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State v. Betts

Court of Appeals of Ohio, Fourth District, Vinton

October 19, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MARK BETTS, Defendant-Appellant.

          Darren L. Meade, Parks and Meade, L.L.C., Columbus, Ohio, for appellant.

          Mike DeWine, Ohio Attorney General, and Micah R. Ault, Ohio Assistant Attorney General, Cleveland, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          WILLIAM H. HARSHA, JUDGE

         {¶1} After Mark Betts pleaded guilty to a felony, the Vinton County Court of Common Pleas sentenced him to prison and a mandatory term of post-release control.

         {¶2} Betts asserts that he did not knowingly, intelligently, and voluntarily enter his guilty plea because the trial court failed to advise him of the maximum potential sentence involved, i.e., the potential post-release control sanctions he faces for a new felony conviction under R.C. 2929.141(A). We disagree and expand our prior holding addressing R.C. 2929.141(A) in the original sentencing context to cover the entry of a no contest and/or guilty plea. Consistent with other appellate courts, we hold that a trial court need not advise a defendant entering a guilty plea of the potential consequences under R.C. 2929.141 for committing a new crime while on post-release control.

         {¶3} However, the trial court provided inaccurate information to Betts by advising him during his plea hearing that if he violates his post-release control by committing a new felony, he could receive "the time remaining on post release control plus a prison term for the new crime." Under R.C. 2929.141(A)(1), "[t]he maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony."

         {¶4} Nonetheless Betts is entitled to have his guilty plea vacated only if he demonstrates a prejudicial effect, i.e., that he would not have made the plea if he had known otherwise. Despite his claim of a "significant reluctance in entering a guilty plea" and the "tangible defenses" he had to present, there is little or nothing in the record to indicate that a correction of the trial court's slight misstatement about the length of a potential prison term for violating post-release control by committing a new felony would have resulted in a decision not to enter a guilty plea.

         {¶5} Betts is correct the trial court's mistaken advice could underestimate his potential prison sentence for a post-release control violation based on his commission of a new felony near the end of his post-release control. However, the trial court's notification could also overestimate his potential prison sentence for the post-release control violation if he were to commit the new felony near the beginning of his post-release control.

         {¶6} And the record does not disclose any realistic defenses to the attempted theft charge. Betts claims that the crime was committed by his brother and that he merely collected payments through his own timber company to help his brother avoid child-support arrearage payments. Based upon his own admission that he purposely chose to assist his brother in violating a court support order, his credibility is suspect. Likewise his claim that he never cut timber from the victim's property was rebutted by at least eight witnesses who observed him doing so. Lastly, money from the payments for the timber went into the accounts of Betts, his wife, and his son. His claims to a credible defense are, in fact, incredible.

         {¶7} Under these circumstances, Betts cannot establish the requisite prejudice to invalidate his plea and reverse his conviction. We overrule his assignment of error and affirm his conviction.

         I. FACTS

         {¶8} The Vinton County Grand Jury returned an indictment charging Mark Betts with one count of theft from an elderly person; because the value of the property was more than $150, 000, it became a first-degree felony. After the trial court appointed counsel for Betts, he entered a plea of not guilty.

         {¶9} Betts subsequently waived his right to a jury trial and pleaded guilty to the reduced second-degree felony charge of attempted theft. His written plea included the following language concerning post-release control:

If I am sentenced to prison for a Felony 2 * * *, I will have mandatory post release control of 3 years. * * * If I violate conditions of supervision while under post release control, the parole board could return me to prison for up to nine months for each violation, for a total of fifty percent (50%) of my originally stated prison term. If the violation is for a new felony, I could receive the time remaining on post release control plus a prison term for the new crime.

(Emphasis added.)

         {¶10} The trial court conducted a hearing on Betts's change of plea and engaged in a colloquy that advised Betts of his constitutional and nonconstitutional rights prior to Betts guilty plea to the reduced charge. The trial court gave Betts this notice about the post-release control:

Judge: The last paragraph on the first page of the plea of guilty advised about post release control. And what it advises in this particular case since this is a felony of the second degree it says if I am sentenced to prison for a felony of the second degree and then it goes on to say the main point is that in this case if the court orders you to serve a prison term then after you serve all prison time * * * since it is a felony of the second degree you would be ...

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