[Cite as State v. Russell, 2011-Ohio-1738.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO. 10-CA-54

v.                                                   :        T.C. NO.   09-CR-809

ANTHONY RUSSELL                                      :        (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                    :

                                                     :

                                              ..........

                                              OPINION

                          Rendered on the      8th   day of   April   , 2011.

                                              ..........

AMY M. SMITH, Atty. Reg. No. 0081712, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
       Attorney for Defendant-Appellant


                                              ..........

FROELICH, J.

        {¶ 1} Anthony Russell pled guilty in the Clark County Court of Common Pleas to

attempted murder, a first degree felony (Count 1); felonious assault, a second degree felony

(Count 4); and kidnapping (with a specification that the victim was not released in a safe
                                                                                              2

place unharmed), a first degree felony (Count 6). Each count involved a different victim.

In exchange for the plea, the State agreed to dismiss one count of attempted murder, one

count of kidnapping, one count of aggravated burglary, and            four counts of felonious

assault. After a presentence investigation, the trial court sentenced Russell to the maximum

terms of ten years for the attempted murder, eight years for the felonious assault, and ten

years for the kidnapping, to be served consecutively for an aggregate sentence of 28 years in

prison.

          {¶ 2} Russell appeals from his conviction and sentence, raising two assignments of

error.

                                                     I

          {¶ 3} Russell’s first assignment of error states:

          {¶ 4} “APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY ENTER GUILTY PLEAS.”

          {¶ 5} Russell claims that his guilty plea was not knowingly, intelligently, and

voluntarily given. He asserts that the trial court did not comply with Crim.R. 11(C)(2) in

three respects: (1) the court failed to mention whether he was eligible for community

control; (2) the court failed to determine that Russell understood the effect of his guilty plea

and that the court would proceed with sentencing; and (3) the court failed to properly advise

Russell that he could not be compelled to testify against himself at trial.

          {¶ 6} In order for a plea to be knowing, intelligent, and voluntary, the trial court

must comply with Crim.R. 11(C).           State v. Greene, Greene App. No. 2005 CA 26,

2006-Ohio-480, ¶8.        “Crim.R. 11(C)(2) requires the court to (a) determine that the
                                                                                            3

defendant is making the plea voluntarily, with an understanding of the nature of the charges

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

or for the imposition of community control sanctions; (b) inform the defendant of and

determine that the defendant understands the effect of the plea of guilty and that the court,

upon acceptance of the plea, may proceed with judgment and sentencing; and (c) inform the

defendant and determine that he understands that, by entering the plea, the defendant is

waiving the rights to a jury trial, to confront witnesses against him, to have compulsory

process for obtaining witnesses, and to require the state to prove his guilt beyond a

reasonable doubt at a trial at which he cannot be compelled to testify against himself.”

State v. Brown, Montgomery App. No. 21896, 2007-Ohio-6675, ¶3. See, also, State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶27.

       {¶ 7} The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. Clark at ¶29. The trial court must strictly comply with Crim.R. 11(C)(2)(c),

as it pertains to the waiver of constitutional rights. Clark at ¶31. The failure to adequately

inform a defendant of his constitutional rights would invalidate a guilty plea under a

presumption that it was entered involuntarily and unknowingly. State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, ¶12.

       {¶ 8} However, because Crim.R.11(C)(2)(a) and (b) involve non-constitutional

rights, the trial court need only substantially comply with those requirements. State v. Nero

(1990), 56 Ohio St.3d 106, 108; Greene at ¶9. 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. Miller, Clark App. No. 08 CA 90,
                                                                                             4

2010-Ohio-4760, ¶8, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶15. A

defendant who challenges his guilty plea on the ground that the trial court did not

substantially comply with Crim.R. 11(C)(a) and (b) must show a prejudicial effect, which

requires the defendant to show that the plea would otherwise not have been entered. Griggs

at ¶12.

          {¶ 9} First, Russell claims that the trial court did not inform him that he was

ineligible for community control. While this is true, none of Russell’s offenses mandated a

prison term. See R.C. 2929.13, R.C. 2923.02, R.C. 2903.11, and R.C. 2905.01. Nor had

Russell previously been convicted of a first or second degree felony, which would have

made him ineligible for community control in this case. R.C. 2929.13(F)(6). Accordingly,

Russell was eligible for community control, even if it were unlikely that he would receive

such a sentence considering the charges against him. Crim.R. 11(C) does not require the

trial court to inform a defendant when he or she is eligible for community control; it only

requires that a defendant be informed of his or her ineligibility. The trial court did not fail

to comply with Crim.R. 11(C) when it did not mention community control at the plea

hearing.

          {¶ 10} Second, Russell argues that the court failed to determine that he understood

the effect of his guilty plea and to inform him that the court may proceed with sentencing.

During the plea hearing, the trial court did not ask Russell whether he understood that a

guilty plea was a complete admission of his guilt. However, a defendant who has entered a

guilty plea without asserting actual innocence is presumed to understand that, by pleading

guilty, he has completely admitted his guilt. Griggs, supra. In such circumstances, the trial
                                                                                                5

court’s failure to inform the defendant of the effect of his guilty plea, as required by Crim.R.

11(C), is presumed not to be prejudicial. Id.; State v. Thomas, Cuyahoga App. No. 94788,

2011-Ohio-214, ¶32.

        {¶ 11} Russell has not claimed that he was innocent of the charges. Moreover,

Russell signed a plea form, in which he stated that he understood that he was waiving his

constitutional rights and that “by pleading guilty I admit committing the offense and will tell

the Court the facts and circumstances of my guilt. I know the judge may either sentence me

today or refer my case for a presentence report. ***.”          Russell stated at the plea hearing

that he had reviewed, understood, and signed the plea form. The court did not proceed

directly with sentencing; instead, it referred the matter for a presentence investigation.

Under these circumstances, Russell’s plea was not rendered invalid by the court’s failure to

orally inform him of the effect of his guilty plea or that the court may proceed with judgment

and sentencing.

        {¶ 12} Finally, Russell claims that the trial court did not properly inform him of his

right against self-incrimination. He states that the court gave the impression that he had a

constitutional right to testify, instead of a constitutional right not to testify.

        {¶ 13} The trial court reviewed Russell’s constitutional rights, as follows:

        {¶ 14} “THE COURT: Do you understand that you have the right to a trial in this

case?

        {¶ 15} “THE DEFENDANT: Yes, sir.

        {¶ 16} “THE COURT: At that trial you would have the right to require the State to

prove beyond a reasonable doubt each and every element of the offenses to which you’re
                                                                                            6

pleading guilty and you could only be convicted upon the unanimous verdict of a jury. You

would have the right to confront witnesses who testify against you, and your attorney could

cross-examine those witnesses. You would have the right to use the Court’s subpoena

power to compel the attendance of witnesses on your behalf and you would also have the

right to testify, but you could not be forced to do so. Do you understand those rights?

       {¶ 17} “THE DEFENDANT: Yes, sir.

       {¶ 18} “THE COURT: By pleading guilty you would be giving up all of these rights

that we’ve gone over. Are you telling the Court that you want to give those rights up and

plead guilty to Counts One, Four and Six of the indictment?

       {¶ 19} “THE DEFENDANT: Yes, sir.”

       {¶ 20} In this colloquy, the trial court informed Russell that he could not be

compelled to testify against himself and of his other constitutional rights. The court further

determined that Russell understood that, by entering his guilty plea, he was waiving his right

against self-incrimination as well as his other constitutional rights.

       {¶ 21} The first assignment of error is overruled.

                                                    II

       {¶ 22} Russell’s second assignment of error states:

       {¶ 23} “THE       TRIAL      COURT        ERRED       IN    IMPOSING     MAXIMUM,

CONSECUTIVE SENTENCES UPON APPELLANT.”

       {¶ 24} In his second assignment of error, Russell claims that the trial court failed to

consider the statutory policies behind felony sentencing, as set forth in R.C. 2929.11 and

R.C. 2929.12. Russell acknowledges that his sentences were within the statutory range, and
                                                                                           7

he does not argue that the imposition of maximum, consecutive sentences was an abuse of

discretion.

       {¶ 25} We review a felony sentence using a two-step procedure. State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. “The first step is to ‘examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.’” State v.

Stevens, 179 Ohio App.3d 97, 2008-Ohio-5775, ¶4, quoting Kalish at ¶4. “If this step is

satisfied, the second step requires that the trial court’s decision be ‘reviewed under an

abuse-of-discretion standard.’” Id.

       {¶ 26} The overriding purposes of felony sentencing are to protect the public from

future crime by the offender and others and to punish the offender. R.C. 2929.11(A).

Unless otherwise required by R.C. 2929.13 and R.C. 2929.14, the trial court has discretion to

determine the most effective way to comply with the purposes and principles of sentencing

set forth in R.C. 2929.11. R.C. 2929.12(A). The trial court must consider the seriousness

of the offender’s conduct and the likelihood of recidivism. R.C. 2929.12. It may also

consider any other factors that are relevant to achieving the purposes and principles of

sentencing.   R.C. 2929.12.    See, also, State v. Arnold, Clark App. No. 2008 CA 25,

2009-Ohio-3510, ¶8.

       {¶ 27} At sentencing, the court reviewed Russell’s presentence investigation report,

which revealed one prior conviction in 2006 for resisting arrest.         Russell’s counsel

discussed Russell’s mental illness, the fact that he was not on psychotropic medication when

the offenses were committed, his compliant behavior in jail since he has been taking
                                                                                            8

medication, and his acceptance of responsibility for his actions. The prosecutor reviewed

the underlying facts of the case, which included that Russell used wire cutters to sever

telephone lines into the victims’ house, broke a window and forced his way into the victims’

home, stabbed and cut the throat of one of the older women, threw another older woman

against a wall and broke her back, and held a third woman (his former girlfriend) at

knifepoint during a standoff with police.

       {¶ 28} In sentencing Russell to the maximum sentences on each count, to be served

consecutively, the court did not mention the principles and purposes of sentencing or the

seriousness and recidivism factors. When the record is silent, we generally presume that the

trial court complied with its duty to consider the factors set forth in R.C. 2929.11 and R.C.

2929.12. State v. Rice, Clark App. No. 2010 CA 7, 2011-Ohio-130, ¶12; State v. Bailey,

Montgomery App. No. 19849, 2004-Ohio-400, ¶6 (addressing R.C. 2929.12). “To rebut the

presumption, a defendant must either affirmatively show that the court failed to do so, or

that the sentence the court imposed is ‘strikingly inconsistent’ with the statutory factors as

they apply to his case.”       State v. Rutherford, Champaign App. No. 08 CA 11,

2009-Ohio-2071, ¶34.

       {¶ 29} The trial court’s sentencing entry states that the trial court “considered the

record, oral statements of counsel, the defendant’s statement, the pre-sentence investigation

report, the principles and purposes of sentencing under Ohio Revised Code Section 2929.11,

and has balanced the seriousness and recidivism factors under Ohio Revised Code Section

2929.12.” And, the sentence imposed by the court was not strikingly inconsistent with the

factors in R.C. 2929.11 and R.C. 2929.12 as they apply to this case. A judgment entry’s
                                                                                           9

inclusion of “magic language” indicating the trial court had considered the statutory factors

in imposing sentence does not necessarily mean that the court indeed sufficiently considered

those factors. See, e.g., State v. Gephart (May 5, 1995), Geauga App. No. 94-G-1861.

However, we find nothing in this record to overcome the presumption that the trial court

properly considered R.C. 2929.11 and R.C. 2929.12 in imposing sentence.

       {¶ 30} Based on the record, Russell’s sentence was neither contrary to law nor an

abuse of discretion.

       {¶ 31} The second assignment of error is overruled.

                                                 III

       {¶ 32} The trial court’s judgment will be affirmed.

                                        ..........

GRADY, P.J. and BROGAN, J., concur.

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Amy M. Smith
Marshall G. Lachman
Hon. Douglas M. Rastatter
