State v. Thompson

[Cite as State v. Thompson, 2019-Ohio-4371.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27962
:
v. : Trial Court Case No. 2017-CR-3478/1
:
KHADIJAH THOMPSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 25th day of October, 2019.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

THOMAS W. KIDD JR., Atty. Reg. No. 0066359, 8913 Cincinnati-Dayton Road, West
Chester, Ohio 45069
Attorney for Defendant-Appellant

.............

DONOVAN, J.
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{¶ 1} Khadijah Thompson appeals from the trial court’s March 26, 2018 judgment

entry of conviction, following her guilty pleas to felonious assault (serious harm), in

violation of R.C. 2903.11(A)(1), a felony of the second degree (Count I), and felonious

assault (deadly weapon), in violation of R.C. 2903.11(A)(2), also a felony of the second

degree (Count II). The court merged Counts I and II, and the State elected to proceed

to sentencing on Count II. The court imposed a prison term of five years. Because the

trial court did not properly impose post-release control as part of Thompson’s sentence,

the matter is hereby reversed in part and remanded for resentencing limited to the proper

imposition of post-release control. In all other respects, the judgment of the trial court is

affirmed.

{¶ 2} Thompson was indicted on November 9, 2017, and she entered her guilty

pleas on January 16, 2018. The court indicated on the record that in exchange for her

pleas, the State would not pursue the potential charge of attempted murder. The court

indicated that no agreement was reached regarding sentencing.

{¶ 3} After the State read the charges into the record, Thompson indicated her

understanding thereof. The court advised her that “both of these charges are felonies of

the second degree and, generally speaking, Ms. Thompson, a felony of the second

degree could carry a fine of up to $15,000 plus court costs, restitution and a potential

prison term of anywhere from two to eight years.” Thompson indicated her

understanding. The court advised Thompson that Count II required a mandatory driver’s

license suspension, that she was eligible for community control sanctions for each

offense for up to five years, and that one of the sanctions could be local jail time of up to

180 days. Thompson indicated that no one had promised her community control
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sanctions. The court advised Thompson that if she were to violate community control,

she could face two to eight years in prison.

{¶ 4} The court indicated to Thompson that, because Counts I and II were felonies

of the second degree, there was “a presumption in the law that the punishment should be

a prison sentence”; in order to overcome that presumption, the court would have to find

that community control “would adequately punish the defendant and protect the public

from future crime,” and that “community control would not demean the seriousness of the

crime that was committed.” Thompson indicated her understanding regarding the

presumption of a prison term.

{¶ 5} The court further advised Thompson that a guilty plea was a complete

admission of guilt, that her offenses would merge for sentencing, and that the State had

elected to proceed on Count II. Thompson indicated that she understood.

{¶ 6} The court thoroughly advised Thompson that “you’re giving up rights that you

have under the Constitution,” namely a right to a trial by jury, and to “require the

prosecutor to convince all 12 members of that jury * * * beyond a reasonable doubt, that

you are guilty.” The court advised Thompson that she would have the right to confront

witnesses at trial by means of cross-examination, and that she would have the right to

have the court subpoena witnesses in support of her defense. Finally, the court advised

Thompson that she had a Fifth Amendment right to “be silent in the trial itself.”

Thompson indicated that she understood the constitutional rights she would give up by

pleading guilty.

{¶ 7} The following exchange occurred:

THE COURT: * * * Now, I’m going to hand this plea form back to you
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just to make sure you know what’s on this plea form before you sign it.

(Pause)

THE COURT: So the record will reflect that Ms. Thompson has

signed the plea form. Did you actually review this plea form?

DEFENDANT THOMPSON: Yes.

THE COURT: Do you have any questions about what’s on this plea

form?

DEFENDANT THOMPSON: No, Your Honor.

THE COURT: So now, Ms. Thompson, the Court will ask you how

do you plead to Count I, felonious assault-serious harm and also to Count

II, felonious assault-deadly weapon, both being felonies of the second

degree? * * *

DEFENDANT: Guilty.

THE COURT: And are you entering your pleas of guilty voluntarily

and of your own free will?

DEFENDANT THOMPSON: Yes.

THE COURT: So the Court finds that Ms. Thompson has voluntarily

entered her pleas of guilty. She has knowingly, intelligently and voluntarily

waived her constitutional rights; she understands the nature of both

charges, the maximum penalties that she will face; she * * * understands

that she is eligible for community control sanctions but she knows that’s not

promised or guaranteed; she understands the effect of her plea of guilty and

she knows the court is going to find her guilty of both charges but because
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those offenses merge, she also knows she’ll ultimately be sentenced on the

Count II, felonious assault-deadly weapon count.

{¶ 8} Thompson’s plea form stated that she was subject to mandatory post-

release control for a period of three years and “prison term(s) up to the period of post-

release control or one-half the total term(s) originally imposed, whichever is greater, for

violations of post-release control.”

{¶ 9} The trial court ordered a presentence investigation. At sentencing, the court

indicated that it was significant that Thompson repeatedly had run over the victim herein,

a minor, with her car, causing severe injuries, including broken facial bones, a punctured

lung, and several rib fractures requiring surgery. It was also significant to the court that

Thompson did not have a prior felony record. The court indicated that it had considered

the factors set forth in R.C. 2929.11 and R.C. 2929.12 in imposing sentence and that the

presumption of a prison sentence had not been overcome. The court advised Thompson

at sentencing that she was subject to five years of post-release control. The trial court’s

judgment entry of conviction also stated that Thompson would be “supervised by the

Parole Board for a period of FIVE (5) years Post-Release Control after [her] release from

imprisonment.”

{¶ 10} Initial appointed counsel for Thompson filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As a potential assignment

of error, counsel suggested that the trial court had failed to comply with Crim.R. 11 in

accepting Thompson’s pleas.

{¶ 11} On August 24, 2018, this Court advised Thompson that counsel had filed

an Anders brief on her behalf and granted her 60 days to file a pro se brief raising any
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errors for this Court’s review. None was received.

{¶ 12} On January 10, 2019, this Court issued a Decision and Entry, which

stated:

* * * Although the plea form included a reference to three years

mandatory post release control, the trial court did not include this

information orally when advising Thompson of the consequences of her

plea. This would encompass oral advisement of all potential penalties,

including this mandatory post release supervision. Having found an

arguably meritorious issue for counsel to brief, we reject the Anders brief

and hereby appoint new counsel to raise this issue on appeal along with

any other assignment identified by counsel.

{¶ 13} With newly-appointed counsel, Thompson raises two assignments of error.

Thompson’s first assignment of error is as follows:

THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY FAILING TO ADVISE AT THE PLEA HEARING REGARDING POST

RELEASE CONTROL.

{¶ 14} As this Court has noted:

In order to be constitutionally valid and comport with due process, a

guilty plea must be entered knowingly, intelligently, and voluntarily. State

v. Bateman, 2d Dist. Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5,

citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274

(1969). “In order for a plea to be knowing, intelligent, and voluntary, the trial

court must comply with Crim.R. 11(C).” (Citation omitted.) State v. Russell,
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2d Dist. Clark No. 10-CA-54, 2011-Ohio-1738, ¶ 6. “Crim.R. 11(C) governs

the process that a trial court must use before accepting a felony plea of

guilty or no contest.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621, ¶ 8. “By following this rule, a court ensures that the plea

is knowing, intelligent, and voluntary.” State v. Cole, 2d Dist. Montgomery

No. 26122, 2015-Ohio-3793, ¶ 12, citing State v. Redavide, 2d Dist.

Montgomery No. 26070, 2015-Ohio-3056, ¶ 12.

Pursuant to Crim.R. 11(C)(2)(a), the court must determine “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.” When post-release control

applies, the trial court is required to inform the defendant of its applicability

due to this rule. State v. Threats, 2016-Ohio-8478, 78 N.E.3d 211, ¶ 21

(7th Dist.), citing State v. Sarkozy,117 Ohio St.3d 86, 2008-Ohio-509, 881

N.E.2d 1224, ¶ 7-10, 22.

Unlike the advisements required in Crim.R. 11(C)(2)(c), which

involve constitutional rights and necessitate strict compliance by the trial

court, the non-constitutional advisements in Crim.R. 11(C)(2)(a) only

require substantial compliance. Cole at ¶ 12, citing State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474 (1990). Under the substantial compliance

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
 -8-

understands the implications of his plea and the rights he is waiving,’ the

plea may be upheld.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748,

893 N.E.2d 462, ¶ 31, quoting Nero at 108.

If there is no substantial compliance with regard to a non-

constitutional right, the reviewing court is to ascertain whether there was

partial compliance or a total failure to comply with the rule. Id. at ¶ 32. If

there is partial compliance, the plea cannot be vacated unless the defendant

shows that he was prejudiced. Id. “The test for prejudice is ‘whether the plea

would have otherwise been made.’ ” Id., quoting Nero at 108. (Other citation

omitted.) “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 vacated.” Id., citing Sarkozy at paragraph two of the

syllabus. “ ‘A complete failure to comply with the rule does not implicate an

analysis of prejudice.’ ” Id., quoting Sarkozy at ¶ 22.

State v. Hastings, 2d Dist. Montgomery Nos. 27212 and 27213, 2018-Ohio-422, ¶ 14-17.

{¶ 15} As noted above, the record reflects that the trial court did not advise

Thompson regarding post-release control at the plea hearing, although her plea form

correctly stated that she was subject to a period of three years of post-release control and

set forth the consequences of violating post-release control.

{¶ 16} The State directs our attention to State v. Camp, 2d Dist. Clark No. 2017-

CA-73, 2018-Ohio-2964. Therein, as here, the trial court did not advise Camp regarding

post-release control at the plea hearing, but the plea form accurately set forth post-

release control and the consequences for violating post-release control. This Court held:
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* * * [W]e 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[.] * * * 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.

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 assignment of

error is overruled. * * *

{¶ 17} Thompson asserts that “unlike in [Camp] * * *, this is not a matter of the trial

court substantially complying due to a correct plea form,” because in Thompson’s case,

the plea form provision regarding post-release control incorrectly stated that mandatory

post-release control was for three years, “not for the eventually imposed five years.”

Thompson directs our attention to Sarkozy.

{¶ 18} In Camp, this Court noted that the Tenth District, in State v. Williams, 10th

Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 40, determined that “ ‘the Sarkozy
 -10-

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.’ ”

{¶ 19} R.C 2967.28(B)(2) provides that a sentence to a prison term for a felony of

the second degree that is not 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” for a period of three years.

{¶ 20} As in Camp, we find that substantial compliance with Crim.R. 11(C)(2)(a)

herein is demonstrated. The court returned the plea form to Thompson so that she could

be certain about “what’s on this plea form” before she signed it. There was a pause in

the proceedings, after which the court indicated that Thompson had signed the form.

Thompson, represented by counsel, advised the court that she had reviewed the plea

form, had no questions regarding the plea form, and that she entered her pleas voluntarily.

We note that she acknowledges in her brief that the plea form “provided a written

advisement of three years of mandatory post-release control.” Finally, as in Camp,

Thompson does not assert that she would not have entered her pleas if she had been

orally advised regarding post-release control or the consequences of violating post-

release control, and she fails to demonstrate a prejudicial effect. We conclude that

Crim.R. 11 does not provide a basis for vacating Thompson’s plea. Thompson’s first

assignment of error is overruled.

{¶ 21} Thompson’s second assignment of error is as follows:

THE TRIAL COURT ERRED BY IMPOSING A FIVE YEAR MANDATORY

TERM OF POST-RELEASE CONTROL.
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{¶ 22} As this Court recently noted:

If a defendant has committed an offense subject to post-release

control under R.C. 2967.28, the trial court must notify the defendant at

sentencing of the postrelease control requirement and the consequences if

the defendant violates post-release control. R.C. 2929.19; State v. Qualls,

131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 18. It is well-

established that when a judge fails to impose the required postrelease

control as part of a defendant’s sentence, “that part of the sentence is void

and must be set aside.” (Emphasis sic.) State v. Fischer, 128 Ohio St.3d

92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26; see also State v. Holdcroft, 137

Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 7. The improper post-

release control sanction “may be reviewed at any time, on direct appeal or

by collateral attack.” Fischer at ¶ 27. * * *

***

Crim.R. 43(A)(1) requires a defendant’s physical presence at every

stage of the criminal proceeding, including the imposition of sentence. It is

well established that when post-release control is required but not properly

imposed, the trial court must conduct a limited resentencing hearing to

properly impose post-release control. See Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, at paragraph two of the syllabus. (“The

new sentencing hearing to which an offender is entitled under State v.

Bezak is limited to proper imposition of postrelease control.”).

State v. Hibbler, 2d Dist. Clark No. 2019-CA-19, 2019-Ohio-3689, ¶ 12, 19.
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{¶ 23} The trial court improperly sentenced Thompson to five years of post-

release control, and since she is still serving her sentence, the court’s imposition of five

years of post-release control will be reversed. Thompson’s second assignment of error

is sustained.

{¶ 24} The trial court’s judgment is reversed with respect to the imposition of post-

release control, and the matter is remanded for resentencing to the appropriate three

years of post-release control. In all other respects, the judgment of the trial court is

affirmed.

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HALL, J. and TUCKER, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Thomas W. Kidd, Jr.
Mary E. Montgomery