Court of Appeals of Ohio, Fifth District, Muskingum
CHARACTER OF PROCEEDING Appeal from the Court of Common
Pleas, Case No. CR2018-0001
Plaintiff-Appellee TAYLOR P. BENNINGTON
Defendant-Appellant JAMES A. ANZELMO
JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
1} Defendant-Appellant Tyson J. Hahn appeals the May
17, 2018 Sentencing Entry of the Muskingum County Court of
Common Pleas. Plaintiff-appellee is the state of Ohio.
AND PROCEDURAL HISTORY
2} On April 16, 2018, appellant entered a plea of
guilty to one count of theft of a motor vehicle, a felony of
the fourth degree. During the hearing, counsel for appellant
indicated he had gone over in detail, a written plea form
signed by appellant. Counsel indicated he had explained to
appellant "maximum penalties, post release control, and
any rights he is waiving by entering this plea * * *."
3} During its subsequent plea colloquy with
appellant, the trial court ascertained appellant was on
post-release control (PRC) for a prior offense committed in
Clark County, Ohio. Given that information, the trial court
advised appellant "You understand that a plea of guilty
here and a finding of guilty on this case could lead to a
violation of your post-release control and could lead to new
and additional prison time based solely on that?"
Appellant indicated he understood this possibility.
4} Appellant was sentenced on May 14, 2018 following
a presentence investigation. Based on appellant's
extensive criminal history and lack of remorse, the trial
court sentenced appellant to 18 months for theft of a motor
vehicle, revoked his post-release control, and imposed the 1,
236 days appellant had remaining on post-release control to
be served consecutive to the sentence for theft of a motor
vehicle. Before the trial court could completely conclude
sentencing, appellant verbally lashed out at and verbally
threatened the trial court judge and was removed from the
5} On May 17, 2018, the trial court issued its
sentencing judgment entry reflecting the forgoing sentence
and ordering appellant to pay court costs. It is from this
judgment that appellant appeals raising two assignments of
6} "TYSON HAHN DID NOT KNOWINGLY, INTELLIGENTLY
AND VOLUNTARILY PLEAD GUILTY TO DRUG POSSESSION (sic), IN
VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATE CONSTITUTION AND
SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION."
7} "TYSON HAHN RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
8} In his first assignment of error, appellant
argues his plea was not knowingly, intelligently and
voluntarily made because the trial court failed to adequately
inform him that pursuant to R.C 2929.141(A)(1), the sentence
for his post-release control violation must be served
consecutive to his sentence for theft of a motor
vehicle. We disagree.
9} Pursuant to Crim.R. 11, guilty pleas to be made
knowingly, intelligently and voluntarily. Literal compliance
with Crim. R. 11 is preferred, however, the trial court need
only "substantially comply" with the rule when
addressing the non-constitutional elements of Crim.R. 11(C).
State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115 (1981), citing State v. Stewart, 51 Ohio St.2d
86, 364 N.E.2d 1163 (1977). The Ohio Supreme Court noted the
following test for determining substantial compliance with
Though failure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a
presumption that it was entered involuntarily and
unknowingly, failure to comply with non-constitutional rights
will not invalidate a plea unless the defendant thereby
suffered prejudice. [State v. Nero (1990), 56 Ohio
St.3d 106, ] 108, 564 N.E.2d 474. The test for prejudice is
'whether the plea would have otherwise been made.
Id. Under the substantial-compliance standard, we
review the totality of circumstances surrounding [the
defendant's] plea and determine whether he subjectively
understood [the effect of his plea]. See, State
v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d
1224 at ¶ 19-20.
10}State v. Griggs, 103 Ohio St.3d 85,