[Cite as State v. Robinson,
2021-Ohio-97.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-20-16
v.
RAYNELL ROBINSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 19 04 0120
Judgment Affirmed
Date of Decision: January 19, 2021
APPEARANCES:
William T. Cramer for Appellant
Alice Robinson-Bond for Appellee
Case No. 8-20-16
SHAW, J.
{¶1} Defendant-appellant, Raynell Robinson (“Robinson”), brings this
appeal from the April 14, 2020 judgment of the Logan County Common Pleas Court
sentencing him to five years of community control after Robinson was convicted of
Attempted Felonious Assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1),
a felony of the third degree. On appeal, Robinson argues that his Alford plea was
not knowing, intelligent, and voluntary because the trial court did not inform him
during the plea colloquy that potential violations of post-release control could result
in him serving nine-month prison terms up to a cumulative maximum of one-half of
his original stated prison term.1
Background
{¶2} On April 9, 2019, Robinson was indicted for Felonious Assault in
violation of R.C. 2903.11(A)(1), a felony of the second degree, Domestic Violence
in violation of R.C. 2919.25(A), a misdemeanor of the first degree, Disrupting
Public Services in violation of R.C. 2909.04(A)(3), a felony of the fourth degree,
and Abduction in violation of R.C. 2905.02(A)(1), a felony of the third degree.
Robinson originally pled not guilty to the charges.
1
An Alford plea refers to North Carolina v. Alford, 400 U.S. 25,
91 S.Ct. 160 (1970), wherein the Supreme
Court of the United States held, “An accused may voluntarily, knowingly, and understandingly consent to
the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even
if his guilty plea contains a protestation of innocence, when, as here, he intelligently concludes that his
interests require a guilty plea and the record strongly evidences guilt.” Alford at syllabus.
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{¶3} On February 11, 2020, a change-of-plea hearing was held wherein
Robinson agreed to enter an “Alford” plea to the reduced, amended charge of
Attempted Felonious Assault in violation of R.C. 2923.02 and R.C. 2903.11(A)(1),
a felony of the third degree, and to Domestic Violence in violation of R.C.
2919.25(A), a misdemeanor of the first degree. In exchange the State agreed to
dismiss the remaining charges. Further, the parties agreed to a joint sentencing
recommendation of community control. The agreement was reduced to writing and
signed by Robinson and his attorney. The trial court conducted a Crim.R. 11
dialogue with Robinson and determined that his plea was knowing, intelligent, and
voluntary. Robinson’s Alford plea was accepted, and he was found guilty of the
amended charge of Attempted Felonious Assault and of Domestic Violence.
{¶4} On April 14, 2020, the case proceeded to sentencing. The Attempted
Felonious Assault charge and Domestic Violence charge were merged. Robinson
was then sentenced to five years of community control on the Attempted Felonious
Assault conviction, per the joint sentencing recommendation. A judgment entry
memorializing that sentence was filed the same day. It is from this judgment that
Robinson appeals, asserting the following assignment of error for our review.
Assignment of Error
Appellant’s Due Process rights were violated by an Alford plea
that was not entered knowingly, intelligently, or voluntarily due
to the trial court’s failure to fully advise on the consequences of
violating post-release control.
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Case No. 8-20-16
{¶5} In his assignment of error, Robinson argues that his Alford plea was not
entered knowingly, intelligently, and voluntarily because the trial court did not
advise him that potential violations of post-release control could lead to prison terms
of up to nine months. Robinson argues that this omission during the Crim.R. 11
plea colloquy was fatal, and that he would not have entered into his plea if he was
properly notified.
Relevant Authority
{¶6} The Supreme Court of Ohio has recently addressed “Compliance with
Crim.R. 11” in State v. Dangler, --- Ohio St.3d ---, 2020-Ohio-2765. In Dangler,
the Supreme Court of Ohio held, “Because a no-contest or guilty plea involves a
waiver of constitutional rights, a defendant’s decision to enter a plea must be
knowing, intelligent, and voluntary.” Dangler at ¶ 10, citing Parke v. Raley,
506
U.S. 20, 28-29,
113 S.Ct. 517 (1992); State v. Clark,
119 Ohio St.3d 239, 2008-
Ohio-3748, ¶ 25; see State v. Engle,
74 Ohio St.3d 525, 527 (1996). “If the plea
was not made knowingly, intelligently, and voluntarily, enforcement of that plea is
unconstitutional.”
Dangler at ¶ 10.
{¶7} Criminal Rule 11(C)(2) outlines the procedures for trial courts to follow
when accepting pleas in felony cases. It reads as follows.
(2) In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and
doing all of the following:
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Case No. 8-20-16
(a) Determining 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.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving 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.
{¶8} Criminal Rule 11 “ ‘ensures an adequate record on review by requiring
the trial court to personally inform the defendant of his rights and the consequences
of his plea and determine if the plea is understandingly and voluntarily made.’ ”
Dangler at ¶ 11, quoting State v. Stone,
43 Ohio St.2d 163, 168 (1975). The
Supreme Court of Ohio has recently reaffirmed that “our focus in reviewing pleas
has not been on whether the trial judge has ‘[incanted] the precise verbiage’ of the
rule, State v. Stewart,
51 Ohio St.2d 86, 92,
364 N.E.2d 1163 (1977), but on whether
the dialogue between the court and the defendant demonstrates that the defendant
understood the consequences of his plea[.]” Dangler at ¶ 12 citing State v. Veney,
120 Ohio St.3d 176,
2008-Ohio-5200, ¶¶ 15-16.
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Case No. 8-20-16
{¶9} “When a criminal defendant seeks to have his conviction reversed on
appeal, the traditional rule is that he must establish that an error occurred in the trial-
court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13 citing
State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, ¶¶ 14-15; Crim.R. 52.
Generally, to demonstrate prejudice, a defendant would have to establish that “that
his plea would not have otherwise been made.”
Dangler at ¶ 24.
{¶10} There are limited exceptions to the prejudice requirement in the
criminal-plea context. “When a trial court fails to explain the constitutional rights
that a defendant waives by pleading guilty or no contest, we presume that the plea
was entered involuntarily and unknowingly, and no showing of prejudice is
required.” Dangler at ¶ 14 citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-
3748, at ¶ 31; State v. Veney,
120 Ohio St.3d 176,
2008-Ohio-5200, at syllabus. The
“constitutional” rights are set forth in Crim.R. 11(C)(2)(c) above. See
Dangler at ¶
14. When a trial court fails to fully cover “nonconstitutional” rights in Crim.R. 11,
“a defendant must affirmatively show prejudice to invalidate a plea.”
Dangler at ¶
14, citing
Clark at ¶ 17.
{¶11} The Supreme Court of Ohio recognized one other exception to the
prejudice requirement: “a trial court’s complete failure to comply with a portion
of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis
sic.) Dangler at ¶ 15, citing State v. Sarkozy,
117 Ohio St.3d 86,
2008-Ohio-509,
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Case No. 8-20-16
¶ 22. In Sarkozy the Supreme Court of Ohio found that failure to mention at all that
the defendant was subject to a mandatory five years of post-release control during
the plea colloquy violated a trial court’s duty to explain the nonconstitutional
maximum penalty requirement under Crim.R. 11(C)(2)(a).
{¶12} “Aside from these two exceptions, the traditional rule continues to
apply: 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).” Dangler at ¶ 16, citing State v. Nero,
56 Ohio St.3d 106, 108
(1990). “The test for prejudice is ‘whether the plea would have otherwise been
made.’ ”
Dangler at ¶ 16, citing Nero.
Analysis
{¶13} In this case, Robinson argues that the trial court failed to comply with
Crim.R. 11(C)(2)(a) in this matter by not informing him that if Robinson violated
post-release control he could be sent to prison for up to nine months for each
violation of post-release control. However, Robinson acknowledges that the trial
court provided some advisements regarding post-release control. Similarly
Robinson does not seem to contest that the trial court complied with the
“constitutional” requirements in Crim.R. 11(C)(2)(c) during the plea colloquy.
Nevertheless, Robinson argues that the trial court’s partial failure to advise him
regarding post-release control was prejudicial in this matter. He contends that
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Case No. 8-20-16
because he made an Alford plea, maintaining his factual innocence, any factor that
threatened to shorten his time in the community would have impacted his decision
to enter his plea.
{¶14} As Robinson acknowledges, the record reflects that the trial court did
inform him at the plea hearing that if Robinson was sentenced to prison, after his
release he would be subject to a mandatory term of three years of post-release
control. The trial court explained “It’s like probation except after prison.” (Feb.
11, 2020, Tr. at 19). The trial court also explained that if Robinson violated his
post-release control, the APA could return him to prison “without coming back to
this court for up to half of your stated prison sentence in this case.” (Id. at 20). The
trial court further explained that if Robinson committed a felony while on post-
release control “the sentencing judge in your new felony case must return you to
prison in this case – again, without coming back to this court – for one year or
whatever time you have remaining on your post-release control, whichever is
longer.” (Id.) Finally, Robinson was notified that if he was returned to prison it
would be served consecutively to any penalty from a new felony. Robinson
indicated that he understood all of these issues.
{¶15} Robinson argues on appeal that although the trial court mentioned
various post-release control issues in the Crim.R. 11 colloquy, the trial court did not
mention a specific portion of R.C. 2967.28(F)(3), which reads as follows.
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Case No. 8-20-16
Unless a releasee’s stated prison term was reduced pursuant to
section 5120.032 of the Revised Code, the period of a prison term
that is imposed as a post-release control sanction under this division
shall not exceed nine months, and the maximum cumulative prison
term for all violations under this division shall not exceed one-half
of the definite prison term that was the stated prison term
originally imposed upon the offender as part of this sentence[.]
Robinson maintains that the trial court did not specifically state that prison terms
imposed under a post-release control sanction should not exceed nine months, even
though the trial court did clearly state that any cumulative term could not exceed
one-half of his prison term.
{¶16} As a trial court is not required to use specific talismanic words, we do
not find the trial court’s statements during the plea colloquy to constitute a complete
failure to comply with Crim.R. 11(C)(2)(a)’s maximum penalty requirement.
Robinson was notified of the maximum amount of time he could receive in prison
for a violation, or for violations, of post-release control—that being up to one-half
of his stated prison term. Thus this case is wholly unlike State v. Sarkozy, 117 Ohio
St.3d 86,
2008-Ohio-509, wherein the trial court did not mention a mandatory period
of post-release control at all. Moreover, we have already found challenges similar
to Robinson’s to be unavailing. See State v. Billenstein, 3d Dist. Mercer No. 10-13-
10,
2014-Ohio-255; see also State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-
4819.
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{¶17} Even if we did find that the trial court’s colloquy was not in
compliance with Crim.R. 11(C)(2)(a)’s nonconstitutional maximum penalty
provision, Robinson is unable to demonstrate prejudice. Robinson signed a written
plea agreement that contained the “nine months” post-release control provision, and
all of the other relevant post-release control information. During the plea colloquy
he acknowledged having read the written plea agreement, that he discussed it with
his attorney, and that he understood it. Thus Robinson cannot say he was not
apprised of the requisite post-release control provision he now complains was
omitted in his colloquy.2 State v. Billenstein, 3d Dist. No. 10-13-10, 2014-Ohio-
255, ¶ 55; see also State v. Brown, 8th Dist. Cuyahoga No. 109007, 2020-Ohio-
4474. Robinson is unable to demonstrate any prejudice based on the record before
us. For all of these reasons, Robinson’s assignment of error is overruled.
Conclusion
{¶18} For the foregoing reasons Robinson’s assignment of error is overruled
and the judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
2
Although not directly relevant to a determination of whether Robinson would have otherwise entered his
plea, Robinson received a substantial benefit from his plea agreement and the trial court even followed the
joint sentencing recommendation of community control. Notably, if Robinson’s plea was vacated he would
be back in the position he was in before the plea, facing multiple felony charges, including a second degree
felony.
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