[Cite as State v. Gonzalez , 2019-Ohio-4882.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. CARLOS A. GONZALEZ Appellant C.A. No. 29018

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2017-03-0831

DECISION AND JOURNAL ENTRY Dated: November 27, 2019

TEODOSIO, Presiding Judge. {¶1} Appellant, Carlos A. Gonzalez, appeals from the judgment of the Summit County

Court of Common Pleas. This Court reverses and remands.

I. {¶2} Mr. Gonzalez pled guilty to: (1) having weapons while under dis ability, a felony of the third degree; (2) trafficking in cocaine, a felony of th e fifth degree, with a forfeiture specification; and (3) failure to comply with an order or signa l of a police officer (“failure to comply”), a felony of the third degree. The remaining counts i n the indictment were dismissed. The trial court sentenced Mr. Gonzalez to three years in prison for having weapons while under disability, to be served concurrently with one year in prison f or trafficking in cocaine. The court further sentenced him to three years in prison for failure to c omply, to be served consecutively.

The court then ordered Mr. Gonzalez’s sentence to be served con currently with the sentence2

imposed in a separate case, for a grand total of six years in p rison. $417.00 was ordered

forfeited. {¶3} Mr. Gonzalez now appeals from the trial court’s judgment and ra ises one assignment of error for this Court’s review.

II.

ASSIGNMENT OF ERROR

BECAUSE THE TRIAL COURT JUDGE DID NOT ADVISE THE DEFENDANT THAT ANY PRISON SENTENCE IMPOSED FOR A VIOLATION OF R.C. 2921.331 MUST BE SERVED CONSECUTIVELY, CARLOS GONZALEZ’S GUILTY PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY. {¶4} In his sole assignment of error, Mr. Gonzalez argues that his g uilty plea for failure to comply was not knowingly, intelligently, and voluntarily mad e because the trial court failed to substantially comply with Crim.R. 11 and notify him that any pr ison sentence imposed must be run consecutively to any other prison sentence imposed. We agr ee. {¶5} “A plea is invalid where it has not been entered in a knowing, intelligent, and voluntary manner.” State v. Farnsworth , 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 4. “Crim.R. 11(C) prohibits a trial judge from accepting a g uilty plea without first ensuring that the defendant is fully informed regarding his rights and t hat he understands the consequences of his plea.” Id. Pursuant to Crim.R. 11(C)(2)(a), a trial court shall not acce pt a guilty plea to a felony offense without first addressing the de fendant personally and “[d]etermining that the defenda nt is making the plea voluntaril y, with understanding of the nature of the charges and of the maximum penalty involved * * * .” Although trial courts are usually not required to advise defendants at the time of their plea that consecutive sentences may be imposed, “[w]hen a statute requires that sentences be served consecutively, the consecutive3

nature ‘directly affects the leng th of the sentence, thus becom ing a crucial component of what

constitutes the “maximum” sentence.’” State v. Bailey , 9th Dist. Summit Nos. 28003, 28004, and 28005, 2016-Ohio-4937, ¶ 11-13, quoting State v. Norman , 8th Dist. Cuyahoga, No. 91302, 2009-Ohio-4044, ¶ 7. See also State v. Ricks , 53 Ohio App.2d 244, 246-247 (9th Dist.1977) (“Such an understanding should include information as to whethe r defendant is eligible for consecutive or concurrent sentences.”). “In that situation, th e trial court must inform the defendant of the consecutive nature of the sentence, as it is p art of the maximum penalty.” Bailey at ¶ 13. {¶6} The Supreme Court of Ohio has urged trial courts to comply lite rally with Crim.R. 11 in order to avoid committing error. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio3748, ¶ 29. “If a trial court fails to literally comply with C rim.R. 11, reviewing courts must engage in a multitiered analysis to determine whether the trial judge failed to explain the

defendant’s constitutional or nonconstitutional rights and, if there was a failure, to determine the significance of the failure and the appropriate remedy.” Id. at ¶ 30. Crim.R. 11(C)(2)(a) addresses nonconstitutional rights, and trial courts must subst antially comply with the Crim.R. 11 notification requirements for nonconstitutional rights. Farnsworth at ¶ 5; Clark at ¶ 31-32. To substantially comply with Crim.R. 11, “a slight deviation fr om the text of the rule is permissible; so long as the tota lity of the circumstances indic ates that ‘the defendant subjectively understands the implications of his plea and the rights he is w aiving[.]’” Clark at ¶ 31, quoting

State v. Nero , 56 Ohio St.3d 106, 108 (1990). If substantial compliance is not achieved, a reviewing court must determine if the trial court partially com plied or failed to comply with the

rule. Id. at ¶ 32. A trial court’s complete failure to comply with Crim .R. 11 requires the plea to be vacated, but if the court partially complied with the rule t he defendant must demonstrate4

prejudice for the plea to be vacated. Id. “The test for prejudice is ‘w hether the plea would have

otherwise been made.’” Id ., quoting Nero at 108. {¶7} Mr. Gonzalez pled guilty to several charges, including failure to comply with an order or signal of a police officer, a felony of the third degr ee, and was sentenced to prison. See R.C. 2921.331(B) and (C)(5). Pursuant to R.C. 2921.331(D), if sentenced to prison for this violation, “the offender shall se rve the prison term consecutiv ely to any other prison term or mandatory prison term impos ed upon the offender.” {¶8} The right to be informed of the maximum penalty for a crime is a nonconstitutional right, so a review of the plea hearing transc ript is necessary to determine whether there was substantial compliance with Crim.R. 11. Bailey at ¶ 14. During Mr. Gonzalez’s plea hearing, the prosecutor explained the plea agre ement reached by the parties and stated she would “cap” her sentence recommendation for all case s at seven years in prison. During the plea colloquy, the t rial court individually explaine d the charges Mr. Gonzalez would be pleading guilty to, and explained the maximum penalties for each. The court asked if he understood each charge and each maximum penalty, and Mr. Gonzal ez affirmed that he did understand the court’s explana tions for each offense. The cour t did not, however, ask whether Mr. Gonzalez understood that, if he was sentenced to prison, hi s sentence for failure to comply would be run consecutively to any other prison term imposed, in accordance with R.C. 2921.331(D). See Bailey at ¶ 15. After the court accepted his guilty pleas and found him guilty, Mr. Gonzalez and his attorney interrupted the court while it wa s ordering a pre-sentence investigation report: THE DEFENDANT: I’m sorry, Judge, I don’t mean to interrupt you. We have like a - - (Discussion held between Mr . Reed and the defendant)5

MR. REED: I believe it’s a 9- t o 36-month sentence, so the judg e can fashion a - - the concern was it’s mandatory consecutive on the willful fleei ng. And I know we haven’t gotten to sentencing, but whether we do t hree, four, five, six, or up to seven, his concern was judicial release eligibili ty with a consecutive sentence. But it doesn’t have to be three years. It could be nine months, because we have other charges that you could fashion in some manner to get to whatever number of years you’ll eventually impose. MS. MISRA: It’s also not mandatory time; it’s just mandatory co nsecutive. So if he fashions something less than - - MR. REED: Yeah, he could - - (Discussion held between Mr . Reed and the defendant) MR. REED: He can give you nine m onths consecutive to some other number on the other charges. So we’ll be able to work around that. THE DEFENDANT: Earlier you spoke about this and said it was goi ng to be a misdemeanor. That’s why - - MS. MISRA: No, that was not - - MR. REED: No, they didn’t agree to that. MS. MISRA: I didn’t agree to tha t. That was way, way earlier. THE DEFENDANT: I was just a little bit - - a little confused on that, and I just wanted to be clear. {¶9} The State argues that it is therefore “clear” from the record t hat Mr. Gonzalez was aware he faced a maximum three-year prison term for failure to comply, which would run consecutive to any other sentence if prison was imposed. Yet, the above exchange only indicates, at best, the attorney s’ understanding of the mandato ry consecutive nature of Mr. Gonzalez’s sentence for failure to comply. In fact, Mr. Gonzal ez openly admitted his confusion on the record and indicated his belief that the failure to comp ly charge would be a misdemeanor offense. More importantly, stat ements from the prosecutor and defense counsel are not an6

adequate substitute for the trial judge’s obligation to address the defendant “personally” to

ensure that he understands the ma ximum penalty he is facing. See Bailey at ¶ 16, citing Crim.R. 11(C)(2)(a). See also State v. Anderson , 108 Ohio App.3d 5, 12 (9th Dist.1995) (determining a defendant’s receipt of information from attorneys does not obvi ate need for dialogue with the trial court). {¶10} The trial court here failed to p roperly ensure that Mr. Gonzale z understood that any prison sentence imposed for failure to comply would be run consecutively to any other prison sentence imposed, pursuant to R.C. 2921.331(D). See Bailey at ¶ 17. Because the court wholly neglected to inform Mr. Gonzalez of the mandatory consec utive nature of his sentence for failure to comply, the cour t not only failed to substantial ly comply with Crim.R. 11, it failed to partially comply with the rule as well, and no prejudice ana lysis is therefore required. See

Clark at ¶ 32. Accordingly, we must v acate Mr. Gonzalez’s plea for failure to comply and

remand the matter bac k to the trial court for further proceedin gs. See id. {¶11} Mr. Gonzalez’s sole assignment of error is sustained.

III. {¶12} Mr. Gonzalez’s sole assignment of error is sustained. The judg ment of the Summit County Court of Common Pleas is reversed and the cause i s remanded for further proceedings consistent with this opinion. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.7

We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

THOMAS A. TE ODOSIO FOR THE COURT

CARR, J. SCHAFER, J. CONCUR.

APPEARANCES: BARBARA J. ROGACHEFSKY, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.