

sentencing. -4-

{¶ 6} On August 3, 2016, the trial court imposed sentences for both Case Nos.

2014-CR-3848 and 2016-CR-910. In Case No. 2014-CR-3848, the trial court sentenced

Hastings to a prison term of 11 years for aggravated burglary and a concurrent prison

term of 18 months for vandalism. In Case No. 2016-CR-910, the trial court sentenced

Hastings to 36 months in prison for attempted burglary, 11 years in prison for aggravated

burglary, and 8 years in prison for felonious assault, all to be served concurrently. The

trial court also ordered the sentences in Case No. 2014-CR-3848 to be served

concurrently with the sentences in Case No. 2016-CR-910, for an aggregate prison term

of 11 years.

{¶ 7} At the sentencing hearing and in the corresponding sentencing entry, the trial

court advised Hastings that for Case No. 2016-CR-910, his attempted burglary and

felonious assault offenses each carried a three-year mandatory term of post-release

control, while his aggravated burglary offense carried a five-year mandatory term of post-

release control. For Case No. 2014-CR-3848, the trial court advised Hastings at the

sentencing hearing that he would be required to serve a five-year mandatory term of post-

release control for aggravated burglary and a three-year discretionary term of post-

release control for vandalism. However, these terms of post-release control were

inadvertently flipped in the corresponding sentencing entry. Accordingly, the sentencing

entry for Case No. 2014-CR-3848 provides that a three-year discretionary term of post-

release control applies to the aggravated burglary offense and a five-year mandatory term

of post-release control applies to the vandalism offense.

{¶ 8} On August 5, 2016, Hastings filed a notice of appeal from his conviction and

sentence in both Case Nos. 2014-CR-3848 and 2016-CR-910. Following the -5-

appointment of counsel, the two cases were consolidated for appeal. On December 12,

2016, Hastings’ appellate counsel filed a brief under the authority of Anders v. California,

,

,

(1967), indicating that there were no issues

with arguable merit to present on appeal.

{¶ 9} On April 3, 2017, we rejected Hastings’ Anders brief after determining that

an appealable issue existed concerning the validity of Hastings’ guilty plea in Case No.

2016-CR-910. We found that the validity of the plea was at issue because the trial court

advised Hastings at the plea hearing that post-release control for his third-degree-felony

offense of attempted burglary was discretionary, when in fact, the offense is an “offense

of violence” for which a three-year mandatory term of post-release control applies. See

R.C. 2901.01(A)(9)(a) and (d); R.C. 2967.28(B)(3). As a result, we held that Hastings

should be given the benefit of having counsel argue on his behalf as to whether the trial

court’s misstatement at the plea hearing amounts to a complete or partial failure to comply

with Crim.R. 11, and if necessary, whether the statement resulted in any prejudice that

requires the vacation of his guilty plea.

{¶ 10} We also found that the trial court’s sentencing entry in Case No. 2014-CR-

3848 improperly advised Hastings regarding post-release control since it flipped the terms

of post-release control that applied to the aggravated burglary and vandalism offenses.

However, we concluded that the post-release control error in the sentencing entry could

be corrected with a nunc pro tunc order since the trial court imposed the proper terms of

post-release control at the sentencing hearing. See State ex rel. Womack v. Marsh,

,

,

, ¶ 14-15; State v. Qualls,

,

,

, ¶ 30. -6-

{¶ 11} Based on the aforementioned errors, we appointed new appellate counsel

for Hastings and ordered counsel to file an appellate brief on Hastings’ behalf framing the

necessary assignments of error arising from the aforementioned issues, as well as any

other issues that counsel may deem appropriate. Thereafter, Hastings’ newly appointed

counsel filed an appellate brief raising a single assignment of error, which is now ripe for

review.

Assignment of Error

{¶ 12} Hastings’ sole assignment of error is as follows:

THE TRIAL COURT’S MISSTATEMENT AT THE PLEA HEARING IN

CASE NUMBER 2016-CR-910 REGARDING POST RELEASE CONTROL

FOR ATTEMPTED BURGLARY AMOUNTS TO A COMPLETE OR

PARTIAL FAILURE TO COMPLY WITH RULE 11(C)(2)(a) OF THE OHIO

RULES OF CRIMINAL PROCEDURE WHICH REQUIRES VACATION OF

THE GUILTY PLEA AND RESULTING SENTENCE.

{¶ 13} Under his sole assignment of error, Hastings contends that his guilty plea

in Case No. 2016-CR-910 is invalid and should be vacated because the trial court

erroneously advised him at the plea hearing that post-release control for the charge of

attempted burglary was discretionary when it was in fact mandatory.

{¶ 14} In order to be constitutionally valid and comport with due process, a guilty

plea must be entered knowingly, intelligently, and voluntarily. State v. Bateman, 2d Dist.

Champaign No. 2010CA15,

, citing Boykin v. Alabama,

,

,

(1969). “In order for a plea to be knowing, intelligent, and -7-

voluntary, the trial court must comply with Crim.R. 11(C).” (Citation omitted.) State v.

Russell, 2d Dist. Clark No. 10-CA-54,

. “Crim.R. 11(C) governs the

process that a trial court must use before accepting a felony plea of guilty or no contest.”

State v. Veney,

,

,

. “By following

this rule, a court ensures that the plea is knowing, intelligent, and voluntary.” State v.

Cole, 2d Dist. Montgomery No. 26122,

, citing State v. Redavide,

2d Dist. Montgomery No. 26070,

, ¶ 12.

{¶ 15} Pursuant to Crim.R. 11(C)(2)(a), the court must determine “that the

defendant is making the plea voluntarily, with understanding of the nature of the charges

and 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.” When post-release control applies, the trial court is required to inform the

defendant of its applicability due to this rule. State v. Threats,

,

, ¶ 21 (7th Dist.), citing State v. Sarkozy,

,

,

.

{¶ 16} Unlike the advisements required in Crim.R. 11(C)(2)(c), which involve

constitutional rights and necessitate strict compliance by the trial court, the non-

constitutional advisements in Crim.R. 11(C)(2)(a) only require substantial compliance.

Cole at ¶ 12, citing State v. Nero,

,

(1990). Under

the substantial compliance 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.” State v. Clark,

,

,

, -8-

¶ 31, quoting

.

{¶ 17} If there is no substantial compliance with regard to a non-constitutional right,

the reviewing court is to ascertain whether there was partial compliance or a total failure

to comply with the rule. Id. at ¶ 32. If there is partial compliance, the plea cannot be

vacated unless the defendant shows that he was prejudiced. Id. “The test for prejudice

is ‘whether the plea would have otherwise been made.’ ” Id., quoting

.

(Other citation omitted.) “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.”

citing Sarkozy at paragraph two of the syllabus. “ ‘A complete

failure to comply with the rule does not implicate an analysis of prejudice.’ ”

quoting

Sarkozy at ¶ 22.

{¶ 18} We have held that “if a trial court fails to reconcile its correct oral statement

on the length of post-release control with an incorrect statement on post-release control

in a plea form, the trial court only partially complies with Crim.R. 11.” State v. Lockard,

2d Dist. Clark No. 2014-CA-152,

, citing State v. Brown, 2d Dist.

Montgomery Nos. 24520, 24705,

. (Footnote omitted.) Under that

circumstance, the defendant is required to demonstrate that he was prejudiced by the

incorrect information in order to vacate his plea. Brown at ¶ 23.

{¶ 19} In contrast, we have found no substantial compliance and no need to

undergo a prejudice analysis where the plea form contained an abbreviated, but generally

correct recitation of the incarceration consequences of violating post-release control, but

the trial court affirmatively misstated those consequences at the plea hearing. State v.

Wilborn, 2d Dist. Montgomery No. 25581,

. In Wilborn, the trial -9-

court affirmatively misstated that if the defendant were to violate post-release control, he

would not be subject to additional incarceration once he completed his mandatory ten-

year prison sentence. Id. at ¶ 17. We rejected the State’s argument that the trial court

partially complied with Crim.R. 11 despite this misstatement. Id. at ¶ 15-17. In so

holding, we distinguished a mere omission in a trial court’s notification concerning post-

release control from an affirmative misstatement. Id. at ¶ 17, citing State v. Ramey, 2d

Dist. Montgomery No. 24944,

. Specifically, we explained that

“[a]n affirmative mis-statement by the trial court is more likely to mislead a defendant,

since it may override correct information the defendant may have obtained from other

sources. A defendant may reasonably conclude that the trial court is a more authoritative

source of information relating to the consequences of his plea than any other source.”

{¶ 20} Hastings relies heavily on Wilborn for the proposition that the trial court’s

misstatement in this case amounts to a complete failure to comply with Crim.R. 11, which

obviates the need to establish prejudice to vacate his guilty plea. However, unlike

Wilborn, the trial court in this case merely indicated that post-release control for Hastings’

attempted burglary charge was discretionary when it was in fact mandatory. Despite the

trial court’s misstatement, Hastings was nevertheless put on notice that he would be

required to serve a term of post-release control for attempted burglary, whereas in

Wilborn, the defendant was completely misadvised as to the consequences for violating

post-release control. Accordingly, we find that the trial court’s misstatement is

distinguishable from the misstatement in Wilborn.

{¶ 21} The present case is more analogous to State v. Knox, 2d Dist. Montgomery -10-

No. 25774,

wherein we held the following:

[T]he trial court inaccurately informed Knox, at the time of his plea, that the

mandatory term of his post-release control was discretionary, when in fact

it was mandatory for Knox’s Burglary offenses, which violated R.C.

2911.12(A)(3). R.C 2967.28(B) specifically requires a trial court to include

a period of post-release control for third-degree felonies that constitute an

“offense of violence.” R.C. 2901.01(A)(9)(a), which identifies offenses of

violence, specifically includes a violation of R.C. 2911.12(A)(3). At the

sentencing hearing, the trial court also incorrectly stated that post-release

control was discretionary, when in fact it was mandatory for the Burglary

offenses in violation of R .C. 2911.12(A)(3). The termination entry conflicts

with the statements made at the plea and sentencing hearing because it

provides that the convictions for Burglary offenses carried mandatory terms

for post-release control, and that post-release control was discretionary for

the two third-degree felony convictions. It has been held that partial

compliance with Crim. R. 11 is established when the trial court discusses

post-release control at the plea hearing but misinforms the defendant as to

whether post-release control is mandatory or discretionary, as long as the

defendant subjectively understands the implications of his plea and the

rights he is waiving. State v. Mugrage, 9th Dist. Summit No. 26062, 2012-

Ohio-4802, ¶ 15; State v. McMahon, 12th Dist. Fayette No. CA2009-06-008,

[2010]-Ohio-2055, ¶ 22. In the case before us, Knox repeatedly

acknowledged that he understood the effects of his plea, and after further -11-

explanation of post-release control, he agreed that he understood it.

Based on this record, we conclude that the trial court partially complied with

Crim. R. 11, by informing Knox that he could be placed on post-release

control.

(Emphasis added.) Knox at ¶ 11.

{¶ 22} We further held in Knox that:

When partial compliance is met, the defendant must be able to show that

he was prejudiced by the error to such an extent that he would not have

entered the plea if accurate consequences of his plea were disclosed.

“The trial court’s imperfect advisement to appellant that she was subject to

a discretionary period of post-release control afforded her sufficient notice

that such control might be imposed. Since appellant had notice that her

sentence might include post-release control, she cannot show prejudice as

her plea was made with knowledge of that possibility.” State v. Wright, 6th

Dist. Sandusky No. S-09-23,

, ¶ 29.

Knox at ¶ 12.

{¶ 23} Under the authority of Knox, we find that the trial court partially complied

with Crim.R. 11 by informing Hastings that he could be placed on post-release control.

Despite the trial court mistakenly indicating that post-release control was discretionary for

Hastings’ attempted burglary charge, the record of the plea hearing indicates that

Hastings otherwise subjectively understood the implications of his guilty plea and the

rights he was waiving. Accordingly, Hastings’ guilty plea cannot be vacated unless he

shows that he was prejudiced by the trial court’s error. -12-

{¶ 24} Here, Hastings has failed to point to anything in the record indicating that

he would not have pled guilty in Case No. 2016-CR-910 had he known that post-release

control for his attempted burglary offense was mandatory rather than discretionary. We

note that pursuant to R.C. 2967.28(F)(4)(c):

If an offender is subject to more than one period of post-release control, the

period of post-release control for all of the sentences shall be the period of

post-release control that expires last, as determined by the parole board or

court. Periods of post-release control shall be served concurrently and

shall not be imposed consecutively to each other.

(Emphasis added.)

{¶ 25} Since multiple terms of post-release control must be served concurrently,

and Hastings was correctly informed at the plea hearing that he would be required to

serve a five-year mandatory term of post-release control for his first-degree felonies, the

duration of his post-release control term amounts to five mandatory years regardless of

whether the three-year term of post-release control for attempted burglary is mandatory

or discretionary. See State v. Heard, 2d Dist. Montgomery No. 27454,

(holding that regardless of whether the trial court erred in imposing a three-year term

of post-release control for appellant’s fifth-degree-felony drug trafficking offense, pursuant

to R.C. 2967.28(F)(4)(c), appellant remains subject to a five-year mandatory term of post-

release control for his accompanying first-degree-felony drug possession offense).

Consequently, Hastings cannot establish any prejudice resulting from the trial court’s

misstatement at the plea hearing, as he was aware that he would be required to serve

five mandatory years of post-release control when he entered his guilty pleas. -13-

{¶ 26} Hastings’ sole assignment of error is overruled.

Conclusion

{¶ 27} Having overruled Hastings’ sole assignment of error, the judgment of the

trial court in Case No. 2016-CR-910 is affirmed. Although Hastings’ appellate counsel

did not address the error in the sentencing entry for Case No. 2014-CR-3848 that we

identified in our Anders review, we hereby order the sentencing entry for that case to be

corrected nunc pro tunc by the trial court to reflect the actual terms of post-release control

that were imposed at the sentencing hearing, i.e., a five-year mandatory term of post-

release control for aggravated burglary and a three-year discretionary term of post-

release control for vandalism. The judgment in Case No. 2014-CR-3848 is otherwise

affirmed.

.............

FROELICH, J. and HALL, J., concur.

Copies mailed to:

Mathias H. Heck, Jr. Alice B. Peters Gary C. Schaengold Hon. Dennis J. Adkins