State v. Camp , 2018 Ohio 2964 ( 2018 )

[Cite as State v. Camp, 2018-Ohio-2964.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2017-CA-73
:
v. : Trial Court No. 2017-CR-155
:
DUSTIN CAMP : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 27th day of July, 2018.
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ELIZABETH McCORMICK, Atty. Reg. No. 0087862, 50 E. Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
ADAM STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109, Dayton, Ohio
45429
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the August 21, 2017 Notice of Appeal of
Dustin Camp. Camp appeals from his July 28, 2017 Judgment Entry of Conviction,
following guilty pleas to one count of rape, in violation of R.C. 2907.02(A)(1)(b), a felony
of the first degree, as set forth in count one of the indictment, and one count of gross
sexual imposition (“GSI”), in violation of R.C. 2907.05(B), a felony of the third degree, as
set forth in count six of the indictment. In exchange for his guilty pleas, the specification
to count one, (that the child victim was less than 10 years old), count two, pandering
obscenity involving a minor, a felony of the second degree, and counts three, four, and
five, pandering sexually oriented matter involving a minor, felonies of the second degree,
were dismissed. Camp was sentenced to life in prison with parole eligibility after 10
years for rape, and five years in prison for GSI. The court ordered the sentences to be
served consecutively for a total sentence of life in prison with parole eligibility after 15
years. We hereby affirm the judgment of the trial court.
{¶ 2} Camp was indicted on March 13, 2017, and he pled not guilty on March 21,
2017. On April 25, 2017, Camp filed “Defendant’s Plea of Not Guilty, Not Guilty by
Reason of Insanity, Defendant may not be Competent to Stand Trial, Request for
Evaluation and Request for Hearing.” On May 9, 2017, the court ordered that Camp be
evaluated as to his sanity at the time of his offenses and his competency to stand trial.
On June 26, 2017, the court issued an Entry stating that the parties stipulated to the June
15, 2017 report of Thomas O. Martin, Ph.D. The court accepted the report, which
concluded that Camp was not mentally ill or intellectually disabled, and the court
determined that Camp was competent to stand trial.
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{¶ 3} On July 6, 2017, Camp withdrew his pleas of not guilty and entered pleas
of guilty as set forth above. At the plea hearing, the court did not orally advise Camp
regarding post-release control. The following exchange, however, occurred:
THE COURT: Is this your signature on this written plea
document?
THE DEFENDANT: Yes.
THE COURT: Did you have an opportunity to review it with
your lawyer?
THE DEFENDANT: Yes.
THE COURT: Do you understand everything in it?
THE DEFENDANT: Yes.
***
THE COURT: Are you entering this guilty plea voluntarily?
THE DEFENDANT: Yes.
THE COURT: The rape offense is a felony of the first degree.
The sentence to that offense would be a sentence of life in
prison with parole eligibility after ten years.
Is that a mandatory sentence?
MR. PICEK: I believe, that’s correct, Your Honor. That’s
the only sentence authorized for that offense as the plea
agreement.
THE COURT: There would be a maximum fine in the amount
of $20,000. Do you understand that that’s the sentence for
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that offense?
THE DEFENDANT: Yes.
THE COURT: The gross sexual imposition offense is a third
degree felony. The sentencing range for that offense would
be anywhere from community control, also known as
probation, up to and including the maximum penalty of five (5)
years in the Ohio State Penitentiary and a $10,000 fine.
Do you understand that that’s the sentencing range for that
offense?
THE DEFENDANT: Yes, and I also understand that that’s
not a mandatory prison term as well.
THE COURT: That’s correct. * * *
{¶ 4} Camp’s plea form, under a section entitled “Post Release Control,” indicates
as follows: “Post-Release Control. In addition, a period of supervision by the Adult
Parole Authority after my release from prison is as follows:” and there are three
possibilities listed below, namely mandatory five years, mandatory three years, and
optional three years. An “X” is reflected beside the following option: “(Mandatory Five
Years) If I am sentenced to prison for a first-degree felony or a felony sex offense, after
my prison release, I will have five (5) years of mandatory post-release control under
conditions determined by the Parole Board.” (Emphasis added.) The plea form further
provides:
A violation of a post-release control rule or conditions can result in a
more restrictive sanction while I am under post-release control supervision.
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These sanctions include increased duration of supervision or control to a
maximum term of eight (8) years, and imprisonment even though I have
served the entire stated prison term imposed upon me by this Court for all
offenses. If I violate conditions while under post-release control
supervision, the Parole Board could return me to prison for up to nine (9)
months for each violation, or a total of ½ of my originally stated prison term.
If the violation is a new felony, I could receive a prison term of the greater
of twelve (12) months or the time remaining on post-release control, in
addition to any other prison term imposed for the new felony offense.
Finally, the plea form provides: “* * * I am satisfied with my attorney’s advice and
competence.”
{¶ 5} At the conclusion of the hearing, the court found that “the defendant has
knowingly, voluntarily, intelligently waived his rights and entered a plea of guilty to these
offenses.”
{¶ 6} Camp’s judgment entry of conviction provides: “The Court notified the
defendant that post-release control (PRC) is mandatory in this case for five years. The
Defendant is Ordered to serve as part of this sentence five years of PRC.”
{¶ 7} Camp asserts one assignment of error herein as follows:
THE TRIAL COURT FAILED TO ADEQUATELY NOTIFY MR.
CAMP OF THE MANDATORY POST RELEASE CONTROL FOR A
CONVICTION OF GROSS SEXUAL IMPOSITION.
{¶ 8} We initially note that Camp’s argument appears in part to be limited to his
guilty plea to GSI, while the State’s response is directed to both his guilty pleas to GSI
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and rape. We will consider Camp’s assigned error to be directed to both of his pleas.
{¶ 9} Camp asserts that his “plea was rendered invalid when the Trial Court failed
to read aloud to Mr. Camp that he would be subject to post-release control as required
by Crim.R. 11(C)(2). Consequently, the Appellant was unable to fully understand the
implications of his Pleas and the Rights he was waiving.” Camp asserts that “he was not
fully informed as to entering into the plea bargain arrangement [sic] and thereby affected
his decision making on the matter.” Camp “respectfully requests that his plea be vacated
and his charges be dismissed.” The State responds that “this Court should find the trial
court followed established precedent and substantially complied with the notification
requirements of Crim.R. 11(C)(2)(a).” The State argues that the matter herein is
analogous to State v. Williams, 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231.
{¶ 10} In State v. Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6-7,
this Court noted as follows:
The Ohio Supreme Court has observed that “[a] criminal defendant’s
choice to enter a plea of guilty or no contest is a serious decision.” State
v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The
Court explained:
The benefit to a defendant of agreeing to plead guilty is the
elimination of the risk of receiving a longer sentence after trial.
But, by agreeing to plead guilty, the defendant loses several
constitutional rights. The exchange of certainty for some of
the most fundamental protections in the criminal justice
system will not be permitted unless the defendant is fully
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informed of the consequences of his or her plea. Thus,
unless a plea is knowingly, intelligently, and voluntarily made,
it is invalid.
To ensure that pleas conform to these high standards,
the trial judge must engage the defendant in a colloquy before
accepting his or her plea. * * * Crim.R. 11(C), (D), and (E). It
follows that, in conducting this colloquy, the trial judge must
convey accurate information to the defendant so that the
defendant can understand the consequences of his or her
decision and enter a valid plea.
(Citations omitted.) Id. at ¶ 25-26. To that end, Crim.R. 11(C)(2)(a)
provides that, before accepting a guilty plea, a court must “[d]etermin[e] that
the defendant is making the plea voluntarily, with understanding of the
nature of the charges and of the maximum penalty involved. * * *.”
The “maximum penalty” includes any mandatory post-release control
sanction, which has been explained this way:
Postrelease control is a period of supervision that occurs after
a prisoner has served his or her prison sentence and is
released from incarceration, during which the individual is
subject to specific sanctions with which he or she must
comply. Violation of these sanctions may result in additional
punishment, such as a longer period of control, more
restrictions during the control period, or a prison term of up to
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nine months per violation, subject to a cumulative maximum
of one-half of the original stated prison term.
(Citations omitted.) Clark at ¶ 35. Thus if the defendant will be subject to
a period of post-release control, to comply with Crim.R. 11 the court must
inform the defendant of post release control. However, case law
distinguishes between constitutional and non-constitutional components of
Crim.R. 11.
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, e.g., by mentioning mandatory post-
release control without explaining it, the plea may be vacated
only if the defendant demonstrates a prejudicial effect. See
[State v.] Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474, citing
State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O. 3d 52,
364 N.E.2d 1163, and Crim.R. 52(A); see also [State v. ]
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224, ¶ 23. The test for prejudice is “whether the plea would
have otherwise been made.” Nero at 108, 564 N.E.2d 474,
citing Stewart, id. If the trial judge completely failed to comply
with the rule, e.g., by not informing the defendant of a
mandatory period of postrelease control, the plea must be
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vacated. See Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509,
881 N.E.2d 1224, paragraph two of the syllabus.
Id. at ¶ 32.
{¶ 11} In Jones, 2d Dist. Montgomery No. 24772, 2019-Ohio-119, Jones argued
that the trial court “failed to comply with R.C. 2943.032 by not informing Jones that if he
violates a condition of his mandatorily imposed post-release control sanction, he could be
sent back to prison for up to 9 months for each singular violation,” and that his plea was
accordingly “not knowingly and intelligently made and should be vacated.” Id. at ¶ 4.
This Court determined as follows:
Arguably, the trial court literally complied with Crim. R. 11 because it
advised the defendant of the “maximum penalty,” which included a prison
term, and advised him of imposition of the correct term of mandatory post-
release control, and advised him of the maximum possible sanction. One
could question whether Crim.R. 11 requires the court to tell the defendant
anything about the length of a [ ] post-release control sanction prison term
because that term is a consequence of a violation of the sanction, imposed
by the parole board and not a sentence imposed by the court for committing
the original offense. Moreover, the nine month sanction for each singular
violation is in R.C. 2943.032, not Crim.R. 11. Nevertheless, other appellate
courts have reviewed issues concerning the completeness of a post release
control explanation (aside from the mandatory/discretionary and 3/5
reversible errors) under a substantial compliance analysis. In State v.
Allen, 10th Dist. Franklin No. 11AP-640, 2012-Ohio-2986, ¶ 23, the court
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found substantial compliance “[b]ased upon the trial court’s explanation of
appellant’s maximum penalties, including the terms of mandatory post-
release control, combined with the information contained in the guilty plea
forms and the trial court’s inquiries regarding whether appellant discussed
the guilty plea forms with his attorney, understood the guilty plea forms, and
signed the guilty plea forms.” In State v. McDuffie, 8th Dist. Cuyahoga No.
96721, 2011-Ohio-6436, ¶ 24, the court found substantial compliance
where “the trial court advised appellant, ‘[s]hould you misbehave while
under their supervision, you can receive additional prison time under this
case number.’ ” In State v. Reese, 9th Dist. Wayne No. 09CA0020, 2009-
Ohio-6507, ¶ 9, the court concluded that, under the totality of the
circumstances, the defendant subjectively understood the consequences of
his plea even though the trial court failed to inform him about “the specific
terms of re-incarceration he might face for post-release control violations.”
And in State v. Munyan, 5th Dist. Licking No. 08-CA-88, 2009-Ohio-2348,
the appellate court concluded that the trial court substantially complied with
Crim.R. 11 despite not informing the defendant about the length of re-
incarceration he might face for violations of his post-release control under
former R.C. 2943.032(E). Consistent with the holding in these cases, we
determine that the trial court complied with Crim.R. 11 even though the
defendant was not expressly advised of the R.C. 2943.032 nine month
limitation, and therefore, Crim.R. 11 does not provide any basis for the
defendant to vacate his plea.
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Id. at ¶ 8.
{¶ 12} In Williams, 10th Dist. Franklin No. 10-AP-1135, 2011-Ohio-6231, to which
the State directs our attention, in the course of the plea hearing, “the trial judge did not
specifically raise the issue of post-release control.” Id. at ¶ 37. But the plea form did
address the issue with specificity, and the following exchange during the course of the
plea hearing in Williams:
THE COURT: Okay. Mr. Williams, have you had the opportunity
to go through this plea form with your attorney?
[APPELLANT]: Yes.
THE COURT: Has he explained all the rights you’re waiving and
the possible consequences of entering the plea?
[APPELLANT]: Yes.
Id. at ¶ 37.
{¶ 13} The Tenth District determined as follows:
Based upon the information contained in the plea form, combined
with the trial court’s inquiry regarding whether appellant had discussed the
possible consequences of the plea with his attorney, we find the trial court
substantially complied with the requirement to advise appellant of the
maximum penalties, including the imposition of post-release control, and
the consequences of violating post-release control, as set forth in Crim.R.
11(C) and R.C. 2943.032. The totality of the circumstances here indicates
that appellant knew about post-release control and the sanctions for
violating post-release control. * * *
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Id. at ¶ 39.
{¶ 14} Further, the Tenth District found Williams to be distinguishable from State
v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, “in that the Sarkozy
decision does not indicate there were any references to post-release control at all during
the plea colloquy, not even a plea form that set forth the applicable post-release control
information, as is present in the instant case.” Id. at ¶ 40.
{¶ 15} Finally, regarding prejudice, the Tenth District concluded as follows:
* * * [A]ppellant has not asserted that prejudice resulted from the trial
court’s failure to engage in some verbal dialogue specifically about post-
release control. Nor does appellant assert that, had he been personally
informed by the trial court about post-release control, he would have
withdrawn/never entered into the plea and proceeded to trial. We find the
record does not demonstrate prejudice resulting from the trial court’s
acceptance of his guilty plea in this fashion and, therefore, we conclude the
trial court substantially complied with Crim.R. 11(C) and R.C. 2943.032. * * *
Id. at ¶ 41.
{¶ 16} Having reviewed the above authorities, we conclude that the trial court did
not fail to comply, rather substantially complied, with Crim.R. 11(C)(2)(a) by inquiring of
Camp if he signed the plea form, reviewed it with counsel, and understood its contents.
The plea form accurately indicated that Camp was subject to post-release control for a
mandatory period of five years; R.C. 2967.28(A)(3) provides that “ ‘[f]elony sex offense’
means a violation of a section contained in Chapter 2907. of the Revised Code that is a
felony,” such as GSI, and R.C. 2967.28(B) provides that “[e]ach sentence to a prison term
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for a felony of the first degree, * * * [or] for a felony sex offense, * * * shall include a
requirement that the offender be subject to a period of post-release control imposed by
the parole board after the offender’s release from imprisonment.” We note that R.C.
2967.28(F)(4)(c) provides that multiple periods “of post-release control shall be served
concurrently * * *,” and Camp was subject to a mandatory five-year period of post-release
control. Camp’s plea form further accurately advised him that a violation of post-release
control could result in a more restrictive sanction, including increased duration of
supervision to a maximum term of eight years, pursuant to R.C. 2967.28(D)(3). Camp’s
plea form also accurately advised him that a violation of post-release control could result
in imprisonment for up to nine months per violation, pursuant to R.C. 2943.032, which
complements R.C. 2967.28 (F)(3), or a total of one half of his original term. Finally,
tracking the language of R.C. 2929.141(A)(1), Camp’s plea form advised him that if he
commits a felony while on post-release control, he could receive a prison term of the
greater of 12 months or the time remaining on post-release control. In response to the
trial court’s inquiry, Camp expressly advised the court that he understood the foregoing
contents of his plea form at his plea hearing, and we conclude that the totality of the
circumstances indicates that Camp knew about post-release control and the possible
sanctions for violating post-release control.
{¶ 17} Significantly, Camp does not argue that he would not have entered his guilty
pleas if he had been orally advised regarding post-release control or of the consequences
of violating post-release control, and we conclude that he fails to demonstrate a prejudicial
effect. In other words, Crim.R. 11 does not provide a basis for vacating Camp’s guilty
pleas. Since substantial compliance by the trial court is demonstrated, Camp’s sole
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assignment of error is overruled. The judgment of the trial court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies mailed to:
Elizabeth McCormick
Adam Stout
Hon. Douglas M. Rastatter