[Cite as State v. Cartwright, 2011-Ohio-4424.]

COURT OF APPEALS 

 KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

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

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 11CA000001 

WILLIAM P. CARTWRIGHT : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of 

Common Pleas, Case No. 07CR08-0116 

 

JUDGMENT: AFFIRMED IN PART; REVERSED AND 

REMANDED IN PART 

DATE OF JUDGMENT ENTRY: August 29, 2011 

APPEARANCES: 

For Appellant: For Appellee: 

 

MARK A. ZANGHI JOHN C. THATCHER 

One Public Square KNOX COUNTY PROSECUTOR 

Mount Vernon, OH 43050 

 CHARLES T. MCCONVILLE 

 117 E. High St., Suite 234 

 Mount Vernon, OH 43050 

 

Delaney, J. 
{¶1} Defendant-Appellant William P. Cartwright appeals the June 18, 2008 

sentencing entry and the January 3, 2011 denial of Appellant’s motion to withdraw his 

guilty plea by the Knox County Court of Common Pleas. Plaintiff-Appellee is the State 

of Ohio. 

STATEMENT OF THE CASE1

{¶2} Appellant was indicted by the Knox County Grand Jury on September 11, 

2007 on one count of Aggravated Vehicular Homicide, a second-degree felony in 

violation of R.C. 2903.06(A)(1)(a); one count of Aggravated Vehicular Homicide, a thirddegree felony in violation of R.C. 2903.06(A)(2)(a); one count of Vehicular Homicide, a 

first-degree misdemeanor in violation of R.C. 2903.06(A)(3)(a); one count of Vehicular 

Manslaughter, a second-degree misdemeanor, in violation of R.C. 2903.06(A)(4); one 

count of Aggravated Vehicular Assault, a third-degree felony, in violation of R.C. 

2903.08(A)(1)(a); one count of Vehicular Assault, a fourth-degree felony in violation of 

R.C. 2903.06(A)(2)(a); one count of Driving While Intoxicated, a first-degree 

misdemeanor, in violation of R.C. 4511.19(A)(1)(a); and one count of Driving While 

Intoxicated, a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(f). 

{¶3} On May 23, 2008, Appellant entered a guilty plea to Count One of the 

Indictment, Aggravated Vehicular Homicide, a second-degree felony in violation of R.C. 

2903.06(A)(1)(a), and Count Eight of the Indictment, Driving While Intoxicated, a firstdegree misdemeanor in violation of R.C. 4511.19(A)(1)(f). The trial court dismissed the 

remaining counts of the indictment upon a motion by the State. 

{¶4} The trial court held a sentencing hearing on June 16, 2008. The trial court 

sentenced Appellant to serve a mandatory term of imprisonment of seven years for 
Count One and a definite term of imprisonment of six months on Count Eight. The 

sentences were to be served concurrently. At the hearing, the trial court informed 

Appellant that he would be subject to up to five years of postrelease control. (T. 11). 

{¶5} The June 18, 2008 sentencing entry incorrectly states that Appellant 

entered a guilty plea to “One Count of Aggravated Vehicular Homicide, in violation of 

Ohio Revised Code Section 2903.06(A)(1), a felony of the First Degree as contained 

within Count One of the Indictment * * *.” The sentencing entry then states that 

Appellant will serve a five-year term of postrelease control. 

{¶6} On November 24, 2010, Appellant filed a pro se motion to withdraw his 

guilty plea. The State opposed the motion. The trial court denied Appellant’s motion on 

January 3, 2011. 

{¶7} It is from these decisions Appellant now appeals. The State did not file a 

responsive brief. 

{¶8} Appellant raises two Assignments of Error: 

{¶9} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED A POST-RELEASE 

CONTROL SANCTION OF FIVE YEARS FOR A FELONY OF THE SECOND DEGREE 

THAT IS NOT A SEX OFFENSE. 

{¶10} “II. THE APPELLANT’S GUILTY PLEAS TO COUNT ONE AND EIGHT 

OF THE INDICTMENT WERE NOT OFFERED KNOWINGLY, VOLUNTARILY AND 

INTELLIGENTLY.” 

I. 

{¶11} Appellant argues in his first Assignment of Error that the trial court erred 

when it imposed a mandatory five year term of postrelease control. We agree. 

 1

 A statement of the facts is unnecessary for the disposition of this appeal. 
{¶12} Appellant entered a guilty plea to Count One of the indictment, 

Aggravated Vehicular Homicide, a second-degree felony in violation of R.C. 

2903.06(A)(1)(a). Under R.C. 2967.28(B)(2), an offender sentenced to prison for a 

felony of the second degree that is not a felony sex offense shall be subject to post 

release control for three years. 

{¶13} Appellant is entitled to a de novo sentencing hearing that “is limited to 

proper imposition of postrelease control.” State v. Fischer, 128 Ohio St.3d 92, 942 

N.E.2d 332, 2010–Ohio–6238, paragraph two of the syllabus. 

{¶14} Appellant’s first Assignment of Error is sustained. 

II. 

{¶15} Appellant contends in his second Assignment of Error that the trial court 

abused its discretion in denying his motion to withdraw his guilty plea because Appellant 

states he was not properly informed of his postrelease control at his plea hearing on 

May 23, 2008. We disagree. 

{¶16} Crim.R. 32.1 governs withdrawal of guilty plea and states “[a] motion to 

withdraw a plea of guilty or no contest may be made only before sentence is imposed; 

but to correct manifest injustice the court after sentence may set aside the judgment of 

conviction and permit the defendant to withdraw his or her plea.” The right to withdraw 

a plea is not absolute and a trial court's decision on the issue is governed by the abuse 

of discretion standard. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d 1324. In 

order to find an abuse of discretion, we must determine the trial court's decision was 

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. 

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140. 
{¶17} At Appellant’s plea hearing, the trial court informed Appellant that he may 

have up to five years of post release control. As stated above, a sentence for a seconddegree felony is subject to a mandatory term of three years post release control. 

Appellant argues that the trial court incorrectly informed him of the length of post 

release control and the discretionary nature of the post release control. If Appellant had 

known post release control was mandatory, Appellant states he would not have entered 

a guilty plea. 

{¶18} We find these facts to be almost identical to those in State v. Green, 5th 

Dist. No. 2010CA00198, 2011-Ohio-1636. In that case, the appellant was convicted of 

a first-degree felony. The trial court informed the appellant that he was subject to post 

release control of “up to five years” whereas post release control for a first-degree 

felony is subject to a mandatory five-year term. The appellant argued the trial court 

failed to comply with the maximum sentence component of Crim.R. 11(C)(2)(a). 

Because the appellant was only informed of a discretionary period of post release 

control, he did not enter his plea knowingly, intelligently, or voluntarily. Id. at ¶23-25. 

{¶19} In overruling the appellant’s Assignment of Error, we held: 

{¶20} “In State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-3748, 

¶ 30–32, the Supreme Court of Ohio explained the following: 

{¶21} “’If a trial court fails to literally comply with Crim.R. 11, reviewing courts 

must engage in a multitiered analysis to determine whether the trial judge failed to 

explain the defendant's constitutional or nonconstitutional rights and, if there was a 

failure, to determine the significance of the failure and the appropriate remedy. 
{¶22} “’When a trial judge fails to explain the constitutional rights set forth in 

Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid ‘under a presumption that it 

was entered involuntarily and unknowingly.’ Griggs, 103 Ohio St.3d 85, 2004-Ohio4415, 814 N.E.2d 51, ¶ 12; see also Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474, citing 

Boykin, 395 U.S. at 242–243, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, if the trial judge 

imperfectly explained 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. Id. Under this standard, a slight deviation from the text of the rule is 

permissible; 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. Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474. 

{¶23} “’When the trial judge does not substantially comply with Crim.R. 11 in 

regard to a nonconstitutional right, reviewing courts must determine whether the trial 

court partially complied or failed to comply with the rule. If the trial judge partially 

complied, e.g., by mentioning mandatory postrelease control without explaining it, the 

plea may be vacated only if the defendant demonstrates a prejudicial effect. See Nero,

56 Ohio St.3d at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 

93, 5 O.O.3d 52, 364 N.E.2d 1163, and Crim.R. 52(A); see also Sarkozy, 117 Ohio 

St.3d 86, 2008–Ohio–509, 881 N.E.2d 1224, ¶ 23. The test for prejudice is ‘whether the 

plea would have otherwise been made.’ Nero at 108, 564 N.E.2d 474, citing Stewart, 

Id. If the trial judge completely failed to comply with the rule, e.g., by not informing the 

defendant of a mandatory period of postrelease control, the plea must be vacated. See 

Sarkozy, 117 Ohio St.3d 86, 2008–Ohio–509, 881 N.E.2d, 1224, paragraph two of the 
syllabus. ‘A complete failure to comply with the rule does not implicate an analysis of 

prejudice.’ Id. at ¶ 22, 881 N.E.2d 1224.’” State v. Green, supra, ¶26-29. 

{¶24} In the case sub judice, the trial court informed Appellant of postrelease 

control at his plea hearing on May 23, 2008, albeit incorrectly. Appellant stated in his 

affidavit with his motion to withdraw his guilty plea that, “[h]ad I known that Post Release 

Control was mandatory for five years at the time I plead guilty, Had I been advised of 

mandatory prison time, I would not have plead guilty.” 

{¶25} As in State v. Green, we find Appellant has failed to show a prejudicial 

effect. Appellant has not shown that but for the trial court’s error in stating that 

postrelease control may be up to five years as opposed to a mandatory three years, 

Appellant would not have entered the guilty plea and gone to trial instead. We do not 

find a manifest injustice has occurred to mandate the trial court’s withdrawal of 

Appellant’s guilty plea. 

{¶26} Appellant’s second Assignment of Error is overruled. 

{¶27} The judgment of the Knox County Court of Common Pleas is affirmed in 

part and reversed and remanded in part for further proceedings consistent with this 

Opinion. 

By: Delaney, J. 

Gwin, P.J. and 

Wise, J. concur. 

HON. PATRICIA A. DELANEY 
HON. W. SCOTT GWIN 

HON. JOHN W. WISE 

 IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

WILLIAM P. CARTWRIGHT : 

 : 

 : Case No. 11CA000001 

 Defendant-Appellant : 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Knox County Court of Common Pleas is affirmed in part and reversed and remanded in 

part. Costs assessed to Appellee. 

 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 
HON. JOHN W. WISE