[Cite as State v. Bumgardner, 2017-Ohio-50.]

COURT OF APPEALS 

MORGAN COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMARK C. BUMGARDNER 

 Defendant-Appellant 

JUDGES: 

: Hon. Sheila G. Farmer, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 15AP0014 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Morgan County 

Court of Common Pleas, Case 

No.14CR0023 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 6, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MARK HOWDYSHELL PETER CULTICE 

19 East Main Street 58 North Fifth Street 

McConnelsville, OH 43756 Zanesville, OH 43701 
Morgan County, Case No. 15AP0014 2 

Gwin, J., 

{¶1} Appellant Mark Bumgardner appeals the October 13, 2015 judgment entry 

of the Morgan County Court of Common Pleas. Appellee is the State of Ohio. 

Facts & Procedural History

{¶2} An indictment was filed against appellant on June 18, 2014 stating he 

violated R.C. 2923.13(A)(3) by having weapons while under disability. A bill of particulars 

filed on January 14, 2015 stated appellant had in his possession, at his residence, twentyeight live rounds of .17 caliber ammunition, four casings of fired ammunition, and a Marlin 

model 917 firearm. The bill of particulars further alleged appellant was previously 

convicted of possession of marijuana in violation of R.C. 2925.11(1)(C)(d). 

{¶3} Appellant signed a jury waiver on February 26, 2015. Appellant signed a 

plea of guilty on April 14, 2015 stating he entered the plea with the understanding of the 

nature of the charge and the consequences, including the penalty of the plea. Further, 

that he had been fully advised by the court of all of his constitutional rights. In the plea 

form, appellant acknowledged he voluntarily waived all of his constitutional rights. 

{¶4} The trial court held a plea hearing on April 14, 2015. During the plea 

hearing, the trial court informed appellant of the maximum prison term and fines for the 

violation. The trial court further questioned appellant, “And do you understand that after 

you are released from incarceration, if that is what happens, that you would be placed on 

post-release control or probation under standard rules for a definite period of three years? 

You understand that?” Appellant responded, “Yes, sir.” 

{¶5} The trial court further asked appellant if he was currently on probation or 

community control. Appellant stated he was currently on community control. The trial 
Morgan County, Case No. 15AP0014 3 

court asked appellant if he understood “that if you plead guilty to this charge, that could be 

a violation of your probation, parole, or community control in the other case and could 

subject you to a penalty for that also? Do you understand that?” Appellant stated, “Yes, 

sir.” The trial court then reviewed with appellant and confirmed he understood the rights 

he was waiving by entering a plea of guilty. The trial court also went over the plea form 

with appellant and confirmed he understood the nature of the charge and the 

consequences, including the maximum penalty, of the plea. Appellant stated he 

understood what the document was and wanted the court to accept the pleading. Further, 

that he understood the judge would decide his sentence and he could receive the 

maximum penalty as prescribed by law. The trial court accepted appellant’s plea of guilty, 

found the plea was made freely, understandingly, and voluntarily, with full knowledge of 

the nature of the accusation and the consequences of the plea, and without undue 

influence, compulsion, duress, or promise of leniency. 

{¶6} In an April 20, 2015 change of plea entry issued by the trial court, the trial 

court stated it explained the possible penalties that might be imposed if appellant were 

found guilty and appellant said he understood and wanted the court to proceed with and 

accept his plea. The trial court found appellant “entered the guilty plea freely, knowingly, 

intelligently and voluntarily and fully understanding the nature of the charges and 

accusations against him and all the possible consequences and penalties resulting 

therefrom.” The trial court ordered a pre-sentence investigation report and set the 

sentencing hearing for June 10, 2015. Appellant filed a motion to continue the sentencing 

hearing. The trial court granted the motion and continued the hearing until June 30, 2015. 

Appellant filed a second motion to continue and requested the trial court defer the 
Morgan County, Case No. 15AP0014 4 

sentencing hearing until a hearing was held on appellant’s alleged probation violation in 

an earlier case. 

{¶7} The trial court held a hearing on October 8, 2015. First, appellant pled guilty 

to a probation violation in a previous case, No. 11-CR-0062, as a result of his plea in the 

instant case. When the trial court asked appellant whether there were sufficient facts to 

find that he was guilty of the probation violation, appellant stated “Yes, sir.” In the previous 

case, appellant pled guilty to one count of having weapons while under disability and 

received a sentence of five years of community control. In exchange for his plea to Count 

1 of the probation violation in the previous case, Counts 2 and 3 of the probation violation 

were dismissed. 

{¶8} The trial court asked appellant whether there was any legal reason why the 

court should not sentence him that day on either case, and appellant responded, “No, sir.” 

When asked whether he had anything to say, appellant stated he was sorry for what he 

did and he needs to stop hanging out with friends that have bad habits. Appellant stated 

he would be happy to do a prison term of nine months for his family and a few friends. The 

trial court sentenced appellant to eighteen months in prison on the instant case and 

eighteen months in prison for the violation of his community control in the 2011 case, to 

be served consecutively to each other. 

{¶9} At the conclusion of the sentencing hearing, the trial court informed 

appellant he was ordering appellant to serve three years of post-release control. Further, 

that if he violates his post-release control, he would be brought back to court and could be 

sent back to prison for violating post-release control for nine months for each violation with 

a maximum of repeated violations of one-half of what his maximum sentence was. Finally, 
Morgan County, Case No. 15AP0014 5 

that if his new violation is a felony, he could be returned to prison for either twelve months 

or the time remaining on post-release control, whichever is longer, in addition to any prison 

term imposed for the new offense. When he inquired if appellant understood, appellant 

said “yes, sir.” 

{¶10} The trial court issued a sentencing entry on October 13, 2015. The trial 

court sentenced appellant to eighteen months in prison to be served consecutively to the 

sentence in the previous case, No. 11-CR-0062. In the sentencing entry, the trial court 

stated it advised appellant that, upon his release from prison, he will be placed under postrelease control supervision for a term of three (3) years, which may be reduced by the 

parole board. Further, that the trial court informed appellant if he violates the terms of his 

post-release control supervision he may be returned to prison as a sanction for such 

violation and any new offense which is committed while under post-release control 

supervision may be punished with a sentence consecutive to any post-release control 

sanction. 

{¶11} Appellant appeals the October 13, 2015 judgment entry of the Morgan 

County Court of Common Pleas and assigns the following as error: 

{¶12} “I. THE TRIAL COURT VIOLATED OHIO CRIMINAL RULE 11 WHEN THE 

TRIAL COURT FAILED TO FULLY ADVISE DEFENDANT/APPELLANT OF THE 

CONSEQUENCES OF VIOLATING THE TERMS AND CONDITIONS OF HIS THREE 

YEAR POST-RELEASE CONTROL TERM, AND, AS A RESULT, 

DEFENDANT/APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND 

VOLUNTARILY ENTER A PLEA OF GUILTY.” 
Morgan County, Case No. 15AP0014 6 

I. 

{¶13} In his assignment of error, appellant argues the trial court did not 

substantially comply with Criminal Rule 11(C) because the trial court failed to explain the 

details of post-release control at the hearing and in the plea form and thus his plea was 

not knowing, intelligently or voluntarily entered into. Appellee contends the trial court 

substantially complied with Criminal Rule 11(C) and, if there was an error, it could be 

corrected by holding a re-sentencing hearing. 

{¶14} Criminal Rule 11(C)(2) details the trial court’s duty in a felony plea hearing 

to address the defendant personally and to convey certain information to such defendant, 

and makes clear that the trial court shall not accept a guilty plea without performing these 

duties. State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio-428. Crim.R. 

11(C)(2)(a) states the trial court must determine, “* * * that the defendant is making the 

plea voluntarily, with the 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.” This Court has 

previously held that post-release control constitutes a portion of the maximum penalty. 

State v. Jones, 5th Dist. Richland Nos. 10CA75, 10CA76, 2011-Ohio-1202. 

{¶15} In State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, 

the Ohio Supreme Court held as follows: 

* * * if a trial court fails during a plea colloquy to advise a defendant that the 

sentence will include a mandatory term of post-release control, the 

defendant may dispute the knowing, intelligent, and voluntary nature of the 

plea either by filing a motion to withdraw the plea or upon direct appeal. 
Morgan County, Case No. 15AP0014 7 

Further, we hold that if the trial court fails during the plea colloquy to advise 

a defendant that the sentence will include a mandatory term of post-release 

control, the court fails to comply with Crim.R. 11 and the reviewing court 

must vacate the plea and remand the cause. 

{¶16} Thus, pursuant to Sarkozy, if the trial court judge completely fails to comply 

with Crim.R. 11 by not informing a defendant of a mandatory period of post-release control, 

a showing of prejudice is not needed for the plea to be vacated. Id. However, the present 

case is a situation in which the trial court did mention post-release control at the plea 

hearing. In determining whether the trial court has satisfied its duties under Crim.R. 11 in 

taking a plea, reviewing courts have distinguished between constitutional and nonconstitutional rights. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. 

In Clark, a case decided after Sarkozy, the Ohio Supreme Court concluded that, 

If a trial judge, in conducting a plea colloquy, imperfectly explains nonconstitutional rights such as the right to be informed of the maximum 

possible penalty and the effect of the plea, a substantial compliance rule 

applies on appellate review; under this standard, a slight deviation from the 

text of the governing rule is permissible, and so long as the totality of the 

circumstances indicates that the defendant subjectively understands the 

implications of his plea and the rights he is waiving, the plea may be upheld. 

{¶17} Thus, in Clark, the Ohio Supreme Court concluded that the right to be 

informed of the maximum possible penalty and the effect of the plea are subject to the 

substantial compliance test. Id. If there is partial compliance, such as mentioning 

mandatory post-release control without explaining it, the plea is only to be vacated if the 
Morgan County, Case No. 15AP0014 8 

defendant demonstrates a prejudicial effect. Id. The test for prejudice is “whether the plea 

would have otherwise been made.” 

{¶18} 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 substantialcompliance standard. Under the substantial-compliance standard, we analyze the totality 

of the circumstances surrounding appellant’s plea and determine whether he subjectively 

understood the effect of his plea. 

{¶19} Appellant argues the instant case is analogous to three other cases in which 

this Court found the trial court did not substantially comply with Crim.R. 11(C) and vacated 

the plea. However, we find these case to be distinguishable from this case. In each of 

cases cited by appellant, State v. Jones, 5th Dist. Richland Nos. 10CA75, 10CA76, 

10CA77, 2011-Ohio-1201, State v. Holmes, 5th Dist. Licking No. 09 CA 70, 2010-Ohio428, and State v. Smoot, 5th Dist. Morgan No. 15AP0009, 2016-Ohio-5750, there was a 

complete absence of post-release control colloquy prior to the trial court’s acceptance of 

the pleas. Therefore, we found these cases analogous to Sarkozy. 

{¶20} This Court has previously found no manifest injustice occurred when an 

appellant was not informed during the plea hearing of the term of post-release control, but 

was notified through the plea form. State v. Alexander, 5th Dist. Stark No. 2013CA00151, 

2014-Ohio-2351. Additionally, in State v. Aleshire, we did not vacate a plea despite the 

trial court’s failure to advise the defendant of post-release control when, under the totality 

of the circumstances, the sentencing colloquy and entry advised the defendant of the 

proper post-release control. 5th Dist. Licking No. 2007-CA-1, 2008-Ohio-5688; see also 

State v. Brown, 2nd Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199 (finding 
Morgan County, Case No. 15AP0014 9 

substantial compliance when the trial court correctly notified defendant of the mandatory 

period of post-release control during the plea colloquy but where an erroneous period of 

post-release control was contained in the plea form due to the fact that the plea form is 

not mandated by Crim.R. 11). 

{¶21} We find, under the totality of the circumstances, appellant subjectively 

understood the implications of his plea and the rights he was waving. In this case, there 

is not a complete absence of post-release control colloquy prior to the trial court’s 

acceptance of appellant’s plea. While the plea form does not contain any information 

regarding post-release control, during the plea hearing, the trial court specifically asked 

appellant, “And do you understand that after you are released from incarceration, if that is 

what happens, that you would be placed on post-release control or probation under 

standard rules for a definite period of three years? You understand that?” Appellant 

responded, “Yes, sir.” Further, when asked by the trial court, appellant confirmed he was 

currently on community control. The trial court asked appellant if he understood that if he 

pled guilty to the charge in this case, it could be a violation of his community control and 

he could be subject to a penalty for that also. Appellant stated, “Yes, sir.” In the present 

case, the trial court specifically notified appellant of three years of post-release control and 

appellant acknowledged he understood. 

{¶22} The trial court also specifically informed appellant he was subject to postrelease control at the sentencing hearing. At no time during the plea or the sentencing 

phase did appellant ask any questions regarding the penalties involved for the charge to 

which he was pleading guilty. Upon being informed both at the plea hearing and at the 

sentencing hearing he was subject to a three-year period of post-release control, appellant 
Morgan County, Case No. 15AP0014 10 

did not indicate his disapproval or confusion to the trial court. Rather, at both the plea 

hearing and at the sentencing hearing when the trial court asked appellant if he understood 

the three years of post-release control, appellant replied “Yes, sir.” 

{¶23} Further, at the sentencing hearing, the trial court asked appellant if there 

was any legal reason why the court should not sentence him and appellant replied, “No, 

sir.” At the sentencing hearing, when the trial court asked appellant if he understood that 

if he violates his post-release control, he could be sent back to prison for nine months for 

each violation with a maximum of repeated violations of one-half of what his maximum 

sentence was or if his new violation is a felony, for either twelve months or his time 

remaining on post-release control, appellant said “Yes, sir.” The sentencing entry 

specifically states appellant will be placed on three years of post-release control and that 

appellant was informed of the consequences of violating post-release control. Appellant 

concedes that the sentencing entry provides if he violates his post-release control he 

would be returned to prison. Thus, under the totality of the circumstances, we find 

appellant subjectively understood the implications of his plea and the rights he was waving. 

{¶24} Additionally, since this is a case of partial compliance with regard to a nonconstitutional right rather than a complete failure to comply with Crim.R. 11 regarding that 

right, in order to succeed on his claim that his plea was not knowing, voluntary, and 

intelligent, appellant must demonstrate he was prejudiced by the trial court’s failure to give 

more a more detailed explanation with regards to post-release control at the hearing and 

in the plea form. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462. 

{¶25} Appellant has not demonstrated that, but for the trial court’s error, he would 

not have entered the guilty plea and gone to trial instead. Thus, he has not shown 
Morgan County, Case No. 15AP0014 11 

“prejudicial effect.” See State v. Green, Stark No. 2010CA00198, 2011-Ohio-1636. In the 

case at bar, appellant does not refer to any portion of the record nor does he argue that 

he would not have entered the guilty plea had the trial court given him a more detailed 

explanation of post-release control during the change of plea hearing or in the plea form. 

Further, during the sentencing hearing, appellant stated he was sorry for what he did and 

he needs to stop hanging out with friends that have bad habits. When requesting a nine 

month prison term for the offense, appellant stated, “And I think nine months I would – I’d 

just be happy to do that for my family and for every that I – you know, family and a few 

friends.” Thus, appellant has failed in his burden to demonstrate a prejudicial effect. See 

Id. 

{¶26} Accordingly, we hold that the trial court substantially complied with the 

requirements of Crim.R. 11(C)(2) and appellant did not demonstrate a prejudicial effect. 

Appellant’s assignment of error is overruled. The October 13, 2015 judgment entry of the 

Morgan County Court of Common Pleas is affirmed. 

By Gwin, J., 

Farmer P.J., and 

Baldwin, J., concur