[Cite as State v. Hughes, 2013-Ohio-1037.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98666




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   JAMES E. HUGHES
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-557648

        BEFORE:          E.T. Gallagher, J., S. Gallagher, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     March 21, 2013
ATTORNEY FOR APPELLANT

Michael V. Heffernan
75 Public Square
Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1}   Appellant James Hughes (“Hughes”) appeals his petty theft conviction

following a guilty plea. We find no merit to the appeal and affirm.

       {¶2} Hughes was charged with breaking and entering and petty theft. Pursuant to a

plea agreement, Hughes pleaded guilty to petty theft, and the breaking and entering

charge was nolled.

       {¶3} Shortly before reaching the plea agreement, when Hughes was contemplating

representing himself at trial, the trial court explained to him on the record that if he

pleaded guilty to petty theft, he “could not be sentenced to the institution.” The court

further explained that he could still be subject to six months of local incarceration for the

petty theft conviction.

       {¶4} Hughes pleaded guilty to petty theft, and the court sentenced him to six

months in the Cuyahoga county jail. This appeal followed.

       {¶5} In his sole assignment of error, Hughes argues that he did not enter his plea

knowingly, intelligently, and voluntarily and that the trial court failed to substantially

comply with Crim.R. 11.1

       {¶6} Although Crim.R. 11(E) governs a defendant’s rights when entering a plea to

a petty offense, this court has held that the trial court must nevertheless advise the




       1 Although Hughes did not file a motion to withdraw his guilty plea with the
trial court, he “may dispute the knowing, intelligent, and voluntary nature of the
plea either by filing a motion to withdraw the plea or upon direct appeal.” State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, paragraph one of the
syllabus.
defendant of his constitutional rights under Civ.R. 11(C). Cleveland v. Wanzo, 129 Ohio

App.3d 664, 718 N.E.2d 982 (8th Dist.1998).

       {¶7} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony matter, a

trial court must personally address the defendant and (1) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty; (2) inform the defendant of and determine that the defendant

understands the effect of the plea and that the court may proceed with judgment after

accepting the plea; and (3) inform the defendant and determine that the defendant

understands that he is waiving his constitutional rights to a jury trial, to confront the

witnesses against him, to call witnesses in his favor, and to require the state to prove his

guilt beyond a reasonable doubt at a trial where the defendant cannot be forced to testify

against himself.

       {¶8} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)

regarding the waiver of constitutional rights, meaning the court must actually inform the

defendant of the constitutional rights he is waiving and make sure the defendant

understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 27. Failure to fully advise a defendant of his Crim.R. 11(C)(2) rights renders a

plea invalid. Id. at ¶ 29.

       {¶9} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not

required and “substantial compliance” is sufficient.      Veney at ¶ 14, citing State v.

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977); State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. “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.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d

474 (1990).

       {¶10} If the trial judge partially complied with the rule with respect to

nonconstitutional rights, the plea may be vacated only if the defendant demonstrates a

prejudicial effect. Veney at ¶ 17. The test for prejudice is “‘whether the plea would

have otherwise been made.’” Clark at ¶ 32, quoting Nero at 108.

       {¶11} Hughes contends that he did not enter his plea knowingly, voluntarily, or

intelligently because the trial court failed to accurately inform him of the potential

penalties he would face upon conviction. The right to be informed of the potential

penalties prior to entering a plea is a nonconstitutional right. State v. Dunn, 8th Dist. No.

93640, 2010-Ohio-5000, ¶ 8. Therefore, we review the plea proceedings to determine if

the court substantially complied with the rule. Id.

       {¶12} At the plea hearing, the court advised Hughes:

       THE COURT: It’s proposed you’re going to plead guilty to Count 2, petty
       theft, in violation of 2913.02, a misdemeanor of the first degree. That’s
       punishable by six months in a local facility, a thousand dollar fine or both.
       Do you understand that?

       THE DEFENDANT: Yes, your Honor.

Although the court did not use the word “jail,” the phrase “six months in a local facility”

obviously means a local institution such as the county jail. Moreover, Hughes indicated

that he understood that he was subject to a possible six month jail term in addition to a

$1000 fine.
       {¶13} Hughes was also awaiting sentencing on his felony convictions in three

other cases. Although the trial court stated that he could not be sentenced to prison on

his misdemeanor conviction in this case, it advised Hughes that he could be subject to

prison sentences in the felony cases. The trial court informed Hughes that because

misdemeanor and felony sentences run concurrently, he may serve his misdemeanor

sentence in a state prison if he is sentenced to the penitentiary on the felony convictions.

Thus, the court substantially complied with its obligation to inform Hughes of the

potential penalties he could be subjected to as a result of his guilty plea.

       {¶14} Hughes also argues the trial court failed to substantially comply with

Crim.R. 11(C) because it failed to advise him that he could plead no contest rather than

guilty. However, Crim.R. 11(E) governs pleas for petty offenses. In State v. Jones, 116

Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, the Ohio Supreme Court held that

“[i]n accepting a plea to a misdemeanor involving a petty offense, a trial court is required

to inform the defendant only of the effect of the specific plea being entered.” (Emphasis

added.) Id. at paragraph one of the syllabus. The rule does not require the trial court to

advise the defendant that he has the option of pleading no contest.            Therefore, the

court’s failure to provide such advice does not violate the rule.

       {¶15} We find the trial court substantially complied with its obligation to inform

Hughes of the potential penalties he would face as a result of his guilty plea. And

because the court was not required to provide advice about pleading no contest, we find

that it complied with all applicable rules when it accepted Hughes’s guilty plea.
Therefore, we find that Hughes entered his guilty plea knowingly, voluntarily, and

intelligently.

       {¶16} The sole assignment of error is overruled.

       {¶17} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


EILEEN T. GALLAGHER, JUDGE

MARY EILEEN KILBANE, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY
