[Cite as State v. Tutt, 2015-Ohio-5145.]

 Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 102687

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

RASHEED TUTT

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART; 

 REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-589749-E 

BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Stewart, J. 

RELEASED AND JOURNALIZED: December 10, 2015 

 
ATTORNEYS FOR APPELLANT

P. Andrew Baker 

17877 St. Clair Avenue, Suite 150 

Cleveland, Ohio 44110 

Steve W. Canfil 

55 Public Square, Suite 2100 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mark D. Bullard 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, P.J.: 

{¶1} Defendant-appellant Rasheed Tutt appeals his convictions after he pled no contest 

to multiple counts of drug trafficking, drug possession, possessing criminal tools, possessing a 

defaced firearm, receiving stolen property and tampering with evidence arising out of his role in 

a drug trafficking operation. Tutt’s convictions were based on evidence seized during a search 

of Tutt’s residence after Cleveland police made two successful “controlled buys” of heroin 

outside the residence. Tutt claims that his no contest pleas to two of the counts — Count 3, 

trafficking in violation of R.C. 2925.03(A)(2), and Count 4, drug possession in violation of R.C. 

2925.11(A) — were not knowingly, intelligently and voluntarily made and should be vacated 

because the trial court failed to inform him that these offenses carried mandatory prison 

sentences. He also contends that the trial court erred in denying his motion to suppress the 

evidence obtained during the search of his residence, claiming that there was no probable cause 

for the issuance of the search warrant. For the reasons that follow, we reverse Tutt’s 

convictions on Counts 3 and 4, affirm his remaining convictions and remand the case for further 

proceedings consistent with this opinion. 

{¶2} In March 2014, members of the Cleveland Police Department conducted two 

“controlled buys” of heroin outside Tutt’s residence at 10812 Amor Avenue in Cleveland. 

Based on the affidavit of Detective Robert Sauterer, which set forth facts relating to the 

“controlled buys” and additional information Detective Sauterer discovered during his follow-up 

investigation, Cleveland police obtained a search warrant to search Tutt’s residence. The search 

warrant authorized police to search the residence and its curtilage for: 

Heroin, other narcotic drugs and/or controlled substances, and/or counterfeit 

controlled substances; instruments and paraphernalia used in the taking of drugs 

and/or preparation of illegal drugs for sale, use, or shipment including but not 
limited to scales and grinders; home safes, records of illegal transactions, 

including but not limited to computers and computer files and discs; articles of 

personal property, papers and documents tending to establish the identity of the 

persons in control of the premises; any and all evidence of communications used 

in the furtherance of drug trafficking activity, including, but not limited to, pagers, 

cellular telephones, answering machines, and answering machine tapes; any and 

all other contraband, including but not limited to money and weapons being 

illegally possessed therein; any and all evidence pertaining to the violations of the 

drug laws of the State of Ohio, to wit: Sections 2925.03, 2925.11, and 2923.24 of 

the Ohio Revised Code.1

 

{¶3} The police executed the warrant that same day. Once inside the residence, they 

confiscated numerous items including several bags of heroin, crack cocaine and marijuana, a 

press, several scales and grinders with suspected drug residue and numerous cell phones, guns 

and ammunition. Tutt was subsequently indicted in Cuyahoga C.P. No. CR-14-583969-E for 

drug trafficking, drug possession, possessing criminal tools, possessing a defaced firearm, 

receiving stolen property and tampering with evidence. 

{¶4} On September 5, 2014, Tutt filed a motion to suppress the evidence seized during 

the search arguing that the underlying affidavit failed to demonstrate probable cause for the 

issuance of the search warrant. After hearing argument on the issue, the trial court denied the 

motion. 

{¶5} In October 2014, Tutt was re-indicted in Cuyahoga C.P. No. CR-14-589749-E and 

charged with the following offenses: 

Count One — Trafficking in violation of R.C. 2925.03(A)(2), a fourth-degree 

felony, with a one-year firearm specification and various forfeiture specifications. 

Count Two — Drug possession in violation of R.C. 2925.11(A), a fourth-degree 

felony, with a one-year firearm specification and various forfeiture specifications. 

 1

The search warrant also authorized the search of all persons located on the premises and all 

vehicles located on the premises. The search of those persons and vehicles is not at issue in this 

appeal. 
Count Three — Trafficking in violation of R.C. 2925.03(A)(2), a first-degree 

felony, with a one-year firearm specification and various forfeiture specifications. 

Count Four — Drug possession in violation of R.C. 2925.11(A), a first-degree 

felony, with a one-year firearm specification and various forfeiture specifications. 

Count Five — Trafficking in violation of R.C. 2925.03(A)(2), a fifth-degree 

felony, with a one-year firearm specification and various forfeiture specifications. 

Count Six — Possessing criminal tools in violation of R.C. 2923.24(A), a 

fifth-degree felony, with various forfeiture specifications. 

Count Seven — Possessing a defaced firearm in violation of R.C. 2923.201(A)(2), 

a first-degree misdemeanor, with a weapon forfeiture specification. 

Count Ten — Receiving stolen property in violation of R.C. 2913.51(A), a 

fourth-degree felony. 

Count Twelve — Tampering with evidence in violation of R.C. 2921.12(A)(1), a 

third-degree felony. 

Count Seventeen — Having weapons under disability in violation of R.C. 

2923.13(A)(2), a third-degree felony.2

 

{¶6} The state ultimately concluded that the having weapons while under disability 

charge (Count 17) was “not a proper charge” and agreed to dismiss it. On January 22, 2015, 

Tutt pled no contest to the remaining charges (Counts 1, 2, 3, 4, 5, 6, 7, 10 and 12). 

{¶7} At the plea hearing, the trial court first identified the counts to which Tutt would be 

pleading no contest and the classification of each offense. The trial court then reviewed the 

sentence ranges and maximum sentences applicable to each of the counts, including the 

associated firearm specifications, with Tutt, as follows: 

 2 The original indictment was filed in CR-14-583969-E. Nine other 

co-defendants were also charged in the indictment. After the matter was 

re-indicted as Case No. CR-14-589749-E, CR-14-583969-E was dismissed. 
THE COURT: Felonies of the first degree, as indicted in 589749, count 3, 

trafficking in drugs; count 4, possession of drugs. 

Felonies of the first degree carry anywhere from 3 to 11 years in prison in 

yearly increments and/or a fine up to $20,000. They have a 1-year firearm 

specification which must be served prior to and consecutive to the base charge of 

3 to 11. 

Felonies of the fourth degree carry anywhere from 6 to 18 months in 

prison in monthly increments and/or a fine of up to $5,000. 

A felony 5 carries anywhere from 6 to 12 months in prison in monthly 

increments and/or a fine of up to $2,500. 

A first-degree misdemeanor carries anywhere from up to 6 months in 

county jail and/or a fine of up to $1,000. 

Felony 3 carries anywhere from 9, 12, 18, 24, 30, or 36 months in prison 

and/or a fine of up to $10,000. 

Counts 1, 2, 3, 4, 5 all have firearm specifications which must be served 

prior to and consecutive to the base charges. 

{¶8} The trial court also advised Tutt regarding postrelease control and the property that 

he would be forfeiting as a result of his pleas: 

Felony 1s you have mandatory 5 years post-release control. Felony 3’s, 

4’s, and 5’s, discretionary period of 3 years post-release control. Post-release 

control could involve restrictions on your activities. If you violate those, you 

could be returned up to one half of your original sentence. * * * 

[Y]ou are going to forfeit cell phone, digital scales, guns * * *. You’re 

going to forfeit $526 in U.S. currency and miscellaneous items listed in the 

forfeiture specifications. 

{¶9} Upon inquiry by the trial court, Tutt indicated that he understood the potential 

penalties he faced as a result of his pleas. The trial court then proceeded to advise Tutt of his 

constitutional rights and confirmed that Tutt understood the rights he was giving up by entering 
his no contest pleas, that no threats or promises had been made to induce Tutt to enter his pleas 

and that he was satisfied with his counsel. After Tutt entered his no contest pleas, the state 

offered three exhibits into evidence — the inventory of the items that were seized during the 

execution of the search warrant at Tutt’s residence, a lab report setting forth the results of DNA 

testing performed on some of the seized items and a narcotics lab report detailing the test results 

of various suspected illegal substances confiscated during the search. The trial court found Tutt 

guilty of all the offenses to which he had pled no contest.3

 

{¶10} The trial court ordered a presentence investigation report and thereafter sentenced 

Tutt to an aggregate sentence of six years in prison — one year in prison on each of Counts 1, 2, 

5, 6, 10 and 12, six months on Count 7, five years in prison on Counts 3 and 4 and one year on 

the firearm specifications, with the sentences on all counts to be served consecutive to the 

one-year sentence on the firearm specifications but concurrent to each other. The trial court also 

imposed five years of mandatory postrelease control and ordered forfeiture of the items 

referenced in the indictment. 

{¶11} Tutt appealed his convictions, raising the following two assignments of error for 

review: 

Assignment of Error I: The trial court erred in failing to reverse the conviction 

when the plea was not made knowingly, intelligently, and voluntarily. 

Assignment of Error II: The trial court erred when it overruled 

defendant-appellant’s motion to suppress. 

Law and Analysis 

 3 At the plea hearing, Tutt also entered no contest pleas in Cuyahoga C.P. No. 

CR-15-592482-A and was found guilty of all counts of that indictment. Those convictions are not 

part of this appeal. 
Compliance with Crim.R. 11(C)(2)(a)

{¶12} In his first assignment of error, Tutt argues that the trial court failed to comply with 

Crim.R. 11(C)(2)(a) and that his no contest pleas on Counts 3 and 4 of the indictment — 

trafficking in violation of R.C. 2925.03(A)(2) with a one-year firearm specification and various 

forfeiture specifications (Count 3) and drug possession in violation of R.C. 2925.11(A) with a 

one-year firearm specification and various forfeiture specifications (Count 4) — were not 

knowingly, voluntarily and intelligently made because the trial court did not inform Tutt during 

the plea hearing that the sentences on the base offenses in Counts 3 and 4 “could only be 

mandatory prison sentences” and that, therefore, he was not eligible for probation or community 

control sanctions as to those offenses. 

{¶13} In considering whether a plea was entered knowingly, intelligently and voluntarily, 

“an appellate court examines the totality of the circumstances through a de novo review of the 

record.” State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7; see also State v. 

Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6. Crim.R. 11(C)(2) governs no 

contest pleas in felony cases. It provides: 

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no 

contest, and shall not accept a plea of guilty or no contest without first addressing 

the defendant personally and doing all of the following: 

(a) Determining that the defendant is making the plea voluntarily, 

with understanding of the nature of the charges and of the 

maximum penalty involved, and, if applicable, that the defendant is 

not eligible for probation or for the imposition of community 

control sanctions at the sentencing hearing. 

(b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty or no contest, and that 

the court, upon acceptance of the plea, may proceed with judgment 

and sentence. 
(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to 

jury trial, to confront witnesses against him or her, to have 

compulsory process for obtaining witnesses in the defendant’s 

favor, and to require the state to prove the defendant’s guilt beyond 

a reasonable doubt at a trial at which the defendant cannot be 

compelled to testify against himself or herself. 

{¶14} When conducting a Crim.R. 11(C)(2) plea colloquy, the trial court “must convey 

accurate information to the defendant so that the defendant can understand the consequences of 

his or her decision and enter a valid plea.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 

893 N.E.2d 462, ¶ 26. If a defendant receives “proper information,” it can be assumed that he or 

she understood it. State v. Gurley, 8th Dist. Cuyahoga No. 70586, 1997 Ohio App. LEXIS 

2414, *8-9 (June 5, 1997), citing State v. Carter, 60 Ohio St.2d 34, 396 N.E.2d 757 (1979). 

{¶15} In determining whether the trial court has satisfied its duties under Crim.R. 

11(C)(2), reviewing courts distinguish between constitutional and nonconstitutional rights. 

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-21. The trial court 

must strictly comply with the requirements of Crim.R. 11(C)(2)(c) relating to the waiver of 

constitutional rights. Id. at ¶ 18. As to the nonconstitutional aspects of Crim.R. 11(C)(2), 

which includes the defendant’s right to be informed of the “maximum penalty involved” and his 

ineligibility for probation or community control, “substantial compliance” is required. Id. at ¶ 

14; Spock at ¶ 15; State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), syllabus. 

“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.” Nero at 108. 

 Even if a trial court makes an error in attempting to comply with Crim.R. 11(C)(2)(a), “‘if it 

appears from the record that the defendant appreciated the effect of his plea and his waiver of 

rights in spite of the trial court’s error, there is still substantial compliance.’” State v. Thomas, 
8th Dist. Cuyahoga No. 94788, 2011-Ohio-214, ¶ 13, quoting State v. Caplinger, 105 Ohio 

App.3d 567, 572, 664 N.E.2d 959 (4th Dist.1995). 

{¶16} If an appellate court finds that a trial court did not substantially comply with a 

requirement of Crim.R. 11(C)(a) or (b) relating to a nonconstitutional right, it must then make a 

further determination as to whether the trial court “partially complied” or “completely failed” to 

comply with the requirement. Clark at ¶ 32. If the trial court partially complied, the plea may 

be vacated only if the defendant demonstrates a prejudicial effect, i.e., that the defendant would 

not have otherwise entered the plea. Id., citing Nero at 108, 564 N.E.2d 474. If, however, the 

trial court completely failed to comply, the plea must be vacated; “‘[a] complete failure to 

comply with the rule does not implicate an analysis of prejudice.’” Clark at ¶ 32, quoting State v. 

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22. 

Substantial Compliance

{¶17} The state asserts that the trial court substantially complied with Crim.R. 

11(C)(2)(a) and that Tutt’s pleas as to Counts 3 and 4 were knowingly, intelligently and 

voluntarily made because (1) the trial court properly advised Tutt regarding the maximum term 

of incarceration he could receive, the “mandatory nature of the firearm specification” and 

postrelease control and (2) Tutt was sentenced within that range, i.e., he received less than the 

maximum sentence. The state argues that “a defendant must be advised of the maximum 

penalty for Crim.R. 11 purposes, not his ineligibility for probation.” 

{¶18} Although Crim.R.11(C)(2)(a) does not specifically require a trial court to “advise” 

or “inform” a defendant as part of the plea colloquy that he or she is not eligible for probation or 

community control sanctions — in contrast to Crim.R. 11(C)(2)(b) and (c) which require the trial 
court to “inform” the defendant of certain matters prior to accepting a plea — it clearly states that 

a trial court shall not accept a no contest plea without first 

[d]etermining that the defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty involved, 

and, if applicable, that the defendant is not eligible for probation or for the 

imposition of community control sanctions at the sentencing hearing. 

(Emphasis added.) State v. Davis, 8th Dist. Cuyahoga No. 76085, 2000 Ohio App. LEXIS 4044, 

*12-13 (Sept. 7, 2000) (“Although the judge must specifically determine whether a defendant 

understands that he is not eligible for probation, the rule does not require him to personally 

inform a defendant of this fact in every circumstance. Crim.R. 11(C)(2) distinguishes between 

things the judge must determine from those of which he must inform a defendant regardless of 

whether an independent understanding is shown.”). 

{¶19} Thus, where a defendant faces a mandatory prison sentence as a result of a guilty or 

no contest plea, the trial court must determine, prior to accepting a plea, that the defendant 

understands that he or she is subject to a mandatory prison sentence and that as a result of the 

mandatory prison sentence, he or she is not eligible for probation or community control 

sanctions. See, e.g., State v. Balidbid, 2d Dist. Montgomery No. 24511, 2012-Ohio-1406, ¶ 

10; State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14; State v. Hendrix, 12th 

Dist. Butler No. CA2012-12-265, 2013-Ohio-4978, ¶ 6; see also State v. Dawson, 8th Dist. 

Cuyahoga No. 61828, 1993 Ohio App. LEXIS 223, *5-6 (Jan. 23, 1993) (“Substantial 

compliance requires that an on the record dialogue take place, where defendant is orally informed 

of the possible sentence. * * * The trial court cannot misinform the defendant about the possible 

sentence. * * * The court must inform defendant if he would be required to serve actual time in 

prison * * * and must disclose the length of the mandatory actual incarceration.”). 
{¶20} A trial court can meet this requirement either by expressly informing the defendant 

that he or she is subject to a mandatory prison sentence and is therefore ineligible for probation 

or community control sanctions or by confirming the defendant’s subjective understanding of 

that fact in some other way, i.e., if the “totality of the circumstances” warrants the trial court in 

making a determination that the defendant otherwise understands, prior to entering his plea, that 

he or she is subject to a mandatory prison sentence. See, e.g., State v. Smith, 8th Dist. Cuyahoga 

No. 83395, 2004-Ohio-1796, ¶ 11 (“The mere fact that the [trial] court did not specifically say 

‘You are ineligible for probation’ or ‘This offense requires a mandatory term of prison’ will not 

be fatal unless the record clearly indicates that the defendant was unaware that he would be sent 

to prison upon a plea of guilty and he was prejudiced by that fact.”); State v. McLaughlin, 8th 

Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 (“[T]he trial court need not specifically 

inform the defendant he is ‘ineligible for probation’ if the totality of the circumstances warrant 

the trial court in making a determination the defendant understands the offense is 

‘nonprobational.’”). 

{¶21} In Nero, supra, for example, the Ohio Supreme Court found substantial compliance 

with Crim.R. 11(C)(2)(a) where defense counsel stated on the record at the plea hearing that the 

defendant “knows * * * he is going to be incarcerated” and the defendant asked for time to 

“straighten out [his] affairs.” Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474. Considering the 

“totality of the circumstances,” the court concluded that these statements “indicate that [the 

defendant] knew that he would not receive probation” even though the trial court did not 

personally advise him that he was not eligible for probation. Id. at 108-109. See also State v. 

Williams, 8th Dist. Cuyahoga Nos. 71151, 71152, 71153 and 71154, 1997 Ohio App. LEXIS 

4706, *4-7 (Oct. 23, 1997) (trial court substantially complied with Crim.R.11(C)(2)(a) where 
defendant was aware, based on trial court’s advisements during the plea colloquy, that his 

sentence involved a “mandatory,” “actual sentence” of incarceration for gun specifications even 

though trial court did not specifically inform defendant that the sentences for the gun 

specifications were “non-probationable”); State v. Rembert, 8th Dist. Cuyahoga No. 99707, 

2014-Ohio-300, ¶ 21-23 (where defendant was properly advised that he would be sentenced to 

either life imprisonment without parole or life imprisonment with parole eligibility after 20, 25 or 

30 years, “[t]he omission of the superfluous advisement that he would not be eligible for 

community control for his aggravated murder offense [did] not render his plea unknowing or 

involuntary”), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977), paragraph one 

of the syllabus. 

{¶22} Where, however, (1) a trial court fails to expressly inform a defendant, prior to 

accepting his or her guilty or no contest plea, that the defendant is subject to a mandatory prison 

sentence and is not eligible for community control sanctions and (2) the totality of the 

circumstances do not show that the defendant otherwise subjectively understood, in entering a 

plea, that he or she would be subject to a mandatory prison sentence that rendered the defendant 

ineligible for probation or community control sanctions, the trial court does not substantially 

comply with Crim.R. 11(C)(2)(a). See, e.g., State v. Douglas, 8th Dist. Cuyahoga No. 87952, 

2007-Ohio-714, ¶ 11 (although defendant was informed firearm specifications were part of 

indictment and plea, trial court did not substantially comply with Crim.R. 11(C)(2)(a) where it 

failed to inform him that the firearm specifications carried mandatory additional prison terms of 

one or three years); State v. McGinnis, 8th Dist. Cuyahoga No. 92244, 2009-Ohio-6102, ¶ 10 

(trial court did not substantially comply with Crim.R. 11(C)(2)(a) where it merely notified 

defendant that he was subject to a fine of “up to $15,000” on drug trafficking count and never 
informed defendant that, by pleading guilty to that count, he was subject to a mandatory fine of 

$5,000); State v. Norman, 8th Dist. Cuyahoga No. 91302, 2009-Ohio-4044, ¶ 12 (“compliance 

with the ‘maximum’ penalty provision of Crim.R. 11(C)(2) requires the court to inform the 

defendant, prior to taking a guilty plea, that a charge carries a mandatory consecutive sentence”); 

State v. Lang, 8th Dist. Cuyahoga No. 92099, 2010-Ohio-433, ¶ 9-11 (trial court did not 

substantially comply with Crim.R. 11(C)(2)(a) where it advised defendant that he would be 

subject to postrelease control for “up to three years” instead of mandatory postrelease control for 

five years); see also State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, ¶ 

15-17 (trial court’s failure to advise defendant that guilty plea to robbery charge carried a 

mandatory prison term rendered plea invalid); State v. Smith, 5th Dist. Licking No. 13-CA-44, 

2014-Ohio-2990, ¶ 11-12 (defendant’s no contest pleas to four counts of rape were not knowing, 

intelligent and voluntary where although trial court informed defendant at the plea hearing that 

offenses “carr[ied] a term of mandatory incarceration,” it failed to state the number of years that 

were mandatory); State v. Tarleton, 7th Dist. Belmont No. 13 BE 17, 2014-Ohio-5820, ¶ 20-25 

(where trial court failed to inform defendant at plea hearing that “any part, let alone his entire 

sentence” was mandatory and plea agreement indicated that only three years was mandatory, trial 

court committed prejudicial error in accepting defendant’s guilty plea); State v. Maggard, 1st 

Dist. Hamilton No. C-100788, 2011-Ohio-4233, ¶ 17 (where trial court and defense counsel 

stated at the plea hearing that prison term on rape counts was not mandatory and the record 

lacked any evidence that defendant otherwise knew he was not eligible for community control 

sanctions on the rape counts, trial court did not substantially comply with Crim.R. 11(C)(2)); 

State v. Rand, 10th Dist. Franklin No. 03AP-745, 2004-Ohio-5838, ¶ 21-23 (where entry of 

guilty plea indicated that prison sentence was not mandatory and trial court failed to advise 
defendant at plea hearing that prison sentence was, in fact, mandatory, trial court did not 

substantially comply with Crim.R.11(C)(2)(a)). 

{¶23} The rationale for such a rule is that, without an adequate understanding of 

mandatory prison time, a defendant cannot fully understand the consequence of his or her plea as 

required by Crim.R. 11(C)(2). As the court explained in State v. Farley, 1st Dist. Hamilton No. 

C-0100478, 2002 Ohio App. LEXIS 1160 (Mar. 15, 2002): 

To make a voluntary choice, the defendant must act with a “full understanding of 

the consequences” of his plea. * * * Because the prospect of probation or 

community control “would be a factor weighing heavily in favor of a plea,” the 

fact that a community-control sanction is statutorily precluded can affect a 

defendant’s decision to enter a guilty plea. See State v. May, 64 Ohio App.3d 

456, 460, 581 N.E.2d 1154 (9th Dist.1989). 

Id. at *6-8 (conviction reversed where plea form executed by defendant indicated that prison 

term was not mandatory for rape charge and trial court accepted defendant’s guilty plea to rape 

charge without informing defendant that he was ineligible for probation or community control 

sanctions; under the totality of the circumstances court was “not convinced that [defendant] 

understood that he was ineligible for community control or probation”); see also Douglas, 

2007-Ohio-714, at ¶ 10 (Without an adequate explanation of mandatory prison time, a defendant 

is not informed of the maximum penalty to which he is pleading guilty and cannot fully 

understand the consequence of his plea as required by Crim.R.11(C)). 

{¶24} The state argues that this case is controlled by State v. Thomas, 8th Dist. Cuyahoga 

No. 94788, 2011-Ohio-214. We disagree. In Thomas, as in this case, the defendant argued that 

his plea should be vacated because the trial court failed to ascertain that he “knew and 
understood the mandatory prison issue” and failed to inform the defendant at the sentencing 

hearing that he was not eligible for probation or the imposition of community control sanctions. 

Id. at ¶ 23. At the sentencing hearing in Thomas: 

The prosecutor outlined each charge at the beginning of the plea hearing, 

including whether the charge was a first-or second-degree felony. After ensuring 

that Thomas understood the constitutional rights he was waiving, the court stated: 

“You heard the prosecutor outline the offenses that you are agreeing to plead 

guilty to.” The trial court then informed Thomas that felonies of the first degree 

were punishable by three to ten years in prison, and further informed him that 

second-degree felonies were subject to two to eight years in prison. The trial court 

also outlined the mandatory sentence for the firearm specifications, including the 

fact that he would have to “complete 3 years” in prison for the firearm 

specifications before he began “serving day one of any sentence on the underlying 

offense.” The trial court also properly notified Thomas of all of the nuances of 

postrelease control and then asked Thomas if he understood everything that was 

just explained to him, to which Thomas replied that he did. 

Id. at ¶ 24. 

{¶25} In Thomas, however, the plea and sentence were “a package” that included an 

agreed-upon sentence, i.e., that the defendant would serve eight years in prison. Id. at ¶ 23, 26. 

The defendant admitted that this prison sentence was part of the deal. Id. Under those 

circumstances, the court rejected the defendant’s arguments that he “did not understand that he 

would be sentenced to prison” and that the trial court should have discussed the fact that he 

“would have to be sentenced to prison” with him during the plea colloquy. Id. at ¶ 23, 27. The 

court held that “although the trial court did not specifically tell Thomas that he was not eligible 

for probation, it substantially complied with Crim.R.11(C)(2)(a) [by] informing Thomas of the 

maximum penalty he could receive, including prison.” Id. at ¶ 25. 

{¶26} In this case, at the plea hearing, the trial court outlined the range of potential 

sentences Tutt could receive on Counts 3 and 4 — i.e., a potential sentence of “anywhere from 3 

to 11 years in prison in yearly increments” plus a “1-year firearm specification which must be 
served prior to and consecutive to the base charge of 3 to 11,” along with “mandatory 5 years 

post-release control” and forfeiture of the items “listed in the forfeiture specifications.” There is 

no dispute that Tutt was correctly advised as to the maximum penalty he could receive for each 

of the offenses at issue. However, the trial court did not inform Tutt that the base offenses in 

Counts 3 and 4 included a mandatory prison term or that he was not eligible for probation or 

community control sanctions on those offenses. Even assuming that Tutt subjectively 

understood that he was subject to a one-year mandatory prison term on the firearm 

specifications,4

 we do not believe that this obviated the need for the trial court to ensure that Tutt 

also understood that he was subject to a mandatory prison term on the base offenses in Counts 3 

and 4. Unlike in Thomas, there was no agreed prison sentence as part of the defendant’s plea, 

and there is nothing else in the record that indicates that Tutt subjectively understood, prior to the 

trial court’s acceptance of his no contest pleas, that he would have to serve a mandatory prison 

sentence on the base offenses in Counts 3 and 4 or what that mandatory prison term might be. 

 4

Although in his brief, Tutt asserts in passing that the trial court “did not inform [Tutt] that the 

firearm sentence was mandatory,” he does not claim that he did not subjectively understand that he 

would be serving a one-year prison term on the firearm specifications based on the trial court’s 

advisements that Counts 3 and 4 “have a 1-year firearm specification which must be served prior to 

and consecutive to the base charge of 3 to 11” and “Counts 1, 2, 3, 4, 5, all have firearm 

specifications which must be served prior to and consecutive to the base charges.” A trial court is 

not required to use the word “mandatory” or other particular verbiage to substantially comply with 

Crim.R. 11(C)(2)(a). See, e.g., State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365, ¶ 

30 (trial court’s advisement that “the State of Ohio Adult Parole Authority will supervise you for five 

years under what is called post-release control” was sufficient to inform defendant that postrelease 

control was mandatory). Tutt argues only that his no contest pleas to Counts 3 and 4 were not 

knowingly, intelligently and voluntarily made. He does not contend that the trial court failed to 

comply with Crim.R.11(C)(2)(a) with respect to any other counts, including Counts 1, 2 and 5, which 

also included firearm specifications.
{¶27} During the plea colloquy, Tutt indicated, in response to questioning by the trial 

court, that he was 23 and had a ninth grade education. The record further reflects that although 

Tutt had a prior misdemeanor conviction, he had no prior felony record. The offenses at issue 

— while very serious — were drug offenses, not the type of heinous crimes for which a 

defendant would have no reason to expect the imposition of community control sanctions. 

Compare, e.g., Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (murder); Rembert, 2014-Ohio-300, 

at ¶ 22-23 (aggravated murder). The trial court asked Tutt if he understood his rights as they had 

been explained to him by the court and the “potential penalties” he was facing but did not ask 

Tutt if he had any other questions related to his pleas. Tutt did not ask any questions and did not 

make any statements at the plea hearing that expressed an understanding that he was subject to a 

mandatory prison term on the base offenses in Counts 3 and 4. 

{¶28} Considering the totality of the circumstances, we cannot say that Tutt subjectively 

understood at the plea hearing that he was subject to a mandatory prison term on the base 

offenses in Counts 3 and 4. As such, the trial court did not substantially comply with Crim.R. 

11(C)(2)(a) in accepting his no contest pleas to Counts 3 and 4 of the indictment. 

 Partial Compliance or Complete Failure to Comply

{¶29} However, this is not the end of our inquiry. We must further determine whether 

the trial court partially complied — requiring a prejudice analysis — or whether it “wholly 

failed” to comply — requiring no prejudice analysis. Based on a thorough review of the record, 

we conclude that the trial court wholly failed to comply with its responsibility under Crim.R. 

11(C)(2)(a) to ensure that Tutt understood that he would be subject to a mandatory prison 

sentence on the base offenses before accepting Tutt’s no contest pleas to Counts 3 and 4. 
{¶30} This is not a case in which the trial court informed the defendant of the mandatory 

nature of his sentence but in some way got it wrong, e.g., by misstating the length of the sentence 

or failing to adequately explain what a mandatory sentence means, or where conflicting 

information was provided to the defendant with respect to whether he was subject to a mandatory 

prison sentence. See, e.g., State v. Hartsook, 2014-Ohio-4528, 21 N.E.3d 617,¶ 10-17 (12th 

Dist.) (trial court partially complied with Crim.R. 11(C)(2)(a) where it accurately advised 

defendant of the maximum sentence he could receive but defendant was given inaccurate and 

conflicting information about the “mandatory portion of [his] potential sentence”); State v. Smith, 

8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 8-12 (defendant’s guilty plea to aggravated 

robbery with a notice of prior conviction that made prison mandatory was knowing, intelligent 

and voluntary notwithstanding trial court’s failure to expressly advise defendant that he was 

“ineligible for probation” or that the offense to which he was pleading guilty required a 

“mandatory” prison term where prosecutor explained at the plea hearing that the “[n]otice of 

prior conviction means [defendant] must serve a prison term of at least three years” and trial 

court indicated that the range of time he would be serving was from three to ten years); see also 

Rembert, 2014-Ohio-300, at ¶ 28 (“When the trial court fails to mention postrelease control ‘at 

all’ during a plea colloquy, the court fails to comply with Crim.R. 11, and the reviewing court 

must vacate the plea and remand the cause. * * * However, ‘some compliance’ with the rule with 

respect to postrelease control prompts a substantial-compliance analysis and the corresponding 

prejudice analysis.”). 

{¶31} In this case, the trial court neglected to mention to Tutt “at all” that he would have 

to serve a mandatory prison sentence on the base offenses in Counts 3 and 4. Because the trial 

court failed to inform Tutt of the mandatory prison term on the base offenses (which was a part 
of the maximum penalty), before it accepted his guilty pleas, the trial court wholly failed to 

comply with this requirement of Crim.R. 11(C)(2)(a). As such, no prejudice analysis is 

required. 

{¶32} In State v. Givens, 12th Dist. Butler No. CA2014-02-047, 2015-Ohio-361, for 

example, the defendant pled guilty to charges of robbery with a gun specification and petty theft. 

Id. at ¶ 3. Although the trial court properly advised the defendant at the plea hearing that he 

would be subject to a mandatory prison sentence on the gun specification, it failed to inform the 

defendant that he was also subject to a mandatory prison sentence on the base robbery charge. 

Id. at ¶ 3, 15. Instead, the trial court incorrectly advised the defendant that he may be eligible to 

earn days of credit while in prison and that prison was merely a “presumption.” Id. at ¶ 4, 15. In 

addition, the plea form improperly indicated that there was no mandatory sentence for the 

robbery charge. Id. at ¶ 4, 15-16. The Twelfth District rejected the state’s argument that the 

trial court substantially complied with Crim.R. 11(C)(2)(a) by advising the defendant that he 

would be subject to a mandatory prison sentence on the gun specification and held that the trial 

court had “wholly failed” to comply with Crim.R. 11(C)(2)(a). Id. at ¶ 15. The court reasoned 

that because the defendant was not advised at the plea hearing that the robbery term carried a 

mandatory prison term and, in fact, was expressly advised that a prison term was not mandatory, 

the defendant “could not have subjectively understood that he was subject to a mandatory prison 

term on the robbery charge.” Id. at ¶ 16. As such, his plea was vacated. Id. at ¶ 23. 

{¶33} A similar result is warranted here. See also State v. Sarkozy, 117 Ohio St.3d 86, 

2008-Ohio-509, 881 N.E.2d 1224, ¶ 22, 26 (plea vacated where trial court failed to inform 

defendant that he was subject to a mandatory period of postrelease control); State v. Johnson, 8th 

Dist. Cuyahoga No. 92364, 2009-Ohio-5821, ¶ 15 (trial court committed reversible error where it 
did not advise defendant that incarceration was mandatory for rape convictions and instead, 

relying upon false information provided by the state and defense counsel, informed defendant 

that imprisonment was discretionary); State v. Dunham, 5th Dist. Richland No. 2011-CA-121, 

2012-Ohio-2957, ¶ 16-17 (trial court committed prejudicial error in accepting defendant’s guilty 

plea where trial court never orally informed defendant that any portion of his prison sentence was 

mandatory and plea form executed by defendant evidenced confusion regarding the mandatory 

sentencing range, such that defendant was unaware what portion of his prison term would be 

mandatory at the time he pled guilty); State v. Smith, 5th Dist. Licking No. 13-CA-44, 

2014-Ohio-2990, ¶ 11-12 (trial court’s failure to notify defendant of the amount of mandatory 

prison time to which he was subject prior to accepting his guilty pleas resulted in invalid pleas 

that required reversal); State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526, ¶ 14 

(trial court “wholly failed to comply” with Crim.R.11(C)(2)(a) where it erroneously advised 

defendant during plea hearing that there was a “presumption” he would receive prison time 

when, in fact, he would be subject to a mandatory prison term that would render him ineligible 

for community control sanctions). 

{¶34} In this case, in contrast to Givens and a number of the other cases cited above, there 

is no claim that the trial court (or anyone else) provided inaccurate or conflicting information to 

Tutt or otherwise affirmatively misled him regarding the sentence he ultimately received. 

Nevertheless, because the record reflects that Tutt was unaware of the full extent of the penalties 

associated with his no contest pleas on Counts 3 and 4, we find that he did not enter his pleas to 

these charges knowingly, intelligently and voluntarily. Accordingly, Tutt’s first assignment of 

error is sustained. We reverse Tutt’s convictions on Counts 3 and 4, vacate his pleas as to 

Counts 3 and 4 and remand the matter for further proceedings consistent with this opinion. 
 Probable Cause for the Search Warrant 

{¶35} In his second assignment of error, Tutt contends that the trial court erred in 

denying his motion to suppress and that his convictions should be overturned because the 

affidavit supporting the search warrant to search his house — the “fruits” of which led to 

virtually all of the charges against him5

 — did not establish sufficient probable cause to justify a 

search of his residence. We disagree. 

{¶36} The Fourth Amendment to the United States Constitution and Article I, Section 14 

of the Ohio Constitution protect against unreasonable searches and seizures and provide that a 

warrant can be issued only if probable cause for the warrant is supported by an oath or 

affirmation and particularly describes the place to be searched and the persons or things to be 

seized. See also Crim.R. 41(C); R.C. 2933.23. 

{¶37} In deciding whether probable cause exists for the issuance of a search warrant, the 

issuing judge must make “‘a practical, common-sense decision whether, given all the 

circumstances set forth in the affidavit before him, including the “veracity” and “basis of 

knowledge” of persons supplying hearsay information, there is a fair probability that contraband 

or evidence of a crime will be found in a particular place.’” State v. George, 45 Ohio St.3d 325, 

544 N.E.2d 640 (1989), paragraph one of the syllabus, following Illinois v. Gates, 462 U.S. 

213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “[C]onsiderations to be taken into 

account when determining whether to issue a search warrant include how stale the information 

relied upon is, when the facts relied upon occurred, and whether there is a nexus between the 

alleged crime, the objects to be seized, and the place to be searched.” State v. Castagnola, Slip 

 5

Tutt claims that, “with the possible exception” of the tampering with evidence charge, all of 

the charges to which he pled no contest were “the fruits of that search.” 
Opinion No. 2015-Ohio-1565, ¶ 34, citing 2 LaFave, Search and Seizure, Section 3.7(a), (b), (d). 

 “‘To establish probable cause to search a home, the facts must be sufficient to justify a 

conclusion that the property that is the subject of the search is probably on the premises to 

search.’” State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423, ¶ 26, quoting State v. 

Freeman, 4th Dist. Highland No. 06CA3, 2006-Ohio-5020, ¶ 13. “The nexus between the items 

sought and the place to be searched depends upon all of the circumstances of each individual 

case, including the type of crime and the nature of the evidence.” State v. Carter, 2d Dist. 

Greene No. 2011 CA 11, 2011-Ohio-6700, ¶ 10, citing Freeman at ¶ 13. 

{¶38} The duty of the reviewing court is to ensure that the issuing judge had a 

“substantial basis” for concluding that probable cause existed. Castagnola at ¶ 35; George at 

paragraph two of the syllabus. When conducting any after-the-fact scrutiny of an affidavit 

submitted in support of a search warrant, reviewing courts should accord “great deference” to the 

issuing judge’s determination of probable cause; “doubtful or marginal cases should be resolved 

in favor of upholding the warrant.” George at paragraph two of the syllabus. Neither a trial 

court nor an appellate court may substitute its judgment for that of the issuing judge by 

determining de novo whether the affidavit provided sufficient probable cause. Id.

{¶39} The search warrant in this case was issued based on an affidavit submitted by 

Detective Robert Sauterer, a 17-year veteran of the Cleveland Police Department who worked as 

a detective in the fifth district vice unit. In his affidavit, Detective Sauterer averred that he had 

received information from a confidential informant regarding a heroin dealer named “Lloyd” who 

used “runners” to sell and deliver heroin. Detective Sauterer indicated that based on the 

information he had received, two “controlled buys” were set up with “Lloyd” at 10812 Amor 

Avenue — one within a week and one within 72 hours of requesting the search warrant. Prior to 
each buy, the confidential informant was searched and found to be free of any drugs, currency or 

other contraband. He was then given a quantity of United States currency from which the serial 

numbers had been pre-recorded with which to make the buy. 

{¶40} Detective Sauterer averred that detectives conducted surveillance in the area of the 

“buys” and, in connection with the first buy, observed a male later identified as Joshua Miller 

exit the front door of 10812 Amor Avenue, walk directly to the confidential informant who was 

waiting outside and sell a quantity of suspected heroin to him. A few days later, a second 

controlled buy was completed at the same address. Detective Sauterer averred that he contacted 

the confidential informant and that arrangements were made for the confidential informant to 

again attempt to purchase heroin from “Lloyd.” In connection with the second “buy,” detectives 

observed an older, unidentified black male exit the front door of 10812 Amor Avenue, walk 

directly to the confidential informant and sell a quantity of suspected heroin to him. 

{¶41} In his affidavit, Detective Sauterer stated that he also conducted an Ohio Law 

Enforcement Gateway (“OHLEG”) computer search and discovered that (1) 10812 Amor Avenue 

was listed as Miller’s address and (2) Tutt was reported to live at that address. Detective 

Sauterer also indicated that photographs of Miller and Tutt were shown to the confidential 

informant and that the confidential informant positively identified Miller as the man who had 

sold heroin to him during the first controlled buy and Tutt as “Lloyd’s partner.” 

{¶42} The affidavit further stated that the suspected heroin purchased by the 

confidential informant was similar in color, texture and general appearance to other material 

determined to be heroin in the past, that the results of a field test conducted on the suspected 

heroin obtained by the confidential informant in the second buy were a “presumptive positive” 

for heroin and that the suspected heroin purchased by the confidential informant in both buys had 
been submitted to the Cuyahoga County Regional Forensic Science Laboratory for testing but 

that the police had not yet obtained the results of those tests. Based on his training and 

experience in the detection, recognition, packaging and selling of controlled substances and 

dangerous drugs and the other facts included in his affidavit, Detective Sauterer averred that “he 

has probable cause to believe and does believe” that drug trafficking was occurring at the 

residence at 18012 Amor Avenue and that illegal drugs and the other items relating to the use, 

sale or trafficking of such drugs for which a warrant was sought would be found in the residence. 

{¶43} Tutt challenges the validity of the warrant to search his residence on two bases. 

First, he argues that because the affidavit “did not specify the reasons * * * why contraband 

would likely be present at the residence,” the affidavit was “so conclusory” that it “effectively 

presented an inference as fact,” a practice prohibited under Castagnola, supra. Second, he 

contends that the affidavit did not support a finding of probable cause to search 10812 Amor 

Avenue because it did not establish that either of the two individuals who sold drugs to the 

confidential informant actually resided at the residence. 

{¶44} In Castagnola, the Ohio Supreme Court addressed the role of inferences in 

determining whether probable cause exists for the issuance of a search warrant. The court 

indicated that although “affiants may make reasonable inferences within search warrant 

affidavits,” the issuing judge “‘must be afforded the opportunity to test any significant inference 

drawn by the affiant’” and that the facts upon which the affiant makes such inferences must, 

therefore, be disclosed in the affidavit to permit independent review by the issuing judge. Id. at 

¶ 39-40, quoting People v. Smith, 180 Cal.App.3d 72, 87, 225 Cal.Rptr. 348 (1986). The court 

held that where an undisclosed inference is made in an affidavit, the reviewing court must first 

determine “whether the inference was ‘so significant as to cross the line between permissive 
interpretation and usurpation,’ considering both the relevance and the complexity of the 

undisclosed inference.” Id. at ¶ 56, quoting People v. Caffott, 105 Cal.App.3d 775, 783, 782, 

164 Cal.Rptr. 499 (1980). If an inference is “so significant” as to cross that line, the reviewing 

court must then consider the affiant’s animus. Id. at ¶ 59. In Castagnola, the court determined 

that the detective’s undisclosed inference in his search warrant affidavit that the defendant had 

used his computer to conduct an online search of court records to locate the victim’s address, 

negligently usurped the magistrate’s inference-drawing authority, requiring the court to “excise 

the inference, insert the omitted underlying facts, and reassess the affidavit for probable cause.” 

Id. at ¶ 57-61. 

{¶45} Here, however, Tutt has not identified any “hidden inference” made by Detective 

Sauterer in his affidavit and presented as empirical fact. Although Detective Sauterer arguably 

went too far in stating in his affidavit that “he has probable cause to believe” that drug 

trafficking was occurring at Tutt’s residence and that evidence of that activity would be found in 

the residence –– since that was not his determination, but rather the determination of the issuing 

judge to make — he also clearly disclosed the facts from which he drew this conclusion, 

allowing the issuing judge to make his own independent determination of whether probable cause 

existed for the issuance of the search warrant. As such, Castagnola does not support 

invalidating the search warrant here. See also U.S. v. Ventresca, 380 U.S. 102, 108-109, 85 

S.Ct. 741, 13 L.Ed.2d 684 (1965) (“[A]ffidavits for search warrants * * * must be tested and 

interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally 

drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements 

of elaborate specificity once exacted under common law pleadings have no proper place in this 

area. * * * [Whereas] probable cause [cannot] be made out by affidavits which are purely 
conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without 

detailing any of the ‘underlying circumstances’ upon which that belief is based[,] * * * where 

these circumstances are detailed, where reason for crediting the source of the information is 

given, and when a magistrate has found probable cause, the courts should not invalidate the 

warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.”); 

see also State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247, ¶ 24. 

{¶46} Following a thorough review of Detective Sauterer’s affidavit and consideration of 

the facts set forth therein, we conclude that the issuing judge had a substantial basis for finding 

probable cause to issue the warrant to search Tutt’s residence. In two controlled buys, police 

observed the drug sellers exit the front door of 10812 Amor Avenue and proceed directly to the 

confidential informant to sell drugs to him. The information regarding the drug sales was 

“fresh.” The two controlled buys occurred within a week or less of the issuance of the search 

warrant. Detective Sauterer’s search of the OHLEG database provided a further link between 

the residence and alleged drug activity, revealing that Miller, one of the two drug sellers, had 

listed 10812 Amor Avenue as his residence address and that Tutt, whom the confidential 

informant had identified as the “partner” of “Lloyd” — i.e., the head of the suspected drug 

trafficking operation with whom the confidential informant had made arrangements for the drug 

purchases — also resided at that address. Based on this information, we find that the issuing 

judge could have reasonably concluded that the drugs that were sold to the confidential informant 

were previously stored in the house and that there was a fair probability that other drugs or 

evidence of drug trafficking would be found there. See, e.g., State v. Evans, 8th Dist. Cuyahoga 

No. 101485, 2015-Ohio-1022, ¶ 21 (affidavit contained sufficient facts to support probable cause 

finding to search defendant’s house where affiant averred that police observed defendant sell 
cocaine to confidential informant and return to her home immediately after sale was complete 

and warrant was applied for, obtained and executed within 72 hours of controlled buy); State v. 

Conway, 8th Dist. Cuyahoga No. 96905, 2012-Ohio-590, ¶ 13 (where defendant was observed 

either leaving or returning to his house immediately before or after controlled buys, a sufficient 

nexus was shown to provide probable cause to search defendant’s house); State v. Rains, 4th 

Dist. Ross No. 03CA2739, 2004-Ohio-1915, ¶ 14 (detailed account in affidavit of controlled 

buys from defendant’s house provided sufficient facts, based upon the totality of the 

circumstances, to support issuing judge’s finding of probable cause); State v. Turner, 8th Dist. 

Cuyahoga No. 92966, 2010-Ohio-1205, ¶ 19 (finding that where police successfully conducted a 

controlled buy at defendant’s residence three days before obtaining search warrant, probable 

cause existed for warrant to search residence, noting that “[s]uch facts have been routinely 

recognized to be enough to establish probable cause regarding the existence of the same 

contraband in the location”). 

{¶47} Tutt cites no authority in support of his claim that utility records, phone records or 

other evidence demonstrating that the two individuals who sold drugs to the confidential 

informant “actually resided at” 10812 Amor Avenue was required in order to establish probable 

cause to search the residence. The judge issuing the search warrant was not required to 

determine that Tutt’s residence was the only possible source of the heroin provided in the 

transactions. The issuing judge need only have concluded that there was a fair probability that 

contraband or evidence of a crime would be found inside the residence. See, e.g., Carter, 

2011-Ohio-6700, at ¶ 21. Given that Miller and the other unidentified suspect were seen exiting 

the front door of the residence and immediately approached and sold drugs to the confidential 

informant, there was no need to confirm that the suspects actually resided at that location to 
support the issuance of the search warrant; considering the totality of the circumstances, there 

was a fair probability that illegal drugs or other evidence of drug trafficking activity would be 

found in Tutt’s home regardless of whether Miller or the other suspect resided there. 

{¶48} Because the record reflects that the issuing judge had a substantial basis for finding 

a fair probability that drugs and the other items specified in the search warrant would be found in 

Tutt’s residence, the trial court did not err in refusing to suppress the evidence seized during the 

search of Tutt’s residence. Tutt’s second assignment of error is overruled. 

{¶49} Tutt’s pleas on Counts 3 and 4 are vacated; his convictions on Counts 3 and 4 are 

reversed; his remaining convictions are affirmed. Case remanded for further proceedings 

consistent with this opinion. 

It is ordered that appellant and appellee share 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 convictions having been affirmed 

in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of 

sentences. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

__________________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., CONCURS 

MELODY J. STEWART, J., CONCURS WITH SEPARATE OPINION 

MELODY J. STEWART, J., CONCURRING: 
{¶50} I concur with the majority’s resolution of Tutt’s case but write separately to further 

discuss Tutt’s first assignment of error — principally the court’s lack of partial compliance with 

Crim.R. 11. 

{¶51} In this case, the trial court was required under Crim.R. 11(C)(2)(a) to ensure that 

Tutt was making a voluntary plea with the understanding that Counts 3 and 4 charged 

nonprobationable offenses. The record establishes that prior to taking Tutt’s plea, the trial court 

explained the applicable sentencing ranges for the drug trafficking and possession charges 

contained in Counts 3 and 4 as follows: 

The court: Felonies of the first degree, as indicted in 589749, count 3, trafficking 

in drugs; count 4, possession of drugs. 

Felonies of the first degree carry anywhere from 3 to 11 years in prison in yearly 

increments and/or a fine up to $20,000. They have a 1-year firearm specification 

which must be served prior to and consecutive to the base charge of 3 to 11.6

 

* * * 

The court: Do you understand the potential penalties? 

The defendant: Yes. 

Although not raised by the defense or noted by the majority, the trial court’s statement that Tutt 

would receive 3–11 years on the first degree felonies and/or a fine up to $20,000—read 

literally—meant that Tutt could receive either a prison term, or a fine, or both, on counts 3 and 4. 

 Pursuant to R.C. 2929.18, fines are considered valid community control sanctions in certain 

 6

The drug trafficking charge in Count 3 required the court to impose a mandatory prison term 

within the sentencing range for a first-degree felony (i.e., 3–11 years) because the charges alleged that 

Tutt trafficked heroin in an amount between 50 and 250 grams. See R.C. 2925.03(C)(6)(f). The 

drug possession charge in Count 4 also required a mandatory prison term within the first-degree 

felony range because the amount alleged was between 50 and 250 grams. See R.C. 

2925.11(C)(6)(e).
instances. See R.C. 2929.18. Thus, any attempts at partial compliance that were present in 

this case (i.e. the court stating the applicable prison ranges without reference to community 

control and then asking Tutt if he understood the penalties involved) were negated by the court’s 

error in informing Tutt that he might receive only a fine on counts 3 and 4. The natural 

implication of such a statement is that a prison term is not mandatory on those offenses.7 

 7Also noteworthy is the fact that the trial court did not take a plea from Tutt in 

CR-14-592482, another case that Tutt would have presumably pleaded no contest to at the same 

plea hearing as CR-14-589749 — the case he is now appealing. At the plea hearing, defense 

counsel stated that Tutt would be entering no contest pleas to both cases, the court proceeded 

with the Crim.R. 11 colloquy, and accepted the no contest plea on CR-14-589749. The court 

did not take a no contest plea from Tutt in CR-14-592482, but nevertheless found Tutt guilty in 

both cases and ran the sentences concurrent. It is axiomatic that a court may not enter a finding 

of guilt and proceed to sentencing without a plea from the defendant. See, e.g., Crim.R. 

11(B)(3).