State v. Camp

2018 Ohio 2964

• Court: Ohio Court of Appeals
• Decided: July 27, 2018
• Docket: 2017-CA-73
• Status: Published

Opinion

[Cite as State v. Camp, 2018-Ohio-2964.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-73 : v. : Trial Court No. 2017-CR-155 : DUSTIN CAMP : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 27th day of July, 2018.

...........

ELIZABETH McCORMICK, Atty. Reg. No. 0087862, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

ADAM STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109, Dayton, Ohio 45429 Attorney for Defendant-Appellant

............. -2-

DONOVAN, J.

{¶ 1} This matter is before the Court on the August 21, 2017 Notice of Appeal of

Dustin Camp. Camp appeals from his July 28, 2017 Judgment Entry of Conviction,

following guilty pleas to one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony

of the first degree, as set forth in count one of the indictment, and one count of gross

sexual imposition (“GSI”), in violation of R.C. 2907.05(B), a felony of the third degree, as

set forth in count six of the indictment. In exchange for his guilty pleas, the specification

to count one, (that the child victim was less than 10 years old), count two, pandering

obscenity involving a minor, a felony of the second degree, and counts three, four, and

five, pandering sexually oriented matter involving a minor, felonies of the second degree,

were dismissed. Camp was sentenced to life in prison with parole eligibility after 10

years for rape, and five years in prison for GSI. The court ordered the sentences to be

served consecutively for a total sentence of life in prison with parole eligibility after 15

years. We hereby affirm the judgment of the trial court.

{¶ 2} Camp was indicted on March 13, 2017, and he pled not guilty on March 21,

2017. On April 25, 2017, Camp filed “Defendant’s Plea of Not Guilty, Not Guilty by

Reason of Insanity, Defendant may not be Competent to Stand Trial, Request for

Evaluation and Request for Hearing.” On May 9, 2017, the court ordered that Camp be

evaluated as to his sanity at the time of his offenses and his competency to stand trial.

On June 26, 2017, the court issued an Entry stating that the parties stipulated to the June

15, 2017 report of Thomas O. Martin, Ph.D. The court accepted the report, which

concluded that Camp was not mentally ill or intellectually disabled, and the court

determined that Camp was competent to stand trial. -3-

{¶ 3} On July 6, 2017, Camp withdrew his pleas of not guilty and entered pleas

of guilty as set forth above. At the plea hearing, the court did not orally advise Camp

regarding post-release control. The following exchange, however, occurred:

THE COURT: Is this your signature on this written plea

document?

THE DEFENDANT: Yes.

THE COURT: Did you have an opportunity to review it with

your lawyer?

THE COURT: Do you understand everything in it?

***

THE COURT: Are you entering this guilty plea voluntarily?

THE COURT: The rape offense is a felony of the first degree.

The sentence to that offense would be a sentence of life in

prison with parole eligibility after ten years.

Is that a mandatory sentence?

MR. PICEK: I believe, that’s correct, Your Honor. That’s

the only sentence authorized for that offense as the plea

agreement.

THE COURT: There would be a maximum fine in the amount

of $20,000. Do you understand that that’s the sentence for -4-

that offense?

THE COURT: The gross sexual imposition offense is a third

degree felony. The sentencing range for that offense would

be anywhere from community control, also known as

probation, up to and including the maximum penalty of five (5)

years in the Ohio State Penitentiary and a $10,000 fine.

Do you understand that that’s the sentencing range for that

offense?

THE DEFENDANT: Yes, and I also understand that that’s

not a mandatory prison term as well.

THE COURT: That’s correct. * * *

{¶ 4} Camp’s plea form, under a section entitled “Post Release Control,” indicates

as follows: “Post-Release Control. In addition, a period of supervision by the Adult

Parole Authority after my release from prison is as follows:” and there are three

possibilities listed below, namely mandatory five years, mandatory three years, and

optional three years. An “X” is reflected beside the following option: “(Mandatory Five

Years) If I am sentenced to prison for a first-degree felony or a felony sex offense, after

my prison release, I will have five (5) years of mandatory post-release control under

conditions determined by the Parole Board.” (Emphasis added.) The plea form further

provides:

A violation of a post-release control rule or conditions can result in a

more restrictive sanction while I am under post-release control supervision. -5-

These sanctions include increased duration of supervision or control to a

maximum term of eight (8) years, and imprisonment even though I have

served the entire stated prison term imposed upon me by this Court for all

offenses. If I violate conditions while under post-release control

supervision, the Parole Board could return me to prison for up to nine (9)

months for each violation, or a total of ½ of my originally stated prison term.

If the violation is a new felony, I could receive a prison term of the greater

of twelve (12) months or the time remaining on post-release control, in

addition to any other prison term imposed for the new felony offense.

Finally, the plea form provides: “* * * I am satisfied with my attorney’s advice and

competence.”

{¶ 5} At the conclusion of the hearing, the court found that “the defendant has

knowingly, voluntarily, intelligently waived his rights and entered a plea of guilty to these

offenses.”

{¶ 6} Camp’s judgment entry of conviction provides: “The Court notified the

defendant that post-release control (PRC) is mandatory in this case for five years. The

Defendant is Ordered to serve as part of this sentence five years of PRC.”

{¶ 7} Camp asserts one assignment of error herein as follows:

THE TRIAL COURT FAILED TO ADEQUATELY NOTIFY MR.

CAMP OF THE MANDATORY POST RELEASE CONTROL FOR A

CONVICTION OF GROSS SEXUAL IMPOSITION.

{¶ 8} We initially note that Camp’s argument appears in part to be limited to his

guilty plea to GSI, while the State’s response is directed to both his guilty pleas to GSI -6-

and rape. We will consider Camp’s assigned error to be directed to both of his pleas.

{¶ 9} Camp asserts that his “plea was rendered invalid when the Trial Court failed

to read aloud to Mr. Camp that he would be subject to post-release control as required

by Crim.R. 11(C)(2). Consequently, the Appellant was unable to fully understand the

implications of his Pleas and the Rights he was waiving.” Camp asserts that “he was not

fully informed as to entering into the plea bargain arrangement [sic] and thereby affected

his decision making on the matter.” Camp “respectfully requests that his plea be vacated

and his charges be dismissed.” The State responds that “this Court should find the trial

court followed established precedent and substantially complied with the notification

requirements of Crim.R. 11(C)(2)(a).” The State argues that the matter herein is

analogous to State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231.

{¶ 10} In State v. Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6-7,

this Court noted as follows:

The Ohio Supreme Court has observed that “[a] criminal defendant’s

choice to enter a plea of guilty or no contest is a serious decision.” State

v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The

Court explained:

The benefit to a defendant of agreeing to plead guilty is the

elimination of the risk of receiving a longer sentence after trial.

But, by agreeing to plead guilty, the defendant loses several

constitutional rights. The exchange of certainty for some of

the most fundamental protections in the criminal justice

system will not be permitted unless the defendant is fully -7-

informed of the consequences of his or her plea. Thus,

unless a plea is knowingly, intelligently, and voluntarily made,

it is invalid.

To ensure that pleas conform to these high standards,

the trial judge must engage the defendant in a colloquy before

accepting his or her plea. * * * Crim.R. 11(C), (D), and (E). It

follows that, in conducting this colloquy, the trial judge must

convey accurate information to the defendant so that the

defendant can understand the consequences of his or her

decision and enter a valid plea.

(Citations omitted.) Id. at ¶ 25-26. To that end, Crim.R. 11(C)(2)(a)

provides that, before accepting a guilty plea, a court must “[d]etermin[e] that

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

nature of the charges and of the maximum penalty involved. * * *.”

The “maximum penalty” includes any mandatory post-release control

sanction, which has been explained this way:

Postrelease control is a period of supervision that occurs after

a prisoner has served his or her prison sentence and is

released from incarceration, during which the individual is

subject to specific sanctions with which he or she must

comply. Violation of these sanctions may result in additional

punishment, such as a longer period of control, more

restrictions during the control period, or a prison term of up to -8-

nine months per violation, subject to a cumulative maximum

of one-half of the original stated prison term.

(Citations omitted.) Clark at ¶ 35. Thus if the defendant will be subject to

a period of post-release control, to comply with Crim.R. 11 the court must

inform the defendant of post release control. However, case law

distinguishes between constitutional and non-constitutional components of

Crim.R. 11.

When the trial judge does not substantially comply with

Crim.R. 11 in regard to a nonconstitutional right, reviewing

courts must determine whether the trial court partially

complied or failed to comply with the rule. If the trial judge

partially complied, e.g., by mentioning mandatory post-

release control without explaining it, the plea may be vacated

only if the defendant demonstrates a prejudicial effect. See

[State v.] Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474, citing

State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O. 3d 52,

364 N.E.2d 1163, and Crim.R. 52(A); see also [State v. ]

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, ¶ 23. The test for prejudice is “whether the plea would

have otherwise been made.” Nero at 108, 564 N.E.2d 474,

citing Stewart, id. 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 -9-

vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,

881 N.E.2d 1224, paragraph two of the syllabus.

Id. at ¶ 32.

{¶ 11} In Jones, 2d Dist. Montgomery No. 24772, 2019-Ohio-119, Jones argued

that the trial court “failed to comply with R.C. 2943.032 by not informing Jones that if he

violates a condition of his mandatorily imposed post-release control sanction, he could be

sent back to prison for up to 9 months for each singular violation,” and that his plea was

accordingly “not knowingly and intelligently made and should be vacated.” Id. at ¶ 4.

This Court determined as follows:

Arguably, the trial court literally complied with Crim. R. 11 because it

advised the defendant of the “maximum penalty,” which included a prison

term, and advised him of imposition of the correct term of mandatory post-

release control, and advised him of the maximum possible sanction. One

could question whether Crim.R. 11 requires the court to tell the defendant

anything about the length of a [ ] post-release control sanction prison term

because that term is a consequence of a violation of the sanction, imposed

by the parole board and not a sentence imposed by the court for committing

the original offense. Moreover, the nine month sanction for each singular

violation is in R.C. 2943.032, not Crim.R. 11. Nevertheless, other appellate

courts have reviewed issues concerning the completeness of a post release

control explanation (aside from the mandatory/discretionary and 3/5

reversible errors) under a substantial compliance analysis. In State v.

Allen, 10th Dist. Franklin No. 11AP-640, 2012-Ohio-2986, ¶ 23, the court -10-

found substantial compliance “[b]ased upon the trial court’s explanation of

appellant’s maximum penalties, including the terms of mandatory post-

release control, combined with the information contained in the guilty plea

forms and the trial court’s inquiries regarding whether appellant discussed

the guilty plea forms with his attorney, understood the guilty plea forms, and

signed the guilty plea forms.” In State v. McDuffie, 8th Dist. Cuyahoga No.

96721, 2011-Ohio-6436, ¶ 24, the court found substantial compliance

where “the trial court advised appellant, ‘[s]hould you misbehave while

under their supervision, you can receive additional prison time under this

case number.’ ” In State v. Reese, 9th Dist. Wayne No. 09CA0020, 2009-

Ohio-6507, ¶ 9, the court concluded that, under the totality of the

circumstances, the defendant subjectively understood the consequences of

his plea even though the trial court failed to inform him about “the specific

terms of re-incarceration he might face for post-release control violations.”

And in State v. Munyan, 5th Dist. Licking No. 08-CA-88, 2009-Ohio-2348,

the appellate court concluded that the trial court substantially complied with

Crim.R. 11 despite not informing the defendant about the length of re-

incarceration he might face for violations of his post-release control under

former R.C. 2943.032(E). Consistent with the holding in these cases, we

determine that the trial court complied with Crim.R. 11 even though the

defendant was not expressly advised of the R.C. 2943.032 nine month

limitation, and therefore, Crim.R. 11 does not provide any basis for the

defendant to vacate his plea. -11-

Id. at ¶ 8.

{¶ 12} In Williams, 10th Dist. Franklin No. 10-AP-1135, 2011-Ohio-6231, to which

the State directs our attention, in the course of the plea hearing, “the trial judge did not

specifically raise the issue of post-release control.” Id. at ¶ 37. But the plea form did

address the issue with specificity, and the following exchange during the course of the

plea hearing in Williams:

THE COURT: Okay. Mr. Williams, have you had the opportunity

to go through this plea form with your attorney?

[APPELLANT]: Yes.

THE COURT: Has he explained all the rights you’re waiving and

the possible consequences of entering the plea?

Id. at ¶ 37.

{¶ 13} The Tenth District determined as follows:

Based upon the information contained in the plea form, combined

with the trial court’s inquiry regarding whether appellant had discussed the

possible consequences of the plea with his attorney, we find the trial court

substantially complied with the requirement to advise appellant of the

maximum penalties, including the imposition of post-release control, and

the consequences of violating post-release control, as set forth in Crim.R.

11(C) and R.C. 2943.032. The totality of the circumstances here indicates

that appellant knew about post-release control and the sanctions for

violating post-release control. * * * -12-

Id. at ¶ 39.

{¶ 14} Further, the Tenth District found Williams to be distinguishable from State

v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, “in that the Sarkozy

decision does not indicate there were any references to post-release control at all during

the plea colloquy, not even a plea form that set forth the applicable post-release control

information, as is present in the instant case.” Id. at ¶ 40.

{¶ 15} Finally, regarding prejudice, the Tenth District concluded as follows:

* * * [A]ppellant has not asserted that prejudice resulted from the trial

court’s failure to engage in some verbal dialogue specifically about post-

release control. Nor does appellant assert that, had he been personally

informed by the trial court about post-release control, he would have

withdrawn/never entered into the plea and proceeded to trial. We find the

record does not demonstrate prejudice resulting from the trial court’s

acceptance of his guilty plea in this fashion and, therefore, we conclude the

trial court substantially complied with Crim.R. 11(C) and R.C. 2943.032. * * *

Id. at ¶ 41.

{¶ 16} Having reviewed the above authorities, we conclude that the trial court did

not fail to comply, rather substantially complied, with Crim.R. 11(C)(2)(a) by inquiring of

Camp if he signed the plea form, reviewed it with counsel, and understood its contents.

The plea form accurately indicated that Camp was subject to post-release control for a

mandatory period of five years; R.C. 2967.28(A)(3) provides that “ ‘[f]elony sex offense’

means a violation of a section contained in Chapter 2907. of the Revised Code that is a

felony,” such as GSI, and R.C. 2967.28(B) provides that “[e]ach sentence to a prison term -13-

for a felony of the first degree, * * * [or] for a felony sex offense, * * * shall include a

requirement that the offender be subject to a period of post-release control imposed by

the parole board after the offender’s release from imprisonment.” We note that R.C.

2967.28(F)(4)(c) provides that multiple periods “of post-release control shall be served

concurrently * * *,” and Camp was subject to a mandatory five-year period of post-release

control. Camp’s plea form further accurately advised him that a violation of post-release

control could result in a more restrictive sanction, including increased duration of

supervision to a maximum term of eight years, pursuant to R.C. 2967.28(D)(3). Camp’s

plea form also accurately advised him that a violation of post-release control could result

in imprisonment for up to nine months per violation, pursuant to R.C. 2943.032, which

complements R.C. 2967.28 (F)(3), or a total of one half of his original term. Finally,

tracking the language of R.C. 2929.141(A)(1), Camp’s plea form advised him that if he

commits a felony while on post-release control, he could receive a prison term of the

greater of 12 months or the time remaining on post-release control. In response to the

trial court’s inquiry, Camp expressly advised the court that he understood the foregoing

contents of his plea form at his plea hearing, and we conclude that the totality of the

circumstances indicates that Camp knew about post-release control and the possible

sanctions for violating post-release control.

{¶ 17} Significantly, Camp does not argue that he would not have entered his guilty

pleas if he had been orally advised regarding post-release control or of the consequences

of violating post-release control, and we conclude that he fails to demonstrate a prejudicial

effect. In other words, Crim.R. 11 does not provide a basis for vacating Camp’s guilty

pleas. Since substantial compliance by the trial court is demonstrated, Camp’s sole -14-

assignment of error is overruled. The judgment of the trial court is affirmed.

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

WELBAUM, P.J. and FROELICH, J., concur.

Copies mailed to:

Elizabeth McCormick Adam Stout Hon. Douglas M. Rastatter