[Cite as State v. Acosta, 2023-Ohio-737.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

WOOD COUNTY

State of Ohio Court of Appeals No. WD-22-020

Appellee Trial Court No. 2021CR0430

 

v.

Michael Scott Acosta DECISION AND JUDGMENT

Appellant Decided: March 10, 2023

* * * * *

Paul A. Dobson, Wood County Prosecuting Attorney, and

David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

* * * * *

DUHART, J.

{¶ 1} This is an appeal filed by appellant, Michael Acosta, from the March 2, 2022

judgment of the Wood County Court of Common Pleas. For the reasons that follow, we 

reverse.
2.

{¶ 2} Appellant sets forth two assignments of error:

1. The trial court abused its discretion by imposing two hundred and 

twenty-one days 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.

Facts 

{¶ 3} On August 19, 2021, appellant was indicted on three charges: Count One, 

felonious assault in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second 

degree; Count Two, abduction in violation of R.C. 2905.02(A)(1) and (C), a felony of the 

third degree; and Count Three, domestic violence in violation of R.C. 2919.25(A) and 

(D)(2), a first-degree misdemeanor. At the time of the charges alleged in the indictment, 

appellant was on postrelease control from a 2017 case. 

{¶ 4} On December 7, 2021, appellant entered a plea of guilty to: amended Count 

Two, attempted abduction in violation of R.C. 2905.02(A)(2) and (C) and R.C. 2923.02, 

a felony of the fourth degree; and Count Three, domestic violence in violation of R.C. 

2919.25(A) and (D)(2), a first-degree misdemeanor. During the plea hearing, the trial 

court referred to the plea form that appellant had signed, and asked appellant if he had 

read the form and had any questions. Appellant replied he read the form, with his 
3.

attorney present, and had no questions. The court also asked appellant if, by placing his 

initials on the form and signing the form, he is saying he read, understood and agreed 

with what is in the form; appellant responded in the affirmative.

{¶ 5} At the February 22, 2022 sentencing hearing, the trial court ordered 

appellant to serve 18 months in prison on amended Count Two and 180 days on Count 

Three; the 180 days were ordered to be served concurrently to the sentence imposed on 

amended Count Two. The court then noted appellant was convicted, in 2017, of 

attempted felonious assault and placed on postrelease control. The court stated that 249 

days of postrelease control were remaining, imposed those days,1and ordered them to be 

served consecutively to the sentence imposed on amended Count Two and Count Three. 

Appellant appealed.

{¶ 6} We will address appellant’s assignments of error in reverse order.

Second Assignment of Error

{¶ 7} Appellant argues at the time of his plea, the trial court did not orally inform 

him that the court had the authority to order a judicial sanction, pursuant to R.C.

2929.141, nor did the court orally notify him that it could, in its discretion, terminate his 

postrelease control and impose an additional consecutive sentence for his postrelease 

control violation.

1

In its March 2, 2022 judgment entry on sentencing, the trial court set forth appellant was 

in violation of his postrelease control and imposed 221 days for the violation. Appellant 

did not address or take issue with the discrepancy in postrelease control time imposed. 
4.

{¶ 8} Appellant acknowledges the trial court advised him of the following: the 

maximum penalties for his new felony offense; that upon release from prison, he could be 

placed on postrelease control; and if he committed a new felony while on postrelease 

control, he may be sentenced for that felony as well as an additional consecutive term of 

one year or the amount of time remaining on postrelease control, whichever was greater. 

Appellant also acknowledges his plea form contained a written notification stating if he 

was now on postrelease control, a plea could result in revocation proceedings and any 

new sentence may be imposed consecutively. Nonetheless, appellant asserts the court did 

not substantially comply with the requirements of Crim.R. 11(C)(2)(a) prior to accepting 

his plea, thus his plea was not offered knowingly, intelligently and voluntarily.

Law

{¶ 9} Crim.R. 11 requires that guilty pleas be made knowingly, intelligently and 

voluntarily. “[A]n alleged ambiguity during a Crim. R. 11 oral plea colloquy may be 

clarified by reference to other portions of the record, including the written plea.” State v. 

Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, syllabus. While literal 

compliance with Crim.R. 11 is preferred, the trial court must “substantially comply” with 

the rule when dealing with non-constitutional elements of Crim.R. 11(C). State v. 

Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981).

{¶ 10} Substantial compliance means, under the totality of the circumstances, the 

accused subjectively understands the implications of his plea and the rights he is waiving. 
5.

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If the trial court 

substantially complied with Crim.R. 11 with respect to a non-constitutional right, an 

accused claiming his guilty plea was not knowingly, intelligently and voluntarily made,

must show prejudice. Id. That test is whether the plea would have otherwise been 

entered. Id.

{¶ 11} If the trial court does not substantially comply with Crim.R. 11 regarding a

non-constitutional right, a reviewing court must determine whether the trial court 

partially complied or failed to comply with the rule. State v. Clark, 119 Ohio St.3d 239, 

2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If there is partial compliance, “e.g., by 

mentioning mandatory postrelease control without explaining it,” the plea may be vacated 

only if the accused demonstrates prejudice. Id. If the trial court completely failed to 

comply with Crim.R. 11, “e.g., by not informing the defendant of a mandatory period of 

postrelease control, the plea must be vacated.” Id. “‘A complete failure to comply with 

the rule does not implicate an analysis of prejudice.’” (Citation omitted.) Id.

{¶ 12} Constitutional rights are: (1) a jury trial, (2) confrontation of witnesses 

against the accused, (3) the compulsory process for obtaining witnesses in the accused’s 

favor, (4) the state must prove the accused’s guilt beyond a reasonable doubt at trial, and 

(5) the accused cannot be compelled to testify. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621, ¶ 19. If the trial court fails to strictly comply with Crim.R. 

11 regarding constitutional rights, the plea is invalid. Id. at ¶ 31.
6.

{¶ 13} Non-constitutional rights, of which an accused must be informed, are: (1) 

the nature of the charges; (2) the maximum penalty involved, which includes, if 

applicable, an advisement on post-release control; (3) if applicable, the accused is not 

eligible for probation or the imposition of community control sanctions; and (4) after 

entering a guilty plea, the court may proceed directly to judgment and sentencing. 

Crim.R. 11(C)(2); Veney at ¶ 10-13; and State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio509, 881 N.E.2d 1224, ¶ 19-26, (postrelease control is a non-constitutional right).

{¶ 14} R.C. 2929.141 concerns, inter alia, the commission of an offense by a 

person under postrelease control, and provides in relevant part:

(A) Upon the conviction of or plea of guilty to a felony by a person 

on post-release control at the time of the commission of the felony, the 

court may terminate the term of post-release control, and the court may do 

either of the following 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:

(1) In addition to any prison term for the new felony, impose a 

prison term for the post-release control violation. The maximum prison 

term for the violation shall be the greater of twelve months or the period of 

post-release control for the earlier felony minus any time the person has 

spent under post-release control for the earlier felony. In all cases, any 
7.

prison term imposed for the violation shall be reduced by any prison term 

that is administratively imposed by the parole board as a post-release 

control sanction. A prison term imposed for the violation shall be served 

consecutively to any prison term imposed for the new felony. The 

imposition of a prison term for the post-release control violation shall 

terminate the period of post-release control for the earlier felony. * * * 

{¶ 15} In State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 

21, the Supreme Court of Ohio held:

Crim.R. 11(C)(2)(a) requires a trial court to advise a criminal 

defendant on post-release control for a prior felony, during his plea hearing 

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

terminate the defendant’s existing post-release control and to impose a 

consecutive prison sentence for the post-release-control violation.

{¶ 16} The Supreme Court further held:

Sentences imposed under R.C. 2929.141(A) cannot stand alone. The 

court may impose the sentence only upon a * * * plea of guilty to a new 

felony, making the sentence for committing a new felony while on 

postrelease control and that for the new felony itself inextricably 

intertwined. By any fair reading of Crim.R. 11(C)(2), the potential R.C. 
8.

2929.141(A) sentence was part of the “maximum penalty involved.” Id. at 

¶ 17.

{¶ 17} The Supreme Court found the trial court had told Bishop of the maximum 

sentence he could receive for his fifth-degree felony conviction, but the trial court had not

informed Bishop he was also subject to a separate consecutive 12-month sentence for his 

postrelease control violation. Id. at ¶ 16. The Supreme Court further found “the trial 

court completely failed to inform Bishop that a consecutive prison sentence under R.C. 

2929.141(A) was possible. That is not partial compliance. Bishop need not show 

prejudice.” Id. at ¶ 20.

{¶ 18} When reviewing whether a plea was entered in compliance with Crim.R. 

11(C), we apply a de novo standard of review. Nero, 56 Ohio St.3d at 108-109, 564 

N.E.2d 474.

Plea Hearing

{¶ 19} At appellant’s plea hearing, the following colloquy took place, in relevant 

part:

THE COURT: I have in front of me the plea documents. * * * At the end of 

the document below the words approved by but above the word defendant 

is a signature that appears to be of Michael Scott Acosta. Is that your 

signature?

THE DEFENDANT: It is. 
9.

THE COURT: And did you place it there?

THE DEFENDANT: I did.

THE COURT: I also note that throughout the document are the initials 

M.A. next to each one of the enumerated paragraphs. Are those your 

initials? 

THE DEFENDANT: They are.

THE COURT: Did you place them there?

THE DEFENDANT: I did.

THE COURT: Now, did you place your initials here and did you sign this 

document after reading the document completely? 

THE DEFENDANT: Yes.

THE COURT: Did you read it with your attorney present? 

THE DEFENDANT: I did.

THE COURT: Were any questions you had fully and completely answered? 

THE DEFENDANT: No questions. Everything was good.

THE COURT: Do you have any questions at this time? 

THE DEFENDANT: I do not.

THE COURT: Now, by placing your initials on this document and signing 

this document are you saying that you’ve read, understood, and agreed with 

what is in this document? 
10.

THE DEFENDANT: Yes. 

* * * 

THE COURT: As a felony of the fourth degree, Count Two carries with it 

the possible maximum penalty * * *. Count Three is domestic violence. 

It’s a misdemeanor of the first degree. It carries with it the possibility of * 

* *. Do you understand all those maximum penalties? 

THE DEFENDANT: I do.

* * * 

THE COURT: Now, do you understand that by pleading guilty you are 

waiving or not exercising or using these specific constitutional rights? 

THE DEFENDANT: Yes, I understand.

* * * 

THE COURT: Now, I need to advise you of post release control.

Now, there is the possibility of a prison term.

* * * 

Further, if you commit a new felony while on post release control in 

addition to being sentenced for the new felony, the Court in sentencing you 

could add an additional consecutive prison term of one year or what time 

remains on your post release control term, whichever is greater, as a 

maximum.
11.

Plea Form

{¶ 20} The plea form appellant signed provides in pertinent part:

F. EFFECT OF PLEA OF GUILTY.

* * * 

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.

G. MAXIMUM PENALTY. I understand that the maximum penalty as to 

each count is as follows: Offense: Amended Count Two * * * 

Offense: Count Three * * *.

H. CONSECUTIVE SENTENCES. I understand that the sentence for two 

or more offenses, even if the sentences are not mandatory, may be required 

by the Court to be served consecutively.

Analysis

{¶ 21} In our de novo review, we observe at appellant’s December 7, 2021 plea 

hearing, the trial court, in the Crim.R. 11 oral plea colloquy, discussed the maximum 

penalties relating to amended Count Two and Count Three, the prospective requirements 

of postrelease control and the consequences of appellant committing a new felony while 

on postrelease control. The court did not ask appellant if he was presently on postrelease 

control, nor did the court mention the penalty it could impose for a violation if appellant 
12.

was currently on postrelease control. We find, just like in Bishop, the trial court told 

appellant of the maximum sentence he could receive for his new offenses, but did not tell 

appellant that he was also subject to a separate consecutive sentence of over 200 days for

a postrelease control violation.

{¶ 22} We further note that during the plea hearing, the trial court referred to the 

plea form that appellant had read and signed. The plea form included provision F. (“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.”). The court did not draw appellant’s attention to the provision, discuss 

the provision, or inform appellant what amount of time “any new sentence” could be. In 

addition, provision G. in the plea form set forth the maximum penalty, which did not 

include “any new sentence” for a postrelease control violation. Thus, we find the plea 

form did not clarify the ambiguities created during the Crim.R. 11 oral plea colloquy.

{¶ 23} Given the record, we find the trial court failed to comply with Crim.R. 11, 

as the court did not advise appellant at his plea hearing that the potential R.C. 

2929.141(A) sentence was part of the “maximum penalty involved.” We therefore find 

appellant was not required to show that he was prejudiced by the court’s failure. 

Consequently, we find appellant’s guilty plea was not knowingly, intelligently and 

voluntarily made. Accordingly, appellant’s second assignment of error is well-taken.
13.

{¶ 24} In light of our ruling, appellant’s first of assignment of error is rendered 

moot.

Conclusion

{¶ 25} The judgment of the Wood County Court of Common Pleas is hereby 

reversed, and this matter is remanded for proceedings consistent with this opinion. 

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment 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.

Thomas J. Osowik, J. ____________________________

JUDGE

Myron C. Duhart, P.J. 

CONCUR. ____________________________

JUDGE

Gene A. Zmuda, J. _____________________________

CONCURS AND WRITES JUDGE

SEPARATELY.

ZMUDA, J., concurring,

{¶ 26} I agree with the majority’s disposition of appellant’s second assignment of 

error and consequent reversal of the trial court’s judgment under the authority of the Ohio 

Supreme Court’s plurality decision in State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-
14.

5132, 124 N.E.3d 766. I write separately to recognize the realization of the potential 

difficulties for sentencing courts brought about by the Bishop decision. Those difficulties 

were foreseen by Justice Fischer, who wrote in his dissent in Bishop: 

As a result of the new requirement proposed in the lead opinion, if a 

trial court failed to inform a defendant of a potential and speculative 

judicial sanction, the defendant’s guilty plea would not be valid. The lead 

opinion does not include an explanation of what would happen when the 

court is not aware of the defendant’s existing postrelease control. In many 

cases, the judicial sanction will not be imposed by the judge that sentenced 

the defendant to postrelease control in that defendant’s prior felony case; 

indeed, the prior felony conviction may not even have been entered in the 

same jurisdiction. * * *

Moreover, as noted above, pursuant to R.C. 2929.141(A)(1), the trial 

court may “impose a prison term for the post-release control violation” that 

“shall be the greater of twelve months or the period of post-release control 

for the earlier felony minus any time the person has spent under the postrelease control for the earlier felony.” Thus, to comply with the 

requirement proposed in the lead opinion, the trial court would need to 

inform the defendant of the maximum penalty involved, but the trial court 

would have to know not only that the defendant was serving a period of 
15.

postrelease control but also know the details of the underlying felony 

conviction and of the defendant’s existing postrelease-control term.

This would place an unreasonable burden on the trial court to be 

aware of every defendant’s existing postrelease control. The trial court is 

often not made aware of the defendant’s existing postrelease control and 

prior felony convictions until after the plea hearing through a presentenceinvestigation report. See R.C. 2951.03; Crim.R. 32.2. Would trial courts 

now be required to do their own investigation prior to a guilty plea? Would 

prosecuting attorneys now be required to provide the trial court with the 

defendant’s rap sheet prior to the plea? Or would it be the defendant’s 

burden to provide such information, as the defendant is likely the only 

individual to know whether or not he or she is on postrelease control? If it 

would be the defendant’s burden to inform the trial court, then any error by 

the trial court would have been invited by the defendant. And what would 

happen if a defendant pleaded guilty at arraignment? Would trial courts be 

required to delay such a plea in order to conduct such an investigation?

Id. at ¶ 86-88 (Fischer, J., dissenting).2

2 Notably, the trial court in this case imposed the 249 days that remained of appellant’s 

postrelease control-related sentence, rather than imposing the greater one-year sentence 

the statute requires and the state requested at sentencing. However, this issue is not 

before this court as the state has not filed a cross-appeal.
16.

{¶ 27} The difficulty identified by Justice Fischer above is apparent in this case. 

Here, the record demonstrates that the trial court became aware of appellant’s postrelease 

control status after it accepted appellant’s plea and ordered a presentence investigation 

report. One may quibble that the trial court ought to have inquired into appellant’s 

postrelease control status at the plea hearing, but even when a trial court is diligent to do 

so, inaccurate information can lead to a reversal in favor of the defendant, even if such 

information comes directly from the defendant or defense counsel. See State v. Crook, 

7th Dist. Mahoning No. 21 MA 0051, 2022-Ohio-896 (vacating defendant’s plea because 

trial court did not inform defendant of potential postrelease control violation sentence 

even though the trial court inquired as to the defendant’s postrelease control status and 

was told, by the defendant and his defense counsel, that the defendant had already 

completed his postrelease control sanction). 

{¶ 28} Justice Fischer foresaw an additional negative implication of the Bishop

decision:

Further, the practical reality of the position taken by the lead opinion 

is that it might allow for the potential abuse of our plea system. When a 

defendant, who is likely in the best position to inform the trial court that he 

or she is serving a period of postrelease control, fails to provide that 

information to the trial court, the court will not provide notice of “the 

maximum penalty involved.” Moreover, if the defendant waives a 
17.

presentence-investigation report, see R.C. 2951.03(A)(1), then that court 

might not revoke the defendant’s postrelease control at sentencing at all. 

The practical implication of this court adopting the lead opinion’s 

conclusion would be that the defendant then could successfully argue that 

his plea was not knowingly, intelligently, and voluntarily made simply 

based on an error that the defendant had invited. And the defendant would 

not be required to show prejudice because “the trial court completely failed 

to inform [the defendant] that a consecutive prison sentence under R.C. 

2929.141(A) was possible,” lead opinion at ¶ 20, even though the lengthier 

sentence was not realistically possible because the trial court could not 

impose the lengthier sentence without having the information that the

defendant withheld from the trial court. In that scenario, a defendant who 

had suffered no prejudice would get another bite at the apple simply 

because that defendant failed to provide to the trial court information 

related to the defendant’s existing postrelease control.

The conclusion of the lead opinion would likely place an 

unreasonable burden on the trial court and might provide defendants who 

are on postrelease control with the opportunity to abuse the plea system.

Id. at ¶ 89-90 (Fischer, J., dissenting).
18.

{¶ 29} Appellant and his counsel (and, to be fair, the state) were silent as to 

appellant’s postrelease control status during the plea hearing in this case. There is no 

way to ascertain from the record whether such silence was the product of an intentional 

strategy to “poison the well” with reversible error in the event appellant was unsatisfied 

with his sentence. Thus, I cannot say that appellant has seized on “the opportunity to 

abuse the plea system” in this case. Id. at ¶ 90 (Fischer, J., dissenting). However, I find 

the potential for such abuse palpable in this case and in others like it. 

{¶ 30} Notwithstanding the foregoing problems foreseen by Justice Fischer and 

made possible by the Ohio Supreme Court’s decision in Bishop, I recognize that “[a]s an 

intermediate court, we are not free to overrule a decision of the Ohio Supreme Court. * * 

* Instead, we are bound to follow the decision.” State v. Whitman, 2021-Ohio-4510, 182 

N.E.3d 506, ¶ 28 (6th Dist.), citing State v. Thrasher, 6th Dist. Wood No. WD-06-047, 

2007-Ohio-2838, ¶ 7. Therefore, with these concerns in mind, I concur with the 

majority’s conclusion that appellant’s plea was not knowingly, intelligently, and 

voluntarily entered under the authority of the Ohio Supreme Court’s decision in Bishop. 

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/.