[Cite as State v. Bailey, 2019-Ohio-4746.]

Atty. Dan Fry, Belmont County Prosecutor, and Atty. Scott Lloyd, Assistant Prosecutor, 

147-A West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee and 

Atty. R. Aaron Miller, Aaron Miller Law Offices, LLC, 329 North Fourth Street, 

Steubenville, Ohio 43952, for Defendant-Appellant. 

 

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

BELMONT COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

DAVID LEE BAILEY, JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 BE 0052 

 

Criminal Appeal from the 

Court of Common Pleas of Belmont County, Ohio 

Case No. 18 CR 172 

BEFORE: 

David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges. 

JUDGMENT: 

Affirmed in part. Reversed in part and Remanded. 
 – 2 – 

Case No. 18 BE 0052

Dated: November 12, 2019 

 

D’Apolito, J. 

{¶1} Appellant David Lee Bailey, Jr. appeals his conviction by the Belmont 

County Court of Common Pleas for one count of attempted felonious assault, in violation 

of R.C. 2903.11(A)(1) and 2923.02(A), a felony of the third degree. Appellant advances 

two assignment of error, which initially appear to solely challenge the validity of his plea. 

First, Appellant argues that the trial court failed to adequately advise him at the plea 

hearing of the mandatory three-year term of postrelease control to be imposed following 

the completion of his sentence. However, the substance of Appellant’s first assignment 

of error advocates remand for a limited resentencing hearing on the issue of postrelease 

control. Second, Appellant contends that he was not informed that he was waiving his 

constitutional right to the presumption of innocence throughout a trial. For the following 

reasons, we find that Appellant’s plea was knowingly, intelligently, and voluntarily entered, 

but remand this matter for a limited resentencing hearing for notice regarding the 

imposition of postrelease control. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Appellant has a history of alcoholism and spousal abuse. His criminal 

history includes two convictions for operating a motor vehicle while intoxicated, as well as 

misdemeanor convictions for disorderly conduct and resisting arrest. His conviction in 

the above-captioned appeal is the direct consequence of an alcohol-fueled attack on his 

wife, during which he fractured her jaw. When police officers arrived, Appellant violently 

resisted arrest. He swung his fists and kicked as police officers attempted to subdue him. 

Appellant struck one police officer in the head. 

{¶3} On October 9, 2018, Appellant executed a waiver of indictment and entered 

a guilty plea to a bill of information charging him with one count of attempted felonious 

assault. On November 5, 2018, the trial court imposed a sentence of three years, the 

maximum term of incarceration for a third-degree felony. No restitution was ordered nor 

fine imposed. This timely appeal followed. 
 – 3 – 

Case No. 18 BE 0052

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED BY ACCEPTING A PLEA THAT WAS NOT 

KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED. 

{¶4} Before a trial court may accept a guilty plea, the trial court must inform the 

defendant of five constitutional rights, as well as determine that the defendant 

understands that he is waiving each right as a consequence of his plea. State v. 

Rowbotham, 173 Ohio App.3d 642, 2007-Ohio-6227, 879 N.E.2d 856, ¶ 7 (7th Dist.), 

citing State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the 

syllabus. The trial court must strictly comply with the notice requirement relating to the 

defendant’s constitutional rights. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 

953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 

N.E.2d 621, ¶ 18. The constitutional rights are succinctly provided in Crim. R. 11(C)(2)(c): 

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. 

{¶5} The trial court is further obligated to notify the defendant of his 

nonconstitutional rights. The Ohio Supreme Court has recognized that notice of 

postrelease control falls within a defendant’s nonconstitutional rights. State v. Sarkozy, 

117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26. The court’s colloquy 

regarding nonconstitutional rights is reviewed for substantial compliance. Rowbotham, 

supra, at ¶ 18. 

{¶6} Under the substantial-compliance standard, we review the totality of 

circumstances surrounding the defendant’s plea in order to determine whether he 

subjectively understood the effect of his plea. Sarkozy, supra, at ¶ 20. If the trial court 

completely neglects to advise a defendant of a nonconstitutional right, the plea is vacated 

without a prejudice analysis. State v. Cruz-Ramos, 2019-Ohio-779, -- N.E.3d -- (7th Dist.), 

citing Sarkozy at ¶ 22, 25. If the trial court partially complies with the rule, the plea will 
 – 4 – 

Case No. 18 BE 0052

only be vacated when prejudice is shown. Id. citing State v. Clark, 119 Ohio St.3d 239, 

2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. In order to establish prejudice, the defendant 

must show that the plea would not have been otherwise entered. State v. Cologie, 7th 

Dist. Belmont No. 17 BE 0009, 2017-Ohio-9217, ¶ 11, citing State v. Veney, 120 Ohio 

St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15; State v. Nero, 56 Ohio St.3d 106, 108, 

564 N.E.2d 474 (1990). 

{¶7} At the plea hearing in the above-captioned case, the trial court inquired, “Do 

you understand the Parole Board can require you to spend an additional three years 

under their supervision once you are released from prison?" (Plea Hrg., p. 7). The term 

“can” suggests that the imposition of postrelease control is discretionary, when, in fact, a 

third degree felony that is an offense of violence results in a mandatory three-year term 

of supervised release. R.C. 2967.28(B)(3). 

{¶8} We recently addressed a partial notice of postrelease control at a plea 

hearing in State v. Howell, 7th Dist. Monroe No. 17 MO 0018, 2019-Ohio-1806. In that 

case, the trial court failed to specify the number of years that Howell would be subject to 

postrelease control and the consequences of a postrelease control violation. We opined: 

The trial court clearly raised the issue of postrelease control. While it 

appears the trial court’s discussion of this matter falls short, we need not 

reach the issue of whether the trial court’s advisement regarding 

postrelease control rose to the level of substantial compliance with the 

Crim.R. 11 requirements because Appellant has not alleged any claim of 

prejudice and a review of this record does not reveal any possible prejudice. 

Id. at ¶ 10. 

{¶9} Like Howell, Appellant has not demonstrated nor even alleged any 

prejudice. In the absence of a demonstration of prejudice, we are without authority to 

invalidate Appellant’s plea. 

{¶10} Significantly, the body of Appellant’s first assignment of error challenges his 

sentence rather than his plea as it relates to postrelease control. Appellant writes, “While 

the Appellant realizes that such notification requirement does not render the plea or 
 – 5 – 

Case No. 18 BE 0052

sentence void, the error remains.” (Appellant’s Brf., p. 6). Next, Appellant cites R.C. 

2929.191(A)(1) for the proposition that the trial court may prepare and issue a correction 

to the judgment of conviction that includes a correct statement regarding postrelease 

control. The final sentence in Appellant’s first assignment of error reads, “Thus, the error 

exists and the sentence of the Appellant must be remanded for correction regarding the 

matter of postrelease control.” (Emphasis added.)(Appellant’s Brf., p. 7). 

{¶11} A trial court is obligated to notify an offender at the sentencing hearing about 

postrelease control and to incorporate postrelease control into its sentencing entry. State 

v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 11, citing State v. 

Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 22. “Statutorily 

compliant notification” includes “notifying the defendant of the details of the postrelease 

control.” State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. 

This includes notice that postrelease control is discretionary or mandatory, and the 

duration of the term of the supervision. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio5144, 980 N.E.2d 960, ¶ 12. 

{¶12} In other words, the sentencing court must notify the offender that he “will” 

or “may” be supervised under section 2967.28 of the Revised Code after the offender 

leaves prison if the offender is being sentenced for a felony. R.C. 2929.19(B)(2)(c) and 

(d). Where, as here, the offender has been convicted of a felony subject to mandatory 

postrelease control, the trial court must notify the offender that he “will” be supervised. 

R.C. 2929.19(B)(2)(c) and 2967.28(B). State v. Kinney, 7th Dist. Monroe No. 18 MO 0013, 

2019-Ohio-2726, ¶ 31. 

{¶13} In addition to the colloquy at the sentencing hearing, the sentencing court 

must also incorporate the notice into the written sentencing entry. State v. Smith, 7th Dist. 

Mahoning No. 17 MA 0174, 2018-Ohio-4562, ¶ 4 citing Grimes, at ¶ 11. To validly impose 

postrelease control when the court orally provides all the required advisements at the 

sentencing hearing, the sentencing entry must contain the following information: 

(1) whether postrelease control is discretionary or mandatory, (2) the 

duration of the postrelease-control period, and (3) a statement to the 

effect that the Adult Parole Authority will administer the postrelease 

control pursuant to R.C. 2967.28 and that any violation by the offender 
 – 6 – 

Case No. 18 BE 0052

of the conditions of postrelease control will subject the offender to the 

consequences set forth in that statute. 

Kinney, supra, at ¶ 31-32, State v. Bunn, 7th Dist. Mahoning No. 17 MA 0125, 2019-Ohio2703, ¶ 16, citing Grimes, at ¶ 1. 

{¶14} At the sentencing hearing, the trial court stated, “As part of defendant’s 

sentence, upon completion of the prison term, he shall be subject to a further period of 

supervision under post release control for up to three years.” (11/5/18 Sent. Hrg., p. 6.) 

The November 7, 2019 sentencing entry reads, in pertinent part, “As part of the 

defendant’s sentence in this case, and pursuant to R.C. 2967.28, upon completion of the 

prison term, offender shall be subject to a further period of supervision under PostRelease Control for up to Three (3) Years.” (Emphasis in original.)(11/7/19 J.E., p. 2.) 

{¶15} On July 11, 2006, R.C. 2929.191 was enacted to address the ongoing 

problems with postrelease control notifications. It provides an ameliorative procedure 

where a judge fails to impose statutorily mandated postrelease control and the defendant 

has yet to complete his or her sentence. R.C. 2929.191, which is prospectively applied, 

provides that: 

A court that wishes to prepare and issue a correction to a judgment of 

conviction of a type described in division (A)(1) or (B)(1) of this section shall 

not issue the correction until after the court has conducted a hearing in 

accordance with this division. Before a court holds a hearing pursuant to 

this division, the court shall provide notice of the date, time, place, and 

purpose of the hearing to the offender who is the subject of the hearing, the 

prosecuting attorney of the county, and the department of rehabilitation and 

correction. The offender has the right to be physically present at the 

hearing, except that, upon the court's own motion or the motion of the 

offender or the prosecuting attorney, the court may permit the offender to 

appear at the hearing by video conferencing equipment if available and 

compatible. An appearance by video conferencing equipment pursuant to 

this division has the same force and effect as if the offender were physically 
 – 7 – 

Case No. 18 BE 0052

present at the hearing. At the hearing, the offender and the prosecuting 

attorney may make a statement as to whether the court should issue a 

correction to the judgment of conviction. 

{¶16} When an appellate court concludes that a sentence imposed by a trial court 

is void in part, only the portion that is void may be vacated or otherwise amended. State 

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 28. The Fischer Court 

held that the new sentencing hearing to which an offender is entitled is limited to proper 

imposition of postrelease control. Id., paragraph two of the syllabus. 

{¶17} In State v. Zechar, 7th Dist. Mahoning No. 17 MA 0111, 2018-Ohio-3731, 

this Court held that the use of the phrase “up to” preceding a mandatory term of 

postrelease control in the sentencing entry was “unnecessary,” but that it did not “negate 

that the trial court informed Appellant of the mandatory nature of his postrelease control 

at the sentencing hearing (using the term “mandatory”) as well as in the sentencing entry 

(using the terms “shall be”).” Id. at ¶ 16. Despite finding that the portion of the sentence 

regarding postrelease control was not void, this Court remanded the matter for a nunc 

pro tunc order removing the phrase “up to.” Id. at ¶ 21; see also State v. Smith, 7th Dist. 

Mahoning No. 17 MA 0174, 2018-Ohio-4562. 

{¶18} The trial court in this case used the phrase “up to” at both the sentencing 

hearing and in the written sentencing entry. The Ohio Supreme Court has observed that 

“[its] main focus in interpreting the sentencing statutes regarding postrelease control has 

always been on the notification itself and not on the sentencing entry.” Qualls, at ¶ 19. 

Further, the Supreme Court has “deemed the ‘preeminant purpose’ of R.C. 2967.28 to be 

that ‘offenders subject to postrelease control know at sentencing that their liberty could 

continue to be restrained after serving their initial sentences.’ ” Grimes, at ¶ 14, quoting 

Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 52. 

Accordingly, we find that Appellant’s first assignment or error, as it relates to his plea 

colloquy, has no merit, but is meritorious as it relates to that portion of his sentence 

imposing postrelease control. Therefore, we find that this matter must be remanded to 

the trial court for a limited resentencing hearing for the proper imposition of postrelease 

control and the issuance of a new sentencing entry. 
 – 8 – 

Case No. 18 BE 0052

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED BY FAILING TO FULLY NOTIFY 

APPELLANT OF HIS RIGHT PURSUANT TO CRIMINAL RULE 11, OHIO 

RULES OF CRIMINAL PORCEDURE AND THE UNITED STATES 

CONSTITUTION. THEREFORE, THE DEFENDANT DID NOT 

KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTER SAID 

PLEA. 

{¶19} In his second assignment of error, Appellant contends that he was not 

notified of his constitutional right “to be presumed innocent until the State of Ohio proved 

each and every element of the offense charged beyond a reasonable doubt.” (Appellant’s 

Brf., p. 7.) Appellant cites State v. Owens, 6th Dist. Wood No. WD-00-004, 98-CR-226, 

2000 WL 1232426, in which the Sixth District summarized the trial court’s plea colloquy 

as follows: “The trial court reviewed the constitutional rights appellant was waiving by 

entering a guilty plea including: the presumption of innocence.” Id. at *3. 

{¶20} During the plea colloquy, the trial court inquired, “Do you understand by 

pleading guilty you give up the right * * * to have the State prove your guilt beyond a 

reasonable doubt * * *?” Appellant responded, “Yes, sir.” (Plea Hrg., p. 5-6.) The trial 

court parroted the Crim. R. 11 language verbatim, and, therefore, the trial court strictly 

complied with the notice requirement for the waiver of the constitutional right at issue 

here. Accordingly, we find that Appellant’s second assignment of error is meritless. 

CONCLUSION 

{¶21} In summary, we find that Appellant has failed to demonstrate that he would 

not have entered his plea but for the trial court’s misstatement of the mandatory term of 

postrelease control. Further, Appellant was properly notified of his constitutional right to 

have his guilt proved beyond a reasonable doubt. However, the trial court failed to inform 

Appellant of the actual length of the term of postrelease control at the sentencing hearing 

and in the sentencing entry. Therefore, we find that Appellant’s plea was knowingly, 

intelligently, and voluntarily entered, but we reverse the judgment entry solely on the issue 
 – 9 – 

Case No. 18 BE 0052

of postrelease control and remand this matter for a new sentencing hearing limited to the 

proper imposition of postrelease control and the issuance of a new sentencing entry. 

Donofrio, J., concurs. 

Robb, J., concurs. 
[Cite as State v. Bailey, 2019-Ohio-4746.]

 

 

For the reasons stated in the Opinion rendered herein, we affirm in part, finding 

that Appellant’s plea was knowingly, intelligently, and voluntarily entered. We reverse 

the judgment entry solely on the issue of postrelease control and remand this matter 

for a new sentencing hearing limited to the proper imposition of postrelease control and 

the issuance of a new sentencing entry. Costs to be waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.