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State v. Yarochovitch

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 15, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
OLEH YAROCHOVITCH DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-599568-A, CR-15-600628-A, and CR-15-601090-A

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender BY: Paul Kuzmins Assistant Public Defender

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Anna Woods Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶1} Appellant, Oleh Yarochovitch, asks this court to vacate his guilty pleas in three cases because the trial court failed to fulfill its obligations under Crim.R. 11. After a thorough review of the record and law, this court vacates appellant's guilty pleas, and remands.

         I. Factual and Procedural History

         {¶2} Appellant, along with two others, were charged with crimes related to a string of burglaries against mostly elderly victims. The three would break into a home, sometimes when an occupant was present but doing yard work outside, and steal valuables. In one incident, security camera footage captured the license plate number of the car used during the break-ins. This led police to appellant and his accomplices. After search warrants were executed, police found valuables belonging to some of the victims in the possession of appellant and his codefendants.

         {¶3} During pretrials, the state and appellant negotiated a plea agreement that would allow him to plead guilty to reduced and amended charges. On April 12, 2016, in Cuyahoga C.P. No. CR-15-599568-A, appellant pled guilty to one count of escape, a fifth-degree felony violation of R.C. 2921.34(A)(1); one count of breaking and entering, a fifth-degree felony violation of R.C. 2911.13(A); and one count of theft, a fifth-degree felony violation of R.C. 2913.02(A)(1). In Cuyahoga C.P. No. CR-15-600628-A, appellant pled guilty to one count of burglary, a second-degree felony violation of R.C. 2911.12(A)(2); one count of theft, a fourth-degree felony violation of R.C. 2913.02(A)(1); and one count of receiving stolen property, a fifth-degree felony violation of R.C. 2913.51(A). Finally, in Cuyahoga C.P. No. CR-15-601090-A, appellant pled guilty to two counts of burglary, second-degree felony violations of R.C. 2911.12(A)(2); seven counts of theft, fifth-degree felony violations of R.C. 2913.02(A)(1); one count of theft, a fourth-degree felony violation of R.C. 2913.02(A)(2); and one count of theft, a first-degree misdemeanor violation of R.C. 2913.02(A)(1). At the change of plea hearing, appellant asserts, and the state concedes, that the court did not inform appellant about postrelease control for any of these charges.

         {¶4} Sentencing occurred on May 10, 2016. The court imposed a total sentence spanning all three cases of 14 years and 11 months.[1] The court also imposed a period of postrelease control in each case. Appellant then filed the instant appeal assigning one error for review:

I. The appellant's plea was not knowingly, voluntarily and intelligently made where the trial court failed to advise the appellant that he would be subject to post[]release control upon release from prison.

         II. Law and Analysis

         {¶5} Appellant argues that the complete failure of the trial court to advise him of postrelease control at the plea hearing renders his pleas invalid.

         {¶6} "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution." State v. Engle,74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). Crim.R. 11(C)(2) places a burden on the trial court to inform a criminal defendant of certain rights, and instilling in the defendant an understanding of the effects of his or her plea. Without doing so, the court shall not accept a plea of guilty or no contest. Id. Where the advisement involves constitutional rights, the court must strictly comply; where the rights involved are nonconstitutional, substantial compliance is sufficient. State v. ...


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