State v. Mull

2024 Ohio 370

• Court: Ohio Court of Appeals
• Decided: February 2, 2024
• Docket: WD-23-004 & WD-23-012
• Status: Published

Opinion

[Cite as State v. Mull, 2024-Ohio-370.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-23-004 WD-23-012 Appellee Trial Court No. 2021CR0419 2022CR0119

v.

Jeremy W. Mull DECISION AND JUDGMENT

Appellant Decided: February 2, 2024

*****

Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold, Chief Assistant Prosecuting Attorney, and Dexter L. Phillips, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

OSOWIK, J.

{¶ 1} This is a delayed, consolidated appeal from the judgments by the Wood

County Court of Common Pleas which sentenced appellant, Jeremy W. Mull, to an

aggregate indefinite prison term of 12 to 16 years after the trial court accepted appellant’s guilty pleas to three offenses and convicted him of them along with violating his

postrelease control in another case. For the reasons set forth below, this court reverses

the trial court’s judgments.

I. Background

{¶ 2} On August 19, 2021, a Wood County Grand Jury issued a true bill

indictment, as subsequently amended, against appellant for three offenses: felonious

assault, a violation of R.C. 2903.11(A)(1) and a second-degree felony pursuant to R.C.

2903.11(D)(1)(a); endangering children, a violation of R.C. 2919.22(B)(1) and a second-

degree felony pursuant to R.C. 2919.22(E)(2)(d); and endangering children, a violation of

R.C. 2919.22(A) and a third-degree felony pursuant to R.C. 2919.22(E)(2)(c). Appellee,

state of Ohio, alleged that between August 3 and August 7, 2021, appellant caused

physical harm to his live-in girlfriend and to her eight-year-old child, to whom appellant

had assumed the role of stepfather. Both victims required medical attention, but medical

attention for the child’s severe injuries was withheld by appellant for four days.

Appellant told his live-in girlfriend and the child that if they left the residence or called

the police he would kill them. Appellant isolated the child in his bedroom where he was

also denied soap, water, and a change of clothes. When the child finally received medical

attention, a forensic nurse carefully documented the child’s extensive injuries. The case

was assigned by the Wood County Common Pleas Court case No. 2021CR0419.

2. Appellant pled not guilty to all offenses, and discovery commenced in anticipation of that

trial.

{¶ 3} Then on March 17, 2022, a Wood County Grand Jury issued a true bill

indictment against appellant for domestic violence, a violation of R.C. 2919.25(A) and a

third-degree felony pursuant to R.C. 2919.25(D)(4). Appellee alleged that on or about

June 30, 2021, appellant caused physical harm to his live-in girlfriend after having

previously pleaded guilty to or been convicted of three domestic violence offenses.

Appellee did not identify that in one of those three previous domestic violence

convictions,1 appellant was subject to postrelease control at the time appellant committed

this new felony. The case was assigned by the Wood County Common Pleas Court No.

2022CR0119. Appellant pled not guilty to the offense, and discovery commenced in

anticipation of that trial.

{¶ 4} On August 25, the trial court granted appellee’s motion to join the cases for

{¶ 5} On October 7, appellant pled guilty to three offenses: the two endangering-

children offenses from case No. 2021CR0419 and the domestic violence offense from

case No. 2022CR0119. The trial court conducted a plea colloquy, accepted appellant’s

guilty pleas, and convicted him of the three offenses.

1 Sandusky County Common Pleas Court case No. 2018CR0501.

3. {¶ 6} As journalized on December 20, the trial court sentenced appellant as

follows: (1) for case No. 2021CR0419 endangering children, a violation of R.C.

2919.22(B)(1) and a second-degree felony pursuant to R.C. 2919.22(E)(2)(d), a minimum

definite prison term of eight years to a maximum indefinite term of 12 years; (2) for case

No. 2021CR0419 endangering children, a violation of R.C. 2919.22(A) and a third-

degree felony pursuant to R.C. 2919.22(E)(2)(c), a prison term of three years to be served

consecutively to, and did not merge with, the first count of endangering children; (3) for

case No. 2022CR0119 domestic violence, a violation of R.C. 2919.25(A) and a third-

degree felony pursuant to R.C. 2919.25(D)(4), a prison term of 18 months to be served

concurrent to both endangering children sentences from case No. 2021CR0419; and (4)

for case No. 2021CR0419 “one year in prison for the violation of post release control” to

be served consecutively to both endangering children sentences from case No.

2021CR0419 for “a total aggregate sentence of 12 years as a minimum definite term to

16 years as a maximum indefinite term.”

{¶ 7} Appellee dismissed at sentencing the felonious assault offense under case

No. 2021CR0419.

{¶ 8} Appellant timely appealed the trial court’s judgment in case No.

2021CR0419, which was assigned appeals case No. WD-23-004. Appellant then sought,

and was granted, a delayed appeal of the trial court’s judgment in case No. 2022CR0119,

which was assigned appeals case No. WD-23-012. This court subsequently consolidated

4. case No. WD-23-012 under case No. WD-23-004 pursuant to App.R. 3(B). Appellant

sets forth three assignments of error:

1. The trial court abused its discretion by imposing one year in the

ODRC for a violation of Appellant’s post-release control.

2. The trial court did not substantially comply with the requirements

of Crim.R. 11(C)(2)(a), therefore Appellant’s plea was not offered

knowingly, intelligently, and voluntarily.

3. The trial court erred by denying Appellant’s motion to merge two

counts of endangering children.

{¶ 9} We will address appellant’s second assignment of error, which is dispositive

of this appeal.

II. Crim.R. 11(C)(2)(a)

{¶ 10} In support of his second assignment of error, appellant argues that the trial

court committed reversible error under Crim.R. 11(C)(2)(a) when the trial court failed to

orally advise appellant at the time of his change of pleas that it could impose a judicial

sanction pursuant to R.C. 2929.141 for violating his postrelease control sanction imposed

by the Sandusky County Common Pleas Court in case No. 2018CR0501. Appellant

concedes he was subject to a postrelease control sanction imposed by the Sandusky

County Common Pleas Court in case No. 2018CR0501 at the time of the three offenses to

which he pled guilty in this matter. Appellant argues that his three guilty pleas were not

5. offered knowingly, voluntarily, and intelligently, and the trial court erred when it

accepted them and convicted him of those offenses.

{¶ 11} Appellee responds that no trial court error occurred for four reasons. First,

at the change of plea hearing the trial court orally advised appellant that the maximum

prison term he faced was 18 years, and he was not prejudiced because he received less

than that even with the one-year postrelease control sanction, a non-constitutional right.

Second, there was not a complete failure to comply with Crim.R. 11(C)(2)(a) because the

guilty plea agreements appellant signed in case Nos. 2021CR0419 and 2022CR0119

advised him of the potential sanctions for violating existing postrelease control: “I

understand that if I am now * * * under post release control from prison, this plea may

result in revocation proceedings and any new sentence could be imposed consecutively.”

Third, appellant’s reliance on State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124

N.E.3d 766, and on State v. Acosta, 2023-Ohio-737, 210 N.E.3d 67 (6th Dist.), are

misplaced where the facts are materially different because appellant was not ordered to

serve a total prison term greater than what he was warned it could be. Fourth, appellant’s

violation of his postrelease control sanction in Sandusky County was unknown to the trial

court until it received the confidential presentence investigation report, which was after

the change of plea hearing. Nevertheless, appellee, without conceding error under 6th

Dist.Loc.App.R. 10(H), states that, “in the interests of equity, the State would endorse

6. this Court, under App.R. 12(A)(1)(a), removing the one-year prison sanction that the trial

court imposed on Mull pursuant to R.C. 2929.141.”

{¶ 12} A defendant entering a plea in a criminal case must do so knowingly,

intelligently and voluntarily, and the failure of any one element renders enforcement of

that plea unconstitutional. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164

N.E.3d 286, ¶ 10. The three-part inquiry on appeal is: “(1) has the trial court complied

with the relevant provision of the rule? (2) if the court has not complied fully with the

rule, is the purported failure of a type that excuses a defendant from the burden of

demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant

met that burden?” Id. at ¶ 17. A trial court’s complete failure to comply with a portion

of Crim.R. 11(C) eliminates appellant’s burden to show prejudice. Id. at ¶ 15.

{¶ 13} “R.C. 2929.141(A) provides that when a defendant who is on postrelease

control is convicted of a new felony, the trial court may terminate the postrelease-control

term and impose a prison term for the postrelease-control violation, ‘regardless of

whether the sentencing court or another court of this state imposed the original prison

term for which the person is on post-release control.’” In re Disqualification of

Batchelor, 160 Ohio St.3d 1235, 2020-Ohio-4052, 155 N.E.3d 956, ¶ 7. “If a prison term

is imposed, R.C. 2929.141(A)(1) establishes the maximum prison term and requires the

defendant to serve the additional term consecutively to the prison term for the new

7. felony. This additional penalty is often referred to as a ‘judicial sanction.’” Id., citing

Bishop at ¶ 13.

{¶ 14} A plea must be vacated under Crim.R. 11(C)(2)(a) where the trial court

fails to advise a defendant on postrelease control for a prior felony, during the plea

hearing in a new felony case, of the court’s authority under R.C. 2929.141 to terminate

the defendant’s existing postrelease control sanction and to impose a consecutive prison

sentence for violating the postrelease control. Bishop at ¶ 21.

{¶ 15} We apply a de novo review to whether appellant’s guilty pleas were

entered in compliance with Crim.R. 11(C)(2)(a). State v. Acosta, 2023-Ohio-737, 210

N.E.3d 67, ¶ 18 (6th Dist.).

{¶ 16} On appeal, appellant concedes: (1) the three offenses occurred while he

was on postrelease control in Sandusky County; (2) that “he was informed by the court at

his plea hearing of the maximum penalties he faced for the charges he was pleading to”;

and (3) the two, separate plea agreements he signed in this matter advised him that his

guilty “plea may result in revocation proceedings and any new sentence could be

imposed consecutively.” However, the foregoing is not apparent in the trial court record.

{¶ 17} Upon de novo review, we find that at the October 7, 2022 change of plea

hearing the trial court did not ask if appellant was on postrelease control in a prior case.

Although the indictment for case No. 2022CR0119 specifically references Sandusky

County Common Pleas Court case No. 2018CR0501, no part of the sentence appellant

8. received in the Sandusky County case is included in the record of case No. 2022CR0119,

let alone in the record of case No. 2021CR0419, where the one-year sentence for

violating the postrelease control was imposed. The trial court failed to orally inform

appellant, separately from the written plea agreements, that any new sentence for

violation of his existing postrelease control could be imposed consecutively to the three

offenses to which he pled. The trial court never drew appellant’s attention to the relevant

clauses of each plea agreement he was asked to sign.

{¶ 18} Based on the foregoing, we find that due to the trial court’s failure at the

change of plea hearing to orally advise appellant of the potential R.C. 2929.141(A)

sentence as part of the maximum penalty involved, appellant is not required to show

prejudice, and his three guilty pleas were not knowingly, voluntarily, and intelligently

made. Acosta at ¶ 23; Bishop at ¶ 20 (a trial court’s complete failure to inform the

defendant that a consecutive prison sentence under R.C. 2929.141(A) was possible is not

“partial compliance,” and the defendant need not show prejudice). The certified question

determined by the Ohio Supreme Court in Bishop focused on whether Crim.R.

11(C)(2)(a) required a specific advisement by the trial court at the plea hearing. Bishop

at ¶ 1. As explained by the Seventh District Court of Appeals, “Bishop does not hinge on

whether a defendant receives a maximum sentence. * * * [It] stands for the proposition

that ‘a criminal defendant on (post-release control) for a prior felony must be advised,

during his plea hearing in a new felony case, of the trial court’s ability under R.C.

9. 2929.141 to terminate his existing (post-release control) and to impose a consecutive

prison sentence for the (post-release control) violation.’” (Emphasis added.) State v.

Crook, 7th Dist. Mahoning No. 21 MA 0051, 2022-Ohio-896, ¶ 22, quoting State v.

Bishop, 152 Ohio St.3d 1404, 2018-Ohio-723, 92 N.E.3d 877. We agree.

{¶ 19} Appellant’s second assignment of error is well-taken. Appellant’s first and

third assignments of error are moot. App.R. 12(A)(1)(c).

III. Conclusion

{¶ 20} On consideration whereof, we decline appellee’s suggestion to simply

modify appellant’s sentences pursuant to App.R. 12(A)(1)(a). The judgments of

conviction and sentencing by the Wood County Court of Common Pleas are reversed.

We vacate appellant’s guilty pleas and remand the matters to the trial court for

proceedings consistent with this decision. Appellee is ordered to pay the costs of this

appeal pursuant to App.R. 24.

Judgments reversed, and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

10. State of Ohio v. Jeremy W. Mull WD-23-004, WD-23-012

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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