[Cite as State v. Foster, 2018-Ohio-4006.] 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

 

Date of Judgment Entry on Appeal: October 3, 2018 

Paula E. Adams, Assistant Hamilton County Prosecuting Attorney, for PlaintiffAppellee,

Hastings & Hastings, LLC, and Robert R. Hastings, Jr., for Defendant-Appellant. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

DORIAN FOSTER, 

 Defendant-Appellant. 

 

: 

: 

: 

: 

: 

APPEAL NO. C-170245 

TRIAL NO. B-1601333 

 

 

 O P I N I O N.

 
OHIO FIRST DISTRICT COURT OF APPEALS

2

DETERS, Judge.

{¶1} Defendant-appellant Dorian Foster was indicted for the rape and gross 

sexual imposition of his stepdaughter. Foster and the state entered into a plea 

agreement. Foster pleaded guilty to rape. In exchange, the state dismissed the 

gross-sexual-imposition charge. The trial court sentenced Foster to seven years in 

prison and informed him of his duty to register as a Tier III sex offender. Foster filed 

a motion for a delayed appeal, which this court granted. 

{¶2} In two assignments of error, Foster argues that his guilty plea was not 

knowingly, intelligently, and voluntarily made because he was not informed that the 

rape offense carried a mandatory prison term, and that the Ohio Department of 

Rehabilitation and Correction violated the separation-of-powers doctrine by 

signifying in its records that his sentence is “mandatory.” Finding merit in neither 

assignment of error, we affirm the judgment of the trial court. 

Plea Hearing 

{¶3} The record reflects that the trial court asked Foster if he had reviewed 

with defense counsel the entry withdrawing his plea of not guilty and entering a 

guilty plea to rape, and if he had voluntarily signed the form. Foster replied that he 

had. The trial court then reviewed the form with Foster, questioning him specifically 

about his understanding of its contents. Foster acknowledged that he was pleading 

guilty to rape, which was punishable as a first-degree felony that carried a minimum 

sentence of three years in prison and a maximum sentence of 11 years in prison. The 

trial court told Foster that the rape offense did not carry a mandatory prison term, 

but that it did carry a maximum fine of $20,000. The trial court then informed 

Foster that by pleading guilty to the rape offense he was subject to classification as a 

Tier III sex offender. 
OHIO FIRST DISTRICT COURT OF APPEALS

3 

{¶4} Thereafter the trial court stated, “You understand this is not a 

probation offense, that I’m not considering probation on this case. Do we understand 

each other?” Foster replied, “Yes.” The court went on to state, “And I’m thinking 

about a penitentiary sentence of anywhere from 3 to 11 years. Do you understand 

that?” Foster replied, “Yes.” Despite this exchange, the trial court read the portion 

of the plea form stating that “at any point in this sentence, I can give you community 

control. If you violate any of those conditions, I can give you a longer period of 

community control probation. I can increase the restrictions on the community 

control probation. Or sentence you anywhere from 3 to 11 years and community 

control may last up to five years.” 

{¶5} The trial court then stated, “I want to say this because I don’t want you 

to walk out of this room thinking or having any miscalculations or being misguided. 

I’m not thinking about probation. * * * Once I lay down a number, that’s going to be 

it. Do we understand each other?” 

{¶6} Foster inquired, “What is she saying?” 

{¶7} The trial court then stated, “I’ll repeat that. I’m not considering 

probation at this particular time for you because of the nature of the charge. * * * Do 

we understand each other, sir?” Foster replied, “Yes. Yes ma’am.” 

{¶8} The trial court told Foster that he had not been very responsive during 

the plea colloquy, and it was going to give him some time to consider whether he still 

wanted to plead guilty to the rape offense. The trial court informed Foster that he 

was entering into a blind plea because he did not know what sentence the court 

would impose. The trial court told Foster it could impose a prison sentence of 

anywhere from three to 11 years, and that if he decided to plead guilty it would order 

a presentence investigation and a court clinic report, and it would listen to both the 
OHIO FIRST DISTRICT COURT OF APPEALS

4

victim’s and the defendant’s families before selecting the proper term. The trial 

court told Foster that it was not thinking about probation or even imposing a 

minimum prison term and that it would not know how many years it was going to 

impose until it had seen the presentence investigation and a court clinic evaluation. 

The trial court then took a short recess. 

{¶9} Following the recess, the trial court asked Foster if he still wished to 

plead guilty. Foster told the trial court that, after speaking with his mother, he had 

decided to proceed with the plea agreement. The trial court then resumed its plea 

colloquy with Foster. In response to further questioning by the trial court, Foster 

stated that he was satisfied with defense counsel, he was not under the influence of 

drugs or alcohol, and he had voluntarily signed the guilty-plea form. 

{¶10} The trial court informed Foster that by pleading guilty he was waiving 

certain constitutional rights, including his privilege against self-incrimination, the 

right to a jury trial, the right to confront his accusers, and the right to require the 

state to prove his guilt beyond a reasonable doubt. Foster acknowledged his waiver 

of these constitutional rights, and that his guilty plea was a complete admission to 

the charge. The assistant prosecuting attorney then read the facts as set forth in the 

indictment. Thereafter, the trial court accepted Foster’s plea and found him guilty of 

rape. 

Sentencing Hearing 

{¶11} At the sentencing hearing, the trial court told Foster that it had 

reviewed both the court clinic report and the presentence-investigation report. The 

trial court then listened to the victim’s cousin, grandmother, and aunt, and to 

Foster’s parents. The trial court sentenced Foster to seven years in prison for the 

rape offense. The trial court did not inform Foster during the sentencing hearing 
OHIO FIRST DISTRICT COURT OF APPEALS

5

that the seven-year prison sentence was mandatory. The sentencing entry, likewise, 

did not state that Foster’s seven-year sentence for the rape offense was mandatory. 

Failure to Notify Regarding Mandatory Prison Term 

{¶12} In his first assignment of error, Foster argues his guilty plea was not 

knowingly, intelligently, and voluntarily made because he was not informed at the 

time that he pleaded guilty that the rape offense carried a mandatory prison sentence 

that rendered him ineligible for community control, judicial release, and earned days 

of credit. 

{¶13} A guilty plea is constitutionally valid only if it is entered knowingly, 

voluntarily, and intelligently. State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 

(1996). To ensure a no-contest or guilty plea is made knowingly, intelligently, and 

voluntarily, the trial court must engage the defendant in a colloquy pursuant to 

Crim.R. 11(C) and inform him of certain constitutional and nonconstitutional rights. 

Id.

{¶14} The trial court must inform the defendant that by pleading guilty or 

no contest, he is waiving the following constitutional rights: the privilege against selfincrimination, the right to a jury trial, the right to confront his accusers, and the right 

of compulsory process of witnesses. Crim.R. 11(C)(2)(c). The trial court must also 

inform the defendant of certain nonconstitutional rights, including the nature of the 

charges, the maximum penalty involved, the eligibility of the defendant for probation 

or community control, and the effect of the plea. Crim.R. 11(C)(2)(a) and (b). 

{¶15} A trial court must strictly comply with Crim.R. 11 when it explains the 

constitutional rights set forth in Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 

176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus; State v. Ballard, 66 Ohio St.2d 473, 

423 N.E.2d 115 (1981), paragraph one of the syllabus. When a trial court fails to 
OHIO FIRST DISTRICT COURT OF APPEALS

6

explain these rights, the guilty or no-contest plea is invalid “under a presumption 

that it was entered involuntarily and unknowingly.” State v. Griggs, 103 Ohio St.3d 

85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. 

{¶16} A trial court, however, need only substantially comply with Crim.R. 11 

when explaining the nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b). 

“Substantial compliance means that under the totality of the circumstances the 

defendant subjectively understands the implications of his plea and the rights he is 

waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). When a 

trial court fails to substantially comply with Crim.R. 11 with regard to a nonconstitutional right, the plea may be vacated only if the defendant shows prejudice. 

“The test [for prejudice] is whether the plea would have otherwise been made.” Id. 

{¶17} A defendant who is required to serve a mandatory prison term is 

ineligible for probation or community control. See R.C. 2929.16(A). Crim.R. 

11(C)(2)(a) requires the trial court to inform a defendant about his eligibility for 

probation or community control. In Nero, the Ohio Supreme Court held that “where 

the circumstances indicate that the defendant knew he was ineligible for probation 

and was not prejudiced by the trial court’s failure to comply with Crim.R. 11(C)(2)(a), 

the trial court’s acceptance of the defendant’s guilty plea to the nonprobationable 

crime of rape without personally advising the defendant that he was not eligible for 

probation constituted substantial compliance with Crim.R. 11. (State v. Stewart, 

[1977], 51 Ohio St.2d 86, 364 N.E.2d 1163 followed).” Nero at syllabus. In Nero, the 

defendant’s attorney had told the trial court during the plea colloquy that he knew 

his client would be incarcerated and the defendant had asked the trial court to give 

him some time to straighten out his affairs. Id. at 108. 
OHIO FIRST DISTRICT COURT OF APPEALS

7

{¶18} In State v. Farley, 1st Dist. Hamilton No. C-010478, 2002 WL 397909, 

*1, (Mar. 15, 2002), this court held that the trial court had erred by accepting the 

defendant’s guilty plea to an amended rape charge and one count of gross sexual 

imposition where the trial court had failed to comply with Crim.R. 11(C)(2)(a). The 

plea form the defendant had executed had not stated that the prison term for the 

rape offense was mandatory, or that the defendant was ineligible for probation or 

community control, and the trial court had failed to orally inform the defendant that 

he was ineligible for probation or community control. Id. at *2 

{¶19} We acknowledged that to make a voluntary choice, a defendant must 

act with a full understanding of the consequences of his plea. Because the prospect 

of probation or community control would be a factor weighing heavily in favor of a 

plea, we reasoned that the fact that a community-control sanction was statutorily 

precluded could affect the defendant’s decision to enter a guilty plea. Id. We held 

that under the totality of the circumstances, we could not conclude that the 

defendant, at the time he had entered his guilty plea, had understood that he was 

ineligible for community control or probation, and we could not be confident that he 

would have entered his guilty plea had the trial court complied with the rule. Id. 

{¶20} Here, Foster’s written plea form had the word “none” written under 

the heading for mandatory prison term. The plea form further provided that “if 

granted community control/probation at any point in my sentence, I understand that 

I will be subject to all conditions imposed by Community Control/Probation.” 

{¶21} At Foster’s plea hearing, the trial court incorrectly advised Foster that 

the rape offense did not carry a mandatory prison term. But the trial court expressly 

told Foster that community control was not a sentencing option and that it was 

planning to impose a prison sentence upon him. Despite these express statements, 
OHIO FIRST DISTRICT COURT OF APPEALS

8 

the trial court proceeded to read from the community-control explanation in the plea 

form. The trial court then told Foster that it could not tell him the exact prison term 

it would impose, but that it would be more than the statutory minimum of three 

years. The trial court then gave Foster an opportunity to speak with his family about 

the guilty plea. Following the trial court’s statements regarding its imposition of a 

prison term upon Foster, Foster decided to plead guilty to the offense. 

{¶22} Although the trial court read from the community-control portion of 

the plea form, Foster can demonstrate no prejudice from the trial court’s statements. 

Here, unlike in Farley, the trial court had expressly told Foster multiple times during 

the plea colloquy that community control was not a sentencing option and that it was 

planning to impose a prison term. Under the totality of the circumstances in this 

case, we cannot conclude that Foster’s guilty plea was not knowingly, voluntarily, 

and intelligently made. See Nero, 56 Ohio St.3d 106, 564 N.E.2d 474. 

{¶23} The dissent, in arguing that the trial court failed to comply with 

Crim.R. 11, ignores this court’s precedent and does not meaningfully explain why the 

Supreme Court’s opinion in Nero mandates a different result. Instead, it relies on 

case law from other appellate districts that is factually distinguishable. In the cited 

cases from these districts, the plea form, like the form in Farley, contained no 

information about a mandatory term or contained wrong information and likewise, 

the trial court either gave wrong information about community control or no 

information about community control at all. Those districts, like this court in Farley

concluded that under these circumstances, the defendant could not have appreciated 

the effect of his plea. Here, however, the trial court expressly told Foster that he 

would be going to prison. Thus, our conclusion is not inconsistent with the case law 

cited by the dissent. 
OHIO FIRST DISTRICT COURT OF APPEALS

9

{¶24} Foster additionally argues that his guilty plea was not knowingly, 

voluntarily, and intelligently entered because the trial court failed to advise him that 

he would be ineligible for judicial release and earned days of credit. A defendant who 

is serving a mandatory prison term cannot apply for judicial release until the 

expiration of all mandatory prison terms in his stated prison sentence. State v. 

Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11; R.C. 2929.13(F) 

and 2929.20(A)(1)(a) and (B). A defendant’s ineligibility for judicial release, 

however, is not one of the items in Crim.R. 11(C)(2)(a) that the trial court is required 

to determine a defendant’s understanding of when he or she enters a guilty plea. 

State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, ¶ 13, citing 

State v. Xie, 62 Ohio St.3d 521, 524-525, 584 N.E.2d 715 (1992). Thus, a trial court is 

generally not required to inform a defendant about judicial release during the plea 

colloquy unless judicial release is incorporated into a plea agreement or the 

defendant can demonstrate that the trial court made some misstatement or 

misrepresentation about judicial release that he relied upon when entering his plea. 

State v. Kinney, 1st Dist. Hamilton No. C-160415, 2018-Ohio-404, ¶ 22-26 (following 

Simmons and holding the defendant’s reliance upon the trial court’s erroneous 

statements about his eligibility for judicial release rendered his guilty plea 

involuntary). 

{¶25} Here, the plea form provided: “I understand the maximum penalty as 

set out above and any mandatory prison term during which I am not eligible for 

judicial release * * *.” The trial court never orally discussed judicial release during 

the Crim.R. 11 plea colloquy. It was not a part of Foster’s plea agreement with the 

state, and Foster has not argued that his eligibility for judicial release was a factor in 

his decision to plead guilty. 
OHIO FIRST DISTRICT COURT OF APPEALS

10

{¶26} Likewise, Crim.R. 11 does not require a trial court to notify a defendant 

that his sentence may or may not be reduced by the statutory provisions providing 

for earned days of credit. Foster has cited no authority to the contrary. See State v. 

Dowdy, 8th Dist. Cuyahoga No. 105396, 2017-Ohio-8320, ¶ 12; State v. Fisher, 6th 

Dist. Lucas No. L-15-1262, 2016-Ohio-4750, ¶ 17. Foster’s guilty-plea form stated the 

following with respect to such credit: “I understand that I may be eligible to earn 

days of credit under the circumstances set forth in R.C. 2967.193 of the Ohio Revised 

Code. I further understand that the days of credit are not automatically earned, but 

must be earned in the matter specified by law.” This language in the plea form was 

not an incorrect statement of law. The trial court did not discuss earned days of 

credit during its plea colloquy with Foster. Foster does not argue that his eligibility 

for earned days of credit was a factor in his decision to plead guilty. Thus, we 

overrule the first assignment of error. 

{¶27} In his second assignment of error, Foster argues that the Ohio 

Department of Rehabilitation and Correction violated the separation-of-powers 

doctrine by administratively adding the designation “mandatory” to his records 

without any judicial order requiring such action. 

{¶28} Foster claims this error is demonstrated by a Department of 

Rehabilitation and Correction printout appended to his brief. But the printout was 

not made a part of the record in the trial court, and thus, it is not part of our record 

on appeal. See App.R. 9(A). Materials appended to briefs may not be considered 

pursuant to App.R. 9(A) and 12(A)(1)(b). State v. Tekulve, 188 Ohio App.3d 792, 

2010-Ohio-3604, 936 N.E.2d 1030 (1st Dist.) (holding that documents appended to 

the defendant’s brief were not a part of the record on appeal). Foster, thus, cannot 

demonstrate the error of which he complains. See State v. Ishmail, 54 Ohio St.2d 
OHIO FIRST DISTRICT COURT OF APPEALS

11

402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. We, therefore, overrule 

his second assignment of error, and affirm the judgment of the trial court. 

Judgment affirmed. 

MOCK, P.J., concurs.

ZAYAS, J., concurs in part and dissents in part.

ZAYAS, J., concurring in part and dissenting in part.

{¶29} I concur with the majority’s resolution of Foster’s second assignment 

of error. However, under the totality of the circumstances, I conclude that Foster 

could not have understood the maximum penalty he was facing because he was 

erroneously informed that the prison sentence was not mandatory and erroneously 

informed that he was eligible for community control. Although the trial court 

informed him that it would not impose community control because of the nature of 

the offense, the court did not advise him that he was facing a mandatory sentence, 

rendering him ineligible for community control. 

{¶30} Unlike the majority, I am not persuaded that Nero governs the 

outcome of this case. Nero is distinguishable from this case because it involved the 

clause related to probation eligibility, and not the clause that requires that a 

defendant understand the maximum penalty. Nero was correctly advised of the 

maximum penalty he was facing. Here, Foster was incorrectly advised that he would 

not be serving a mandatory prison term, and that he was eligible for community 

control, judicial release, and to earn days of credit. Under these circumstances, 

Foster could not have understood the maximum penalty he was facing. Therefore, I 

respectfully dissent from that portion of the majority’s opinion. 

The Plea Form 

{¶31} The record indicates that Foster signed a written plea form before the 

Crim.R. 11 colloquy. While the written plea form correctly indicated that the 
OHIO FIRST DISTRICT COURT OF APPEALS

12

potential sentencing range was three to 11 years, it erroneously stated that none of 

the time was mandatory. The form also stated, “I understand the maximum penalty 

as set out above, and any mandatory prison term during which I am NOT eligible for 

judicial release.” The form explained that if he were granted community control at 

any point in his sentence, he would be subject to conditions, and the possible 

penalties for violating those conditions. Finally, the form informed him that he may 

be eligible to earn days of credit and “that the days of credit are not automatically 

earned, but must be earned in the manner specified by Law.” 

The Plea Colloquy 

{¶32} Before accepting Foster’s guilty plea, the trial court engaged him in the 

following colloquy. 

THE COURT: And a Felony 1 has a potential sentencing range, doesn’t 

it? It carries a minimum period of incarceration and a maximum 

period of incarceration. What’s the minimum? 

THE DEFENDANT: Three. 

THE COURT: What’s the maximum? 

THE DEFENDANT: Eleven. 

THE COURT: Very good. And no mandatory prison term, but it does 

have a maximum fine of $20,000. 

* * * 

THE COURT: You understand that this is not a probation offense, that 

I’m not considering probation on this case. Do we understand each 

other? 

THE DEFENDANT: Yes. 
OHIO FIRST DISTRICT COURT OF APPEALS

13

THE COURT: And I’m thinking about a penitentiary sentence of 

anywhere from three to eleven years. Do you understand that? 

THE DEFENDANT: Yes. 

* * * 

THE COURT: And also, I will read the community control. At any 

point in this sentence, I can give you community control. If you violate 

any of those conditions, I can give you a longer period of community 

control probation. I can increase the restrictions on the community 

control probation. Or sentence you anywhere from three to eleven 

years and community control may last up to five years. I want to say 

this because I don’t want you to walk out of this room thinking or 

having any miscalculations or being misguided. I’m not thinking 

about probation. And because of the nature of the charge, more than 

likely, I would not be thinking of post-release control either. Once I 

lay down the number, that’s going to be it. 

THE DEFENDANT: What is she saying? 

THE COURT: I’ll repeat that. I’m not considering probation at this 

particular time for you because of the nature of the crime. I’m also 

telling you at this particular point in time, once I pass sentence, I more 

than likely would not be thinking of a post-release control type of plea. 

I don’t want you to think of any promise or any thoughts of postrelease control, do we understand each other, sir? 

THE DEFENDANT: Yes. Yes, ma’am. 

* * * 
OHIO FIRST DISTRICT COURT OF APPEALS

14 

THE COURT: But I’m not thinking about probation. I know when you 

walked up to the podium from a discussion perhaps with your 

attorney, you were hopeful of that. I’m not going to promise you 

minimum. You probably were hopeful for that. 

Law and Analysis 

{¶33} To determine whether a plea was entered knowingly, intelligently and 

voluntarily, “an appellate court examines the totality of the circumstances through a 

de novo review of the record.” State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 

(8th Dist.). A trial court must substantially comply with Crim.R. 11(C)(2)(a) with 

respect to the nonconstitutional rights and ensure the defendant understands the 

maximum penalty involved and his ineligibility for community control. Nero, 56 

Ohio St.3d at 108, 564 N.E.2d 474. “Substantial compliance means that under the 

totality of the circumstances the defendant subjectively understands the implications 

of his plea and the rights he is waiving.” Id. at 108. 

{¶34} In conducting the plea colloquy, the trial judge must convey accurate 

information to the defendant so that the defendant can understand the consequences 

of his decision and enter a valid plea. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio3748, 893 N.E.2d 462, ¶ 26; State v. Rand, 10th Dist. Franklin No. 03AP745, 2004-

Ohio-5838, ¶ 23 (the trial court committed reversible error when it accepted 

defendant's guilty plea because it misinformed him that his sentence was not 

mandatory); State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶ 

15-16 (trial court's failure to advise defendant that a guilty plea to a robbery charge 

carried a mandatory prison term that rendered him ineligible for community control 

or judicial release invalidated the plea and required reversal of the conviction and 

sentence); State v. Smith, 5th Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-12 
OHIO FIRST DISTRICT COURT OF APPEALS

15

(trial court's failure to notify defendant who pled no contest to rape charges of the 

amount of mandatory prison time and the time during which he would be ineligible 

for community control resulted in invalid plea that required reversal). 

{¶35} Where a defendant faces a mandatory prison sentence as a result of a 

plea, the trial court must determine, prior to accepting the plea, that the defendant 

understands that he or she is subject to a mandatory prison sentence and that as a 

result of the mandatory prison sentence, he or she is not eligible for probation or 

community-control sanctions. See, e.g., Tutt at ¶ 19; State v. Silvers, 181 Ohio 

App.3d 26, 2009-Ohio-687, 907 N.E.2d 805, ¶ 13 (2d Dist.); State v. Hendrix, 12th 

Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6; State v. Brigner, 4th Dist. 

Athens No. 14CA19, 2015-Ohio-2526, ¶ 14. “The rationale for such a rule is that, 

without an adequate understanding of mandatory prison time, a defendant cannot 

fully understand the consequence of his or her plea as required by Crim.R. 11(C)(2).” 

Tutt at ¶ 23. 

{¶36} In this case, the trial court affirmatively told Foster that a prison term 

was not mandatory, and that he was eligible for community control at any point in 

the sentence. Significantly, the judgment entry does not state that the prison term 

was mandatory. The plea form also contains multiple incorrect and misleading 

representations. The form incorrectly informed Foster that none of his sentence 

would be mandatory, and that he was eligible for the imposition of community 

control, judicial release, and may be eligible to earn days of credit. However, Foster 

was not eligible for community control, judicial release, or to earn days of credit 

because he was subject to a mandatory prison term. See Silvers at ¶ 12. Ordinarily, a 

trial court is not obligated to inform a defendant about judicial release or earned 

days of credit. Id. at ¶ 14. However, when the plea form contains incorrect and 
OHIO FIRST DISTRICT COURT OF APPEALS

16 

misleading information about judicial release or earned days of credit, a trial court 

must correct the misinformation. Id. at ¶ 15; Hendrix at ¶ 26. 

{¶37} At no point, either through the plea form or during the plea colloquy, 

was Foster advised that the rape charge carried a mandatory prison term rendering 

him ineligible for community control, judicial release, and earned days of credit. In 

fact, he was expressly advised that a prison term was not mandatory. Foster could 

not have understood that he was required to serve a mandatory sentence, which 

meant he would serve the entire prison term, and was ineligible for judicial release 

and to earn days of credit. See Hendrix at ¶ 26 (vacating a defendant's plea where 

the colloquy and plea form misadvised the defendant and understated the sentence 

with regard to earned credit, community control, and judicial release); Silvers at ¶ 15 

(trial court failed to substantially comply with Crim.R. 11(C)(2)(a) when it did not 

correct the information in the plea form and affirmatively notify the defendant that 

he was ineligible for judicial release). 

{¶38} Although the trial court informed Foster that the court intended to 

impose a prison term rather than community control, the court also informed him 

that he was eligible for community control. Notably, at the plea hearing, the court 

acknowledged that Foster was still hopeful for a sentence of community control when 

he walked up to the podium. At no time did the court explain that he was ineligible 

for community control because he was facing a mandatory prison term. “Ineligibility 

for (as opposed to the unlikelihood of) the imposition of community control 

sanctions is deemed to be a sufficiently important effect of a plea of guilty or no 

contest that it is specifically incorporated in Crim.R. 11(C)(2)(a) as a subject that 

must be specifically addressed by the trial court, concerning which the defendant's 

understanding must be specifically determined by the trial court.” State v. Balidbid, 
OHIO FIRST DISTRICT COURT OF APPEALS

17 

2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 12. Consequently, Foster could 

not have subjectively understood that he was subject to a mandatory prison term on 

the rape charge and ineligible for community control. 

{¶39} Under the totality of the circumstances, the trial court failed to 

substantially comply with Crim.R. 11(2)(a). See Tutt, 2015-Ohio-5145, 54 N.E.3d 

619, at ¶ 22 (trial court did not substantially comply with Crim.R. 11(C)(2)(a) when it 

failed to expressly inform the defendant that the defendant was subject to a 

mandatory prison term and was not eligible for community control); State v. 

Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 12 (“compliance with 

the ‘maximum’ penalty provision of Crim.R. 11(C)(2) requires the court to inform the 

defendant, prior to taking a guilty plea, that a charge carries a mandatory 

consecutive sentence”); Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio361, at ¶ 15-17 (trial court’s failure to advise defendant that guilty plea to robbery 

charge carried a mandatory prison term rendered plea invalid); State v. Smith, 5th 

Dist. Licking No. 13-CA-44, 2014-Ohio-2990, ¶ 11-12 (defendant’s no-contest pleas to 

four counts of rape were not knowing, intelligent and voluntary where although the 

trial court informed defendant at the plea hearing that the offenses “carr[ied] a term 

of mandatory incarceration,” it failed to state the number of years that were 

mandatory); Rand, 10th Dist. Franklin No. 03AP-745, 2004-Ohio-5838, at ¶ 21-23 

(where the entry of guilty plea indicated that prison sentence was not mandatory and 

the trial court failed to advise the defendant at plea hearing that the prison sentence 

was, in fact, mandatory, the trial court did not substantially comply with Crim.R. 

11(C)(2)(a)). 

{¶40} Having found the trial court did not substantially comply, the next step 

is to determine whether the court partially complied or wholly failed to comply. 
OHIO FIRST DISTRICT COURT OF APPEALS

18

Hendrix, 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, at ¶ 11. If the court 

partially complied, the plea will not be vacated unless the defendant establishes 

prejudice. Id. If the court wholly failed to comply, the defendant need not 

demonstrate prejudice, and the plea must be vacated. Id. 

{¶41} Because the trial court failed to inform Foster that the prison term was 

mandatory, the court wholly failed to comply with Crim.R. 11(C)(2)(a), and he need 

not demonstrate prejudice. See Tutt at ¶ 31; Givens at ¶ 15; State v. Dunham, 5th 

Dist. Richland No. 2011-CA-121, 2012-Ohio-2957, ¶ 16-17. Accordingly, I would 

sustain Foster’s first assignment of error, reverse the conviction, vacate the plea, and 

remand the cause for further proceedings. 

Please note: 

 The court has recorded its own entry this date.