         [Cite as State v. Dean, 2016-Ohio-3076.]

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




STATE OF OHIO,                                      :   APPEAL NO. C-150478
                                                        TRIAL NO. B-1500171
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

LATEEF DEAN,                                        :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 20, 2016



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Judge.

         {¶1}    Defendant-appellant Lateef Dean has appealed from the trial court’s

entry convicting him, following guilty pleas, of aggravated robbery, felonious assault,

and accompanying weapon specifications.             Because the trial court incorrectly

informed Dean of the maximum sentence faced for the offense of aggravated

robbery, and then imposed a sentence for that offense greater than what it had stated

was the maximum sentence available, we hold that Dean’s pleas were not entered

knowingly, intelligently, and voluntarily.

                                  Factual Background


         {¶2}   Dean pled guilty to aggravated robbery, a felony of the first degree, and

felonious assault, a felony of the second degree. Both offenses had accompanying

weapon specifications. The trial court sentenced Dean to five years’ imprisonment

for the offense of aggravated robbery and two years’ imprisonment for the offense of

felonious assault. These sentences were made concurrent. Dean received a sentence

of three years’ imprisonment for each of the accompanying weapon specifications.

These sentences were made consecutive to each other and to the sentences imposed

for the underlying offenses, resulting in an aggregate sentence of 11 years’

imprisonment.

         {¶3}   Dean has raised four assignments of error for our review. Because the

resolution of his third assignment of error is dispositive of this appeal, we consider it

first.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                                     Crim.R. 11(C)


       {¶4}   In his third assignment of error, Dean argues that the trial court erred

in accepting his guilty pleas because they were not entered knowingly, intelligently,

and voluntarily because the trial court had incorrectly informed him of the maximum

sentence faced for the offense of aggravated robbery. The state concedes this error.

       {¶5}   Pursuant to Crim.R. 11(C), before accepting a plea of guilty or no

contest in a felony case, the trial court must address the defendant personally and, as

relevant to this appeal, make sure that the defendant understands the maximum

penalty faced. See Crim.R. 11(C)(2)(a). Because it did not involve a constitutional

right, the trial court needed to have substantially complied with this requirement.

See State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14.

Substantial compliance connotes 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). A trial

court’s failure to substantially comply with the nonconstitutional requirements of

Crim.R. 11(C) will not render a defendant’s plea unknowing, unintelligent, or

involuntary unless the defendant suffered prejudice. Id. A defendant demonstrates

prejudice by establishing that, but for the trial court’s failure to substantially comply

with the rule, the plea would not have otherwise been made. Id.

       {¶6}    Dean pled guilty to aggravated robbery, a felony of the first degree

that carried a sentencing range of three to 11 years’ imprisonment. But during

Dean’s plea colloquy, the trial court informed him that he faced a maximum sentence

of three years’ imprisonment for this offense. Despite this stated maximum, the

court then imposed a sentence of five years’ imprisonment for the offense of




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                      OHIO FIRST DISTRICT COURT OF APPEALS



aggravated robbery. We hold that, by informing Dean that the maximum sentence

available for a first-degree felony was three years’ imprisonment, the trial court

failed to substantially comply with Crim.R. 11(C)(2)(a).

       {¶7}    We further hold that Dean suffered prejudice. He received a sentence

of imprisonment that was two years greater than what he had been informed was the

maximum sentence that he could receive. Because Dean had been informed that he

faced a maximum sentence of three years’ imprisonment for the offense of

aggravated robbery, we cannot say that he would have still entered his plea had he

known that he could be subjected to five years of imprisonment. In other words, the

trial court’s misstatement of the maximum sentence may have induced Dean into

pleading guilty. See State v. Carney, 7th Dist. Belmont No. 06 BE 18, 2007-Ohio-

3180, ¶ 27 (June 21, 2007); State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220,

879 N.E.2d 829, ¶ 56 and 70 (7th Dist.).

       {¶8}    Dean’s pleas must be vacated because he did not enter them

knowingly, intelligently, and voluntarily. The third assignment of error is sustained.

Dean’s first, second, and fourth assignments of error are rendered moot by our

disposition of the third assignment of error.

       {¶9}    In conclusion, we vacate Dean’s guilty pleas, reverse his convictions,

and remand this cause for further proceedings consistent with the law and this

opinion.

                                                Judgment reversed and cause remanded.



FISCHER, P.J., and STAUTBERG, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.


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