[Cite as State v. Welch, 2017-Ohio-314.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Appellate Case No. 2016-CA-6 Plaintiff-Appellee : : Trial Court Case No. 15-CR-411 v. : : (Criminal Appeal from JOHN WELCH : Common Pleas Court) : Defendant-Appellant : :
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OPINION
Rendered on the 27th day of January, 2017.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post Office Box 1262, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} John Welch appeals from his conviction and sentence on one count of fifth-
degree-felony domestic violence and from the trial court’s imposition of a separate -2-
sentence for violating post-release control.
{¶ 2} Welch advances two assignments of error. First, he contends the trial court
erred in failing to give him proper credit on his sentence for violating post-release control.
Second, he claims his guilty plea to domestic violence is invalid because the trial court
failed to tell him during a plea hearing that any prison sentence for the post-release control
violation was required to be imposed consecutively.
{¶ 3} We begin our analysis with the second assignment of error. The record
reflects that Welch, who was on post-release control, pled guilty to domestic violence in
exchange for dismissal of a felonious-assault charge. The written plea form included the
following language: “I understand that if I am now on felony probation, parole, or under
post-release control from prison, this plea may result in revocation proceedings and any
new sentence will be imposed consecutively.” (Emphasis added) (Doc. # 37). At the plea
hearing, the trial court asked Welch about the plea form, confirming that he had a chance
to go over it with his attorney and that he understood “everything in it.” (Plea Tr. at 4). The
trial court also told Welch that “a guilty plea in this case could result in some additional
incarceration for violating your post-release control[.]” (Id. at 5). With regard to the new
domestic violence charge, the trial court explained that Welch was subject to a mandatory
prison sentence on it. It then advised him about post-release control for that new offense.
Among other things, it told him: “If you commit a felony offense while on post-release
control, you could return to prison for the amount of time you have remaining on post-
release control or one year, whichever is greater, and that will be consecutive to the time
you would get for the new felony offense.” (Id. at 6-7).
{¶ 4} After accepting Welch’s plea, the trial court found him guilty. It later -3-
sentenced him to 12 months in prison for the domestic violence conviction. It imposed an
additional 32 months (the time remaining on post-release control) for violating the terms
of his post-release control by engaging in domestic violence. It ordered the two terms to
be served consecutively.
{¶ 5} On appeal, Welch argues that his guilty plea was not entered knowingly,
intelligently, and voluntarily because the trial court failed to inform him, at the plea hearing,
that any prison sentence it imposed for violating post-release control was required to be
consecutive to his domestic violence sentence. In that regard, R.C. 2929.141(A)(1)
provides that a prison term imposed for a post-release control violation “shall be served
consecutively to any prison term imposed for the new felony.”
{¶ 6} In State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, this
court addressed a similar issue. The defendant in Branham had been on post-release
control when he engaged in gross sexual imposition (GSI). He pled guilty to the GSI
charge. The plea form advised him that post-release control could be revoked and that
any sentence for having violated post-release control “could be imposed consecutively”
to the GSI sentence. Branham at ¶ 11. The trial court subsequently imposed consecutive
sentences for the gross sexual imposition conviction and for the post-release control
violation.
{¶ 7} On review, this court reasoned:
* * * [T]he trial court failed to inform Branham during the plea colloquy
that, pursuant to the explicit language in R.C. 2929.141(A)(1), if it revoked
his PRC, imposition of consecutive sentences for the violation was, in fact,
mandatory upon imposition of a prison term for GSI. -4-
Significantly, although the plea form signed by Branham included a
provision which informed him of the effect that his PRC violation could have
on sentencing, it did not contain any language putting him on notice that
consecutive sentences were mandatory upon a prison sentence on the GSI.
Rather, the general provision in the plea form merely states that the trial
court “could” impose consecutive sentences in the event of a violation of
felony probation, parole, community control sanction, or post-release
control from prison. The use of the word “could” in this context is misleading.
The trial court not only should have told Branham that it was not
bound by the State’s recommendation, but also if a new prison term was
imposed and the court elected to revoke his PRC, the time must be served
consecutively. The trial court did not have the discretion to use the word
“could” as the language in the plea form suggests.
Branham's sole assignment of error is sustained.
Id. at ¶ 12-15.
{¶ 8} In State v. Landgraf, 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448, this
court applied and followed Branham. The defendant in Landgraf pled guilty to felony theft
of a motor vehicle. At that time, he was on post-release control for an earlier conviction.
The plea form advised him that post-release control could be revoked and that any new
sentence for having violated post-release control “could be imposed consecutively.” Post-
release control was not mentioned at the plea hearing. The trial court confirmed, however, -5-
that the defendant had reviewed the plea form and that he understood it. The trial court
later imposed consecutive sentences for the felony theft conviction and for the post-
release control violation. On appeal, this court’s lead opinion relied on Branham and
reasoned:
Landgraf raises these same issues in the context of the voluntariness
of his plea, and we find Branham to be relevant to our resolution of that
issue. In this case, the trial court did not inquire at the plea hearing whether
Landgraf was on post-release control at the time of his offense, and the trial
court did not address any of the consequences that Landgraf faced under
R.C. 2929.141 if Landgraf were to plead guilty to a new felony.
In our view, Crim.R. 11 required the trial court to inform Landgraf
that, if he pled guilty to theft of a motor vehicle (a new felony), the court
could terminate his previously-imposed post-release control and, if a prison
term were imposed for the theft of a motor vehicle charge, the trial court
could also impose a prison term for the post-release control violation, which
would be served consecutively to the prison term imposed on the new felony
(theft of a motor vehicle). In addition, the trial court should have notified
Landgraf of the maximum prison term he faced for violating the post-release
control imposed by the Montgomery County court.
The plea form was insufficient to notify Landgraf of the
consequences of pleading guilty to a felony committed while under post-
release control. The plea form stated that “this plea may result in revocation
proceedings and any new sentence could be imposed consecutively. I know -6-
any prison term stated will be served without good time credit.” (Emphasis
added.) As we stated in Branham, this language is misleading in that it
suggests that the trial court had the discretion whether to impose a
consecutive sentence for the post-release control violation.
Id. at ¶ 22-24.
{¶ 9} Two members of the Landgraf panel concurred separately, solely on the
basis of stare decisis, while expressing disagreement with Branham’s analysis and
outcome. Id. at ¶ 28-29 (Hall, J., concurring) and ¶ 30 (Welbaum, J., concurring).
{¶ 10} Having reviewed Branham and Landgraf, as well as the requirements of
Crim.R. 11, we find Welch’s case distinguishable from those cases and conclude that his
guilty plea was valid. Welch’s argument references Crim.R. 11(C)(2)(a), which requires a
defendant to be told the maximum penalty he faces. Welch contends he was not told the
maximum penalty he faced because the trial court did not inform him, during his plea
hearing, about the mandatory consecutive nature of any prison sentence it might impose
for violating post-release control. 1 This court addressed the requirements of Crim.R.
11(C)(2) in Landgraf as follows:
Crim.R. 11(C)(2) requires the court to address the defendant
personally and (a) determine that the defendant is making the plea
voluntarily, with an understanding of the nature of the charges and the
maximum penalty, and, if applicable, that the defendant is not eligible for
1 Landgraf’s lead opinion also stated that the trial court should have told the defendant the maximum amount of prison time he faced for violating post-release control. Landgraf at ¶ 23. Welch does not raise that particular argument here. Instead, he argues only that the trial court erred in failing to tell him he faced a mandatory consecutive prison term for violating post-release control. (Appellant’s brief at 4-7). -7-
probation or for the imposition of community control sanctions; (b) inform
the defendant of and determine that the defendant understands the effect
of the plea of guilty and that the court, upon acceptance of the plea, may
proceed with judgment and sentencing; and (c) inform the defendant and
determine that he understands that, by entering the plea, the defendant is
waiving the rights to a jury trial, to confront witnesses against him, to have
compulsory process for obtaining witnesses, and to require the State to
prove his guilt beyond a reasonable doubt at a trial at which he cannot be
compelled to testify against himself. State v. Brown, 2d Dist. Montgomery
No. 21896, 2007-Ohio-6675, ¶ 3.
The Supreme Court of Ohio has urged trial courts to literally comply
with Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve
non-constitutional rights, the trial court need only substantially comply with
those requirements. E.g., State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d
474 (1990). “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.” Id. In contrast, the trial court must
strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal
constitutional rights. Clark at ¶ 31.
Furthermore, when non-constitutional rights are at issue, a
defendant who challenges his guilty plea on the basis that it was not
knowingly, intelligently, and voluntarily made generally must show a -8-
prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would
otherwise not have been entered. Id. at ¶ 15.
Landgraf at ¶ 12-14.
{¶ 11} Here Welch’s invocation of Crim.R. 11(C)(2)(a) involves a non-
constitutional right. Therefore, even accepting (on the basis of Branham, Landgraf, and
the principle of stare decisis) that Crim.R. 11(C)(2)(a) obligated the trial court to inform
Welch of the mandatory consecutive nature of any prison sentence it might impose for
violating post-release control, we find at least substantial compliance here. Under the
totality of the circumstances, Welch undoubtedly understood that he faced a mandatory
consecutive sentence if a prison term were imposed for violating post-release control. We
reach this conclusion for three reasons.
{¶ 12} First, unlike Branham and Landgraf, the plea form in this case explicitly
informed Welch that his plea “may result in revocation proceedings” and that “any new
sentence will be imposed consecutively.” The primary reason for finding the pleas invalid
in Branham and Landgraf was the fact that the plea forms in those cases said “any new
sentence could be imposed consecutively.” The fact that the plea form in the present case
correctly advised Welch meaningfully distinguishes Branham and Landgraf.
{¶ 13} Second, the trial court orally confirmed at the plea hearing that Welch had
reviewed the plea form with his attorney and that he understood everything in it. We
recognize that the trial court did the same thing in Landgraf. See Landgraf at ¶ 6. In that
case, however, the plea form only mentioned the possibility of a consecutive sentence.
Here the plea form made clear that any prison sentence for violating post-release control -9-
would be consecutive, and the trial court made sure Welch reviewed and understood the
form. This fact supports a conclusion that he “subjectively understood” the mandatory
consecutive nature of the penalty he faced. See State v. Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12, 16, 19 (finding substantial compliance with Crim.R.
11(C)(2)(b) regarding the effect of a plea where the defendant signed a plea form
admitting his guilt and indicated his understanding of the contents of the document and
the rights he was waiving, notwithstanding the trial court’s failure to inform the defendant
of the effect of his plea at the plea hearing); see also State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 16.
{¶ 14} Third, the trial court did orally advise Welch at the plea hearing: “If you
commit a felony offense while on post-release control, you could return to prison for the
amount of time you have remaining on post-release control or one year, whichever is
greater, and that will be consecutive to the time you would get for the new felony offense.”
(Emphasis added) (Plea Tr. at 6-7). The trial court admittedly made this statement in the
context of explaining the consequences of prospectively violating post-release control for
his new domestic violence offense. The trial court conveyed exactly the same information,
however, that Welch contends was missing from his plea hearing. Because Welch
obviously did commit a new felony offense (domestic violence) while on post-release
control for an earlier offense, the trial court’s statement of law about any prison sentence
for a post-release control violation being consecutive further supports our conclusion that
he subjectively understood the nature of the penalties he faced.
{¶ 15} For each of the foregoing reasons, we conclude that the trial court at least
substantially complied with Crim.R. 11(C)(2)(a) insofar as the rule may have obligated it -10-
to inform Welch about the mandatory consecutive nature of any prison sentence imposed
for violating post-release control. We also find no merit in Welch’s argument that he
suffered prejudice. Although he claims he would not have entered his guilty plea if he had
known about the mandatory consecutive sentence for violating post-release control, the
record does not support this claim. The record reveals that Welch did know any such
sentence would be consecutive. Indeed, he acknowledged that fact, shortly before the
plea hearing, in his written plea. As set forth above, the trial court also provided him with
that information, during the hearing, while discussing the consequences of a post-release
control violation for his new offense. Welch’s second assignment of error is overruled.
{¶ 16} We turn now to the first assignment of error, which challenges the trial
court’s failure to “credit” Welch’s sentence properly. This assignment of error concerns
an administrative sanction the Adult Parole Authority (APA) imposed on Welch prior to
the trial court’s sentencing below. In his appellate brief, Welch asserts that he was
subjected to an APA post-release control hearing based on his new domestic violence
offense. He further asserts that the APA imposed a sanction of 90 days in prison and 90
days of home detention for his violation. According to Welch, “[t]his time was to begin at
the conclusion of the hearing and was not reduced by the time he had spent incarcerated
awaiting the hearing.” (Appellant’s brief at 2).
{¶ 17} Welch raises two specific arguments on appeal. First, he contends the trial
court erred in failing to reduce his 32-month sentence for violating post-release control by
six months to account for the sentence imposed by the APA (i.e., 90 days for the APA-
imposed prison term and 90 days for the home detention). Second, he claims the trial
court erred in failing to give him jail-time credit for time he spent incarcerated while -11-
awaiting his APA administrative revocation hearing. (Appellant’s brief at 4).
{¶ 18} Upon review, we find Welch’s first argument to be persuasive, but only in
part. His presentence investigation (PSI) report indicates that the APA held a hearing and
administratively sanctioned him after his act of domestic violence. It appears from the
record that Welch assaulted his ex-girlfriend in the early morning hours of August 2, 2015.
The PSI indicates that “on August 3rd, 2015, there was a probation violation and the
defendant’s penitentiary sentence was re-imposed and he was returned to OSP.”
Although the date is one day off, this reference to a “probation violation” on August 3,
2015, seems to be a reference to Welch’s act of domestic violence, which constituted a
post-release control violation. The PSI does not indicate when the administrative hearing
occurred. Nor does it identify the length of the administrative sanction imposed. At the
conclusion of Welch’s sentencing hearing, however, the trial court accepted defense
counsel’s representation that Welch “was given ninety days of prison time as well as
ninety days of GPS [home detention], and that was ordered on November 24, 2015.”
(Sentencing Tr. at 7).
{¶ 19} Under R.C. 2929.141(A)(1), the trial court was obligated to reduce the
prison term it imposed for Welch’s post-release control violation. That statute provides:
“In all cases, any prison term [judicially] imposed for the [post-release control] violation
shall be reduced by any prison term that is administratively imposed by the parole board
as a post-release control sanction.” Here the trial court did not do so. It ordered Welch to
serve a prison term of 32 months for his post-release control violation without making any
reduction for the 90-day prison term that the APA already had imposed.2 Under the plain
2 At sentencing, the trial court expressed its desire to return Welch to prison for the full -12-
language of R.C. 2929.141(A)(1), the trial court was required to reduce its 32-month
prison term by three months to account for the APA’s existing prison sanction. Contrary
to his argument, however, Welch was not entitled to an additional three-month reduction
to account for the APA’s home-detention sanction. As set forth above, R.C.
2929.141(A)(1) specifically obligated the trial court to reduce its sentence only by the
length of “any prison term that is administratively imposed by the parole board[.]”
(Emphasis added).
{¶ 20} Finally, we are unpersuaded by Welch’s argument that the trial court erred
in failing to give him credit for time he spent in confinement awaiting his APA
administrative hearing. The record suggests that the administrative hearing occurred on
or about November 24, 2015. (Sentencing Tr. at 7). The trial court’s sentencing entry gave
Welch jail-time credit from August 3, 2015 (the day after his domestic violence offense)
until November 27, 2015 (which appears to be when he was conveyed to prison to begin
serving his APA-imposed prison sentence). (Doc. #39 at 2). The trial court also gave
Welch jail-time credit from December 31, 2015 (when he was returned to the Clark County
amount of his unserved time on post-release control. As of the date of the sentencing hearing, the trial court found this to be two years and eight months, or 32 months. (Sentencing Tr. at 6). It appears to us, however, that Welch arguably had 34 months of unserved post-release control time remaining. He was placed on post-release control on September 25, 2013. (PSI report at 2). The APA returned him to prison 26 months later on or about November 24, 2015. (Sentencing Tr. at 7). At that time, then, he had 34 months of unserved post-release control remaining. Although two more months elapsed before the trial court sentenced Welch on January 26, 2016, he arguably did not serve any post-release control during those two months because the APA already had returned him to prison. The trial court did not attribute this 2-month difference to reflect a 90 day reduction under R.C. 2929.141(A(1), minus the one month he served back in prison from late November to late December. It appears to just be a miscalculation. In any event, the trial court determined at sentencing that Welch had only 32 months of unserved post- release control remaining, and the State has not challenged that determination. -13-
jail for sentencing) until his re-conveyance to prison on January 27, 2016. Therefore,
Welch has not identified any period of time for which the trial court failed to award him
proper jail-time credit.
{¶ 21} Based on the reasoning set forth above, Welch’s first assignment of error is
sustained in part and overruled in part. The assignment of error is sustained insofar as
the trial court erred in failing to reduce its 32-month prison term for Welch’s post-release
control violation by three months to account for the APA’s existing prison sanction. In all
other respects, the first assignment of error is overruled. We note, however, that the Ohio
Department of Rehabilitation and Correction’s (ODRC) online records currently do not
reflect the 90-day prison sentence administratively imposed on Welch by the APA. The
ODRC’s web site reflects the trial court’s one-year sentence for domestic violence and its
32-month sentence for violating post-release control. See State v. Evans, 2d Dist.
Montgomery No. 24928, 2012-Ohio-5099, ¶ 8-9 (taking judicial notice of the ODRC
website). We are unable to determine how ODRC has calculated the administrative
sanction in their computations. Given that the trial court’s 32-month sentence must be
reduced by three months pursuant to R.C. 2929.141(A)(1), Welch also can be required
to serve the remainder of the 90-day administrative prison sentence previously imposed.
With regard to that 90-day sentence, the record suggests that he already served thirty-
five days of it between November 27, 2015 (when he appears to have been conveyed
from jail to ODRC’s custody) and December 31, 2015 (when he was conveyed from
ODRC’s custody back to jail). (See Doc. #35, Doc. #40 at 2). He may be required to serve
the remaining 55 days of that administrative sanction, separate and in addition to the trial
court judicial PRC sentence which has now been reduced to reflect the administrative -14-
sanction. In any event, proper recording and computation of Welch’s 90-day
administrative prison sentence is beyond the scope of this appeal. For present purposes,
we note only that the ODRC web site fails to reflect the existence of that administrative
sentence, the remainder of which Welch can be required to serve.
{¶ 22} Pursuant to §3(B)(2), Article IV of the Ohio Constitution and App. R. 12(B),
we hereby modify the trial court’s judgment by reducing Welch’s 32-month prison
sentence for violating post-release control to 29 months in accordance with R.C.
2929.141(A)(1). The result is an aggregate prison sentence of three years and five
months rather than three years and eight months. As so modified, the trial court’s
judgment is affirmed.
FROELICH, J., and WELBAUM, J., concur.
Copies mailed to:
Megan Farley Jon Paul Rion Nicole Rutter-Hirth Hon. Douglas M. Rastatter ODRC-Bureau of Sentence Computation