[Cite as State v. Burke, 2013-Ohio-4689.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsVINCENT BURKE 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Patricia A. Delaney, J. 

Case No. 13-CA-24 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, Case No. 12 CR 00250 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: October 21, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT WILLIAM T. CRAMER 

Licking County Prosecutor 470 Olde Worthington Road, Suite 200 

 Westerville, Ohio 43082 

By: JUSTIN T. RADIC 

Assistant Prosecuting Attorney 

20 S. Second Street, Fourth Floor 

Newark, Ohio 43055 
Licking County, Case No. 13-CA-24 2

Hoffman, P.J. 

{¶1} Defendant-appellant Vincent Burke appeals his sentence entered by the 

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

PROCEDURAL HISTORY1

{¶2} Appellant was indicted on trafficking in drugs, in violation of R.C. 

2925.03(A)(1), a fifth degree felony under R.C. 2925.03(C)(2)(a); possession of 

marijuana, a minor misdemeanor, in violation of R.C. 2925.11(C)(3)(a); and possession 

of drug paraphernalia, a fourth degree misdemeanor, in violation of R.C. 

29265.14(C)(1). 

{¶3} Appellant entered a plea of guilty to all counts. The trial court imposed a 

five year community control sanction on the trafficking count, including a stay in a 

community based correctional facility, 100 hours of community service and a one year 

driver’s license suspension. The court further imposed fines on the misdemeanor 

counts. Finally, the trial court imposed a three year term of post-release control at the 

discretion of the Adult Parole Authority. 

{¶4} Appellant filed a motion with this Court for a delayed appeal. This Court 

granted Appellant’s request for a delayed appeal. Appellant now assigns as error: 

{¶5} “I. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND 

FEDERAL CONSTITUTIONAL RIGHTS, CRIM.R. 11(C)(2)(a), and 2943.032 BY 

FAILING TO PERSONALLY ADDRESS APPELLANT AND ENSURE THAT HE 

UNDERSTOOD THE MAXIMUM PENALTIES HE FACED UPON ENTERING HIS 

GUILTY PLEAS.” 

 

1

 A rendition of the underlying facts is unnecessary for our resolution of this appeal. 
Licking County, Case No. 13-CA-24 3

I. 

{¶6} Appellant maintains his plea was made in violation of Criminal Rule 11 as 

the trial court failed to inform him of the specific penalty for violating post-release 

control. Specifically, the trial court mentioned the possibility of prison time for violating 

post-release control, but failed to provide the specific penalty. Appellant did sign a 

written plea form setting forth the appropriate terms for a violation of post-release 

control. 

{¶7} In regard to the specific constitutional rights referenced in Crim.R. 

11(C)(2)(c), the Ohio Supreme Court has set forth the following rule of law: “A trial court 

must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before 

accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to 

confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the 

right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege 

against compulsory self-incrimination. When a trial court fails to strictly comply with this 

duty, the defendant's plea is invalid.” State v. Veney, 120 Ohio St.3d 176, 897 N.E.2d 

621, 2008-Ohio-5200, syllabus. 

{¶8} However, generally, in accepting a guilty plea, a trial court must 

“substantially comply” with Crim.R. 11(C), which we review based on the totality of the 

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

State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In other words, “[f]or 

nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not required; the trial 

court must substantially comply, provided no prejudicial effect occurs before a guilty 
Licking County, Case No. 13-CA-24 4

plea is accepted.” State v. Osley, Lucas App.No. L–11–1236, 2013-Ohio-1267, 2013 

WL 1289527, ¶ 17, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163. 

{¶9} In State v. Alexander, 5th App. No. 2012CA00115, 2012-Ohio-4843, this 

Court held, 

{¶10} "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 Alexander's plea and determine 

whether he subjectively understood the effect of his plea. 

{¶11} "Alexander cites this Court to State v. Jones, 5th Dist. Nos. 10CA75, 

10CA76, 10CA77, 2011–Ohio–1202, in support of his argument that the trial court failed 

to properly inform him of his term of post-release control during the plea colloquy. In 

Jones, the trial court failed to inform the defendant of the possibility of post-release 

control prior to accepting the defendant's plea. We found the defendant's plea was not 

made knowingly, intelligently, and voluntarily and in contravention of Sarkozy. Id. at ¶ 

21. 

{¶12} "We find the facts of Jones to be distinguishable from the present case. In 

this case, the trial court stated during the plea colloquy, 'Do you understand that 

following any period of incarceration there would be a mandatory period of supervision 

by the Parole Authority?' (Sentencing Tr., 4.) Alexander responded, 'Yes, sir.' (Sent.Tr., 

5.) Alexander signed a Crim.R. 11(C) form, which stated: 
Licking County, Case No. 13-CA-24 5

{¶13} "Upon release from prison, the defendant will be ordered to serve a 

mandatory period of five years of post-release control, pursuant to R.C. 2967.28(B). 

This period of post-release control will be imposed as part of defendant's criminal 

sentence at the sentencing hearing, pursuant to R.C. 2929.19. If the defendant violates 

the conditions of post-release control, the defendant will be subject to an additional 

prison term of up to one-half of the stated prison term as otherwise determined by the 

Parole Board, pursuant to law. 

{¶14} "In Sarkozy and Jones, there was no mention of post-release control at 

the plea hearing. In the present case, the trial court notified Alexander that postrelease 

control was mandatory and the Crim.R. 11(C) form signed by Alexander stated that 

post-release control was mandatory for a term of five years. We find, under the totality 

of the circumstances, the trial court substantially complied with the requirements of 

Crim.R. 11(C)(2)(a) in informing Alexander of post-release control during his plea 

hearing so that Alexander subjectively understood the implications of his plea. See 

State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477." 

{¶15} This Court followed Alexander in State v. Harris, 5th App. No. 12CA82, 

2013 Ohio 2056, 

{¶16} "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 Alexander's plea and determine 

whether he subjectively understood the effect of his plea. 
Licking County, Case No. 13-CA-24 6

{¶17} "In the case sub judice, with regard to post-release control, the trial court 

addressed Appellant as follows: 

{¶18} “'Do you also understand, Mr. Harris, that as a result of these convictions, 

that at the completion of your sentence you would be placed on a period of mandatory 

post-release control, and if you were to violate the terms of post-release control—a 

period of five years of post-release control—you'd be subject to being returned to the 

penitentiary for more incarceration even though you've served out your entire sentence? 

Do you understand that?' (T. at 14–15). 

{¶19} "The plea form, signed by Appellant, informed Appellant as follows: 

{¶20} "'I know any prison term stated will be the term served without good time 

credit. After release from prison, I will have 5 years of post-release control. A violation of 

any post-release control rule or condition can result in a more restrictive sanction while I 

am under post-release control, an increased duration of supervision or control, up to the 

maximum term and re-imprisonment even though I have served the entire stated prison 

term upon me by the Court for all offenses. If I violate conditions of supervision while 

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

month 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.' 

{¶21} "Additionally, the October 10, 2012, Judgment Entry of Sentence stated 

the following: 
Licking County, Case No. 13-CA-24 7

{¶22} "'The Court advised the defendant of a mandatory period of five (5) years 

of post-release control, not subject to reduction by the Adult Parole Authority, following 

any prison sentence imposed, and further the consequences for violating conditions of 

post-release control imposed by the Parole Board under Ohio Revised Code Section 

2967.28, being the defendant is subject to being reincarcerated for a period of up to 

nine months, with a maximum for repeated violations of 50% of the stated prison term. If 

the violation is a new felony, the defendant may be returned to prison for the remaining 

period of control or 12 months, whichever is greater, plus receive a prison term for the 

new crime. The defendant was also advised if he is released early from the state 

penitentiary pursuant to judicial release and placed on community control, if a violation 

of community control occurs, the defendant could be subject to being returned to the 

penitentiary for the balance of his sentence.' 

{¶23} "In Sarkozy and Jones, there was no mention of post-release control at 

the plea hearing. In the present case, the trial court notified Appellant that he was 

subject to a mandatory post-release control period of 5 years. Further, the Crim .R. 

11(C) form signed by Alexander stated that post-release control was mandatory for a 

term of five years and specifically stated that he could be returned 'to prison for up to 

nine months for each violation'. 

{¶24} "Based on the foregoing, we find, under the totality of the circumstances, 

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

informing Appellant of post-release control during his plea hearing so that Appellant 

subjectively understood the implications of his plea. See State v. Alexander, 5th Dist. 
Licking County, Case No. 13-CA-24 8

No.2012CA00115, 2012–Ohio–4843; State v. Kula, 5th Dist. Nos. 08–CA13, 08–CA14, 

2009–Ohio–2911; State v. Knowles, 10th Dist. 10AP–119, 2011–Ohio–4477." 

{¶25} In the case sub judice, the trial court advised Appellant prior to accepting 

the plea: 

{¶26} “Q. Do you understand, Mr. Burke, that if you were sent to the 

penitentiary, served out your sentence and then released, that you could be placed by 

the State on post-release control; and if you 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? Do you understand that? 

{¶27} “A. Yes, sir.” 

{¶28} Tr. at 13. 

{¶29} In addition, Appellant signed an Admission of Guilt plea form on 

December 12, 2012. The form states specifically, after release from prison Appellant 

will have three years of post-release control. The form reads, 

{¶30} “A violation of any post-release control rule or condition can result in a 

more restrictive sanction while I am under post-release control, and increased duration 

of supervision or control, up to the maximum term and re-imprisonment even though I 

have served the entire stated prison term imposed upon me by this court for all 

offenses. 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 
Licking County, Case No. 13-CA-24 9

post-release control, which would be consecutive to any other prison term imposed for 

the new offense.” 

{¶31} In accordance with this Court's previous decisions in Alexander and 

Harris, we find the trial court substantially complied with the provisions of Criminal Rule 

11 in accepting Appellant's plea. See also, State v. Kula, 5th App. Nos. 08CA13, 

08CA14, 2009-Ohio-2911; State v. Munyan, 5th App. No. 08CA88, 2009-Ohio-2348. As 

in Alexander, supra, the trial court substantially complied with the provisions of Criminal 

Rule 11 in the colloquy with Appellant and the subsequent plea form. 

{¶32} The sentence entered by the Licking County Court of Common Pleas is 

affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Delaney, J. concur 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. SHEILA G. FARMER 

 ___________________________________ 

 HON. PATRICIA A. DELANEY 

 
Licking County, Case No. 13-CA-24 10

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

VINCENT BURKE : 

 : 

 Defendant-Appellant : Case No. 13-CA-24 

 For the reason stated in our accompanying Opinion, the sentence entered by 

Licking County Court of Common Pleas is affirmed. Costs to Appellant. 

 ___________________________________ 

 HON. WILLIAM B. HOFFMAN 

 ___________________________________ 

 HON. SHEILA G. FARMER 

 ___________________________________ 

 HON. PATRICIA A. DELANEY