[Cite as State v. Hughes, 2013-Ohio-1037.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98666

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JAMES E. HUGHES

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-557648 

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: March 21, 2013 
ATTORNEY FOR APPELLANT

Michael V. Heffernan 

75 Public Square 

Suite 700 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Brad S. Meyer 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} Appellant James Hughes (“Hughes”) appeals his petty theft conviction 

following a guilty plea. We find no merit to the appeal and affirm. 

{¶2} Hughes was charged with breaking and entering and petty theft. Pursuant to a 

plea agreement, Hughes pleaded guilty to petty theft, and the breaking and entering 

charge was nolled. 

{¶3} Shortly before reaching the plea agreement, when Hughes was contemplating 

representing himself at trial, the trial court explained to him on the record that if he 

pleaded guilty to petty theft, he “could not be sentenced to the institution.” The court 

further explained that he could still be subject to six months of local incarceration for the 

petty theft conviction. 

{¶4} Hughes pleaded guilty to petty theft, and the court sentenced him to six 

months in the Cuyahoga county jail. This appeal followed. 

{¶5} In his sole assignment of error, Hughes argues that he did not enter his plea 

knowingly, intelligently, and voluntarily and that the trial court failed to substantially 

comply with Crim.R. 11.1

{¶6} Although Crim.R. 11(E) governs a defendant’s rights when entering a plea to 

a petty offense, this court has held that the trial court must nevertheless advise the 

 1 Although Hughes did not file a motion to withdraw his guilty plea with the 

trial court, he “may dispute the knowing, intelligent, and voluntary nature of the 

plea either by filing a motion to withdraw the plea or upon direct appeal.” State v. 

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph one of the 

syllabus.
defendant of his constitutional rights under Civ.R. 11(C). Cleveland v. Wanzo, 129 Ohio 

App.3d 664, 718 N.E.2d 982 (8th Dist.1998). 

{¶7} 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. 

{¶8} A trial court must strictly comply with the mandates 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. Failure to fully advise a defendant of his Crim.R. 11(C)(2) rights renders a 

plea invalid. Id. at ¶ 29. 

{¶9} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not 

required and “substantial compliance” is sufficient. Veney at ¶ 14, citing State v. 

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977); State v. Clark, 119 Ohio St.3d 239, 

2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. “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). 

{¶10} If the trial judge partially complied with the rule with respect to 

nonconstitutional rights, the plea may be vacated only if the defendant demonstrates a 

prejudicial effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would 

have otherwise been made.’” Clark at ¶ 32, quoting Nero at 108. 

{¶11} Hughes contends that he did not enter his plea knowingly, voluntarily, or 

intelligently because the trial court failed to accurately inform him of the potential 

penalties he would face upon conviction. The right to be informed of the potential 

penalties prior to entering a plea is a nonconstitutional right. State v. Dunn, 8th Dist. No. 

93640, 2010-Ohio-5000, ¶ 8. Therefore, we review the plea proceedings to determine if 

the court substantially complied with the rule. Id.

{¶12} At the plea hearing, the court advised Hughes: 

THE COURT: It’s proposed you’re going to plead guilty to Count 2, petty 

theft, in violation of 2913.02, a misdemeanor of the first degree. That’s 

punishable by six months in a local facility, a thousand dollar fine or both. 

Do you understand that? 

THE DEFENDANT: Yes, your Honor. 

Although the court did not use the word “jail,” the phrase “six months in a local facility” 

obviously means a local institution such as the county jail. Moreover, Hughes indicated 

that he understood that he was subject to a possible six month jail term in addition to a 

$1000 fine. 
{¶13} Hughes was also awaiting sentencing on his felony convictions in three 

other cases. Although the trial court stated that he could not be sentenced to prison on 

his misdemeanor conviction in this case, it advised Hughes that he could be subject to 

prison sentences in the felony cases. The trial court informed Hughes that because 

misdemeanor and felony sentences run concurrently, he may serve his misdemeanor 

sentence in a state prison if he is sentenced to the penitentiary on the felony convictions. 

Thus, the court substantially complied with its obligation to inform Hughes of the 

potential penalties he could be subjected to as a result of his guilty plea. 

{¶14} Hughes also argues the trial court failed to substantially comply with 

Crim.R. 11(C) because it failed to advise him that he could plead no contest rather than 

guilty. However, Crim.R. 11(E) governs pleas for petty offenses. In State v. Jones, 116 

Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, the Ohio Supreme Court held that 

“[i]n accepting a plea to a misdemeanor involving a petty offense, a trial court is required 

to inform the defendant only of the effect of the specific plea being entered.” (Emphasis 

added.) Id. at paragraph one of the syllabus. The rule does not require the trial court to 

advise the defendant that he has the option of pleading no contest. Therefore, the 

court’s failure to provide such advice does not violate the rule. 

{¶15} We find the trial court substantially complied with its obligation to inform 

Hughes of the potential penalties he would face as a result of his guilty plea. And 

because the court was not required to provide advice about pleading no contest, we find 

that it complied with all applicable rules when it accepted Hughes’s guilty plea. 
Therefore, we find that Hughes entered his guilty plea knowingly, voluntarily, and 

intelligently. 

{¶16} The sole assignment of error is overruled. 

{¶17} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. 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 Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, J., CONCURS; 

SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY