[Cite as State v. McPhillips , 2020-Ohio-4641.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NO. 2020-L-015 - vs - : THOMAS P. MCPHILLIPS, III, : Defendant-Appellant. :

Criminal Appeal from the Willou g hb y Municipal Cour t, Case No. 2019 TRC 02839.

Jud g ment: Reversed and remanded.

Todd D. Cipollo , Willoughby Hills Prosecutor, 6685 Beta Drive, Willoughby Hill s, OH 44143 ( For Plaintiff-Appellee )

. Hector G. Martinez, Jr. and Leslie S. Johns , 4230 State Route 306, Suite 240, Willou g hb y , OH 44094 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, Thomas P. McPhillips, III, appeals from th e Judgment Entry of the Willoughby Municipal Court, denying his motion to withdraw his guilty plea. For the following reasons, we reverse the decision of the court below and remand for further proceedings consistent with this opinion. {¶2} On May 27, 2019, McPhillips was issued a ticket, charging him w ith Driving While Under the Influence of Alcohol, a misdemeanor of the firs t degree, in violation of R.C. 4511.19(A)(1)(a); an Occupant Restraining Devices violatio n, a minor misdemeanor,2 in violation of R.C. 4513.263(B)(1); and Failure to Obey a Traf fic Control Device, a minor misdemeanor, in violation of R.C. 4511.12. {¶3} On July 31, 2019, the prosecutor moved to amend the OVI charge to Having Physical Control of a Motor Vehicle While Under the Influence, a misdemeanor of the first degree, in violation of R.C. 4511.194. On that date, a change of plea hearing was held. After the parties provided consent for the magistrate to hear t he matter, the magistrate inquired whether McPhillips objected to the amendment of the ch arge, to which he responded he did not. After McPhillips stated his plea was “no contest,” the magistrate explained that, since there was not an accident, “we expect a g uilty plea then.” Defense counsel stated “we’ll change our plea to guilty then. * * * T ell him that.” McPhillips then stated, “Okay. Guilty.” The magistrate accepted the plea to P hysical Control and the other charges were dismissed. McPhillips was ordered to pay a $475 fine and sentenced to 90 days in jail with 87 days suspended. A Judgment Entry wa s filed memorializing the foregoing conviction and sentence, which stated, in typed langu age, “Defendant appeared. Constitutional rights and pleas explained,” and cont ained the plea and statute in handwriting. The sentence was subsequently stayed pending a ppeal. {¶4} On September 17, 2019, McPhillips filed a Motion to Withdraw Pl ea/Vacate Conviction. He argued that trial counsel was not competent and misrepresented the severity of the charge and he was not advised of the effects of his guilty plea. {¶5} At the hearing on the motion, McPhillips testified that, prior to the plea hearing, he spoke with his counsel, who advised “we can win thi s case.” Counsel advised him that he would “pay a little fine, like a minor traffic tick et, and then it’ll end.” He asked counsel if the Physical Control would “come off of his record” and counsel indicated, “Yes,3 it’ll come off automatically,” which is why McPhillips did not go to trial. He testified he was not advised by counsel that it was a first degree misdemeanor, of possible maximum penalties, or of the difference between a no contest and guilty plea. He further testified that he did not recall the magistrate discussing the level of t he offense, potential penalties, rights waived, or the effect of the plea. The court indicated that it had reviewed the recording of the plea hearing and “there’s a gap in the recordi ng” with several minutes not

accounted for. {¶6} On January 10, 2020, the trial court issued a Judgment Entry de nying the Motion to Withdraw, finding that no manifest injustice had occu rred. {¶7} McPhillips timely appeals and raises the following assignment o f error: {¶8} “The trial court erred when it denied appellant’s motion to wit hdraw plea and

vacate conviction.” {¶9} In his sole assignment of error, McPhillips argues the trial co urt’s decision should be reversed as a manifest injustice occurred. He conten ds that counsel was ineffective by failing to advise him of penalties and provide h im with video evidence, and by misleading him about the impact of pleading guilty. He furt her argues he should have been permitted to withdraw his plea since the record did not in dicate he was properly advised of the effect of his guilty plea. {¶10} Criminal Rule 32.1 provides that “to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit th e defendant to withdraw his or her plea.” “A defendant who seeks to withdr aw a plea of guilty after the imposition of sentence has the burden of establishing the exist ence of manifest injustice.” State v. Smith , 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of4 the syllabus. “This term has been variously defined, but it is clear that under such standard, a postsentence withdrawal motion is allowable only in extraordinary

cases.” Id. at 264; State v. Straley , 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, ¶ 14 (“[a] ‘manifest injustice’ is a ‘clear or openly unjust ac t’”) (citation omitted). {¶11} “A motion made pursuant to Crim.R. 32.1 is addressed to the sou nd discretion of the trial court, and the good faith, credibility and weight of the movant’s assertions in support of the motion are matters to be resolved by that court.” Smith at paragraph two of the syllabus. {¶12} There are two arguments presented in support of a finding that withdrawal of the plea should have been permitted in this case. First, Mc Phillips contends that counsel was ineffective in representing him in the entry of his guilty plea. {¶13} This court has stated that, “[i]n the context of a guilty plea, the standard of review for ineffective assistance of counsel is whether: (1) co unsel’s performance was deficient; and (2) the defendant was prejudiced by the deficien t performance in that there is a reasonable probability that, but for counsel’s error, the defendant would not have pled guilty.” State v. Hess , 11th Dist. Portage No. 2018-P-0106, 2019-Ohio-4223, ¶ 46, cit ing

State v. DelManzo , 11th Dist. Lake No. 2009-L-167, 2010-Ohio-3555, ¶ 33. Howeve r, “[t]he mere fact that, if not for the alleged ineffective assis tance of counsel, the defendant would not have entered a guilty plea is not sufficient to establish the requisite connection between the guilty plea and the ineffective assistance.” (Empha sis sic.) (Citation omitted.) DelManzo at ¶ 34. “Rather, ineffective assistance of trial counsel is f ound to have affected the validity of a guilty plea when it precluded a defendant from entering his plea knowingly and voluntarily.” (Citation omitted.) Id. “The burden of proving ineffective5 assistance of counsel falls upon the defendant.” Hess at ¶ 46. {¶14} McPhillips argues that his counsel’s performance was deficient in that he was informed by counsel that it was a minor offense, like a tra ffic ticket, was not told of potential penalties, he was advised the offense would “automati cally” come off of his record, he was not counseled as to the difference between a gui lty and no contest plea, and he did not review evidence with counsel prior to entering a plea. {¶15} As to this contention, McPhillips testified at the motion heari ng that the foregoing ineffective representation occurred. The prosecution did not present any testimony or evidence to the contrary and defense counsel did n ot testify or otherwise indicate that McPhillips’ testimony was inaccurate. While we r ecognize that credibility of witnesses is for the trial court to determine, the entirety of the record before the trial court tends to buttress McPhillips’ version of events. {¶16} Particularly concerning and evident from the face of the record was the manner in which McPhillips entered his plea. When the court ad vised that it would only accept a guilty plea, rather than a no contest plea, the record demonstrates no discussion between the court or defense counsel and McPhillips regarding t he difference between these two types of pleas. Instead, defense counsel immediately instructed McPhillips, without consultation, to enter a no contest plea, stating, “You r honor, we’ll change our plea to guilty then. * * * Tell him that.” This lack of comm unication and adequate explanation of an important legal distinction tends to buttress McPhillips’ statements that his representation negatively impacted the voluntary nature of his plea. This supports his claims that he spoke with counsel only minutes before entering his plea and counsel was

almost dismissive of the seriousness of the offense and its con sequences. These6 circumstances, combined with the lack of anything else in the r ecord to show counsel’s effective representation of McPhillips, raise serious concerns about the voluntary nature of McPhillips’ plea. See State v. Powell , 188 Ohio App.3d 232 , 2010-Ohio -3247, 935 N.E.2d 85, ¶ 58 (2d Dist.) (vacating defendant’s plea where, in ter alia, “the record [was]

unrebutted” that counsel for def endant was ill-prepared and mis advised him). The record does not demonstrate that the trial court inquired whether McPh illips was satisfied with his counsel, understood the nature of the proceedings, or inclu de any documentation to contradict the defendant’s arguments that he was improperly adv ised by counsel. {¶17} Also worth noting is that defense counsel stated at the plea he aring he had reviewed the video of the offense with the prosecutor and the H GN test was “done wrong” and McPhillips appeared sober. Under these circumstances, and given that McPhillips stated he had been advised by counsel he had done “an excellent job on the field sobriety testing,” it does seem to furt her corroborate McPhillips’ versi on that he believed he was pleading to a minor offense with a minimal penalty like a traff ic ticket given that counsel recognized the evidence did not tend to show that he was under the influence of alcohol, which is necessary for either an OVI or physical control convic tion. {¶18} The foregoing must also be considered in conjunction with McPhi llips’ argument that he entered his plea without being properly advise d of the effect of such plea pursuant to Crim.R. 11. It has been held that, in evaluat ing the totality of the circumstances surrounding a guilty plea to determine manifest i njustice, the court’s compliance with Crim.R. 11 is a necessary consideration. State v. Austin , 11th Dist. Trumbull No. 2018-T-0058, 2019-Ohio-3060, ¶ 19. {¶19} A Physical Control violation is a “petty offense” since it is n ot punishable by7 more than six months of confinement. Crim.R. 2(C) and (D); R.C . 2929.24(A)(1);

Cleveland v. Jones-McFarlane , 8th Dist. Cuyahoga No. 108581, 2020-Ohio-3662, ¶ 16. In the case of such an offense, the trial court is required, pu rsuant to Crim.R. 11(E), to inform the defendant of the “effect of his plea.” State v. Jones , 116 Ohio St.3d 211, 2007- Ohio-6093, 877 N.E.2d 677, ¶ 14; Crim.R. 11(E) (“[i]n misdemean or cases involving petty offenses[,] the court may refuse to accept a plea of guilty or no contest, and shall not accept such a plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty”). “[T]o satisfy the requir ement of informing a defendant of the effect of a plea, a trial court must inform the defendan t of the appropriate language under Crim.R. 11(B),” which, in the present case would have bee n to inform McPhillips “that a plea of guilty is a complete admission of guilt.” Jones at ¶ 25; Crim.R. 11(B)(1). {¶20} Here, the record does not demonstrate that McPhillips was advis ed by the court of the effect of entering a guilty plea, nor does it reve al any discussion of other considerations such as potential penalties or rights being waiv ed that would aid in demonstrating McPhillips understood the plea being entered and the consequences or effect of the plea. There are no documents in the record signe d by McPhillips showing advisement of the effect of his plea. {¶21} A plea has been found to be properly vacated in the context of a motion to withdraw where a defendant was not properly advised of the effe ct of his plea. Brecksville

v. Grabowski , 2017-Ohio-7885, 98 N.E.3d 919, ¶ 13-15 (8th Dist.) (a defenda nt’s motion to withdraw his guilty plea must be granted where a trial court failed to make any mention of the language of Crim.R. 11(B)(2) regarding the effect of the defendant’s plea). It has been held that, where there is partial compliance with Crim.R. 11, a plea may be vacated8 only where prejudice is found; in contrast, where there is no c ompliance, the plea must be vacated regardless of prejudice. State v. Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio 2345, ¶ 13, citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. Here, there is nothing to indicate any compl iance with Crim.R. 11(E). Further, it appears evident that a complete lack of advisements demonstrated in the record regarding the effect of one’s guilty plea could impact i ts voluntariness and whether there was a manifest injustice in entering the plea. {¶22} In considering this issue, the trial court noted that, although the transcript showed no advisements under Crim. R. 11, including the effect o f the plea, there was a “gap” in the recording “during the first two minutes of the hea ring” and the court typically follows the plea colloquy procedures strictly. Thus, it appear s the court determined that, regardless of what was present i n the record and McPhillips’ la ck of recollection of being advised of the effect of his plea, advisements were given as re quired. {¶23} Where a transcript is unavailable, the appellant is obligated t o provide a narrative statement of the evidence or agreed statement of the record pursuant to App.R. 9(C) and (D). State v. Liddy , 11th Dist. Lake No. 2006-L-083, 2007-Ohio-5225, ¶ 24. Here, however, there is not a missing or unavailable transcript , as McPhillips submitted a transcript of the proceedings. In fact, appellate counsel even went so far as having the hearing prior to McPhillips’ plea transcribed in an attempt to demonstrate what occurred and whether anything was missing from the transcript. McPhilli ps does not allege that anything additional should be added to the transcript that is m issing such that it could be included in a narrative or agreed statement. McPhillips has do ne all that he could to try to demonstrate whether he was properly advised by the trial cou rt.9 {¶24} It is of note that the plea hearing, as transcribed, begins wit h the court inquiring whether the parties consented to a magistrate hearing the case, which would appear to be a statement that would be made at the beginning of proceedings, bringing into question whether any prior portion of the proceedings had been conducted. Further, McPhillips attempted to plead no contest and the court then inf ormed him he would need to plead guilty. This appears to be the first time the issue o f whether a no contest or guilty plea would be entered was raised and again brings into question when the effect of the plea would have been discussed and whether it occurred at all. The discussion surrounding the entry of the plea does not appear to have a gap as the statements logically flow from one to the next. We find it improper to si mply presume that the required Crim.R. 11 advisement was given in the absence of any evidence and under the facts of

this case. See Twinsburg v. Milano , 2018-Ohio-1367, 110 N.E.3d 781, ¶ 12-16 (9th Dist.) (where the defendant presented a partial transcript due to defe cts in the recording, it did not reflect she was advised of the effect of her guilty plea an d she stated she was not advised of such effect, although the trial court stated it reca lled the proper colloquy was given, the court found the defendant’s motion to withdraw her p lea should have been granted). {¶25} Upon consideration of the entirety of the circumstances, while recognizing our deferential standard of review, we find the record demonstr ates an abuse of discretion in the trial court’s determination that no manifest injustice o ccurred warranting withdrawal of McPhillips’ guilty plea. The court’s judgment denying the m otion to withdraw the plea

is reversed and this case is remanded with instructions to vaca te McPhillips’ plea. {¶26} The sole assignment of error is with merit.10 {¶27} For the foregoing reasons, the judgment of the Willoughby Munic ipal Court, denying McPhillips’ motion to withdraw his guilty plea, is reve rsed and this matter is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.

TIMOTHY P. CANNON, P.J., THOMAS R. WRIGHT, J.,

concur.