[Cite as State v. Whitfield, 2016-Ohio-490.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102554




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                DARNELL WHITFIELD
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                        Case Nos. CR-14-582437-A and CR-14-586654-A

        BEFORE: Laster Mays, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: February 11, 2016
                              -i-

ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Denise J. Salerno
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Darnell Whitfield (“Whitfield”), filed a pro se notice of

appeal in two different cases, however the cases were consolidated, pursuant to App.R.

3(B) for purposes of this appeal. In the first case, Whitfield pleaded guilty to having a

weapon while under disability in addition to a forfeiture specification, in violation of R.C.

2923.13(A)(2), a third-degree felony.      The trial court found Whitfield amenable to

community control sanctions, and Whitfield was remanded for placement in the

community-based correctional facility. Whitfield was advised that if he violated the

terms of his community control, he would be sentenced to 36 months in prison.

       {¶2} In the second case, Whitfield pleaded guilty to three counts of rape with a

three-year gun specification, in violation of R.C. 2907.02(A)(2), a first- degree felony.

He also pleaded guilty to two counts of aggravated robbery, in violation of R.C.

2911.01(A)(1), a first-degree felony. The trial court classified Whitfield as a sexual

predator and sentenced Whitfield to 24-years imprisonment.

       {¶3} After a review of the record, Whitfield’s plea is vacated and remanded to the

trial court. Whitfield assigns three errors for our review. For ease of review, we will

address assignment of error two first, but assignment of error one is dispositive of the

case, and we need not address the third:

       I.    The trial court erred by accepting the appellant’s guilty pleas when the
       trial court failed to determine that the appellant understood the maximum
       penalties involved as required by Crim.R. 11(C)(2).
      II.   The appellant received ineffective assistance of counsel at the time of
      his plea thereby rendering his convictions void under the Sixth and
      Fourteenth Amendments of the United States Constitution and Article I,
      Section 16 of the Ohio Constitution.

      III. The evidence is insufficient, as a matter of law, to prove by clear and
      convincing evidence that appellant is likely to engage in the future in one or
      more sexually oriented offenses.

I.    Facts and Procedural Posture

      {¶4} Whitfield was charged in a ten-count indictment for the rape and kidnapping

of three women in 1997, 1998, and 2001. DNA analysis was not available then, and

Whitfield was not charged with rape until the Bureau of Criminal Investigation (“BCI”)

tested the DNA from the victims’ assault kits. The DNA matched Whitfield’s DNA.

He pleaded guilty and was sentenced.        During the plea colloquy, when the judge

reviewed the counts Whitfield pleaded guilty to, he stated, “[Counselor], there was no

PRC [postrelease control] back in 98, correct?”, and “Or in 2000, 2001 rather. PRC

does not apply.” Tr. 220. However, at sentencing, the judge stated,

      * * * as part of your sentence, when you are released from the penitentiary
      you’ll be subject to a period of supervision by the Ohio Adult Parole
      Authority. This will be for a mandatory five-year period. If you violate
      any postrelease control rule or condition, you may be subject to a more
      restrictive rule or condition, a longer duration under supervision, or you
      may be sent back to prison even though you had done all the time to which
      you had been sentenced.
      You could get up to nine months in prison for each rule violation. The
      total, however, for all rule violations cannot be any more than one-half of
      the prison sentence you receive, unless the rule violation is for the
      commission of a new felony, in which case you could receive a prison term
      the greater of one year or the time remaining on post-release control, in
      addition to any time you receive for the new felony. The PRC prison term
      must be served consecutively to any prison term received for the new
      felony. (Tr. 278-279.)
Accordingly, Whitfield was not advised of PRC at the plea.            Because there was a

discrepancy between what the judge stated at the plea colloquy and what he stated at

sentencing, Whitfield has filed this timely appeal.

II.    Ineffective Assistance of Counsel

       {¶5} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial.           State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a

convicted defendant complains of the ineffectiveness of counsel’s assistance, the

defendant must show that counsel’s representation fell below an objective standard of

reasonableness. Strickland at 688.     Judicial scrutiny of defense counsel’s performance

must be highly deferential. Id. at 689.     In Ohio, there is a presumption that a properly

licensed

attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

       {¶6} Even assuming that counsel’s performance was ineffective, the defendant

must still show that the error had an effect on the judgment.        State v. Bell, 8th Dist.

Cuyahoga No. 102141, 2015-Ohio-4178, ¶ 60, citing State v. Bradley, 42 Ohio St.3d 136,

142, 538 N.E.2d 373 (1989).          Reversal is warranted only where the defendant

demonstrates that there is a reasonable probability that, but for counsel’s errors, the result

of the proceeding would have been different. Id.
       {¶7} Whitfield, in his second assignment of error, argues that he received

ineffective assistance of counsel at the time of his plea because his trial counsel failed to

file a pretrial motion to dismiss due to prejudicial preindictment delay. To prevail on this

claim, Whitfield must show that (1) his counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense so as to deprive Whitfield of a fair trial.

Failure to establish either element is fatal to the claim. Therefore, if one element is

dispositive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389,

2000-Ohio-448, 721 N.E.2d 52 (stating that a defendant’s failure to satisfy one of the

elements “negates a court’s need to consider the other.”).

       {¶8} The state, in this case, did not delay Whitfield’s indictment.   This case was a

cold rape case where the assailant was unknown until the DNA that was collected in the

rape kit was tested.

       While the use of the actual prejudice standard sets a high bar to proving
       pre-indictment delay, the bar is set high because the statute of limitations
       unquestionably gives the state 20 years in which to commence a rape
       prosecution. See R.C. 2901.13(A)(3)(a). It is for this reason that the
       concept of pre-indictment delay is designed to protect defendants only from
       government abuses of the statute of limitations; hence the notion that
       pre-indictment delay exists not only when the defendant can show actual
       prejudice, but that the state has, in addition, purposely delayed bringing a
       prosecution to obtain a tactical advantage or for some other “impermissible”
       reason. The law requires a defendant to do more than offer mere
       speculation as to how he was prejudiced by any delay because requiring less
       would undermine the statute of limitations.

State v. Owens, 8th Dist. Cuyahoga No. 102276, 2015-Ohio-3881, ¶ 5. This indictment

was within the 20-years statute of limitations. Whitfield has not shown actual prejudice

that the state purposely delayed prosecution to obtain a tactical advantage or for some
other impermissible reason.   In fact, once the state matched Whitfield’s DNA through a

Combined DNA Index System (“CODIS”) hit, they proceeded with the case.                    A

preindictment delay issue does not exist. We find that Whitfield has not shown that he

was denied effective assistance of counsel in violation of his rights guaranteed to him by

Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments

of the United States Constitution. We overrule Whitfield’s second assignment of error.

III.   Accepting the Guilty Plea

       {¶9} In his first assignment of error, Whitfield argues that the trial court erred by

accepting his guilty pleas when the trial court failed to determine that he understood the

maximum penalties involved as required by Crim.R. 11(C)(2). This court reviews de novo

whether the trial court accepted a plea in compliance with Crim.R. 11(C). State v.

Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 22.

       {¶10} Rigorous adherence to the requirements of Crim.R. 11(C)(2)(c), or strict

compliance, is required for constitutional rights. However, for nonconstitutional rights,

substantial compliance is sufficient. When a court deviates from the text of Crim.R. 11

for nonconstitutional rights, substantial compliance will be found when, examining the

totality of the circumstances, the record indicates that “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). An explanation of the maximum penalty is

required by Crim.R. 11(C)(2)(a). This is a nonconstitutional right, so this court will look

for substantial compliance. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 31; State v. Pluhar, 8th Dist. Cuyahoga No. 102012, 2015-Ohio-3344, ¶ 8.

A complete failure to comply with the rule does not implicate an analysis of prejudice.

Sarkozy, at ¶ 22.

       {¶11} Under this standard, slight deviations are permissible, so long as

the totality of the circumstances indicate that the defendant subjectively understood the

implications of his plea.     State v. Phillips, 12th Dist. Butler No. CA2008-05-126,

2009-Ohio-1448, ¶ 13, citing Clark at ¶ 31. With regard to a nonconstitutional right, the

reviewing court must determine whether the trial court partially complied or whether it

failed to comply with the rule. Id. at ¶ 32. If the trial court partially complied, the plea

may be vacated only if the defendant demonstrates a prejudicial effect, that is, that he

would not have entered the plea. Id.; Nero at 108.       If the trial court completely failed

to comply with the rule, the plea must be vacated.    State v. Sarkozy, 117 Ohio St.3d 86,

2008-Ohio-509, 881 N.E.2d 1224, ¶ 7.     However, “a complete failure to comply with the

rule does not implicate an analysis of prejudice.” Id. at ¶ 22.

       {¶12} Whitfield contends that because the judge stated at the plea colloquy, that

postrelease control did not apply and then stated at sentencing, that he would be under

postrelease control, the judge did not substantially comply with Crim.R. 11. Crim.R.

11(C)(2) requires a trial court, before accepting a guilty plea, to address the defendant

personally to (1) determine that the defendant is making the plea voluntarily, with an

understanding of the nature of the charges and the maximum penalty; (2) inform the

defendant of and determine that the defendant understands the effect of the guilty plea,
and that the court may proceed with judgment after accepting the plea; and (3) inform the

defendant and determine that the defendant understands that he is waiving his rights to a

jury trial, to confront the witnesses against him, to call witnesses in his favor, and to

require the state to prove his guilt beyond a reasonable doubt at a trial where the

defendant cannot be forced to testify against himself.

       {¶13} Whitfield contends that he did not understand the maximum penalties

involved with pleading guilty, thus he was prejudiced. Furthermore, this court in 2009

held that a trial court’s failure to strictly adhere to Crim.R. 11(C)(2)(c) will not

automatically require a trial court to vacate a guilty plea. State v. Soltis, 8th Dist.

Cuyahoga No. 92574, 2009-Ohio-6636, ¶ 20. However, in Sarkozy, the court stated:

       The trial court did not merely misinform Sarkozy about the length of his
       term of postrelease control. Nor did the court merely misinform him as to
       whether postrelease control was mandatory or discretionary. Rather, the
       court failed to mention postrelease control at all during the plea colloquy.
       Because the trial court failed, before it accepted the guilty plea, to inform
       the defendant of the mandatory term of postrelease control, which was a
       part of the maximum penalty, the court did not meet the requirements of
       Crim.R. 11(C)(2)(a). A complete failure to comply with the rule does not
       implicate an analysis of prejudice.

Sarkozy at ¶ 22.   The appellant does not need to demonstrate a prejudicial effect in this

limited circumstance. Following the holding in Sarkozy, we must vacate Whitfield’s

plea and remand to the trial court for further proceedings.

       {¶14} The judgment of the trial court is reversed and remanded.

       It is ordered that the appellant recover from appellee costs herein taxed.

       The court finds that there reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

KATHLEEN ANN KEOUGH, P.J. and
EILEEN T. GALLAGHER, J., CONCUR
