[Cite as State v. Burke, 2013-Ohio-4689.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13-CA-24 VINCENT BURKE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00250
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER Licking County Prosecutor 470 Olde Worthington Road, Suite 200 Westerville, Ohio 43082 By: JUSTIN T. RADIC Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 13-CA-24 2
Hoffman, P.J.
{¶1} Defendant-appellant Vincent Burke appeals his sentence entered by the
Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
PROCEDURAL HISTORY1
{¶2} Appellant was indicted on trafficking in drugs, in violation of R.C.
2925.03(A)(1), a fifth degree felony under R.C. 2925.03(C)(2)(a); possession of
marijuana, a minor misdemeanor, in violation of R.C. 2925.11(C)(3)(a); and possession
of drug paraphernalia, a fourth degree misdemeanor, in violation of R.C.
29265.14(C)(1).
{¶3} Appellant entered a plea of guilty to all counts. The trial court imposed a
five year community control sanction on the trafficking count, including a stay in a
community based correctional facility, 100 hours of community service and a one year
driver’s license suspension. The court further imposed fines on the misdemeanor
counts. Finally, the trial court imposed a three year term of post-release control at the
discretion of the Adult Parole Authority.
{¶4} Appellant filed a motion with this Court for a delayed appeal. This Court
granted Appellant’s request for a delayed appeal. Appellant now assigns as error:
{¶5} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS, CRIM.R. 11(C)(2)(a), and 2943.032 BY
FAILING TO PERSONALLY ADDRESS APPELLANT AND ENSURE THAT HE
UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON ENTERING HIS
GUILTY PLEAS.”
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Licking County, Case No. 13-CA-24 3
I.
{¶6} Appellant maintains his plea was made in violation of Criminal Rule 11 as
the trial court failed to inform him of the specific penalty for violating post-release
control. Specifically, the trial court mentioned the possibility of prison time for violating
post-release control, but failed to provide the specific penalty. Appellant did sign a
written plea form setting forth the appropriate terms for a violation of post-release
control.
{¶7} In regard to the specific constitutional rights referenced in Crim.R.
11(C)(2)(c), the Ohio Supreme Court has set forth the following rule of law: “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 (1) the right to a jury trial, (2) the right to
confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the
right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege
against compulsory self-incrimination. When a trial court fails to strictly comply with this
duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897 N.E.2d
621, 2008-Ohio-5200, syllabus.
{¶8} However, generally, in accepting a guilty plea, a trial court must
“substantially comply” with Crim.R. 11(C), which we review based on the totality of the
circumstances. See State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474;
State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In other words, “[f]or
nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required; the trial
court must substantially comply, provided no prejudicial effect occurs before a guilty Licking County, Case No. 13-CA-24 4
plea is accepted.” State v. Osley, Lucas App.No. L–11–1236, 2013-Ohio-1267, 2013
WL 1289527, ¶ 17, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.
{¶9} In State v. Alexander, 5th App. No. 2012CA00115, 2012-Ohio-4843, this
Court held,
{¶10} "The present case involves the notification of post-release control during a
plea colloquy. As such, we review the trial court's plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to
be informed of the maximum penalty. Under the substantial-compliance standard, we
analyze the totality of circumstances surrounding Alexander's plea and determine
whether he subjectively understood the effect of his plea.
{¶11} "Alexander cites this Court to State v. Jones, 5th Dist. Nos. 10CA75,
10CA76, 10CA77, 2011–Ohio–1202, in support of his argument that the trial court failed
to properly inform him of his term of post-release control during the plea colloquy. In
Jones, the trial court failed to inform the defendant of the possibility of post-release
control prior to accepting the defendant's plea. We found the defendant's plea was not
made knowingly, intelligently, and voluntarily and in contravention of Sarkozy. Id. at ¶
21.
{¶12} "We find the facts of Jones to be distinguishable from the present case. In
this case, the trial court stated during the plea colloquy, 'Do you understand that
following any period of incarceration there would be a mandatory period of supervision
by the Parole Authority?' (Sentencing Tr., 4.) Alexander responded, 'Yes, sir.' (Sent.Tr.,
5.) Alexander signed a Crim.R. 11(C) form, which stated: Licking County, Case No. 13-CA-24 5
{¶13} "Upon release from prison, the defendant will be ordered to serve a
mandatory period of five years of post-release control, pursuant to R.C. 2967.28(B).
This period of post-release control will be imposed as part of defendant's criminal
sentence at the sentencing hearing, pursuant to R.C. 2929.19. If the defendant violates
the conditions of post-release control, the defendant will be subject to an additional
prison term of up to one-half of the stated prison term as otherwise determined by the
Parole Board, pursuant to law.
{¶14} "In Sarkozy and Jones, there was no mention of post-release control at
the plea hearing. In the present case, the trial court notified Alexander that postrelease
control was mandatory and the Crim.R. 11(C) form signed by Alexander stated that
post-release control was mandatory for a term of five years. We find, under the totality
of the circumstances, the trial court substantially complied with the requirements of
Crim.R. 11(C)(2)(a) in informing Alexander of post-release control during his plea
hearing so that Alexander subjectively understood the implications of his plea. See
State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477."
{¶15} This Court followed Alexander in State v. Harris, 5th App. No. 12CA82,
2013 Ohio 2056,
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[Cite as State v. Burke, 2013-Ohio-4689.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 13-CA-24 VINCENT BURKE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00250
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT WILLIAM T. CRAMER Licking County Prosecutor 470 Olde Worthington Road, Suite 200 Westerville, Ohio 43082 By: JUSTIN T. RADIC Assistant Prosecuting Attorney 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 13-CA-24 2
Hoffman, P.J.
{¶1} Defendant-appellant Vincent Burke appeals his sentence entered by the
Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
PROCEDURAL HISTORY1
{¶2} Appellant was indicted on trafficking in drugs, in violation of R.C.
2925.03(A)(1), a fifth degree felony under R.C. 2925.03(C)(2)(a); possession of
marijuana, a minor misdemeanor, in violation of R.C. 2925.11(C)(3)(a); and possession
of drug paraphernalia, a fourth degree misdemeanor, in violation of R.C.
29265.14(C)(1).
{¶3} Appellant entered a plea of guilty to all counts. The trial court imposed a
five year community control sanction on the trafficking count, including a stay in a
community based correctional facility, 100 hours of community service and a one year
driver’s license suspension. The court further imposed fines on the misdemeanor
counts. Finally, the trial court imposed a three year term of post-release control at the
discretion of the Adult Parole Authority.
{¶4} Appellant filed a motion with this Court for a delayed appeal. This Court
granted Appellant’s request for a delayed appeal. Appellant now assigns as error:
{¶5} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS, CRIM.R. 11(C)(2)(a), and 2943.032 BY
FAILING TO PERSONALLY ADDRESS APPELLANT AND ENSURE THAT HE
UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON ENTERING HIS
GUILTY PLEAS.”
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Licking County, Case No. 13-CA-24 3
I.
{¶6} Appellant maintains his plea was made in violation of Criminal Rule 11 as
the trial court failed to inform him of the specific penalty for violating post-release
control. Specifically, the trial court mentioned the possibility of prison time for violating
post-release control, but failed to provide the specific penalty. Appellant did sign a
written plea form setting forth the appropriate terms for a violation of post-release
control.
{¶7} In regard to the specific constitutional rights referenced in Crim.R.
11(C)(2)(c), the Ohio Supreme Court has set forth the following rule of law: “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 (1) the right to a jury trial, (2) the right to
confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the
right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege
against compulsory self-incrimination. When a trial court fails to strictly comply with this
duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897 N.E.2d
621, 2008-Ohio-5200, syllabus.
{¶8} However, generally, in accepting a guilty plea, a trial court must
“substantially comply” with Crim.R. 11(C), which we review based on the totality of the
circumstances. See State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474;
State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In other words, “[f]or
nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required; the trial
court must substantially comply, provided no prejudicial effect occurs before a guilty Licking County, Case No. 13-CA-24 4
plea is accepted.” State v. Osley, Lucas App.No. L–11–1236, 2013-Ohio-1267, 2013
WL 1289527, ¶ 17, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163.
{¶9} In State v. Alexander, 5th App. No. 2012CA00115, 2012-Ohio-4843, this
Court held,
{¶10} "The present case involves the notification of post-release control during a
plea colloquy. As such, we review the trial court's plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to
be informed of the maximum penalty. Under the substantial-compliance standard, we
analyze the totality of circumstances surrounding Alexander's plea and determine
whether he subjectively understood the effect of his plea.
{¶11} "Alexander cites this Court to State v. Jones, 5th Dist. Nos. 10CA75,
10CA76, 10CA77, 2011–Ohio–1202, in support of his argument that the trial court failed
to properly inform him of his term of post-release control during the plea colloquy. In
Jones, the trial court failed to inform the defendant of the possibility of post-release
control prior to accepting the defendant's plea. We found the defendant's plea was not
made knowingly, intelligently, and voluntarily and in contravention of Sarkozy. Id. at ¶
21.
{¶12} "We find the facts of Jones to be distinguishable from the present case. In
this case, the trial court stated during the plea colloquy, 'Do you understand that
following any period of incarceration there would be a mandatory period of supervision
by the Parole Authority?' (Sentencing Tr., 4.) Alexander responded, 'Yes, sir.' (Sent.Tr.,
5.) Alexander signed a Crim.R. 11(C) form, which stated: Licking County, Case No. 13-CA-24 5
{¶13} "Upon release from prison, the defendant will be ordered to serve a
mandatory period of five years of post-release control, pursuant to R.C. 2967.28(B).
This period of post-release control will be imposed as part of defendant's criminal
sentence at the sentencing hearing, pursuant to R.C. 2929.19. If the defendant violates
the conditions of post-release control, the defendant will be subject to an additional
prison term of up to one-half of the stated prison term as otherwise determined by the
Parole Board, pursuant to law.
{¶14} "In Sarkozy and Jones, there was no mention of post-release control at
the plea hearing. In the present case, the trial court notified Alexander that postrelease
control was mandatory and the Crim.R. 11(C) form signed by Alexander stated that
post-release control was mandatory for a term of five years. We find, under the totality
of the circumstances, the trial court substantially complied with the requirements of
Crim.R. 11(C)(2)(a) in informing Alexander of post-release control during his plea
hearing so that Alexander subjectively understood the implications of his plea. See
State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477."
{¶15} This Court followed Alexander in State v. Harris, 5th App. No. 12CA82,
2013 Ohio 2056,
{¶16} "The present case involves the notification of post-release control during a
plea colloquy. As such, we review the trial court's plea colloquy under the substantial-
compliance standard because the notification of post-release control impacts the right to
be informed of the maximum penalty. Under the substantial-compliance standard, we
analyze the totality of circumstances surrounding Alexander's plea and determine
whether he subjectively understood the effect of his plea. Licking County, Case No. 13-CA-24 6
{¶17} "In the case sub judice, with regard to post-release control, the trial court
addressed Appellant as follows:
{¶18} “'Do you also understand, Mr. Harris, that as a result of these convictions,
that at the completion of your sentence you would be placed on a period of mandatory
post-release control, and if you were to violate the terms of post-release control—a
period of five years of post-release control—you'd be subject to being returned to the
penitentiary for more incarceration even though you've served out your entire sentence?
Do you understand that?' (T. at 14–15).
{¶19} "The plea form, signed by Appellant, informed Appellant as follows:
{¶20} "'I know any prison term stated will be the term served without good time
credit. After release from prison, I will have 5 years of post-release control. A violation of
any post-release control rule or condition can result in a more restrictive sanction while I
am under post-release control, an increased duration of supervision or control, up to the
maximum term and re-imprisonment even though I have served the entire stated prison
term upon me by the Court for all offenses. If I violate conditions of supervision while
under post-release control, the Parole Board could return me to prison for up to nine
month for each violation, for repeated violations up to 1/2 of my originally stated prison
term. If the violation is a new felony, I could receive a prison term of the greater of one
year or the time remaining on post-release control, which would be consecutive to any
other prison term imposed for the new offense.'
{¶21} "Additionally, the October 10, 2012, Judgment Entry of Sentence stated
the following: Licking County, Case No. 13-CA-24 7
{¶22} "'The Court advised the defendant of a mandatory period of five (5) years
of post-release control, not subject to reduction by the Adult Parole Authority, following
any prison sentence imposed, and further the consequences for violating conditions of
post-release control imposed by the Parole Board under Ohio Revised Code Section
2967.28, being the defendant is subject to being reincarcerated for a period of up to
nine months, with a maximum for repeated violations of 50% of the stated prison term. If
the violation is a new felony, the defendant may be returned to prison for the remaining
period of control or 12 months, whichever is greater, plus receive a prison term for the
new crime. The defendant was also advised if he is released early from the state
penitentiary pursuant to judicial release and placed on community control, if a violation
of community control occurs, the defendant could be subject to being returned to the
penitentiary for the balance of his sentence.'
{¶23} "In Sarkozy and Jones, there was no mention of post-release control at
the plea hearing. In the present case, the trial court notified Appellant that he was
subject to a mandatory post-release control period of 5 years. Further, the Crim .R.
11(C) form signed by Alexander stated that post-release control was mandatory for a
term of five years and specifically stated that he could be returned 'to prison for up to
nine months for each violation'.
{¶24} "Based on the foregoing, we find, under the totality of the circumstances,
the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) in
informing Appellant of post-release control during his plea hearing so that Appellant
subjectively understood the implications of his plea. See State v. Alexander, 5th Dist. Licking County, Case No. 13-CA-24 8
No.2012CA00115, 2012–Ohio–4843; State v. Kula, 5th Dist. Nos. 08–CA13, 08–CA14,
2009–Ohio–2911; State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477."
{¶25} In the case sub judice, the trial court advised Appellant prior to accepting
the plea:
{¶26} “Q. Do you understand, Mr. Burke, that if you were sent to the
penitentiary, served out your sentence and then released, that you could be placed by
the State on post-release control; and if you violated the terms of post-release control,
you're subject to being returned to the penitentiary for more incarceration even though
you've served out your entire sentence? Do you understand that?
{¶27} “A. Yes, sir.”
{¶28} Tr. at 13.
{¶29} In addition, Appellant signed an Admission of Guilt plea form on
December 12, 2012. The form states specifically, after release from prison Appellant
will have three years of post-release control. The form reads,
{¶30} “A violation of any post-release control rule or condition can result in a
more restrictive sanction while I am under post-release control, and increased duration
of supervision or control, up to the maximum term and re-imprisonment even though I
have served the entire stated prison term imposed upon me by this court for all
offenses. If I violate conditions of supervision while under post-release control, the
Parole Board could return me to prison for up to nine months for each violation, for
repeated violations up to ½ of my originally stated prison term. If the violation is a new
felony, I could receive a prison term of the greater of one year or the time remaining on Licking County, Case No. 13-CA-24 9
post-release control, which would be consecutive to any other prison term imposed for
the new offense.”
{¶31} In accordance with this Court's previous decisions in Alexander and
Harris, we find the trial court substantially complied with the provisions of Criminal Rule
11 in accepting Appellant's plea. See also, State v. Kula, 5th App. Nos. 08CA13,
08CA14, 2009-Ohio-2911; State v. Munyan, 5th App. No. 08CA88, 2009-Ohio-2348. As
in Alexander, supra, the trial court substantially complied with the provisions of Criminal
Rule 11 in the colloquy with Appellant and the subsequent plea form.
{¶32} The sentence entered by the Licking County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. SHEILA G. FARMER
___________________________________ HON. PATRICIA A. DELANEY Licking County, Case No. 13-CA-24 10
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : VINCENT BURKE : : Defendant-Appellant : Case No. 13-CA-24
For the reason stated in our accompanying Opinion, the sentence entered by
Licking County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________ HON. PATRICIA A. DELANEY