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State v. Hahn

Court of Appeals of Ohio, Fifth District, Muskingum

August 26, 2019

STATE OF OHIO Plaintiff-Appellee
v.
TYSON J. HAHN Defendant-Appellant

          CHARACTER OF PROCEEDING Appeal from the Court of Common Pleas, Case No. CR2018-0001

         JUDGMENT: Affirmed

          For Plaintiff-Appellee TAYLOR P. BENNINGTON

          For Defendant-Appellant JAMES A. ANZELMO

          JUDGES: Hon. John W. Wise, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, 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.

         FACTS 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 court room.

         {¶ 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 error:

         I

         {¶ 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."

         II

         {¶ 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 CONSTITUTION."

         I

         {¶ 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.[1] 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 Crim.R. 11:

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, 2004-Ohio-4415, ...


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