[Cite as State v. Cliff , 2018-Ohio-1627.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106137

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. DAVONTAY CLIFF

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615803-A

BEFORE: E.T. Gallagher, P.J., Cele brezze, J., and Keough, J.

RELEASED AND JOURNALIZED: April 26, 2018ATTORNEY FOR APPELLANT

P. Andrew Baker 11510 Buckeye Road Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor

BY: Edward R. Fadel Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN T. GALLAGHER, P.J.: {¶1} Defendant-appellant, Davontay C liff, appeals from his conviction following a guilty plea. He raises the following assignment of error for review: 1. Appellant’s conviction mu st be reversed because his plea was not knowingly, intelligently, and voluntarily made. {¶2} After careful review of the record and relevant case law, we affirm Cliff’s

conviction. I. Procedural History {¶3} In March 2017, Cliff was named in a six- count indictment, charging him with attempted murder, kidnapping, two counts of felonious assault, and two counts of aggravated robbery. Each count contained one- a nd three-year firearm specifications.{¶4} In June 2017, Cliff pleaded guilty to a si ngle count of aggravated robbery in violation of R.C. 2911.01(A)(1), with a three-y ear firearm specification. The remaining counts were nolled. Following a Crim.R. 11 colloquy, the trial court accepted Cliff’s guilty plea and referred him to the county proba tion department for a presen tence investigation report. {¶5} At sentencing, the trial court imposed a four-year prison term on the aggravated robbery offense, to be served consecutively with the three-year firearm specification, for a total prison term of seven years. {¶6} Cliff now appeals from his conviction and sentence. II. Law and Analysis {¶7} In his sole assignment of error, Cli ff argues his guilty plea was not knowingly, intelligently, and voluntarily made. {¶8} When a defendant enters a plea in a criminal case, “the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United Stat es Constitution and the Ohio Constitution.” State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To ensure that a defendant enters a plea knowingly, voluntarily, and intelligen tly, a trial court must engage in an oral dialogue with the defendant in accordance with Crim.R. 11(C). Id . The underlying purpose of Crim.R. 11(C) is to conve y certain information to a defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty. State v. Schmick , 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, ¶ 5. {¶9} As relevant here, Crim.R. 11(C)(2)(a) provi des that, before a trial court may accept a guilty plea, the court must first address the defendant personally and determine:that the defendant is making the plea vol untarily, with understandi ng of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. {¶10} Thus, Crim.R. 11(C)(2)(a) requires the trial c ourt to ensure that, before a defendant pleads guilty to a felony, he or she understands (1 ) the nature of the charges; (2) the maximum penalty involved, and, if a pplicable; (3) that the defendant is not eligible for community control sanctions, i.e., pr ison is mandatory. {¶11} The reviewing court conducts a de novo review to determine whet her the trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell , 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. A trial court must stri ctly comply with the Crim.R. 11(C)(2) requirements regarding the waiver of constitutional rights, which means that the court must 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, ¶ 18. For nonconstitutional rights, such as the right to be informed of the ma ximum penalty involved and the mandatory nature of a prison sentence, substantial compliance with the rule is usually

sufficient. Id . at ¶ 14, citing State v. Stewart , 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977). {¶12} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.”

State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing Stewart at 92-93. “[A] slight deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicat es that ‘the defendant subjectively understands the implications of his plea and the rights he is waiving.’” State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31, quoting Nero at 108.{¶13} If an appellate court finds that a trial court did not substantially comply with a requirement of Crim.R. 11(C)(2 )(a), which governs the advise ment of nonconstitutional rights, the appellate court must make a further determination as to whether the trial court “partially complied” or “completely failed” to comply with the requirement. Clark at ¶ 32. If the trial court partially complied, the plea may be vacated only if the defendant demonstrates a prejudicial effect, i.e., “‘whether the plea woul d have otherwise been made.’” Id ., quoting Nero at 108. If, however, the trial court completely failed to comply, the plea must be vacated because “‘[a] complete failure to comply with the rule does not implicate an analysis of prejudice.’” Id ., quoting State v. Sarkozy , 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. {¶14} On appeal, Cliff does not dispute the validity of the trial court’s Crim.R. 11(C)(2)(a) advisement concerning the aggravated robbery offe nse. Instead, Cliff’s sole argument is that his plea was not knowingly made b ecause the trial court faile d to advise him that his firearm specification carried a mandatory prison term. {¶15} In State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619 (8th Dist.), this court held, in relevant part: [W]here a defendant faces a mandatory pris on sentence as a result of a guilty or no contest plea, the trial court must determine, prior to accepting a plea, that the defendant understands that he or she is subject to a mandatory prison sentence and that as a result of the mandatory prison sentence, he or she is not eligible for probation or community control sanctions.

Id . at ¶ 19. A trial court may meet this require ment by (1) expressly informing the defendant that he or she is subject to a mandatory prison sentence and theref ore does not qualify for community control sanctions, or (2) confirming the defendant’s subjective understanding of the mandatory nature of the prison term from the totality of the circumstances. Id. at ¶ 22.A firearm specification carries a mandatory additional term of imprisonment of one or three years and c onstitutes a portion of the ma ximum penalty involved in an offense for which a prison term will be imposed. See State v. Higgs , 123 Ohio App.3d 400, 408, 704 N.E.2d 308 (1997). Accordin gly, a trial court’s lack of notification regarding the additional mandatory time for a firearm specification could be a basis to vacate a plea, since the defendant has not been informed of the maximum penalty for which he is pleading guilty. The rationale behind such a mandate is that without an adequate explanation of the additional mandatory prison time from the trial court, a de fendant can not fully understand the consequence of his plea as required by Crim.R.11(C). State v. Douglas , 8th Dist. Cuyahoga No. 87952, 2007-Ohio-714, ¶ 10. {¶16} At the plea hearing in this case, the trial court explained to Cliff the implications of the attendant firearm specification, as follows:

TRIAL COURT: As now ch arged, as amended, [the aggravated robbery charge] is a felony in the first degree. Felony in the first degree means that there is a presumption of going to prison. A pres umption means in all probability you’re going to be going to prison. If you present evidence at the sentencing hearing * * * that convinces me that I should pl ace you on probation or community control sanctions, as it’s formally called, rather than send you to prison based on the presumption, if you present sufficient evid ence that convinces me otherwise, then I can place you on probation. Do you understand that? CLIFF: Yes, sir.

* * * TRIAL COURT: If you do not pres ent enough evidence to convince me otherwise, either by yourself or your attorney, then I will view that the presumption of going to prison applie s and sentence you to prison. Do you understand that? CLIFF: Yes, sir.

* * * TRIAL COURT: [H]ow do you plead to aggravated robbery, amended Count 4, with a three-year firearm specifica tion and dropping the one-year firearm specification? Before you answer that, let me explain to you one more thing. A three-year firearm specification means that you have to serve three years in prison before thesentence starts on the underlying case which in this situation is aggravated robbery. So when I said to you that y ou would spend three to 11 years in prison depending on what I would order for the aggravated robbery, that does not count into that number the firearm charge. (Emphasis added.) The tria l court then went on to explain to Cliff that if, for example, the court imposed a three-year sentence on the underlying a ggravated robbery offens e, Cliff would serve a total of six years in prison. Cliff stated that he understood. {¶17} After careful consideration, we find the to tality of the circumstances demonstrates that Cliff subjectively understood th e mandatory nature of the pris on sentence associated with the firearm specification. We agree that the trial c ourt did not expressly use the word “mandatory” while explaining the sentencing implications of the three-year firearm specification. However, the record reflects that the trial court went to great lengths to explain to Cliff that “three years in prison” on the firearm specification would “have” to be served before, a nd in addition to, “the sentence” imposed on the aggravated robbery offense. Contrary to Cliff’s assertion on appeal,

the trial court’s a dvisement on this issue was not ambiguous or confusing. Nor does the court’s advisement suggest that a prison term on the firearm specification was only mandatory if the court also imposed a prison term on the underlying offense. {¶18} Cliff actively participated in the trial c ourt’s colloquy and stated that he understood the trial court’s Crim.R. 11(C) advisements, including its explanation of the relevant firearm specification. Accordingly, we find the trial c ourt substantially complie d with the requirements of Crim.R. 11(C)(2)(a), and Cli ff has not demonstrated that he was prejudiced by the court’s failure to use the magic words “mandatory” or “ineligible for community control.” {¶19} Cliff’s sole assignment of error is overruled. {¶20} Judgment affirmed.It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable 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. The defendant's conviction havi ng been affirmed, any bail pending appeal is terminat ed. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and KATHLEEN ANN KEOUGH, J., CONCUR