[Cite as State v. Mackey, 2013-Ohio-4698.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 99390

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RYAN MACKEY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART 

AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-560185 

BEFORE: Keough, J., Stewart, A.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: October 24, 2013 
ATTORNEYS FOR APPELLANT

Donald Gallick 

The Law Office of Donald Gallick, L.L.C. 

190 North Union Street, #102 

Akron, Ohio 44304 

Ashley L. Jones 

75 Public Square 

Suite 714 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: William Leland 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Ryan Mackey, appeals from the trial court’s judgment, 

rendered after a guilty plea, finding him guilty of multiple counts of drug trafficking and 

sentencing him to a total of three years incarceration and $15,000 in fines. 

 I. Background 

{¶2} Mackey and four codefendants were charged with multiple counts of drug 

trafficking, drug possession, and possession of criminal tools. Mackey eventually pled 

guilty to Count 1, drug trafficking in violation of R.C. 2925.03(A)(1), a fifth-degree 

felony; Counts 3, 6, 12, and 15, drug trafficking in violation of R.C. 2925.03(A)(1), 

third-degree felonies; and Count 9, drug trafficking with a schoolyard specification in 

violation of R.C. 2925.03(A)(1) and 2925.01(P), a second-degree felony. Each count 

included forfeiture specifications. The remaining counts were dismissed. 

{¶3} The trial court1

 subsequently sentenced Mackey to six months incarceration 

on Count 1; twenty-four months each on Counts 3, 6, 12, and 15; and three years each on 

Counts 9 and 18.2

 The court ordered the sentences to be served concurrently. The court 

also sentenced Mackey to mandatory minimum fines of $7,500 on Counts 9 and 18, for a 

total of $15,000 in fines. 

 1

One judge took the plea; another judge sentenced Mackey. 

2

Although the trial court sentenced Mackey on Count 18, drug trafficking in violation of 

R.C. 2925.03(A)(1), a second-degree felony, the transcript of the plea colloquy reflects that the 

trial court, apparently inadvertently, did not ask Mackey for a plea on this count and thus no valid 

guilty plea was entered on Count 18. 
 II. Analysis 

{¶4} Mackey argues that the trial court did not comply with Crim.R. 11 when 

accepting his guilty pleas and, therefore, that his pleas should be vacated. Specifically, 

in his first assignment of error, he argues that the trial court did not advise him of the 

mandatory minimum fine relating to Counts 9 and 18. In his second assignment of error, 

he asserts that the multi-defendant plea hearing, at which the judge took pleas from 

Mackey and three codefendants, each with his own attorney, did not provide for a 

“meaningful dialogue” between him and the court sufficient to comply with Crim.R. 11. 

Mackey’s arguments are without merit. 

{¶5} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony matter, a 

trial court must personally address the defendant and (1) determine that the defendant is 

making the plea voluntarily, with an understanding of the nature of the charges, and the 

maximum penalty; (2) inform the defendant of and determine that the defendant 

understands the effect of the plea, and that the court may proceed with judgment after 

accepting the plea; and (3) inform the defendant and determine that the defendant 

understands that he is waiving his constitutional rights to a jury trial, to confront the 

witnesses against him, to call witnesses in his favor, and to require the state to prove his 

guilt beyond a reasonable doubt at a trial where the defendant cannot be forced to testify 

against himself. 

{¶6} A trial court must strictly comply with the dictates of Crim.R. 11(C)(2) 

regarding the waiver of constitutional rights, meaning the court must actually inform the 
defendant of the constitutional rights he is waiving and make sure the defendant 

understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 

621, ¶ 27. With respect to the other requirements of Crim.R. 11(C)(2) regarding 

nonconstitutional rights, reviewing courts consider whether the trial court substantially 

complied with Crim.R. 11(C)(2). Substantial compliance means that under the totality of 

the circumstances, the defendant subjectively understood the implications of his plea and 

the rights he was waiving. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 

(1990). 

{¶7} Mackey contends that the trial court never advised him at the plea colloquy 

of the mandatory fine, and that the judge only mentioned the fine in passing when she 

asked another defendant about his plea on a second-degree felony drug trafficking count, 

and the prosecutor interjected that “I was going to indicate to the court as relates to 

defendant Comb and defendant Mackey, those felonies of the second degree carry a 

mandatory minimum fine of $7,500, half of the $15,000.” The judge asked Comb if he 

understood and then stated, “It’s a mandatory $7,500 fine on Mr. Mackey, right?” 

Mackey contends that the judge never personally informed him of the potential 

mandatory fine. 

{¶8} The record, however, reflects that when the trial judge was explaining the 

possible penalties for each count to Mackey, she specifically told him that Count 9 was 

punishable by “anywhere from two to eight years in prison and a fine of up to $15,000.” 

When the judge asked Mackey if he understood, Mackey responded affirmatively. 
Similarly, with respect to Count 18, the trial judge told Mackey that Count 18 “carries a 

mandatory term of imprisonment of anywhere from two to eight years and a fine of up to 

$15,000.” When asked if he understood, Mackey responded, “I understand, your 

Honor.” Thus, although the judge did not tell Mackey that the mandatory minimum fine 

on each count was $7,500, she advised him, as required by Crim.R. 11(C)(2)(a), of “the 

maximum penalty involved” on each count. Although it may have been preferable for 

the judge to have advised Mackey of the mandatory minimum fine, nothing in Crim.R. 11 

requires the trial court to advise the defendant of the minimum sentence. State v. Miller, 

10th Dist. Franklin No. 96APA11-1615, 1997 Ohio App. LEXIS 2858 (June 30, 1997). 

In light of Mackey’s statements that he understood the trial court’s explanation of the 

maximum possible penalties associated with each count, we find substantial compliance. 

{¶9} Moreover, a defendant must show prejudice before a plea will be vacated 

for a trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects 

of the colloquy are at issue. Veney at ¶ 14-17. The test for prejudice is whether the plea 

would have otherwise been made. Id. at ¶ 15. 

{¶10} Mackey does not assert that he would not have pled guilty if the trial court 

had told him the mandatory minimum fine was $7,500. Instead, he argues that because 

the trial court allegedly did not explain the mandatory fine during the plea colloquy, he 

was not able to file an affidavit of indigency prior to sentencing to seek a waiver of the 

fine. 
{¶11} In State v. Gipson, 80 Ohio St.3d 626, 1998-Ohio-659, 687 N.E.2d 750, 

the Ohio Supreme Court found that 

R.C. 2929.18(B)(1) clearly requires that a sentencing court shall impose a 

mandatory fine upon an offender unless (1) the offender alleges in an 

affidavit filed with the court prior to sentencing that the offender is indigent 

and unable to pay the mandatory fine, and (2) the court determines that the 

offender is in fact an indigent person and is unable to pay the mandatory 

fine. 

Id. at 631. 

{¶12} The Gipson court further found that although the phrase “prior to 

sentencing” suggests that a defendant must file his affidavit prior to the sentencing 

hearing to invoke the statutory procedure for avoiding the mandatory fine, an affidavit of 

indigency may be properly filed with the clerk of court and time-stamped at any time 

prior to the filing of the trial court’s journal entry reflecting the sentencing decision. Id., 

paragraph one of the syllabus; see also State v. Shepard, 8th Dist. Cuyahoga No. 95433, 

2011-Ohio-2525, ¶ 8, citing Gipson. Thus, Mackey could have filed an affidavit of 

indigency after sentencing but prior to entry of the trial court’s sentencing judgment. 

{¶13} Mackey has not demonstrated that he was prejudiced by the trial court’s 

explanation of the fines, and has not presented any evidence nor made any argument that 

he would not have entered his plea if the trial court had explained that there was a 

mandatory minimum fine of $7,500 on Counts 9 and 18. In fact, neither Mackey nor his 

counsel raised any objection at the plea colloquy or sentencing to the imposition of the 

fines. Without any evidence that the plea would not have otherwise been made, Mackey 
has not met his burden of showing prejudice that would necessitate vacating his plea. 

State v. Allen, 8th Dist. Cuyahoga No. 93488, 2010-Ohio-3718, ¶ 11. 

{¶14} With respect to Mackey’s assertion that the multi-defendant plea colloquy in 

this case violated Crim.R. 11 because it did not provide an opportunity for a meaningful 

dialogue between him and the trial court, we note that multi-defendant plea colloquies are 

rife with opportunity for error. Nevertheless, our review of the record demonstrates that 

prior to accepting a plea from Mackey and the other defendants, the trial court carefully 

ensured that each defendant understood the constitutional rights he or she was waiving, as 

well as the charges against him or her and the possible penalties associated with the 

charges, and that each defendant was making the plea voluntarily. Specifically with 

regard to Mackey, we find nothing that would indicate that his plea was not made 

knowingly, voluntarily, and intelligently. The first and second assignments of error are 

therefore overruled. 

{¶15} We must reverse the trial court’s sentencing judgment with respect to 

Count 18, however, because the record reflects that the trial judge never took a plea from 

Mackey on this count. Accordingly, the judgment is affirmed in part, reversed in part, 

and remanded for a plea hearing on Count 18. 

{¶16} Affirmed in part; reversed in part and remanded. 

It is ordered that the parties share equally costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, JUDGE 

EILEEN T. GALLAGHER, J., CONCURS; 

MELODY J. STEWART, A.J., CONCURS IN JUDGMENT ONLY