[Cite as State v. Fannon, 2019-Ohio-1752.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :   APPEAL NO. C-180270
                                                 TRIAL NO. B-1406830
        Plaintiff-Appellee,                  :

  vs.                                        :     O P I N I O N.

TERRENCE W. FANNON,                          :

     Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 8, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William F. Oswall, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

   {¶1}       This appeal raises a pair of sentencing questions: for purposes of

Crim.R. 11, what constitutes substantial compliance with nonconstitutional

notification requirements in the context of a sex offender’s tier classification, and

what constitutes substantial compliance with nonconstitutional notification

requirements in the context of a defendant’s maximum sentence?                 Due to

deficiencies within the sentencing entry before us, however, we can only reach the

substance of the second question. For the following reasons, we affirm the judgment

below.

   {¶2}       Terrence W. Fannon pleaded guilty to one charge of first-degree felony

rape and one charge of third-degree felony gross sexual imposition, and he received a

13-year sentence. Prior to accepting his pleas, the trial court informed him on the

record that he would be classified as a Tier III sexual offender, and referred to the

applicability of lifetime registration requirements and in-person verification every 90

days. The trial court explained the applicable sentence ranges and pointed him to his

“Entry Withdrawing Plea of Not Guilty,” which reflected mandatory prison terms.

   {¶3}       Mr. Fannon now appeals his convictions. In his first assignment of

error, Mr. Fannon argues that his pleas were not knowing, intelligent, or voluntary

for purposes of Crim.R. 11, and therefore must be vacated, because he was not given

proper notice of his Tier III classification and registration requirements. As an

independent basis for reversal, he maintains in his second assignment of error that

he was not advised that the sentence for rape was mandatory.

   {¶4}       We begin with Mr. Fannon’s sex-offender classification.        Although

noted on the record at the hearing and documented in detail in the “Explanation of

Duties to Register as a Sex Offender,” the November 8, 2017 judgment entry itself



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                      OHIO FIRST DISTRICT COURT OF APPEALS


(encompassing the convictions and sentences) does not actually include a reference

to a Tier III classification (or a classification of any kind) corresponding to Mr.

Fannon’s offenses. “A trial court speaks through its journal entries” as to sanctions,

and not through “ ‘what is said on the record during the sentencing hearing.’ ”

(Citations omitted.) State v. Hildebrand, 1st Dist. Hamilton No. C-150046, 2018-

Ohio-2962, ¶ 7, quoting State v. Halsey, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th

Dist.). This court has therefore held that “proper tier classification must be included

in the judgment of conviction.” State v. Merritt, 1st Dist. Hamilton No. C-170649,

2018-Ohio-4995, ¶ 3, citing State v. Rucker, 1st Dist. Hamilton No. C-150434, 2016-

Ohio-5111, ¶ 11, appeal not allowed, 148 Ohio St.3d 1411, 2017-Ohio-573, 69 N.E.3d

751. Short of its inclusion, we have held that “there is no order in place requiring

[the defendant] to register as a sex offender.” Hildebrand at ¶ 10.

   {¶5}        We therefore overrule Mr. Fannon’s first assignment of error,

because—like the defendant in Merritt—“we cannot decide and [the defendant]

cannot show that his guilty pleas were not knowing, intelligent, and voluntary on the

basis that he was not informed about community notification and residency

restrictions, because those sanctions were never imposed.” Merritt at ¶ 7. In other

words, a defendant cannot effectively appeal a sentence that was not imposed.

   {¶6}        Mr. Fannon next argues that he was not properly advised of the

mandatory nature of his sentence. A trial court must substantially comply with

nonconstitutional notification requirements under Crim.R. 11. “Literal compliance

with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did

not do so does not require vacation of the defendant’s guilty plea if the reviewing

court determines that there was substantial compliance.” (Citation omitted.) State

v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance



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                     OHIO FIRST DISTRICT COURT OF APPEALS


means that under the totality of the circumstances the defendant subjectively

understands the implications of his plea and the rights he is waiving.” (Citations

omitted.)   Id.   Generally, vacating a plea on this basis requires a showing of

prejudice—that “the plea would not have otherwise been made.” State v. Maggard,

1st Dist. Hamilton No. C-100788, 2011-Ohio-4233, ¶ 6, citing State v. Stewart, 51

Ohio St.2d 86, 364 N.E.2d 1163 (1977). Under Crim.R. 11(C)(2)(a), “[i]n felony cases

the court * * * shall not accept a plea of guilty * * * without first addressing the

defendant personally and * * * [d]etermining that the defendant is making the plea

voluntarily, with understanding of the nature of the changes and of the maximum

penalty involved.”

   {¶7}       Mr. Fannon urges adherence to Maggard, in which we reversed no-

contest rape pleas where the pleas were not knowingly entered.            In Maggard,

however, the trial court affirmatively misrepresented to the defendant that his

sentence would not include mandatory prison time, a misrepresentation that

defendant’s trial counsel reaffirmed. Id. at ¶ 17. Under those circumstances, we

vacated the subject pleas.

   {¶8}       The state, for its part, points to State v. Lunsford, 1st Dist. Hamilton

No. C-850057, 1985 WL 4499 (Dec. 18, 1985), in which this court found that a

colloquy including a discussion of the maximum sentence and specific reference to

the entry withdrawing plea substantially complied with Crim.R. 11(C)—even though

the trial court did not advise the defendant that he was ineligible for probation.

Whether we consider an omission or misinformation, we must ensure that the

defendant understands the implications of the plea and the rights he is relinquishing.

   {¶9}       The only part of the colloquy that raises concern in this case is the trial

court’s mention of community control, which is not applicable to a rape sentence.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


Under the totality of the circumstances, however, inclusion of this admittedly

inaccurate point does not rise to the level of a misrepresentation that would have

affected Mr. Fannon’s decision to plead. The trial court addressed Mr. Fannon

regarding the range of prison terms and fines associated with his offenses, and it

accurately informed him of the maximum sentence that he faced.                The “Entry

Withdrawing Plea of Not Guilty” indicates that a mandatory prison term is

associated with each offense, the trial court specifically directed Mr. Fannon’s

attention to this document, and there is no allegation that this document contained

any misinformation.     Therefore, Mr. Fannon cannot credibly maintain that the

court’s stray comment about community control led him to believe he was not going

to be incarcerated (nor does the record reflect any confusion on his part).

   {¶10}      In sum, it does not appear from a comprehensive reading of the record

that Mr. Fannon was unaware of or confused about the applicability of mandatory

prison time as a result of his pleas. This case is more in line with Lunsford, and it is

distinguishable from Maggard and cases in similar vein where there was either a

complete omission in the colloquy of the maximum penalty or misrepresentation of

the mandatory nature of the defendant’s sentence.         We therefore overrule Mr.

Fannon’s second assignment of error.

   {¶11}      For the foregoing reasons, we affirm the decision of the trial court and

overrule both assignments of error.

                                                                   Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.

Please note:
       The court has recorded its own entry this date.




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