[Cite as State v. Harris , 2021-Ohio-1431.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. DAREZ LEON HARRIS Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-29

Trial Court Case Nos. 2019-CR-817 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 23rd day of April, 2021.

. . . . . . . . . . . IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting A ttorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee MICHAEL PENTECOST, Atty. Reg. No. 0036803, 117 South Main Stree t, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Darez Leon Harris, appeals from his convic tion in the Clark County Court of Common Pleas after he pled guilty to one count of failure to comply with the order or signal of a police officer. In support of hi s appeal, Harris contends that the trial court erred by denying his post-sentence motion to wi thdraw his guilty plea without first holding an evidentiary hearing. Because the trial court’s decision denying Harris’s motion was based, in part, on the incorrect factual fi nding that Harris had been advised of the maximum possible penalty for his offense before entering his guilty plea, we find that the trial court abused its discretion in denying H arris’s motion. Also, because the record establishes that the trial court completely failed t o comply with Crim.R. 11(C)(2)(a) by not advising Harris of the maximum possible pena lty during its plea colloquy, Harris’s guilty plea was not knowingly, intelligently , and voluntarily entered and must therefore be vacated. The judgment denying Harris’s post- sentence motion to withdraw his guilty plea will be reversed, Harris’s guilty plea will be vacated, and the matter will be remanded to the trial court for further proceedi ngs.

Facts and Course of Proceedings {¶ 2} On December 16, 2019, a Clark County grand jury returned an ind ictment charging Harris with one count of failure to comply with the or der or signal of a police officer in violation of R.C. 2921.331(B)/(C)(5), a felony of th e third degree. The charge arose after law enforcement officers attempted to stop Harris’s vehicle in order to arrest Harris on an outstanding warrant. However, instead of complyin g with the officers’ order to turn off his vehicle, Harris fled from the officers at a hig h rate of speed. This resulted in a high-speed pursuit between Harris and the officers that al most caused an accident.-3- For safety reasons, the officers ultimately decided to terminat e their pursuit of Harris.

Harris was later arrested in Franklin County, Ohio. {¶ 3} On June 22, 2020, Harris entered a guilty plea to the charged o ffense. In exchange for his guilty plea, the State agreed to dismiss a fai lure to comply charge against Harris in an unrelated case—Clark C.P. No. 2019-CR-754. The pa rties made no agreement as to Harris’s sentence but did agree to have a prese ntence investigation conducted. After conducting a plea colloquy, the trial court a ccepted Harris’s guilty plea as being knowingly, intelligently, and voluntarily entered. Th e record of the plea hearing, however, indicates that the trial court failed to advise Harris of the maximum possible penalty he faced by entering a guilty plea. Nevertheless, upon accepting Harris’s plea, the trial court scheduled the matter for sentencing. {¶ 4} On July 17, 2020, the trial court held a sentencing hearing and sentenced Harris to 36 months in prison with 13 days of jail-time credit. The trial court also suspended Harris’s driving privileges for five years and ordere d Harris to pay court costs. Immediately after the trial court imposed its sentence, Harris orally moved the trial court to withdraw his guilty plea. After the following discussion wi th Harris, the trial court

denied Harris’s motion. DEFENDANT: I’m not understanding.

THE COURT: What’s not to understand? DEFENDANT: I feel like I didn’t really know what I was pleading to.

There was no substantial evidence. THE COURT: Okay. Well, you did know what you were pleading to because I went over [it] with you in quite detail.-4- DEFENDANT: And I want — THE COURT: Part of the agreement was the State was dismissing the other charge pending against you for failure to comply. DEFENDANT: I would like to withdraw my plea because I feel like there was no substantial evidence besides a cop saying he saw me. There were no cameras. There were no [sic] apprehension. There was no – I wasn’t arrested. I felt like I just agreed with the system to just get the case over, get on probation, get back to my

children. THE COURT: I see. You were not told that you were gonna get community control, were you? DEFENDANT: No, I was told it was an option. THE COURT: You were told what the possible maximum penalty would be. All the information you just stated to me you knew at the time of your plea. So it appears to the Court that all you’re doing is having a change of heart.

DEFENDANT: I’m not – THE COURT: Request for change of plea is denied. You want to proceed more formally, you’re certainly welcome to do

so. Sentencing Trans. (July 17, 2020), p. 17-18.-5- {¶ 5} Harris never filed a formal post-sentence motion to withdraw hi s guilty plea. Harris instead filed the instant appeal from his judgment of co nviction, raising one assignment of error for review.

Assignment of Error {¶ 6} Under his sole assignment of error, Harris contends that the tr ial court erred by denying his post-sentence motion to withdraw his guilty plea without first holding an evidentiary hearing. {¶ 7} As a preliminary matter, we note that the trial court’s decisio n denying Harris’s post-sentence motion to withdraw his guilty plea can b e challenged in this direct appeal because the trial court’s decision was an interlocutory order that merged into the final judgment of conviction filed by the trial court. See State v. Cochran , 2d Dist. Clark No. 09-CA-49, 2010-Ohio-2917, ¶ 13 (trial court’s oral decision overruling motion to withdraw guilty plea at a re-sentencing hearing was an interloc utory order that became final and appealable as a result of the final judgment of convi ction being rendered). See also USA Freight, L.L.C. v. CBS Outdoor Group , Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 15. {¶ 8} “Under Crim.R. 32.1, a trial court may permit a defendant to wi thdraw a plea after imposition of sentence only to correct a manifest injusti ce.” (Citations omitted.) State v. Ray , 2d Dist. Champaign No. 2019-CA-31, 2020-Ohio-4769, ¶ 11. A d efendant may establish a manifest injustice “ ‘by showing that he did no t enter the guilty plea in a knowing, intelligent, or voluntary manner.’ ” State v. Leifheit , 2d Dist. Clark No. 2019- CA-78, 2020-Ohio-5106, ¶ 16, quoting State v. Riley , 4th Dist. Washington No. 16CA29,-6- 2017-Ohio-5819, ¶ 18. (Other citations omitted.) To ensure th at a defendant is entering a felony plea knowingly, intelligently, and voluntarily, the tr ial court must engage the defendant personally and explain the rights set forth in Crim.R . 11(C)(2) before accepting the plea. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27. Crim.R. 11(C)(2)(a) specifically requires the trial court to ex plain, among other things, “the maximum penalty involved[.]” {¶ 9} “ ‘A hearing [on a post-sentence motion to withdraw a guilty pl ea] is required only if the facts alleged by the defendant, if accepted as true , would require the plea to

be withdrawn.’ ” State v. Hall , 2d Dist. Greene No. 2011-CA-32, 2012-Ohio-2539, ¶ 12, quoting State v. McComb , 2d Dist. Montgomery Nos. 22570, 22571, 2008-Ohio-295, ¶ 19. That is, “ ‘[t]he movant must establish a reasonable likelihood that withdrawal of his plea is necessary to correct a manifest injustice before a trial cou rt must hold a hearing on his

motion.’ ” Ray at ¶ 14, quoting State v. Stewart , 2d Dist. Greene No. 2003-CA-28, 2004- Ohio-3574, ¶ 6. “ ‘[N]o hearing is required on a post-sentence motion to withdraw a plea where the motion is supported only by the movant’s own self-ser ving affidavit, at least when the claim is not supported by the record.’ ” Id. {¶ 10} “We review a trial court’s decision on a post-sentence motion t o withdraw guilty plea and on a decision granting or denying a hearing on the motion for an abuse of

discretion.” State v. Ogletree , 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431, ¶ 11, citing Xenia v. Jones , 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. Most

instances of abuse of discretion occur when a trial court makes a decision that is

unreasonable. AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision i s unreasonable if-7- there is no sound reasoning process that would support that dec ision.” Id . “A court’s reasoning process is not ‘sound,’ and is therefore unreasonable , when it relies on incorrect facts.” (Citations omitted.) Pieczonka v. Pieczonka , 1st Dist. Hamilton No. C170173, 2017-Ohio-8899, ¶ 8. Therefore, “[a]n abuse of discret ion may be found when the trial court ‘* * * relies on clearly erroneous findings of fact.’ ” State v. Johnson , 8th Dist. Cuyahoga No. 107617, 2019-Ohio-2332, 138 N.E.3d 560, ¶ 12 , quoting Thomas v.

Cleveland , 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8t h Dist.); State v. Selvaggio , 11th Dist. Lake No. 2017-L-128, 2018-Ohio-3532, ¶ 12. {¶ 11} As noted above, in support of his oral motion to withdraw his g uilty plea, Harris generally claimed that he had not understood his plea. Harris also claimed that there had been no substantial evidence of his guilt, given that he was never arrested or video-recorded fleeing from the police. In denying the motion, the trial court found that Harris knew this information at the time of his plea, that the court went over the plea with Harris “in quite detail,” and that Harris was “told what the po ssible maximum penalty would be.” Sentencing Trans. (July 17, 2020), p. 17-18. However, th e record of the plea hearing establishes that the trial court did not advise Harris of the maximum possible penalty for his offense before Harris entered his guilty plea. That information was wholly omitted from the trial court’s plea colloquy. {¶ 12} But for the trial court’s erroneous finding as to the maximum p enalty advisement, we would have found it reasonable for the trial cou rt to deny Harris’s postsentence motion to withdraw his guilty plea without first holdi ng an evidentiary hearing. This is because Harris’s motion was based on a bare, general as sertion that he did not understand his plea. Furthermore, Harris’s claim that there wa s no substantial evidence-8- of his guilt was based on information known to Harris before he entered his plea; thus, Harris cannot reasonably contend that said information would ha ve caused him not to plead guilty. Therefore, the record indicates that Harris did not establish a reasonable likelihood that the withdrawal of his guilty plea was necessary to correct a manifest injustice. {¶ 13} Nevertheless, the record indicates that when ruling on Harris’s motion to withdraw his guilty plea, the trial court incorrectly found tha t it had advised Harris of the maximum possible penalty he could receive for his offense. The refore, because the trial court relied on that incorrect factual finding when ruling on t he motion, we find, for that reason alone, the trial court abused its discretion when it den ied Harris’s post-sentence motion to withdraw his guilty plea without a hearing. {¶ 14} At this juncture, we note that the only relief Harris seeks in his appeal is to have the judgment denying his motion to withdraw his guilty ple a reversed and the matter remanded for an evidentiary hearing. Although not explicitly a rgued on appeal, the validity of Harris’s guilty plea is an underlying issue that ne eds to be addressed under the

circumstances of this case. {¶ 15} “In order to satisfy the requirements of due process, a plea of guilty * * * must be knowing, intelligent, and voluntary, and the record mus t affirmatively

demonstrate” as much. State v. Chessman , 2d Dist. Greene No. 2003-CA-100, 2006- Ohio-835, ¶ 15, citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “In order for a plea to be given knowingly and volunta rily, the trial court must follow the mandates of Crim.R. 11(C).” State v. Brown , 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an ade quate record on review-9- by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understan dingly and voluntarily

made.’ ” State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone , 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975). {¶ 16} Generally speaking, “a defendant is not entitled to have his pl ea vacated unless he demonstrates he was prejudiced by a failure of the tr ial court to comply with the provisions of Crim.R. 11(C).” Id . at ¶ 16, citing State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). There are, however, two exceptions to t his rule. Id . at ¶ 14-16. {¶ 17} The first exception is that the trial court must comply strictl y with Crim.R. 11(C)(2)(c) as it pertains to the waiver of federal constitutio nal rights. Id. at ¶ 14. “When a trial court fails to explain the constitutional rights that a defendant waives by pleading guilty or no contest, we presume that the plea was entered invo luntarily and unknowingly, and no showing of prejudice is required.” Id ., citing Clark , 119 Ohio St.3d 239, 2008- Ohio-3748, 893 N.E.2d 462, at ¶ 31. {¶ 18} The second exception is that “a trial court’s complete failure to comply with a portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.” (Emphasis sic.) Id . at ¶ 15, citing State v. Sarkozy , 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. However, a defendant still must show pr ejudice if the trial court partially complied with Crim.R. 11(C) in regard to a non-consti tutional right. State v. Bishop , 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 19. {¶ 19} Pursuant to Crim.R.11(C)(2)(a), the trial court was required to personally

address Harris in order to ensure that Harris understood the ma ximum possible penalty he could receive before pleading guilty. This is a non-constit utional right; therefore, if the-10- trial court completely failed to comply with this rule, Harris’ s plea may be vacated without his showing any prejudice. {¶ 20} As previously discussed, the trial court did not advise Harris of the maximum possible penalty he faced during its plea colloquy. The trial court did, however, ensure that Harris reviewed and understood the written plea agreement, a form which set forth the maximum possible penalty that Harris faced. Some courts ha ve held that discussing a written plea form (which contains the maximum possible penalt y) at the plea hearing and ensuring that the defendant understands its contents amount s to substantial compliance with Crim.R. 11(C)(2)(a). See, e.g., State v. Dorsey, 6th Dist. Lucas No. L15-1174, 2016-Ohio-740, ¶ 11; State v. Williams , 10th Dist. Franklin No. 10AP-1135, 2011-Ohio-6231, ¶ 39-41. However, since the Supreme Court of O hio’s decision in Dangler , it has been held that simply ensuring that a defendant unders tands a written plea form is not a cure for the trial court’s complete failure to orally advise the defendant about the maximum possible penalty at the plea hearing. See State v. Rogers , 2020- Ohio-4102, 157 N.E.3d 142, ¶ 14-26 (12th Dist.). {¶ 21} In Rogers, the Twelfth District Court of Appeals reviewed whether there wa s a complete failure to comply with Crim.R. 11(C)(2)(a) under cir cumstances where the trial court failed to advise the defendant of a mandatory fine during the plea colloquy. The trial court, however, ensured that the defendant reviewed, sign ed, and understood the written plea agreement, which set forth the mandatory fine. Un der those circumstances, the Twelfth District explained that: Pursuant to Crim.R. 11(C)(2), a trial court’s determination tha t a defendant entering a guilty plea understands the maximum penalt y involved-11- must precede the court’s acceptance of the plea. This is accom plished by the trial court “addressing the defendant personally.” Neither post-colloquy events nor a plea form signed by a defendant are relevant in re viewing whether a trial court has complied with Crim.R. 11(C)(2). The trial court’s failure to advise Rogers of the mandatory fine during the plea colloquy does not comply with the requirement of Crim.R. 11(C)(2)(a) that a t rial court “first” determine a defendant’s understanding of the maximum pe nalty before accepting the plea. Neither does Rogers’ mere execution of the plea form satisfy the requirement of Crim.R. 11(C)(2)(a) that t he trial court “personally address” a defendant to determine that the plea is entered with an understanding of the maximum penalty involved. We note that Rogers and the state both discuss whether the tria l court substantially complied with Crim.R. 11(C)(2) during the p lea colloquy. In particular, the state cites a case for the proposition that a trial court’s acceptance of a guilty plea without advising the defendant that a fine could be imposed constitutes substantial compliance with Crim.R. 11(C )(2)(a) where the defendant signs a plea agreement before entering his guilty plea

that informs him of the fine. See State v. Mohr , 3d Dist. Van Wert No. 15- 98-05, 1999 WL 797048 (Sept. 16, 1999). This reflects the law that was applicable at the time the parties filed their briefs. However , a recent decision of the Ohio Supreme Court reveals that whether a trial court substantially complies with Crim.R. 11(C)(2) is no longer part of the analysis in reviewing a trial court’s plea colloquy. See [ State v. Dangler , 162 Ohio-12- St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286]. Rogers at ¶ 14-15. {¶ 22} Rogers then discussed what constituted a “complete failure to comply” with Crim.R. 11(C)(2)(a) and stated that: “[A] trial court’s total failure to inform a defendant of a dis tinct component of the maximum penalty during a plea colloquy constit utes a complete failure to comply with Crim.R. 11(C)(2)(a), thereby re quiring the vacation of the defendant’s guilty or no contest plea.” [ State v. Fabian , 12th Dist. Warren No. CA2019-10-119, 2020-Ohio-3926, ¶ 20]. “O r stated differently, a complete failure to comply with Crim.R. 11(C)(2) (a) involves a trial court’s complete omission in advising about a distinct co mponent of the maximum penalty. By contrast, a trial court’s mention of a com ponent of the maximum penalty during a plea colloquy, albeit incomplete o r perhaps inaccurate, does not constitute a complete failure to comply wi th Crim.R. 11(C)(2)(a).” Id

. Id. at ¶ 19. {¶ 23} In applying these principles, Rogers held that: The trial court did not simply misinform Rogers about the fine, such as the amount or whether it was mandatory or discretionary. Ra ther, the court made no mention of the fine during the plea colloquy. Co nsequently, the trial court’s total failure to inform Rogers of the mandato ry $7,500 fine, which was a part of the maximum penalty, before it accepted the guilty plea

constituted “a trial court’s complete failure to comply with a portion of-13- Crim.R. 11(C)” pursuant to the second exception to the prejudic e requirement. (Emphasis sic.) Sarkozy , 2008-Ohio-509 at ¶ 22, 117 Ohio St.3d 86, 881 N.E.2d 1224. Rogers, 2020-Ohio-4102, 157 N.E.3d 142, at ¶ 23. {¶ 24} In reference to the written plea form, Rogers further explained that: The record further suggests that Rogers was aware he faced a mandatory $7,500 fine based upon the plea form he signed which plainly indicated a mandatory fine of $7,500 on Count 2. However, whil e “[a] written acknowledgment of a guilty plea and a waiver of trial r ights executed by an accused can, in some circumstances, reconcile ambiguities in the oral colloquy that Crim.R. 11(C) prescribes, * * * the writing does not substitute for an oral exchange when it is wholly omitted.” State v. Dixon , 2d Dist. Clark No. 2001-CA-17, 2001 WL 1657836, *3 (Dec. 28, 2001). “Cr im.R. 11(C) requires that form of exchange to insure that the defenda nt makes a voluntary and intelligent decision whether to plead guilty.” Id . “This court examines compliance with Crim.R. 11 by examining the trial cour t's communication to the defendant, not the defendant’s subjective understanding of his rights.” State v. Gipson , 1st Dist. Hamilton No. C970891, 1998 WL 682153, *3 (Sept. 30, 1998). In light of all of the foregoing, we find that the trial court completely failed to comply with Crim.R. 11(C)(2)(a) and Rogers' guilty pl ea was not knowingly, intelligently, and voluntarily made.

Id. at ¶ 25-26.-14- {¶ 25} We note that Dixon , 2d Dist. Clark No. 2001-CA-17, 2001 WL 1657836,

involved the trial court’s failure to advise the defendant of o ne of the constitutional rights under Crim.R. 11(C)(2)(c). However the statement Rogers cited in Dixon is not limited to constitutional advisements, as Dixon stated the following: A written acknowledgment of a guilty plea and a waiver of trial rights executed by an accused can, in some circumstances, reconcile am biguities in the oral colloquy that Crim.R. 11(C) prescribes. However, t he writing does not substitute for an oral exchange when it is wholly omit ted. Crim.R. 11(C) requires that form of exchange to insure that the defenda nt makes a voluntary and intelligent decision whether to plead guilty. On appellate review, “the focus ... is whether the record shows that the tri al court referred to the right in a manner reasonably intelligible to that defend ant.” [ State v.

Ballard , 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph two of th e syllabus.]

Id. at *3. {¶ 26} Like the defendant in Rogers , Harris might have been aware of the maximum penalty he faced by virtue of reviewing the written ple a agreement. However, Rogers and Dixon both indicate that simply ensuring that a defendant understand s a written plea form is not a cure for the trial court’s complete failure to orally advise a defendant about the maximum possible penalty during the plea co lloquy. In so holding, we note that this case is distinguishable from this court’s rec ent decision in State v. Ebbing , 2d Dist. Montgomery No. 28823, 2021-Ohio-865, ¶ 20, wherein w e found partial compliance with Crim.R. 11(C)(2)(a) under circumstances where t he trial court advised-15- the defendant of the maximum possible penalty at the plea heari ng save for completely omitting the fact that the trial court could impose a discretio nary five-year license suspension, which the court ultimately never imposed. Unlike Ebbing , the trial court in this case completely failed to advise Harris about any aspect o f the maximum possible penalty he faced, i.e. that he could receive 36 months in priso n, a $1,000 fine and a threeyear license suspension. Therefore, because the trial court’s plea colloquy completely failed to comply with the maximum penalty portion of Crim.R. 11 (C)(2)(a), we find that no showing of prejudice is required to vacate Harris’s guilty plea

. {¶ 27} Harris’s sole assignment of error is sustained.

Conclusion {¶ 28} Having sustained Harris’s sole assignment of error, the trial c ourt’s judgment denying Harris’s post-sentence motion to withdraw his guilty plea is reversed, Harris’s guilty plea is vacated, and the matter is remanded to the trial court for further proceedings.

. . . . . . . . . . . TUCKER, P.J. and DONOVAN, J. concur. Copies to:

Ian Richardson Michael Pentecost Hon. Richard J. O’Neill