[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. Ga llagher, J., and Stewart, J.

RELEASED AND JOURNALIZED: December 10, 2015ATTORNEYS 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 44113EILEEN A. GALLAGHER, P.J.: {¶1} Defendant-appellant Rasheed Tutt appeals his convictions after he pled no contest to multiple counts of drug tra fficking, 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. Tu tt’s convictions were based on evidence seized during a search of Tutt’s residence after Cleveland police made two successful “contro lled 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), a nd Count 4, drug possession in violation of R.C. 2925.11(A) — were not knowingly, intelligently a nd 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 c ourt erred in denying hi s 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, affi rm his remaining convictions and remand the case for further proceedings consistent with this opinion. {¶2} In March 2014, members of the Clevel and Police Departme nt conducted two “controlled buys” of heroin out side Tutt’s residence at 10812 Am or Avenue in Cleveland. Based on the affidavit of Detective Robert Sauterer, which set forth facts relating to the “controlled buys” and add itional information Detective Sauter er discovered during his follow-up investigation, Cleveland police obtai ned a search warrant to search Tutt’s residence. The search warrant authorized police to search the residence and its curtilage for: Heroin, other narcotic dr ugs and/or controlled subs tances, and/or counterfeit controlled substances; instru ments and paraphernalia used in the taking of drugs and/or preparation of illegal drugs for sale, use, or shipment including but notlimited 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 Ohi o, 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 includi ng several bags of heroin, cr ack cocaine and marijuana, a press, several scales and gri nders with suspected drug resi due and numerous cell phones, guns

and ammunition. Tutt was subs equently indicted in Cuyahoga C.P. No. CR-14-583969-E for drug trafficking, drug possession, possessing cr iminal 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 affidav it 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 specifica tion and various forfeiture specifications. Count Two — Drug possession in viola tion of R.C. 2925.11(A), a fourth-degree felony, with a one-year firearm specifica tion 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 violati on of R.C. 2925.03(A)(2), a first-degree felony, with a one-year firearm specifica tion and various forfeiture specifications. Count Four — Drug possession in viol ation of R.C. 2925.11(A), a first-degree felony, with a one-year firearm specifica tion and various forfeiture specifications. Count Five — Trafficking in violati on of R.C. 2925.03(A)(2), a fifth-degree felony, with a one-year firearm specifica tion and various forfeiture specifications. Count Six — Possessing criminal tool s in violation of R.C. 2923.24(A), a fifth-degree felony, with vari ous forfeiture specifications. Count Seven — Possessing a defaced fir earm in violation of R.C. 2923.201(A)(2), a first-degree misdemeanor, with a weapon forfeiture specification. Count Ten — Receiving st olen property in violation of R.C. 2913.51(A), a fourth-degree felony. Count Twelve — Tampering with eviden ce in violation of R.C. 2921.12(A)(1), a third-degree felony. Count Seventeen — Having weapons unde r disability in violation of R.C. 2923.13(A)(2), a third-degree felony. 2 {¶6} The state ultimately concluded that th e having weapons while under disability charge (Count 17) was “not a proper charge” a nd agreed to dismiss it. On January 22, 2015, Tutt pled no contest to the remaining ch arges (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 appli cable to each of the counts, including the associated firearm specifications, with Tutt, as follows:

2 The original indictment was f iled 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; c ount 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 sp ecifications which must be served prior to and consecutive to the base charges. {¶8} The trial court also advised Tutt regardin g 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-rel ease 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, di gital scales, guns * * *. You’re going to forfeit $526 in U.S. currency and miscellaneous ite ms listed in the forfeiture specifications. {¶9} Upon inquiry by the trial court, Tutt i ndicated that he understood the potential penalties he faced as a result of his pleas. The tr ial court then proceeded to advise Tutt of his constitutional rights and confirmed that Tutt understood the righ ts he was giving up by enteringhis 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 reside nce, 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 confiscat ed 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 inve stigation 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 year s 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 fo rfeiture 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 re verse the conviction when the plea was not made knowin gly, intelligently, and voluntarily. Assignment of Error II: The trial court erred when it overruled defendant-appellant’s mo tion 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 pl eas on Counts 3 and 4 of the indictment — trafficking in violation of R.C. 2925.03(A)(2) w ith a one-year firearm sp ecification and various forfeiture specifications (Count 3) and drug po ssession in violation of R.C. 2925.11(A) with a one-year firearm specification a nd various forfeiture specifica tions (Count 4) — were not knowingly, voluntarily and intelligently made becau se 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 fo r probation or community

control sanctions as to those offenses. {¶13} In considering whether a plea was entere d knowingly, intelligently and voluntarily, “an appellate court exa mines the totality of the circumstan ces 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 defenda nt is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, th at the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of a nd 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 defe ndant 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 understa nd 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 cour t has satisfied its duties under Crim.R. 11(C)(2), reviewing courts distinguish betw een constitutional and nonc onstitutional 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 info rmed of the “maximum penalty involved” and his ineligibility for probation or community cont rol, “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 to tality of the circumstances the defendant subjectively understands the implications of hi s 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 appreci ated 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 nonconstitutiona l 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 pr ejudicial 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 Count s 3 and 4 were knowingl y, intelligently and voluntarily made because (1) the trial court properly advised Tutt regarding the maximum term of incarceration he could receive, the “mandato ry 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 specifica lly require a trial court to “advise” or “inform” a defendant as part of the plea colloquy that he or sh e is not eligible for probation or community control sanctions — in contrast to Crim.R. 11(C)(2)(b) and (c) which require the trialcourt 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 elig ible for probation, the rule does not require him to personally inform a defendant of this fact in every circ umstance. 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 unde rstanding 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 manda tory 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 defe ndant 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 unde rstands, 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 defe nse counsel stated on the record at the plea hearing that the defendant “knows * * * he is go ing to be incarcerated” and th e 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 t hough 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 substantia lly complied with Crim.R.11(C)(2)(a) wheredefendant was aware, based on trial court’s advise ments during the plea colloquy, that his sentence involved a “mandatory,” “actual sentence” of incarcerati on 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 defenda nt was properly advised that he would be sentenced to either life imprisonment without pa role or life imprisonment with parole eligibility after 20, 25 or 30 years, “[t]he omission of the superfluous advi sement 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 subjec tively understood, in entering a plea, that he or she would be subject to a ma ndatory 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 inform ed firearm specificati ons 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 tra fficking count and neverinformed 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 mandato ry 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 y ears” 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 pl ea 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 ra pe were not knowing, intelligent and voluntary where alt hough trial court informed defenda nt at the plea hearing that offenses “carr[ied] a term of mandatory incarcera tion,” 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 (whe re trial court a nd defense counsel stated at the plea hear ing that prison term on rape counts was not mandatory and the record lacked any evidence that defendant otherwise kne w he was not eligible for community control sanctions on the rape counts, tria l court did not substantially co mply 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 advisedefendant 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 de fendant cannot fully understand the c onsequence 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 weig hing 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 wh ere plea form executed by defe ndant 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 wa s ineligible for probati on or community control sanctions; under the totality of the circumstances court was “not convin ced that [defendant] understood that he was ineligible fo r community control or probation”); see also Douglas , 2007-Ohio-714, at ¶ 10 (Without an adequate expl anation 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 pl ea 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 c ourt failed to ascertain that he “knew andunderstood the mandatory prison i ssue” 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 righ ts 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 s ubject 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 no tified 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 defenda nt 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 re jected the defendant’s arguments th at he “did not understand that he would be sentenced to prison” and that the tria l court should have discu ssed the fact that he “would have to be sentenced to pris on” with him during the plea colloquy. Id. at ¶ 23, 27. The court held that “although the tria l court did not specifically tell T homas that he was not eligible for probation, it substantially co mplied with Crim.R.11(C)(2)(a) [by] informing Thomas of the maximum penalty he could r eceive, 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 beserved prior to and consecutive to the base char ge 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 c ourt 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 offens es. Even assuming that Tutt subjectively understood that he was subject to a one-y ear mandatory prison term on the firearm specifications, 4 we do not believe that this obviated the n eed 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 i ndicates that Tutt subjectively understood, prior to the trial court’s acceptance of his no contest pleas, th at 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 edu cation. The record furthe r reflects that although Tutt had a prior misdemeanor convi ction, he had no prior felony r ecord. 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 th e 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 as ked 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 unde rstanding that he was subject to a mandatory prison term on the base offenses in Counts 3 and 4. {¶28} Considering the totality of the circumstan ces, we cannot say that Tutt subjectively understood at the plea hearing that he was subj ect 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 inqui ry. We must further determine whether the trial court partially complied — requiring a prejudice analysis — or whether it “wholly failed” to comply — requiring no prejudice analys is. Based on a thorough review of the record,

we conclude that the trial c ourt wholly failed to comply w ith 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 so me 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 de fendant 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 r eceive 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 tria l 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 pr ison 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 cour t fails to mention postrelease control ‘at all’ during a plea colloquy, the court fails to co mply with Crim.R. 11, a nd the reviewing court must vacate the plea and remand the cause. * * * However, ‘some compliance’ with the rule with respect to postrelease control pr ompts 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 pris on term on the base offenses (which was a partof the maximum penalty), before it accepted his guilty pleas, the trial court who lly 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 cour t 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 subj ect to a mandatory prison senten ce on the base robbery charge.

Id. at ¶ 3, 15. Instead, the trial cour t incorrectly advised th e 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 improperl y indicated that there was no mandatory sentence for the robbery charge. Id. at ¶ 4, 15-16. The Twelfth District rejected the st ate’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 th at the robbery term carried a mandatory prison term and, in f act, was expressly advised that a prison term was not mandatory,

the defendant “could not have s ubjectively 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 ma ndatory period of postrelease control); State v. Johnson, 8th Dist. Cuyahoga No. 92364, 2009-Ohio-5821, ¶ 15 (trial court committed revers ible error where itdid not advise defendant that incarceration was mandatory for rape convictions and instead, relying upon false information provided by the st ate 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 prejudi cial error in accepting defendant’s guilty plea where trial court never orally informed defe ndant 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 una ware what portion of hi s 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 accep ting 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 mandato ry prison term that would render him ineligible for community control sanctions). {¶34} In this case, in contrast to Givens and a number of the othe r 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 re garding 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 a nd 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 convic tions on Counts 3 and 4, vacate his pleas as to

Counts 3 and 4 and remand the matter for furthe r proceedings consistent with this opinion.Probable Cause for the Search Warrant {¶35} In his second assignment of error, Tutt contends that the tr ial court erred in denying his motion to suppress and that his convictions should be overturned because the affidavit supporting the search warrant to sear ch his house — the “fruits” of which led to virtually all of the charges against him 5 — 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, co mmon-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 informati on, there is a fair proba bility 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 incl ude 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 hom e, 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 concludi ng that probable cause existed. Castagnola at ¶ 35; George at paragraph two of the syllabus. When conducting any after-the-f act 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 marg inal 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 affidav it 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. De tective Sauterer indicat ed that based on the information he had received, tw o “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 toeach 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 w ith which to make the buy. {¶40} Detective Sauterer averred th at detectives conducted surv eillance in the area of the “buys” and, in connection with the first buy, obser ved a male later identif ied as Joshua Miller exit the front door of 10812 Amor Avenue, walk di rectly to the confiden tial 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 s econd “buy,” detectives observed an older, unidentifie d 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 stat ed that he also conducted an Ohio Law Enforcement Gateway (“OHLEG”) computer sear ch 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 we re 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 contro lled buy and Tutt as “Lloyd’s partner.” {¶42} The affidavit further stated that th e 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 purchas ed by the confidential informant in both buys hadbeen 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, r ecognition, 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 a nd does believe” that drug trafficking was occurring at the

residence at 18012 Amor Avenue a nd that illegal drugs and the othe r items relating to the use, sale or trafficking of such drugs for which a wa rrant 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 “d id 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 f act,” 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 addresse d the role of inferences in determining whether probable cause exists for the issuance of a search warrant. The court indicated that although “affian ts may make reasonable infere nces within search warrant affidavits,” the issuing judge “‘mu st be afforded the opportunity to test any significant inference drawn by the affiant’” and that the facts upon wh ich 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 infe rence is made in an affidavit, the reviewing court must first determine “whether the inference was ‘so significant as to cross the line between permissiveinterpretation and usur pation,’ considering both the releva nce 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 sign ificant” 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 in ference in his search warrant a ffidavit that the defendant had used his computer to conduct an online search of court records to locat e the victim’s address, negligently usurped the magistrate’s inference-dr awing authority, requiring the court to “excise the inference, insert the omitted underlying facts, and reassess the affida vit 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 pr esented as empirical fact. Alt hough 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 determina tion, but rather the deter mination 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 inde pendent determin ation 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 magistrate s and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigati on. 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 purelyconclusory, stating only the affiant’s or an info rmer’s belief that probabl e 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 cour ts should not invalidate the warrant by interpreting the affidavit in a hype rtechnical, 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 Sa uterer’s affidavit a nd 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 Tu tt’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 “L loyd” — 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. Ba sed on this information, we find that the issuing judge could have reasonably concl uded that the drugs that were sold to the confidential informant were previously stored in the house and that th ere 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 sellcocaine 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 immediatel y 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 (deta iled account in affida vit of controlled buys from defendant’s house provided sufficien t facts, based upon the totality of the circumstances, to support issuing j udge’s finding of probable cause); State v. Turner , 8th Dist. Cuyahoga No. 92966, 2010-Ohio-1205, ¶ 19 (finding th at where police successfully conducted a controlled buy at defendant’s re sidence three days before obtai ning search warrant, probable cause existed for warrant to search residence, noting that “[s]uch facts have been routinely recognized to be enough to establish probabl e cause regarding the existence of the same contraband in the location”). {¶47} Tutt cites no authority in support of his cl aim 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 po ssible 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 woul d 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 a pproached and sold drugs to the confidential informant, there was no need to confirm that the suspects actually resided at that location tosupport the issuance of the search warrant; consid ering 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 tria l court did not err in refusing to suppress the evidence seized during the

search of Tutt’s residence. Tutt’s sec ond 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 convic tions are affirmed. Case re manded for further proceedings consistent with this opinion.

It is ordered that a ppellant and appellee shar e costs herein taxed.

The court finds there were reas onable 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. Th e 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 require d 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 th at 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. Th ey have a 1-year firearm specification which must be served prior to and cons ecutive to the base charge of 3 to 11. 6

* * * The court: Do you understa nd the potential penalties?

The defendant: Yes. Although not raised by the defense or noted by th e majority, the trial cour t’s statement that Tutt would receive 3–11 years on th e first degree felonies and/or a fine up to $20,000—read literally—meant that Tutt could recei ve 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 par tial 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 recei ve only a fine on counts 3 and 4. The natural implication of such a statement is that a pr ison term is not mandatory on those offenses. 7

7 Also noteworthy is the fact that the trial court did not take a plea from Tutt in CR-14-592482, another case that Tutt w ould 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).