[Cite as State v. Johnson, 2016-Ohio-480.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                           C.A. No.    27550

          Appellee

          v.                                            APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
DUANE JOHNSON                                           AKRON MUNICIPAL COURT
                                                        COUNTY OF SUMMIT, OHIO
          Appellant                                     CASE No.   14CRB4243

                                 DECISION AND JOURNAL ENTRY

Dated: February 10, 2016



          SCHAFER, Judge.

          {¶1}   Defendant-Appellant, Duane Johnson, appeals the judgment of the Akron

Municipal Court convicting him of making false alarms and denying his motion to withdraw his

guilty plea. For the reasons that follow, we reverse.

                                                I.

          {¶2}   Johnson was charged with one count of making false alarms in violation of Akron

Codified Ordinance 132.09(A)(3), a misdemeanor of the first degree. He pled not guilty to the

charge at the first pretrial hearing. At the second pretrial hearing, the State and Johnson entered

into a plea agreement whereby Johnson executed a written waiver of rights and pled guilty to the

charge. On September 11, 2014, the trial court issued a judgment entry stating that Johnson pled

guilty and received a jail term of 180 days with 165 days suspended and 15 days credit for time

served.
                                                 2


       {¶3}    Approximately two months after the change of plea hearing, Johnson filed a

motion to withdraw his guilty plea on the basis that he was under psychological stress at the time

of the hearing. The trial court conducted a hearing on the motion at which Johnson presented

testimony to that effect. The trial court summarily denied Johnson’s motion.

       {¶4}    Johnson filed a notice of appeal indicating that he was appealing from the

September 11, 2014 judgment entry. Because Johnson did not attach a copy of this entry to his

docketing statement, we ordered him to do so. Johnson complied with our order and moved to

amend the notice of appeal to reflect that he was appealing from the denial of his motion to

withdraw his guilty plea, not the September 11, 2014 judgment entry. Nevertheless, upon review

of the judgment entry, we concluded that it was not final and appealable since it did not include

the offense, which rendered the ruling on Johnson’s motion to withdraw his guilty plea an

interlocutory order. Consequently, we remanded this matter to allow the trial court to remedy

the issue. After the trial court issued a nunc pro tunc entry to correct this deficiency, we granted

Johnson’s motion to amend the notice of appeal to allow an appeal from both the denial of his

motion to withdraw his guilty plea and the judgment of conviction and sentence and we

supplemented the record with the nunc pro tunc entry.            Johnson’s appeal presents three

assignments of error for our review with the first and second assignments of error challenging

the judgment of conviction and sentence and the third assignment of error challenging the trial

court’s denial of his motion to withdraw his guilty plea.

                                                II.

                                     Assignment of Error II

       The trial court committed error as a matter of law in accepting a guilty plea
       without engaging in a meaningful dialogue with Appellant before accepting
       the plea.
                                                  3


       {¶5}    In his second assignment of error, Johnson argues that the trial court erred by

accepting his guilty plea without ensuring that it was entered in a knowing, intelligent, and

voluntary manner. We agree.

       {¶6}    “A plea is invalid when it has not been entered in a knowing, intelligent, and

voluntary manner.” State v. Karmasu, 9th Dist. Summit No. 25210, 2011-Ohio-3253, ¶ 33,

citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 25. “The procedure to be followed

in a misdemeanor plea depends on the classification of the offense.” State v. Klingsbergs, 9th

Dist. Wayne No. 10CA0044, 2011-Ohio-6509, ¶ 7, citing Crim.R. 11(D), (E). Since making

false alarms is a first-degree misdemeanor with a maximum jail term of 180 days, it is

considered a petty offense. See Crim.R. 2(D); Klingsbergs at ¶ 7. Pursuant to Crim.R. 11(E),

“[i]n misdemeanor cases involving petty offenses the court * * * shall not accept [a guilty plea]

without first informing the defendant of the effect of the plea[.]”

       {¶7}    “To satisfy the requirement of informing a defendant of the effect of a plea, a trial

court must inform the defendant of the appropriate language under Crim.R. 11(B).” State v.

Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, paragraph two of the syllabus; see also State v.

Beach, 9th Dist. Summit Nos. 26021, 27124, 2015-Ohio-3445, ¶ 30. Since Johnson pled guilty

to the charge in this matter, the trial court consequently had to inform him, under Crim.R.

11(B)(1), that “[t]he plea of guilty is a complete admission of the defendant’s guilt.”       While

“[l]iteral compliance with Crim.R. 11 is preferred,” such compliance is not required when the

trial court informs the defendant of a nonconstitutional right, Beach at ¶ 31, citing State v. Clark,

119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 29-32, such as “[t]he right to be informed that a guilty

plea is a complete admission of guilt,” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶
                                                 4


12. Consequently, in cases involving the trial court’s explanation of the effect of a guilty plea,

we must only engage in “a substantial compliance analysis.” Griggs at ¶ 12.

       {¶8}    Under this standard of review, “a slight deviation from the text of the rule is

permissible[] so long as the totality of the circumstances indicates that ‘the defendant

subjectively understands the implications of his plea and the rights he is waiving[.]’” Clark at ¶

31, quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990). If the trial court did not substantially

comply with Crim.R. 11 when addressing a nonconstitutional right, we “must determine whether

the trial court partially complied or failed to comply with the rule.” (Emphasis sic.) Id. at ¶ 32.

When the trial court partially complies with the rule, the defendant must demonstrate prejudice.

Id. But, the trial court’s “complete failure to comply with the rule will result in [the vacating] of

the plea, regardless of whether prejudice has been shown.” Beach at ¶ 31, citing Clark at ¶ 32;

see also Cleveland v. Adams, 8th Dist. Cuyahoga No. 97523, 2012-Ohio-1063, ¶ 9 (determining

that defendant convicted of petty offense misdemeanor need not demonstrate prejudice when the

trial court “completely fails to comply with [Crim.R. 11]”).

       {¶9}    The transcript of the change of plea hearing in this matter reflects the following

proceedings:

       The Court: Mr. Duane Johnson, who’s in custody. Sir, I just want to let you know
       that I’m writing this offer up just as it shows. I’m going to give you credit time
       served for your plea of guilty to making false alarms and you’ll be finished with
       your case today, okay.
               All right. Why don’t you come on out? Sir, I just wanted to let you know
       that I’m writing this plea up as the plea offer states and giving you credit time
       served for the time that you’ve spent in jail, okay, and you’ll be released today.

       Johnson: Today I go home?

       The Court: Today you go home.

       Johnson: [Inaudible].
                                                 5


       The Court: Today you go home.

       Johnson: [Inaudible].

       The Court: All right. Okay. My bailiff is writing a letter to that effect.

The transcript does not include any other dialogue between Johnson and the trial court.

       {¶10} Our review of this transcript reveals a complete absence of any discussion

indicating that the trial court informed Johnson about the effect of his plea. The only dialogue

involved the trial court confirming that Johnson would be released from jail after the change of

plea hearing concluded. Indeed, the trial court did not even ask Johnson whether he pled guilty

to the charge nor did Johnson enter his guilty plea in open court.1 See Cleveland v. Paramount

Land Holdings, L.L.C., 8th Dist. Cuyahoga No. 95448, 2011-Ohio-3383, ¶ 13 (“At its most basic

level, the court failed to comply with Crim.R. 11 because it failed to even take the plea of no

contest from [the defendant].”). Due to the lack of any indication in the record that the trial court

informed Johnson of the effect of his guilty plea, we determine that there is a complete lack of

compliance with Crim.R. 11. In light of this, there is no need for Johnson to demonstrate

prejudice from the trial court’s noncompliance with Crim.R. 11.              See Adams at ¶ 8-9

(determining that the trial court completely failed to “strictly or substantially” comply with

Crim.R. 11 since “[a] review of the transcript * * * reveals that the trial court did not advise [the

defendant] of the effect of the no contest pleas”).       As a result, we conclude that Johnson’s

guilty plea was invalid and that his conviction must be reversed.

       {¶11} Accordingly, we sustain Johnson’s second assignment of error and reverse his

conviction.



       1
        We also note that the trial court failed to make a finding of guilt in open court and failed
to pronounce sentence while Johnson was physically present in the courtroom.
                                                 6


                                     Assignment of Error I

       The trial court erred to the detriment of Appellant Johnson’s constitutional
       due process right to an appeal of his conviction by failing to preserve a
       record of a transcript of proceedings.

                                    Assignment of Error III

       The trial court erred in denying Appellant Johnson’s motion to vacate his
       guilty plea.

       {¶12} Our resolution of Johnson’s second assignment of error renders his remaining

assignments of error moot and we decline to address them. See App.R. 12(A)(1)(c).

                                                III.

       {¶13} Having sustained Johnson’s second assignment of error, the Akron Municipal

Court’s judgment of conviction and sentence is hereby reversed. This matter is remanded for the

trial court to vacate Johnson’s guilty plea and for other proceedings consistent with this opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                                7


       Costs taxed to Appellee.




                                                    JULIE A. SCHAFER
                                                    FOR THE COURT




HENSAL, J.
CONCURS.

MOORE, P. J.
CONCURRING.

       {¶14} Given the particular circumstances of this case, including the extremely brief

colloquy at which the trial court failed to inform Mr. Johnson of the effect of his guilty plea, I

agree that Mr. Johnson’s plea must be vacated and the matter remanded for further proceedings.


APPEARANCES:

NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief City Prosecutor, and
ELISA B. HILL, Assistant City Prosecutor, for Appellee.
