[Cite as State v. Shough, 2013-Ohio-3329.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

 : 

-vs- : 

 : 

BENNIE SHOUGH : Case No. 13-CA-3 

 : 

 : 

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County 

Court of Common Pleas, Case No. 

12 CR 00296 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: July 29, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT WILLIAM T. CRAMER 

Licking County Prosecutor 470 Olde Worthington Rd., Ste. 200 

 Westerville, OH 43082 

By: JUSTIN T. RADIC 

Assistant Prosecuting Attorney 

20 S. Second Street, Fourth Floor 

Newark, OH 43055 
Licking County, Case No. 13-CA-3 2 

 

Baldwin, J.

{¶1} Defendant-appellant Bennie Shough appeals his sentence from the 

Licking County Court of Common Pleas. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On June 4, 2012, the Licking County Grand Jury indicted appellant on 

one count of aggravated possession of drugs (methamphetamine) in violation of R.C. 

2925.11(A)(C)(1)(a), a felony of the fifth degree, one count of possession of cocaine in 

violation of R.C. 2925.11(A)(C)(4)(a), a felony of the fifth degree, and one count of 

possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of 

the fourth degree. At his arraignment on July 31, 2012, appellant entered a plea of not 

guilty to the charges. 

{¶3} Subsequently, on December 13, 2012, appellant withdrew his former not 

guilty plea and entered a plea of no contest to the charges contained in the indictment. 

The trial court found appellant guilty of the charges. Appellee recommended that 

appellant’s total sentence not exceed nine (9) months on all counts. Pursuant to a 

Judgment Entry filed on December 14, 2012, the trial court sentenced appellant to an 

aggregate prison sentence of eighteen (18) months. The trial court also ordered that 

appellant’s sentence run consecutively with any sentence imposed in Case No. 12 CR 

00469. The trial court, in its Judgment Entry, also sentenced appellant to a period of 

three (3) years of post-release control and denied appellant’s post-sentence oral motion 

to withdraw his plea. Appellant had made such motion on the basis that he did not 

receive the recommended sentence. 

{¶4} Appellant now raises the following assignments of error on appeal: 
Licking County, Case No. 13-CA-3 3 

{¶5} THE TRIAL COURT RENDERED APPELLANT’S NO CONTEST PLEA 

INVOLUNTARY AND VIOLATED APPELLANT’S STATE AND FEDERAL 

CONSTITUTIONAL RIGHTS BY IMPOSING A SENTENCE THAT EXCEEDED THE 

AGREED-UPON SENTENCING RECOMMENDATION.

{¶6} THE TRIAL COURT VIOLATED APPELLANT’S STATE AND FEDERAL 

CONSTITUTIONAL RIGHTS, CRIM.R. 11, AND R.C. 2943.032, WHEN IT FAILED TO 

EXPLAIN THE MAXIMUM PENALTY DURING THE PLEA COLLOQUY BY OMITTING 

THE PENALTY FOR VIOLATING POST-RELEASE CONTROL.

I 

{¶7} Appellant, in his first assignment of error, argues that his no contest plea 

was not voluntary because the trial court imposed a sentence that exceeded the agreed 

upon sentencing recommendation. We disagree. 

{¶8} Crim.R. 11(C)(2) reads as follows: 

{¶9} “In felony cases the court may refuse to accept a plea of guilty or a plea of 

no contest, and shall not accept a plea of guilty or no contest without first addressing 

the defendant personally and doing all of the following: 

{¶10} “(a) Determining that the defendant is making the plea voluntarily, 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 of 

community control sanctions at the sentencing hearing. 

{¶11} “(b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty or no contest, and that the court, upon 

acceptance of the plea, may proceed with judgment and sentence. 
Licking County, Case No. 13-CA-3 4 

{¶12} “(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to jury trial, to confront 

witnesses against him or her, to have compulsory process for obtaining witnesses in the 

defendant's favor, and to require the state to prove the defendant's guilt beyond a 

reasonable doubt at a trial at which the defendant cannot be compelled to testify against 

himself or herself.” 

{¶13} In accepting a plea, a trial court must substantially comply with Crim.R. 11. 

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Substantial compliance 

with Crim.R. 11(C) is determined upon a review of the totality of the circumstances. 

State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). Furthermore, it is well 

established that a trial court is not bound to accept a sentence recommendation 

proposed by the prosecution. See, e.g., Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 

399 N.E.2d 119 (9th Dist. 1978). 

{¶14} A trial court does not err by imposing a sentence greater than “that 

forming the inducement for the defendant to plead guilty when the trial court forewarns 

the defendant of the applicable penalties, including the possibility of imposing a greater 

sentence than what is recommended by the prosecutor.” State v. Buchanan, 154 Ohio 

App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, paragraph 13, citing State v. Pettiford, 

12th Dist. Fayette No. CA2001–08–014, at 3, 2002 WL 652371 (Apr. 22, 2002). Crim.R. 

11 “does not contemplate that punishment will be a subject of plea bargaining, this 

being a matter either determined expressly by statute or lying with the sound discretion 

of the trial court.” State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d 539 (10th Dist. 

1982). 
Licking County, Case No. 13-CA-3 5 

{¶15} In the case sub judice, the following colloquy took place on the record: 

{¶16} Q. Do you agree with those facts that have been set forth by the state, 

Mr. Shough? 

{¶17} A. Yes, sir. 

{¶18} Q. Have you discussed the facts and circumstances of your case, 

along with all of your possible defenses or affirmative defenses, fully and completely 

with your attorney? 

{¶19} A. Yes, sir. 

{¶20} Q. Are you satisfied with the advice your attorney has given you today 

and throughout the course of these proceedings? 

{¶21} A. Yes, sir. 

{¶22} Q. Do you understand, Mr. Shough, nobody can make you change 

your plea here today? 

{¶23} A. Yes, sir. 

{¶24} Q. Are you changing your plea freely and voluntarily, knowing what 

your rights are? 

{¶25} A. Yes, sir. 

{¶26} Q. Have there been any threats or promises or anything offered to you 

or given to you today to make you do this? 

{¶27} A. No, sir. 

{¶28} Q. Do you understand, Mr. Shough, that should the court permit you to 

change your plea here today, should the Court then enter a guilty finding, generally all 

that would remain to be done is to proceed with sentencing, and that sentence could 
Licking County, Case No. 13-CA-3 6 

consist of a term of two years at a state penitentiary, a fine of $5,250, a suspension of 

your driver’s license, and three years of post-release control? 

{¶29} A. Yes, sir. 

{¶30} Q. Do you understand that’s the maximum possible entire sentence? 

Do you understand that? 

{¶31} A. Yes, sir. 

{¶32} Transcript at 11-14. 

{¶33} Upon review of the record and the totality of the circumstances 

surrounding the plea in this case, we find that the trial court sufficiently explained the 

potential incarceration period, and we hold that the trial court did not err in finding 

appellant entered a voluntary, knowing, and intelligent plea. See State. v Deresse, 5th 

Dist. Licking No. 09 CA 11, 2009-Ohio-6725. 

{¶34} Appellant’s first assignment of error is, therefore, overruled. 

II 

{¶35} Appellant, in his second assignment of error, argues that the trial court 

erred by failing to inform him, at the plea hearing, of the penalty for violating postrelease control. We disagree.

{¶36} Post-release control constitutes a portion of the maximum penalty. State v. 

Jones, 5th Dist. Nos. 10CA75, 10CA76, 10CA77, 2011–Ohio–1202. In State v. Sarkozy,

117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, the Ohio Supreme Court held in 

paragraph 25 as follows: 

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

the sentence will include a mandatory term of postrelease control, the defendant 
Licking County, Case No. 13-CA-3 7 

may dispute the knowing, intelligent, and voluntary nature of the plea either by 

filing a motion to withdraw the plea or upon direct appeal. 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 postrelease control, the court fails to 

comply with Crim.R. 11 and the reviewing court must vacate the plea and 

remand the cause.” 

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

voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need 

only “substantially comply’ with the rule when dealing with the non-constitutional 

elements of Crim.R. 11(C). State v. Dunham, 5th Dist. Richland No.2011–CA–121, 

2012–Ohio–2957, citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 

(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v. 

Griggs, 103 Ohio St.3d 85, 2004–Ohio–4415, 814 N.E.2d 51, paragraph 12, the Ohio 

Supreme Court noted the following test for determining substantial compliance with 

Crim.R. 11: 

{¶38} “Though failure to adequately inform a defendant of his constitutional 

rights would invalidate a guilty plea under a presumption that it was entered involuntarily 

and unknowingly, failure to comply with non constitutional rights will not invalidate a plea 

unless the defendant thereby suffered prejudice. [State v. Nero (1990), 56 Ohio St.3d 

106,] 108, 564 N.E.2d 474. The test for prejudice is ‘whether the plea would have 

otherwise been made.’ Id. Under the substantial-compliance standard, we review the 

totality of circumstances surrounding [the defendant's] plea and determine whether he 

subjectively understood [the effect of his plea]”. 
Licking County, Case No. 13-CA-3 8 

{¶39} 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. The trial court must strictly comply with those provisions of Crim.R. 11(C) that 

relate to the waiver of constitutional rights. State v. Clark, 119 Ohio St.3d at 244. In 

Clark, supra, decided after Sarkozy, the Ohio Supreme Court concluded that: 

{¶40} “[I]f the trial judge [ in conducting a plea colloquy] imperfectly explained 

non-constitutional rights such as the right to be informed of the maximum possible 

penalty and the effect of the plea, a substantial-compliance rule applies....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.” Id. at ¶ 31. 

{¶41} 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. 119 Ohio St.3d at 244, ¶ 31. (Citations omitted). 

{¶42} 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 because the notification of post-release control impacts the right to 

be informed of the maximum penalty. Under the substantial-compliance standard, we 

analyze the totality of circumstances surrounding appellant’s plea and determine 

whether he subjectively understood the effect of his plea. 
Licking County, Case No. 13-CA-3 9 

{¶43} In the case sub judice, the trial court, at the plea hearing, advised 

appellant that if he violated the terms of post-release control, “you’re subject to being 

returned to the penitentiary for more incarceration even though you’ve served out your 

entire sentence.” Transcript at 13-14. The plea form signed by appellant on December 

13, 2012 states, in relevant part, as follows: “If I violate conditions of supervision while 

under post release control, the Parole Board could return me to prison for up to nine 

months for each violation, for repeated violations up to 1⁄2 of my originally stated prison 

term. If the violation is a new felony, I could receive a prison term of the greater of one 

year or the time remaining on post release control, which would be consecutive to any 

other prison term imposed for the new offense.” 

{¶44} As conceded by appellant, this Court, under similar circumstances, has 

found substantial compliance with Crim.R. 11(C). See State v. Alexander, 5th Dist. 

Stark No. 2012CA00115, 2012-Ohio-4843. See also State v. Harris, 5th Dist. Licking 

No. 12 CA 82, 2013-Ohio-2056. 

{¶45} Based on the foregoing, we find that, under the totality of circumstances, 

the trial court substantially complied with the requirements of Crim.R. 11(C)(2)(a) at the 

plea hearing. 

{¶46} Appellant’s second assignment of error is, therefore, overruled. 

 
Licking County, Case No. 13-CA-3 10 

{¶47} Accordingly, the judgment of the Licking County Court of Common Pleas 

is affirmed. 

By: Baldwin, J. 

Gwin, P. J. and 

Farmer, J. concur. 

 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER 

CRB/dr
[Cite as State v. Shough, 2013-Ohio-3329.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff - Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

BENNIE SHOUGH : 

 : 

 Defendant - Appellant : CASE NO. 13-CA-3 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Cost 

assessed to appellant. 

 

HON. CRAIG R. BALDWIN 

HON. W. SCOTT GWIN 

HON. SHEILA G. FARMER