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State v. Delventhal3/27/2003
DATE OF ANNOUNCEMENT OF DECISION: MARCH 27, 2003
JUDGMENT: VACATED
. This is an appeal from a judgment of conviction and sentence entered by Judge Timothy J. McGinty after Craig Delventhal pleaded guilty to a fourth degree felony charge of driving while under the influence of alcohol (DUI). Delventhal claims his guilty plea was invalid because the judge failed to inform him, prior to the plea, that post-release control could be part of his sentence. We vacate the conviction.
. Delventhal pleaded guilty to a fourth degree felony charge of DUI, which resulted from his having been convicted of similar offenses at least three times within the previous six years. Before accepting his plea the judge informed him of the prison sentence that could be imposed, the range of possible fines, and that his driver's license would be suspended, but did not inform him that a conviction subjected him to up to three years of post-release control at the discretion of the parole board. After accepting the plea, the judge immediately sentenced him to a one year prison sentence and $10,000 fine for the DUI conviction. He then stated that he was "going to order the Department of Rehabilitation and Correction to place you on the maximum period of post-release control parole." The judgment entry purported to impose a five-year term of post-release control upon Delventhal, and he asserts two assignments of error, the first of which states:
. "I. The trial court erred when it failed to inform appellant prior to his plea that he may be subject to post-release controls or explain to appellant what post-release controls meant and therefore his guilty plea was not made knowingly and intelligently and was in violation of [Crim.R.] 11(C)."
. While the assignment of error claims the judge violated Crim.R. 11(C), Delventhal's argument also relies upon R.C. 2943.032, which states that, prior to accepting a guilty plea, a judge "shall inform the defendant personally" that he may be subject to an additional prison term if he violates the conditions of post-release control. Even if this statutory requirement is satisfied the defendant may still challenge his guilty plea by claiming that he failed to fully understand the maximum sentence that could be imposed. There is no dispute that the judge violated the express provisions of R.C. 2943.032 because he failed to inform Delventhal of any aspect of post-release control prior to accepting his plea. Despite this lack of compliance, however, the State asserts two arguments in defense of the conviction.
. It first contends that the statute is subject to a substantial compliance rule, which was satisfied when the judge informed Delventhal of post-release controls at sentencing. In support of this argument the State misconstrues unfortunate language in the Ohio Supreme Court's decision in Woods v. Telb, a separation of powers challenge, which stated that "pursuant to R.C. 2967.28(B) and (C), a trial court must inform the offender at sentencing or at the time of a plea hearing that post-release control is part of the offender's sentence." This language, however, cannot be used to nullify application of statutes and court rules that were neither addressed nor interpreted in Woods, and which separately require notification of post-release control at both a plea hearing and a sentencing. Moreover, to interpret Woods as stating that information at a sentencing can validate a plea hearing, or vice versa, would flout settled principles governing both plea hearings and sentencing hearings.
. R.C. 2943.032(E) requires the judge to inform a defendant of post-release control sanctions prior to accepting a guilt
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