State v. Tipton , 2021 Ohio 1128 ( 2021 )

[Cite as State v. Tipton, 2021-Ohio-1128.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO, : CASE NO. CA2020-05-011
Appellee, : OPINION
4/5/2021
:
- vs -
:
JASON EDWARD TIPTON, :
Appellant. :
CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CRI20190135
Nicholas A. Adkins, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for appellee
Treynor Law, Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio
43140, for appellant
M. POWELL, J.
{¶ 1} Appellant, Jason Tipton, appeals his conviction in the Madison County Court
of Common Pleas following his guilty plea to disseminating matter harmful to juveniles.
{¶ 2} Appellant was indicted in September 2019 on two counts of disseminating
matter harmful to juveniles. The charges stemmed from allegations that appellant made
Madison CA2020-05-011
two children, both under the age of 13, watch pornography while naked.
{¶ 3} On February 21, 2020, appellant pled guilty to one count of disseminating
matter harmful to juveniles, a felony of the fourth degree, in exchange for the state
dismissing the other felony sex charge. During the plea hearing, the trial court conducted
a Crim.R. 11 colloquy and advised appellant that he would "be subject to three years'
optional post-release control" upon release from prison. Appellant's guilty plea and jury
waiver form likewise indicated he would be subject to an optional three-year period of
postrelease control. However, because disseminating matter harmful to juveniles is a
felony sex offense, a five-year period of postrelease control is mandatory for such an
offense. R.C. 2967.28(A), (B)(1). On March 20, 2020, the trial court sentenced appellant
to 18 months in prison and properly advised him he would be subject to a mandatory five-
year period of postrelease control. The sentencing judgment entry likewise correctly stated
that appellant was subject to a mandatory five-year period of postrelease control.
{¶ 4} Appellant appeals his conviction, raising two assignments of error which will
be considered together.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE DEFENDANT'S ENTRY OF PLEA WAS NOT KNOWING,
INTELLIGENT OR VOLUNTARY BECAUSE THE PLEA FORM AND RULE 11 COLLOQUY
INCORRECTLY IDENTIFIED THE DEFENDANT'S POST-RELEASE CONTROL
EXPOSURE AS 'OPTIONAL' INSTEAD OF MANDATORY.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT'S FAILURE TO COMPLY WITH RULE 11 EXCUSES
THE DEFENDANT FROM DEMONSTRATING PREJUDICE AS A RESULT OF THE
FAULTY PLEA.
{¶ 9} Appellant argues that he did not knowingly, intelligently, or voluntarily enter
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his guilty plea because the trial court failed to comply with Crim.R. 11(C)(2)(a) when it
misinformed him about postrelease control during the plea colloquy. Appellant asserts that
the trial court's postrelease control misstatement is a complete failure to comply with
Crim.R. 11(C)(2)(a), and thus, he is not required to show he was prejudiced by the error for
his guilty plea to be vacated. In support of his argument, appellant cites State v. Dangler,
Slip Opinion No. 2020-Ohio-2765.
{¶ 10} "When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement
of the plea unconstitutional under both the United States Constitution and the Ohio
Constitution." State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179. Crim.R. 11(C)
prescribes the process that a trial court must use before accepting a plea of guilty to a
felony. State v. Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, ¶ 11.
{¶ 11} As pertinent here, Crim.R. 11(C)(2)(a) provides that a trial court shall not
accept a guilty plea in a felony case without personally addressing the defendant and
"[d]etermining that the defendant is making the plea voluntarily, with understanding of the
nature of the charges and of the maximum penalty involved, and, if applicable, that the
defendant is not eligible for probation or for the imposition of community control sanctions
at the sentencing hearing."
{¶ 12} Postrelease control is a "period of supervision by the adult parole authority
after a prisoner's release from imprisonment," and whether mandatory or discretionary, part
of a sentence for a felony offense. R.C. 2967.01(N); State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, ¶ 23; Woods v. Telb, 89 Ohio St.3d 504, 511, 2000-Ohio-171. "Pursuant
to Crim.R. 11(C)(2)(a), because postrelease control is part of a defendant's potential
maximum sentence, postrelease control is a penalty that the trial court must inform a
defendant of before accepting the defendant's guilty plea." State v. Floyd, 12th Dist. Warren
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No. CA2016-09-077, 2017-Ohio-687, ¶ 16. Thus, "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." State v.
Jones, 1st Dist. Hamilton Nos. C-130825 and C-130826, 2014-Ohio-4497, ¶ 14.
{¶ 13} In Dangler, the Ohio Supreme Court addressed a trial court's compliance with
Crim.R. 11(C) and how best to review a trial court's plea colloquy to ensure that a
defendant's plea is knowingly and voluntarily entered. As a general matter, "a defendant is
not entitled to have his plea vacated unless he demonstrates he was prejudiced by a failure
of the trial court to comply with the provisions of Crim.R. 11(C)," i.e., that "the plea would
not have otherwise been made." Dangler, 2020-Ohio-2765 at ¶ 16. There are, however,
two exceptions to this rule: (1) when the trial court "fails to explain the constitutional rights
[set forth in Crim.R. 11(C)(2)(c)] that a defendant waives by pleading guilty or no contest,"
and (2) "a trial court's complete failure to comply with a portion of Crim.R. 11(C)." (Emphasis
sic.) Id. at ¶ 15. Under either exception, the defendant is not required to show prejudice.
{¶ 14} The supreme court, therefore, set forth the following inquiry for courts to
employ in examining a challenge to a plea: "Properly understood, the questions to be
answered are simply: (1) has the trial court complied with the relevant provisions of the
rule? (2) if the trial court has not complied fully with the rule, is the purported failure of a
type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a
showing of prejudice is required, has the defendant met that burden?" Id. at ¶ 17; State v.
Tutt, 12th Dist. Preble No. CA2020-02-002, 2021-Ohio-96, ¶ 15.
{¶ 15} Applying the test set forth in Dangler to the situation before us, we find that
although the trial court failed to fully comply with Crim.R. 11(C)(2)(a) because it incorrectly
advised appellant of the duration and nature of the postrelease control to which he would
be subject, the trial court's failure is not the type of failure that excuses appellant from
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demonstrating prejudice. As we have previously recognized, "a complete failure to comply
with Crim.R. 11(C)(2)(a) involves a trial court's complete omission in advising about a
distinct component of the maximum penalty." State v. Fabian, 12th Dist. Warren No.
CA2019-10-119, 2020-Ohio-3926, ¶ 20 (finding that a trial court's total failure to advise a
defendant of postrelease control before it accepted the guilty plea constituted a complete
failure to comply with Crim.R. 11[C][2][a]). See also State v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509 (same). "By contrast, a trial court's mention of a component of the maximum
penalty during a plea colloquy, albeit incomplete or perhaps inaccurate, does not constitute
a complete failure to comply with Crim.R. 11(C)(2)(a)." Fabian at ¶ 20; Tutt at ¶ 16.
Appellant, therefore, is required to show that he was prejudiced by the trial court's
postrelease control misstatement and that he would not have entered a guilty plea if he had
been properly advised of the duration and mandatory nature of the postrelease control to
which he would be subject. See State v. Brown, 8th Dist. Cuyahoga No. 109007, 2020-
Ohio-4474.
{¶ 16} We find that appellant is unable to establish any prejudice by the trial court's
postrelease control misstatement. "Prejudice must be established 'on the face of the
record.'" Dangler, 2020-Ohio-2765 at ¶ 24, quoting Hayward v. Summa Health Sys./Akron
City Hosp., 139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 26. Appellant has not presented any
evidence nor made any argument that he would not have entered his plea had the trial court
correctly informed him of the duration and mandatory nature of postrelease control during
the plea colloquy. Moreover, there is nothing in the record to suggest that appellant would
not have entered his guilty plea had he been advised he would be subject to a mandatory
five-year period of postrelease control. By agreeing to enter the guilty plea, appellant
received the benefit of having a second felony sex charge against him dismissed. Appellant
did not raise any objection at sentencing when he was advised he would be subject to a
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mandatory five-year period of postrelease control. Without any evidence that the plea would
not have otherwise been made, appellant has not established prejudice and he is not
entitled to have his guilty plea vacated for a failure to comply with Crim.R. 11(C)(2)(a).
Brown at ¶ 35.
{¶ 17} Appellant's two assignments of error are overruled.
{¶ 18} Judgment affirmed.
PIPER, P.J. and HENDRICKSON, J., concur.
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