[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 A ttorney, for appellee. Lawrence A. Gold, for appellant.
* * * * * DUHART, J. {¶ 1} This is an appeal filed by appellant, Michael Acosta , from the March 2 , 202 2 judgment of the Wood County Court of Common Pleas. For the rea sons that follow, we

reverse.2

. {¶ 2} Appellant sets forth two assignment s 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, 20 2 1, appellant was indicted on three charges : C ount One, felonious assault in violation of R.C. 290 3. 11 (A)(1) and (D)(1)(a), a felony of the second degree; C ount Two, abduction in violation of R.C. 2905.02(A)(1) and (C), a felony of the third degree; and C ount Three, domestic violence in violation of R.C. 2919.25(A) and (D)(2), a fi rst

- 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 , 20 2 1, appellant entered a plea of guilty to : amended Count Two, attempted abduction in violation of R.C. 2 905.02(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 appell ant had signed, and asked appellant if he had read the form and had any questions . A ppellant rep li ed he read the form, with his3

.

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, 1 and ordered th em to be

serve d consecutive ly to the sentence imposed on amended Count Two and Count Three. Appellant appealed. {¶ 6} W e will address appellant’s a ssignment s of e rror 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 re sult in revocation proceedings and any new sentence may be imposed consecutively. Nonetheless, a ppellant 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 r ecord, 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

- cons titutional 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 prejudic e. Id. T h at tes t 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 menti oning mandatory postrelease control without explaining it ,” the plea may be vacated only if the accused demonstrates prejudic e. Id. If the trial court completely failed to comply with Crim.R. 11, “ e.g., by not informing the defendant of a mandatory perio d 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
ag ainst 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 , ar e: (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

- Ohio

509, 881 N.E.2d 1224, ¶ 19

- 26, (postrelease control is a non

- constitutional ri ght). {¶ 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 com mission 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 con trol for the earlier felony minus any time the person has spent under post

- release control for the earlier felony. In all cases, any7

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

that is administratively imposed by the parole b oard 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 perio d 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, ¶
2 1, the Supreme Court of Ohio held :

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

- releas e 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

- contr ol violation. {¶ 16} The S upreme C ourt further held : S entences 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 postre lease 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} T he Supreme Court found the trial court had told Bishop of t he maximum
sentence he could receive for his fifth

- degree felony conviction , but the trial court had not inform ed Bishop he was also subject to a separate consecutive 12

- month sentence for his post release control violation. Id. at ¶ 16

. T he 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
pre judice.” 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

s ignature? 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 on e 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 d id 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 D EFENDANT: 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 sentence d 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 releas e 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 mandat ory, 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 amende d Count Two and Count Three, the prospective requirements of postrelease control and the consequences of appellant committing a new felony while on postrelease control

. T he court did not ask appellant if he was presently on postrelease control , nor did the court mention the penalt y it could impose for a violation if appellant12

.

was currently on postrelease control

. We find, just like in Bishop , the trial court told appellant of t he 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 refer red to the plea form that appellant had read and signed

. T he 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

. ” ) . T he court did not draw appellant’s a ttention 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 maxim um penalty , which did not include “any new sentence” for a postrelease control violation. Thus, we find the plea form did not clarify the ambiguit ies 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 c ourt 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 f ind appellant was not required to show that he was prejudiced by the court’s failure. Consequently, we find appellant’s guilty ple a 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 Cou rt 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.

_____________________________ CONCUR S AND WRITES JUDGE SEPARATELY.

ZMUDA, J., concurring, {¶ 26} I agree with the majority’s disposition of appellant’s second assignment of error and consequent re versal 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 f

or 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 post

release 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 cour t would have to know not only that the defendant was serving a period of15

. 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 presentence

investig ation 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 ple a? 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 err or 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 t han 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 presen tence 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 fav or 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 p ostrelease 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 likel y 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 defenda nt waives a17

. 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
h is 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 c onsecutive 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 po strelease 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., disse nting).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 intention al 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
i ntermediate 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/.