[Cite as State v. Hunt , 2021-Ohio-1440.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio Court of Appeals No. E-20-005 Appellee Trial Court No. 2014CR138

v. Victor O. Hunt aka Victor O. Brown DECISION AND JUDGMENT Appellant Decided: April 23, 2021

* * * * * Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appelle e. Brett A. Klimkowsky, for appellant.

* * * * * OSOWIK, J. {¶ 1} On April 9, 2014, the Sandusky County Grand Jury issued a four- count indictment against appellant, Victor O. Hunt aka Victor O. Brow n. These were separately enumerated and described as follows: Count 1: comp licity to commit aggravated possession of drugs, a first-degree felony, in viola tion of R.C. 2925.11(A) and2. 2925.11(C)(1)( e); Count 2: complicity to commit preparation o f drugs for sale, a firstdegree felony, in violation of R.C. 2925.03(A) (2) and 2925.03( C) (1)(f); Count 3: tampering with evidence, a third-degree felony, in violation of R.C. 2921.12(A)(1). The grand jury also charged appellant with a criminal forfeiture sp ecification as to Counts 1 and 2 as well as a major drug offender specification as to Coun ts 1 and 2. {¶ 2} On April 2, 2015, a plea agreement was reached with the prosecu tion. Pursuant to the terms of that agreement, appellant agreed to pl ead guilty to Count 1, complicity to commit aggravated possession of drugs, a first-de gree felony and serve three years of imprisonment. The agreement also called for a f orfeiture of $3,210 and the GMC Yukon vehicle. The prosecution would then dismiss Counts 2 and 3 as well as the major drug offender specification. {¶ 3} The trial court conducted a plea colloquy on that date, pursuan t to Crim.R. 11. Although appellant was to be sentenced on June 1, 2015, he failed to appear. Ultimately, appellant was apprehended. He appeared before the court for sentencing several years later on December 13, 2018. Ten days earlier, on December 3, 2018, through new counsel, appellant filed a motion to vacate his Apr il 2, 2015 guilty plea. The basis of the motion to withdraw was fourfold: the prosecut ion failed to respond to discovery requests in a timely manner; an allegation that there was a violation of professional rules of conduct when a codefendant was represente d by appellant’s former counsel; that counsel failed to request the identity of a confi dential informant; and that

Hunt was unaware of the maximum sentence that could have been i mposed.3. {¶ 4} None of appellant’s articulated reasons to vacate his plea invo lved a claim of an improper firearm disqualifying notification. {¶ 5} The docket of the trial court fails to reflect a ruling on appe llant’s motion to vacate. However, on April 29, 2019, a full and rather comprehe nsive hearing was held on appellant’s motion. Witnesses testified and were subject to cross-examination. At the conclusion of the hearing, the trial court indicated that the m otion was denied and articulated its reasoning. On that date, the trial court then proceeded to sentencing. Appellant was sentenced to five years in prison, given a $10,00 0 fine, a one-year driver’s license suspension and court costs. {¶ 6} Hunt timely filed an appeal from that judgment. He presents a single assignment of error:

1. THE TRIAL COURT ERRED BY ACCEPTING THE PLEA OF VICTOR HUNT (“APPELLANT”) WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY MADE IN LIGHT OF THE

TRIAL COURT MISLEADING APPELLANT DURING THE PLEA COLLOQUY AS TO THE RAMIFICATIONS OF APPELLANT’S

ACCEPTANCE OF THE PLEA BARGAIN OFFER IN RELATION TO

APPELLANT’S FUTURE FIREARM RIGHTS. {¶ 7} The underlying purpose of Crim.R. 11 is to ensure that certain information is conveyed to the defendant which would allow him to make a volun tary and intelligent decision regarding whether to plead guilty. State v. Ballard , 66 Ohio St.2d 473, 479-480,4. 423 N.E.2d 115 (1981). In determining whether the trial court has satisfied its duties under Crim.R. 11 in taking a plea, reviewing courts have distin guished constitutional and nonconstitutional rights. State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. With respect to constitutional rights, a tri al court must strictly comply with the dictates of Crim.R. 11(C). State v. Turski , 6th Dist. Lucas No. L-18-1217, 2019- Ohio-3604, ¶ 8, citing State v. Colbert , 71 Ohio App.3d 734, 737, 595 N.E.2d 401 (11th Dist.1991). {¶ 8} Crim.R. 11(C)(2)(c) requires that the defendant be advised of t he right to a jury trial, the right to confront one’s accusers, the privilege against compulsory selfincrimination, the right to compulsory process to obtain witnes ses, and the right to require the state to prove guilt beyond a reasonable doubt. Th e first three are the three constitutional rights originally identified in Boykin v. Alabama , 395 U.S. at 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. The Supreme Court of Ohio recognized not ification of the right of compulsory process to obtain witnesses as a fourth constitution al right in Ballard

. Veney ,

supra , at ¶ 19. {¶ 9} Appellant assigns no error to the manner in which he was advise d of his constitutional rights under Crim.R. 11(C)(2(c). {¶ 10} Hunt’s sole assignment of error relates to the trial court’s no tification to him that a firearm restriction would be imposed upon him as a r esult of his felony conviction. Specifically, during the plea colloquy, the trial court stated:5. You must understand, under federal law, individuals convicted o n the state level of felonies of the first, second, third, or fou rth degree, you’re under a disability. You’re not allowed to own or possess a fir earm or ammunition. If you do, the federal authorities, they could pro secute you, and you could be subject to many years in prison in their syste m. That applies even if you’ve had your civil rights restored. {¶ 11} We will note that under federal law, 18 U.S.C. Section 922(g)(1 ), it is unlawful for any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year, to possess any fire arm or ammunition. {¶ 12} However, pursuant to 18 U.S.C. Section 921(a)(20), “any convict ion * * * for which a person * * * has had civil rights restored shall no t be considered a conviction for purposes of this chapter.” United States v. Zeller , 334 Fed.Appx. 742, 744 (6th Cir.2009), citing United States v. Cassidy , 899 F.2d 543, 546 (6th Cir.1990). Thus, if state law has restored civil rights to a felon without expressl y limiting the felon’s firearms privileges, that felon is not subject to federal firearms disab ilities. Therefore, the trial court’s attempt at an advisement of the federal law was not acc urate. {¶ 13} Additionally, under the laws of the state of Ohio, appellant’s firearm rights are restricted as a result of Hunt’s conviction. More specific ally, R.C. 2923.13(A) states in pertinent part that, unless relieved from disability under o peration of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:6. (1) The person is a fugitive from justice. (2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence. (3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, adm inistration, distribution, or trafficking in any drug of abuse or has been a djudicated a delinquent child for the commission of an offense that, if comm itted by an adult, would have been a felony offense involving the illegal p ossession, use, sale, administration, distribution, or trafficking in any drug of abuse. {¶ 14} The April 30, 2019 judgment entry of sentencing has several rel evant boxes checked. Specifically, that “Defendant was advised at the time of the plea(s), under Federal law, State law that he/she can never lawfully possess a firearm or ammunition. Further, that if in possession of a firearm he/she could be sub ject to prosecution by those respective authorities.” {¶ 15} The record does reflect that during the April 2, 2015 plea coll oquy, the trial court did notify Hunt of firearm restrictions imposed upon him by state statute. Without specifically referencing R.C. 2923.13(A)(3), the court stated: COURT: Now, on the state level, individuals convicted of drug related offenses, same thing, disability. You can’t own or pos sess a firearm7. or ammunition. If you do, the State of Ohio could prosecute yo u for the offense of having a weapon while under a disability. That appl ies unless you’ve been relieved of that disability pursuant to law. Do yo u understand

the difference? Mr. HUNT: Yes, Your Honor. {¶ 16} In State v. Henderson , 6th Dist. Lucas No. L-14-1272, 2015-Ohio-4408, ¶ 23, we held that, after a review of Ohio statutory and case l aw, we could find no requirement that the court inform a convicted felon of his inab ility to possess firearms. We further observed that R.C. 2943.033, relating to misdemeanor domestic violence convictions, requires that a court inform a defendant that unde r 18 U.S.C. 922(g)(9) it may be unlawful for the individual to possess a firearm. Howev er, this section further provides that “[t]he plea may not be vacated based on a failure to inform * * *.” {¶ 17} Appellee concedes that the trial court’s attempt at its advisem ent to Hunt of the impact of his plea on his ability to possess a firearm or a mmunition was not substantially correct concerning the federal statute. {¶ 18} Nevertheless, we find appellant’s argument that his plea should be vacated lacks merit for two reasons. First, even if it could be argued that this advisement was a nonconstitutional or statutory right, it is incumbent upon appe llant to demonstrate the prejudicial impact on his ability to make a knowing, voluntary and intelligent plea to the charges. For nonconstitutional rights, the trial court must su bstantially comply, provided8. no prejudicial effect occurs before a guilty plea is accepted. State v. Stewart , 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). {¶ 19} Hunt has not made even a veiled attempt to show prejudicial imp act and

how the trial court’s advisement affected his decision to enter into his plea on April 2, 2015. Rather, his arguments are confined to the language of th e trial court in being “materially inaccurate.” Indeed, the applicable statutes conce rning firearm ownership subsequent to a felony conviction are, in fact, more forgiving and beneficial to appellant than the advisement given by the trial court. The deficiency i n the advisement is the failure to advise Hunt that he could, under certain circumstanc es, have his gun ownership rights restored. Despite the absence of any argument of prejud ice, it is difficult to imagine a scenario where such a defendant sustains any prejudic e for such a failure. State v. Ramey , 7th Dist. Mahoning No. 13MA 64, 2014-Ohio-2345, ¶ 19. {¶ 20} Second and finally, as we stated in in Henderson , we find no statutory or case law requirement that the court inform a convicted felon of his inability to possess firearms. A trial court is not required to go beyond the Crim. R. 11 notification requirements and a plea will not be rendered involuntary based upon such a

claim. Turski , 6th Dist. Lucas No. L-18-1217, 2019-Ohio-3604, supra , at ¶ 10, citing

State v. Goddard , 3d Dist. Wyandot No. 16-06-05, 2007-Ohio-1229, ¶ 14. For the forgoing reasons, we affirm the trial court’s decision to deny appellant’s motion to vacate and find no error by the trial court in the Cr im.R. 11 plea colloquy that9. would have rendered the plea involuntary. Appellant’s sole ass ignment of error is found

not well-taken. {¶ 21} Based on the foregoing, the judgment of the Erie County Court o f Common Pleas is affirmed. Appellant is ordered to pay the costs of th is appeal pursuant to App.R.

24. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.