[Cite as State v. Bocook, 2024-Ohio-2030.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO, CASE NO. 3-23-41 PLAINTIFF-APPELLEE,
v.
DONALD BOCOOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0295
Judgment Affirmed
Date of Decision: May 28, 2024
APPEARANCES:
Christopher Bazeley for Appellant
Daniel J. Stanley for Appellee Case No. 3-23-24
ZIMMERMAN, J.
{¶1} Defendant-appellant, Donald Bocook (“Bocook”), appeals the October
30, 2023 judgment entry of sentence of the Crawford County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On September 6, 2022, the Crawford County Grand Jury indicted
Bocook on a single count of theft in violation of R.C. 2913.02(A)(1), (B)(2), a fifth-
degree felony. Bocook appeared for arraignment on August 15, 2023, and entered
a plea of not guilty.
{¶3} On October 30, 2023, Bocook withdrew his plea of not guilty and
entered a plea of guilty, under a negotiated plea agreement, to the sole count of the
indictment. The trial court accepted Bocook’s guilty plea, found him guilty, and
sentenced Bocook to seven months in prison.
{¶4} On November 6, 2023, Bocook filed a notice of appeal. He raises two
assignments of error for our review.
First Assignment of Error
The Trial Court Failed to Properly Advise Bocook That A Sentence For A Felony Conviction Must Be Served Consecutively To A Sentence For A PRC Violation At His Plea Hearing.
{¶5} In his first assignment of error, Bocook argues that his guilty plea was
not knowing, intelligent, or voluntary. In particular, Bocook argues that his guilty
plea was not knowing, intelligent, or voluntary because the trial court “failed to
-2- Case No. 3-23-24
comply with the requirement to inform him of the possible maximum sentence” as
required pursuant to Crim.R. 11 since it “failed to advise Bocook that he could be
ordered to serve any sentence for a violation of [post-release control] consecutively
to a sentence for a new felony during the plea colloquy.” (Emphasis added.)
(Appellant’s Brief at 1-2).
Standard of Review
{¶6} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9. “‘“Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio
Constitution.”’” State v. Montgomery, 3d Dist. Putnam No. 12-13-11, 2014-Ohio-
1789, ¶ 10, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7,
quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996).
{¶7} Crim.R. 11(C)(2), which governs guilty pleas for felony-level offenses,
provides:
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:
(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.
-3- Case No. 3-23-24
(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.
(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.
{¶8} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
advise a defendant before accepting a felony plea that the plea waives the
defendant’s constitutional rights.” Montgomery at ¶ 11. “‘When a trial court fails
to strictly comply with this duty, the defendant’s plea is invalid.’” Id., quoting
Veney at ¶ 31. “A trial court, however, is required to only substantially comply with
the non-constitutional notifications in Crim.R. 11(C)(2)(a) and (b).” Montgomery
at ¶ 11. See Veney at ¶ 14-17.
{¶9} “An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived.” Montgomery at ¶ 12. “‘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. * * * The test is whether the plea would have
otherwise been made.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).
-4- Case No. 3-23-24
Analysis
{¶10} On appeal, Bocook argues that the trial court did not substantially
comply with Crim.R. 11(C)(2)(a).
{¶11} To substantially comply with the requirements of Crim.R. 11(C)(2)(a),
a trial court must notify the defendant of: (1) the nature of the charge; (2) the
maximum penalty involved; and (3) if applicable, that the defendant is not eligible
for probation or the imposition of community control sanctions. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, at ¶ 10-13. As part of the maximum penalty involved,
a trial court must advise the defendant that he would be subject to post-release
control upon the completion of any prison term imposed. State v. Lane, 3d Dist.
Allen No. 1-10-10, 2010-Ohio-4819, ¶ 15.
{¶12} In the instant case, the trial court substantially complied with the
requirements of Crim.R. 11(C)(2)(a). Specifically, during the plea colloquy, the
trial court notified Bocook of the maximum penalty involved, including the
imposition of a discretionary term of post-release control. (Oct. 30, 2023 Tr. at 3-
4).
{¶13} Further, the record reflects that Bocook signed a written-plea
agreement acknowledging his understanding of the maximum penalty involved.
The written plea further sets forth Bocook’s understanding that he would be subject
to discretionary post-release control for up to two years upon the completion of any
prison term imposed.
-5- Case No. 3-23-24
{¶14} Irrespective of the foregoing, Bocook argues that his guilty plea is
invalid because the trial court did not properly inform him of the possible penalties
for a violation of post-release control. In particular, Bocook contends that the trial
court failed to advise him that he could be ordered to serve any sentence for a
violation of post-release control consecutively to a sentence for any new felony
committed while on post-release control.
{¶15} Bocook’s contention lacks merit because Crim.R. 11(C)(2)(a) does not
require a trial court to inform a defendant of the possible penalties for a violation of
post-release control. Lane, 2010-Ohio-4819, at ¶ 15. Rather, the trial court is
required to advise the defendant only as to the maximum penalty involved, which
includes, if applicable, an advisement on post-release control—not the possible
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[Cite as State v. Bocook, 2024-Ohio-2030.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
STATE OF OHIO, CASE NO. 3-23-41 PLAINTIFF-APPELLEE,
v.
DONALD BOCOOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court Trial Court No. 22-CR-0295
Judgment Affirmed
Date of Decision: May 28, 2024
APPEARANCES:
Christopher Bazeley for Appellant
Daniel J. Stanley for Appellee Case No. 3-23-24
ZIMMERMAN, J.
{¶1} Defendant-appellant, Donald Bocook (“Bocook”), appeals the October
30, 2023 judgment entry of sentence of the Crawford County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On September 6, 2022, the Crawford County Grand Jury indicted
Bocook on a single count of theft in violation of R.C. 2913.02(A)(1), (B)(2), a fifth-
degree felony. Bocook appeared for arraignment on August 15, 2023, and entered
a plea of not guilty.
{¶3} On October 30, 2023, Bocook withdrew his plea of not guilty and
entered a plea of guilty, under a negotiated plea agreement, to the sole count of the
indictment. The trial court accepted Bocook’s guilty plea, found him guilty, and
sentenced Bocook to seven months in prison.
{¶4} On November 6, 2023, Bocook filed a notice of appeal. He raises two
assignments of error for our review.
First Assignment of Error
The Trial Court Failed to Properly Advise Bocook That A Sentence For A Felony Conviction Must Be Served Consecutively To A Sentence For A PRC Violation At His Plea Hearing.
{¶5} In his first assignment of error, Bocook argues that his guilty plea was
not knowing, intelligent, or voluntary. In particular, Bocook argues that his guilty
plea was not knowing, intelligent, or voluntary because the trial court “failed to
-2- Case No. 3-23-24
comply with the requirement to inform him of the possible maximum sentence” as
required pursuant to Crim.R. 11 since it “failed to advise Bocook that he could be
ordered to serve any sentence for a violation of [post-release control] consecutively
to a sentence for a new felony during the plea colloquy.” (Emphasis added.)
(Appellant’s Brief at 1-2).
Standard of Review
{¶6} “All guilty pleas must be made knowingly, voluntarily, and
intelligently.” State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-
Ohio-926, ¶ 9. “‘“Failure on any of those points renders enforcement of the plea
unconstitutional under both the United States Constitution and the Ohio
Constitution.”’” State v. Montgomery, 3d Dist. Putnam No. 12-13-11, 2014-Ohio-
1789, ¶ 10, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7,
quoting State v. Engle, 74 Ohio St.3d 525, 527 (1996).
{¶7} Crim.R. 11(C)(2), which governs guilty pleas for felony-level offenses,
provides:
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:
(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.
-3- Case No. 3-23-24
(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.
(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.
{¶8} “A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally
advise a defendant before accepting a felony plea that the plea waives the
defendant’s constitutional rights.” Montgomery at ¶ 11. “‘When a trial court fails
to strictly comply with this duty, the defendant’s plea is invalid.’” Id., quoting
Veney at ¶ 31. “A trial court, however, is required to only substantially comply with
the non-constitutional notifications in Crim.R. 11(C)(2)(a) and (b).” Montgomery
at ¶ 11. See Veney at ¶ 14-17.
{¶9} “An appellate court reviews the substantial-compliance standard based
upon the totality of the circumstances surrounding the defendant’s plea and
determines whether he subjectively understood the implications of his plea and the
rights he waived.” Montgomery at ¶ 12. “‘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. * * * The test is whether the plea would have
otherwise been made.’” Id., quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).
-4- Case No. 3-23-24
Analysis
{¶10} On appeal, Bocook argues that the trial court did not substantially
comply with Crim.R. 11(C)(2)(a).
{¶11} To substantially comply with the requirements of Crim.R. 11(C)(2)(a),
a trial court must notify the defendant of: (1) the nature of the charge; (2) the
maximum penalty involved; and (3) if applicable, that the defendant is not eligible
for probation or the imposition of community control sanctions. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, at ¶ 10-13. As part of the maximum penalty involved,
a trial court must advise the defendant that he would be subject to post-release
control upon the completion of any prison term imposed. State v. Lane, 3d Dist.
Allen No. 1-10-10, 2010-Ohio-4819, ¶ 15.
{¶12} In the instant case, the trial court substantially complied with the
requirements of Crim.R. 11(C)(2)(a). Specifically, during the plea colloquy, the
trial court notified Bocook of the maximum penalty involved, including the
imposition of a discretionary term of post-release control. (Oct. 30, 2023 Tr. at 3-
4).
{¶13} Further, the record reflects that Bocook signed a written-plea
agreement acknowledging his understanding of the maximum penalty involved.
The written plea further sets forth Bocook’s understanding that he would be subject
to discretionary post-release control for up to two years upon the completion of any
prison term imposed.
-5- Case No. 3-23-24
{¶14} Irrespective of the foregoing, Bocook argues that his guilty plea is
invalid because the trial court did not properly inform him of the possible penalties
for a violation of post-release control. In particular, Bocook contends that the trial
court failed to advise him that he could be ordered to serve any sentence for a
violation of post-release control consecutively to a sentence for any new felony
committed while on post-release control.
{¶15} Bocook’s contention lacks merit because Crim.R. 11(C)(2)(a) does not
require a trial court to inform a defendant of the possible penalties for a violation of
post-release control. Lane, 2010-Ohio-4819, at ¶ 15. Rather, the trial court is
required to advise the defendant only as to the maximum penalty involved, which
includes, if applicable, an advisement on post-release control—not the possible
penalties for a violation thereof. Id. at ¶ 15-16.
{¶16} Based on our review of the record, we conclude that the trial court
substantially complied with the notifications required by Crim.R. 11(C)(2)(a).
Accordingly, Bocook’s guilty plea was made knowingly, intelligently, and
voluntarily.
{¶17} Bocook’s first assignment of error is overruled.
Second Assignment of Error
The Trial Court Failed To Orally Advise Bocook Of The Imposition Of PRC At Sentencing.
-6- Case No. 3-23-24
{¶18} In his second assignment of error, Bocook argues that the sentence
imposed by the trial court must be vacated and the matter remanded for resentencing
because the trial court did not orally inform him of post-release control during the
sentencing portion of the combined hearing.
{¶19} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶20} “‘[A] trial court has a statutory duty to provide notice of postrelease
control at the sentencing hearing.’” State v. Bates, 167 Ohio St.3d 197, 2022-Ohio-
475, ¶ 11, quoting State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 23,
overruled on other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-
2913, ¶ 40 (rejecting the void-sentence jurisprudence for errors committed in the
imposition of post-release control). “The trial court must advise the offender at the
sentencing hearing of the term of supervision, whether postrelease control is
-7- Case No. 3-23-24
discretionary or mandatory, and the consequences of violating postrelease control.”
Bates at ¶ 11.
{¶21} Pertinent to this case, R.C. 2929.19(B)(2)(e) requires a trial court to
notify an offender who is being sentenced for a fifth-degree felony that he may be
supervised under post-release control after he leaves prison. Further, the trial court
must
[n]otify the offender that, if a period of supervision is imposed following the offender’s release from prison, * * * and if the offender violates that supervision or a condition of post-release control * * *, the parole board may impose a prison term, as part of the sentence, of up to one-half of the definite prison term originally imposed upon the offender as the offender’s stated prison term * * * .
R.C. 2929.19(B)(2)(f).
{¶22} Here, the trial court held a combined change-of-plea and sentencing
hearing wherein it notified Bocook, during the plea colloquy, that he would be
subject to discretionary post-release control for two years following his release from
prison. The trial court further notified Bocook of the consequences of violating
post-release control. (Oct. 30, 2023 Tr. at 6). Although the foregoing notifications
were not reiterated by the trial court during the sentencing portion of the combined
hearing, the sentencing entry contained the required advisements.
{¶23} “When the trial court provides proper post-release control notification
before accepting the defendant’s guilty plea and then proceeds immediately to
sentencing, the plea hearing and the sentencing hearing cannot, for purposes of the
-8- Case No. 3-23-24
post-release control statutes, reasonably be deemed to have been conducted
separately.” State v. Renne, 5th Dist. Fairfield No. 2020 CA 00036, 2021-Ohio-
2648, ¶ 18. See also State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, ¶ 17,
fn. 1 (recognizing that, when a trial court proceeds to sentencing immediately after
the plea hearing, there is “no reason to consider the plea hearing and sentencing
hearing to be two separate hearings for purposes of R.C. 2929.19(B)([4])”).
{¶24} Based on the foregoing, we conclude that the notifications regarding
post-release control provided by the trial court before accepting Bocook’s guilty
plea at the combined change-of-plea and sentencing hearing satisfied its statutory
duty to provide notice of post-release control at the sentencing hearing. See Bates,
167 Ohio St.3d 197, 2022-Ohio-475, at ¶ 11. Consequently, Bocook’s sentence is
not contrary to law.
{¶25} Bocook’s second assignment of error is overruled.
{¶26} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WALDICK and MILLER, J.J., concur.
/hls
-9-