Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon,
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
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.
Factual and Procedural History
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.
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
Sentencing occurred on May 10, 2016. The court imposed a
total sentence spanning all three cases of 14 years and 11
months. 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 postrelease
control upon release from prison.
Law and Analysis
Appellant argues that the complete failure of the trial court
to advise him of postrelease control at the plea hearing
renders his pleas invalid.
"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.