[Cite as State v. Nix,
2019-Ohio-3886.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 106894
v. :
BOBBY NIX, II, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 26, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623461-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer M. Meyer, Assistant Prosecuting
Attorney, for appellee.
The Law Office of R. Tadd Pinkston L.L.C., and R. Tadd
Pinkston, for appellant.
EILEEN A. GALLAGHER, J.:
In this reopened appeal, defendant-appellant Bobby Nix II,
challenges the knowing, intelligent and voluntary nature of his guilty plea because
he claims the trial court failed to inform him that any sentence imposed for a
violation of postrelease control was required to be served consecutive to any other
sentence. We sustain his assigned error, reverse his conviction, vacate his guilty
plea, and remand.
Nix pled guilty to a single fifth-degree felony count of drug possession
and was sentenced to 11 months in prison. In exchange, the state dismissed one
fourth-degree felony count of drug trafficking and one fifth-degree felony count of
possession of criminal tools. Nix was on postrelease control in a separate case at the
time, and the trial court terminated Nix’s postrelease control and imposed the
remainder of the term and ordered it to be served consecutive to the 11-month
sentence pursuant to R.C. 2929.141. However, the court did not specify the length
of this sentence. Nix appealed his conviction in the first case to this court, assigning
one error for review. State v. Nix, 8th Dist. Cuyahoga No. 106894, 2018-Ohio-4702
(“Nix I”). This court overruled the assigned error and affirmed. Id. at ¶ 9-10.
On February 14, 2019, Nix filed an application to reopen his appeal
pursuant to App.R. 26(B) in which he claimed that appellate counsel was ineffective
for not arguing that Nix did not enter his plea knowingly, intelligently and
voluntarily when the trial court failed to explain the maximum penalty. He also
argued that appellate counsel was ineffective for not arguing that the trial court
failed to properly terminate postrelease control before imposing a prison sentence.
On May 1, 2019, we granted the application in part and reopened the appeal in order
to allow Nix argue the following assignment of error:
The appellant had not knowingly, voluntarily, and intelligently [pled]
guilty to the possession charge because the trial court had not informed
him of all the maximum penalties involved including R.C. 2929.141
time that must be consecutive to the prison time for the new offense
thus violating VI [sic] amendment to the U.S. Constitution.
State v. Nix, 8th Dist. Cuyahoga No. 106894, 2019-Ohio-1640, ¶ 4, 14, 18 (“Nix II”).
As we previously stated in the decision reopening the appeal,
[b]efore accepting a felony guilty plea, a trial court must engage the
defendant personally and explain the rights set forth in CrimR. 11(C) to
ensure that the defendant is entering a guilty plea knowingly,
intelligently, and voluntarily. State v. Clark, 119 Ohio St.3d 239, 2008-
Ohio-3748, 893 N.E.2d 462, ¶ 25-27. Crim.R. 11(C)(2)(a) requires a
sentencing court to explain, among other things, “the nature of the
charges and of the maximum penalty involved ….” The failure to do
so may render a guilty plea less than knowing, voluntary, and
intelligent, and thus subject to revocation. State v. Veney, 120 Ohio
St.3d 176,
2008-Ohio-5200,
897 N.E.2d 621.
Id. at ¶ 8.
Nix claims that his plea was not entered knowingly, intelligently and
voluntarily because the trial court failed to properly explain the maximum penalty
he faced.
There are two types of rights a trial court must explain that are
contained within Crim.R. 11(C) — constitutional and nonconstitutional. Clark at
¶ 30. Nix’s contention in this appeal centers around the nonconstitutional right of
an explanation of the maximum penalty a defendant faces by pleading guilty.
Crim.R. 11(C)(2)(a). While a court must strictly comply with the explanation of
constitutional rights, nonconstitutional rights are subject to a review for substantial
compliance. Therefore, this court must examine the plea colloquy to determine
whether the trial court substantially complied with the responsibility to explain the
maximum penalty Nix faced. Veney at ¶ 14. “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). The lead opinion in State v. Bishop,
156 Ohio St.3d
156,
2018-Ohio-5132,
124 N.E.3d 766, provides further guidance:
A trial court need only substantially comply with the nonconstitutional
advisements listed in Crim.R. 11(C)(2)(a). Veney, 120 Ohio St.3d 176,
2008-Ohio-5200,
897 N.E.2d 621, at ¶ 18. But “[w]hen 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.”
(Emphasis sic.) Clark, 119 Ohio St.3d 239,
2008-Ohio-3748,
893
N.E.2d 462, at ¶ 32. “If the trial judge partially complied, e.g., by
mentioning mandatory postrelease control without explaining it, the
plea may be vacated only if the defendant demonstrates a prejudicial
effect.” Id. But if the trial court completely failed to comply with the
rule, the plea must be vacated. Id. Complete failure “‘to comply with
the rule does not implicate an analysis of prejudice.’” Id., quoting State
v. Sarkozy, 117 Ohio St.3d 86,
2008-Ohio-509,
881 N.E.2d 1224, ¶ 22.
Id. at ¶ 19.
When discussing the potential penalties Nix faced as a result of his
potential guilty plea, the following exchange took place during the plea colloquy:
THE COURT: Mr. Nix, you may face additional penalties in those other
cases [for which you are on community control sanctions, probation, or
parole,] including prison time which may run consecutive on any
prison time you may receive in this case, do you understand?
DEFENDANT NIX: Yes, Your Honor.
(Tr. 16.)
The trial court mentioned the additional sanction that may be
imposed as a result of pleading guilty to a new felony while on postrelease control
and mentioned that the sanction may be imposed consecutive to any other sentence.
However, the court failed to inform Nix that this additional sanction, if imposed,
was required to be imposed consecutive to any other sentence. R.C. 2929.141(A)(1).
The trial court’s advisement about the nature of postrelease control during the plea
colloquy is also unhelpful to demonstrate a subjective understanding of this
consequence. When explaining postrelease control during the plea colloquy, the
trial court stated:
If you fail to meet the terms and conditions of any post-release control
supervision imposed upon you in your case, then the Adult Parole
Authority pursuant to Revised Code Section 2967.28 can modify
and/or extend your supervision, make it more restrictive, incarcerate
you for up to one-half the original sentence imposed by the court,
charge you with a new offense called escape, another felony where you
would face additional prison time, and if you were to commit a new
crime while you were post-release control, you can face the maximum
penalties under the law for the new crime committed[.]
(Tr. 25-26.)
Under R.C. 2929.141(A), a trial court has discretion to continue
postrelease control, impose some form of community control sanction or impose
additional prison time for a violation of postrelease control when a defendant is
convicted of a new felony while on postrelease control. Once the court decides to
impose a prison sentence, that sentence must be served consecutively to the
sentence imposed for a new felony conviction. R.C. 2929.141(A)(1). An appropriate
advisement of the maximum penalty includes the required consecutive nature of this
sentence because
[w]hen consecutive sentences are mandatory, the consecutive
sentences directly affects the length of the sentence, thus becoming a
crucial component of what constitutes the “maximum” sentence, and
the failure to advise a defendant that a sentence must be served
consecutively does not amount to substantial compliance with Crim.R.
11(C)(2).
State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 7, citing State
v. Ricks,
53 Ohio App.2d 244, 246-247,
372 N.E.2d 1369 (9th Dist.1977).
In Norman, this court found that a trial court failed to comply with
an explanation of the maximum penalty under Crim.R. 11(C)(2) where it failed to
inform a defendant that any prison sentence imposed for a charge of failure to
comply, pursuant to R.C. 2921.331(D), was required to be served consecutive to any
other sentence. We held that “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.” Id. at ¶ 12. The trial
court failed to advise the defendant at all of the consecutive nature of this sentence.
Id. at ¶ 13. Similar to the present case, a trial court is not required to impose a prison
sentence for a charge of failure to comply, but once it does, that sentence must be
consecutive to any other sentence. R.C. 2921.331(D). The failure to inform Norman
of the required consecutive nature of this sentence resulted in the vacation of
Norman’s plea.
More recently, this court examined what constitutes substantial
compliance when informing defendants of the maximum penalties where they face
a mandatory prison sentence. State v. Tutt, 2015-Ohio-5145,
54 N.E.3d 619 (8th
Dist.). There, we held that:
where a defendant faces a mandatory prison sentence as a result of a
guilty or no contest plea, the trial court must determine, prior to
accepting a 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.
Id. at ¶ 19. We found a lack of substantial compliance and went on to analyze
whether the trial court partially complied or failed to comply with this aspect of the
maximum penalty requirement of Crim.R. 11(C)(2). In Tutt, the trial court failed to
state that Tutt faced a mandatory prison sentence for two counts in the case. Id. at
¶ 31. We found that the trial court completely failed to comply and vacated the guilty
pleas affected by the failure. Id. at ¶ 31, 34.
These cases do not deal with the mandatory, consecutive nature of a
sentence under R.C. 2929.141(A), but two cases from the Second District with
similar facts do. In State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-
5067, a plea agreement form that explained the maximum penalty a defendant faced
included the advisement that “‘I understand that if I am now … under post-release
control from prison, this plea may result in revocation proceedings and any new
sentence could be imposed consecutively.’” Id. at ¶ 18. Branham raised the issue in
the context of an invalid consecutive sentence. In State v. Landgraf, 2d Dist. Clark
No. 2014 CA 12, 2014-Ohio-5448, a similar form with the same language was used
to explain the potential penalty that could be imposed under R.C. 2929.141.
In both cases, the Second District vacated the guilty pleas because the
plea agreement form and the trial court failed to inform the defendants of the
mandatory nature of consecutive sentences that could be imposed for a violation of
postrelease control. The Second District found that an advisement that a sentence
for a violation of postrelease control could result in consecutive sentences was
insufficient. Branham at ¶ 13-14; Landgraf at ¶ 24.1
These cases are similar in that the forms used in Branham and
Landgraf, and the advisement given to Nix used discretionary language to describe
the nature of the consecutive sentence that must be imposed after a trial court
decides to impose a prison sentence under R.C. 2929.141(A)(1). Therefore,
Branham and Landgraf are persuasive to the outcome of this case.
Nix does not rely upon these cases, but instead cites to the recent
decision in Bishop, 156 Ohio St.3d 156,
2018-Ohio-5132,
124 N.E.3d 766.
Bishop resolved an interdistrict split: whether an advisement about
the court’s ability to impose sentence under R.C. 2929.141(A)(1) was necessary when
a defendant on postrelease control pleads guilty or no contest to new felony charges.
A plurality of justices, joined by one justice concurring in judgment only, found that
an advisement is necessary. Three justices held that Crim.R. 11(C)(2)(a) “requires a
trial court to advise a criminal defendant on postrelease control for a prior felony,
during his plea hearing in a new felony case, of the trial court’s authority under R.C.
2929.141 to terminate the defendant’s existing postrelease control and to impose a
consecutive prison sentence for the postrelease-control violation.” Id. at ¶ 21. The
lead opinion also found that because the possibility of a consecutive prison sentence
1 In Landgraf, two judges concurred in judgment only based on stare decisis.
under R.C. 2929.141(A)(1) was not mentioned, the defendant did not need to show
prejudice. Id. at ¶ 18, citing State v. Nero, 56 Ohio St.3d 106, 108,
564 N.E.2d 474
(1990), citing State v. Stewart,
51 Ohio St.2d 86, 93,
364 N.E.2d 1163 (1977).
The state argues that the trial court substantially complied with
Crim.R. 11 and cites to pre-Bishop cases holding that a trial court does not have to
advise a criminal defendant of the consequences of violating postrelease control
when pleading guilty to a new felony. State v. Turner, 8th Dist. Cuyahoga No.
101578, 2015-Ohio-1148, ¶ 7 (collecting cases). Bishop overruled these cases. Such
an advisement is required. After a review of the record and based on the totality of
the circumstances, we find that the trial court did not substantially comply with
Crim.R. 11(C)(2). Therefore, we must go on to determine whether the trial court
partially complied or completely failed to comply.
In line with Branham, Landgraf, Tutt, and Norman, the failure of the
trial court to explicitly advise Nix of the mandatory nature of the consecutive
sentence that could be imposed under R.C. 2929.141(A)(1) is misleading enough to
constitute a failure to comply with the trial court’s obligation to explain the
maximum penalty. This is especially true given the low-level felony offenses with
which Nix was charged. The consequences that a potentially lengthy consecutive
sentence would have on the maximum penalty Nix faced is substantial and nothing
in the record from the change-of-plea hearing indicates Nix subjectively understood
that. The trial court failed to advise Nix of the mandatory nature of the consecutive
sentence that could be imposed under R.C. 2929.141(A)(1). As a result, we find that
Nix did not enter his plea knowingly, intelligently and voluntarily.
Nix’s assignment of error is sustained; his conviction is reversed, his
guilty plea is vacated and the case is remanded for further proceedings consistent
with this opinion.
It is ordered that appellant recover from appellee the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
ANITA LASTER MAYS, P.J., and
LARRY A. JONES, SR., J., CONCUR
