[Cite as State v. Tipton , 2021-Ohio-1128.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

STATE OF OHIO, Appellee,

- vs -

JASON EDWARD TIPTON, Appellant. :

:

:

:

:

: CASE NO. CA2020-05-011

O P I N I O N 4/5/2021

CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CRI20190135

Nicholas A. Adkins, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main Street, London, Ohio 43140, for appellee Treynor Law, Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for appellant

M. POWELL, J. {¶ 1} Appellant, Jason Tipton, appeals his conviction in the Madison County Court of Common Pleas following his guilty plea to disseminating matt er harmful to juveniles. {¶ 2} Appellant was indicted in September 2019 on two counts of disse minating matter harmful to juveniles. The charges stemmed from allegati ons that appellant madeMadison CA2020-05-011

- 2 - two children, both under the age of 13, watch pornography while naked. {¶ 3} On February 21, 2020, appellant pled guilty to one count of dis seminating matter harmful to juveniles, a felony of the fourth degree, in exchange for the state dismissing the other felony sex charge. During the plea hearin g, the trial court conducted a Crim.R. 11 colloquy and advised appellant that he would "be s ubject to three years' optional post-release control" upon release from prison. Appel lant's guilty plea and jury waiver form likewise indicated he would be subject to an option al three-year period of postrelease control. However, because disseminating matter har mful to juveniles is a felony sex offense, a five-year period of postrelease control i s mandatory for such an offense. R.C. 2967.28(A), (B)(1). On March 20, 2020, the tria l court sentenced appellant to 18 months in prison and properly advised him he would be subject to a mandatory fiveyear period of postrelease control. The sentencing judgment en try likewise correctly stated that appellant was subject to a mandatory five-year period of p ostrelease control. {¶ 4} Appellant appeals his conviction, raising two assignments of er ror which will be considered together. {¶ 5} Assignment of Error No. 1: {¶ 6} THE DEFENDANT'S ENTRY OF PLEA WAS NOT KNOWING,

INTELLIGENT OR VOLUNTARY BECAUSE THE PLEA FORM AND RULE 11 COLL OQUY

INCORRECTLY IDENTIFIED THE DEFENDANT'S POST-RELEASE CONTROL

EXPOSURE AS 'OPTIONAL' INSTEAD OF MANDATORY. {¶ 7} Assignment of Error No. 2: {¶ 8} THE TRIAL COURT'S FAILURE TO COMPLY WITH RULE 11 EXCUSES

THE DEFENDANT FROM DEMONSTRATING PREJUDICE AS A RESULT OF THE

FAULTY PLEA. {¶ 9} Appellant argues that he did not knowingly, intelligently, or v oluntarily enterMadison CA2020-05-011

- 3 - his guilty plea because the trial court failed to comply with C rim.R. 11(C)(2)(a) when it misinformed him about postrelease control during the plea collo quy. Appellant asserts that the trial court's postrelease control misstatement is a complet e failure to comply with Crim.R. 11(C)(2)(a), and thus, he is not required to show he wa s prejudiced by the error for his guilty plea to be vacated. In support of his argument, app ellant cites State v. Dangler , Slip Opinion No. 2020-Ohio-2765. {¶ 10} "When a defendant enters a plea in a criminal case, the plea mu st be made knowingly, intelligently, and voluntarily. Failure on any of t hose points renders enforcement of the plea unconstitutional under both the United States Const itution and the Ohio

Constitution." State v. Engle , 74 Ohio St.3d 525, 527, 1996-Ohio-179. Crim.R. 11(C) prescribes the process that a trial court must use before accep ting a plea of guilty to a felony. State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, ¶ 11. {¶ 11} As pertinent here, Crim.R. 11(C)(2)(a) provides that a trial co urt shall not accept a guilty plea in a felony case without personally addres sing the defendant and "[d]etermining that the defendant is making the plea voluntaril y, with 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 o f community control sanctions at the sentencing hearing." {¶ 12} Postrelease control is a "period of supervision by the adult pa role authority after a prisoner's release from imprisonment," and whether mand atory or discretionary, part of a sentence for a felony offense. R.C. 2967.01(N); State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 23; Woods v. Telb , 89 Ohio St.3d 504, 511, 2000-Ohio-171. "Pursuant to Crim.R. 11(C)(2)(a), because postrelease control is part of a defendant's potential maximum sentence, postrelease control is a penalty that the tri al court must inform a defendant of before accepting the defendant's guilty plea." State v. Floyd , 12th Dist. WarrenMadison CA2020-05-011

- 4 - No. CA2016-09-077, 2017-Ohio-687, ¶ 16. Thus, "whether mandato ry or discretionary, postrelease control is an additional penalty for the offense th at the defendant must consider in determining whether to waive his constitutional rights and e nter a guilty plea." State v.

Jones , 1st Dist. Hamilton Nos. C-130825 and C-130826, 2014-Ohio-4497 , ¶ 14. {¶ 13} In Dangler , the Ohio Supreme Court addressed a trial court's compliance w ith Crim.R. 11(C) and how best to review a trial court's plea collo quy to ensure that a defendant's plea is knowingly and voluntarily entered. As a ge neral matter, "a defendant is not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11( C)," i.e., that "the plea would

not have otherwise been made." Dangler , 2020-Ohio-2765 at ¶ 16. There are, however, two exceptions to this rule: (1) when the trial court "fails to explain the constitutional rights [set forth in Crim.R. 11(C)(2)(c)] that a defendant waives by p leading guilty or no contest," and (2) "a trial court's complete failure to comply with a portion of Crim.R. 11(C)." (Emphasis sic.) Id. at ¶ 15. Under either exception, the defendant is not require d to show prejudice. {¶ 14} The supreme court, therefore, set forth the following inquiry f or courts to employ in examining a challenge to a plea: "Properly understood , the questions to be answered are simply: (1) has the trial court complied with the relevant provisions of the rule? (2) if the trial court has not complied fully with the ru le, 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 bu rden?" Id. at ¶ 17; State v.

Tutt , 12th Dist. Preble No. CA2020-02-002, 2021-Ohio-96, ¶ 15. {¶ 15} Applying the test set forth in Dangler to the situation before us, we find that although the trial court failed to fully comply with Crim.R. 11 (C)(2)(a) because it incorrectly advised appellant of the duration and nature of the postrelease control to which he would be subject, the trial court's failure is not the type of failur e that excuses appellant fromMadison CA2020-05-011

- 5 - demonstrating prejudice. As we have previously recognized, "a complete failure to comply with Crim.R. 11(C)(2)(a) involves a trial court's complete omis sion in advising about a distinct component of the maximum penalty." State v. Fabian , 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20 (finding that a trial court 's total failure to advise a defendant of postrelease control before it accepted the guilty plea constituted a complete failure to comply with Crim.R. 11[C][2][a]). See also State v. Sarkozy , 117 Ohio St.3d 86, 2008-Ohio-509 (same). "By contrast, a trial court's mention of a component of the maximum penalty during a plea colloquy, albeit incomplete or perhaps in accurate, does not constitute a complete failure to comply with Crim.R. 11(C)(2)(a)." Fabian at ¶ 20; Tutt at ¶ 16. Appellant, therefore, is required to show that he was prejudice d by the trial court's postrelease control misstatement and that he would not have ent ered a guilty plea if he had been properly advised of the duration and mandatory nature of t he postrelease control to which he would be subject. See State v. Brown , 8th Dist. Cuyahoga No. 109007, 2020-

Ohio-4474. {¶ 16} We find that appellant is unable to establish any prejudice by the trial court's postrelease control misstatement. "Prejudice must be establish ed 'on the face of the

record.'" Dangler , 2020-Ohio-2765 at ¶ 24, quoting Hayward v. Summa Health Sys./Akron City Hosp. , 139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 26. Appellant has not presented any evidence nor made any argument that he would not have entered h is plea had the trial court correctly informed him of the duration and mandatory nature of postrelease control during the plea colloquy. Moreover, there is nothing in the record to suggest that appellant would not have entered his guilty plea had he been advised he would b e subject to a mandatory five-year period of postrelease control. By agreeing to enter the guilty plea, appellant received the benefit of having a second felony sex charge again st him dismissed. Appellant did not raise any objection at sentencing when he was advised h e would be subject to aMadison CA2020-05-011

- 6 - mandatory five-year period of postrelease control. Without any evidence that the plea would not have otherwise been made, appellant has not established pre judice and he is not entitled to have his guilty plea vacated for a failure to compl y with Crim.R. 11(C)(2)(a).

Brown at ¶ 35. {¶ 17} Appellant's two assignments of error are overruled. {¶ 18} Judgment affirmed.

PIPER, P.J. and HENDRICKSON, J., concur.