[Cite as State v. Parker , 2020-Ohio-414.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY

STATE OF OHIO, Appellee,

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CALVIN PARKER, Appellant. :

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: CASE NO. CA2018-12-229 O P I N I O N

2/10/2020

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-08-1331

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Law Office of Christopher P. Frederick, Christopher P. Frederic k, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant

RINGLAND, P.J. {¶ 1} Appellant, Calvin Parker, appeals his conviction in the Butler County Court of Common Pleas for aggravated trafficking in drugs. For the reas ons detailed below, we affirm. {¶ 2} Parker sold fentanyl to a confidential informant on three occas ions in July 2018. Subsequently, law enforcement obtained a search warrant for his residence leading to the discovery of more fentanyl and tramadol, as well as scales, per sonal papers, money, and cellButler CA2018-12-229

- 2 - phones. {¶ 3} On September 5, 2018, Parker was indicted on three counts of ag gravated trafficking in drugs in violation of R.C. 2925.03(A)(1), fourth -degree felonies; one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A) (1), a second-degree felony; two counts of trafficking in drugs in violation of R.C. 2925.03 (A)(1), fifth-degree felonies; and one count of aggravated possession of drugs in violation of R.C . 2925.11(A), a third-degree felony. Two of the counts also included forfeiture specificati ons. {¶ 4} On October 23, 2018, Parker entered a guilty plea to one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), a seco nd-degree felony, and a forfeiture specification. The remaining six counts were dismissed. On No vember 27, 2018, the trial court sentenced Parker to a mandatory prison term of six years. Parker now appeals, raising two assignments of error for review. {¶ 5} Assignment of Error No. 1: {¶ 6} APPELLANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE O F COUNSEL. {¶ 7} In his first assignment of error, Parker alleges he received in effective assistance of counsel in entering his guilty plea. We disagree

. {¶ 8} A defendant who pleads guilty waives the right to claim ineffec tive assistance of counsel, except to the extent t hat counsel's deficient performa nce caused the plea to be less than knowing and voluntary, which is the argument raised by Par ker. State v. Moxley , 12th Dist. Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 18. {¶ 9} To prevail on an ineffective assistance of counsel claim, an ap pellant must show his trial counsel's performance was deficient, and that he was prejudiced as a result. State v. Clarke , 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.Butler CA2018-12-229

- 3 - Washington , 466 U.S. 668, 687-688, 104 S.C t. 2052 (1984). Trial counsel' s performance will not be deemed deficient unless it fell below an objective stand ard of reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of hi s trial would have been different. Id . at 694. {¶ 10} The failure to satisfy either prong of the Strickland test is f atal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the e xercise of reasonable professional judgment. State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio4625, ¶ 7. When applied in the context of a guilty plea, a def endant must also demonstrate that there is a reas onable probability that, but for his counse l's errors, he would not have pled guilty and would have insisted on going to trial. Moxley at ¶ 20. {¶ 11} Parker claims he received ineffective assistance of counsel for two reasons. First, Parker argues that he pled guilty to a fictitious charge that was unsupported by the record. In so doing, Parker claims that there was no evidence that he sold drugs on July 20, 2018, the charge that he pled guilty to. As a result, Parker c laims that, although he could have been found guilty of aggravated trafficking in violation o f R.C. 2925.03(A)(2), he could not have been found guilty of R.C. 2925.03(A)(1). Second, Park er claims his trial counsel was deficient for advising him to plead guilty to the second-de gree felony based on the bulk amount of the fentanyl and tramadol compound. {¶ 12} As to his first claim, Parker references police investigative r eports detailing his prior drug sales to confidential informants that occurred on Ju ly 10, 11, and 17. Parker notes that none of the investigative reports reference any drug sale on July 20. In addition, Parker also disputes that a minor was at his house. However, we find this argument to be unpersuasive because it requires this court, based on the limit ed record before it, toButler CA2018-12-229

- 4 - speculate that the state could not have presented evidence at t rial to prove a drug transaction occurred on July 20, 2018. Moreover, Parker's posi tion contradicts his statement made during the plea hearing where he affirmatively stated that he agreed with the state's statement of facts. STATE: On or about July 20th of t his year in Bu tler County, Ohi o, Calvin J. Parker did knowingly sell or offer to sell Fentanyl, a controlled substance which is a compound mixture, preparation, or substance included on a Schedule 1 or 2. Other than marijuana, cocaine, LSD , heroin or hashish , when the amount of the drug involved equals or exceeds the bulk amount, but is les s than five times the bulk amount, and when the offense was committed in the vicinity of a school or in the vicinity of a j uvenile, which constitutes the offense of aggravated trafficking in drug s, a 2nd degree felony in violation of 2925.03(A)(1). And there was also a specification under 2941.1417 in that $231 was found in the Defendant's residence or on the Defendant's person, and is the proceeds of ille gal activity, and subject to forfeiture. * * * THE COURT: Mr. Parker, do you admit that the Prosecutor's statement of facts is an accurate statement of what happened? THE DEFENDANT: Yes. Since Parker's first claim requires speculation and, in fact, i s rebutted by his own statements to the trial court, we find his first claim as to ineffective a ssistance of counsel to be without merit. {¶ 13} Next, Parker claims his trial counsel was ineffective by advisi ng him to plead guilty based on the "bulk amount" classification of a fentanyl and tramadol compound. In so doing, Parker alleges that the Ohio Supreme Court in State v. Pountney , 152 Ohio St.3d 474, 2018-Ohio-22 held that fentanyl could not be classified in "bul k amounts." However, Pountney stands for no such proposition. Rather, the Court in Poutney was "concerned only with the second prong" of the bulk amount definition under R.C. 2925.01(D)(1)(d) concerningButler CA2018-12-229

- 5 - the "maximum daily dose" of a c ontrolled substance. Parker omi ts reference to the first prong of R.C. 2925.01(D)(1)(d), which defines bulk amount as an "amount equal to or exceeding twenty grams." See id. Since this case involves fentanyl in excess of twenty grams and does not concern the "second prong" at issue in Pountey , we find Parker could not have availed himself of that defense. As such, Parker agai n fails to show any deficient performance by his trial counsel on his second claim. {¶ 14} Accordingly, and following review of the entire record, we find Parker did not receive ineffective assistance of counsel. Parker's first assi gnment of error is overruled. {¶ 15} Assignment of Error No. 2: {¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. PARKER IN ITS ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIF TH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART ICLE I, SECTION 16 OF THE OHIO CONSTITUTION. {¶ 17} In his second assignment of error, Parker argues the trial cour t erred in accepting his guilty plea. Parker's argument is without merit. {¶ 18} A defendant's plea in a criminal case is invalid if not made kn owingly, intelligently, and voluntarily. State v. Ackley , 12th Dist. Madison No. CA2013-04-010, 2014- Ohio-876, ¶ 8. Crim.R. 11(C)(2) governs the process a trial co urt must follow to ensure that a guilty plea to a felony charge is knowing, intelligent, and vol untary. State v. Brune , 12th Dist. Butler No. CA2014-02-058, 2014-Ohio-5742,¶ 8. {¶ 19} In felony cases the court shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges an d of the maximum penalty involved, and if applicable, that theButler CA2018-12-229

- 6 - defendant is not eligible for probation or for the imposition o f community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the right s to jury trial, to confront witnesses against him or her, to hav e compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. Crim.R. 11(C)(2)(a) thru (c). {¶ 20} A guilty plea is invalid if the trial court does not strictly c omply with Crim.R. 11(C)(2)(c), which requires the court to verify the defendant u nderstands the constitutional rights that he is waiving. Ackley , 2014-Ohio-876 at ¶ 9. However, a court need only substantially comply with the nonconstitutional notifications r equired by Crim.R. 11(C)(2)(a) and (b). Id . Upon review, an appellate court must consider the totality o f the circumstances surrounding the defendant's plea and determine whether he or sh e subjectively understood the effects of the plea. State v. Givens , 12th Dist. Butler No. CA2014-02-047, 2015-Ohio361, ¶ 12. {¶ 21} Even if this court were to find the trial court did not substan tially comply with Crim.R. 11(C)(2)(a) and (b), we must make a further determinati on as to whether the trial court at least partially complied. Id . at ¶ 13. If the trial court wholly failed to comply, the ple a must be vacated. Id . If the trial court partially complied, the plea may be vacat ed only if the defendant demonstrates prejudicial effect. State v. Coffman , 12th Dist. Butler No. CA2015- 01-014, 2015-Ohio-2990, ¶ 11. Prejudicial effect in this conte xt means that the plea would not otherwise have been entered. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 15.Butler CA2018-12-229

- 7 - {¶ 22} Parker does not challenge the trial court's compliance with the constitutional requirements of Crim.R. 11(C)(2)(c). Instead, Parker argues th at the trial court failed to comply with Crim.R. 11(C)(2)(a) because it misinformed him abou t the possibility of earning credit toward his sentence by participating in various prison p rograms. While the trial court incorrectly stated that Parker may have been eligible to earn c redit, we find that the trial court nonetheless partially complied with Crim.R. 11 and Parker can s how no prejudicial effect of the misinformation. {¶ 23} Ohio law is clear that a trial court must inform a defendant of the maximum sentence he or she faces before accepting a guilty plea. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 27. However, there is no requirement that a defendant understand the minimum penalty involved, nor is there is a requirement that a trial court notify a defendant of the possibility of earned credit to ward his or her prison sente nce. Crim.R. 11(C)(2)(a). State
v. Eckler , 12th Dist. Butler No. CA2019-02-035, 2019-Ohio-4828, ¶ 11. {¶ 24} The trial court expressly informed Parker of the maximum senten ce he was facing, between two and eight years, and Parker did not questio n the trial court on the issue of what his maximum sentence would be. Rather, Parker expresse d his understanding of the maximum sentence, which would include an inherent understanding that the mandatory nature of his sentence also made him ineligible for community c ontrol sanctions, early judicial release, and earned credit. See id at ¶ 12

. {¶ 25} Additionally, Parker has not established the requisite prejudic e to invalidate his guilty plea because we cannot conclude from the record that he would not have entered a guilty plea had the trial court taken greater care in advising him during the plea hearing about his ineligibility for earned credit. Rather, the record reflec ts that Parker understood the nature of his sentence and the fact that he would be required to serve a mandatory prison term. InButler CA2018-12-229

- 8 - fact, though the trial court informed Parker that he could earn credit towards his prison term, the court noted that, if the reduction applied, he could earn a maximum reduction of eight percent of his term. Under those conditions the maximum reduct ion in sentence that Parker could have received on an eight-year prison term was slightly l ess than six months. However, as noted above, the trial court sentenced Parker to less than t he eight-year maximum term when it imposed the six-year sentence. Thus, we cannot conclud e that Parker's plea was predicated upon his eligibility for earned credit when, in real ity, Parker was advised, and understood, that he was subject to a much lengthier prison term than he actually received. {¶ 26} Parker cites this court's holding in State v. Hendrix , 12th Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, in which we reversed a decision of the trial court to accept a guilty plea where the court failed to comply with Crim.R. 11( C)(2)(a) because it misinformed the defendant that the court could impose community control, gr ant judicial release, and award credit toward the defendant's sentence. Id. at ¶ 26. However, the facts of that case differ from the case sub judice because the possibility of the trial court imposing community control negated the mandatory nature of Hendrix's sentence. He re, the trial court never intimated that Parker was eligible for community control, and i nstead, expressly told Parker he would receive a mandatory prison term. Moreover, as previou sly noted, Crim.R. 11(C)(2)(a) requires a trial court to advise the defendant of h is or her ineligibility for community control, but does not require any notification regard ing earned credit. As such, Hendrix is factually distinguishable and is not controlling. {¶ 27} After a full review of the record, we find that the Parker's pl ea was properly accepted by the trial court and that he was not prejudiced by t he trial court's statement at the plea hearing that he may be eligible for earned credit. Accord ingly, Parker's second assignment of error is overruled. {¶ 28} Judgment affirmed.Butler CA2018-12-229

- 9 - PIPER and M. POWELL, JJ., concur.