[Cite as State v. Balidbid, 2012-Ohio-1406.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :            C.A. CASE NO.    24511

v.                                                         :            T.C. NO.   10 CR 3244

BILLY BALIDBID                                             :            (Criminal appeal from
                                                                        Common Pleas Court)
        Defendant-Appellant                     :

                                                           :

                                               ..........

                                               OPINION

                          Rendered on the           30th       day of      March     , 2012.

                                               ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

WILLIAM A. SHIRA, III, Atty. Reg. No. 0005472, 432 Silvercrest Terrace, Dayton, Ohio
45440
      Attorney for Defendant-Appellant

and

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

                                               ..........
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FROELICH, J.

                 {¶ 1} Billy Balidbid pled guilty to rape by force or threat of force, in

violation of R.C. 2907.02(A)(2), and kidnapping, in violation of R.C. 2905.01(A)(4), both

first degree felonies. In exchange for the plea, the State agreed not to pursue charges for

three additional rapes involving other victims. At sentencing, the trial court concluded that

the rape and kidnapping charges were not allied offenses of similar import, and it imposed

ten years in prison for the rape and eight years for the kidnapping, to be served

consecutively.    Balidbid was also sentenced to a mandatory five years of post-release

control and informed that he was classified as a Tier III sex offender.

       {¶ 2}     Balidbid appealed from his convictions. He claimed that his plea was not

knowing, intelligent, and voluntary, because he was improperly informed that he was

eligible for community control. Balidbid died on November 3, 2011, while in the custody

of the Ohio Department of Rehabilitation and Correction. We have granted the State’s

motion to substitute Balidbid’s appellate counsel, William A. Shira, III, as Balidbid’s

representative in this appeal. App.R. 29.

       {¶ 3}      For the following reasons, the trial court’s judgment will be reversed, and

the matter will be remanded to the trial court.

       {¶ 4}      In determining whether to accept a defendant’s guilty plea, the trial court

must determine whether the defendant knowingly, intelligently, and voluntarily entered the

plea. State v. Johnson, 40 Ohio St.3d 130, 532 N.E.2d 1295 (1988), at syllabus. “If a

defendant’s guilty plea is not knowing and voluntary, it has been obtained in violation of due
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process and is void.”     State v. Brown, 2d Dist. Montgomery Nos. 24520 & 24705,

2012-Ohio-199, ¶ 13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23

L.Ed.2d 274 (1969). In order for a plea to be given knowingly and voluntarily, the trial

court must follow the mandates of Crim. R. 11(C). Brown at ¶ 13.

       {¶ 5}      Crim.R. 11(C)(2) requires the court to (a) determine that the 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 [or no contest] 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, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3. See also

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 27.

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

Crim.R. 11.     Clark at ¶ 29.   However, because Crim.R. 11(C)(2)(a) and (b) involve

non-constitutional rights, the trial court need only substantially comply with those

requirements.    E.g., State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

“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.” Id. In
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contrast, the trial court must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to the

waiver of federal constitutional rights. Clark at ¶ 31.

       {¶ 7}      Furthermore, when nonconstitutional rights are at issue, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶17. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15. Where the trial court completely fails

to comply with Crim.R. 11(C)(2)(a) or (b), however, “an analysis of prejudice” is not

implicated. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 22.

       {¶ 8}     Balidbid and the State agree that Balidbid’s rape conviction carried a

mandatory prison sentence under R.C. 2929.13(F)(2) and that he was ineligible for

community control. At the time of Balidbid’s plea, however, counsel for both the State and

Balidbid, as well as the trial court, apparently believed that Balidbid was eligible for

community control and was not subject to a mandatory prison sentence. The trial court told

Balidbid at the plea hearing:

               THE COURT: Okay. Now, each of those [charges] is a felony of the

       first degree. As such, they carry maximum potential penalties of a $20,000

       fine on each and three, four, five, six, seven, eight, nine, or 10 years in prison

       on each for a total of 20 years. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: Now – is there a technical eligibility for community

       control in this case?
                                                                                          5

               [THE PROSECUTOR:] There is.

               THE COURT: Okay.            Now, technically you’re eligible for

       community control sanctions or probation. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: If you were to get that, that could last for as long as

       five years and could involve six months in jail. Do you understand that?

               THE DEFENDANT: Yes.

               THE COURT: Okay. And nobody’s promised you that if you plead

       today, that you would get community control, have they?

               THE DEFENDANT: Yes.

               THE COURT: Did anybody promise you that if you plead today,

       you’ll get probation?

               THE DEFENDANT: (Shaking head.)

               THE COURT: Okay. You got to say it out loud, sir.

               THE DEFENDANT: No, sir.

       {¶ 9}   After entering pleas of guilty to rape and kidnapping, Balidbid signed a

Waiver and Plea form, in open court, which also indicated that he was eligible to be

sentenced to community control. At the conclusion of the plea hearing, the trial court asked

defense counsel and the prosecutor if “either of you know about – there’s no felony one or

two convictions that – for this – that would make it a mandatory prison time.” Both defense

counsel and the prosecutor responded, “No, Your Honor.”

       {¶ 10} When a defendant on whom a mandatory prison sentence must be imposed
                                                                                              6

enters a plea of guilty or no contest, the court must, before accepting the plea, determine the

defendant's understanding that the defendant is subject to a mandatory sentence and that the

mandatory sentence renders the defendant ineligible for probation or community control

sanctions. Crim.R. 11(C)(2)(a); e.g., State v. Byrd, 178 Ohio App.3d 646, 2008-Ohio-5515,

899 N.E.2d 1033 (2d Dist.); State v. Miller, 2d Dist. Clark No. 08 CA 90, 2010-Ohio-4760,

¶ 12; State v. Howard, 2d Dist. Champaign No. 06-CA-29, 2008-Ohio-419.

       {¶ 11}    Here, the trial court not only failed to inform Balidbid that he was subject to

a mandatory prison term, it expressly told him that he was eligible for community control.

This was reenforced by defense counsel and the prosecutor at the conclusion of the hearing,

both of whom told the court that Balidbid was not subject to a mandatory sentence, and by

the plea form, which was not corrected by counsel or the trial court. The plea colloquy not

only failed to substantially comply with Crim.R. 11(C)(2)(a), but it provided misleading

information as to the availability of community control as a viable sanction and to the nature

of any prison sentence that might be imposed.

       {¶ 12}    Moreover, even if Balidbid believed that community control was unlikely,

such an understanding would not constitute substantial compliance, given the mandatory

nature of his sentence.      In State v. Howard, 2d Dist. Champaign No. 06-CA-29,

2008-Ohio-419, we reversed the defendant’s conviction and remanded for further

proceedings when Howard was informed that he eligible for, but would likely not receive,

community control. We reasoned:

                The effect of Howard’s plea was that he would be subject to a

       mandatory prison term that would render him ineligible for the imposition of
                                                                                          7

       community control sanctions. He could not have appreciated this effect of

       his plea, because he was misadvised by the trial court that he would be

       eligible for the imposition of community control sanctions. Ineligibility for

       (as opposed to the unlikelihood of) the imposition of community control

       sanctions is deemed to be a sufficiently important effect of a plea of guilty or

       no contest that it is specifically incorporated in Crim. R. 11(C)(2)(a) as a

       subject that must be specifically addressed by the trial court, concerning

       which the defendant’s understanding must be specifically determined by the

       trial court.

               We conclude that the trial court’s having advised Howard that the

       imposition of community control sanctions was unlikely in his case did not

       satisfy the requirement, under the Rule, that the trial court determine that

       Howard understood that he was not eligible for the imposition of community

       control sanctions, especially where the trial court affirmatively mis-advised

       Howard that he was eligible for the imposition of community control

       sanctions. Howard at ¶ 25-26.

       {¶ 13} The State argues that Balidbid nevertheless has failed to establish that he

was prejudiced by the trial court’s plea colloquy regarding community control. The State

emphasizes that the court told Balidbid that he was “technically” eligible for community

control and that Balidbid acknowledged that he had not been promised community control in

exchange for his plea.      The State further notes that Balidbid told the presentence

investigator that he would live with his mother after his release from prison, and defense
                                                                                           8

counsel’s sentencing memorandum did not advocate for community control. The State

summarizes its argument as follows: “Balidbid never had any expectation of returning to the

community. He knew he was going to prison. That is evident from his statements at the

plea hearing, his failure to ask questions at the hearing, his statements during the

pre-sentence investigation, and the statements of his counsel in the sentencing memorandum

and at sentencing.”

       {¶ 14} Even assuming an analysis of prejudice were required in this case, we cannot

accept the State’s representation of Balidbad’s expectations. Balidbid did not make any

statements at the plea hearing that expressed an understanding that he would be going to

prison. His acknowledgment that he had not been promised community control in exchange

for his plea was simply a statement that he was not promised community control; it was not

an admission that he understood that he would be going to prison and that community

control would not be imposed. And, although Balidbid told the presentence investigator

that he would live with his mother “once he is released from prison,” there is nothing to

support the conclusion that, at the time of his plea, he understood that the court would be

imposing a prison sentence. The trial court did not overstate the penalty that Balidbid could

have received; to the contrary, it misrepresented that he was eligible to receive a more

lenient sanction when he was not.

       {¶ 15}   It may be that everyone in the courtroom “knew” that Balidbad was going

to be sentenced to prison. One of the reasons behind the mandatory language of Crim.R.

11(C)(2)(a) appears to be to avoid a retrospective analysis of “what did he know and when

did he know it.” For the foregoing reasons, Balidbid’s assignment of error is sustained.
                                                                                         9

        {¶ 16} The trial court’s judgment will be reversed, and the matter will be remanded

to the trial court.

                                        ..........

GRADY, P.J. and FAIN, J., concur.

Copies mailed to:

Kirsten A. Brandt
William A. Shira, III
Robert Alan Brenner
Hon. Gregory F. Singer
