[Cite as State v. Battle, 2022-Ohio-2444.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : CLIFTON BATTLE, JR. : Case No. 2022-CA-0002 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2021-CR-0556
JUDGMENT: Reversed, Plea Vacated, Remanded
DATE OF JUDGMENT: July 14, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER TODD BARSTOW 30 South Park Street 261 West Johnstown Road Second Floor Suite 204 Mansfield, OH 44902 Columbus, OH 43230 Richland County, Case No. 2022-CA-0002 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Clifton Battle, Jr., appeals his December 10, 2021
conviction in the Court of Common Pleas of Richland County, Ohio. Plaintiff-Appellee is
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 5, 2021, the Richland County Grand Jury indicted appellant on
one count of having weapons while under disability in violation of R.C. 2923.13. On
September 29, 2021, appellant pled guilty to the charge. The parties agreed to a joint
recommendation of community control. A sentencing hearing was held on November 24,
2021. At that time, it was discovered that appellant was on postrelease control and had
an active parole holder. By sentencing entry filed December 10, 2021, the trial court
rejected the joint recommendation and sentenced appellant to twelve months in prison,
to be served consecutively to a judicial sanction of 1,145 days for violating postrelease
control.
{¶ 3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 4} "MR. BATTLE DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY ENTER HIS PLEA OF GUILTY, IN VIOLATION OF HIS RIGHT TO DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
CONSTITUTION." Richland County, Case No. 2022-CA-0002 3
{¶ 5} In his sole assignment of error, appellant claims his guilty plea was not
knowingly, intelligently, and voluntarily made. We agree.
{¶ 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).
Crim.R. 11 governs rights upon plea. Subsection (C)(2) states the following:
(2) 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 either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) and doing
all of the following:
(a) Determining 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.
(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. Richland County, Case No. 2022-CA-0002 4
(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.
{¶ 7} The standard for a trial court's Crim.R. 11 non-constitutional notifications
under (C)(2)(a) and (b) is substantial compliance; the standard for Crim.R. 11(C)(2)(c)
constitutional notifications is strict compliance. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621. In State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474
(1990), the Supreme Court of Ohio explained the following:
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. Stewart [State v., 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977)], supra; State v. Carter (1979), 60 Ohio St.2d 34,
38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445
U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. Furthermore, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently,
and voluntarily made must show a prejudicial effect. Stewart, supra, 51
Ohio St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The
test is whether the plea would have otherwise been made. Id. Richland County, Case No. 2022-CA-0002 5
{¶ 8} However, in State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, the
Supreme Court of Ohio reviewed a case similar to the case sub judice. In Bishop, the
defendant was on postrelease control when he pled guilty to drug related charges. During
the Crim.R. 11 plea colloquy, the trial court failed to advise the defendant "the court would
have the authority under R.C. 2929.141 to terminate Bishop's existing postrelease control
and impose a prison term that he would serve consecutively to the term of imprisonment
imposed for the possession offense." Id. at ¶ 3. The Bishop court looked to the language
of R.C. 2929.141(A)(1) which states, "[u]pon 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 impose a consecutive prison term for
the post-release control violation. The Bishop court at ¶ 17 held:
Sentences imposed under R.C. 2929.141(A) cannot stand alone.
The court may impose the sentence only upon a conviction for or plea of
guilty to a new felony, making the sentence for committing a new felony
while on postrelease control and that for the new felony itself inextricably
intertwined. By any fair reading of Crim.R. 11(C)(2), the potential R.C.
2929.141(A) sentence was part of the "maximum penalty involved" in this
case.
{¶ 9} Because the trial court failed to so advise the defendant, the defendant did
not have to show prejudice by claiming "he would not have entered the guilty plea if he Richland County, Case No. 2022-CA-0002 6
had known that the trial court could terminate his existing postrelease control and convert
it into additional prison time." Id. at ¶ 18. The Bishop court found by completely failing to
comply with Crim.R. 11(C)(1)(a), "the plea must be vacated." Id. at ¶ 19. "A complete
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[Cite as State v. Battle, 2022-Ohio-2444.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : CLIFTON BATTLE, JR. : Case No. 2022-CA-0002 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2021-CR-0556
JUDGMENT: Reversed, Plea Vacated, Remanded
DATE OF JUDGMENT: July 14, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER TODD BARSTOW 30 South Park Street 261 West Johnstown Road Second Floor Suite 204 Mansfield, OH 44902 Columbus, OH 43230 Richland County, Case No. 2022-CA-0002 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Clifton Battle, Jr., appeals his December 10, 2021
conviction in the Court of Common Pleas of Richland County, Ohio. Plaintiff-Appellee is
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 5, 2021, the Richland County Grand Jury indicted appellant on
one count of having weapons while under disability in violation of R.C. 2923.13. On
September 29, 2021, appellant pled guilty to the charge. The parties agreed to a joint
recommendation of community control. A sentencing hearing was held on November 24,
2021. At that time, it was discovered that appellant was on postrelease control and had
an active parole holder. By sentencing entry filed December 10, 2021, the trial court
rejected the joint recommendation and sentenced appellant to twelve months in prison,
to be served consecutively to a judicial sanction of 1,145 days for violating postrelease
control.
{¶ 3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 4} "MR. BATTLE DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY ENTER HIS PLEA OF GUILTY, IN VIOLATION OF HIS RIGHT TO DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO
CONSTITUTION." Richland County, Case No. 2022-CA-0002 3
{¶ 5} In his sole assignment of error, appellant claims his guilty plea was not
knowingly, intelligently, and voluntarily made. We agree.
{¶ 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).
Crim.R. 11 governs rights upon plea. Subsection (C)(2) states the following:
(2) 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 either in-person or by
remote contemporaneous video in conformity with Crim.R. 43(A) and doing
all of the following:
(a) Determining 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.
(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. Richland County, Case No. 2022-CA-0002 4
(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.
{¶ 7} The standard for a trial court's Crim.R. 11 non-constitutional notifications
under (C)(2)(a) and (b) is substantial compliance; the standard for Crim.R. 11(C)(2)(c)
constitutional notifications is strict compliance. State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621. In State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474
(1990), the Supreme Court of Ohio explained the following:
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. Stewart [State v., 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977)], supra; State v. Carter (1979), 60 Ohio St.2d 34,
38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445
U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789. Furthermore, a defendant who
challenges his guilty plea on the basis that it was not knowingly, intelligently,
and voluntarily made must show a prejudicial effect. Stewart, supra, 51
Ohio St.2d at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The
test is whether the plea would have otherwise been made. Id. Richland County, Case No. 2022-CA-0002 5
{¶ 8} However, in State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, the
Supreme Court of Ohio reviewed a case similar to the case sub judice. In Bishop, the
defendant was on postrelease control when he pled guilty to drug related charges. During
the Crim.R. 11 plea colloquy, the trial court failed to advise the defendant "the court would
have the authority under R.C. 2929.141 to terminate Bishop's existing postrelease control
and impose a prison term that he would serve consecutively to the term of imprisonment
imposed for the possession offense." Id. at ¶ 3. The Bishop court looked to the language
of R.C. 2929.141(A)(1) which states, "[u]pon 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 impose a consecutive prison term for
the post-release control violation. The Bishop court at ¶ 17 held:
Sentences imposed under R.C. 2929.141(A) cannot stand alone.
The court may impose the sentence only upon a conviction for or plea of
guilty to a new felony, making the sentence for committing a new felony
while on postrelease control and that for the new felony itself inextricably
intertwined. By any fair reading of Crim.R. 11(C)(2), the potential R.C.
2929.141(A) sentence was part of the "maximum penalty involved" in this
case.
{¶ 9} Because the trial court failed to so advise the defendant, the defendant did
not have to show prejudice by claiming "he would not have entered the guilty plea if he Richland County, Case No. 2022-CA-0002 6
had known that the trial court could terminate his existing postrelease control and convert
it into additional prison time." Id. at ¶ 18. The Bishop court found by completely failing to
comply with Crim.R. 11(C)(1)(a), "the plea must be vacated." Id. at ¶ 19. "A complete
failure to comply with the rule does not implicate an analysis of prejudice." State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.
{¶ 10} In reviewing the Crim.R. 11 plea colloquy during the September 29, 2021
plea hearing, the trial court clearly did not advise appellant of the possibility of terminating
postrelease control and imposing a consecutive sentence for the violation; therefore, the
plea must be vacated. See State v. Baker, 5th Dist. Ashland No. 20 COA 011, 2020-
Ohio-4199, ¶ 21.
{¶ 11} Apparently, no one realized appellant was on postrelease control until the
sentencing hearing. Appellee argues the issue was discussed during the sentencing
hearing and defense counsel indicated appellant did not want to withdraw his plea.
November 24, 2021 T. at 3-4, 14. Therefore, appellee argues appellant's claim that he
suffered prejudice is meritless.
{¶ 12} Appellant was not required to show prejudice. The trial court was required
to inform appellant of the maximum penalty involved during the plea hearing so appellant
could make an informed decision, but the trial court failed to do so. The trial court did not
conduct a supplemental Crim.R. 11 plea colloquy during the sentencing hearing to
address the issue with appellant. Defense counsel argued on appellant's behalf, but the
trial court did not engage with appellant except to ask him if he had anything to say to
which appellant responded in the negative. Id. at 7. Richland County, Case No. 2022-CA-0002 7
{¶ 13} Upon review, we find appellant's plea was not knowingly, intelligently, and
voluntarily made.
{¶ 14} The sole assignment of error is granted.
{¶ 15} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby reversed, the guilty plea is vacated, and the matter is remanded to said court for
further proceedings.
By Wise, Earle, P.J.
Gwin, J. and
Delaney, J. concur.
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