[Cite as State v. Welch, 2017-Ohio-314.]




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

 STATE OF OHIO                                   :
                                                 :   Appellate Case No. 2016-CA-6
         Plaintiff-Appellee                      :
                                                 :   Trial Court Case No. 15-CR-411
 v.                                              :
                                                 :   (Criminal Appeal from
 JOHN WELCH                                      :    Common Pleas Court)
                                                 :
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 27th day of January, 2017.

                                            ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Clark County Prosecutor’s Office, 50 East
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, and NICOLE RUTTER-HIRTH, Atty. Reg.
No. 0081004, Rion, Rion & Rion, L.P.A., Inc., 130 West Second Street, Suite 2150, Post
Office Box 1262, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1} John Welch appeals from his conviction and sentence on one count of fifth-

degree-felony domestic violence and from the trial court’s imposition of a separate
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sentence for violating post-release control.

       {¶ 2} Welch advances two assignments of error. First, he contends the trial court

erred in failing to give him proper credit on his sentence for violating post-release control.

Second, he claims his guilty plea to domestic violence is invalid because the trial court

failed to tell him during a plea hearing that any prison sentence for the post-release control

violation was required to be imposed consecutively.

       {¶ 3} We begin our analysis with the second assignment of error. The record

reflects that Welch, who was on post-release control, pled guilty to domestic violence in

exchange for dismissal of a felonious-assault charge. The written plea form included the

following language: “I understand that if I am now on felony probation, parole, or under

post-release control from prison, this plea may result in revocation proceedings and any

new sentence will be imposed consecutively.” (Emphasis added) (Doc. # 37). At the plea

hearing, the trial court asked Welch about the plea form, confirming that he had a chance

to go over it with his attorney and that he understood “everything in it.” (Plea Tr. at 4). The

trial court also told Welch that “a guilty plea in this case could result in some additional

incarceration for violating your post-release control[.]” (Id. at 5). With regard to the new

domestic violence charge, the trial court explained that Welch was subject to a mandatory

prison sentence on it. It then advised him about post-release control for that new offense.

Among other things, it told him: “If you commit a felony offense while on post-release

control, you could return to prison for the amount of time you have remaining on post-

release control or one year, whichever is greater, and that will be consecutive to the time

you would get for the new felony offense.” (Id. at 6-7).

       {¶ 4} After accepting Welch’s plea, the trial court found him guilty. It later
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sentenced him to 12 months in prison for the domestic violence conviction. It imposed an

additional 32 months (the time remaining on post-release control) for violating the terms

of his post-release control by engaging in domestic violence. It ordered the two terms to

be served consecutively.

       {¶ 5} On appeal, Welch argues that his guilty plea was not entered knowingly,

intelligently, and voluntarily because the trial court failed to inform him, at the plea hearing,

that any prison sentence it imposed for violating post-release control was required to be

consecutive to his domestic violence sentence. In that regard, R.C. 2929.141(A)(1)

provides that a prison term imposed for a post-release control violation “shall be served

consecutively to any prison term imposed for the new felony.”

       {¶ 6} In State v. Branham, 2d Dist. Clark No. 2013 CA 49, 2014-Ohio-5067, this

court addressed a similar issue. The defendant in Branham had been on post-release

control when he engaged in gross sexual imposition (GSI). He pled guilty to the GSI

charge. The plea form advised him that post-release control could be revoked and that

any sentence for having violated post-release control “could be imposed consecutively”

to the GSI sentence. Branham at ¶ 11. The trial court subsequently imposed consecutive

sentences for the gross sexual imposition conviction and for the post-release control

violation.

       {¶ 7} On review, this court reasoned:

              * * * [T]he trial court failed to inform Branham during the plea colloquy

       that, pursuant to the explicit language in R.C. 2929.141(A)(1), if it revoked

       his PRC, imposition of consecutive sentences for the violation was, in fact,

       mandatory upon imposition of a prison term for GSI.
                                                                                         -4-




              Significantly, although the plea form signed by Branham included a

       provision which informed him of the effect that his PRC violation could have

       on sentencing, it did not contain any language putting him on notice that

       consecutive sentences were mandatory upon a prison sentence on the GSI.

       Rather, the general provision in the plea form merely states that the trial

       court “could” impose consecutive sentences in the event of a violation of

       felony probation, parole, community control sanction, or post-release

       control from prison. The use of the word “could” in this context is misleading.

              The trial court not only should have told Branham that it was not

       bound by the State’s recommendation, but also if a new prison term was

       imposed and the court elected to revoke his PRC, the time must be served

       consecutively. The trial court did not have the discretion to use the word

       “could” as the language in the plea form suggests.

              Branham's sole assignment of error is sustained.

Id. at ¶ 12-15.

       {¶ 8} In State v. Landgraf, 2d Dist. Clark No. 2014 CA 12, 2014-Ohio-5448, this

court applied and followed Branham. The defendant in Landgraf pled guilty to felony theft

of a motor vehicle. At that time, he was on post-release control for an earlier conviction.

The plea form advised him that post-release control could be revoked and that any new

sentence for having violated post-release control “could be imposed consecutively.” Post-

release control was not mentioned at the plea hearing. The trial court confirmed, however,
                                                                                         -5-


that the defendant had reviewed the plea form and that he understood it. The trial court

later imposed consecutive sentences for the felony theft conviction and for the post-

release control violation. On appeal, this court’s lead opinion relied on Branham and

reasoned:

             Landgraf raises these same issues in the context of the voluntariness

      of his plea, and we find Branham to be relevant to our resolution of that

      issue. In this case, the trial court did not inquire at the plea hearing whether

      Landgraf was on post-release control at the time of his offense, and the trial

      court did not address any of the consequences that Landgraf faced under

      R.C. 2929.141 if Landgraf were to plead guilty to a new felony.

             In our view, Crim.R. 11 required the trial court to inform Landgraf

      that, if he pled guilty to theft of a motor vehicle (a new felony), the court

      could terminate his previously-imposed post-release control and, if a prison

      term were imposed for the theft of a motor vehicle charge, the trial court

      could also impose a prison term for the post-release control violation, which

      would be served consecutively to the prison term imposed on the new felony

      (theft of a motor vehicle). In addition, the trial court should have notified

      Landgraf of the maximum prison term he faced for violating the post-release

      control imposed by the Montgomery County court.

             The plea form was insufficient to notify Landgraf of the

      consequences of pleading guilty to a felony committed while under post-

      release control. The plea form stated that “this plea may result in revocation

      proceedings and any new sentence could be imposed consecutively. I know
                                                                                          -6-


       any prison term stated will be served without good time credit.” (Emphasis

       added.) As we stated in Branham, this language is misleading in that it

       suggests that the trial court had the discretion whether to impose a

       consecutive sentence for the post-release control violation.

Id. at ¶ 22-24.

       {¶ 9} Two members of the Landgraf panel concurred separately, solely on the

basis of stare decisis, while expressing disagreement with Branham’s analysis and

outcome. Id. at ¶ 28-29 (Hall, J., concurring) and ¶ 30 (Welbaum, J., concurring).

       {¶ 10} Having reviewed Branham and Landgraf, as well as the requirements of

Crim.R. 11, we find Welch’s case distinguishable from those cases and conclude that his

guilty plea was valid. Welch’s argument references Crim.R. 11(C)(2)(a), which requires a

defendant to be told the maximum penalty he faces. Welch contends he was not told the

maximum penalty he faced because the trial court did not inform him, during his plea

hearing, about the mandatory consecutive nature of any prison sentence it might impose

for violating post-release control. 1 This court addressed the requirements of Crim.R.

11(C)(2) in Landgraf as follows:

              Crim.R. 11(C)(2) requires the court to address the defendant

       personally and (a) determine that the defendant is making the plea

       voluntarily, with an understanding of the nature of the charges and the

       maximum penalty, and, if applicable, that the defendant is not eligible for


1 Landgraf’s lead opinion also stated that the trial court should have told the defendant
the maximum amount of prison time he faced for violating post-release control. Landgraf
at ¶ 23. Welch does not raise that particular argument here. Instead, he argues only that
the trial court erred in failing to tell him he faced a mandatory consecutive prison term for
violating post-release control. (Appellant’s brief at 4-7).
                                                                                    -7-


probation or for the imposition of community control sanctions; (b) inform

the defendant of and determine that the defendant understands the effect

of the plea of guilty and that the court, upon acceptance of the plea, may

proceed with judgment and sentencing; and (c) inform the defendant and

determine that he understands that, by entering the plea, the defendant is

waiving the rights to a jury trial, to confront witnesses against him, to have

compulsory process for obtaining witnesses, and to require the State to

prove his guilt beyond a reasonable doubt at a trial at which he cannot be

compelled to testify against himself. State v. Brown, 2d Dist. Montgomery

No. 21896, 2007-Ohio-6675, ¶ 3.

       The Supreme Court of Ohio has urged trial courts to literally comply

with Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 29. However, because Crim.R. 11(C)(2)(a) and (b) involve

non-constitutional rights, the trial court need only substantially comply with

those requirements. E.g., State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990). “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.” Id. In contrast, the trial court must

strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal

constitutional rights. Clark at ¶ 31.

       Furthermore, when non-constitutional rights are at issue, a

defendant who challenges his guilty plea on the basis that it was not

knowingly, intelligently, and voluntarily made generally must show a
                                                                                         -8-

       prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

       N.E.2d 621, ¶ 17. Prejudice in this context means that the plea would

       otherwise not have been entered. Id. at ¶ 15.

Landgraf at ¶ 12-14.

       {¶ 11} Here Welch’s invocation of Crim.R. 11(C)(2)(a) involves a non-

constitutional right. Therefore, even accepting (on the basis of Branham, Landgraf, and

the principle of stare decisis) that Crim.R. 11(C)(2)(a) obligated the trial court to inform

Welch of the mandatory consecutive nature of any prison sentence it might impose for

violating post-release control, we find at least substantial compliance here. Under the

totality of the circumstances, Welch undoubtedly understood that he faced a mandatory

consecutive sentence if a prison term were imposed for violating post-release control. We

reach this conclusion for three reasons.

       {¶ 12} First, unlike Branham and Landgraf, the plea form in this case explicitly

informed Welch that his plea “may result in revocation proceedings” and that “any new

sentence will be imposed consecutively.” The primary reason for finding the pleas invalid

in Branham and Landgraf was the fact that the plea forms in those cases said “any new

sentence could be imposed consecutively.” The fact that the plea form in the present case

correctly advised Welch meaningfully distinguishes Branham and Landgraf.

       {¶ 13} Second, the trial court orally confirmed at the plea hearing that Welch had

reviewed the plea form with his attorney and that he understood everything in it. We

recognize that the trial court did the same thing in Landgraf. See Landgraf at ¶ 6. In that

case, however, the plea form only mentioned the possibility of a consecutive sentence.

Here the plea form made clear that any prison sentence for violating post-release control
                                                                                         -9-


would be consecutive, and the trial court made sure Welch reviewed and understood the

form. This fact supports a conclusion that he “subjectively understood” the mandatory

consecutive nature of the penalty he faced. See State v. Griggs, 103 Ohio St.3d 85, 2004-

Ohio-4415, 814 N.E.2d 51, ¶ 12, 16, 19 (finding substantial compliance with Crim.R.

11(C)(2)(b) regarding the effect of a plea where the defendant signed a plea form

admitting his guilt and indicated his understanding of the contents of the document and

the rights he was waiving, notwithstanding the trial court’s failure to inform the defendant

of the effect of his plea at the plea hearing); see also State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 16.

       {¶ 14} Third, the trial court did orally advise Welch at the plea hearing: “If you

commit a felony offense while on post-release control, you could return to prison for the

amount of time you have remaining on post-release control or one year, whichever is

greater, and that will be consecutive to the time you would get for the new felony offense.”

(Emphasis added) (Plea Tr. at 6-7). The trial court admittedly made this statement in the

context of explaining the consequences of prospectively violating post-release control for

his new domestic violence offense. The trial court conveyed exactly the same information,

however, that Welch contends was missing from his plea hearing. Because Welch

obviously did commit a new felony offense (domestic violence) while on post-release

control for an earlier offense, the trial court’s statement of law about any prison sentence

for a post-release control violation being consecutive further supports our conclusion that

he subjectively understood the nature of the penalties he faced.

       {¶ 15} For each of the foregoing reasons, we conclude that the trial court at least

substantially complied with Crim.R. 11(C)(2)(a) insofar as the rule may have obligated it
                                                                                          -10-


to inform Welch about the mandatory consecutive nature of any prison sentence imposed

for violating post-release control. We also find no merit in Welch’s argument that he

suffered prejudice. Although he claims he would not have entered his guilty plea if he had

known about the mandatory consecutive sentence for violating post-release control, the

record does not support this claim. The record reveals that Welch did know any such

sentence would be consecutive. Indeed, he acknowledged that fact, shortly before the

plea hearing, in his written plea. As set forth above, the trial court also provided him with

that information, during the hearing, while discussing the consequences of a post-release

control violation for his new offense. Welch’s second assignment of error is overruled.

       {¶ 16} We turn now to the first assignment of error, which challenges the trial

court’s failure to “credit” Welch’s sentence properly. This assignment of error concerns

an administrative sanction the Adult Parole Authority (APA) imposed on Welch prior to

the trial court’s sentencing below. In his appellate brief, Welch asserts that he was

subjected to an APA post-release control hearing based on his new domestic violence

offense. He further asserts that the APA imposed a sanction of 90 days in prison and 90

days of home detention for his violation. According to Welch, “[t]his time was to begin at

the conclusion of the hearing and was not reduced by the time he had spent incarcerated

awaiting the hearing.” (Appellant’s brief at 2).

       {¶ 17} Welch raises two specific arguments on appeal. First, he contends the trial

court erred in failing to reduce his 32-month sentence for violating post-release control by

six months to account for the sentence imposed by the APA (i.e., 90 days for the APA-

imposed prison term and 90 days for the home detention). Second, he claims the trial

court erred in failing to give him jail-time credit for time he spent incarcerated while
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awaiting his APA administrative revocation hearing. (Appellant’s brief at 4).

         {¶ 18} Upon review, we find Welch’s first argument to be persuasive, but only in

part. His presentence investigation (PSI) report indicates that the APA held a hearing and

administratively sanctioned him after his act of domestic violence. It appears from the

record that Welch assaulted his ex-girlfriend in the early morning hours of August 2, 2015.

The PSI indicates that “on August 3rd, 2015, there was a probation violation and the

defendant’s penitentiary sentence was re-imposed and he was returned to OSP.”

Although the date is one day off, this reference to a “probation violation” on August 3,

2015, seems to be a reference to Welch’s act of domestic violence, which constituted a

post-release control violation. The PSI does not indicate when the administrative hearing

occurred. Nor does it identify the length of the administrative sanction imposed. At the

conclusion of Welch’s sentencing hearing, however, the trial court accepted defense

counsel’s representation that Welch “was given ninety days of prison time as well as

ninety days of GPS [home detention], and that was ordered on November 24, 2015.”

(Sentencing Tr. at 7).

         {¶ 19} Under R.C. 2929.141(A)(1), the trial court was obligated to reduce the

prison term it imposed for Welch’s post-release control violation. That statute provides:

“In all cases, any prison term [judicially] imposed for the [post-release control] violation

shall be reduced by any prison term that is administratively imposed by the parole board

as a post-release control sanction.” Here the trial court did not do so. It ordered Welch to

serve a prison term of 32 months for his post-release control violation without making any

reduction for the 90-day prison term that the APA already had imposed.2 Under the plain


2   At sentencing, the trial court expressed its desire to return Welch to prison for the full
                                                                                         -12-


language of R.C. 2929.141(A)(1), the trial court was required to reduce its 32-month

prison term by three months to account for the APA’s existing prison sanction. Contrary

to his argument, however, Welch was not entitled to an additional three-month reduction

to account for the APA’s home-detention sanction. As set forth above, R.C.

2929.141(A)(1) specifically obligated the trial court to reduce its sentence only by the

length of “any prison term that is administratively imposed by the parole board[.]”

(Emphasis added).

       {¶ 20} Finally, we are unpersuaded by Welch’s argument that the trial court erred

in failing to give him credit for time he spent in confinement awaiting his APA

administrative hearing. The record suggests that the administrative hearing occurred on

or about November 24, 2015. (Sentencing Tr. at 7). The trial court’s sentencing entry gave

Welch jail-time credit from August 3, 2015 (the day after his domestic violence offense)

until November 27, 2015 (which appears to be when he was conveyed to prison to begin

serving his APA-imposed prison sentence). (Doc. #39 at 2). The trial court also gave

Welch jail-time credit from December 31, 2015 (when he was returned to the Clark County



amount of his unserved time on post-release control. As of the date of the sentencing
hearing, the trial court found this to be two years and eight months, or 32 months.
(Sentencing Tr. at 6). It appears to us, however, that Welch arguably had 34 months of
unserved post-release control time remaining. He was placed on post-release control on
September 25, 2013. (PSI report at 2). The APA returned him to prison 26 months later
on or about November 24, 2015. (Sentencing Tr. at 7). At that time, then, he had 34
months of unserved post-release control remaining. Although two more months elapsed
before the trial court sentenced Welch on January 26, 2016, he arguably did not serve
any post-release control during those two months because the APA already had returned
him to prison. The trial court did not attribute this 2-month difference to reflect a 90 day
reduction under R.C. 2929.141(A(1), minus the one month he served back in prison from
late November to late December. It appears to just be a miscalculation. In any event, the
trial court determined at sentencing that Welch had only 32 months of unserved post-
release control remaining, and the State has not challenged that determination.
                                                                                         -13-


jail for sentencing) until his re-conveyance to prison on January 27, 2016. Therefore,

Welch has not identified any period of time for which the trial court failed to award him

proper jail-time credit.

       {¶ 21} Based on the reasoning set forth above, Welch’s first assignment of error is

sustained in part and overruled in part. The assignment of error is sustained insofar as

the trial court erred in failing to reduce its 32-month prison term for Welch’s post-release

control violation by three months to account for the APA’s existing prison sanction. In all

other respects, the first assignment of error is overruled. We note, however, that the Ohio

Department of Rehabilitation and Correction’s (ODRC) online records currently do not

reflect the 90-day prison sentence administratively imposed on Welch by the APA. The

ODRC’s web site reflects the trial court’s one-year sentence for domestic violence and its

32-month sentence for violating post-release control. See State v. Evans, 2d Dist.

Montgomery No. 24928, 2012-Ohio-5099, ¶ 8-9 (taking judicial notice of the ODRC

website). We are unable to determine how ODRC has calculated the administrative

sanction in their computations. Given that the trial court’s 32-month sentence must be

reduced by three months pursuant to R.C. 2929.141(A)(1), Welch also can be required

to serve the remainder of the 90-day administrative prison sentence previously imposed.

With regard to that 90-day sentence, the record suggests that he already served thirty-

five days of it between November 27, 2015 (when he appears to have been conveyed

from jail to ODRC’s custody) and December 31, 2015 (when he was conveyed from

ODRC’s custody back to jail). (See Doc. #35, Doc. #40 at 2). He may be required to serve

the remaining 55 days of that administrative sanction, separate and in addition to the trial

court judicial PRC sentence which has now been reduced to reflect the administrative
                                                                                      -14-


sanction. In any event, proper recording and computation of Welch’s 90-day

administrative prison sentence is beyond the scope of this appeal. For present purposes,

we note only that the ODRC web site fails to reflect the existence of that administrative

sentence, the remainder of which Welch can be required to serve.

      {¶ 22} Pursuant to §3(B)(2), Article IV of the Ohio Constitution and App. R. 12(B),

we hereby modify the trial court’s judgment by reducing Welch’s 32-month prison

sentence for violating post-release control to 29 months in accordance with R.C.

2929.141(A)(1). The result is an aggregate prison sentence of three years and five

months rather than three years and eight months. As so modified, the trial court’s

judgment is affirmed.

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




FROELICH, J., and WELBAUM, J., concur.


Copies mailed to:

Megan Farley
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Douglas M. Rastatter
ODRC-Bureau of Sentence Computation