[Cite as State v. Jones, 2014-Ohio-4497.] 

 

Criminal Appeals From: Hamilton County Court of Common Pleas 

 

Judgments Appealed from are: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: October 10, 2014 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman 

Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

RICO JONES, 

 Defendant-Appellant. 

:

: 

: 

: 

: 

APPEAL NOS. C-130825 

 C-130826 

TRIAL NOS. B-1303988 

 B-1305104 

 

 O P I N I ON.
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CUNNINGHAM, Presiding Judge. 

{¶1} Defendant-appellant Rico Jones appeals from the judgments of the 

Hamilton County Court of Common Pleas convicting him, upon his guilty pleas, of 

multiple offenses. Because the trial court failed to advise Jones of postrelease 

control during the plea colloquy, we vacate the judgments and remand for further 

proceedings. 

I. Background Facts 

{¶2} In the case numbered B-1303988, Jones was indicted on attemptedmurder, felonious-assault, having-weapons-under-a-disability, and drug charges. 

He was tried before a jury on the attempted-murder and felonious-assault charges 

and was acquitted. He pled guilty to the remaining offenses. In the case numbered 

B-1305104, Jones was indicted on additional drug charges. He pled guilty to those 

offenses. As part of the penalty for all of the offenses to which Jones entered guilty 

pleas, he was subject to a period of postrelease control of up to three years after his 

release from prison, if the parole board would determine that it would be necessary, 

and to sanctions for violating the terms of that postrelease control. See R.C. 

2967.28(C). 

{¶3} The trial court held the plea hearing for both cases on October 23, 

2013. During the plea colloquy, the trial court informed Jones of the maximum 

terms of incarceration and the maximum fines for the offenses and then asked Jones, 

“Do you understand that those are the maximum penalties that you could get?” 

Jones responded affirmatively. The court failed to explain or even mention 

postrelease control. 

{¶4} The trial court subsequently accepted Jones’s guilty pleas and 

convicted him, in the case numbered B-1303988, of having weapons under a 
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disability, trafficking in heroin, and trafficking in cocaine, and in the case numbered 

B-1305104, of possession of heroin and possession of cocaine. The court imposed 

consecutive prison terms for all of the offenses. Jones now appeals, raising two 

assignments of error. 

II. Analysis 

{¶5} In his first assignment of error, Jones argues that the trial court erred 

by accepting his guilty pleas where the court failed to determine that he understood 

the maximum penalties involved, as required by Crim.R. 11(C)(2). 

{¶6} The enforcement of a plea that is not made knowingly, intelligently, 

and voluntarily violates both the United States and Ohio Constitutions. State v. 

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996), cited in State v. Clark, 119 

Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25, and State v. Sarkozy, 117 

Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. 

{¶7} To ensure that a defendant’s pleas are made knowingly, intelligently, 

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

Crim.R. 11. Clark at ¶ 26. Pursuant to the rule, in felony cases, the court must 

personally address the defendant and inform him of the constitutional rights he is 

waiving and of several nonconstitutionally-based matters, including the “ ‘maximum 

penalty’ ” involved. Crim.R. 11(C)(2); Clark at ¶ 27; Sarkozy at ¶ 8-10. 

{¶8} A reviewing court must apply a “multitiered analysis” for evaluating 

compliance with Crim.R. 11. Clark at ¶ 30. The Ohio Supreme Court has 

summarized this analysis as follows: 

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.” However, if the trial judge imperfectly explained 
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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. 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. 

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, * * * the 

plea may be vacated only if the defendant demonstrates a prejudicial 

effect. The test for prejudice is “whether the plea would have 

otherwise been made.” If the trial judge completely failed to comply 

with the rule * * * the plea must be vacated. “A complete failure to 

comply with the rule does not implicate an analysis of prejudice.” 

(Emphasis in original.) (Internal citations omitted.) Clark at ¶ 31-32. 

{¶9} In this case, the trial court did not mention to Jones during the plea 

colloquy that postrelease control could be imposed following the expiration of his 

prison terms and that there were sanctions for violating the terms of postrelease 

control, although it did inform Jones of the constitutional rights that he was waiving. 

{¶10} Jones contends that the trial court completely failed to comply with 

Crim.R. 11 with respect to postrelease control and, therefore, his pleas must be 

vacated, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 

1224, a case involving mandatory postrelease control. In Sarkozy, the trial court 

failed to mention postrelease control during the plea colloquy, and, as a result, the 
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Supreme Court determined that the plea was invalid, without requiring a showing of 

prejudice. Id. 

{¶11} The state argues that Sarkozy is distinguishable for two reasons and, 

therefore, Jones’s pleas cannot be vacated absent an analysis of prejudice. First, the 

state suggests that Sarkozy does not apply to defendants who are subject only to a 

discretionary term of postrelease control. Second, the state argues that there was 

some compliance because the trial court informed Jones of “probation” and “parole” 

during the plea colloquy, and because the plea form that Jones signed mentioned 

postrelease control. We are not persuaded by the state’s argument that these facts 

implicate an analysis of prejudice that was not warranted in Sarkozy. 

{¶12} Postrelease control is a “period of supervision by the adult parole 

authority after a prisoner’s release from imprisonment.” R.C. 2967.02(N). With the 

exception of unclassified felonies not relevant here, when a trial court imposes a 

prison term for a felony offense, postrelease control, mandatory or discretionary, is 

part of the sentence for that offense. See State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 23; Woods v. Telb, 89 Ohio St.3d 504, 511, 733 N.E.2d 

1103 (2000). And because postrelease control is a sanction imposed in addition to a 

prison term that extends a defendant’s punishment beyond his maximum term of 

imprisonment, it is part of the maximum penalty for the offense. See Sarkozy at ¶ 22. 

{¶13} Admittedly, for some offenders postrelease control is mandatory upon 

their release from prison. R.C. 2967.28(B). Other offenders, such as Jones, will be 

placed on postrelease control only if the parole board determines, before the 

offender’s release from prison, that a period of postrelease control is necessary, in 

accordance with R.C. 2967.28(D). R.C. 2967.28(C). 
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{¶14} But whether mandatory or discretionary, postrelease control is an 

additional penalty for the offense that the defendant must consider in determining 

whether to waive his constitutional rights and enter a guilty plea. And R.C. 2943.032 

makes no distinction between the two when it provides that the trial court “shall 

inform the defendant personally” of potential postrelease-control sanctions prior to 

accepting a guilty plea or a no-contest plea involving “a felony.” 

{¶15} Thus, we reject the state’s argument that Sarkozy does not apply to 

cases involving discretionary postrelease control. See State v. Holmes, 5th Dist. 

Licking No. 09CA70, 2010-Ohio-428, ¶ 10, citing State v. Souris, 9th Dist. Summit 

C.A. No. 24550, 2009-Ohio-3562, ¶ 7. 

{¶16} We are also unpersuaded by the state’s argument that the trial court’s 

reference to “probation” and “parole” during the plea colloquy distinguishes this case 

from Sarkozy. The relevant part of the plea colloquy provides as follows: 

The Court: * * * Do you understand that if you do not serve your entire 

sentence that you may be placed on probation or parole? 

The Defendant: Yes, I do. 

The Court: And no promise of probation has been made at this time; is 

that correct? 

The Defendant: That’s correct. 

The Court: And that if you are placed on probation or parole and then 

violate that probation, you could be sent back to serve whatever 

remains of the sentence that you would have? 

The Defendant: I understand. 

The Court: And that if you violate your probation or parole by 

committing another crime or disobeying any rules of the Court, the 
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probation or parole authority could bring you back to court. Do you 

understand that? 

The Defendant: Yes, I do. 

The Court: And that any time that you would get on probation or 

parole violation would have to be served consecutive to. That means in 

addition to any time you might get on the new offense. 

The Defendant: I understand. 

{¶17} “Probation” and “parole” are very different from postrelease control, 

and the trial court’s reference to either term was inappropriate in this case. 

“Probation” as described by the trial court no longer exists in Ohio in the context of 

felony sentencing. See State v. King, 1st Dist. Hamilton No. C-010330, 2002 Ohio 

App. LEXIS 367, * 6 (Feb. 1, 2002). “Parole” is a form of supervised release that 

applies to offenders upon release from confinement before the end of a sentence, but 

not to offenders such as Jones who are sentenced to a stated prison term. See R.C. 

2967.01(E), and 2967.13(F); Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 

462, at ¶ 36. Neither “probation” nor “parole” extends the penalty for the offense. 

Ultimately, nothing in the trial court’s discussion of probation and parole conveyed 

to Jones that he was subject to the additional sanction of postrelease control. 

{¶18} Finally, our analysis is not affected by the court’s inclusion of 

information about postrelease control on the plea form signed by Jones. The court in 

Sarkozy reiterated that Crim.R. 11 required the court to inform the defendant of the 

maximum penalty, including postrelease control, during the “plea colloquy.” See 

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶ 22. The trial 

court did not meet that requirement at all in this case, as the court during the plea 

colloquy did not mention postrelease control. 
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{¶19} The state advocates that we follow the decision of the Tenth District 

Court of Appeals in State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio6231, a case in which the trial court did not mention postrelease control during the 

2006 plea colloquy but had included information about postrelease control on the 

plea form. In Williams, however, the defendant had acknowledged at the plea 

hearing that he had reviewed the plea form with his attorney, who had explained the 

rights that he was waiving and the possible consequences of entering the plea. Id. at 

¶ 2. Because the Williams court was satisfied that the record demonstrated 

substantial compliance with Crim.R. 11, after considering the trial court’s specific 

exchange with the defendant concerning the plea form, the court distinguished the 

case from Sarkozy and affirmed the denial of Williams’s 2010 Crim.R. 32.1 motion 

challenging the validity of his plea. Id. at ¶ 37-39. Accord State v. Knowles, 10th 

Dist. Franklin No. 10AP-119, 2011-Ohio-4477, ¶ 19; State v. Williams, 5th Dist. 

Licking No. 08CA113, 2009-Ohio-3447, ¶ 16 and 26. 

{¶20} We do not find Williams persuasive. As a preliminary matter, this 

court would not have reached the merits of the claim in Williams, which was not 

raised in a direct appeal from the judgment of conviction. We would have held that 

the claim was barred by res judicata, because it did not depend for its resolution 

upon material outside the record, and thus could have been (but was not) raised on 

direct appeal, and because the claimed error, if demonstrated, would not have 

rendered the judgment of conviction void. See Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus; State v. Perry, 10 Ohio 

St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Moreover, in this case, 

unlike in Williams, the trial court did not ask Jones if he had reviewed the plea form 

and if his attorney had discussed it with him and had explained the possible 
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consequences of the plea. Ultimately, the court did not inquire into Jones’s 

understanding of the form. For these reasons, we decline to follow Williams. 

{¶21} Because the trial court did not advise Jones of postrelease control 

during the plea colloquy, Jones need not make a demonstration of prejudice. See 

Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509, 881 N.E. 2d 1224, at ¶ 22. 

{¶22} We hold that Jones’s guilty pleas must be vacated, because the trial 

court did not meet the requirements of Crim.R. 11 where the court failed to advise 

Jones during the plea colloquy that his sentences would include a discretionary term 

of postrelease control. See id. at paragraph two of the syllabus. Accordingly, we 

sustain the first assignment of error. 

{¶23} In his second assignment of error, Jones challenges the sentences 

imposed by the trial court on the ground that the court did not make the necessary 

findings to support the sentences as required by R.C. 2929.13(B)(1)(b)(i)-(iv) and 

R.C. 2929.14(C)(4), and failed to consider the relevant factors set forth in R.C. 

2929.11 and 2929.12. But the trial court’s failure to advise Jones at the plea hearing 

of postrelease control mandates that we reverse the trial court’s judgment and vacate 

Jones’s guilty pleas. Therefore, we find that this assignment of error is moot, and we 

do not address it. See App.R. 12(A)(1)(c). 

III. Conclusion 

{¶24} Because we have sustained the first assignment of error, we reverse the 

trial court’s judgments, vacate Jones’s guilty pleas, and remand this cause for further 

proceedings consistent with the law and this opinion. 

Judgments reversed and cause remanded. 

DINKELACKER and FISCHER, JJ., concur. 

Please note: 
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 The court has recorded its own entry on the date of the release of this opinion.